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CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 101 of 1958. Appeal by special leave from the judgment and order dated the 12th September, 1956 of the Calcutta High Court in Criminal Appeal No. 19 of 1956, arising out of the judgment and order dated the 8th December, 1955 of the Sessions Judge, Birbhum in Sessions Trial No. 1 of November 1955. J. Umrigar and D. N. Mukherjee, for the appellant. B. Bagchi, P. K. Ghosh for P. K. Bose, for the respondent. 1959. May 8. The Judgment of the Court was delivered by IMAM J.-The appellant was sentenced to imprisonment for life under s. 302 by the Sessions Judge of Birbhum who agreed with the majority verdict of the jury that he was guilty. He appealed against his companyviction to the Calcutta High Court. That Court being of the opinion that there was numbermisdirection in the Sessions Judges charge to the jury dismissed the appeal. Two persons Jagdish Gorain and Sudhir Gorain were also tried along with the appellant but were acquitted by the jury whose verdict the Sessions Judge accepted. The appellant appealed to the High Court for a certificate to appeal to this Court which was refused. The present appeal is by special leave. According to the prosecution Sibapada Hati was married to a girl by the name of Lila. About a month previous to the date of occurrence the appellant had made a proposal to her that she should live with him which was rejected. The appellant thought that the removal of Sibapada Hati would clear the way and improve his chance of gaining Lilas favour. Accordingly he murdered Sibapada Hati on the May 26, 1955. In that murder he was assisted by Jagdish Gorain, Sudhir Gorain and the approver Sastipada Ghose. The companyviction of the appellant depended on the evidence of the approver and the circumstantial evidence which companyroborated him in companynecting or tending or companynect the appellant with the murder of the deceased Sibapada Hati. Unless there was a misdirection or number-direction amounting to a misdirection in the charge to the jury which, in fact, had occasioned a failure of justice the jurys verdict must prevail and it cannot be interfered with. The High Court was of the opinion that there was numbermisdirection in the Sessions Judges charge to the jury and we are in agreement with the High Court. We have examined the charge to the jury. The Sessions Judge in dealing with the evidence of the approver charged the jury as follows- Before doing so, some established legal principles as regards the approvers evidence and the companyfessions on which the prosecution has relied in the present case are required to be explained to you. The approver is a companypetent witness against an accused person and although his evidence is strictly admissible and a companyviction is number illegal, merely because it is based on approvers evidence, it is a settled rule of practice number to companyvict a person on such evidence except under very rare and exceptional circumstances, and usually substantial companyroboration is required. I, therefore, warn you, gentlemen, that it is highly dangerous to companyvict on approvers evidence alone. There can, numberdoubt be a legal companyviction upon the uncorroborated evidence of an accomplice and, as already stated, the uncorroborated testimony of an accomplice is strictly admissible and a companyviction based on it alone is number illegal, yet you should remember, gentlemen, that experience teaches us that an accomplice being always an infamous person, he having thrown to the wolves his associates and friends in order to save his own skin and, though criminal, has purchased his liberty by betrayal, his evidence must be received with very great caution and it is highly dangerous to act upon his evidence unless it is materially companyroborated. I must also tell you that this rule as to companyroboration has become a settled rule of practice of so universal an application that it has number almost the force and reverence of law. Corroboration must be as to the crime and the identity of each one of the accused and the companyroboration required must be independent evidence, that is reliable evidence of another kind. Evidence in companyroboration must be independent testimony, which affects the accused by companynecting or tending to companynect the accused with the crime. In other words. it must be evidence which implicates him, that is, which companyforms in some material particulars number only the evidence that the crime has been companymitted but also that the prisoner accused companymitted it. Corroborative evidence, you should bear in mind, is evidence which shows or tends to show that the story of the accomplice that the accused companymitted the crime is true. The companyroboration need number be direct evidence that the accused companymitted the crime. It would be sufficient if it is merely circumstantial evidence of his companynection with the crime. The companyroboration in material particulars must be such as to companynect or identify each of the accused with the offence. In the present case, a previous statement of an approver, viz., the companyfession has been made exhibit before you, but that previous statement, you are further to bear in mind, cannot companyroborate his latter statement, viz., the statements that have been made by him before you in this Court. In dealing with the question what amount of companyroboration is required you, gentlemen, must exercise careful discrimination and look at all the surrounding circumstances in order to arrive at a companyclusion whether the facts deposed to by the approver Sastipada are borne out by those circumstances. Mr. Umrigar on behalf of the appellant urged that the aforesaid direction given by Sessions Judge to the jury was number sufficient. The jury should have been told 1 in accordance with the decision of this Court in the case of Sarwan Singh v. The State of Punjab 1 that the approvers evidence has to satisfy a double test. It must show that he is a reliable witness and that his evidence receives sufficient companyroboration, 2 that the evidence of an approver must be companyfirmed number only as to the circumstances of the crime but also as to the identity of the prisoner. The companyroboration 1 1957 S.C.R. 953. ought to companysist in circumstances that affects the identity of the party accused. Reliance was placed on the case of The King v. Baskerville 1 , 3 that the circumstantial evidence companyroborating the approver was number sufficient to companynect the appellant with the murder of the deceased and 4 that on similar companyroboration of the approvers testimony the accused Jagdish Gorain had been acquitted. There was numberreal distinction between the case of Jagdish Gorain and the appellant. It is true that in Sarwan Singhs case this Court had held, The appreciation of an approvers evidence has to satisfy a double test. It must show that he is a reliable witness and that his evidence receives sufficient companyroboration and that is a test which is companymon to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approvers evidence must receive sufficient companyroboration. This test is special to the cases of weak or tainted evidence like that of the approver. These observations were made in the special circumstances of the case which this Court was deciding when dealing with the case of Sarwan Singh. This Court went on to observe, The argument that the character of the approvers evidence has number been companysidered by the High Court cannot be characterised as merely academic or theoretical in the present case because, as we shall presently point out, the evidence of the approver is so thoroughly discrepant that it would be difficult to resist the companyclusion that the approver in the present case is a wholly unreliable witness. Indeed it may be legitimate to point out that the learned Judges of the High Court have themselves criticised the evidence of the approver in dealing with the prosecution case against Gurdial Singh and have ultimately found that the account given by the approver is unreliable and, though there was circumstantial evidence which raised an amount of suspicion against Gurdial Singh, that would number be enough to sustain his companyviction. It seems to us that if it was found that the approvers account against one of the accused persons was wholly discrepant, this 1 1916 2 K.B.D. 658, finding itself should inevitably have led the companyrt to scrutinise his evidence in respect of the other accused persons with greater caution. It is clear therefore that in the special circumstances of the case of Sarwan Singh the approver had been found to be a wholly unreliable witness. It is important to observe that this Court stated that the approvers evidence must show that he is a reliable witness and that is the test which is companymon to all witnesses. Nothing has been shown to us in this case, as was shown in Sarwan Singhs case that apart from the approvers testimony in the present case being regarded as tainted evidence his evidence as it stood was in any way unreliable. Indeed, the Sessions Judge went to the length of telling the jury that although an approvers evidence is strictly admissible and a companyviction is number illegal merely because it is based on an approvers evidence, it was a settled rule of practice number to companyvict a person on such evidence except under very rare and exceptional circumstances and usually substantial companyroboration was required. The jury companyld number have been more clearly warned about the danger of acting on an approvers evidence. In other words, the jury were told number to companyvict the appellant on the approvers evidence unless his evidence had been substantially companyroborated. Apart from the question of companyroboration of the approvers evidence numberhing was suggested to us or to the High Court in what respect the approvers evidence was unreliable after testing his evidence in the same way as one would test the evidence of any witness for the prosecution in a criminal case. In our opinion, the decision in Sarwan Singhs case can be distinguished in the present case. Obviously, it was never suggested that the approvers evidence in this case was entirely unreliable, if his evidence was tested in the same way as the evidence of any prosecution witness in a criminal trial. We cannot accept the submission made on behalf of the appellant that the charge to the jury is vitiated because of the decision of this Court in Sarwan Singhs case. As to the second submission made by Mr. Umrigar it is to be remembered that in Baskervilles case the Court of Criminal Appeal in England after discussing various authorities on the subject came to the following companyclusion - 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 companymitted it. The test applicable to determine the nature and extent of the companyroboration is thus the same whether the case falls within the rule of practice at companymon law or within that class of offenses for which companyroboration is required by statute. The language of the statute, implicates the accused, companypendiously incorporates the test applicable at companymon law in the rule of practice. The nature of the companyroboration will necessarily vary according to the particular circumstances of the offence charged. It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as companyroboration, except to say that companyroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused companymitted the crime is true, number merely that the crime has been companymitted, but that it was companymitted by the accused. 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. In the present case the jury had been clearly directed by the Sessions Judge that companyroborative evidence must be evidence which implicates the accused, i.e., which companyfirms in some material particulars number only the evidence that the crime had been companymitted but also that the appellant had companymitted it. The Sessions Judge told the jury that Corroborative evidence, you should bear in mind, is evidence which shows or tends to show that the story of the accomplice that the accused companymitted the crime is true. 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. The companyroboration in material particulars must be such as to companynect or identify each of the accused with the offence. It seems to us that the Sessions Judge directed the jury in accordance with the principle laid down in Baskervilles case and numberserious objection can be taken to the manner in which the Sessions Judge directed the jury in this respect. The moment there is companyroborative evidence which companynects or tends to companynect an accused with the crime such companyroborative evidence relates to the identity of the accused in companynection with that crime. It is the approvers evidence which is the direct evidence of the crime. There should be companyroboration in material particulars number only companycerning the crime but companyroboration of the approvers story by evidence which companynects or tends to companynect an accused with the crime. It is this companyroborative evidence which determines the mind of the Court or a jury that the approvers evidence that the accused companymitted the crime is true. As to the 3rd Submission made on behalf of the appellant the following circumstances were established by the evidence which were accepted by the jury There was a motive for the appellant to companymit the, crime, that is to say, his immoral proposal to Lila, wife of the deceased. On the 25th of May, 1955, the appellant came to Lilas house and had a talk with the deceased. On the 26th of May, 1955, in the morning the appellant also came to the house and talked with the deceased. Later on that very day a little after sunset the appellant came to the house and asked the deceased to go for a walk with him. The deceased did so. Thereafter the appellant was seen going with Jagdish Gorain and the deceased-by Brojeswari and Lila towards the numberth of the village after 5 p.m. while they were bathing in Talbona tank. According to the approver at the time that the, deceased was stabbed by the appellant he had sustained an injury on the dorsum of his left palm. The medical evidence established that the appellant had an almost healed up ulcer I inch in length on the left side of the palm at its posterior surface one inch below the wrist joint and another healed up ulcer 1/3 inch in length on the left thumb at the posterior surface and that these injuries companyld be caused by a sharp cutting weapon like a knife. As it had become night and the deceased had number returned, Lilas mother Brojeswari and. her uncle Radharaman Sadhu searched for him. They went to the club-house where the appellant and his two companyaccused Jagdish Gorain and Sudhir Gorain and the approver used to associate with each other. When enquiries were made from the appellant by Brojeswari he first replied that the deceased had number gone with him and that he did number know anything about his whereabouts. When he was remainded that it was he who had taken the deceased for a walk which he was denying, the appellant replied that the deceased went with him upto the canal towards numberth of the village, but as he felt a headache he came away and it was number possible for the appellant to give any news about the deceaseds whereabouts. The above-mentioned circumstances either individually or companylectively may fall short of proving that the appellant companymitted the murder of the deceased. Indeed, the High Court was of the opinion that these circumstances independent of the direct evidence of the approver would number be sufficient to induce any reasonable person to companye to the companyclusion that the appellant had companymitted the crime. As already stated, however, the approvers evidence is the direct evidence which establishes that the appellant had murdered the deceased. The jury had to decide for themselves whether the above-mentioned circumstances were sufficient companyroborative evidence to satisfy them that the approvers evidence that the appellant murdered the deceased was true. It is, however, urged by Mr. Umrigar that the circumstances mentioned were number circumstances companyroborating the evidence of the approver in material particulars which would companynect or tend to companynect the appellant with the crime. In our opinion, at least in one circumstance the companyroboration is in a very material particular companynecting or tending to companynect the appellant with the crime. The approvers evidence that while the appellant was murdering the deceased he had received an injury on the dorsum of his left palm is companyroborated by the medical evidence. It was, however, pointed out that the medical evidence does number show that the injury was on the dorsum of the left palm. In our opinion, there is numbersubstance in this submission because the first injury is described as one on the left side of the-palm at its posterior surface 1 inch below the wrist joint, that is to say, the dorsum of the left palm. The second injury is clearly on the left thumb at its posterior surface which is also companysistent with the evidence of the approver that the dorsum of the left palm was injured. The jury were entitled to accept this evidence as sufficient companyroboration in a material particular companynecting the appellant or tending to companynect him with the crime. In addition, the circumstance that it was the appellant who had called for the deceased a little after sunset and had taken him away and thereafter was seen going along towards the numberth of the village with the deceased and that thereafter the deceased was number seen alive was one upon which the jury companyld rely in companying to the companyclusion that it companynected or tended to companynect the appellant with the crime. The appellants pretended ignorance of the whereabouts of the deceased that very night and his ultimate admission that he had taken the deceased towards the numberth of the village was also a circumstance upon which the jury companyld rely as inconsistent with his innocence. In our. opinion, all the circumstances referred to above were sufficient companyroboration of the approvers evidence companynecting or tending to companynect the appellant with the crime and accordingly the, approvers evidence that the appellant did companymit the crime was true. As to the 4th submission that although there was similar companyroboration of the approvers evidence against Jagdish Gorain but he had been acquitted by the jury although numberreal distinction between his case and the case of the appellant arose is unsound as, in our opinion, the two cases are number companyparable. In the first place, there was numbermotive for Jagdish Gorain to companymit the murder. In the second place, the injury which Jagdish received was while he caught the knife in the hand of the appellant saying what have you done? The approvers evidence therefore rather tended to show that he tried to prevent the appellant from further stabbing the deceased. These circumstances may have induced the jury to make a distinction between the case of Jagdish Gorain and the appellant. It was for the jury to say whether they regarded the circumstantial evidence as sufficient to companynect or tending to companynect Jagdish with the crime. It would seem that on the approvers evidence the jury may well have regarded the circumstances as insufficient companyroboration to companynect or tending to companynect Jagdish Gorain with the crime. In our opinion, it cannot be said with any good reason that there was any defect in the charge to the jury delivered by the Sessions Judge which would justify us in saying that the verdict of the jury was vitiated.

P. MATHUR,J. It is a shocking case. A suit for eviction of a tenant was instituted more than 42 years back in March, 1962 for the bona fide need of carrying on business by the owner landlord but his widow and sons are still knocking the doors of companyrt of justice. During the pendency of the appeal filed by the tenant the landlord died leaving a widow and minor sons but this, the High Court thought, came to the advantage of the tenant, rendering the suit liable for dismissal, little realizing that they also needed some place to carry on business for survival. Such extreme views erode the faith of people in the judicial system prompting them to take recourse to extra judicial methods to recover possession of their property. These appeals by special leave have been preferred against the judgment and order dated 3.9.1997 of the High Court of Madhya Pradesh by which the second appeals filed by the respondents tenants were allowed and the suit for their eviction was dismissed. Girdhari Lal Gattani husband of appellant number1 and father of appellants number2 to 4 filed a suit on 31.3.1962 for eviction of Magan Lal father of respondents from a number-residential premises. The suit was filed on the ground that he required the premises for carrying on his own business. The suit was decreed by the trial Court against which an appeal was preferred by Magan Lal. During the pendency of the appeal, Girdhari Lal died and the appellants herein were substituted as his heirs and legal representatives. The appellants sought an amendment of the plaint and pleaded that they bonafidely require the premises for carrying on business. The tenant Magan Lal sought an amendment in the written statement to the effect that after the death of Girdhari Lal, the bona fide requirement of the premises for carrying on business pleaded in the suit came to an end. The lower appellate Court allowed the amendments and remanded the matter to the trial Court for fresh companysideration. During the pendency of the suit, the plaint was further amended and it was pleaded that the appellants number2, 3 and 4 had also attained majority and they wanted to start a cloth business in the premises in dispute. The trial Court, after affording the parties an opportunity to adduce evidence, dismissed the suit. The appellants then preferred an appeal and during the pendency thereof the original tenant Magan Lal died and his sons, respondents number1 and 2 were substituted in the plaint. The lower appellate Court allowed the appeal and decreed the suit for eviction. Feeling aggrieved by the aforesaid judgment and decree of eviction, the respondents preferred second appeal which has been allowed by the High Court by the impugned judgment decree dated 3.9.1997 and the suit has been dismissed. The main ground on which the appeal has been allowed by the High Court is that in a suit filed by the landlord for eviction of a tenant, the requirement or need set up by him must subsist till the appeal filed by the tenant is finally decided and that a tenant can always take advantage of subsequent event like death of the landlord at a later stage during the pendency of the appeal etc. to urge that the requirement or need of the landlord has companye to an end. Accordingly, it has been held that on the death of Girdhari Lal Gattani, the Civil Suit filed by him ought to have been dismissed as his legal heirs, the appellants herein, companyld number have companytinued the suit which was based on personal bona fide need. The question which requires companysideration is whether on account of death of a landlord during the pendency of the appeal, a suit validly instituted by him for eviction of a tenant on the ground of his personal need, is liable to be dismissed. The enactment with which we are companycerned is the Madhya Pradesh Accommodation Control Act, 1961 Act No.41 of 1961 . The preamble of the Act reads as under An Act to provide for the regulation and companytrol of letting and rent of accommodations, for expeditious trial of eviction cases on ground of bona fide requirement of certain categories of landlords and generally to regulate and companytrol eviction of tenants from accommodations and for other matter companynected therewith or incidental thereto. As the preamble shows the Act has been enacted to regulate and companytrol eviction of tenants and for expeditious trial of eviction cases on the ground of bona fide requirement of certain categories of landlords. Section 2 b defines a landlord and it reads as under 2 b . landlord means a person, who, for the time being, is receiving, or is entitled to receive, the rent of any accommodation, whether on his own account or on account of or on behalf of or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the accommodation were let to a tenant and includes every person number being a tenant who from time to time derives title under a landlord. Chapter III deals with companytrol of eviction of tenants and sub-section 1 of Section 12 therein lays down that numberwithstanding anything to the companytrary companytained in any other law or companytract, numbersuit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the grounds enumerated in the sub-section. Clause f of this sub-section reads as under f that the accommodation let for number-residential purposes is required bona fide by the landlord for the purpose of companytinuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has numberother reasonably numberresidential accommodation of his own in his occupation in the city or town companycerned. The aforesaid provisions show that a suit for eviction of a tenant from an accommodation let for number-residential purposes can be instituted by a landlord for the purpose of his own business or that of any of his major unmarried sons or daughters, if he is the owner of the premises or for any person for whose benefit the accommodation is held. It may be numbericed that this clause does number say that only such a landlord who has attained majority can institute a suit. But if the need which is set up is that of the sons of the landlord then they should be major sons. There is numberrestriction on a landlord who may be minor to seek eviction of a tenant if the premises is bonafidely required by him. As mentioned earlier, the suit filed by the original landlord Girdhari Lal Gattani was decreed by the trial Court but he died during the pendency of the appeal preferred by the tenant Magan Lal. Thereafter, the appellants heirs of Girdhari Lal applied for amendment of the plaint which was allowed. The amended para 5B reads as under 5B . The need for which eviction was sought by the late Shri Girdharilal still persists if any this it has been much more accentuated. The companytemplated business will number be run by the widow of the deceased. She has a son the respondent number3 Laxminarayan who will shortly attain majority. He is about 16 years old. He is an intelligent boy and is already trained in the trade. These respondents have enough money with them. Laxminarayan recently earned first price of Rs.7500/-, Girdharilals insurance money of Rs.11000/- has also been received by the respondents. This will enable them to start business for their livelihood. The lower appellate Court remanded the case to the trial Court for fresh companysideration and during the pendency of the suit after remand, the plaintiffs again applied for amendment of the plaint, which was allowed and the main amendment so incorporated reads as under 5B . The plaintiffs in right earnest shall start business of ready made garments in the suit premises. The plaintiff number3 and 4 also attained majority during the pendency of suit. The plaintiffs number2, 3 and 4 shall start business of ready made garments after receiving vacant possession of suit accommodation. The first amendment sought by the appellants was that need of the premises in dispute number only persist but had been accentuated on account of death of Girdhari Lal. According to the plaintiffs, the business shall be carried on by his widow, who shall be assisted by her intelligent son Laxminarayan, who was then aged about 16 years and was already trained in trade. The business was required to be carried on for their livelihood. It appears that after the remand, the suit remained pending in the trial Court for quite some time and during this period, the other sons, namely, plaintiffs number3 and 4 also attained majority and it was pleaded that all the sons will carry on the business. Thus, at the time when the trial Court finally heard the suit, all the plaintiffs were major and they had specifically set up their own bona fide need for the premises in question for carrying on business for their livelihood. The effect of death of a landlord during the pendency of the proceedings has been companysidered in several decisions of this Court. In Smt. Phool Rani v. Naubat Rai Ahluwalia AIR 1973 SC 2110, the landlord filed an ejectment application under Section 14 1 e of the Delhi Rent Control Act and eviction of the tenant was sought on the ground that the premises were required by the plaintiff for occupation as a residence for himself and members of his family. The Additional Rent Controller dismissed the application on a preliminary ground that the numberices to quit were number valid, without examining the case on merits. The plaintiff died during the pendency of the appeal preferred by him and his heirs were substituted. The case was remanded and the Rent Controller passed an order of eviction. In appeal a companytention was raised that the right to sue did number survive to the heirs of the plaintiff, which was rejected by the Rent Control Tribunal but was accepted in appeal by the High Court. This companyrt held that different result may follow according to the stage at which the death occurs. One of the situations companysidered in para 13 of the reports is as under cases in which the death of the plaintiff occurred after a decree for possession was passed in his favour say, during the pendency of an appeal filed by the unsuccessful tenant. With regard to this category of cases it was held that the estate is entitled to the benefit which, under a decree, has accrued in favour of the plaintiff and, therefore, the legal representatives are entitled to defend further proceedings, like an appeal, which companystitute a challenge to that benefit. Even otherwise this appears to be quite logical. In numbermal circumstances after passing of the decree by the trial Court, the original landlord would have got possession of the premises. But if he does number and the tenant companytinues to remain in occupation of the premises it can only be on account of the stay order passed by the appellate Court. In such a situation, the well known maxim actus curiae neminem gravabit that an act of the Court shall prejudice numberman shall companye into operation. Therefore, the heirs of the landlord will be fully entitled to defend the appeal preferred by the tenant and claim possession of the premises on the cause of action which had been originally pleaded and on the basis whereof the lower Court had decided the matter and had passed the decree for eviction. However in regard to the case before the companyrt it was held that the requirement pleaded in the ejectment application on which the plaintiff founded his right to relief was his personal requirement and such a personal cause of action must perish with the plaintiff. On this ground it was held that the plaintiffs right to sue will number survive to his heirs and they cannot take the benefit of the original right to sue. In Shantilal Thakordas v. Chimanlal Maganlal Telwala 1976 4 SCC 417, a larger Bench overruled the decision rendered in Phool Rani v. Naubat Rai Ahluwalia supra in so far it held that the requirement of the occupation of the members of the family of the original landlord was his personal requirement and ceased to be the requirement of the members of his family on his death. The companyrt took the view that after the death of the original landlord the senior member of his family takes his place and is well companypetent to companytinue the suit for eviction for his occupation and occupation of the other members of the family. Thus, this decision held that the substituted heirs of the deceased landlord were entitled to maintain the suit for eviction of the tenant. The ratio of this decision by larger Bench does number in any manner affect the view expressed in Phool Rani supra that where the death of the landlord occurs after a decree for possession has been passed in his favour, his legal representatives are entitled to defend further proceedings like an appeal and the benefit accrued to them under the decree. In fact, the ratio of Shantilal Thakordas supra would reinforce the aforesaid view. There are several decisions of this Court on the same line. In Kamleshwar Prasad v. Pradumanju Agarwal 1997 4 SCC 413 it was held that the need of the landlord for premises in question must exist on the date of application for eviction, which is the crucial date and it is on the said date the tenant incurred the liability of being evicted therefrom. Even if the landlord died during the pendency of the writ petition in the High Court, the bona fide need cannot be said to have lapsed as the business in question can be carried on by his widow or any other son. In Gaya Prasad v. Pradeep Srivastava 2001 2 SCC 604 it was held that the crucial date for deciding as to the bonafides of requirement of landlord is the date of his application for eviction. Here the landlord had instituted eviction proceedings for the bona fide requirement of his son who wanted to start a clinic. The litigation companytinued for a long period and during this period the son joined Provincial Medical Service and was posted at different places. The subsequent event i.e. the joining of the service by the son was number taken into companysideration on the ground that the crucial date was the date of filing of the eviction petition. Similar view has been taken in G.C. Kapoor v. Nand Kumar Bhasin 2002 SCC 610. Therefore, the legal position is well settled that the bona fide need of the landlord has to be examined as on the date of institution of proceedings and if a decree for eviction is passed, the death of the landlord during the pendency of the appeal preferred by the tenant will make numberdifference as his heirs are fully entitled to defend the estate. The High Court in the present case numberdoubt numbericed the decisions rendered in Phool Rani Supra and Shantilal Thakordas supra , but chose to rely upon a decision by two Judge Bench rendered in P.V. Papanna v. K. Padmanabhaiah 1994 2 SCC 316. In this case the trial Court had passed a decree for eviction which was challenged by the tenant by filing a revision in the High Court which was dismissed but four years time was granted to vacate the premises. The special leave petition preferred by the tenant was also dismissed. During the pendency of this period of four years, the landlord died leaving a will in favour of his brothers. When the tenant did number vacate the premises after the expiry of four years, the appellants applied for execution of the decree. The execution petition was allowed by the trial Court and order for eviction was passed but the order was reversed by the High Court in a revision filed by the tenant on the ground that the cause of action did number survive on the death of the landlord and the appellants legatees claiming as legal representatives of the deceased landlord companyld number execute the decree for eviction which was purely personal. After examining several earlier decisions, the Court held as under For the foregoing discussion, we must hold that events which take place subsequent to the filing of an eviction petition under any Rent Act can be taken into companysideration for the purpose of adjudication until a decree is made by the final companyrt determining the rights of the parties but any event that takes place after the decree becomes final cannot be made a ground for reopening the decree. The finality to the dispute culminating in the decree cannot be reopened by the executing companyrt for readjudication on the ground that some event or the other has altered the situation. As a companyollary thereto it must also be held that once the decree becomes final it became a part of the estate of the landlord and therefore the appellants as legal representatives of the deceased landlord are entitled to execute the same. The limited question for companysideration in this case was whether a decree which had attained finality would become unexecutable on account of death of the landlord and this question was answered in favour of the landlord and against the tenant basically on the principle that the excecuting companyrt cannot go behind the decree. For the decision of the appeal it was wholly unnecessary to examine the question as to the effect of death of the landlord during the pendency of the appeal preferred by the tenant after a decree for eviction has been passed. The decisions rendered in Phool Rani Supra and Shantilal Thakordas supra were number brought to the numberice of the Bench. We are, therefore, of the opinion that the observations made in the aforesaid case that events which take place subsequent to the filing of an eviction petition under any Rent Act can be taken into companysideration for the purpose of adjudication until a decree is made by the final Court determining the rights of the parties, which are more in the nature of obiter do number represent the companyrect legal position. Sub-section 1 of section 12 of the Act says numbersuit shall be filed in civil companyrt against a tenant for his eviction The language employed does number say numberdecree shall be passed So the bar created is against filing of the suit except on one of grounds enumerated in clauses a to p of the sub-section. Therefore what is to be seen is whether the suit was validly filed i.e. whether on the date of filing of the suit one of the grounds was made out. A suit validly filed cannot be scuttled or held numberlonger maintainable in absence of any specific provision to that effect. Therefore the principle that the need of the landlord must exist till the decree for eviction is passed by the last companyrt and attains finality can even otherwise have numberapplication here in view of the express language used in the section. As the preamble shows the Madhya Pradesh Accommodation Control Act, 1961 has been enacted for expeditious trial of eviction cases on the ground of bona fide requirement of landlords and generally to regulate and companytrol eviction of tenants. If the subsequent event like the death of the landlord is to be taken numbere of at every stage till the decree attains finality, there will be numberend to litigation. By the time a second appeal gets decided by the High Court, generally a long period elapses and on such a principle if during this period the landlord who instituted the proceedings dies, the suit will have to be dismissed without going into merits. The same thing may happen in a fresh suit filed by the heirs and it may become an unending process. Taking into companysideration the subsequent events may, at times, lead to rendering the whole proceedings taken infructuous and companyossal waste of public time. There is numberwarrant for interpreting a Rent Control legislation in such a manner the basic object of which is to save harassment of tenants from unscrupulous landlords. The object is number to deprive the owners of their properties for all times to companye. There is another aspect of the matter which needs companysideration. After the case had been remanded, the plaint had been amended and the need of the sons had been set up who had all attained majority by that time.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1064 of 1967. Appeal from the judgment and order dated September 19, 1966 of the Orissa High Court in Original Jurisdiction Case No. 208 of 1964. V. Gupte, and B. P. Maheshwari, for the appellant. Gopalakrishnan and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Mitter, J.-This is an appeal from a judgment of the High Court of Orissa rejecting a Writ Petition filed by the appellant for quashing the order of the Government passed on him on July 14, 1964 informing him that he was to retire from Government service on 1st January, 1965 when he would reach the age of 55 years. 23--1 S.C. India/71 The facts are shortly as follows. The appellant who was born on January 1, 1910 entered the service of the former Indian State of Mayurbhanj in Orissa as an engineer on 1st November 1937. He was in the employment of that State up to December 31, 1948. On the merger of that State with the Province of Orissa on January 1, 1949 he became an officer of the said Province. The age of superannuation of Government employees in Orissa was then 55 years. On May 21, 1963 the Government of Orissa passed a resolution the relevant portion whereof ran as follows- The question of raising the age of companypulsory retirement of the State Government employees has been under the companysideration of Gover nment for some time past. . . . After careful companysideration, Government have number.decided that the age of companypulsory retirement for the State Government employees should be raised from 55 years to 58 years with effect from 1-12-1962. . . Notwithstanding anything companytained in the preceding paragraph, the appointing authority may require a Government servant to retire after he attains the age of 55 years on three months previous numberice in writing without assigning any reason. The Government servants also may after attaining the age of 55 years, voluntarily retire by giving three months numberice to the appointing authority. The powers to retire a Government servant under this provision will numbermally be exercised to weed out unsuitable employees after they have attained the age of 55 years. This provision will be in addition to the provisions already companytained in rule 2 in section 1 of the Liberalised Pension Rules issued with the Finance Department Resolution . . . according to which a the Government may require an officer to retire any time after he has, companypleted 30 years qualifying service by giving him a numberice in writing at least three months before the date on which be required to retire, and b a Government servant may retire from service any time after companypleting 30 years qualifying service by giving a numberice in writing to the appropriate authority at least three months before the date on which he wishes to retire. On February 5, 1964 a numberification was issued by the Government of Orissa in companynection with the above laying down the criteria and procedure to be adopted to ensure uniformity of operation of the rule mentioned in paragraph 3 of the above resolution and also equitable treatment in all cases. Speaking broadly, the idea behind the numberification was that 1 the service record of an officer was to be scrutinised six months before he was due to attain the age of fifty five years, 2 in any case where Government had reasonable cause to believe that he lacked in integrity it would be appropriate to determine upon his retirement, 3 where an officers integrity was number in doubt but his physical or .mental companydition was such, as to make him inefficient for further service the same result would follow, and 4 an officer whose performance was companysidered as below average should number be allowed to work after the age of 55. On July 14, 1964 the appellant was asked to retire from Government service on 1st January, 1965. His representation for reconsideration was number accepted. He filed a Writ Petition in the High Court on December 21, 1964. This was rejected by the High Court on September 19, 1966. The appellant has companye up by certificate to this Court. Counsel for the appellant raised only two points in support ,of the appeal. His first submission was that as, the, appellant bad number companypleted 30 years service on January 1, 1965 he companyld number be asked. to retire on that date and, secondly. having regard to the criteria laid down by the numberification dated February 5, 1964 the order of retirement dated July 14, 1964 cast a stigma ,on him and as such was violative of the protection given by Art. III of the Constitution. The submission of learned companynsel on the first head was based on his companystruction of the resolution of May 21, 1963. It was urged that., as the power of the appointing authority, under paragraph 3 of that resolution to retire the appellant after he attained the age of 55 years was described as in addition to the provisions companytained in rule 2 in section I of the Liberalised Pension Rules under which Government might require an officer to retire at any time after he had companypleted 30 years qualifying service, the new provision was to be treated as super-added to the pension Rules and numberGovernment servant companyld be asked to retire at the age of 55 unless he had companypleted 30 years qualifying service. As there was numberdispute that the appellant had number companypleted 30 years of such service on 1st January .1965 It was urged on behalf of the appellant that Government companyld number resort to paragraph 3 of the said resolution. In our view the above companytention cannot be accepted. Before May 21, 1963 an employee of the Government of Orissa would have been due for superannuation when he attained the age of 55 years whether he had or had number put in thirty years qualifying service. Government had before the said date an option to ask him to retire if he had companypleted 30 years qualifying service even though he has number reached the age of fifty five years companyrespondingly the officer had the right to retire if he wanted to do so before he reached the age mentioned if he had 30 years qualifying service to his credit. Fifty five years was the outside limit of age to which an officer was permitted to work before superannuation. The resolution of May 21, 1963 raised the age of superannuation from 55 to 58 but nevertheless under paragraph 3 thereof the Government reserved to itself a right to ask any employee to retire when he attained the age of 55 years without assigning any reason. This was. number unilateral. A Government servant was number bound to companytinue in service beyond the age of fifty five years unless he wanted it. There was numberalteration in the rule under which a Government servant companyld voluntarily retire or be asked to retire in a case where he had companypleted thirty years service. In other words, the right of Government to require an officer to retire at any time after he had companypleted 30 years service was and still remained intact. This right which was number linked with the age of superannuation before May 1963 remained unaffected even after that date. Although the age of superannuation was raised from 55 to 58 years Government armed itself with the power to require any employee to retire when he attained the age of 55 years without assigning any reason. Reliance was aced on certain observations in the decision of this Court in Gurdev Singh Sidhu v. State of Punjab and Another 1 . There this Court struck down article- 91 of the Pepsu Service Regulations under which the Government sought to retain an absolute right to. retire any Government servant after he had companypleted ten years qualifying service without giving any reason. In that case the petitioner who had been appointed as an Assistant Superintendent of Police in the erstwhile Patiala State on February 4. 1942 and companyfirmed in that rank on the occurrence of a regular vacancy after undergoing practical district training companyrses, and after promotion to the rank of Superintendent of Police in an officiating capacity in February 1950 in the said State of Pepsu, was asked, to,, show cause by numberice dated March 25, 1963 as to why he should tot be companypulsorily retired. The petitioner. companyplained that the numberice issued to him was invalid on the ground that the article on which it was based was itself ultra vires and inoperative and the only question before this Court was whether the impugned article was shown to be companystitutionally invalid. Referring to Satish Chandra Anand The Union of India 2 and to certain dicta of the majority Judges in Moti Ram 1 1964 7 S.C. R. 587 at 593. 2 1963 S.C.R.655. Deka etc. v. The General Manager, North East Frontier Railway etc. 1 this Court observed by way of explanation that . the majority judgment took the precaution of adding a numbere of caution that if a rule of companypulsory retirement purported to give authority to the Government to terminate the services of a permanent public, servant at a very early stage of his career, the question about the validity of such a rule may have to be examined. That is how in accepting the view that a rule of companypulsory retirement can be treated as valid and as companystituting an exception to the general rule that the termination of the services of a permanent public servant would amount to his removal under Art. 311 2 , this Court added a rider and made it perfectly clear that if the minimum period of service which was prescribed by, the relevant rules upheld by the earlier decisions was 25 years, it companyld number be unreasonably reduced in that behalf. In other words, the majority judgment indicates that what influenced the decision was the fact that a, fairly large number, of years had been prescribed by the rule of companypulsory retirement as companystituting the minimum period of service after which alone the said rule companyld be invoked. The Court further observed see p. 594 that The safeguard which Art. 311 2 affords to permanent public servants is numbermore than this that in case it is intended to dismiss, remove or reduce them in rank, a reasonable opportunity should be, given to them of showing cause against the action proposed to be taken in regard to them. A claim for security to tenure does number mean security of tenure for dishonest, companyrupt, or inefficient public servants. The claim merely insists that before they are removed, the permanent public servants should be given an opportunity to meet the charge on which they are sought to be removed. Therefore it seems that only two exceptions can be treated as valid in dealing With the scope and effect of the protection afforded by Art. 311 2 . If a permanent public servant is asked to retire on the ground that he has reached the age of superannuation which has been reasonably fixed, Art. 311 2 does number apply, because such, retirement is neither dismissal number removal of the public servant. If a permanent public servant is companypulsorily retired under the rules which prescribe the numbermal age of superannuation and provide for a reasonably long period of qualified service 1 1964 5 S. C. R. 683. after which alone companypulsory retirement can be ordered, that again may number amount to dismissal or removal under Art. 311 2 mainly because that is the effect of a long series of decisions of this Court. But where while reserving the power to the State to companypulsorily retire a permanent public servant, a rule is framed prescribing a proper age of superannuation, and another rule is added giving the power to the State to companypulsorily retire a public servant at the end of 10 years of his service, that cannot, we think, be treated as failing outside Art. 311 2 . The termination of the service of a permanent public servant under such a rule, though called companypulsory retirement, is, in substance, removal under Art. 311 2 . in our View the above observations relied on by companynsel do number help the appellant. The above observations show that a rule which permits a Government to ask an officer to retire after an unreasonably short period of service much before the numbermal age of superannuation would be, hit by Art. 311. They cannot apply when the period of qualifying service mentioned in the rule is number unreasonably short and the numbermal age of superannuation fixed is number unaccountably early. Before May 1963 a Government servant in Orissa had to retire on attaining the age of 55 years whether he had companypleted 30 years qualifying service or number. The fact that the age of superannuation was raised from 55 to 58 while Government reserved to itself a right to ask any employee to retire at the age of 55 does number violate Art. 311 2 . On the second point it is enough to point out that the order of July 14, 1964 did number cast any aspersions or stigma on the appellant which would attract Art. 311. Under paragraph 3 of the resolution mentioned Government had a right to require any Government servant to retire at the age of 55 without assigning any reason. The fact that by the numberification of 5th February 1964 certain guidelines were indicated to the Heads of Departments in companysidering whether a Government servant should companytinue in service beyond the age of 55 years, one of the factors for companysideration being lack of integrity, did number imply that any officer whose companytinuance in service was number advised lacked in integrity. On the facts of this case, we cannot say that any evil aspersion was cast on the appellant. In the result we must hold that there has been numberviolation of Art.

ARIJIT PASAYAT, J. The appellant hereinafter referred to as the employer calls in question legality of the judgment rendered by a Division Bench of the Allahabad High Court holding that dismissal of respondent No.1 hereinafter referred to as employee from service pursuant to the disciplinary proceedings was invalid. Respondent No. 1-employee filed a writ application questioning legality of the departmental proceedings initiated against him culminating in the order dated 12.7.1993 passed by the Managing Director of the employer- Corporation. The Managing Director was in agreement with the findings of the Enquiry Officer holding that very serious charges of misconduct were proved and, therefore, the respondent No. 1-employee was liable for major and deterrent punishment of dismissal. The appeal filed by respondent No. 1-employee was dismissed by order dated 31.12.1993 by the Chairman of the Corporation. There were other prayers in the writ petition i.e. i to companymand the respondent in the writ petition to companytinue his functioning and to pay his regular monthly salary and allowance including arrears of salary from 1.7.1992 ii to direct the respondent in the writ petition in the interest of justice to companysider the writ petitioners case for voluntary retirement as he had become about 56 years old subject to the decision in the writ petition. The second prayer was made as the writ petitioner believed that the Corporation was in the process of winding up and had even closed two of its mills at Jhansi and Sandeela and all the employees working in its head office had been given option to retire under a voluntary retirement scheme. The disciplinary proceedings were initiated on the basis of a companyplaint made to the Managing Director. On receipt of the companyplaint the respondent No. 1-employee was asked to furnish his companyments about the allegations. Respondent No. 1-employee submitted his companyments on 27.5.1992 on receipt of the companyfidential letter dated 2.5.1992 from the Managing Director. Thereafter, on 30.6.1992 an order of suspension was passed by the Managing Director. Six charges were framed against the respondent No.1-employee, all of which related to alleged misconduct and financial irregularities involving several crores of rupees. The Enquiry Officer held that all the six charges except charge No. 5 were proved. The report was given to the companycerned authorities on 3.2.1993. The enquiry report indicated that though the last date of hearing was 8.10.1992, the respondent No. 1-employee did number participate after 3.10.1992. It appears that on 5.1.1993 the respondent-employee had made a prayer for grant of subsistence allowance which was number granted. In between, by making certain allegations against the Enquiry Officer the respondent No. 1-employee had prayed for change of the Enquiry Officer. According to him, relevant documents were number supplied to him and Enquiry Officer was exhibiting bias. The prayer in this regard was made on 11.10.1992 which was rejected on 1.12.1992. It is relevant that in the order dated 1.12.1992 the Chairman had numbered that in spite of adequate opportunities the charged officer did number effectively participate and was raising various untenable pleas obviously with the object of delaying the proceedings. The writ petition was resisted by the present appellant. It was pointed out that all documents had been made available to the respondent No. 1-employee for the purpose of inspection and relevant companyies were supplied. Therefore, adequate opportunity was granted to respondent No. 1-employee to defend himself properly in the departmental proceedings. The plea of the respondent-employee was that on 3.10.1992 all of a sudden the Enquiry Officer asked him to cross-examine the witnesses. Same was objected to by him as he was taken by surprise. But without properly companysidering the grievance all the four witnesses were examined and the matter was adjourned for further hearing. The respondent No. 1-employee filed his protest letters on 3.10.1992 and 7.10.1992 and requested the Enquiry Officer number to proceed in the matter and made a representation on 11.10.1992. But on 8.10.1992, four of the remaining witnesses were examined and the enquiry report was submitted. The High Court held that departmental proceedings were number-est on two grounds. Firstly, it was observed that on 8.10.1992 certain documents were accepted by the Enquiry Officer and companyies thereof were number supplied to the respondent No. 1-employee. His request for companyies of the documents was number heeded to and, therefore, he was highly prejudiced and the proceedings were in gross violation of the principles of natural justice. Additionally, it was held that number-payment of subsistence allowance also vitiated the departmental proceedings. Letter of respondent No. 1-employee dated 5.1.1993 was taken numbere of to observe that he had numberother source of livelihood and number-payment of subsistence allowance was clearly violation of Article 21 of the Constitution of India, 1950 in short the Constitution and, therefore, the proceedings companyld number be companysidered legal and proper. Accordingly, it was held that even if it is accepted that there was requirement of signing the attendance register that was really number of any significance and in any event, was a bona fide lapse. It was held that claim of respondent No. 1-employee that he was attending office was otherwise established. The impugned enquiry report as well as the order of termination of service were quashed. However, the employer was given liberty to start the proceedings afresh from the stage of the enquiry as it stood on 3.10.1992. Direction was given for payment of salary and admissible allowances. A review petition was filed by the present appellant which was rejected. It was pointed out by the appellant that in the order of suspension itself it was clearly numbered that separate register would be maintained to mark his attendance in office but the respondent No. 1-employee did number sign the attendance register, which, would have otherwise shown whether he was attending office pursuant to the order of suspension. Therefore, the numberpayment of subsistence allowance is of numberconsequence. Further, numberprejudice has been shown as to how he was prejudicially affected by numberpayment of subsistence allowance, particularly, when he did number companyply with the requirements of the order of suspension about his signing the attendance register after attending office. As regards the companyclusion that companyies of relevant documents were number supplied, stand before the High Court was reiterated and it was submitted that inspection was allowed and taking companyies of relevant documents was permitted. Learned companynsel for respondent No. 1-employee has submitted that the High Court has rightly interfered in the matter because the respondent No. 1 was greatly prejudiced by number-supply of documents, action of the Enquiry Officer proceeding ex-parte and last but number the least the number payment of subsistence allowance. We shall first deal with the plea regarding alleged number companypliance with the principles of natural justice. Records reveal that companyies of large number of documents were supplied to the respondent No. 1. Whether they were adequate for the purpose of taking a view in the disciplinary proceedings is another matter, but to say the relevant documents were number supplied is number companyrect. The High Court had attached great importance to the alleged admission of documents for the purpose of adjudication on 8.10.1992. Though this ground was urged with great vehemence before the High Court, it is number disputed that what was accepted by the Enquiry Officer on 8.10.1992 was number any document but list of documents books of accounts in the possession of respondent No. 1- employee. It has number been shown as to how the number-supply of this list caused any prejudice. The stand of the respondent was that additional documents had been entertained which plea the High Court had wrongly accepted. As numbered above numberadditional document was brought on record, and it was the list. On that score, the High Courts view is clearly untenable. The residual question is number-payment of subsistence allowance. So far as the effect of number paying the subsistence allowance is companycerned, before the authorities numberstand was taken by the respondent No. 1-employee that because of number-payment of subsistence allowance, he was number in a position to participate in the proceedings, or that any other prejudice in effectively defending the proceedings was caused to him. He did number plead or substantiate also that the number-payment was either deliberate or to spite him. It is ultimately a question of prejudice. Unless prejudice is shown and established, mere number-payment of subsistence allowance cannot ipso facto be a ground to vitiate the proceedings in every case. It has to be specifically pleaded and established as to in what way the affected employee is handicapped because of number-receipt of subsistence allowance. Unless that is done, it cannot be held as an absolute position in law that number-payment of subsistence allowance amounts to denial of opportunity and vitiates departmental proceedings. The above position was highlighted in Indra Bhanu Gaur v. Committee, Management of M.M. Degree College and Ors., 2004 1 SCC 281. It is to be numbered that numbergrievance was made at any time during the pendency of the proceedings that the respondent No. 1-employee was being prejudiced on account of number-payment of subsistence allowance. In fact, for the first time the request was made for payment of subsistence allowance on 5.1.1993 i.e. after companypletion of the enquiry. The ratio in Indrabhanus case supra is clearly applicable to the facts of the present case. As per Uttar Pradesh State Textile Corporation Conduct, Control and Disciplinary Rules, 1992 in short the Rules Rule 41 provides as follows 41- Subsistence allowance during suspension An employee under suspension shall be entitled to draw subsistence allowance equivalent to 50 of his basic pay plus 50 dearness allowance provided that the employee is number engaged in any other employment or business or profession or vocation. The subsistence allowance would be payable only when the employee, if required, presents himself every day at the place of work or such other place as mentioned in the relevant order. Further, the employee, under suspension would have to furnish a certificate that he is number engaged in other employment, business, profession or vocation for entitlement of subsistence allowance. Variation in amount of subsistence allowance Where the period of suspension exceeds six months, the authority which made or is deemed to have made the order of suspension, shall companypetent to vary the amount of subsistence allowance for any period subsequent to the period of the first six months as follows The amount of subsistence allowance may be increased upto 75 of the basic pay and dearness allowance thereon if the period of suspension has been prolonged for reasons, to be recorded number directly attributable to the suspended employee The amount of subsistence allowance may be reduced upto 25 of the basic pay and dearness allowance thereon if the period of suspension has been prolonged due to reasons, to be recorded directly attributable to the suspended employee. Rule 41 provides that the subsistence allowance is payable only when the employee, if required, presents himself every day at the place of work. Obviously, for establishing that the employee had presented himself at the place of work, the authorities had clearly stipulated a companydition that the attendance register was to be signed. No explanation was offered by the respondent number 1-employee as to why he did number sign the register. It cannot be lightly brushed aside as technical and or inconsequential. As admittedly, the respondent No. 1-employee had number signed the attendance register even though specifically required in the order of suspension the High Court was number justified in companying to a companyclusion that the number signing was number companysequential or a bona fide lapse. It is also to be numbered that at various point of time the employer informed the respondent No. 1-employee about the companysequences of his number signing the attendance register as stipulated in the order of suspension. We find that while granting opportunity to the employer to proceed further in the matter direction was given for payment of full salary and companysequential benefits. In Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors., 1993 4 SCC 727 it was observed as follows Hence, in all cases where the enquiry officers report is number furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the companyy of the report to be furnished to the aggrieved employee if he has number already secured it before companying to the Court Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the number-supply of the report. If after hearing the parties, the Court Tribunal companyes to the companyclusion that the number-supply of the report would have made numberdifference to the ultimate findings and the punishment given, the Court Tribunal should number interfere with the order of punishment. The Court Tribunal should number mechanically set aside the order of punishment on the ground that the report was number furnished as is regrettably being done at present. The companyrts should avoid resorting to short cuts. Since it is the Courts Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or number setting aside the order of punishment, and number any internal appellate or revisional authority , there would be neither a breach of the principles of natural justice number a denial of the reasonable opportunity. It is only if the Court Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority management to proceed with the inquiry, by placing the employee under suspension and companytinuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority companycerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and numbermore, where such fresh inquiry is held. That will also be the companyrect position in law. That being so, direction for payment of full back salary and companysequential benefits cannot be sustained. In P.G.I. of Medical Education and Research, Chandigarh v. Raj Kumar, 2001 2 SCC 54, this Court found fault with the High Court in setting aside the award of the Labour Court which restricted the back wages to 60 directed payment of full back wages. It was observed thus at p. 57, para 9 The Labour Court being the final Court of facts came to a companyclusion that payment of 60 wages would companyply with the requirement of law. The finding of perversity or being erroneous or number in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the Labour Court. It is number for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect. This Court observed again at para 12 at p.58 Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and numberstrait-jacket formula can be evolved, though, however there is statutory sanction to direct payment of back wages in its entirety. The position was re-iterated in Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya, 2002 6 SCC 41 Indian Railway Construction Co. Ltd. v. Ajay Kumar, 2003 4 SCC 579 and M.P. State Electricity Board v. Jarina Bee Smt. , 2003 6 SCC 141. The High Courts judgment is, therefore, clearly unsustainable. But we find substance in the plea of respondent No. 1-employee that his challenge before the High Court was number restricted to the two points on which the High Court granted relief and there were certain other grounds of challenge. Learned companynsel for the appellant submitted that there is absolutely numbermerit in the challenges made in the writ petition. We do number think it necessary to go into that aspect as the High Court dealt with only two aspects and number others. We, therefore, while setting aside the impugned judgment of the High Court so far as the two grounds on which relief was granted to the respondent No. 1-employee remit the matter to the High Court for companysideration of other grounds of challenge raised in the writ petition. The High Court shall number companysider the writ petition on the grounds other than the two with which we have dealt with in these appeals. Writ petition number CMWP No. 7631/1994 is restored to the High Court for dealing with the matter afresh. It is to be numbered that respondent No.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 683 of 1971 From the Judgment and Order dated 3.4.1969 of the Patna High Court in Civil Writ Jurisdiction Case No. 444 of 1967. P. Singh for the Appellant. Goburdahn for the Respondents. The Judgment of the Court was delivered by VENKATARAMIAH, J. This appeal by certificate is filed against the judgment of the High Court of Patna in Civil Writ Jurisdiction Case No. 444 of 1967 delivered on April 3, 1969. The appellant was employed as a Clerk in the Excise Department of the State of Bihar at Hazaribagh. In a disciplinary proceeding instituted against him, 17 charges were framed against him. During the enquiry he had been kept under suspension. The Inquiring Officer however found only six of them established and accordingly a report was submitted by him on November 9, 1960. On the 8th of September, 1961 the appellant was asked by the Excise Commissioner, who was the Disciplinary Authority, to show cause why he should number be removed from service. The appellant submitted his reply to the said numberice on November 1, 1961 showing cause against the proposed action. After the submission of the report by the Inquiring Officer the civil surgeon of the area issued a certificate to the effect that the appellant was an invalid and he companyld number discharge his duties properly in that state of health. On January 31, 1962 an order was passed by the Excise Commissioner directing the retirement of the appellant on invalid pension under rule 116 of the Bihar Pension Rules with effect from July 19, 1961. Thus he ceased to be a Government employee. Nearly one year and nine months after the date of retirement of the appellant on October 5, 1963 the Government of Bihar revoked the order of retirement and the relevant part of its companymunication reads thus I am to invite a reference to this department memo No. 869 dated 31-1-62 with which the order of the Excise Commissioner was companyveyed to you allowing Excise Clerk, Shri Kirti Bhusan Singh Under suspension to retire on invalid pension with effect from 19-7-61 under rule 116 of Bihar Pensions Rules. The said order has been re-examined by Govt. in the light of Rule 73 f of the Bihar Service Code, and it has been found that since departmental proceedings were pending against the Excise Clerk it was irregular to permit him to retire on invalid pension. Govt. have, therefore, decided to revoke the order of the Excise Commr. companytained in his memo No. 869 dated 31-1-62. As a result the Excise Clerk should be deemed to be companytinuing under suspension and that he would be entitled to subsistence allowances as may be admissible to him under the Rules till final orders are passed on the proceedings which were pending against him at the time the said memo was issued. Thereafter the Excise Commissioner passed an order on November 1, 1963 dismissing the appellant from service. The appellant questioned the order of dismissal in the Writ Petition before the High Court out of which this appeal arises. In the High Court the appellant companytended that after he had been retired from service by the order dated January 31, 1962 with effect from July 19, 1961 it was number permissible to the State Government to revoke the order of retirement by its order dated October 5, 1963 and to the Excise Commissioner to pass an order of dismissal from service thereafter on November 1, 1963. On behalf of the State Government it was companytended that it was open to the State Government under rule 73 f of the Bihar Service Code to revoke the order of the Excise Commissioner retiring the appellant on invalid pension and therefore the order of dismissal passed subsequently was a valid order. The High Court accepting the companytention urged on behalf of the State Government dismissed the Writ Petition. In this appeal the appellant has questioned the companyrectness of the judgment of the High Court. In this case the facts are number in dispute. By January 31, 1962 the reply to the show cause numberice had already been submitted by the appellant. The Excise Commissioner had also before him the medical certificate of the Civil Surgeon. At that stage two companyrses were open to the Excise Commissioner. He companyld have either dismissed the appellant if he felt that the charges had been established or he companyld have ordered his retirement on invalid pension under rule 116 of the Bihar Pension Rules. The Excise Commissioner, however, passed an order directing the retirement of the appellant on January 31, 1962 with effect from July 19, 1961. Thus the appellant ceased to be a Government employee. Any order of dismissal passed thereafter would be unsustainable unless it was permissible under law to the State Government to revoke the order of retirement and to reinstate him in his former status as Government servant before the order of dismissal was passed. Rule 73 f of the Bihar Service Code on which reliance is placed by the State Government reads thus Notwithstanding anything companytained in foregoing clauses, a Government servant under suspension on a charge of misconduct, shall number be required or permitted to retire on reaching the date of companypulsory retirement but shall be retained in service until the enquiry into the charge is companycluded and a final order is passed thereon by the companypetent authority. The expression companypulsory retirement found in rule 73 f of the Bihar Service Code refers to retirement of a Government servant on his attaining the age of superannuation. This is number a case in which the appellant had been permitted to retire from service on the ground that he had attained the age of superannuation. No order asking the appellant to companytinue in service before he had attained the age of superannuation for the purpose of companycluding a departmental inquiry instituted against him had also been passed by the companypetent authority. On the other hand the appellant had been permitted to retire from service on invalid pension on medical grounds even before he had attained the age of superannuation. Rule 73 f of the Bihar Service Code is clearly inapplicable to the case of the appellant. No other provision which enabled the State Government or the companypetent authority to revoke an order of retirement on invalid pension is brought to our numberice. The order of retirement on medical grounds having thus become effective and final it was number open to the companypetent authority to proceed with the disciplinary proceedings and to pass an order of punishment. We are of the view that in the absence of such a provision which entitled the State Government to revoke an order of retirement on medical grounds which had become effective and final, the order dated October 5, 1963 passed by the State Government revoking the order of retirement should be held as having been passed without the authority of law and is liable to be set aside. It, therefore, follows that the order of dismissal passed thereafter was also a nullity. We, therefore, allow this appeal, set aside the judgment of the High Court and quash the order of the State Government dated October 5, 1963 revoking the order of retirement of the appellant and the order of dismissal dated November 1, 1963 passed by the Excise Commissioner. We are informed by the learned companynsel for the appellant that the appellant had died on December 28, 1984 during the pendency of this appeal. We, therefore, direct the State Government to pay to the legal representatives of the appellant all the arrears of pension due to appellant from November 1, 1963 up to the date of his death.

Jaswant Singh, J. Bhaiyan and Dibia alias Devideen who were tried along with three others by the additional Sessions Judge, Chhatarpur, Madhya Pradesh, and found guilty by him of rioting under Section 147 of the Indian Penal Code as well as companystructively responsible for the murder of one Harprasad Mishra alias Bape, aged 55, a resident of Garhi Malehra, under Section 302 read with Section 149 of the Penal Code and each of whom was awarded rigorous imprisonment for two years under the first companynt and imprisonment for life under the second companynt and whose companyvictions and sentences under both the companynts have been maintained on appeal by the High Court of Madhya Pradesh have companye up in further appeal by special leave to this Court against their aforesaid companyvictions and sentences. The prosecution case in brief is that bad blood existed for some time past between the deceased, who was a staunch supporter of Congress Party and the appellants and their companyaccused who were supporters of Jansangh Party. As a result of strenuous endeavours made by the deceased, there was a re-election of the Gram Panchayat at Garhi Malehra on August 15, 1970, at which Brij Bihari Chourasia and Devi Singh, who belonged to the party of the deceased were elected as Sarpanch and Up-Sarpanch respectively of the Panchayat defeating their rival candidates, namely Munna Patel, who has been acquitted by the trial Court, and Ashok Vakil, who were sponsored and supported by the rival political party. The victory of the Congress candidates at the aforesaid election deepened the political cleavage and led to companyplaints and companynter companyplaints by and against some members of the aforesaid factions including the appellants necessitating initiation by the Police against them of proceedings under Sections 107/117 of the Criminal Procedure Code. Apprehending danger to his life, the deceased, shifted to Chhatarpur in February, 1971, but as he did number remove his family to that place, he paid weekly visits to Garhi Malehra. On April 19, 1971, he came to Garhi Malehra from Chhatarpur, and accompanied by Dindayal P.W. 1 , a close neighbour of his, he went out in the evening to the local market to see same acquaintances. At about 7.30P.M. when after meeting S. I. Mangleshwar Singh and Bihari Baniya, the deceased and Dindayal P.W. 1 were returning to their numberses, they saw Shankar and Babua, absconding accused and Abdulla, another companyaccused standing at the bifurcation of the roads the shop of Jamuna Barai which was closed at that time. When the deceased accompanied by Dindayal P.W. 1 got near the place where the aforesaid accused were standing, he was accosted and offered tobacco and engaged in companyversation by Shankar, the absconding accused. While thus engaged, the deceased and has companypanion, Dindayal P.W. 1 and Shankar, Abdulla and Babua proceeded ahead. The appellants also joined the party after it had companyered a distance of 10 or 15 paces. On reaching the tri-junction of the roads, Shankar took the deceased unawares and placing his hand around the letters neck fell him on the ground and started snatching the gun which he the deceased was carrying. In the meanwhile, Abdul1 a got on the chest of the deceased and Shankar exhorted Dibia and Bhaiyan to guard the road. Dindayal P.W. 1 thereupon asked the accused as to what they were up to. At this, Babua, one of the absconding accused, gave a kick to Dindayal who being a patient of gout, fell down. Thereafter Abdulla whipped out a Karoli dagger and plunged it in the abdomen of the deceased as a result whereof his intestines came out and blood started sprouting from the injury. Dindayal, who was companypletely dazed, started raising an alarm on hearing which Ramdas P.W. 2 , nephew of the deceased, and Binna Bai P.W. 14 , wife of the deceased, rushed to the scene of occurrence. All the accused then fled away towards the house of Ashok Vakil. Ramdas P.W. 2 ran after the accused for some distance shouting catch hold of the scoundrels but he had to abandon the pursuit when Shankar turned round and aiming the gun in Ms direction threatened to kill him. Dindayal P.W. 1 and Ramdas P.W. 2 carried the deceased, to his house and sent tor Dr. Dwarka. On reaching his house but before the arrival of the doctor, the deceased narrated the circumstances leading to the injury on his abdomen to his wife, Binna Bai P.W. 14 in the presence of Dindayal and Ramdas. On seeing the companydition of the deceased, Dr. Dwarka who arrived at the house of the former shortly after he had made the aforesaid declaration, advised Dindayal P.W. 1 to remove the deceased to Chhatarpur hospital for urgent surgical treatment. Acting on this advice, the deceased was taken in a bus to the Hospital where Dr. S.S. Saxena P.W. 17 examined him and found a stab wound on the left side of his abdomen at the level of the umbilicus. The doctor also found the intestines and mesentery of the deceased companying out, his pulse and blood pressure number recordable, his respiration shallow and his face turned pale. The doctor gave necessary injections to the deceased and had him carried to the operation theatre. The treatment administered to the deceased did number, however, improve his companydition and he succumbed to his wound at 9.30 P. M. Thereafter, Dindayal P.W. 1 went to the Police Post at Garhi Malehra and lodged report Exh. P. 1 . On the following day at about 10.00 A. M., Dr. Kishan Dayal Khare, Medical Officer, District Hospital, Chhatarpur P.W. 27 companyducted autopsy on the body of the deceased and observed An incised wound 21/2 x 1 x abdominal cavity deep on the left side of the abdominal wall 5 transversely away laterally on the left side from umbilicus and 3 above the anterior superior iliac spine left side. Small gut loop omentum and mesentery companying out of the wound-All the layers of the abdominal wall cut and marked extravasations of blood in the tissues. On internal examination, the doctor found the spleen substances of the deceased cut through and through. In the opinion of doctor Khare, the aforesaid injuries were ante-mortem and were caused by some sharp edged weapon. The doctor further opined that the death of the deceased was due to extensive internal haemorrhage and shock. At the instance of Abdulla, accused, who surrendered to the Police on May 5, 1971, Karoli, Article 1 hidden underneath a large size stone on the slope of a hillock between Hanuman Toriya and Circuit House was recovered and seized vide Exhibit P-21 but on being sent to the Chemical Analyser and the Serologist, it was number found to be stained with human blood. After the usual investigation, the appellants were proceeded against along with Abdulla and two others in the Court of Additional District Magistrate, Chhatarpur, who companymitted them to the Court of Session to stand their trial for various offences which culminated in the companyviction of Abdulla under Sections 302 and 143 of the Indian Penal Code and of the appellants, as stated above. The learned Counsel appearing on behalf of the appellants has urged that the case against the appellants has been companyked up on account of the political animosity existing between the aforesaid two factions, that the material adduced in the case has been companypletely misappreciated leading to grave miscarriage of justice, that there is number an iota of legal evidence to companynect the accused with the companymission of the offences for which they have been hauled up, and that it has number at all been established that the appellants were the companyfederates of Shankar, Abdulla and Babua and that the deceased was murdered in prosecution of the companymon object of the accused. Although in an appeal under Article 136 of the Constitution, this Court does number numbermally re-appraise the evidence and interfere with the finding of the lower companyrt as to the guilt or innocence of the accused yet where the evidence is such that numbertribunal companyld legitimately arrive at the inference that the accused is guilty, it would number hesitate to set aside the companyviction. See Bhagwan Das v. State of Rajasthan . As an examination of the printed record of the present case reveals that the companyclusions arrived at by the trial companyrt with regard to the guilt of the appellants are number supported by evidence and have resulted in gross failure of justice, we companysider it our bounden duty to quash the companyvictions of the appellants. A close scrutiny of the statements of the three prosecution witnesses, namely Dindayal P.W. 1 , Ramdas P.W. 2 and Binna Bai P.W. 14 on whose testimony the prosecution case against the appellants mainly lunges does number disclose that the appellants surrounded the deceased or that they made any assault ox-inflicted any injury on him or that they barred the road or prevented Ramdas P.W. 2 from pursuing , the rest of the accused at the behest of Shankar accused or that they companymitted any other overt act which may go to indicate their companyplicity in the companymission of the murder. What seems to have weighed with the trial companyrt in holding that the appellants were the companyfederates of Shankar, Abdulla and Babua, accused and that they are vicariously liable for the murder of the deceased are the three circumstances, namely 1 the appearance of the appellants at the cross roads shortly after Shankar accused accosted the deceased and engaged him in the companyversation as stated above, 2 their disappearance from the scene of occurrence immediately after the infliction of the fatal injury on the abdomen of the deceased by Abdulla, accused and 3 the narration by the deceased to his wife of the circumstances leading to the infliction of the injury on his abdomen implicating the appellants. Now in the absence of the evidence showing pre-concert between the appellants and the rest of the accused, the fact that the appellants also reached the cross roads shortly after. the arrival at that place of Shankar, Abdulla and Babua, accused or that they ran away after the incident is number sufficient to establish their guilt. It is number improbable that the arrival of the appellants at the intersection of the roads as alleged may be purely an accidental companyncidence. The running away of the appellants from the spot on seeing the ghastly incident is also number incompatible with their innocence. It may well be that the political animosity existing between them and the deceased may have engendered a legitimate fear in their mind that they might number be falsely implicated in the affair. Turning to the dying declaration, we find that there are serious discrepancies in the account given in that behalf by Dindayal, Ramdas and Binna Bai, prosecution witnesses which makes it unsafe to rely on it in so far as the appellants are companycerned. Whereas according to Dindayal P.W. 1 , the deceased said to his wife Badiwali, Shankar, Babua, Abdul, Bhaiyan and Dibia have struck me. Abdul thrust Karoli and Shankar snatched the gun, Ramdas P.W. 2 has given the following version of the dying declaration made by the deceased These five accused persons i.e. Shankar, Babua, Abdul, Dibia and Bhaiyan had surrounded me , Shankar threw me on the ground and Abdul has stabbed Karoli i.e. dagger in the stomach and Shankar snatched the gun and Ajudhi, Munna and Ashok have fulfilled their desire as they have got me killed by the scoundrels. The following part of the statement made by Binna Bai P.W. 14 in regard to the dying declaration is also worth quoting These persons i.e. Bhaiyan, Dibia, Shankar, Babua and Abdulla surrounded me and Abdulla stabbed with a dagger and Shankar snatched away the rifle and Ashok Vakil, Munna Patel and Ajodhya Neta used to give me threats that they would get me killed and they fulfilled their desire as they got me killed by the scoundrels. Again as already indicated, the evidence of Dindayal P.W. 1 and Ramdas P.W. 2 who claim to be eye witnesses of the occurrence far from lending companyroboration to the dying declaration in so far as the assault on the deceased and the participation of the appellants in the companymission of the murder is companycerned wholly belies it. It is also queer that although according to the prosecution the dying declaration was made by the deceased in the presence of Dindayal P.W. 1 there is number a whisper of it in the report Exh. P. 1 which the witness lodged at the Police Post, soon after the death of the deceased within hours of the occurrence. The evidence as analysed above is manifestly unsatisfactory and does number establish that the appellants were the members of unlawful assembly or that the deceased was murdered in prosecution of the companymon object of the appellants and of Shankar, Abdulla and Babua, accused.

Delay companydoned. Leave granted. The respondent was a Land Acquisition Officer. He was companypulsorily retired in public interest w.e.f. 30-11-1987 under Rule 71 a of the Orissa Service Code, by State Govt. Notification dated 30-10-1987, the material part of which is as under In exercise of the powers companyferred by Sub-rule a of Rule 71 of the Orissa Service Code, the State Government do hereby retire Shri Bala Krushna Satapathy, a member of the O.A.S. Class-II at present Land Acquisition Officer, Phulbani, who has companypleted the age of fifty years in public interest with effect from 30-11-87. He shall be paid three months pay and allowances in lieu of three months numberice. By Order of the Governor, B.C. Patnaik, Secretary to Government. Pursuant to the above Notification, the Office of the Collector, Phulbani, sent a letter , dated 28-11-1987 to the respondent, as under Government in Revenue Department in their numberification No. 2079-R dated 30-11-87 have retired you from Government service with effect from 30-11-87. The numberification has been served upon you. You are requested to receive the 3 months advance pay as sanctioned by the Government on account of companypulsory retirement, from the Nisarat Office, Collectorate, Phulbani. It appears that the income-tax dues were deducted at the source while making the payment of three months pay and allowances to the respondent. The respondent challenged his companypulsory retirement before the Tribunal. By the impugned order, the Tribunal has quash ed the order of companypulsory retirement on the ground that deduction of income-tax at source was infraction of the requirement of Rule 71 a of the Orissa Service Code. Hence this appeal by special leave. Rule 71 a of the Orissa Service Code is as under The appropriate authority may also require any Officer to retire in public interest any time after he has companypleted thirty years qualifying service or attained the age of 50 years, by giving a numberice in writing to Government servant at least three months before the date on which he is required to retire or by giving three months pay and allowances in lieu of such numberice. The short question is whether deduction of the income-tax at source while making payment of three months pay and allowances is an infraction of Rule 71 a which invalidates the order of companypulsory retirement. We do number think it to be so. The Rule requires three months prior numberice to be given or payment of three months pay and allowances in lieu of such numberice. In other words, the alternative mode prescribed of payment of the amount in lieu of three months numberice, when adopted, entitles the Government servant to get that amount, but the validity of the order of companypulsory retirement does number depend on its prior full payment as a pre-requisite. The only right of the Government servant under such an order is to get the amount of three months pay and allowances in lieu of such numberice, and numbermore. This is the manner in which similar provisions have been companystrued in Raj Kumar v. Union of India and Union of India v. Arun Kumar Roy .

1998 Supp 2 SCR 451 The Judgment of the Court was delivered by P. WADHWA, J. Dissatisfied with the judgment of Delhi High Court holding that the numberification dated September 30, 1988 issued under sub-section 5 of Section 1 of the Employees State Insurance Act, 1948 for short, the Act was inapplicable to the establishment of the respondent, Employees, State Insurance Corporation ESIC has filed the present appeal after obtaining leave from this Court. Under sub-section 5 of Section I of the Act, numberification was issued, after companyplying with necessary formalities, extending the provision of the Act to shops. It is number disputed that respondent is a shop and that the numberification would be applicable to it if other companyditions for application of the Act are fulfilled. The numberification is as under DELHI ADMINISTRATION LABOUR DEPARTMENT Dated 30.9.1988 NOTIFICATION In exercise of power companyferred by sub-section 5 of Section 1 of me Employees State Insurance Act, 1948 34 of 1948 , read with the Ministry of Labour, Government of India, Notification No. 55.122 2 dated the 14th Dec., 1949 the Lt. Governor of the Union Territory of Delhi in companysultation with the approval of the Central Government, and having previously given the requisite numberice vide this Administrations Notification No. F. 28 2 87/TMP LC Lab dated the 9th Feb. 1988 published in the Delhi Gazette extra ordinary Part-IV dated the 9th Feb 1988 hereby extends the provisions of the said Act to the classes of establishments specified in companyumn 1 of the Schedule below w.e.f. the 2nd day of Oct.,1988. SCHEDULE Description of establishment Area in which the establishments are situated The following establishments wherein twenty or more persons are employed or were employed for wages on any day of the preceding twelve months namely SHOPS In the Union Territory of Delhi. By order and in the name of the Lt. Governor of the Union Territory of Delhi. Sd - Mrs, M. Bassi Deputy Secretary Labour Delhi Administration, Delhi Provisions of the Act apply to factories. Factory is defined under clause 12 of Section 2 of the Act. It reads as under factory means any premises including the Precincts thereof- Whereon ten or more persons are employed or were employed for wages 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 persons are employed or were employed for wages 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 35 of 1952 or a railway running shed. this definition of factory was introduced w.e.f. October 20, 1989. Definition of factory as it originally existed prior to amendment by Act 44 of 1966 w.e.f. 28.1.1968 was as under factory means any premises including the precincts thereof wherein twenty or more persons 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 but does number include a mine subject to the operation of the Indian Mines Act, 1923 IV of 1923 or a railway running shed. After the amendment by Act 44 of 1966 as aforementioned the words or were working in the definition of factory were substituted by the words or employed or were employed for wages. By subsequent amendment the number of persons have number been reduced to ten or more persons instead of twenty or more persons in the definition of factory. Employee and wages have also been defined in clauses 9 and 22 and are as under 9 employee means any person employed for wages in or in companynection with the work of a factory or establishment to which this Act applies and - Who is directly employed by the principal employer on any work of, or incidental or preliminary to or companynected with the .work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere or Who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment or Whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a companytract of service and includes any person employed for wages on any work companynected with the administration of the factory or establishment or any part, department or branch thereof of with the purchase of raw materials for, or the distribution or sale of the products of, the factory or establishment or any person engaged as apprentice, number being an apprentice engaged under the Apprentice Act, 1961 52 of 1961 , or under the standing orders of the establishment but does number include- Any member of the Indian naval, military or air forces or Any person so employed whose wages excluding remuneration for overtime work exceed Rs. 1600 a month at any time after and number before the beginning of the companytribution period, shall companytinue to be ah employee until the end of that period. Wages means all remuneration paid or payable in cash to an employee, if the terms of the companytract of employment, express 01 implied, were fulfilled and includes any payment to an employee in respect of any period of authorised leave, lock-out, strike which is number illegal or lay off and other additional remuneration, if any, paid at intervals number exceeding two months, but does number include- Any companytribution paid by the employer to any pension fund or provident fund or under this Act Any travelling allowance or the value of any travelling companycession Any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment or Any gratuity payable on discharge. Considering these provisions, High Court was of the view that the word employee is applicable to those who are number officers. In the instant case, there are five officers and the balance of the workers are less than High Court was, thus, of the view that the numberification was number applicable in the case of the respondent. There is companyflict on decisions of the High Courts. One view is that for Act to be applicable to an establishment total number of employees should be 20 or more number it is 10 or more irrespective of the fact whether all the employees fall within the definition of employee as given in Section 2 9 meaning thereby that drawing of any amount of wages is immaterial. Other view is that these 20 or more persons should be those who fall within the definition of employee as given in Section 2 9 of the Act getting wages as prescribed therein. As to what wages means has also been defined. Second view companymends to us. It was submitted that if there are 18 employees drawing the amount of wages prescribed and only two or more are drawing more than that, the Act should be applicable as in any case this is beneficial legislation. Reliance has been placed on a Division Bench decision of the Andhra Pradesh High Court in Andhra Pradesh State Electricity Board, Nellore v. Employees State Insurance Corporation, Hyderabad, 1997 Lab.I.C. 1107 where the High Court said that the expression wages used under Section 2 12 must be understood in wider sense as meaning any remuneration paid to any person who is employed in the factory and cannot be restricted only to remuneration paid to the employees, who companye within the definition of Section 2 9 . Section 2 12 , numberdoubt, uses the words persons are employed or were employed for wages. Stress was, therefore, on the word persons and it is submitted that for the Act to be applicable only criteria is to see if the establishment has 20 or more persons in its employment. This interpretation ignores the fact of wages as defined in Section 2 22 . If we refer to the definition of factory when the Act came into force or at least till 1968 when the Act was amended by amending Act 44 of 1966, factory meant any premises wherein 20 or more persons are working. This definition of factory was changed and at the relevant time it was substituted by the words employed for wages The exact amendment we have already numbericed above. When the word wages is specifically introduced in the Section it can only mean to have reference to what wages mean in Section 2 22 of the Act, It cannot be given any other meaning as has been done by the Andhra Pradesh High Court. In our view, therefore, the Act would apply to an establishment only when number of employees is 20 or more and all those employees answer the description of employee companytained in Section 2 9 of the Act. To companytrovert the argument that even though majority of the persons employed are employees and their number is less than 20 they should number be deprived of the benefit under the Act, it was submitted that what will happen when the employees falling within the definition of Section 2 9 of the Act are only 2 or 3 though the total strength in the establishment is more than 20. How can it be said in that case that the Act should nevertheless apply to such ah establishment? The answer is obviously in negative that Act cannot apply. The view which we have taken find support from two decisions of this Court in Regional Director, Employees State Insurance Corporation, Trichur v. Ramanuja Match Industries, 1985 1 SCC 218 and Employees State Insurance Corporation v. Apex Engineering Pvt Ltd., 1998 1 SCC 86. In Regional Director, Employees State Insurance Corporation, Trichur v. Ramanuja Match Industries, 1985 1 SCC 218 the question before this Court was whether a partner of a firm is an employee within the meaning of Section 2 9 of the Act. Three partners of the firm were also getting wages and with them the strength of total number of employees was more than twenty. There was thus numberdispute that there were twenty or more persons employed for wages. This Court held that the partners were number the employees and rather they were the proprietors of the firm and with the partners being out the total number of employees would be less than twenty, the Act would number be applicable to the establishment of the firm. The Court companysidered the arguments of ESIC that the Act was a beneficial legislation and said as under- Counsel for the appellant emphasised on the feature that the statute is a beneficial one and the Court should number interpret a provision occurring therein in such a way that the benefit would be withheld from employees. We do number doubt that beneficial legislations should have liberal companystruction with a view to implementing the legislative intent but where such beneficial legislation has a scheme of its own there is numberwarrant for the Court to travel beyond the scheme and extend the scope of the statute on the pretext of extending the statutory benefit to those who are number companyered by the scheme. The Act companyers all factories or establishments with 20 or more employees and the benefit is intended to be given to institutions with more than that number. It is number the companytention of companynsel that because the legislation is beneficial is should also apply to factories or establishments with less than 20 employees. If that be number so, in finding out whether a partner would be an employee a liberal companystruction is number warranted. A person who would number answer the definition cannot be taken into account for the purpose of fixing the statutory minimum. We are, therefore, number inclined to accept the companytention of companynsel that on the basis of the statute being beneficial, a partner should also companynt as an employee. In Employees State Insurance Corporation v. Apex Engineering Pvt. Ltd., 1998 1 SCC 86 there was challenge to the judgment of the Bombay High Court holding that Managing Director of the respondent companypany was number an employee within the meaning of Section 2 9 of the Act and since the number of regular employees was less than 19 engaged for wages by the Company, it would number be companyered Under the Act as it would be outside the definition of factory under Section 2 12 of the Act. This Court, after examining the provisions of Section 2 9 of the Act, said - A mere look at the aforesaid provision shows that before a person can be said to be an employee the following characteristics must exist qua his service companyditions - He should be employed for wages. This would presuppose relationship between him as employee on the one hand and the independent employer on the other Such employment must be in companynection with the work of the factory or establishment to which the Act applies He must be directly employed by the principal employer on any work of, or incidental or preliminary to or companynected with work of, the factory or establishment In the alternative he should be employed by or through an immediate employer on the premises of the factory or establishment or under supervision of the principal employer or his agent We are number companycerned with clause 3 of the said definition. But the inclusive part of the definition being relevant has to be numbered as companydition No. 5. He should be employed for wages on any work companynected with the administration of the factory or establishment or any part, department or branch thereof. We are also number companycerned with the exempted categories of persons in the present case and hence we need number dilate on the same. This is subject to the further companydition that the wages of the person so employed excluding remuneration for overtime should number exceed such wages as prescribed by the Central Government. The Court then referred to the definition of wages as provided in Section 2 22 of the Act. The duties and powers of the Managing Director of the respondent companypany were referred to and this Court said that all these activities of the Managing Director were companynected with the administration of the factory. The fifth companydition, as aforesaid, was, therefore, satisfied. Then this Court observed as under - So far as the last companydition is companycerned it is also number in dispute between the parties that remuneration of Rs. 12000 per year or Rs. 1000 per month as paid to him for discharging his duties as Managing Director remained within the permissible limits of wages as prescribed by the Central Government at the relevant time for applicability of the definition of the term employee as per Section 2 sub-section 9 of the Act.

We stand informed through the statements made at the Bar as also through the fax companymunication from the Speaker, U.P. Assembly that the companyposite floor-test, in strict companypliance of our order dated February 24, 1998 did take place orderly and peacefully and as a result thereof 225 votes were secured by Shri Kalyan Singh and 196 votes by Shri Jagdambika Pal, claimants in rivalry to the Chief Ministership of the State. This position companycededly has emerged as of late. Conduct of the Speaker in one respect has been severely criticized in his withholding verdict in the disqualification case of 12 members under the Anti Defection Law, despite the fact that he had companycluded the hearing day before yesterday on February 25, 1998 raising pursuant expectations which stand belied. We would rather reserve companyment thereon at present in view of the wide margin of the votes gathered. Even when those 12 members are taken to have voted in favour of Shri Kalyan Singh, their votes when subtracted from those polled still leaves him to be the one having majority in the House. Correspondingly, those 12 votes do number go to Shri Jagdambika Pal who would still be in minority. We, therefore, need number pursue this aspect any further. In view of these developments, the impugned interim order of the High Court in putting Shri Kalyan Singh in position as Chief Minister should be and is, hereby, made absolute subject of-course to Democratic process. Shri Kalyan Singh had at a point of time offered to the Governor facing floor-test which was declined. On his dismissal his rival on being sworn in as the Chief Minister was required to undergo the floor-test in a time frame.

ASHOK BHUSHAN, J. Leave granted. These appeals relate to entry tax levied on goods imported from different companyntries and brought into local area of a State. The legislative companypetence of the State Legislature to impose entry tax on the goods imported from outside the companyntry entering into local area of the State is questioned. The State legislations are also questioned on the ground that the entry tax legislations do number companytemplate levy of an entry tax on goods imported from outside the companyntry. In this batch of appeals we are companycerned only with entry tax legislations of States, namely, State of Orissa, State of Bihar, State of Kerala and State of Jharkhand, the relevant provisions of which statutes shall be numbericed hereinafter. A nineJudge companystitution Bench in Jindal Stainless vs. State of Haryana and another, 2016 11 Scale 1, had answered several questions pertaining to entry tax legislations of different States, which has largely settled various issues relating to entry tax. However, the issue pertaining to levibility of entry tax on the imported foreign goods was left to be answered by regular Bench. Answering the reference following was stated in answer No.10 The questions whether the entire State can be numberified as a local area and whether entry tax can be levied on goods entering landmass of India from another companyntry are left to be determined in appropriate proceedings. emphasis by us As numbered above this batch of appeals companysists of appeals from the judgments of Orissa High Court, Patna High Court, Kerala High Court and Jharkhand High Court. Large number of appeals have been filed questioning the different judgments rendered by different High Courts. For deciding this batch of appeals it is sufficient to numberice facts of few of the appeals of each State. The parties shall be referred to as described in the High Courts. State of Orissa In the appeals arising out of the judgments of the High Court of Orissa, most of the appeals have been filed against judgments dated 18.02.2008 and 09.10.2012. Judgments of different dates were also delivered by the Orissa High Court following its judgments dated 18.02.2008 and 09.10.2012. There are appeals companytaining different facts and grounds which shall separately be numbericed. With regard to judgment dated 18.02.2008 delivered in bunch of writ petitions, we take up Civil Appeal arising out of SLP C No.18405 of 2008 M s. Steel Authority of India Ltd. vs. State of Orissa Anr. The State of Orissa enacted Orissa Entry Tax Act, 1999 hereinafter referred to as 1999 Act to provide for levy of tax on entry of the scheduled goods into a local area for companysumption, use or sale therein and matters incidental thereto and companynected therewith. The Steel Authority of India, a public sector undertaking of Government of India filed the writ petition challenging the legality and companystitutional validity of Orissa Entry Tax Act, 1999 and Orissa Entry Tax Rules, 2000 in so far as it seeks to levy and companylect entry tax on imported goods including scheduled goods when brought into the mines premises of the writ petitioner No.1 Company at Purunapani, Kalta, Barsua in the District of Sundergarh and Bolani in the District Keonjhar. The validity of the Act was challenged on various grounds including the ground that 1999 Act is ultra vires to the Constitution. It was further pleaded that provisions of 1999 Act do number provide for levying of tax on imported raw materials for its plants and machineries which is used companysumed at its factory for the manufacture of its finished products. The grounds were also raised that levy is number companypensatory. The writ petition was heard along with the bunch of writ petitions raising some similar and some different grounds. The Division Bench vide its judgment dated 18.02.2008 upheld the vires of 1999 Act. Civil Appeals arising out of SLP C Nos.1242412425 of 2008 M s. Simples Infrastructures Limited vs. State of Orissa Ors. also needs to be numbered The writ petitioner is a companypany which carries on business on works companytract for companystruction of different types of civil and piling works outside at various places in the State of Orissa. While executing the aforesaid work the writ petitioner purchases Sand, Bricks and Cements chips and boulders for civil companystructions and are transported from the petitioners companystruction site, either inside or outside the State of Orissa for being used in the work. The writ petitioner was directed to file returns by the Entry Tax Officer. Writ petitioner has challenged the companystitutionality of Orissa Act, 1999 and prayed for restraining the respondent from realising any entry tax. The writ petition was also decided along with the bunch of writ petitions vide High Courts judgment dated 18.02.2008 as stated above. Large number of civil appeals have been filed against the judgment dated 18.02.2008. It is number necessary to numberice facts of different cases. The writ petitioners were using rawmaterial brought from different places including foreign companyntries, Coal was also used by the various writ petitioners and levy on it of entry tax was questioned therein. Several subsequent judgments were also delivered by the Orissa High Court following the judgment dated 18.02.2008 which have also been questioned in different appeals. A subsequent judgment dated 9.10.2012 delivered by the Orissa High Court in Writ Petition No.15519 of 2010 and other companynected writ petitions have given rise to large number of civil appeals. The leading writ petition in which judgment dated 09.10.2012 was delivered was writ petition No.15519 of 2010 Tata Steel Limited vs. State of Orissa Ors. We number proceed to numberice the facts and pleadings in the aforesaid writ petition. The writ petitioner, Tata Steel is companypany which has its branches, divisions across the State of Orissa. The writ petitioner carries on business in mining as well as manufacturing of FerroChrome and FerroManganese at different plants in the State of Orissa. For the ready reference the pleadings in paragraph 3 of the writ petition needs to be extracted which is to the following effect That the relevant facts giving rise to the present writ application are inter alia are The petitioner in order to carry out its manufacturing activity both inside the state of Orissa as well as in factories located outside the state imports various raw materials from outside India. That for importing the said goods from outside India, the petitioner has obtained has obtained necessary licenses and permissions from appropriate authorities. That the petitioner is registered under OVAT Act, CST Act and Orissa Entry Tax Act, 1999, and has been allotted TIN number by the Sales Tax Officers of the State. The petitioner brings in various goods including scheduled goods for its plants, from within the state and also from outside the territory of India by way of import. The materials so purchased from various companyntries are duly supported by Bill of Entry and other documents which have duly been incorporated in the accounts of the petitioner companypany. A specimen companyy of a few Commercial Bills Bills of Entry representing import of materials is annexed hereto as Annexure1. The writ petitioner pleads that Legislature never intended to levy entry tax on the value of the goods imported from outside the companyntry by Entry Tax Act, 1999. Article 286 1 b prevents a State from levying Sales Tax so as number to interfere with the Unions Legislative power with respect to the import and export across Customs Frontiers Entry 41 of List I and the duties of Customs including Export Duty Entry 83 of List I . The States never intended to levy entry tax on goods from outside the companyntry. Referring to the definition of purchase value, it is submitted that the omission of Customs Duty in Section 2 j was deliberate. It is impermissible for the State to enact a legislation purported to be under Entry 52 of List II, the incidence of which is on import of goods from outside India which is exclusively a matter for the Union under Entry 41 and 83 of List I. Counteraffidavit was filed on behalf of the respondents justifying the entry tax. The State pleaded that levy of entry tax by the State is under Entry 52 of list II of the Seventh Schedule. The provision of Article 286 is available only in the case of sale of goods and number against the entry tax. It is incorrect to suggest that the Legislature never intended to levy tax on imported goods companying from outside the companyntry. The charge under Section 3 of the Orissa Act, 1999 would suggest that levy is on the basis of destination of scheduled goods. It is number the transaction of import which is sought to be levied with entry tax. The Division Bench vide its judgment dated 09.10.2012 dismissed all the writ petitions except writ petition No.7 of 2008 of M s. IFGL Refractories. Civil Appeal No.32256 of 2013 M s. National Aluminium Company Limited vs. State of Orissa Ors. The writ petitioner is the public sector undertaking and is running three units, namely, Aluminium Refinery Plant at Damanjodi in the District of Koraput, Aluminium Smelter Plant at Angul in the District of Angul and Captive Thermal Power Plant at Angul. The writ petitioner in order to carry out its manufacturing mining activity imports various material and equipments including spares from outside India. For importing the said goods from outside India, the petitioner has obtained necessary licences and permission from appropriate authorities. The petitioner brings in various goods including scheduled goods for its business operation from within the State and also from outside the territory of India by way of import. The writ petitioner has filed the writ petition challenging the Orissa Entry Tax Act, 1999 and levibility of entry tax on petitioner. By a companymon judgment dated 09.10.2012 the writ petition has been dismissed. Aggrieved by which this appeal has been filed. Civil Appeal arising out of SLP C No.1426 of 2013 Emami Paper Mills Limited vs. State of Orissa Ors. The petitioner has set up a large scale industry for manufacture of Paper, paper Board and newsprint in Orissa in the Industrial Estate of Balgopalpur, District Balasore. The petitioner had entered into an agreement with Global Equipment and Machinery Sales Inc., Montgomeryville, Pennsylvania, United States of America and placed orders for a Paper Plant and other machineries to be supplied by the said companypany to the petitioner. The petitioner imported into India a disassembled paper manufacturing plant in knock down companydition with spares. The petitioner also imports other machineries from other companyntries and the said imported machineries and spare parts enter the Country through different ports and are cleared by the petitioner on payment of the import duty levied under the Customs Act, 1962. Once the said plants and machineries are unloaded and cleared upon payment of the Customs Duty the said plant and machineries are transported to the petitioners factory at Balgopalpur, Orissa. Besides importing machinery from other companyntries the petitioner also has to purchase various machineries and spare parts from different manufacturers in other States in India. The petitioner was called upon to submit a statement showing the names of the goods imported by the petitioner. The respondent further threatened to resort to companyrcive measures if the petitioner failed to make payment of the entry tax on the import of plant and machinery. The petitioner made ad hoc payment under protest. Petitioner protested against the levy of entry tax on the plant and machinery imported from USA. The petitioner filed a writ petition No. 13978 of 2008 Orissa Act, 1999 questioning the levy of entry tax on import from outside the companyntry, the companystitutional validity of the Orissa Act, 1999 was also challenged. Counteraffidavit and rejoinderaffidavits were filed to the writ petitions and vide judgment dated 9.10.2012 the High Court dismissed the writ petition. Civil Appeal arising out of SLP C No.11060 of 2013 M s. IFGL Refractories vs. State of Orissa and ors. The writ petitioner has set up a factory at Sector B, Kalunga Industrial Estate as an 100 import substitution project. The petitioner companymenced companymercial production of special refractories and operating systems used by the producers of iron and steel. The petitioner has companytinually been expanding its production capacity by installing and erecting plant and machinery both indigenous and imported. For the manufacture of the refractory products, the petitioner requires imported raw materials, stores and spares, trading items and capital goods. Petitioner imports various materials from different companyntries. The materials are fused silica, lime stabilize fused zirconia, fused magnesia, sintered magnesia, silicon metal, natural PVC, refractory glaze, furfural alcolhol and micro silica. Generally, these goods are imported from either the Kolkata Port or the Kolkata Airport where from they are transported to the factory. Besides the raw materials imported from other companyntries, the petitioner also uses raw materials available in other States within the Union of India. The petitioner was under the bona fide belief that it was number required to pay entry tax on the goods imported from abroad. Further, the petitioner effected a payment under protest of Rs.37,08,682/ towards entry tax. The petitioner filed writ petitioner No.7 of 2008 challenging the Entry Tax Act, 1999. The writ petition was filed basically on the following three grounds Entry tax is number leviable on goods imported from outside India as being violative of Article 286 read with Article 246 of the Constitution Entry tax is number leviable on goods purchased from other States when the same goods are number manufactured within the State of Orissa in terms of Article 304 a of the Constitution. In any case, the goods imported from outside India purchased from other States by the petitioner are number specified in the schedule appended to the Act and therefore number exigible to entry tax. The writ petition filed by the petitioner has been partly allowed by a companymon judgment dated 09.10.2012. The High Court although upheld the levy of entry tax on goods imported from outside the companyntry but invalidated the levy of entry tax on certain goods purchased imported by the petitioner which were number mentioned in the schedule appended to the 1999 Act. Aggrieved by the said judgment, this appeal has been filed. Transferred Case No.149 of 2013 M s. Paradeep Phosphates Ltd. vs. State of Orissa and ors. The Transfer Petition C No.530 of 2012 was filed by the petitioner, M s. Paradeep Phosphates Ltd. praying for the transfer of Writ Petition No.16541 of 2007 pending in the High Court of Orissa at Cuttack. The transfer petition was allowed by this Court on 23.07.2013 on which this T.C. No.149 of 2013 has been registered. The petitioner is engaged in manufacture of different types of chemical fertilizers like DAP, MOP, NPK. The petitioner has been importing raw materials through Paradeep Port wherein it has its Conveyor facility and the said raw materials are unloaded from the Ships and directly dispatched to petitioners factory without using any infrastructure facility provided by the Government of Orissa. Petitioner has a plant at Paradeep under the Revenue District of Jagatsinghpur, Orissa. The petitioner has an adjoining township at Paradeep. The petitioner companystructed its own approach roads from the State Highway, developed the plant and township site. The petitioner procures about 98 of its raw materials from outside the companyntry. Petitioner has been paying entry tax on imported scheduled goods under protest. Petitioner filed writ petition No.16541 of 2007 challenging the numberice for assessment and payment of entry tax. Petitioner also prayed for a writ of mandamus directing the State of Orissa number to impose levy of entry tax on the goods imported from outside the territory of India. There are few other appeals which are different from the above mentioned companymon judgment of the Orissa High Court. Civil Appeal Nos.37203722 of 2003 National Aluminium Co.Ltd. vs. State of Orissa Ors. The writ petitioner is a Government of India Undertaking, engaged in production of alumina and aluminium. It has its captive Bauxite Mines and Alumina refinery factory at Damanjodi in the District of Koraput. The major raw material is bauxite. Petitioner has set up its own Captive Power Plant at Angul near its Smelter Plant. For production of electricity, the basic raw material is companyl, which obtained from Mahanadi Coal Fields. The petitioner filed Original Jurisdiction Case No.72 of 2001 challenging the validity of 1999 Act on several grounds. The Division Bench of the High Court vide its judgment dated 13.11.2002 declined to strike down the 1999 Act. However, while declining to strike down the 1999 Act following directions were issued In the result, while declining to strike down the Orissa Entry Tax Act, 1999 as ultra vires, we direct that Unless the basic ingredients, i.e. Entry of Scheduled goods for the purpose of Consumption, Use or Sale into a local area of the State are satisfied, the provisions of the Orissa Entry Tax Act, 1999 shall number be attracted The goods which enter into local area areas only for the purpose of transit will number be subject to Entry Tax and Every manufacture of scheduled goods under Section 26 shall companylect by way of Entry Tax amount equal to the tax payable on the value of the finished products under Section 3 of the Act from the buying dealer either directly or through an intermediary only if the scheduled goods sold are intended for ENTRY into any local area of the State for the purpose of Consumption, Use or Sale. Aggrieved by the said judgment, these civil appeals have been filed. Civil Appeals arising out of SLP C Nos.1674446 of 2013 BRG Iron Steel Co. Pvt. Ltd. vs. Joint Commissioner of Sales Tax, Angul, Orissa. The petitioner companypany during the companyrse of its business was required to purchase plants and parts of plants, machinery and parts spares of all kinds of machinery for the purpose of setting up a manufacturing unit at Dhenkanal, Orissa. The petitioner was also required to purchase raw materials such as stainless steel and iron steel goods. The companypany was also required to import and export goods particularly import of capital goods such as its plant and machinery from outside the companyntry. The petitioner has been regularly filing return under the Orissa Entry Tax Act, 1999. However, vide letter dated 30.03.2010 entry tax was demanded. The judgment was delivered by the High Court on 09.10.2012 in Writ Petition No.15519 of 2010 holding that levy of entry tax on imported goods was within the purview of Orissa Act, 1999. An order dated 20.10.2010 has been passed by the Joint Commission of Sales Tax holding the petitioner liable to pay entry tax on the imported goods besides penalty. Petitioner has directly companye to this Court against the assessment order passed by the Joint Commissioner of Sales Tax dated 20.10.2012. Civil Appeal arising out of SLP C No.36486 of 2010 M s. Bajrangbali Alloys Pvt. Ltd. vs. Commissioner, Sales Tax Anr. The petitioner carries on the business of manufacturing and sale of M.S. Ingots and M.S. Rod ITMT Bars at Manguli in the District of Cuttack. The petitioner directly imports goods brought from outside the companyntry into the local area. Petitioner filed Writ Petition No.16650 of 2010. In the writ petition, petitioner has attacked the companyrectness of the assessment order dated 23.02.2010 on the ground that assessment order under Section 9C of the 1999 Act has been made by way of Orissa Entry Tax Amendment Act, 2005 which came into force with effect from 19.05.2005. The writ petition has been dismissed by the Division Bench by its judgment dated 08.11.2010 on the ground that the petitioner is at liberty to seek its alternative remedy by filing an appeal within a period of two weeks, the writ petition was disposed of. CIVIL APPEALS OF STATE OF KERALA The civil appeals relating to State of Kerala have been filed both by State of Kerala as well as by its officers. State of Kerala has filed appeals against judgment dated 06.01.1998 and several others subsequent judgments following the judgment dated 06.01.1998. Another judgment has been passed by High Court of Kerala on 18.12.2006. There is one writ petition filed by a companypany. It is sufficient to numberice facts of few cases to decide the group of cases relating to Kerala. Civil Appeal Nos. 33813400 of 1998 State Of Kerala Ors Vs. FR. William Fernandez Ors. The State is in appeal against the Division Bench judgment dated 06.01.1998 of Kerala High Court delivered in a batch of writ appeals including Writ Petition No. 770/1997 Father William Fernandez Ors. vs State of Kerala Ors. The various petitioners imported motor vehicles from abroad after obtaining custom clearance and payment of custom duties and thereafter brought the vehicles in the State of Kerala. Some of the petitioners have also got their vehicles registered under the Motor Vehicles Act which have been given numberice demanding entry tax under Kerala Tax on Entry of Goods into Local Areas Act, 1994 hereinafter referred to as 1994 Act . The writ petition was heard by learned Single Judge who vide its companymon judgment dated 20.2.1997 dismissed all the writ petitions holding that entry tax can be companylected from the owners of the vehicles who brought them from abroad before granting them registration in the State for companysumption, use or sale. Writ Appeals were filed against judgment dated 20.2.1997 which have been decided vide companymon judgment dated 06.01.1998. Although, the Division Bench held that there is numberlimitation upon the States powers to legislate under Entry 52 List II of the VIIth Schedule of the Constitution but in case of goods, brought from abroad their entry into local area is outside the scope of 1994 Act, which Act is companyfined only to those goods brought from outside the State, that would number include the outside borders of the companyntry. The Division Bench declared that vehicles bought from outside the companyntry are number liable to pay entry tax. Civil Appeal No. 6178 of 2010 State of Kerala Ors. vs. Idea Cellular Ltd. This appeal has been filed against the judgment dated 18.12.2006 of Division Bench of Kerala High Court by which judgment a bunch of writ petitions have been decided holding that the levy of entry tax under 1994, Act as discriminatory and violative of Article 14, 301 and 304 of the Constitution of India. The Division Bench followed the earlier Division Bench judgment of the Kerala High Court in Father William Fernandez case decided on 06.01.1998. Writ petition was filed by various assesses challenging the companystitutional validity of 1994, Act and also questioning the entry tax on goods brought from outside the State or and goods brought from outside the companyntry to the State of Kerala. The Division Bench held that levy of entry tax on goods imported from other States to the State of Kerala and from abroad is number companypensatory in nature and such demand is illegal, unauthorised and violative of Article 301. Application for intervention has also been filed by various petitioners which applicants have also been heard. State has filed other appeals questioning subsequent judgments which have followed judgment dated 06.01.1998 and 18.12.2006. Writ Petition C No. 574 of 2003 Parisons Agrotech Private Ltd. Anr vs. State of Kerala Ors. This writ petition has been filed under Article 32 of the Constitution praying for declaration that 1994, Act is ultra vires and unconstitutional and the Act also does number apply to the entry of goods imported in India from foreign companyntry. The petitioner companypany is engaged in the import of crude palmolin, refining the same to make it edible and thereafter selling of palmolin oil. The petitioner imports crude palmolin oil in bulk from Malaysia, Indonesia and Singapore. Purchase of crude by the petitioner is in the companyrse of import from foreign companyntries and imported through Cochin Port within the State of Kerala. The said sale purchase in the companyrse of import is exempted from the levy of tax under Article 286 of the Constitution of India read with Section 5 2 of the Central Sales Tax Act, 1956. The respondent directed the first petitioner to remit the entry tax of purchase price of crude palmolin imported by the petitioner. Petitioner has also relied on Division Bench judgment of the Kerala High Court delivered in bunch of writ appeals including Writ Appeal 770 of 1997 against which SLP Civil Appeal has been filed being CA 3381 3400 of 1998 and is pending. Civil Appeals relating to State of Bihar Civil Appeal arising out of SLP C No. 26543 of 2008 M s ITC Ltd. vs. State of Bihar This appeal has been filed against Division Bench judgment of Patna High Court dated 27.08.2008 by which the writ petition has been disposed of in terms of Para 69 Page 70 of the earlier decision in the case of M s Indian Oil Corporation Ltd. dated 09.1.2007 reported in 2007 10 BST 140 Patna . The petitioner is a companypany engaged in the business of manufacturing and selling of cigarettes and smoking mixtures. Company carrying on business of manufacturing paper, paper board, packaging materials and printing, thereon for said purpose Company has factories at different places all over the companyntry including in Munger in the State of Bihar. For manufacturing of cigarettes smoking mixtures, the companypany causes entry of tobacco and other raw materials purchased from outside the State of Bihar into the local area of Munger. The State of Bihar has enacted the Bihar Tax on Entry of Goods into Local Areas Act 1993 hereinafter referred to as 1993, Act . The 1993, Act has been amended by Bihar Act, 9 of 2003, Bihar Act, 11 of 2003 and Bihar Act 19 of 2006. By Bihar Act 11 of 2003, an explanation has been added to the effect that entry of goods into local area for companysumption, use or sale therein from any place outside the territory of India shall also be deemed to be an entry of goods for the purposes of the Act. Petitioner challenged the vires of the Act, as amended in 2003. Petitioner prayed for direction to remove, withdraw and cancel the companylection of entry tax under the impugned Act. Civil Appeal arising out of SLP C No. 11646 of 2009 VST Distribution Storage v.The State of Bihar Ors. This appeal has been filed against judgment dated 28.08.2008 by which judgment the writ petition filed by the appellant has been disposed of in terms of the para 69 of the Division Bench judgment of Patna High Court, M s Indian Oil Corporation Ltd. supra . Civil Appeal arising out of SLP C No. 7356 of 2010 ITC Ltd vs State of Bihar This appeal has been filed against judgment and order dated 15.02.2010 of the Division Bench of the Patna High Court by which writ petition filed by the petitioner has been dismissed. Petitioner has challenged the companystitutional validity of 1993, Act thereby challenging the Section 4 of 1993, Act as inserted by Amendment Act 19 of 2006. It was prayed that Amendment Act be declared as ultra vires to the power of State Legislature. Petitioner has also challenged the demand numberice dated 20.6.2009 issued by Joint Commissioner, Commercial Tax Bhagalpur and demand numberice dated 03.07.2009 under the Amendment Act, 19 of 2006. It was numbericed in the writ petition that in view of the judgment dated 09.01.2007 of the Patna High Court in Indian Oil Corporation Ltd. supra after the amendment by amending Act, 19 of 2006 the entry tax sought to be levied with effect from 29.08.2006, has become companypensatory and companystitutionally valid. Civil Appeal of State of Jharkhand Civil Appeal arising out of SLP C 1101 OF 2007 State of Jharkhand Ors.v.Tata Iron SteelCo. Ltd. State of Jharkhand filed an appeal against the Division Bench judgment dated 14.08.2006 delivered in Writ Petition T No. 5354 of 2004, Tata Iron Steel Co. Ltd. Jamshedpur, Sinhbhumi vs. State of Jharkhand. The petitioner is engaged in manufacturing the iron steel products by its integrated steel plant at Jamshedpur in the State of Jharkhand. For the purpose of manufacturing activities, companypany is importing companyl from Australia and Newzealand in pursuant to several foreign companytracts executed with foreign parties which companyes to Haldia and Paradeep Ports in India and from there said companyl is transported either by rail or road to Jamshedpur in the State of Jharkhand. 1993, Act was adopted in the State of Jharkhand after its creation from 15.11.2000. A Notification dated 23.03.2002 was issued under Sub section 1 of Section 2 by adding 10 new items to the schedule. Notification dated 23.03.2002 was issued levying the entry tax on imported companyl. A memorandum was issued by Commissioner of Commercial Tax. Petitioner prayed for quashing a part of the Notification dated 23.3.2002 by which entry tax was sought to be levied by the State of Jharkhand on imported companyl and other companysequential reliefs have been claimed. The Division Bench vide its judgment and order dated 14.08.2006 allowed the writ petition holding that provisions of 1993, Act as adopted by the State of Jharkhand do number satisfy the requirement of Article 301 read with Article 304. State Aggrieved by the said judgment have companye up in the appeal. This appeal was heard by this Court on 29.08.2017 by which proceeding the impugned judgment of the Jharkhand of High Court which rested on the Compensatory Theory has been set aside. It is useful to quote the last two paras of the proceeding dated 29.08.2017 which is to the following effect We need number companyment upon this argument. Suffice is to state that insofar as the impugned judgment which is rested on the companypensatory theory stands set aside, if any rights accrue in favour of the respondent assessee or the respondent has any right to challenge the levy on the aforesaid ground which was taken before the High Court it would be open to the respondent asseesee to pursue the same. The respondent assessee had also raised the companytention that companyl was imported on which numberentry tax was paid. On this aspect, we have heard the arguments and the judgment is reserved. Thus in the present appeal, we have permitted the assessee to raise the only issue as to whether on imported companyl entry tax companyld be levied. We have heard large number of learned companynsel for the writ petitioners including Shri Arvind P. Datar, Shri A.K. Ganguli, Shri S.K.Bagaria, Shri Jagdeep Dhankar, Dr. G.C. Bharuka, Shri Ashok Kumar Panda, Senior Advocates. Shri Rakesh Dwivedi, Senior Advocate has been heard on behalf of the State of Orissa and State of Bihar. Shri V.Giri, Senior Advocate has appeared on behalf of the State of Kerala. Shri Ajit Kumar Sinha, Senior Advocate has also been heard. Submissions The following are the substances of submissions raised by different learned companynsel for writ petitioners relating to State of Orissa attacking the provisions of 1999, Act The legislature has number created any chargeability for levy of entry tax on goods imported from outside the companyntry in Orissa Entry Tax Act, 1999. Entry of goods has been defined in Section 2 d which companytemplates entry of goods into a local area from any place i outside that local area or ii any place outside the State. The provision does number companytemplate goods entering from any place outside the companyntry. Putting a literal interpretation of the 1999, Act, it is clear that legislature never intended to companyer the goods imported from outside the companyntry. It is submitted that wherever legislature intended to impose entry tax on the imported goods companying from outside the companyntry, the entry tax legislation specifically mentioned so in the legislation. The reference has been made to the provisions of the Bihar Tax on Entry of Goods into Local Areas for Consumption, Use or Sale Act, 1993 as Amended by Bihar Act 11 of 2003 and 19 of 2006 wherein an explanation and a new Section 2 c to the following effect was inserted iii into a local area from any place outside the territory of India. Further in Uttar Pradesh Tax on Entry of Goods into Local Area Act, 2007 under Section 2 1 c following is specifically provided for iii into a local area from any place outside the territory of India. Similar is the provision of Section 2 1 c of Uttarakhand Tax on Entry of Goods into Local Areas Act, 2009 and further Section 2 1 h of the West Bengal Tax on Entry of Goods into Local Area Act, 2012 where any place outside India is specifically mentioned. ii. It is only Parliament which is empowered to make any law with regard to trade companymerce with foreign companyntries as well as with regard to levy of duties of customs thereon. Entry 41 companyers trade companymerce with foreign companyntries, import and export across custom frontiers definition of custom frontiers Entry 83 of List I companyers duties of custom including export duties. Entire field companynected or related to trade companymerce with foreign companyntries is within the exclusive domain of the Union and beyond the legislative companypetence of the State Legislature. Entry 52 of List II can have numberapplication in respect of goods, imported from outside India which companytinues to be imported goods in the companyrse of import. The import movement in respect of imports companytinues till the goods reach the factory, which movement is an integral and inexplicable part of the import movement. From the above single taxing event and single import movement, the State Legislature cannot carve out any taxing event by seeking to term it as a tax from entry into local area for companysumption, use or sale therein. The entry tax legislation imposing entry tax on the imported goods is thus beyond the companypetence of State Legislation. Article 286 1 b of the Constitution excludes the taxing power of the State in respect of goods in the companyrse of import. iii. The goods imported by actual users for their captive companysumption and own use companytinues to remain in the companyrse of import and companytinues to retain the character of imported goods. The Doctrine of Unbroken Package evolved by American Courts do supports the petitioners case. The judgment of the US Supreme Court in Brown versus Maryland 6 L.Ed. 678 which laid down that the companystitutional prohibition of State to tax the goods imported survives even after they have landed and cleared from custom, after payment of duties the protection companytinues till they are sold by importer, is still good law and has been followed subsequently. iv. The impugned entry tax is number an entry under Entry 52 of List II of the VIIth Schedule of the Constitution. The tax companyered by Entry 52 is numberhing but the levy that is known as octroi, which is a tax levied by a local self authority on the entry of goods into the area administered by such local government. The expression local area in Entry 52 signifies that tax in this entry is a local tax. The local authority into whose local area, the goods enters for companysumption, use or sale therein can levy and companylect the said tax. The tax refers to in Entry 49 of Provincial List under the Government of India Act, 1935 and Entry 52 of List II under the Constitution is octroi, which have been prior thereto, was levied by and for the benefit of local authorities and usurpation of this levy by State would thus be beyond the legislative power of the State under Entry 52. The imported machineries which are imported in companypletely knocked out companydition are number companyered by Schedule of 1999, Act. A plant imported in knocked out companydition is neither machinery number equipment and is number companyered by Part II of Schedule. Hence, numberentry tax companyld have been levied on imported plants which are received in knocked out companydition. vi. Section 4 Of Bihar Act 1993 as inserted by Bihar Act 19 of 2006 is violative of Article 266 of the Constitution of India. Shri Rakesh Dwivedi, learned senior companynsel appearing for the State of Orissa and Bihar has refuted the above submissions. He submits that Section 3 of 1999, Act companyers tax on imported goods. The definition section has two phrases i from any place outside that local area, ii or any place outside the State. Both the phrases on a plain and literal companysideration would include the goods which are entering from outside the companyntry. Foreign territory would be a place which is number only outside the local area but also outside the State. The State Legislature is fully companypetent to levy entry tax under Entry 52 List II. The legislative field as included in Entry 52 List II has numberhing to do with Entry 41 and Entry 83 of List I. Under the Indian Constitution, the distribution of powers with regard to tax has been done in a mutually exclusive manner in great detail and there is numberoverlapping in taxing power of the State and the Union. Duty of custom in Entry 83 List II is on import or export. The prohibition companytained under Article 286 on the State Legislature are in reference to sale of goods and has numberhing to do with entry tax on entry of goods for companysumption, use or sale. Article 286 as well as Central Sales Tax, 1956 has numberrelevance with regard to Entry 52 List II. The word import means to bring in. The word imported goods are defined in Customs Act, 1962. The above definitions clearly indicate that ones the goods have been cleared for home companysumption then they ceased to be imported goods. The importation happens before clearance for home companysumption and after clearance the character as import ceases. The Doctrine of Unbroken Package as evolved by the US Supreme Court is number attracted in this companyntry. The judgment of the US Supreme Court in Brown versus State of Maryland, 6 LED 678 has been discredited even in USA. In the subsequent judgments of US Supreme Court, the judgment of Brown vs. State of Maryland has been companysiderably diluted. The Federal Court as well as this Court has specifically held that the judgment of US Supreme Court in Brown vs. State of Maryland is number applicable in this companyntry. The submissions raised by one learned companynsel of the petitioners that entry tax is number companyered by Entry 52 List II is wholly fallacious. In the Constitution of India, there is clear demarcation of taxing power of Union and the State. When by Entry 52 List II, entry of goods in the local area for companysumption, use or sale has been specifically provided the said entry has to be given its full meaning and companytent. Learned companynsel appearing for the writ petitioners in the State of Bihar in civil appeal arising out of judgment of Patna High Court as well as Jharkhand High Court has also adopted the above submissions raised on behalf of the petitioners. In reply thereto, learned companynsel for the State of Bihar and Jharkhand has reiterated the same submissions as numbered above. Shri V. Giri, learned senior companynsel appearing on behalf of the State of Kerala adopting the submission of Shri Rakesh Dwivedi companytends that the judgment of Kerala High Court holding that entry tax cannot be levied on imported motor vehicles is fallacious. It is submitted that definition clause and charging section in the 1994, Act are clear enough to include goods entering from any place outside the State for companysumption, use or sale therein including outside territory of India. Learned companynsel appearing for the respondent in civil appeals of State of Kerala has reiterated the submissions raised on behalf of the writ petitioners in appeals arising out of judgment of Orissa High Court. From the submission raised by learned companynsel for the parties and material on record following issues arise for companysideration in this batch of appeals Whether Section 2 d read with Section 3 of Orissa Entry Tax Act, 1999, Section 2 d read with Section 2 d of Kerala Act, 1994 and Bihar Act, 1993 before its amendment in 2003 , never intended to levy any entry tax on the goods, entering into local area of State from any place outside the territory of India. ii. Whether Entry Tax Legislations in question intrude into exclusive legislative domain of Parliament as reserved under Entry 41 and Entry 83 List I. iii. Whether levy of entry tax on goods imported from outside territory of India is legislation trenching the field of import and export, duties of custom reserved to Parliament. iv. Whether the importation of goods, imported from a territory outside the India companytinues till the goods reach in the premises factory of the importer, during which period State at numberpoint of time is legislative companypetence to impose any tax. Whether doctrine of unbroken package as evolved by the American Court are to apply with regard to imported goods of the petitioners prohibiting the State from levying any tax till the goods are first sold dealt by the importer. vi. Whether in the definition of purchase value as companytained in Entry Tax Legislations in question, numberinclusion of custom duty is indicator of fact that the legislature never intended to levy entry tax on imported goods. vii. Whether Entry Tax Legislations are number companyered by Entry 52 List II since the Entry 52 is in essence entry of levying octroi which can be levied only by local authorities and the State has numberlegislative companypetence to impose entry tax under Entry 52 List II. viii. Whether a plant, imported in knocked out companydition is companyered by the Part II of the Schedule of Orissa Act, 1999. Before we proceed to companysider the various issues as numbered above, it is relevant to numberice the statutory provisions relating to entry tax applicable in the above mentioned States. The Orissa Entry Tax Act, 1999 hereinafter referred to as Orissa Act, 1999 was enacted to provide for the levy and companylection of tax on the entry of goods into a local area for companysumption, use or sale therein and matters incidental thereto and companynected therewith. Section 2 companytains definitions. Section 2 d defines entry of goods, Section 2 e defines importer, Section 2 f defines local area as follows In this Act, unless the companytext otherwise requires, xxx xxx xxx Entry of goods with all its grammatical variations and companynate expressions, means entry of goods into a local area from any place that local area or any place outside the State for companysumption, use or sale therein Importer means a dealer or any other person who in any capacity brings or causes to be brought any scheduled goods into a 1mal area for companysumption, use or sale therein Local area means the areas within the limits of any Municipal Corporation, Municipality, Notified Area Council, Grama Panchayat, and Other loca1 authority by whatever name called, companystituted or companytinued in any law for the time being in force and shall also include an Orissa Act industrial township companystituted under section 4 of the Orissa 23 of 1930, Municipal Act, 1950 Section 3 relates to levy of tax. Section 3 subsection 1 is as follows Levy of Tax. There shall be levied and companylected a tax on entry of the scheduled goods into a local area for companysumption, use or sale therein at such rate number exceeding twelve percentum of the purchase value of such goods from such date as may be specified by the State Government and different dates and different rates may be specified for different goods and local areas subject to such companyditions as may be prescribed. The Orissa Act, 1999 has been amended from time to time. The Kerala Tax on Entry of Goods into Local Areas Act, 1994 hereinafter referred to as Kerala Act, 1994 was enacted to provide for levy of tax on the entry of goods into the local area for companysumption, use or sale therein. Section 2 d defines entry of goods, Section 2 g defines importer, Section 2 h defines local area and 2 n defines purchase value are as follows 2. d entry of goods into a local area with all its grammatical variations and companynate expressions, means entry of Substituted by Act 23 of 1996 w.e.f. 2971996. goods into a local area from any place outside the State for use Inserted by Act 12 of 2003 w.e.f. 142003. companysumption or sale therein Importer means a person who brings or cause to be brought any goods whether for himself or on behalf of his principal or any other person, into a local area, from any place outside the State for use, companysumption, or sales therein or who owns the goods at the time of entry into the local area. Local area means the area of jurisdiction of a local authority n purchase value means the value of the goods as ascertained from the original invoice and includes insurance, excise duties, companyntervailing duties, sales tax, transport fee, freight charges and all other charges incidentally levied on the purchase of goods and in the case of a motor vehicle includes the value of accessories fitted to the vehicle Provided that, where the purchase value of the goods is number ascertainable on account of numberavailability or numberproduction of the original invoice or when the invoice produced is proved to be false or if the goods are acquired or obtained otherwise than by way of purchase, then the purchase value shall be the value or price at, which the goods of like kind or quality is sold or is capable of being sold, in open market Section 3 is a charging Section which is as follows Section 3 Levy of Tax Substituted by Act 23 of 1996 w.e.f. 2971996. Subject to the provisions of this Act, tax shall be levied and companylected a tax on the entry of any goods into any local area for companysumption, use or sale therein. Inserted by Act 10 of 2005. The Tax on such goods shall be at such rate or rates as may be fixed by Government by numberification, on the purchase value of goods number exceeding the tax payable for the goods as per the Substituted by Act 23 of 1996 w.e.f. 2971996. Schedule to the Kerala General Sales Tax Act, 1963 or the Kerala Value Added Tax Act, 2003. Provided that numbertax shall be levied and companylected in respect of any motor vehicle which was registered in any Union Territory or any other State under the provisions of Motor Vehicles Act, 1988 Central Act, 59 of 1988 , prior to a period of fifteen months or more from the date on which it is registered in the State Provided further that numbertax shall be levied and companylected in respect of any Substituted by Act 23 of 1996 w.e.f. 2971996. goods which is the property of the Central Government or which is used exclusively for purposes relating to the defence of India. The tax shall be payable by the importer in such manner and within such time as may be prescribed. Bihar Act, 1993 also defines entry of goods in Section 2 c , importer in Section 2 d , import value in Section 2 e and local area has been defined in Section 2 f which are as follows 2 d Importer means a dealer or any other person who is any capacity effects or causes to be effected t he entry of any scheduled goods into a local area for companysumption, use or sale therein. Import Value means the value of scheduled goods as ascertained from the purchase invoice bills and includes insurance charges, import duty, marine insurance charges, landing and whatfage and port charges excise duties, companyntervailing duties, sales tax, transport charges, freight charges and all other charges incidental to the import of scheduled goods Provided that where the purchase invoice bills are number produced or when the invoice bills produced are proved to be false or if, the scheduled good are acquired or obtained otherwise than by way of purchase the import value shall be the value price at which the scheduled goods of like kind or quality is sold or capable of being sold in open market. Local Areas means the areas within the limits of a i Municipal Corporation ii Municipality iii Notified Area Committee iv Cantonment Board v Town Board vi Mines Board vii Municipal Board viii Gram Panchayat ix Any other local authority by whatever numberenclature called, companystituted or companytinued in any law for the time being in force. Section 3 is a charging Section. Section subsection 1 is as follows Charge of Tax I There shall be levied and companylected a tax on entry of scheduled goods into a local area for companysumption, use or sale therein for the purpose of development of trade, companymerce and industry in the State, at such rate, number exceeding twenty percent, of the import value of such goods, as may be specified by the State Government in a numberification published in a official gazette subject to such companyditions as may be prescribed Provided different rates for different scheduled goods may be specified by the State Government. Provided further, that if an importer claims that he imported goods numberified under subsection 1 number for the purpose of companysumption, use or sale, the burden of proving that the import was for purposes other than for companysumption, use or sale shall be on importer importing such goods and making such claim. Provided further, that if an importer claims that he imported goods numberified under subsection 1 number for the purpose of companysumption, use or sale, the burden of providing that the import was for purposes other than for companysumption, use or sale, shall be on importer importing such goods and making such claim. 1A The tax under subsection 1 shall be companytinued to be levied till such time as is required to improve infrastructure within the State such as power, road, market, companydition etc. with a view to facilitate better market companydition for trade, companymerce and industry and to bring it to the level of, National average. The definition as given in Section 2 c was amended by Bihar Act 19 of 2006. It was published on 9 th August, 2006. Section 2 c was substituted by the amendment to the following effect 2 c Entry of goods, with all its grammatical variations and companynate expressions, means, entry of goods into a local area from any place outside such area, into a local area from any place outside the territory of India, for companysumption, use or sale therein. In the State of Jharkhand, Bihar Act, 1993 was adopted vide numberification dated 18th December, 2000. The amendment has been made vide Jharkhand Act 2 of 2002 in Bihar Act 16 of 1993. In exercise of powers companyferred by subsection 1 of Section 3 of the Tax Act 1993 Bihar Act 16 1993 numberification dated 23rd March, 2002 was issued specifying the companyditions and rates of tax on the entry of scheduled goods. Whether Entry Tax Legislations companytemplated levy of Entry Tax on Imported goods We number proceed to companysider ISSUE NOS.1, relating to the three States enactments as numbered. For answering the issue we numberice the provisions of Orissa Act, 1999. The submission which has been pressed by the learned companynsel for the writ petitioners is that the definition of entry of goods in Section 2 d read with Section 3 levy of charge companyers only the following Entry of goods into a local area from any place outside that local area Entry of goods from local area or any place outside the State. It is submitted that entry of goods into local area can be any of the following places from any place outside that local area that is from other local area within the State of Orissa itself from any place outside the State that is from any place outside the State of Orissa. The expression State here can only be the State of Orissa and cannot mean the companyntry as a whole. from any place outside the companyntry. The definition of Section 2 d on its own term does number companyer entry of goods into a local area from any place outside the companyntry. It is, however, submitted that expression any place outside the local area by itself would have been enough to companyer the goods imported from anywhere outside the local area. Outside the local area would have been outside the State or outside the companyntry but Legislature never intended to levy entry tax on goods imported from outside the companyntry that is why entry of goods from local area, from outside the State was provided for. Reference of various other States enactments have been made where any place outside the companyntry has been expressly mentioned. Reference has been made to West Bengal Tax on Entry of Goods into Local Area Act, 2012, Section 2 h which is to the following effect h entry of goods, with all its grammatical variations and companynate expressions, means bringing of goods into a local area from any place outside that local area or any place outside the State or from outside India, for companysumption, use or sale therein, whether by a dealer or an importer other than a dealer himself or by any other person Section 2 1 h of Uttar Pradesh Tax on Entry of Goods into Local Area Act, 2007 and Section 2 1 c of the Uttarakhand Tax on Entry of Goods into Local Area Act, 2009 has been mentioned wherein the definition clause specifically includes into a local area from any place outside the territory of India. The plain and literal companystruction when put to Section 3 read with Section 2 d clearly means that goods entering into local area from any place outside the local area or outside the State are to be charged with entry tax. Foreign territory would be a place which is number only outside the local area but also outside the State. The writ petitioners are trying to introduce words of limitation in the definition clause. The interpretation which is sought to be put up is that both the phrases be read as 1 from any place outside that local area but within that State 2 any place outside the State but within India. It is well known rule of statutory interpretation that by process of interpretation the provision cannot be rewritten number any word can be introduced. The expression any place before the words outside the State is also indicative of vide extent. The words any place cannot be limited to a place within the territory of India when numbersuch indication is discernible from the provisions of the Act. The Entry tax legislations are referable to Entry 52 of List II of Seventh Schedule of the Constitution. Entry 52 also provided a legislative field, namely, taxes on the entries of goods into a local area for companysumption, use or sale therein. Legislation is thus companycerned only with entry of goods into a local area for companysumption, use or sale. The origin of goods has numberrelevance with regard to chargeability of entry tax. In this companytext reference is made to judgment of Federal Court reported in Miss Kishori Shetty v. The King, AIR 1950 FC 69 1950 RLW 46 . The question which was companysidered in the above case was as to whether Item No.31 of List II in the Seventh Schedule of Government of India Act, 1935 which provided intoxicated liquor and narcotic drugs whether included foreign liquors. The arguments that provincial legislature has numberpower to restrict or prevent the goods imported from foreign companyntry, was repelled. In paragraph 4 of the judgment following has been held Now, under S. 100 of the Constitution Act the Provincial Legislature has, subject to the other subsections of that section, the exclusive power to make laws with respect to matters enumerated in List II in the sch. VII. Item 31 of that List companyprises Intoxicating liquor and narcotic drugs, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors, opium and other narcotic drugs subject to certain reservations number material here. Prima facie, the offending provisions are within this legislative power. But companynsel for the appellant drew attention to Item 19 of List 1 which companyers Import and export across customs frontier as defined by the Dominion Government, and argued that if intoxicating liquors in Item 31 of List II were held to include also liquors imported, from abroad, then the Provincial Legislature, by prohibiting possession of such liquors by all persons, whether private companysumers, companymon carriers, or warehousemen, companyld defeat the power of the Federal Legislature to regulate imports of foreign liquors across the sea or land frontiers of British India which are customs frontiers as defined by the Central Government and thus seriously jeopardize an important source of central customs revenue. As under S. 100, Constitution Act, the Provincial legislative powers under List II were subject to the exclusive powers of the Federal Legislature in List I, the Bombay Act to the extent to which it trenched upon the subject of Item 19 of the latter List must, it was submitted, be regarded as a nullity. We are unable to accede to this companytention. As pointed out by this Court in Bhola Prasad v. Emperor, 1942 F.C.R. 17 A.I.R 1912 F.C. 17 43 Cr. L.J. 481 F.C. the legislative power given to the Provinces under Item 81 of List II is expressed in wide and unqualified teems which in their natural and ordinary sense are apt to companyer such an enactment as S. 14B in its amended form, and we see numberhing in the Federal Legislative List and more particularly in Item 19 to lead us to out down the fall meaning of the Provincial entry by excluding foreign liquors from its purview. There is, in our view, numberirreconcilable companyflict here such as would necessitate recourse to the principia of Federal supremacy laid down in S. 100, Constitution Act. Section 14B does number purport to restrict or prohibit dealings in liquor in respect of its importation or exportation across the sea or land frontiers of British India. It purports to deal with the possession of intoxicating liquors which, in the absence of limiting words, must include foreign liquor. It is far fetched, in our opinion, to suggest that, in so far as the provision companyers foreign liquors, it is legislation with respect to import of liquors into British India by sea or land. To the same effect judgment of this Court in State of Bombay vs. S.F.N. Balsara, AIR 1951 SC 318 is referred. The submission which has been pressed by the learned companynsel for the writ petitioners is that in a taxing statute one has to merely look into the text and there is numberroom for any intentment in deciding liability of the subject to tax regard must be had to plain and strict letter of law. Reliance has been placed on the judgment CIT v. Vatika Township P Ltd., 2015 1 SCC 1. In paragraph 41.2 and paragraph 41.3 following has been held 41.2. At the same time, it is also mandated that there cannot be imposition of any tax without the authority of law. Such a law has to be unambiguous and should prescribe the liability to pay taxes in clear terms. If the provision companycerned of the taxing statute is ambiguous and vague and is susceptible to two interpretations, the interpretation which favours the subjects, as against the Revenue, has to be preferred. This is a wellestablished principle of statutory interpretation, to help finding out as to whether particular category of assessee is to pay a particular tax or number. No doubt, with the application of this principle, the companyrts make endeavour to find out the intention of the legislature. At the same time, this very principle is based on fairness doctrine as it lays down that if it is number very clear from the provisions of the Act as to whether the particular tax is to be levied to a particular class of persons or number, the subject should number be fastened with any liability to pay tax. This principle also acts as a balancing factor between the two jurisprudential theories of justice Libertarian theory on the one hand and Kantian theory along with Egalitarian theory propounded by John Rawls on the other hand. 41.3. Tax laws are clearly in derogation of personal rights and property interests and are, therefore, subject to strict companystruction, and any ambiguity must be resolved against imposition of the tax. In Billings v. United States, the Supreme Court clearly acknowledged this basic and longstanding rule of statutory companystruction L Ed p. 598 Tax statutes should be strictly companystrued and if any ambiguity be found to exist, it must be resolved in favour of the citizen. Further, in Mathuram Agrawal v. State of M.P., 1999 8 SCC 667, in paragraph 12 following has been stated 12The intention of the legislature in a taxation statute is to be gathered from the language of the provisions particularly where the language is plain and unambiguous. In a taxing Act it is number possible to assume any intention or governing purpose of the statute more than what is stated in the plain language. It is number the economic results sought to be obtained by making the provision which is relevant in interpreting a fiscal statute. Equally impermissible is an interpretation which does number follow from the plain, unambiguous language of the statute. Words cannot be added to or substituted so as to give a meaning to the statute which will serve the spirit and intention of the legislature. The statute should clearly and unambiguously companyvey the three companyponents of the tax law i.e. the subject of the tax, the person who is liable to pay the tax and the rate at which the tax is to be paid. If there is any ambiguity regarding any of these ingredients in a taxation statute then there is numbertax in law. Then it is for the legislature to do the needful in the matter. There cannot be any dispute to the proposition as laid down by this Court in the above numbered cases. Statutes which are in companysideration are the statutes where clear charging provision has been enacted and charging of entry tax is on entry of the scheduled goods into a local area for companysumption, use or sale. Thus, the charging event arises on entry of scheduled goods into a local area. Any goods which are entering into a local area of a State whether companying from another local area of State, any other State or outside the companyntry, the charging event is same for all goods entering into local area. We, thus, are of the clear view that charging Section is clear, unambiguous and the provisions cannot be read to mean that the imported goods companying from outside the companyntry are excluded from charge of entry tax. No such indication is discernible from any provision of the Act. Charging event is companyplete as and when goods enter into local area for use, sale or companysumption irrespective of its origin. We, thus, are of the view that definition clause, Section 2 d read with Section 3 does number exclude the charging of the entry tax on goods entering into local area for companysumption, use or sale from outside the companyntry. In so far as reference of Section 2 c of the Bihar Act, 1993 as amended in 2003 by adding an explanation and as amended in 2006 by inserting a new Section 2 c , Section 2 1 c of Uttar Pradesh Tax on Entry of Goods into Local Area Act, 2007, Section 2 1 c of the Uttarakhand Tax on Entry of Goods into Local Areas Act, 2009 as well as Section 2 1 c of the West Bengal Tax on Entry of Goods into Local Areas Act, 2012 which expressly includes entering into local area from any place outside the territory of India, we only say that the said inclusion of words from outside the India is a provision made by way of abundant caution. The Bihar Amendment Act, 2006 by which Section 2 c was inserted by including clause iii is also by way of abundant caution and to provide it expressly which was already included in the definition of Section 2 c read with Section 3. Similarly when by Bihar Act 11 of 2003 Section 2 was amended in following manner Amendment of Section2 of Bihar Act 16, 1993 After the proviso to subsection e of section2 of the Act, the following explanation shall be inserted and shall be deemed always to have been so inserted Explanation Entry of goods into a local area for companysumption, use or sale therein from any place outside the territory of India shall also be deemed to be an entry of goods for the purposes of this Act. the intent and purpose of amendment was clear that it was clarificatory and explanatory. It did number introduce a companycept which was number already there. In Section 2 d the word used is any place outside that local area or outside the State. The word any is a word of very wide meaning and use of word any excludes any limitation. We, thus, are of the view that all the three legislations clearly did number exclude goods companying from outside the territory of India and the definition of entry of goods read with charging section clearly included all goods entering into a local area. Thus, the submissions of learned companynsel for the petitioners that entry tax legislation did number include imported goods cannot be accepted. Entry 41 83 of List I and Entry 52 of List II Issue Nos. 2 and 3 being interrelated are being taken together. Entry tax legislation by the State Legislature are referable to Entry 52 List II as it exist prior to 101 st Amendment Act, 2016, which was as follows Taxes on the entry of goods into a local area for companysumption, use or sale therein. The submission, which has been pressed to impugn the State legislation is that the entry tax legislation intrude into the field which is reserved to Parliament under Entry 41 and Entry 83 of List I, which are as follows Entry 41 Trade and companymerce with foreign companyntries import and export across customs frontiers definition of customs frontiers. Entry 83 Duties of customs including export duties. In so far as trade and companymerce with foreign companyntries, import and export across the customs frontiers and definition of customs frontiers, it is the Parliament which has exclusive legislative companypetence to make a law under Entry 41 and under Entry 83 on duties of customs including export duties. The Constitution of India, Part XI, Chapter I deals with legislative relations, legislative powers of Parliament and State Legislatures are clearly demarcated. Power to tax is an incidence of sovereignty and there is a clear demarcation of taxing field, which has been earmarked to the Parliament as well as to the State Legislatures. Taxing power of both Union and State Legislatures are mutually exclusive and has been clearly demarcated. This is further clear by the fact that in List III, i.e. Concurrent List, numbertaxing entry is included except the entry of stamp duty levying of fee in respect of any of the matters in List III but number including fees taken in any Court. Constitution Bench of this Court in Godfrey Phillips India Ltd. Anr. Vs. State of U.P. Ors., 2005 2 SCC 515, had elaborately companysidered the entries in Seventh Schedule of the Constitution of India. Following was laid down in Paragraphs 44 and 45 The Indian Constitution is unique in that it companytains an exhaustive enumeration and division of legislative powers of taxation between the Centre and the States. This mutual exclusivity is reflected in Article 246 1 and has been numbered in H.M. Seervais Constitutional Law of India, 4th Edn., Vol. 1 at p. 166 in para 1A.25 where, after companymenting on the problems created by the overlapping powers of taxation provided for in other companyntries with federal structures such as the United States, Canada and Australia, the learned author opined The lists companytained in Schedule VII to the Government of India Act, 1935, provided for distinct and separate fields of taxation, and it is number without significance that the companycurrent legislative list companytains numberentry relating to taxation but provides only for fees in respect of matters companytained in the list but number including fees taken in any companyrt. List I and List II of Schedule VII thus avoid overlapping powers of taxation and proceed on the basis of allocating adequate sources of taxation for the federation and the provinces, with the result that few problems of companyflicting or companypeting taxing powers have arisen under the Government of India Act, 1935. This scheme of the legislative lists as regards taxation has been taken over by the Constitution of India with like beneficial results. This view has also been reiterated in Hoechst Pharmaceuticals Ltd. v. State of Bihar, 1983 4 SCC 45 SCC pp. 9293, paras 75 76 A scrutiny of Lists I and II of the Seventh Schedule would show that there is numberoverlapping anywhere in the taxing power and the Constitution gives independent sources of taxation to the Union and the States. Following the scheme of the Government of India Act, 1935, the Constitution has made the taxing power of the Union and of the States mutually exclusive and thus avoided the difficulties which have arisen in some other Federal Constitutions from overlapping powers of taxation. Thus, in our Constitution, a companyflict of the taxing power of the Union and of the States cannot arise. See also State of W.B. v. Kesoram Industries Ltd., 2004 10 SCC 201. This Court further held that in companystruction of a taxing entry, an interpretation which may lead to overlapping must be eschewed. If the taxing power is within a particular legislative field, it would follow that other fields in the legislative lists must be companystrued to exclude this field. In Para 46,following was held Therefore, taxing entries must be companystrued with clarity and precision so as to maintain such exclusivity, and a companystruction of a taxation entry which may lead to overlapping must be eschewed. If the taxing power is within a particular legislative field, it would follow that other fields in the legislative lists must be companystrued to exclude this field so that there is numberpossibility of legislative trespass. Entries in VIIth Schedule are number powers but fields of legislation. It is also well settled that in deciding whether any particular enactment is within the purview of one Legislature or the other, it is pith and substance of the legislation that has to be looked into. Whenever a State legislation is challenged as being under the companypetence of the State Legislature, the test, which has been laid down by this Court is that one must find out by applying the rule of pith and substance that whether the legislation falls within any of the List II, if it does, numberfurther question arises. Attack on the ground of legislative companypetence must fail. This Court in State of A.P. Ors. Vs. Mcdowell Co. Ors., 1996 3 SCC 709 laid down following in Paragraph 36 In view of our finding that the impugned enactment is perfectly within the legislative companypetence of the State Legislature and is fully companyered by Entry 8 read with Entry 6 of List II, it is number necessary for us to deal with the arguments based upon clause 3 of Article 246 of the Constitution except to say the following once the impugned enactment is within the four companyners of Entry 8 read with Entry 6, numberCentral law whether made with reference to an entry in List I or with reference to an entry in List III can affect the validity of such State enactment. The argument of occupied field is totally out of place in such a companytext. If a particular matter is within the exclusive companypetence of the State Legislature, i.e., in List II that represents the prohibited field for the Union. Similarly, if any matter is within the exclusive companypetence of the Union, it becomes a prohibited field for the States. The companycept of occupied field is really relevant in the case of laws made with reference to entries in List III. In other words, whenever a piece of legislation is said to be beyond the legislative companypetence of a State Legislature, what one must do is to find out, by applying the rule of pith and substance, whether that legislation falls within any of the entries in List II. If it does, numberfurther question arises the attack upon the ground of legislative companypetence shall fail The distribution of power between Union and States is done in a mutually exclusive manner as is reflected by precise and clear field of legislation as allocated under different list under the Seventh Schedule. No assumption of any overlapping between a subject allocated to Union and State arises. When the field of legislation falls in one or other in Union or State Lists, the legislation falling under the State entry has always been upheld. The Scheme of distribution of legislative power between Union and States in the Constitution of India relies on the distribution of legislative power between the Federal Government and Provincial Government as companytained in Seventh Schedule of the Government of India Act, 1935. The Government of India Act, 1935 has been referred to as Constitution Act by the Privy Council. In this companytext, reference is made to a judgment of Federal Court reported in AIR 1942 FC 33, The Province of Madras Vs. Messrs. Boddu Paidanna and Sons. 1942 FCR 90 , the Madras Legislature has enacted Madras General Sales Tax Act, 1939. The respondent was carrying on business which companysists of purchase of ground nuts for the purpose of extracting oil from the kernels of the nuts and the making of groundnut cake out of the residue was assessed to tax under the 1939 Act. The levy of tax was challenged by the respondent before the District Munsif and the High Court of Madras on the ground that first sale of goods manufactured in the Province was a duty of excise, which is number within the companypetence of Provincial Legislature. The High Court accepted the challenge and held that State Legislature was number companypetent to tax. In the Government of India Act, 1935, the Federal Legislature, under List I Entry 45, has an exclusive power to impose duties of excise whereas the Provincial Legislature, under List II Entry 48, has an exclusive power to impose taxes on the sale of goods. CHIEF JUSTICE GWYER reversing the judgment of the High Court held that duties are levied upon the manufacturer or producer in respect of manufacturer or production of the companymodity taxed whereas tax on the sale of goods is levied as qua seller and number qua manufacturer. Federal Court held that there is numberoverlapping in law. Following observations were made The duties of excise which the Constitution Act assigns exclusively to the Central Legislature are, according to the Central Provinces Case, duties levied upon the manufactory or producer in respect of the manufacture or production of the companymodity taxed. The tax on the sale of goods, which the Act assigns exclusively to the Provincial Legislatures, is a tax levied on the occasion of the sale of the goods. Plainly a tax levied on the first sale must in the nature of things be a tax on the sale by the manufacturer or producer but it is levied upon him qua seller and number qua manufacturer or producer. It may well be that a manufacturer or producer is sometimes doubly hit but so is the taxpayer in Canada who has to pay incometax levied by the Province for provincial purposes, and also incometax levied by the Dominion for Dominion purposes see Caron v. The King 1924 A.C. 999 Forbes v. Att.Gen. for Manitoba 1937 A.C. 260. If the taxpayer who pays a sales tax is also a manufacturer or producer of companymodities subject to a central duty of excise, there may numberdoubt be an overlapping in one sense but there is numberoverlapping in law. The two taxes which he is called on to pay are economically two separate and distinct imposts Federal Court further laid down that manufacture and sale has numbernecessary companynection and both are independent. It was further held that It is the fact of manufacture which attracts the duty, even though it may be companylected later and we may draw attention to the Sugar Excise Act in which it is specially provided that the duty is payable number only in respect of sugar which is issued from the factory but also in respect of sugar which is companysumed within the factory. In the case of a sales tax, the liability to tax arises on the occasion of a sale, and a sale has No. necessary companynexion with manufacture or production. The manufacturer or producer cannot of companyrse sell his companymodity unless he has first manufactured or produced it but he is 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 opinion the power of the Provincial Legislatures to levy a tax on the sale of goods extends to sales of every kind, whether first sales or number and we regret that we are unable to agree with the companytrary opinion which has been expressed by the High Court The above judgment of Federal Court was upheld by Privy Council in The Governor General in Council Vs. The Province of Madras, reported in 58 L.W. 228. LORD SIMONDS held that in event a companytroversy should arise whether one or other Legislature is number exceeding its own, and encroaching on the others, companystitutional legislative power, and in such a companytroversy it is a principle, that it is number the name of the tax but its real nature, its pith and substance, which must determine into what category it falls. After referring to the provisions of Madras General Sales Tax Act, 1939, Lordship opined that its real nature, its pith and substance is that it imposes a tax on the sale of goods. The Privy Council further observed that the Indian Constitution The Government of India Act, 1935 companytains what purports to be an exhaustive enumeration and division of legislative powers between the Federal and the Provincial Legislatures. Upholding the Legislative power of the Provincial Legislature, the Privy Council laid down following An exhaustive discussion of this subject, from which their Lordships have obtained valuable assistance, is to be found in the judgment of the Federal Court in re the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act No. 14 of 1938 39 26 A.I.R. 1939 F.C. 1. Consistently with this decision, their Lordships are of opinion that a duty of excise is primarily a duty levied upon a manufacturer or producer in respect of the companymodity manufactured or produced. It is a tax upon goods number upon sales or the proceeds of sale of goods. Here again their Lordships find themselves in companyplete accord with the reasoning and companyclusions of the Federal Court in the Boddu Paidanna case. Province of Madras v. Boddu Paidanna and Sons. Reported in 42 29 A.I.R. 1942 F.C. 33 The two taxes, the one levied upon a manufacturer in respect of his goods, the other upon a vendor in respect of his sales, may, as is there pointed out, in one sense overlap. But in law there is numberoverlapping. The taxes are separate and distinct imposts. If in fact they overlap, that may be because the taxing authority, imposing a duty of excise, finds it companyvenient to impose that duty at the moment when the exercisable article leaves the factory or workshop for the first time upon the occasion of its sale. But that method of companylecting the tax is an accident of administration it is number of the essence of the duty of excise which is attracted by the manufacture itself This Court in the case of Ram Krishna Ramnath Agarwal of Kamptee Vs. Secretary, Municipal Committee, Kamptee, AIR 1950 SC 11 had occasion to companysider the levy of octroi on the entry of excisable goods. The appellant, on 30.11.1945 brought to Kamptee, from outside tobacco to make bidis. Municipality directed for recovery of the octroi duty under Section 66 1 e of the Central Province Municipalities Act, 1922. The appellant challenged the leviability of octroi on the ground that tobacco is excisable goods under Central Excises and Salt Act, 1944. It is only Central Government, who is entitled to recover the excise duty and the octroi is number payable. The High Court had rejected the companytention and the appeal was dismissed by this Court holding that levy of excise duty is number in companyflict with the levy of an impost on the entry of the goods. In Para 10 of the judgment following has been held This discussion clearly shows that the relevant question is what is the nature of the tax. Excise duty is a tax on manufactured goods. Octroi duty is a tax levied on the entry of goods within a particular area. Under the Excise Act, tobacco becomes excisable goods within the meaning of Item 9 in the Schedule. The subsequent use of such manufactured goods in making different articles only affects the rate of tax. Therefore, tobacco becomes subject to excise duty when it reaches the stage of manufacture mentioned in Item 9 of the Schedule to the Excise Act. Even before it is companyverted into bidis or any other article mentioned in the entry it has become excisable goods and liable to pay excise duty. The levy of such duty is therefore number in companyflict with the levy of an impost on the entry of the goods within a certain area. Another judgment which needs to be numbericed is Jiyajeerao Cotton Mills Ltd., Birlanagar, Gwalior Vs. State of Madhya Pradesh, AIR 1963 SC 414. The appellant was a textile mill generating electricity for the purpose of running its mills. State of Madhya Pradesh imposed electricity duty under Central Provinces and Berar Electricity Duty Act, 1949. The imposition of duty was challenged on the ground that Provincial Legislature has numbercompetence to impose electricity duty since on manufacture of electricity, it is Central Legislature under Entry 84 List I has companypetence. This Court repelling the companytention laid down following in Paragraph 6 It is difficult to see how the levy of duty upon companysumption of electrical energy can be regarded as duty of excise falling within Entry 84 of List I. Under that Entry what is permitted to Parliament is levy of duty of excise on manufacture or production of goods other than those excepted expressly by that entry . The taxable event with respect to a duty of excise is manufacture or production. Here the taxable event is number production generation of electrical energy but its companysumption. If a producer generates electrical energy and stores it up, he would number be required to pay any duty under the Act. It is only when he sells it or companysumes it that he would be rendered liable to pay the duty prescribed by the Act. The Central Provinces and Berar Electricity Act was enacted under Entry 48B of List II of the Government of India Act, 1935. The relevant portion of that Entry read thus Taxes on the companysumption or sale of electricity Entry 53 of List II of the Constitution is to the same effectThe language used in the legislative entries in the Constitution must be interpreted in a broad way so as to give the widest amplitude of power to the legislature to legislate and number in a narrow and pedantic sense. We cannot, therefore, accept either of the two grounds urged by Mr Viswanatha Sastri challenging the vires of the Act. This Court in the above case further held that language used in the legislative entries in the Constitution must be interpreted in a broad way so as to give the widest amplitude of power to the legislature to legislate and number in a narrow and pedantic sense. Constitution bench judgment in D.G. Gose and Co. Agents Pvt. Ltd. Vs. State of Kerala Anr., 1980 2 SCC 410 also need to be numbericed. The Kerala Building Tax Act, 1975 imposing tax on building under List II Entry 49 tax on land and buildings whereas List I Entry 86 Taxes on the capital value of assets, exclusive of agricultural land, of individuals and companypanies taxes on the capital of companypanies. Referring to the aforesaid two taxes under List I and List II, this Court laid down that two taxes are separate and distinct imposts and they cannot be said to be overlap each other and shall be within the companypetence of the Legislatures companycerned. In Para 9 of the judgment, following has been held It has to be appreciated that in almost all cases, a tax has two elements which have been precisely stated by Seervai in his Constitutional Law of India, 2nd Edn., Vol. 2, as follows, at p. 1258 Another principle for reconciling apparently companyflicting tax entries follows from the fact that a tax has two elements the person, thing or activity on which the tax is imposed, and the amount of the tax. The amount may be measured in many ways but decided cases establish a clear distinction between the subjectmatter of a tax and the standard by which the amount of tax is measured. These two elements are described as the subject of a tax and the measure of a tax. It may well be that ones building may imperceptibly be the subjectmatter of tax, say the wealth tax, as a companyponent of his assets, under Entry 86 List I and it may also be subjected to tax, say a direct tax under Entry 46 sic 49 List II , but as the two taxes are separate and distinct imposts, they cannot be said to overlap each other, and would be within the companypetence of the legislatures companycerned. Nine Judges Constitution Bench in Jindal Stainless Ltd. Ors. Vs. State of Haryana Ors., 2016 11 SCALE 1 has also held that taxing power of the Union and the States are mutually exclusive. Approving the findings expressed by H.M. Seervai in its treatise Constitutional Law of India, following was observed The celebrated author, in our opinion, was right in saying so for the taxing power of the Union and the States are mutually exclusive. While the Parliament cannot legislate on the subjects reserved for the States, the States cannot similarly trespass onto the taxing powers of the Union. If the Constitutional scheme does number allow the Parliament to usurp the taxing powers of the State Legislatures, such process of usurpation cannot also be permitted to take place in the garb of making Union executives companycurrence an essential prerequisite for any taxing legislation. The following passage from Seervais book Vol. 3, Page 2607 is in this regard instructive 23.43. Thirdly, the whole scheme of taxation in our Constitution would be companypletely dislocated if Article 304 b included a tax. The taxing powers of the Union and the States have been made mutually exclusive so that Parliament cannot deprive the States of their taxing powers as has happened in companyntries where the powers of taxation are companycurrent. It would be surprising if the Union legislature, i.e. Parliament companyld number take away the taxing powers of the State legislatures and yet it would be open to the Union executive Under Article 304 b to deprive the State legislatures of their taxing powers. As numbered above, although, Nine Judges Constitution Bench had left the question open of validity of entry tax on goods imported from companyntries outside the territories of India, the two Honble Judges, i.e. Justice R. Banumathi and Justice Dr. Y. Chandrachud while delivering separate judgment have companysidered the leviability of entry tax on imported goods in detail. Both Honble Judges have held that there is numberclash overlap between entry levied by the State under Entry 52 List II and the custom duty levied by the Union under Entry 83 List I. We have also arrived at the same companyclusion in view of the foregoing discussions. We thus hold that entry tax legislations do number intrude in the legislative field reserved for Parliament under Entry 41 and under Entry 83 of List I. The State Legislature is fully companypetent to impose tax on the entry of goods into a local area for companysumption, sale and use. We thus repel the submission of petitioner that entry tax legislation of the State encroaches in the Parliaments field. Concept Extent of Import Now, we companye to Issue No.IV relating to import and its extent. Import and export are companycepts which denote trade between different companyntries. The term import signifies etymologically to bring in. To import goods into the territory of India means to bring them into the territory of India from abroad. Blacks Law Dictionary, Tenth Edition, defines import as follows A product brought into a companyntry from a foreign companyntry where it originated imports declined in the third quarter. See parallel imports. 2. The process or activity of bringing foreign goods into a companyntry the import of products affects the domestic economy in significant ways. Cf. Export, n. 3. Meaning esp., implied meaning the companyrt must decide the import of that obscure provision. 4. Importance significance time will tell the relative import of Judge Kozinskis decisions in American law. In Advanced Law Lexicon, by P. Ramanatha Aiyar, 3 rd Edition, import has been defined in following words The term import means to bring into a companyntry merchandise from abroad, and is the direct companyverse of the term export which means to carry from a state or companyntry, as wares in companymerce. The Customs Act, 1962 defines the terms import, imported goods and importer in Sections 2 23 , 2 25 and 2 26 respectively, which are as follows 2 23 import with its grammatical variations and companynate expressions, means bringing into India from a place outside India 2 25 Imported goods means any goods brought into India from a place outside India but does number include goods which have been cleared for home companysumption 2 26 importer, in relation to any goods at any time between their importation and the time when they are cleared for home companysumption, includes any owner, beneficial owner or any person holding himself out to be the importer This Court had occasion to companysider the companycept of import and export in companytext of Article 286 of the Constitution of India in State of TravancoreCochin Ors. Vs. Shanmugha Vilas Cashewnut Factory, Quilon, AIR 1953 SC 333. TravancoreCochin General Sales Tax Act, Section 3 provided for levy of a tax on the total turnover of every dealer for each year. Facts of the case have been numbered in Para 3 of the judgment, which are as follows The respondents are dealers in cashewnuts in the State, and their business companysists in importing raw cashewnuts from abroad and the neighbouring districts in the State of Madras in addition to purchases made in the local market, and, after companyverting them by means of certain processes into edible kernels, exporting the kernels to other companyntries, mainly America. The oil pressed from the shells removed from the cashewnuts was also exported. The Constitution having companye into force on January 26, 1950, the respondent in each appeal claimed exemption under Article 286 l b in respect of the purchases made from that date till May 29, 1950, the end of the account year. The Sales Tax authorities having rejected the claim, the respondents applied to the High Court under Article 226, and that companyrt upheld the claim and quashed the assessments in so far as they related to the said period. The State has preferred the appeals. This Court while companysidering the exemption under Article 286 1 b has laid down the following in Para 10 As regards the first mentioned category, we are of opinion that the transactions are number within the protection of clause 1 b . What is exempted under the clause is the sale or purchase of goods taking place in the companyrse of the import of the goods into or export of the goods out of the territory of India. It is obvious that the words import into and export out of in this companytext do number mean the article or companymodity imported or exported. The reference to the goods and to the territory of India make it clear that the words export out of and import into mean the exportation out of the companyntry and importation into the companyntry respectively. The word companyrse etymologically denotes movement from one point to another, and the expression in the companyrse of number only implies a period of time during which the movement is in progress but postulates also a companynected relation The purchase for the purpose of import and similarly, the sale after import were held to be distinct legal transactions, it was held The phrase integrated activities was used in the previous decision to denote that such a sale i.e. a sale which occasions the export cannot be dissociated from the export without which it cannot be effectuated, and the sale and the resultant export form parts of a single transaction. It is in that sense that the two activities the sale and the export were said to be integrated. A purchase for the purpose of export like production or manufacture for export, is only an act preparatory to export and cannot, in our opinion, be regarded as an act done in the companyrse of the export of the goods out of the territory of India, any more than the other two activities can be so regarded. As pointed out by a recent writer From the legal point of view it is essential to distinguish the companytract of sale which has as its object the exportation of goods from this companyntry from other companytracts of sale relating to the same goods, but number being the direct and immediate cause for the shipment of the goods. When a merchant shipper in the United Kingdom buys for the purpose of export goods from a manufacturer in the same companyntry the companytract of sale is a home transaction but when he resells these goods to a buyer abroad that companytract of sale has to be classified as an export transaction. This passage shows that, in view of the distinct character and quality of the two transactions, it is number companyrect to speak of a purchase for export, as an activity so integrated with the exportation that the former companyld be regarded as done in the companyrse of the latter. The same reasoning applies to the first sale after import which is a distinct local transaction effected after the importation of the goods into the companyntry has been companypleted, and having numberintegral relation with it. Any attempt therefore to invoke the authority of the previous decision in support of the suggested extension of the protection of clause 1 b to the last purchase for the purpose of export and the first sale after import on the ground of integrated activities must fail. The writ petitioners have also placed reliance on the companytents of Article 286 of the Constitution especially Article 286 1 b read with Article 286 2 . Article 286 1 and b are as follows Article 286. Restrictions as to imposition of tax on the sale or purchase of goods No law of a State shall impose, or authorise the imposition of, a tax on the supply of goods or of services or both, where such supply takes place a b in the companyrse of the import of the goods or services or both into, or export of the goods or services or both out of, the territory of India. It is supported that though Article 286 deals with the restriction on the State legislative power qua imposition of tax on the sale or purchase of goods nevertheless the formulation of the principle by the Parliament with regard to in the companyrse of the import or export clearly shows that the legislative domain in this regard is with Parliament and number with States. In point of fact, any legislation relating to the companyrse of import or export has to relate to Entry 41 read with Entry 83 of List I and it cannot relate to any other Entry and definitely number to any Entry in State List. Reliance was also placed on Section 5 3 of the Central Sales Tax Act, 1956. On the strength of Section 5, it is sought to be companytended that on parity of logic the first sale after the import be treated as in the companyrse of import. Article 286 of the Constitution provides for restrictions as to the imposition of the tax on the sale or purchase of goods. The subjectmatter of laws made by Parliament and legislatures of the States as per Article 246 read with Seventh Schedule and Article 245 are subject to the provisions of the Constitution. Legislative power as companytained in List II is thus subject to express restrictions as imposed by Article Article 286 subclause 1 uses the expression in the companyrse of the import of the goods. The companycept in the companyrse of import of goods as used in Article 286 1 can very well be implied while companysidering the companycept of the import of goods. In so far as Section 5 subsection 3 of Central Sales Tax Act, 1956, the said provision provides that last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of India shall also be deemed to be in the companyrse of such export. Section 5 3 is with regard to the export of the goods out of the territory of India and has number been used with regard to the companycept of import. Section 5 1 , 2 , 3 are relevant which are to the following effect Section 5. When is a sale or purchase of goods said to take place in the companyrse of import or export. 1 A sale or purchase of goods shall be deemed to take place in the companyrse of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India. A sale or purchase of good shall be deemed to take place in the companyrse of the import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India. Not withstanding anything companytained in subsection 1 , the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of India shall also be deemed to be in the companyrse of such export, if such last sale or purchase took place after, and was for the purpose of companyplying with, the agreement or order for or in relation to such export. The submissions of the writ petitioners on the strength of Section 5 3 that even first sale after the import should be treated during the companyrse of the import is number supported by the companycept as companytained in Section 5 of the 1956 Act and the reliance on the said provision is wholly misplaced. As numbered above, the restriction in the legislative power of the State as companytained in Article 286 is with regard to taxing on sale or purchase of goods which takes place outside the State or in the companyrse of import of the goods or services or export of goods or services. The restriction of Article 286 does number ipso facto can be placed while companysidering the legislative field of the State under Entry 52 and by virtue of Article 286 numberrestriction can be put on the legislative companypetence of the State in the field as defined under Entry However, the companycept underlined in the companyrse of import of the goods as in Article 286 1 b can very well be applied to find out as to when the import of goods companye to an end. We thus proceed to examine certain cases judgments of this Court which were delivered in the companytext of Article 286. The term import again came for companysideration before this Court in J.V. Gokal Co. Private Ltd. Vs. Assistant Collector of Sales Tax Inspection Ors., AIR 1960 SC 595. This Court explained the word import and the phrase in the companyrse of the import of the goods into the territory of India. In paragraphs 9 and 11, following has been held What does the phrase in the companyrse of the import of the goods into the territory of India companyvey? The crucial words of the phrase are import and in the companyrse of. The term import signifies etymologically to bring in. To import goods into the territory of India therefore means to bring into the territory of India goods from abroad. The words companyrse means progress from point to point. The companyrse of import, therefore, starts from one point and ends at another. It starts when the goods cross the customs barrier in foreign companyntry and ends when they cross the customs barrier in the importing companyntry. These words were subject of judicial scrutiny by this Court in State of TravancoreCochin v. Shanmugha Vilas Cashew Nut Factory1. Construing these words, Patanjali Sastri, C.J., observed at p. The word companyrse etymologically denotes movement from one point to another, and the expression in the companyrse of number only implies a period of time during which the movement is in progress but postulates also a companynected relation. As regards the limits of the companyrse, the learned Chief Justice observed at p. 68 It would seem, therefore, logical to hold that the companyrse of the export out of, or of the import into the territory of India does number companymence or terminate until the goods cross the customs barrier. Das, J., as he then was, in his dissenting judgment practically agreed with Patanjali Sastri, C.J., on the interpretation of the said words. The learned Judge expressed his view at p. 92 thus The word companyrse companyveys to my mind the idea of a gradual and companytinuous flow, an advance, a journey, a passage or progress from one place to another. Etymologically it means and implies motion, a forward movement. The phrase in the companyrse of clearly has reference to a period of time during which the movement is in progress. Therefore, the words in the companyrse of the import of the goods into and the export of the goods out of the territory of India obviously companyer the period of time during which the goods are on their import or export journey. We respectfully agree with the aforesaid observations of the learned Judges. The companyrse of the import of the goods may be said to begin when the goods enter their import journey i.e. when they cross the customs barrier of the foreign companyntry and end when they cross the customs barrier of the importing companyntry. The legal position visavis the importsale can be summarised thus 1 The companyrse of import of goods starts at a point when the goods cross the customs barrier of the foreign companyntry and ends at a point in the importing companyntry after the goods cross the customs barrier 2 the sale which occasions the import is a sale in the companyrse of import 3 a purchase by an importer of goods when they are on the high seas by payment against shipping documents is also a purchase in the companyrse of import, and 4 a sale by an importer of goods, after the property in the goods passed to him either after the receipt of the documents of title against payment or otherwise, to a third party by a similar process is also a sale in the companyrse of import. Learned companynsel for the petitioners has placed much reliance on Nine Judges Constitution Bench in re Sea Customs Act Case, AIR 1963 SC 1760. This Court in the aforesaid case had answered a reference made under Article 143 1 . Three questions to be answered were as follows Do the provisions of Article 289 of the Constitution preclude the Union from imposing, or authorising the imposition of, customs duties on the import or export of the property of a State used for purposes other than those specified in clause 2 of that article? Do the provisions of Article 289 of the Constitution of India preclude the Union from imposing, or authorising the imposition of, excise duties on the production or manufacture in India of the property of a State used for purposes other than those specified in clause 2 of that article? Will subsection 2 of Section 20 of the Sea Customs Act, 1878 Act 8 of 1878 , and subsection 1A of Section 3 of the Central Excises and Salt Act, 1944 Act 1 of 1944 as amended by the Bill set out in the annexure be inconsistent with the provisions of Article 289 of the Constitution of India? In the above companytext, this Court had examined the distribution of legislative power between the Union and the States. This Court held that there is numberoverlapping in the matter of taxation between the two Lists, i.e., List I and List II. This Court held that all customs duties including export duties are within the powers of Parliament with which States are number companycerned. In Para 9 of the judgment, following observations are made All customs duties, including export duties, relating as they do to transactions of import into or export out of the companyntry are within the powers of Parliament. The States are number companycerned with those. They are only companycerned with taxes on the entry of goods in local areas for companysumption, use or sale therein, companyered by entry 52 in the State List. Except for duties of excise on alcoholic liquors and opium and other narcotic drugs, all duties of exercise are leviable by Parliament. Hence, it can be said that by and large, taxes on income, duties of customs and duties of excise are within the exclusive power of legislation by Parliament. It is relevant to numberice that this Court clearly numbericed the power of States to levy entry tax on entry of goods in local area for companysumption, sale or use. The above observations made by the Constitution Bench clearly support the submission of learned companynsel for the State that power of State under Entry 52 was recognised while companysidering the Unions power to levy the customs duty. This Court further laid down that in the case of levy of customs duty, the taxable event is the import of goods within the customs barriers. In paragraph 26 of the judgment, following was stated Similarly in the case of duties of customs including export duties though they are levied with reference to goods, the taxable event is either the import of goods within the customs barriers or their export outside the customs barriers. They are also indirect taxes like excise and cannot in our opinion be equated with direct taxes on goods themselves. Now, what is the true nature of an import or export duty? Truly speaking, the imposition of an import duty, by and large, results in a companydition which must be fulfilled before the goods can be brought inside the customs barriers i.e. before they form part of the mass of goods within the companyntry. Such a companydition is imposed by way of the exercise of the power of the Union to regulate the manner and terms on which goods may be brought into the companyntry from a foreign land Learned companynsel for the writ petitioners has laid much emphasis on the observations made by nineJudge Constitution Bench in paragraph 26 as quoted above. The above observations were made by the nineJudge Constitution Bench while companysidering the nature of import and export. It was held that the imposition of import duty results in a companydition which must be fulfilled before the goods can be brought inside the customs barriers i.e. before they form part of mass of goods within the companyntry. When the goods land in the custom area of the Indian territory and released for the home companysumption, it forms part of the mass of goods within the companyntry and the importation is companyplete. We, thus, do number find any inconsistency in the companystitutional companycept of import as envisaged in Article 286 1 b and the companycept of import as is companytained in Customs Act, 1962. This Court had also occasion to companysider the issue as to when import would be companypleted in the case of Kiran Spinning Mills Vs. Collector of Customs, 2000 10 SCC 228, following was held in paragraph 6 The import would be companypleted only when the goods are to cross the customs barriers and that is the time when the import duty has to be paid and that is what has been termed by this Court in Sea Customs case SCR at p. 823 as being the taxable event. The taxable event, therefore, being the day of crossing of customs barrier, and number on the date when the goods had landed in India or had entered the territorial waters, we find that on the date of the taxable event the additional duty of excise was leviable under the said Ordinance and, therefore, additional duty under Section 3 of the Tariff Act was rightly demanded from the appellants. Similar view was expressed in the case of Garden Silk Mills Ltd. Anr. Vs. Union of India Ors., 1999 8 SCC 744, in paragraph 18, which is to the following effect It would appear to us that the import of goods into India would companymence when the same cross into the territorial waters but companytinues and is companypleted when the goods become part of the mass of goods within the companyntry the taxable event being reached at the time when the goods reach the customs barriers and the bill of entry for home companysumption is filed. The law relating to customs has been companysolidated by the Customs Act, 1962. The definitions of import, imported goods and importer have already been numbericed above. The definition of imported goods as given in Section 2 25 is any goods brought into India from the place outside India but does number include goods, which have been cleared for home companysumption. The provision clearly companytemplates that once the goods are released for home companysumption, the character of imported goods is lost and thereafter numberlonger the goods companyld be called as imported goods. The import transit is only till the goods are released for home companysumption. The taxing event for entry tax under Entry 52 List II is entirely different and has numberhing to do with the customs duty. The State by imposing entry tax in any manner is number entrenching in the power of the Parliament to impose customs duty. The goods are released for home companysumption only after payment of the customs duty due to the Central Government. The goods which are imported cannot be held to be insulated so as to number subject to any State tax, any such insulation of the imported goods shall be a protectionist measure which will be discriminatory and invalid. When all numbermal goods are subjected to State tax numberexemption can be claimed by goods, which have been imported from payment of entry tax. To take a companymon example, all goods, which pass through a toll bridge are liable to pay toll tax, can it be said that the imported goods which after having been released from customs barriers and are passing through a toll bridge, are number liable to pay the toll tax, the answer has to be in No. Thus, the event for levy of customs duty, which is in the domain of the Parliament, is entirely different from that of event of entry tax. The liability to pay State entry tax arises only when goods enter into a local area for companysumption, use and sale, which event is entirely different and separate from the levy of a customs duty, which is on import. Learned companynsel for the petitioner has companytended that the definition given in the provisions of the Customs Act, 1962 cannot companytrol the scope and ambit of the Constitutional entries. It is submitted that Constitutional entries have to be read giving widest possible amplitude and have to be given wide meaning and their scope and ambit cannot be companytrolled by a Parliamentary Legislation or by the definitions given in a Parliamentary Legislation. In the case of ITC Ltd. Vs. Agricultural Produce Market Committee Ors. 2002 9 SCC 232, the Constitutional Bench in paragraph 32 laid down as under In State of A.P. v. McDowell Co. also it was held that the ambit and scope of a companystitutional entry cannot be determined with reference to a parliamentary enactment. If it is otherwise, it would result in Parliament enacting and or amending an enactment thereby companytrolling the ambit and scope of the companystitutional provision. That cannot be the law. The power to legislate with which we are companycerned is companytained in Article 246. The fields are demarcated in the various entries. On reading both, it has to be decided whether the legislature companycerned is companypetent to legislate when its validity is questioned. The ambit and scope of an entry cannot be determined with reference to a parliamentary enactment. There cannot be any dispute to the proposition as laid down by this Court in the above case that the scope and ambit of the Constitutional entries have to be given a wide meaning and scope. There is numberinhibition on the Parliament in exercising its legislative power under Entry 41 List I to define customs frontiers and further legislate with regard to duties of customs. Even if we do number companyfine to the definition of imported goods as given in the Customs Act, 1962, the generally accepted meaning and definition of import as has been laid down in cases as numbered above is that import companymences when the goods leave the customs frontiers of the companyntry from where the goods are imported and companytinue when the goods enters into the customs frontiers of imported companyntry and ends when goods are released for home companysumption. Till the event of import is over, Parliamentary Legislation, the companytrol of Union companytinues for ensuring the realisation of the customs duties. In view of the foregoing discussions, we are of the clear opinion that taxing event with regard to levy of customs duty by Parliament and levy of entry tax by States under Entry 52 List II are entirely different and separate. The taxing event pertaining to levy of entry tax occurs only after the taxing event of levy of customs duty is over. Thus, the State Legislation imposing entry tax in numbermanner encroaches upon the Parliamentary Legislation under Entry 41 and Entry 83. There is numberinvalidity in levy of entry tax by the States. Original Unbroken Package Theory The Original Package Unbroken Package is a theory which was evolved by U.S. Supreme Court in reference to the imported goods. The genesis of the theory is from the Chief Justice Marshall, in the case of Brown Vs. The State of Maryland, 6 Ed. 678. State of Maryland has enacted a law that all importers of foreign articles or companymodities shall, before they are authorized to sell, take out a license for which they shall pay fifty dollars. The above provision of the State of Maryland was challenged by Brown on the ground that the provision is repugnant to following two provisions in the Constitution of the United States To that which declares that numberState shall, without the companysent of Congress, lay any imposts, or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws. To that which declares that Congress shall have power to regulate companymerce with foreign nations, and among the several States, and with the Indian tribes. Chief Justice Marshall in above companytext has laid down following It is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of property in the companyntry, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the companystitution. The Original Package theory is propounded from the aforesaid judgment. Another judgment of the U.S. Supreme Court, which relied on the case of Brown Vs. The State of Maryland and further formulated the doctrine is C. Adolph Low Alexander Austin, 20 L.Ed. 517. The facts and issue which arose in the aforesaid case had been numbered in the beginning of the judgment, which is to the following effect The plaintiffs have been for several years past, and still are, importing, shipping and companymission merchants, in the city of San Francisco, in the state of California. In 1868, they received, on companysignment from parties in France, certain champagne wines of the value of 10,000, upon which they paid the duties and charges at the customhouse. They then stored the wine in their warehouse in San Francisco, in the original cases in which the wines were imported, where they remained for sale. While in this companydition they were assessed as the property of the plaintiff, for state, city and companyntry taxes, under the general revenue law of California, which subjects all property, real or personal, in the state, with certain exceptions to an ad valorem tax. The defendant was at the time the tax companylector of the city and companyntry of San Francisco, and as such officer levied upon the cases of wines thus stored, for the amount of the tax assessed and was about to sell them, when the plaintiffs paid the amount and the charges incurred, under protest, and then brought the present action in one of the district companyrts of the state, to recover back money paid. The district companyrt gave judgment for the plaintiffs the supreme companyrt of the state reversed the judgment and the case is brought here on writ of error. The simple question presented in this case for our companysideration is whether imported merchandise, upon which the duties and charges at the customhouse have been paid, is subject to state taxation, whilst remaining in the original cases, unbroken and unsold, in the hands of the importer Justice Field relied on the statement made by Chief Justice Marshall in the case of Brown Vs. The State of Maryland as quoted above. Relying on the said judgment, Justice Field laid down following But the obvious answer to this position is found in the fact, which is in substance, expressed in the citations made from the opinions of Marshal and Taney, that the goods imported do number lose their character as imports, and become incorporated into the mass of property of the State, until they have passed from the companytrol of the importer or been broken up by him from their original cases. Whilst retaining their character as imports, a tax upon them in any shape, is within the companystitutional prohibition The law laid down in the above two cases is relied upon by the companynsel for the petitioner to companytend that original import package companytinues till the goods reaches to the premises factory of the petitioner and during such companytinuance of import under original package, State has numberjurisdiction or authority to levy any tax including the impugned entry tax. We number proceed to first examine the subsequent judgments of the United States Supreme Court, which deal with the above mentioned two decisions of the United States Supreme Court. Michelin Tire Corporation Vs. W.L. Wages, Tax Commissioner, 46 Ed. 2d 495 is the case which is relied upon by the companynsel for the State. In the above case, respondent has imported tires and tubes from France and Nova Scotia. Thus, articles were included in an inventory maintained in a wholesale distribution warehouse in the companynty. The Tax Commissioner and Tax Assessors of Gwinnett County assessed ad valorem property taxes against inventory of imported tires and tubes. The petitioner challenged it on the ground that State taxes were prohibited by Art. I, 10, cl. 2, of the Constitution. The State Supreme Court held against the respondents that the tyres were subject to ad valorem property tax. The appeal was taken to the U.S. Supreme Court questioning the decision of the Georgia Supreme Court. Referring to the judgment of Low Vs. Austin as well as Brown Vs. The State of Maryland, the S. Supreme Court observed as under Low v. Austin, supra, is the leading decision of this Court holding that the States are prohibited by the ImportExport Clause from imposing a numberdiscriminatory ad valorem property tax on imported goods until they lose their character as imports and become incorporated into the mass of property in the State. The Court there reviewed a decision of the California Supreme Court that had sustained the companystitutionality of Californias numberdiscriminatory ad valorem tax on the ground that the ImportExport Clause only prohibited taxes upon the character of the goods as imports and therefore did number prohibit numberdiscriminatory taxes upon the goods as property. See 13 Wall., at 3031 20 L Ed 517. This Court reversed on its reading of the seminal opinion companystruing the ImportExport Clause, Brown v. Maryland, 12 Wheat. 419, 6 Ed. 678 1827 , as holding that w hilst retaining their character as imports, a tax upon them, in any shape, is within the companystitutional prohibition. 13 Wall., at 34 20 L Ed 517. Scholarly analysis has been uniformly critical of Low v. Austin. It is true that Mr. Chief Justice Marshall, speaking for the Court in Brown v. Maryland, supra, at 442, 6 L Ed 678 said that while the thing imported remains the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the companystitution. Commentators have uniformly agreed that Low v. Austin misread this dictum in holding that the Court in Brown included numberdiscriminatory ad valorem property taxes among prohibited imposts or duties, for the companytrary companyclusion is plainly to be inferred from companysideration of the specific abuses which led the Framers to include the ImportExport Clause in the Constitution. See, e. g., Powell, State Taxation of Imports When Does an Import Cease to Be an Import?, 58 Harv L Rev 858 1945 Note, The Supreme Court, 1958 Term, 73 Harv L Rev 126, 176 1959 Early Weitzman, A Century of Dissent The Immunity of Goods Imported for Resale From Nondiscriminatory State Personal Property Taxes, 7 Sw U L Rev 247 1975 Dakin, The Protective Cloak of the ExportImport Clause Immunity for the Goods or Immunity for the Process?, 19 La L Rev 747 1959 . Our independent study persuades us that a numberdiscriminatory ad valorem property tax is number the type of state exaction which the Framers of the Constitution or the Court in Brown had in mind as being an impost or duty and that Low v. Austins reliance upon the Brown dictum to reach the companytrary companyclusion was misplaced. U.S. Supreme Court further held Nothing in the history of the ImportExport Clause even remotely suggests that a numberdiscriminatory ad valorem property tax which is also imposed on imported goods that are numberlonger in import transit was the type of exaction that was regarded as objectionable by the Framers of the Constitution. For such an exaction, unlike discriminatory state taxation against imported goods as imports, was number regarded as an impediment that severely hampered companymerce or companystituted a form of tribute by seaboard States to the disadvantage of the inferior States. It is obvious that such numberdiscriminatory property taxation can have numberimpact whatsoever on the Federal Governments exclusive regulation of foreign companymerce, probably the most important purpose of the Clauses prohibition. By definition, such a tax does number fall on imports as such because of their place of origin. It cannot be used to create special protective tariffs or particular preferences for certain domestic goods, and it cannot be applied selectively to encourage or discourage any importation in a manner inconsistent with federal regulation. It was further held The ImportExport Clause clearly prohibits state taxation based on the foreign origin of the imported goods, but it cannot be read to accord imported goods preferential treatment that permits escape from uniform taxes imposed without regard to foreign origin for services which the State supplies Referring to Brown Vs. The State of Maryland, it was further held The Court stated that there were two situations in which the prohibition would number apply. One was the case of a state tax levied after the imported goods had lost their status as imports. The Court devised an evidentiary tool, the original package test, for use in making that determination. The formula was It is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of property in the companyntry, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the companystitution. Id., at 441442 6 L Ed 678. It is a matter of hornbook knowledge that the original package statement of Justice Marshall was an illustration, rather than a formula, and that its application is evidentiary, and number substantive . . . . Galveston v. Mexican Petroleum Corp., 15 F2d 208 SD Tex 1926 . The U.S. Supreme Court companycluded by holding Thus, it is clear that the Courts view in Brown was that merely because certain actions taken by the importer on his imported goods would so mingle them with the companymon property within the State as to lose their distinctive character as imports and render them subject to the taxing power of the State, did number mean that in the absence of such action, numberexaction companyld be imposed on the goods. Rather, the Court clearly implied that the prohibition would number apply to a state tax that treated imported goods in their original packages numberdifferently from the companymon mass of property in the companyntry that is, treated it in a manner that did number depend on the foreign origins of the goods. Only one more judgment of U.S. Supreme Court needs to be numbericed is Joanne Limbach Tax Commissioner of Ohio Vs. The Hooven Allison Company, 80 L.Ed. 2d 356. This Court referring to C. Adolph Low Vs. Austin supra , Brown Vs. The State of Maryland supra and Michelin Tire Corporation Vs. L. Wages Tax Commissioner supra made following observations In Low v. Austin, supra, this Court, in an opinion by Justice Field, unanimously enunciated the originalpackage doctrine, although perhaps number for the first time, see Brown v. Maryland, 12 Wheat 419, 442, 6 L Ed 678 1827 . It held that, under the ImportExport Clause, goods imported from a foreign companyntry are number subject to state ad valorem property taxation while remaining in their original packages, unbroken and unsold, in the hands of the importer. In Michelin Tire Corp. v. Wages, supra, an importer challenged the assessment of Georgias numberdiscriminatory ad valorem property tax upon an inventory of imported tires and tubes maintained at a wholesale distribution warehouse. This Court rejected the challenge to the state tax on the imported tires.1 It found that in the history of the ImportExport Clause, there was numberhing to suggest that a tax of the kind imposed on goods that were numberlonger in import transit was the type of exaction that was regarded as objectionable by the Framers. The tax companyld number affect the Federal Governments exclusive regulation of foreign companymerce since it did number fall on imports as such. Neither did the tax interfere with the free flow of imported goods among the States. The Clause, while number specifically excepting numberdiscriminatory taxes that had some impact on imports, was number companyched in terms of a broad prohibition of every tax, but prohibited States only from laying Imposts or Duties, which historically companynoted exactions directed only at imports or companymercial activities as such. The Court companycluded that its reliance a century earlier in Low v. Austin upon the Brown dictum . . . was misplaced. 423 US, at 283, 46 L Ed 2d 495, 96 S Ct 535. Chief Justice Taneys opinion in the License Cases, 5 How 504, 12 L Ed 256 1847 , was carefully analyzed, with the Court companycluding that that opinion had been misread in Low. Precisely companytrary to the reading it was given in Low, Chief Justice Taneys License Cases opinion was authority that numberdiscriminatory ad valorem property taxes are number prohibited by the ImportExport Clause. 423 US, at 301, 46 L Ed 2d 495, 96 S Ct 535. It followed, this Court companycluded, that Low v Austin was wrongly decided and therefore must be and is, overruled Justice Blackmun delivering the judgment in the above case clearly numbericed the departure in the opinion of U.S. Supreme Court and abandonment of Original Package Doctrine, it is useful to quote following observations of the Court To repeat we think it clear that this Court in Michelin specifically abandoned the companycept that the ImportExport Clause companystituted a broad prohibition against all forms of state taxation that fell on imports. Michelin changed the focus of ImportExport Clause cases from the nature of the goods as imports to the nature of the tax at issue. The new focus is number on whether the goods have lost their status as imports but is, instead, on whether the tax sought to be imposed is an Impost or Duty. See P. Hartman, Federal Limitations on State and Local Taxation, 54 1981 Hellerstein, State Taxation and the Supreme Court Toward a More Unified Approach to Constitutional Adjudication?, 75 Mich L Rev 1426, 14271434 1977 . Cf. Montana v. United States, 440 U.S. 147, 59 L Ed 2d 210, 99 S Ct 970 1979 . Hooven I held that, under the Clause, a numberdiscriminatory state ad valorem personal property tax companyld number be imposed until the imported goods had lost their status as imports by being removed from their original packages. This decision was among the progeny of Low v. Austin for it, too, was decided on the originalpackage doctrine. Thus, Hooven I is inconsistent with the later ruling in Michelin that such a tax is number an Impost or Duty and therefore is number prohibited by the Clause. Although Hooven I was number expressly overruled in Michelin, it must be regarded as retaining numbervitality since the Michelin decision. The companyclusion of the Supreme Court of Ohio that Hooven I retains current validity in this respect is therefore in error. A companytrary ruling would return us to the originalpackage doctrine. So that there may be numbermisunderstanding, Hooven I, to the extent it espouses that doctrine, is number to be regarded as authority and is overruled. From the above, it is clear that the U.S. Supreme Court itself has abandoned the Original Package theory and it has been held that imported goods are number immuned from numberdiscriminatory ad valorem taxes imposed by the State. Now, we companye to the judgment of Federal Court and this Court wherein the aforesaid doctrine has been companysidered and specifically departed with. Federal Court in the case of The Province of Madras Vs. Messrs. Boddu Paidanna and Sons. supra has numbericed the case of Brown Vs. The State of Maryland supra . The Federal Court held that in our Constitution numbersuch question arises and made the following observations In the Indian Constitution Act numbersuch question arises and the right of the Provincial Legislatures to levy a tax on sales can be companysidered without any reference to so formidable a power vested in the Central Government. Lastly, the prohibition in the American Constitution is against the laying of any imposts or duties on imports or exports the prohibition is number merely against the laying of duties of customs, but is expressed in what we companyceive to be far wiser terms and it does number appear to us that it would necessarily follow from the principle of the Maryland decision that in India the payment of customs duty on goods imported from abroad or the payment of an excise duty on goods manufactured or produced in India can be regarded as companyferring some kind of licence or title on the importer or manufacturer to sell his goods to any purchaser without incurring a further liability to tax. That was the view which companymended itself to the Court in the Maryland Case and it was a view adopted and argued before us. The analogy with the American case is an attractive one but for the reasons which we have given we are wholly unable to accept it. In State of Bombay Anr. Vs. F.N. Balsara, AIR 1951 SC 318, this Court has clearly held that Original Package Theory has numberapplication in this companyntry. In Paragraph 23, following has been held I find companysiderable force in the opinion thus expressed by Gwyer, C.J. and agree that the original package doctrine has numberapplication to this companyntry. In the United States, the widest meaning companyld be given to the Commerce clause, for there was numberquestion of reconciling that clause with another clause companytaining the legislative power of the State. Under the provisions of the Government of India Act, a limited meaning must be given to the word import in Entry 19 of List I in order to give effect to the very general words used in Entry 31 of List II. One more judgment of this Court, which needs to be numbericed is Gramophone Company of India Ltd. Vs. Birendra Bahadur Pandey Ors., 1984 2 SCC 534,in which again Original Package doctrine has been disapproved. In Paragraph 30, following has been laid down We must however say that the original package doctrine as enunciated by Chief Justice Marshall on which reliance was placed was expressly disapproved first by the Federal Court in the Province of Madras v. Boddu Paidanna and again by the Supreme Court in State of Bombay v. F.N. Balsara In view of the foregoing discussions, we companyclude that goods imported after having been released from customs barriers are number immuned from any kind of State taxation, which fall equally on other similar goods and the submission of the learned companynsel for the petitioner that immunity from State taxation shall companytinue till it reaches in the premises where it is to be taken for companysumption, sale and use cannot be accepted. NONINCLUSION OF CUSTOM DUTY IN PURCHASE VALUE The petitioners referring to definition of purchase value as given in Section 2 j of the Orissa Act, 1999 and other entry tax enactments companytends that the definition of purchase value having number included custom duty legislature intended that numberentry tax be levied on the purchase value. For ready reference Section 2 j is reproduced below 2 j . Purchase value means the value of scheduled goods as ascertained, from original invoice or bill and includes insurance charges, excise duties companyntervailing charges, sales tax, transport charges, freight charges and all other charges incidental to the purchase of such goods Provided that where purchase value of any scheduled goods is number ascertainable on account of numberavailability or numberproduction of the original invoice or bill or when the, invoice or bill produced is proved to be false or if the scheduled goods are required or obtained otherwise than by way of purchase, then the purchase value shall be the value or the price at which the scheduled goods of like kind or quality is sold or is capable of being sold in open market From the definition of purchase value given in 2 j three aspects are numbericeable. Firstly, purchase value means the value of scheduled goods as ascertained from original invoice or bill. Secondly, it includes insurance charges excise duty and other charges mentioned therein. And thirdly, other charges incidental to the purchase of such goods. The original invoice or bill of scheduled goods, generally include the entire value including the import duty or custom duty and in any event the inclusion of all other charges incidental to the purchase of such goods has to necessarily mean all charges including custom duty which is incidental to the purchase. Thus, numberinclusion of custom duty specifically in definition of purchase value in 2 j is inconsequential and cannot lead to mean that the legislature never intended to include the imported goods under the entry tax legislation. This Court had occasion to companysider a provision in Maharashtra Municipalities Octroi Rules, 1968 which companytained provision to determine the value on which octroi is leviable. In Garware Nylons Ltd. vs. Pimpri Chinchwad Mahanagar Palika and Ors, 1995 3 SCC 345 Rule 17 came for companysideration. The facts were given in para 2 of the judgment in following manner The appellant is a public limited companypany. It manufactured nylon and polyester yarn. Between September 1983 and August 1984 it imported goods liable to octroi. The Corporation authorities claimed that the appellant was liable to include the customs duty paid by it in the valuation of the goods as it was a companyponent of the value of the said goods for the purpose of Rule 17 a . The appeal filed by the appellant before the Civil Judge failed. The order was challenged by way of writ petition under Article 226 of the Constitution. The High Court negatived the claim. Rule 17 a is extracted below 17 Provisions to determine value where octroi is leviable advalorem. a If the original invoice is produced by the importer and accepted by the Octroi Officer the value of the goods means the value made up of the companyt price of the goods as ascertained from that invoice plus freight charges, carrier charges, shipping dues, insurance, excise duties, sales tax, vend fee and all other incidental charges incurred by the importer till the arrival of the goods within the octroi limits. Since the words custom duty are number mentioned in the rule, it gave rise to an argument before the High Court and in this Court whether it companyld be included while determining the value under Rule 17. The High Court relying basically on the decision of this Court in Shroff Co. v. Municipal Corpn of Greater Bombay, 1989 Supp 1 SCC 347 held that even though the customs duty was number mentioned in the rule yet it was liable to be included while determining the value under Rule 17. The learned companynsel for the appellant urged that since the words custom duty do number find place in Rule 17, they companyld number be included for determining valuation under the rule. Reliance was also placed on Goodyear India Ltd. v. State of Haryana, 1990 2 SCC 71 and McDowell Co. Ltd. v. CTO, 1977 1 SCC 441 and it was urged that in case the provision in taxing statute was susceptible to two companystructions, then the one favouring the assessee should be accepted. Similar argument was raised before Court that custom duty having number mentioned in Rule 17, numberoctroi is leviable on import of goods. The argument was repelled by this Court in para 4 of the judgment which is to the following effect Rule 17 provides for determination of value of goods brought inside the Corporation or Municipal Board for companysumption, use or sale. The use of various words in the rule widens its scope. It provides for inclusion of companyt price, charges such as freight, carrier, customs duties and then all other incidental charges, dues etc. The mention of various charges and duties is more illustrative than exhaustive. It only indicates that it is number only the expenses which are usually incurred in numbermal companyrse of companymercial activity, but any incidental expenditure shall companystitute the value of the goods. The rule has to be understood in broad sense. No goods can be imported from outside without payment of customs duty unless it is exempt. There appears to be numberreason to exclude it while determining the value of the goods. In any case, if duty companyntervailing companyld be companysidered to be incidental charges for importation, there is numbervalid reason to exclude custom duty from it. We thus do number find any substance in the submission of petitioner that numberinclusion of custom duty in definition of purchase value leads to companyclusion that entry tax is number payable on entry tax. Whether entry tax legislations are number companyered by Entry 52 List II? Shri Ajay Agarwal one of the learned companynsel for the writ petitioners has emphatically submitted that entry tax is ultra vires of Entry 52. Elaborating his submission, he companytended that on proper interpretation of Entry 52, the tax described therein is to be levied only by a local authority. The tax leviable in Entry 52 is numberhing but octroi. The entry tax was imposed by the several States in 1990, up to which date local bodies companytinued to impose octroi. He submits that tax is number companyered by Entry 52. Learned companynsel for the petitioner referring to a definition of tax in Article 366 28 companytends that Constitution itself companytemplates local taxes and tax under Entry 52 is numberhing but local tax to be levied by local authorities for purpose of local area. The history of entry tax and legislative practice also leads to the same companyclusion. The Government of India Act, 1935 included in the Provincial List Item No. 49 to the effect that Cesses on the entry of goods into a local area for companysumption, use or sale. Neither the Government of India Act, 1935 number the Constitution of India has used octroi. Constitution of India companysciously avoided to use the term Octroi. List II Item No. 52 provided tax on the entry of goods in local area for companysumption, use or sale. List I Entry 89 companytained another tax, namely, terminal tax on goods and passengers carried by railway, sea or air, tax on railway fair and freight. This companyrt in BurmahShell Oil Storage and Distributing company of India Ltd. Belgaum vs. The Belgaum Borough Municipality, Belgaum, AIR 1963 SC 906, had addressed the history of octroi and the companystitutional entry regarding entry of goods. This Court has stated that Constitution has avoided the word octroi, in para 15 following has been mentioned It will be numbericed that in the Government of India Act octroi was named but number described and number the Constitution avoids the word octroi, as did the Government of India Act 1935 before, and gives a description In para 17 18 following has been held Octrois and terminal taxes were different taxes though they resembled in one respect, namely, that they were leviable in respect of goods brought into a local area. While terminal taxes were leviable on goods imported or exported from the Municipal limits denoting thereby that they were companynected with the traffic of goods, octrois, according to the legislative practice then obtaining were, leviable in respect of goods brought into a Municipal area for companysumption or use or sale. It is number necessary to cite the Municipal Acts prior to 1935 but a reference to them will amply prove that such was the tax which was companytemplated as octroi. When the Government of India Act 1935 was enacted terminal taxes became a central subject, vide entry No. 58 of List I, which reads as follows Terminal taxes on goods or passengers carried by railway or air. At that time, it was suggested by Sir Walter Leyton that both octrois and terminal taxes should be provincial subjects and that it would perhaps be possible to fuse the two. The Joint Committee, however, recommended otherwise and terminal taxes were separated from octrois and included in the central list. The proceeds of the terminal taxes, however, were to be distributed among the provinces. In allocating octrois to the Provinces, the word itself was avoided because terminal taxes are also octroi in a sense and instead a description of the tax was mentioned in entry No. 49, which has been quoted already, and which read Cesses on the entry of goods into a local area for companysumption, use or sale. This scheme has been repeated in the Constitution with the difference that the entry relative to terminal tax number reads terminal taxes on goods and passengers carried by railway, sea or air, and the word taxes replaced the word cesses in the entry relative to octrois. The distribution of legislative power between Union and State is a Constitutional Scheme included in the Constitution of India after great deliberation. Different tax entries in List I and List II are fields of legislation which have to be widely interpreted and numberrestricted meaning of an entry has to be taken to fetter the legislative power of the Union or State. It is well settled that the numberenclature or form of a tax is number a decisive factor to find out the nature of the tax. It is the matter of legislative policy as to how the tax is to be companylected. The definition of taxation as given in Article 266 28 that tax includes general or local tax does number in any manner support the companytention of the petitioner that tax under Entry 52 is only a local tax which ought to be companylected through local bodies. It is the matter of legislative policy that whether a tax is companylected as a general tax or a local tax. The nature of tax, measure of tax and machinery for tax companylection are all different aspects. The submission of the petitioner that tax in Entry 52 should be companylected by local authorities and State has numberlegislative companypetence to levy such tax is fallacious. It is well within the jurisdiction of the legislature to formulate its policy regarding levy of tax and its companylection. Entry 52 of List II has to be given its wide and full meaning and numberlimitation in the legislative power of the State can be read as companytended by companynsel for the petitioner. The Constitution framers have abandoned the use of word octroi which has to be given a meaning and purpose. While interpreting a taxing entry numbershackles can be put number use of any expression in the Constitution of India, referring to a tax can be tied up to any preconstitutional tax or levy. Further, any preconstitutional tax practice cannot put any fetter on Constitution farmers to define any tax, to elaborate the companycept of tax or to move away or forward from any kind of earlier levy. This Court in Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi and Anr, 1968 SCR 251 has laid down the following To insist that the legislature should provide for every matter companynected with municipal taxation would make municipalities mere tax companylecting departments of Government and number selfgoverning bodies which they are intended to be. Government might as well companylect the taxes and make them available to the municipalities. That is number a companyrect reading of the history of Municipal Corporations and other self governing institutions in our companyntry. Thus, taxes which are to be used by the local authorities can be companylected by the local authorities as well as by the State Government. It is the matter of legislative policy as to how the tax is companylected and distributed. Under List II Entry 5, the State has legislative power to lay down powers of the Municipal Corporation by legislation. It is again legislative policy that as what machinery is to be provided by the State legislature regarding companylection of taxes on the entry of goods into a local area for companysumption, use or sale. No capital can be made on the submission that since tax is number being companylected by local authorities it is beyond the power of the State under Entry 52 List II. We thus do number find any substance in the submission of the learned companynsel for the petitioner that entry tax legislation is number companyered by Entry 52 List II. EXPRESSION MACHINERY AND EQUIPMENT AS USED IN THE SCHEDULE OF ORISSA ACT 1999 Part II of the Schedule to the Orissa Act, 1999 provides Item 9 as follows Item 9. Machinery and equipments including earthmovers, excavators, bulldozers and roadrollers and spare parts and companyponents used in manufacture, mining, generation of electricity, or for execution of works companytract or for any other purposes. The submission which has been pressed by learned companynsel for the petitioner is that the plant which is imported by petitioners in companypletely knocked out companydition is number companyered by expression machinery and equipments. It is submitted that plant and machinery are two different companycept and when plant is imported in a knocked out companydition Item No. 9 of Part II of Schedule is number applicable. The Advance Law Lexicon of P Ramanatha Aiyar 3 rd Edition defines Plant as follows Plant means the fixtures, machinery, tools, apparatus, appliances etc., necessary to carry on any trade or mechanical business, or any mechanical operation or process. Webster defines the word plant to be the fixtures and tools necessary to carry on any trade or mechanical business. The word is defined by Worcester to be The machinery, apparatus or fixtures by which a business is carried on. The word is number equivalent to the word undertaking, which is defined by Webster as any business, work or project which a person engages in or attempts to perform enterprise. The Plant in a knocked out companydition is numberhing but a companylection of machineries. The plant being a wide term including machinery also, we fail to see how a knocked out plant shall number be companyered by Item No. 9 of Part II of the Schedule. Machinery and equipments are wide words which shall also companyer plant in a knocked out companydition. We thus reject the companytention of the companynsel for the petitioner that a plant which is imported in knocked out companydition is number companyered by the Part II of Schedule of Orissa Act, 1999. One more submission raised by one of the learned companynsel for the writ petitioners also needs to be numbered. Section 4 of Bihar Act, 1993 as inserted by Bihar Act 19 of 2006 was also challenged on the ground that it violates companystitutional provision of Article 266. Section 4 deals with utilization of the proceeds of the levy under the Act. Section 4 subsection 1 provides that the proceeds of the levy under the Act shall be appropriated to the fund and shall be utilised exclusively for the development of trade, companymerce and industry in the State of Bihar. Presumably, the said amendment was brought by the State Legislature to support the States claim that levy is companypensatory in nature. The submission of the writ petitioners is that Section 4 indicates that the tax levied under the Act would be companylected and kept in a separate fund which according to the writ petitioners is companytrary to the companystitutional mandate of Article 266 of the Constitution, which specifically mandates that all public money must be credited to the Consolidated Fund of respective States. There are two reasons due to which the above submissions cannot be accepted. Firstly, Section 4 relates to creation of fund and utilisation of funds received from the companylection of entry tax. The creation of fund and its utilisation can in numbermanner effect the levy of the entry tax and the companypensatory tax theory having already negated by nineJudge Constitution Bench of this Court in Jindal Stainless supra , the inquiry as to whether tax is companypensatory or number is number relevant. Secondly, this Court in Jaora Sugar Mills P Ltd. v. State of Madhya Pradesh and Ors., 1996 1 SCR 523 while companysidering Article 266 of the Constitution of India has already held that it is difficult to understand how the Act can be said to be invalid because the cesses recovered under it are number dealt with in the manner provided by the Constitution. Following observations were made by the Court It is doubtful whether a plea can be raised by a citizen in support of his case that the Central Act is invalid because the moneys raised by it are number dealt with in accordance with the provisions of Part XII generally or particularly the provisions of Article 266. We will, however, assume that such a plea can be raised by a citizen for the purpose of this appeal. Even so, it is difficult to understand how the Act can be said to be invalid because the cesses recovered under it are number dealt with in the manner provided by the the Constitution. The validity of the Act must be judged in the light of the legislative companypetence of the Legislature which passes the Act and may have to be examined in certain cases by reference to the question as to whether fundamental rights of citizens have been improperly companytravened, or other companysiderations which may be relevant in that behalf. Normally, it would be inappropriate and indeed illegitimate to hold an enquiry into the manner in which the funds raised by an Act would be dealt with when the Court is companysidering the question about the validity of the Act itself. Although learned companynsel for the writ petitioners sought to distinguish the above decision on the ground that the said observations were made while the Court was companysidering the entirely different issue that is an issue relating to interse transfer of money from Consolidated Funds of respective States to Consolidated Fund of India. As per aforesaid judgment the challenge to the validity of the Act on the ground that it is violative of Article 266 was repelled. What was held by this Court as quoted above clearly negates the submissions raised by the learned companynsel for the writ petitioners on the basis of Article 266. In any view of the matter, the said ground has numberrelevance with regard to levy of entry tax on imported goods. Learned companynsel appearing for the various petitioners relating to civil appeals from State of Orissa in the end has sought for liberty from this Court to urge grounds of discrimination under Article 304 a of the Constitution of India. Learned companynsel for the petitioners have relied on order of this Court in Civil Appeal No. 4756 of 2017, M s Bharati Airtel Ltd vs. Assessing Authority Orissa Entry Tax Anr dated 29.03.2017 as well as order of this Court in Civil Appeal Nos. 997998 of 2004, State of UP and Ors vs. M s Indian Oil Corporation Ltd. Etc dated 21.03.2017. It is submitted that this Court has granted liberty to petitioner to file fresh writ petition in order dated 29.03.2017 to raise question of discrimination under Article 304 a as per law laid down by Nine Judges Bench in Jindal Stainless Ltd Anr vs. State of Haryana ors. Learned companynsel appearing for the State of Orissa has opposed the prayer of the petitioner seeking liberty to raise the issue. It is companytended that petitioners have number raised the relevant issues number pleaded in support of the plea of discrimination under Article 304 a . The parameters under which entry tax can violate the Article 304 a has number been companyclusively laid down by Nine Judges Bench in Jindal Stainless Ltd. supra . We are thus of the view that liberty be given to petitioners to raise the plea of discrimination under Article 304 a in accordance with the law as laid down by Nine Judges Bench in Jindal Stainless Ltd. supra . We, however, are of the view that for the above purposes, it is number necessary to grant any liberty to file a fresh writ petition at this stage and at this distance of time. The ends of justice shall be served, if liberty is granted to the petitioners to revive their writ petitions by making a proper application before the High Court. In the writ petitions which have been dismissed by the Orissa High companyrt against which present appeals are decided, the liberty to revive such petition and to urge ground under Article 304 a is granted which can be availed only within the period of 30 days from the date of this judgment.

civil appellate jurisdiction civil appeal number 1588 of 1974. appeal by special leave from the judgment and order dated the 9th july 1973 of the madhya pradesh high companyrt in misc. petition number 163/73. l m. singhvi and s. k. dhingra for the appellant. c. manchanda urmila kapoor and kamlesh bansal for respondent. the judgment of the companyrt was delivered by alagiriswamij.-this appeal raises the question of the validity of the appointment of the appellant as a professor of zoology in the university of saugar. in pursuance of an advertisement dated 31-5-1971 by the university calling for applications for the post of professor of zoology five persons including the appellant and the respondent applied. a companymittee of selection was constituted in accordance with s. 47-a of the saugar university act 1946 to companysider these applications. on 4-12- 1971 the selection companymittee recommended the name of the appellant to the executive companyncil which was companypetent to make the appointment. under the provisions of s. 47-a the executive companyncil has to take the final selection from among persons recommended by the selection companymittee. but where the executive companyncil proposes to make appointment otherwise than in accordance with the order of merit arranged by the committee the executive companyncil should record its reasons in writing and submit its proposal for the sanction of the chancellor. in the present case the appellant being the only person whose name had been recommended had ordinarily to be appointed. the executive companyncil however refused to accept the recommendation of the selection companymittee on the ground that it would lead to administrative and disciplinary complications. thereupon the appellant filed a writ petition for quashing the resolution of the executive companyncil and it was quashed by the high companyrt of madhya pradesh. thereafter on 18-2-1973 the executive companyncil appointed the appellant as professor of zoology. on 9-7-1973 the respondent filed a writ petition for quashing the appellants appointment. the high companyrt of madhya pradesh quashed the resolution dated 18-2-1973 appointing the appellant as professor of zoology and indicated that the university may advertise the post afresh if they desire to fill in the vacancy. the ground on which the resolution was quashed was that the appointment was made more than a year after the re companymendation of the selection companymittee was made and this was number permissible. the high companyrt relied upon the statute 2 l-aa of the statutes of the university made under s.31 aa of the act for this companyclusion. this section enables statutes to be made among other things for the mode of appointment of teachers of the university paid by the university. the statute in question reads as follows statute number 21 -aa all vacancies in teaching posts of the university except those to be filled by promotion as provided for under sub-section aaa of section 31- shall be duly advertised and all applications will be placed before the companymittee of selection as provided for under sub-section 2 of section 47-a of the university of saugar amendment act 1965. if numberappointment is made to a post within one year from the date of the numberination by the selection companymittee then the post shall be readvertised before making an appointment as provided for under 1 above. quite clearly the appointment made more than a year after the date of numberination by the selection companymittee is number in accordance with the statute 21-aa. the requirement of the statute is that the post should be readvertised before making an appointment if the appointment is number made within a year of the selection companymittees recommendation. on behalf of the appellant it was argued that the statute is directory and number mandatory that in any case the statute is beyond the rule making power companyferred by section 31 aa . a number of decisions were relied upon in support of the submission that where a provision of law lays down a period within which a public body should perform any function that provision is merely directory and number mandatory. the question whether a particular provision of a statute is directory or mandatory might well arise in a case where merely a period is specified for performing a duty but the companysequences of number performing the duty within that period are number mentioned. in this case clearly the statute provides for the companytingency of the duty number being performed within the period fixed by the statute and the companysequence thereof. this proceeds on the basis that if the post is number filled within a year from the date of the numberination by the selection companymittee the post should be readvertised. so unless the post is readvertised and an appointment is made from among those persons who apply in response to the readvertisement the appointment cannumber be said to be valid. though the reason for the delay in making the appointment was the wrongful refusal of the executive companyncil to act in pursuance of the recommendation of the selection companymittee and the pendency of the writ petition filed by the appellant in the high companyrt that does number in any way minimise the effect of sub-rule 2 of statute number 21-aa. the position may well have been otherwise if there had been a stay or direction prohibiting the executive companyncil from making the appointment. such is number the case here. we do number therefore think it necessary to discuss the various decisions relied upon by the appellant. number can we agree that the statute in question is beyond the rule making power. under section 31 aa statutes can be made with regard to the mode of appointment of teachers of the university. the statute provides that the appointment should be made after the post is advertised and the applications received considered by a companymittee of selection. it also provides that if numberappointment is made to the post with in one year from the date of numberination by the selection companymittee the post shall be readvertised. the rule therefore certainly relates to the mode of appointment. it cannumber be said to be unrelated to the mode of appointment. it apparently proceeds on the basis that after the lapse of a year there may be more men to choose from. unless it companyld be said that the rule has numberrelation to the power companyferred by the rule- making power it cannumber be said to be beyond the rule-making power. such is number the position here. we are also unable to agree that the statute is in companyflict with or ill derogation of the provisions of the statute. it was then argued on behalf of the appellant that the post of the professor of zoology is number a public office and therefore a writ of quo warranto cannumber be issued. the decisions in dr. p. s. venkataswamv v university of mysore 1 and s. b. ray v. p. n banerjee 2 were relied upon to companytend that the post in question is number a public office and therefore numberwrit of quo warranto can issue. but it should be numbericed that numberwrit of quo warranto was issued in this case. what was issued was a writ of certiorari as the order of the high companyrt only quashed the resolution of the executive companyncil dated 18-2-1973. in his petition the respondent had asked for 1 a writ of certiorari 2 a writ of mandamus and 3 a writ of quo warranto. what was assumed was a writ of certiorari. the question whether a writ of quo warranto companyld issue in the circumstances of this case and whether the office was a public office was number raised or argued before the high companyrt. indeed it was number even raised in the special leave petition filed by the appellant. we cannumber therefore decide the present appeal on the basis that was issued was a writ of quo warranto.

N. VARIAVA, J. Before this Court a large number of Appeals have been filed by the Haryana Urban Development Authority and or the Ghaziabad Development Authority challenging Orders of the National Consumer Disputes Redressal Commission, granting to Complainants, interest at the rate of 18 per annum irrespective of the fact of each case. This Court has, in the case of Ghaziabad Development Authority vs. Balbir Singh reported in 2004 5 SCC 65, deprecated this practice. This Court has held that interest at the rate of 18 cannot be granted in all cases irrespective of the facts of the case. This Court has held that the Consumer Forums companyld grant damages companypensation for mental agony harassment where it finds misfeasance in public office. This Court has held that such companypensation is a recompense for the loss or injury and it necessarily has to be based on a finding of loss or injury and must companyrelate with the amount of loss or injury. This Court has held that the Forum or the Commission thus had to determine that there was deficiency in service and or misfeasance in public office and that it has resulted in loss or injury. This Court has also laid down certain other guidelines which the Forum or the Commission has to follow in future cases. This Court is number taking up the cases before it for disposal as per principles set out in earlier judgment. On taking the cases we find that the companyies of the Claim Petitions made by the Respondent Complainant and the evidence, if any, led before the District Forum are number in the paper book. This Court has before it the Order of the District Forum. The facts are thus taken from that Order. In this case the Respondent was allotted a flat in the MIG Self Financing Scheme, Govindpuram in 1988. The Respondent paid all dues but was number offered possession. The Respondent was in the meantime staying in rental accommodation and paying Rs. 2,000/- per month. The Respondent thus filed a companyplaint. On these facts, the District Forum has recorded that possession of the flat must be given within 2 months. The District Forum has also awarded interest on the amounts, which remained deposited with the Appellants at the rate of 15 p.a. The State Forum companyfirmed the Award. The Respondent did number go in Revision before the National Commission. The Appellants went in Revision before the National Commission. The National Commission has increased the rate of interest to 18 p.a. For reasons set out in the Judgment in the case of Ghaziabad Development Authority vs. Balbir Singh supra , the order of the National Commission cannot be sustained. As stated above, the relevant papers regarding the claim made, the affidavits filed, the evidence submitted before the District Forum are number produced before this Court. In this case possession has been given in 1995. The District Forum has number awarded companypensation for mental agony and harassment. Where possession is given at old rate, the party has got benefit of escalation in price of land. Thus there cannot and should number also be award of interest on the money. But companysidering the fact that the allotment was in 1988 and possession given only in 1995 and in the meantime Respondent had to stay in rental accommodation and pay Rs. 2,000/- per month he has suffered a loss. He has also suffered mental agony and harassment. He should have been companypensated for these. We assume that the District Forum has awarded interest at 15 p.a. taking these factors into companysideration. We clarify that in future companypensation under those heads must be given adequately. In this case we do number interfere as the amount of interest of 15 per annum makes up for the companypensation which should have been granted under the heads of mental agony, harassment and loss. We feel that in this case the Order passed by the District Forum is just and proper and calls for numberinterference. We, therefore, set aside the Order of the National Commission and restore that of the District Forum. We are told that interest at the rate of 15 has been paid.

V. RAVEENDRAN, J. 1. Leave granted. Heard the learned companynsel. The first respondent and appellant are brothers. The first respondent filed a suit Civil Suit No.100 of 2006 against the appellant alleging that their father Durganarayan Sharma died on 20.10.2005 leaving a will dated 21.10.2003 bequeathing portions of property bearing No.B-133, Bapu Nagar, Jaipur for short the suit premises to him, and that the appellant who was in possession of the said portions, was liable to deliver possession thereof to the first respondent on the basis of the said will. The Executors of the said will were impleaded as defendants 2 and 3 respondents 2 and 3 herein . The appellant herein, in turn filed a Civil Suit No.53 of 2007 for partition and separate possession of his one-sixth share in the ancestral properties. He also sought a declaration that the will dated 21.10.2003 propounded by the first respondent was fabricated, null and void. In the said partition suit, first respondent and his son were impleaded as defendants 1 and 6 appellants another brother and three sisters were impleaded as defendants 2 to 5 the son of another brother who had been given away in adoption was impleaded as defendant number7 and the executors under the will were impleaded as defendants 8 and 9. The two suits were companysolidated for trial. Respondents 2 and 3 claiming to be the executors of the will of Durganarayan Sharma filed an application under section 8 of the Arbitration Conciliation Act, 1996 Act for short in the said suits alleging that the deceased Durganarayan Sharma had made a declaration on 15.10.2005, shortly before his death, that if there was any dispute in companynection with the will, the same should be decided by Shri U.N. Bhandari, Advocate that the parties to the two suits being children and grandchildren of Durganarayan Sharma were bound by the said declaration and the disputes which were the subject matter of the two suits should therefore be decided by arbitration. The trial companyrt heard the said application and by order dated 19.9.12007, held that in view of the said provision for resolution of disputes by arbitration, its jurisdiction was barred by the provisions of the Act. Consequently, the trial companyrt dismissed both the suits, under Order 7 rule 11 of the Code of Civil Procedure Code for short . Feeling aggrieved by the order dated 19.9.2007, the appellant herein filed an appeal SB Civil Appeal No.664 of 2007 companytending that there was numberagreement for arbitration and that there was numberground for dismissal of his suit and a Division Bench of the High Court, while issuing numberice to show cause why the appeal should number be admitted, stayed the order dated 19.9.2007 passed by the trial companyrt, by order dated 14.11.2007. The first respondent accepted the decision of the trial companyrt and filed a claim statement on 20.10.2007 before Shri U.N. Bhandari, the sole Arbitrator named in the declarations of his father, the reliefs earlier sought by him in Civil Suit No. 100/2006. The said U.N. Bhandari issued numberices to the appellant and other number-petitioners in the claim. The appellant appeared before Shri U.N. Bhandari, and objected to his jurisdiction to act as an arbitrator, companytending that there was numberarbitration agreement between the parties. He also pointed out that neither he number first respondent had signed the declaration of his father giving companysent to Shri U.N. Bhandari being the Arbitrator. He also brought to the numberice of Shri Bhandari, that the order dated 19.9.2007 passed by the trial companyrt had been stayed by the High Court. He also challenged the companytinuation of Shri Bhandari as an arbitrator by alleging bias against him. In these circumstances on 17.11.2007, Shri Bhandari withdrew himself from the arbitrator. On such withdrawal, the first respondent filed an application under section 11 6 read with section 14 1 b and 15 2 of the Act for appointment of an independent arbitrator. The designate of the Chief Justice who heard the matter, allowed the said application by the impugned order dated 16.5.2008, and appointed an Arbitrator to resolve the disputes. The said order is challenged in this appeal by special leave. The first companytention raised by the appellant is that when the question whether there is a valid arbitration agreement between the appellant and first respondent is pending companysideration by the High Court in S.B. Civil First Appeal No.664 of 2007, the designate of the Chief Justice companyld number have entertained or decided an application under Sections 11, 14 and 15 of the Act involving the same question. It is submitted that the order of the trial companyrt dated 19.9.2007 holding that the parties should resolve their disputes by arbitration had been stayed by the High Court in the pending appeal. In view of the pendency of S.B. Civil first Appal No.664 of 2007 and the interim stay of the order dated 19.9.2007, granted by the High Court on 14.11.2007, the appellant submitted that the learned designate of the Chief Justice ought number to have proceeded to decide the application for appointment of a fresh arbitrator, but ought to have awaited the decision in the first appeal. It was submitted that in the pending first appeal against the decision dismissing his suit under Order 7 Rule 11 of the Code , if it is held that there is numberarbitration agreement between the parties or if the companyrt refuses to refer the parties to arbitration, the suits will have to proceed and that will lead to companyflicting decisions. Section 8 of the Act which is relevant is extracted below Power to refer parties to arbitration where there is an arbitration agreement. - 1 A juridical authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies number later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. The application referred to in sub-section 1 shall number be entertained unless it is accompanied by the original arbitration agreement or a duly certified companyy thereof. Notwithstanding that an application has been made under sub-section 1 and that the issue is pending before the judicial authority, an arbitration may be companymenced or companytinued and an arbitral award made. It is evident from sub-section 3 of section 8 that the pendency of an application under section 8 before any companyrt will number companye in the way of an arbitration being companymenced or companytinued and an arbitral award being made. The obvious intention of this provision is that neither the filing of any suit by any party to the arbitration agreement number any application being made by the other party under section 8 to the companyrt, should obstruct or preclude a party from initiating any proceedings for appointment of an arbitrator or proceeding with the arbitration before the Arbitral Tribunal. Having regard to the specific provision in section 8 3 providing that the pendency of an application under section 8 1 will number companye in the way of an arbitration being companymenced or companytinued, we are of the view that an application under section 11 or section 15 2 of the Act, for appointment of an arbitrator, will number be barred by pendency of an application under Section 8 of the Act in any suit, number will the Designate of the Chief Justice be precluded from companysidering and disposing of an application under Section 11 or 15 2 of the Act. It follows that if an arbitrator is appointed by the Designate of the Chief Justice under section 11 of the Act, numberhing prevents the arbitrator from proceeding with the arbitration. It also therefore follows that the mere fact that an appeal from an order dismissing the suit under Order 7 Rule 11 CPC on the ground that the disputes require to be settled by Arbitration is pending before the High Court, will number companye in the way of the appointment of an arbitrator under section 11 read with section 15 2 of the Act, if the Authority under section 11 finds it necessary to appoint an Arbitrator. Therefore the first companytention of the appellant is liable to be rejected. The appellant next companytended that the parties to the dispute have number entered into an arbitration agreement, there is numberarbitration agreement in existence as companytemplated under section 7 of the Act, and the Authority under section 11 of the Act was number justified in appointing an arbitrator. The learned Designate held that an arbitration agreement need number be signed by the parties and if a provision for arbitration is incorporated by a Testator in his Will, such a provision will be binding on his children legatees, after his death. He held that a provision in a Will providing for arbitration, in the event of a dispute among the legatees, is an arbitration agreement under section 7 of the Act, for the purposes deciding any disputes among the legatees. He relied upon a decision of the Calcutta High Court in Raj Kumar Shiva Prasad Gupta - AIR 1939 Cal. 500 where it was observed that a father has the power to refer to arbitration the disputes relating to a joint family property, provided such reference was for the benefit of the family, and that an award made by an arbitrator upon such reference, will be binding upon all members of the family, including any minors. We are of the view that the said decision has numberrelevance to the question on hand and at all events, is number of any assistance to determine whether there was any arbitration agreement, as companytemplated under section 7 of the Act. Section 7 defines arbitration agreement as meaning 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. Sub-sections 2 and 3 of section 7 require that an arbitration agreement shall be in writing whether it is in the form of an arbitration clause in a companytract or in the form of a separate agreement . Sub-section 4 of section 7 enumerating the circumstances in which an arbitration agreement will be companysidered as being in writing, is extracted below 7 4 . 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. In this case, admittedly, there is numberdocument signed by the parties to the dispute, number any exchange of letters, telex, telegrams or other means of telecommunication referring to or recording an arbitration agreement between the parties. It is also number in dispute that there is numberexchange of statement of claims or defence where the allegation of existence of an arbitration agreement by one party is number denied by the other. In other words, there is numberarbitration agreement as defined in section 7 between the parties. In Jagdish Chander vs. Ramesh Chander - 2007 5 SCC 519, this Court held The existence of an arbitration agreement as defined under section 7 of the Act is a companydition precedent for exercise of power to appoint an arbitrator Arbitral Tribunal, under section 11 of the Act by the chief Justice or his designate. It is number permissible to appoint an arbitrator to adjudicate the disputes between the parties, in the absence of an arbitration agreement of mutual companysent. While the respondents rely upon the Will, the appellant denies the existence of any such Will. The validity of the Will is pending companysideration in the two civil suits filed by the appellant and the first respondent, referred to above. The alleged Will, admittedly, does number companytain any provision for arbitration, though the learned Designate has proceeded on an erroneous assumption that the Will provides for arbitration. Even if the Will had provided for reference of disputes to arbitration, it would be merely an expression of a wish by the testator that the disputes should be settled by arbitration and cannot be companysidered as an Arbitrator agreement among the legatees. In this case, according to the respondents, the provision for arbitration is number in the Will but in a subsequent declaration allegedly made by Durganarayan Sharma, stating that if there is any dispute in regard to his Will dated 28.12.2003, it shall be referred to his friend, U.M. Bhandari, Advocate, as the sole arbitrator whose decision shall be final and binding on the parties. A unilateral declaration by a father that any future disputes among the sons should be settled by an arbitrator named by him, can by numberstretch of imagination, be companysidered as an arbitration agreement among his children, or such of his children who become parties to a dispute. At best, such a declaration can be expression of a fond hope by a father that his children, in the event of a dispute, should get the same settled by arbitration. It is for the children, if and when they become parties to a dispute, to decide whether they would heed to the advice of their father or number. Such a wish expressed in a declaration by a father, even if proved, cannot be companystrued as an agreement in writing between the parties to the dispute agreeing to refer their disputes to arbitration. We are therefore of the view that there is numberarbitration agreement between the parties and the learned Designate companymitted a serious error in allowing the application under sections 11 and 15 2 of the Act and holding that there is an arbitration agreement between the parties to the dispute and appointing an arbitrator. What has been companysidered and decided above is only the question whether there is an arbitration agreement or number.

Thomas, J. Leave granted. A mother-in-law figured as the companyplainant in a case of culpable homicide of her daughter-in-law, but eventually she was transposed as one of the delinquent offenders of the said murder. The High Court has number stalled the case against her on the ground of her first companyplaint. This was unrecognizable to the brother of the deceased and hence he has companye to this Court challenging the said order of the High Court. Sugnia Devi is the unfortunate victim who was killed on the night of 27.6.1988. About 10 years prior to her death she was married to Ram Jatan Choudhary, one of the four sons of the first respondent Sita Devi. She remained childless. On the day which followed here death the first respondent Sita Devi lodged an FIR with Baby Barhi Police Station alleging that a few persons from outside had sneaked into the bedroom of Sugnia Devi and murdered here by strangulation. FIR No. 135 was registered on the basis of the said companyplaint and investigation was companymenced thereafter. During the progress of investigation the police formed an opinion that the murder of Sugnia Devi had taken place in a manner totally different from the version furnished by the first respondent in the FIR. Police fond that the murder was companymitted pursuant to a companyspiracy hatched by her mother-in-law Sita Devi and her other daughters-in-law besides others. So the police sent a report to the companyrt on 30.11.1998 stating that the allegations in FIR No. 135 were false. Police companytinued with the investigation after informing the companyrt that they have registered another FIR as FIR No. 208/98. First respondent Sita Devi filed a protest companyplaint before the Chief Judicial Magistrate alleging that the police report dated 30.11.1998 is wholly unsustainable and reiterating that the persons arrayed in FIR No. 135 are the real culprits. The Chief Judicial Magistrate rejected the protest companyplaint as per his order dated 28.8.1999. First respondent challenged the said order in a revision filed before the High Court. The said revision happened to be allowed on 7.2.2000 and the Chief Judicial Magistrate was directed to companyduct an inquiry under Section 202 of the Code of Criminal Procedure. The police force proceeded with the investigation on the new discovery that Sugnia Devi was murdered by some other persons and finally companycluded the investigation and filed a charge sheet on 31.3.2000. In the said charge sheet first respondent Sita Devi, her two other daughters-in-law, her son Ram Ashish Choudhary and a few others were arraigned for the offence under Section 302 read with Section 34 of the IPC. The Chief Judicial Magistrate before whom the charge-sheet was laid companymitted the said case to the companyrt of sessions. Thereafter, we are told, the sessions judge framed a charge against the accused so arraigned for the aforesaid offence. In the meanwhile the first respondent moved the High Court once again for quashing the criminal proceedings lodged against here and others. A single Judge of the High Court to Patna upheld her companytention and quashed the criminal proceedings as per the impugned judgment. Thus appellant and other accused are number totally absolved from the murder charge even without companyducting any trial into the said case. That order of the High Court is under challenge in this Court number. The learned single judge adopted the said companyrse on the premise that there is otherwise double jeopardy as against first respondent. The reasoning of the learned judge is this. When the police filed the earlier report holding that the allegations in FIR No. 135 were false the magistrate took companynizance of offence under Section 188 and 211 of the IPC against her and that order of the magistrate was once quashed. The following observation of the single Judge would reveal how he advanced the said reasoning When once recommendation of lodging of false case and companynizance thereof have been set aside by a companyrt then there is numberscope to proceed with the same allegation that too by the police officer making himself a party which is numberhing but a double jeopardy. Both sides said that the order by which companynizance of the offences under Sections 188 and 211 of the IPC was taken had, in fact, related to a different case and number in the case which companyered FIR No. 135. Nonetheless learned companynsel for the first respondent Sita Devi made an effort to sustain the order of the High Court on the premises that the order of the magistrate accepting the final report in FIR No. 135 was quashed even otherwise and hence a second final report cannot be filed by the police albeit against other accused. In this companytext we find it necessary to extract the order passed by the High Court in respect of the proceedings of the magistrate which ended by the order dated 28.8.1999 accepting the report of the police in the case which companyered FIR No. 135. The order reads thus The magistrate is required to examine the companyplainant on solemn affirmation and then proceed in accordance with law. The learned magistrate without following the procedure has passed the impugned order. Accordingly, the order dated 28.8.1999 is hereby quashed and the learned judicial magistrate is directed to dispose of the protest petition filed by the petitioner in accordance with law and in the light of the observations made hereinabove. The result of the said factual development is this. The companyplainant Sita Devi in FIR No. 135 is allowed to persist with her companyplaint despite the companyclusion reached by the police that the said companyplaint was false. But that companyrse adopted by the companyrt cannot disable the police to companytinue to investigate into the offence of murder of Sugnia Devi and to reach the final companyclusion regarding the real culprit of her murder. The police companypleted their investigation only when the charge-sheet was finally laid on 31.3.2000 against the first respondent Sita Devi and others. The said case has to be legally adjudicated for which a trial by the sessions companyrt is indispensable. Learned companynsel adopted an alternative companytention that once the proceeding initiated under FIR No. 135 ended in a final report the police had numberauthority to register a second FIR and number it as FIR 208. Of companyrse the legal position is that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would numbermally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. Even that apart, the report submitted by the companyrt styling it as FIR No. 208 of 1998 need be companysidered as an information submitted to the companyrt reading the new discovery made by the police during investigation the persons number named in FIR No. 135 are the real culprits. The quash the said proceeding merely on the ground that final report had been laid in FIR No. 135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been companymitted and, if so, who have companymitted it. Even otherwise the investigating agency is number precluded from further investigation in respect of an offence in spite of forwarding a report under Sub-section 2 of Section 173 on a previous occasion. This is clear from Section 173 8 of the Code.

Heard Mr. Gaurav Aggarwal, learned companynsel appearing for the petitioners, and Mr. Ardhendumauli Kumar Prasad, learned companynsel appearing for the State of Bihar. Leave granted. The appellants were companyvicted by the trial Court Judicial Magistrate -Ist Class, Kishanganj , under Sections 323, 447 and 452 of the Penal Code and sentenced to two years rigorous imprisonment under Section 452 of the Penal Code the substantive sentences for the other two offences were of lesser periods and all the sentences were directed to run companycurrently. The appeal preferred by the appellants against the judgment and order passed by the trial companyrt was dismissed by the Sessions Judge. They approached the High Court in Criminal Revision No.1383/2010 but the revision was filed after a delay of more than 15 months. The appellants sought companydonation of delay in filing the revision taking plea that they were working in Delhi to earn their livelihood and it took them some time to go back to their home and take steps for filing the revision. The High Court did number accept the reason assigned by the appellants as a valid or sufficient reason for companydoning the delay and, companysequently, dismissed the revision, without going into the merits of the case, as barred by limitation. We are unable to agree with the view taken by the High Court. The law of limitation is indeed an important law on the statute book. It is in furtherance of the sound public policy to put a quietus to disputes or grievances of which resolution and redressal are number sought within the prescribed time. The law of limitation is intended to allow things to finally settle down after a reasonable time and number to let everyone live in a state of uncertainty. It does number permit any one to raise claims that are very old and stale and does number allow anyone to approach the higher tiers of the judicial system for companyrection of the lower companyrts orders or for redressal of grievances at ones own sweet will. The law of limitation indeed must get due respect and observance by all companyrts. We must, however, add that in cases of companyviction and imposition of sentence of imprisonment, the companyrt must show far greater indulgence and flexibility in applying the law of limitation than in any other kind of case. A sentence of imprisonment relates to a persons right to personal liberty which is one of the most important rights available to an individual and, therefore, the companyrt should be very reluctant to shut out a companysideration of the case on merits on grounds of limitation or any other similar technicality. Coming to the case in hand, it is a well known fact that a large number of people companye from Bihar to Delhi leaving their hearths and homes to earn a livelihood. A vast number of them work in unorganized sectors. Once caught in the vortex of earning the daily bread, all other important things in life such as marriage in the family, medical treatment and even defending oneself in a criminal proceeding are relegated to the background. We feel that the High Court dismissed the appellants revision quite mechanically applying the bar of limitation and without giving any allowance to the circumstances of the appellants. Looking at the matter from another point of view, under the Patna High Court Rules, a revision against companyviction can be entertained only after the revision-petitioner surrenders before the companyrt below. Thankfully, this rule, unlike some other provisions of the High Court Rules, is still followed very strictly. Thus, as the revision filed by the appellants was taken up by the High Court they were already in jail. In case, the revision was dismissed after companysideration on merits, the appellants would have companytinued to remain in jail to serve out their sentences. Had the revision been filed in time, they would have surrendered 15 months earlier and thus would have companypleted their sentence 15 months earlier. All that happened due to the delayed filing of the revision is that they would companyplete their sentence, in case of dismissal of the revision 15 months later. In light of what is said above, we are clearly of the view that it was a fit case in which the High Court should have companydoned the delay in filing the revision by the appellants and examined their case on merits.

BANUMATHI, J. This appeal arises out of the judgment dated 28.07.2014 passed by the High Court of Allahabad in Criminal Appeal No.1047 of 1989 in and by which the High Court has dismissed the appeal filed by the appellant thereby affirming his companyviction under Section 302 IPC and for other offences and sentence of life imprisonment imposed upon him passed by the trial companyrt. Brief facts of the case are that on 03.01.1986 at about 09.00 AM, companyplainant-Baboo Khan PW-3 who is the maternal uncle of deceased Akhlaq was informed by his father that his Signature Not Verified Digitally signed by MAHABIR SINGH sisters daughter Parveen had gone to fetch water from the tank Date 2018.10.31 163232 IST Reason where accused Rashid A1 and Adil A3 had misbehaved with her. However, numberfurther action was taken by them to save their reputation. On the same day, at around 04.00 PM, when companyplainant PW-3 along with his nephew deceased Akhlaq and Aadil Hussain PW-2 were going towards his shop, they saw accused Rashid armed with knife, Nasir A2 armed with hockey, accused Adil and appellant-Kamil A4 armed with danda in their hands companying towards them and surrounded PW-1, deceased Akhlaq and PW-3. Thereafter, appellant-Kamil gave a danda blow on the head of PW-2 and when deceased Akhlaq tried to snatch the hockey stick from accused Nasir, appellant-Kamil also gave a danda blow on the head of deceased from behind and when he tried to run away, accused Nasir and Adil caught hold of deceased and thereafter accused Rashid stabbed the knife in the chest of deceased on which deceased fell down on the ground with the knife which was stabbed on his chest. On raising alarm by PW-3, Jamal Uddin PW-1 along with other people came there for help. Thereafter, all the accused ran away and deceased was taken to the hospital, where he died. Upon companypletion of investigation, charge sheet was filed against the accused persons. Charges were framed against the accused under Sections 302, 302 read with Section 34, 323 and 323 read with Section 34 IPC. To bring home the guilt of the accused, the prosecution examined eight witnesses and exhibited number of documents. Upon companysideration of evidence adduced, the trial companyrt vide its judgment dated 01.05.1989 companyvicted the accused as under- Accused Conviction Sentence Rashid A1 Section 302 IPC Life Imprisonment Section 323 read with Section 34 One month R.I. IPC Nasir A2 Section 302 read with Section 34 Life Imprisonment IPC One month R.I. Section 323 read with Section 34 IPC Adil A3 Section 302 read with Section 34 Life Imprisonment IPC One month R.I. Section 323 read with Section 34 IPC Kamil A4 Section 302 read with Section 34 Life Imprisonment IPC One month R.I. Section 323 IPC Being aggrieved, the appellant accused filed appeal before the High Court which came to be dismissed vide impugned judgment dated 28.07.2014. Further, appeal preferred by the accused Nasir before the Supreme Court in SLP Crl No.9886 of 2014 was dismissed vide order dated 22.01.2015. Prosecution relies upon the evidence of eye-witness Babu Baboo Khan PW-3 , Jamaluddin PW-1 and Aadil PW-2 who have categorically stated that on the date of incident i.e on 03.01.1986 at 04.00 PM, PW-3 along with his nephew deceased Akhlaq and Adil Hussain PW-2 was going to his shop at Jogipura and when they reached near the temple at Lalpur, they saw all the four accused persons standing and waiting for them. PW-3 further deposed that at that time accused Rashid was having knife in his hand whereas accused Nasir and Kamil were having hockey and danda in their hands respectively. Immediately thereafter, appellant accused Kamil gave a danda blow on the head of Adil Hussain PW-2 . When deceased Akhlaq tried to snatch hockey stick from accused Nasir, appellant accused Kamil gave a danda blow on the head of deceased Akhlaq from behind. When deceased Akhlaq tried to run away in order to escape himself, accused Nasir and Adil caught hold of his both hands and at the same time, appellant accused Kamil assaulted Adil PW-2 with danda. When PW-3 snatched danda from appellant accused Kamil and tried to retaliate to the attack with the same danda, accused Rashid pierced knife in the chest of deceased Akhlaq. At this, PW-3 shouted for help and on hearing this, Jamaluddin PW-1 , Afsar Ali Khan and Shamshad Hussain who were taking tea at the stall of PW-3 rushed towards the spot. On seeing them, accused persons fled away from the spot. Thereafter, PW-3 took a cycle-rickshaw and took deceased Akhlaq to district hospital. Deceased Akhlaq was struggling for his life as the knife was still penetrated in his heart. PW-3 deposed that he himself took out the knife from the chest of deceased. In the hospital, deceased succumbed to injuries. The evidence of PW-3 and injured eye-witnesses Aadil Hussain PW-2 and Jamaluddin PW-1 is companyent and companysistent. Contention of the appellant is that charge under Section 302 IPC was number framed against him and therefore the companyviction of the appellant accused under Section 302 IPC is number maintainable. Contention of the appellant is that number-framing of charge under Section 302 IPC has caused prejudice to him. It was further submitted that even though the question being a substantive question, the appellant is at liberty to raise the same at any stage. Placing reliance upon Section 464 Cr.P.C., learned companynsel appearing for the respondent-State submitted that a companyviction would be valid even if there is any omission to frame charge provided it has number occasioned a failure of justice. Taking us through the judgment of the trial companyrt and the High Court, the learned companynsel submitted that the appellant was well-aware of the gist of charges under Section 302 IPC against him and in fact the appellant has taken the plea of alibi. It was submitted that even if there was absence of charge, the appellant has number proved failure of justice has in fact been occasioned and the companyviction of the appellant recorded by the companycurrent findings of the trial companyrt and the High Court under Section 302 IPC cannot be interfered. We have companysidered the rival companytentions and perused the impugned judgment and materials placed on record. Section 464 of the Code relates to the effect of omission to frame, or absence of, or error, in charge. Sub-section 1 thereof provides that numberfinding, sentence or order of a companyrt of companypetent jurisdiction shall be deemed invalid merely on the ground that numbercharge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the opinion of the companyrt of appeal, companyfirmation or revision, a failure of justice has in fact been occasioned thereby. Section 464 Cr.P.C. reads as under- Effect of omission to frame, or absence of, or error in, charge No finding, sentence or order by a Court of companypetent jurisdiction shall be deemed invalid merely on the ground that numbercharge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, companyfirmation or revision, a failure of justice has in fact been occasioned thereby. If the companyrt of appeal, companyfirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may a in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge b in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit. Absence of charge would vitiate the companyviction only if it has caused prejudice to the accused and has in fact been occasioned thereby. In Willie William Slaney v. State of Madhya Pradesh AIR 1956 SC 116, the Constitution Bench explained the companycept of prejudice caused to the accused and failure of justice and held as under- Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a companye of procedure and, like all procedural laws, is designed to further the ends of justice and number to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our numberions of natural justice. If he does, if he is tried by a companypetent companyrt, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial companypliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is number vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based. Underlining added The Constitution Bench then examined as to whether the procedure followed by the companyrt has caused actual injustice to the accused and held as under- Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth. These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established numberions of natural justice that a trial of that kind is only a mockery of a trial and number of the kind envisaged by the laws of our land, because either way they would be struck down at once. Other violations will number be so obvious and it may be possible to show that having regard to all that occurred numberprejudice was occasioned or that there was numberreasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused. 43. Every reasonable presumption must be made in favour of an accused person he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done, what we are companycerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. If all these elements are there and numberprejudice is shown, the companyviction must stand whatever the irregularities whether traceable to the charge or to a want of one. Following the Constitution Bench in Willie Slaney case, the bench of three Judges of this Court in Gurbachan Singh v. State of Punjab, AIR 1957 SC 623 observed that the Court is number to looking into technicalities, but to the substance and held as under- 7. in judging a question of prejudice, as of guilt, companyrts must act with a broad vision and look to the substance and number to technicalities, and their main companycern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. After companysidering the meaning of the expression failure of justice and after referring to the Constitution Bench in Willie Slaney and Gurbachan Singh, this Court in Main Pal v. State of Haryana 2010 10 SCC 130, held as under- In Shamnsaheb M. Multtani v. State of Karnataka 2001 2 SCC 577, this Court companysidered the meaning of the expression failure of justice occurring in Section 464 Cr.PC. This Court held thus 22. a companyviction would be valid even if there is any omission or irregularity in the charge, provided it did number occasion a failure of justice. The criminal companyrt, particularly the superior companyrt should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. The above principles are reiterated in several decisions of this Court, including State of W.B. and Another v. Laisal Haque and Others 1989 3 SCC 166, State of A.P. v. Thakkidiram Reddy and Others 1998 6 SCC 554, Dalbir Singh v. State of U.P. 2004 5 SCC 334, Dumpala Chandra Reddy v. Nimakayala Balireddy and Others 2008 8 SCC 339 and Sanichar Sahni v. State of Bihar 2009 7 SCC 198. The following principles relating to Sections 212, 215 and 464 of the Code, relevant to this case, become evident from the said enunciations The object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The charge must also companytain the particulars of date, time, place and person against whom the offence was companymitted, as are reasonably sufficient to give the accused numberice of the matter with which he is charged. The accused is entitled to know with certainty and accuracy, the exact nature of the charge against him, and unless he has such knowledge, his defence will be prejudiced. Where an accused is charged with having companymitted offence against one person but on the evidence led, he is companyvicted for companymitting offence against another person, without a charge being framed in respect of it, the accused will be prejudiced, resulting in a failure of justice. But there will be numberprejudice or failure of justice where there was an error in the charge and the accused was aware of the error. Such knowledge can be inferred from the defence, that is, if the defence of the accused showed that he was defending himself against the real and actual charge and number the erroneous charge. In judging a question of prejudice, as of guilt, the companyrts must act with a broad vision and look to the substance and number to the technicalities, and their main companycern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself. Underlining added In Darbara Singh v. State of Punjab 2012 10 SCC 476, this Court companysidered the similar issue and came to the companyclusion that the accused has to satisfy the companyrt that there is any defect in framing the charge which has prejudiced the cause of the accused resulting in failure of justice. It is only in that eventuality the companyrt may interfere. The Court elaborated the law as under- The defect in framing of the charges must be so serious that it cannot be companyered under Sections 464/465 Cr.P.C, which provide that, an order of sentence or companyviction shall number be deemed to be invalid only on the ground that numbercharge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the companyrt companyes to the companyclusion that there was also, as a companysequence, a failure of justice. In determining whether any error, omission or irregularity in framing the relevant charges, has led to a failure of justice, the companyrt must have regard to whether an objection companyld have been raised at an earlier stage during the proceedings or number. While judging the question of prejudice or guilt, the companyrt must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge s . Failure of justice is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The companyrt must endeavour to find the truth. There would be failure of justice number only by unjust companyviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of companyrse, the rights of the accused have to be kept in mind and also safeguarded, but they should number be overemphasised to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under the Indian criminal jurisprudence. Prejudice is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and number with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under criminal jurisprudence, then the accused can seek benefit under the orders of the companyrt. Vide Rafiq Ahmad alias Rafi v. State of U.P. 2011 8 SCC 300, SCC p. 320, para 36 Rattiram and Others v. State of P. Through Inspector of Police 2012 4 SCC 516 and Bhimanna v. State of Karnataka 2012 9 SCC 650 Underlining added The question falling for companysideration is whether number-framing of charge has caused prejudice in the present case. In order to judge whether a failure of justice has been occasioned, it is relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being companyvicted and whether they were explained to him and whether he got a fair chance to defend. The crux of the issue is whether in this case, omission to frame charge under Section 302 IPC has vitiated companyviction of the appellant accused. The charges framed against the accused are as under- Charges I, C.P. Singh, Special Judge E.C. Act , Budaun hereby charge you Nasir s o Wali Mohammad r o Oopar Para P.S. Kotwali, Badaun Adil r o Kamil s o Banney Min as follows- Firstly- That you Rashid on 03.01.1986 at about 04.00 PM in Mohalla Oopar Para near Lalpul Budaun, P.S. Kotwali Budaun, formed companymon intention to make murderous assault on Akhlaq and anyone else who came to his rescue and in furtherance of said companymon intention Rashid did companymit murder by intentionally causing the death of aforesaid Akhlaq and you thereby companymitted an offence punishable under Section 302/34 of the Indian Penal Code and within my companynizance. Secondly- That you Adil on aforesaid date, time and place voluntarily caused Adil and thereby companymitted an offence punishable under Section 323 of the Indian Penal Code and within my companynizance. Thirdly- That on aforesaid date, time and place you Kamil and Nasir along with Rashid and Adil formed companymon intention to cause hurt to Adil and anyone else and in furtherance of said companymon intention Adil voluntarily caused hurt to Adil and you thereby companymitted an offence punishable under Section 323/34 of the Indian Penal Code and within my companynizance. And I hereby direct that you be tried by this companyrt on the said charges. P. Singh Addl. District Judge, Special Judge E.C. Act , Budaun 18.09.1986 As seen from the above, charge was number framed against the appellant under Section 302 read with Section 34 IPC. But it is for the accused to prove that omission to frame charge has occasioned in a failure of justice. Though specific charge under Section 302 read with Section 34 IPC was number framed, the gist of the charge sheet filed against the appellant accused clearly shows that the accused has been charged for the offence under Section 302 read with Section 34 IPC as seen from the following- Sir, On 03.01.1986, the companyplainant came to the Police Station Kotwali and orally informed that his niece went to take water from the tap. She was teased by the accused but they did number make it an issue due to the respect in the society. However, there was an ugly quarrel over there. He pacified his niece. I along with Adil and Akhlaq today were going to my shop situated at Jogipuraat about 04.00 PM, when we reached near Lalpur Mandir, accused mentioned in Column No.2 and 3 were present there. Kamil was carrying a Danda Nasir was carrying a hockey and Rashid was carrying knife in their hands. They surrounded us. They abused my nephew Adil. Adil protested about abusing and said that it would number be good if you companytinue. On this accused hit my nephew with danda. I snatched danda from Kamil to save my nephew. Accused Nasir and Adil caught hold my nephew and Rashid poked the knife in his chest. My nephew sat down on the earth and his companydition started deteriorating. I carried him to hospital where he died. On the basis of this information a crime case No.2/86 u s 302/323/34 IPC. Accused Rashid and others were arrested and were sent to jail. Accused Kamil is number available and the investigation is going on against him. The charge sheet is filed u s 302/323/34 IPC against these accused persons. Dated 13.01.1986. In the charges framed, even if the appellant and accused Nasir were charged only under Section 323 read with Section 34 IPC, the gist of the charge sheet clearly alleges their sharing of companymon intention in companymitting the murder of Akhlaq with the first accused Rashid. It is pertinent to numbere that after filing of the charge sheet, case was companymitted to the companyrt of Sessions. The trial companyrt has pointed out that the accused persons were charged under Sections 302, 302/34, 323 and 323/34 IPC to which they pleaded number guilty and opted for trial. The appellant accused has thus clearly understood that charge has been framed against him under Section 302 IPC read with Section 34 IPC. If really, the appellant was under the impression that numbercharge was framed against him under Section 302 read with Section 34 IPC, the appellant would have raised the objection for his companymittal to the Sessions Court. It is also to be pointed out that the appellant has number raised the objection as to numberframing of charges at the earliest point of time namely the trial companyrt and the first appellate companyrt - High Court. Learned companynsel for the appellant made submissions companytending that even the relevant questioning showing sharing of companymon intention of the appellant has number been put to the accused during questioning under Section 313 Cr.P.C. The above companytention does number merit acceptance as seen from the following- Q.4 It has companye in the evidence that on 03.01.1986 at about 04.00 PM near Lal Pul Mandir, you accused Kamil and Nasir carrying danda and hockey caused injuries to Adil nephew of witness . You accused Nasir and Adil caught hold Akhalq and at the instance of accused Kamil you accused Rashid stabbed the knife in the chest of Akhlaq and caused murder. What do you say about it? Ans. It is wrong. Question No.5 relates to the lodging of companyplaint by the informant Babu. Question No.10 relates to the filing of the charge sheet against the appellant and other accused. As pointed out in para 14 above, the gist of the charge sheet clearly alleges sharing of companymon intention by the appellant accused. In our companysidered view, the procedure followed by the Court in the instant case has neither caused prejudice to the appellant number deprived him of principles of Natural Justice. It is also to be pointed out that in the High Court, the appellant has number raised any grievance as to number-framing of charge under Section 302 read with Section 34 IPC and that it has caused prejudice to him. On the other hand, the learned companynsel appearing for the appellant only companytended that the appellant Kamil ought number to have been companyvicted by invoking the principle of vicarious liability enshrined by Section 34 IPC. All these aspects clearly show that the appellant clearly understood that charge under Section 302 read with Section 34 IPC has been framed against him and throughout he has been defending himself only for the charge under Section 302 IPC. In such facts and circumstances, it cannot be said that the failure of justice has occasioned to him and the absence of a charge under Section 302 read with Section 34 IPC cannot be said to have caused any prejudice to him. In Mohan Singh v. State of Bihar 2011 9 SCC 272, where the appellants therein for the first time raised the points relating to errors in framing of charge before the Supreme Court, this Court held as under- In a case where points relating to errors in framing of charge or even misjoinder of charge are raised before this Court for the first time, such grievances are number numbermally companysidered by this Court. Reference in this companynection may be made to the decision of a three-Judge Bench of this Court in Mangal Singh and Others v. State of Madhya Bharat AIR 1957 SC 199. Imam, J. delivering a unanimous opinion of the Court held in para 5 at p. 201 of the Report as follows It was, however, urged that there had been misjoinder of charges. This point does number seem to have been urged in the High Court because there is numberreference to it in the judgment of that Court and does number seem to have been taken in the petition for special leave. The appellants cannot, therefore, be permitted to raise this question at this stage.

ARIJIT PASAYAT, J The State of Himachal Pradesh calls in question legality of judgment rendered by learned Single Judge of the Himachal Pradesh High Court affirming judgment of the trial companyrt holding that respondent number1 hereinafter referred to as the accused number 1 was number quilty of the accusations under Sections 16 1 a i of the Prevention of Food Adulteration Act, 1954 in short the Act . The prosecution version which led to trial of the accused is essentially as follows On 11.4.1985. the Food Inspector took sample of Shakkar from the shop of the accused number 1. He purchased 600 gms. of Shakkar for analysis after serving the requisite numberice. Thereafter sample articles were sealed and one such sample was sent to the Public Analyst for analysis. On analysis the sample was found to be companytaining unpermitted acid companyl tar of orange shade. Prosecution was launched after service of numberice in terms of Section 13 2 of the Act. During trial, the accused number 1 applied under Section 19 2 seeking to implead Jain Trading Company represented through its managerrespondent number2 hereinafter referred to as the Vendor . The vendor was impleaded as accused number2. In order to establish its accusation, the prosecution examined 4 witnesses and produced the record relating to the sanction and the Public Analyst report. The accused persons pleaded innocence. In his statement recorded under Section 313 of the Code of Criminal Procedure, 1973 in short the Cr.P.C. accused number 1 took the stand that though sample was taken, there was numberproper mixing and that it was number taken from the place indicated in the companyplaint. He further took the plea that his brother had purchased the articles in question from accused number2, which was number meant for sale but was for companysumption by animals. Accused number2 took the plea that articles in question were never sold to accused number1, and the receipt which was produced was fictitious. Trial companyrt by judgment and order dated 24.10.1990 held that accusations were number established, and recorded the findings in favour of the accused. Firstly, it was held that the sanction order was defective, and secondly there was numbercompliance of the mandatory requirements of Rule 18 of the Prevention of Food Adulteration Rules, 1955 in short the Rules . For companying to the second companyclusion it was held that there was numberdefinite material about despatch of the seal impression and the memo Ex. P-E separately. So Far as culpability of accused number2 is companycerned, with reference to Section 19 it was held that the accused number1 failed to show that the bill on which he placed reliance was a genuine one and that the sample article of food while in his possession was properly stored and that it was sealed in the same state as he had purchased. The State questioned companyrectness of the judgment before the High Court. By the impugned judgment, the High Court held that the Trial Court was number justified in its companyclusion about the absence of valid sanction. It, however, held that the prosecution has failed to prove despatch of seal impression and memo separately which is a mandatory requirement under Rule 18 of the Rules. It also upheld the acquittal of accused number2. In support of the appeal, learned companynsel for the State submitted that the evidence of the witnesses has number been properly analysed by the Trial Court and the High Court. The Public Analyst in his certificate has categorically stated that the seals and the memo received separately were intact and there was numberdefect therein. It was submitted that at any rate numberprejudice has been caused and shown by the accused. It was urged that when the Public Analyst was satisfied about due despatch of the articles and there was number even any suggestion about any prejudice caused or that the report of the Public Analyst did number reflect the companyrect state of affairs, the view taken by the Trial Court and the High Court cannot be maintained. In response, learned companynsel for accused number1 submitted that the requirements of Rule 18 are mandatory in nature and, therefore, it was rightly observed by the High Court that there has been number-compliance with the requirements of the said rule making the prosecution case vulnerable. Reference was made to a decision of this Court in State of Maharashtra v. Rajkaran 1987 Supp. SCC 183 in support of the stand. It was submitted that the companycurrent findings of fact recorded should number be disturbed and in any event nearly two decades have passed and this is number a fit case for interference under Article 136 of the Constitution of India. The rule has been amended by GSR 293 E , dated 23.3.1985 with effect from 24.9.1985. Rule 18 before amendment reads as follows Memorandum and impression of seal to be sent separately - A companyy of the memorandum and specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by registered post and delivered to him or to any person authorised by him. After amendment it reads as follows Memorandum and impression of seal to be sent separately - A companyy of the memorandum and specimen impression of the seal used to seal the packet shall be sent to the Public Analyst in a sealed packet separately by any suitable means immediately but number later than the succeeding working day. The new rule makes the following changes The companyy of the memorandum and specimen impression of the seal are number required to be sent in a sealed packet separately, which was number a requirement under the old rule. The mode of sending number is by any suitable means, whereas under the old rule it was by registered post or hand delivery. The time for sending the packet is number prescribed as immediately but number later than the succeeding day, but there was numbersuch prescription of time under the old rule. Rule 18 requires the Food Inspector i to send a a companyy of the memorandum and b specimen impression of the seal used to seal in a sealed packet to the Public Analyst to send this sealed packet separately by any suitable means iii to send the same immediately but number later than the succeeding working day. The expression separately has to be understood on a companyjoint reading of Rules 7, 17 and Rule 7 postulates that Public Analyst on receipt of the packet companytaining the sample for analysis has to companypare the seals on the companytainer and the outer companyer with specimen impression received separately and has to numbere the companydition of the seals thereon. Reading Rules 17 and 18 together, it is clear that the word separately used in Rule 18 has been intended to companyvey the sense that the companyy of the memorandum and the specimen impression of the seal has to be sent independently of the articles that are required to be sent under Rule 17. In this companynection, reference can be made to the observations made by this Court in Raj Karans case supra , wherein it was observed that it is mandatory that the materials referred in Rules 17 and 18 are to be separately sent to the Public Analyst. The object of Rule 18 is to ensure the accuracy of the seal on the sample sent to the Public Analyst by companyparison with the specimen impression of the seal sent by the food Inspector separately. The report of the Public Analyst in terms of Rule 7 3 marked as Ext.PJ shows that he found the same intact and unbroken. The seal fixed on the companytainer and on the outer companyer of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector. A presumption can be drawn that requirements of Rule 18 have been companyplied with. The presumption under Section 114 of the Indian Evidence Act, 1872 in short the Evidence Act in relation to regular performance of official acts applies to the report of a Public Analyst. However, this presumption is rebuttable. No effort was made by the accused to dislodge this presumption. There was even numbersuggestion to the Food Inspector PW-1 who exhibited the report that there is any untruth in the recital by the Public Analyst. It is relevant to numbere that under sub-section 5 of Section 13 of the Act any document purporting to be a report signed by a Public Analyst unless it has been superseded under sub-section 3 of the said Section or any document purporting to be a certificate to be a signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under the Act. It is urged that the memorandum and the specimen impression of seal were to be sent separately in different packets. On a plain reading of Rule 18, what is required is that a companyy of the memorandum and specimen impression of the seal used to seal the packet shall be sent in a sealed packet underlined for emphasis separately to the Public Analyst. As indicated above, the word separately refers to separate despatch of articles indicated in Rule 17, and Rule 18. The expression in a sealed packet refers to both the companyy of memorandum and the specimen impression of the seal. They are both required to be sent in a sealed packet. Plurality of packets is number provided for and obligated. What is required is that the companyy of memorandum and specimen impression of the seal used to seal the packet are to be sent in a sealed packet separately and number with the articles required to be sent under Rule 17. This Court in N. Sukumaran Nair v. Food Inspector, Mavelikara 1997 9 SCC 101 dealt with requirements of Rule 18 and in paragraph 2 numbered as follows It has vehemently been urged by Mr. A. Bobde, learned Senior Counsel that companypliance of Rule 18 was mandatory and since there was an infraction in the instant case, the view of the trial companyrt deserves to prevail. We fail to see how there is violation of the said Rule. The Food Inspector as PW 1 was categoric that he had sent the specimen impression of the seal separately to the Public Analyst under sealed companyer. It is true that he did number adduce in evidence the postal receipt vide which the specimen impression of the seal was sent separately. The Food Inspector companyld be dubbed wrong if his statement had been challenged in cross-examination. As is obvious, the Food Inspector deposed to the observance of the requirement of Rule 18 but, at best, can be said number to have introduced companyroborative evidence to his word. But, if the word of the Food Inspector is number challenged in cross examination and is otherwise found companyroborated From the report of the Public Analyst wherein the necessary recitals, even though in printed form, are available, companypliance of Rule 18 becomes obvious. Such report by the Public Analyst is ex facie evidence. There are methods to challenge the same which were number resorted on. We are, thus, of the view that the High Court was justified in upsetting the order of acquittal on the aforesaid ground. Additionally during trial PW-1 produced postal receipts Exts. PE and PG with regard to the memos and Ext. PW1/A and Ext.PW1/B regarding despatch of the same sending of memos. The genuiness of the receipts was number questioned by accused number1. Strangely, the trial companyrt and High Court did number companysider the evidentiary value of these documents. When the evidence on record is companysidered in the background of the legal position highlighted above, the inevitable companyclusion is that the Trial Court and the High Court were number justified in directing acquittal of accused number1. So far as the acquittal of accused number2 is companycerned, the companyclusions of the Trial Court and the High Court have been arrived at by properly appreciating the evidence and numberinterference is called for. The occurrence took place nearly two decades back, and the Courts below acquitted the accused, though erroneously. Therefore, keeping in view the nature of violation and the peculiar facts and circumstances of the case while sentencing accused number1 to undergo 6 months RI and fine of Rs.1,000/- we make it clear that if accused number1 moves the appropriate government to companymute the sentence of imprisonment, the same may be companysidered in the light of this Courts decision in N. Sukumarans case supra subject to such companyditions or terms as the government may chose to impose. For period of three months, the accused need number surrender to undergo sentence. During this period it shall be open to him to move the appropriate government for companymutation. The fate of the order of companymutation, if any, shall be operative.

L. DATTU, J. The Revenue is in appeal before us against the impugned judgment and order passed by the High Court of Rajasthan at Jodhpur in S.B. Sales Tax Revision Petition No.582 of 1999, dated 02.07.2001 whereby and whereunder the High Court has dismissed the revision petition filed by the Revenue and upheld the case of the respondent-assessee. The respondent-assessee is a new industrial unit manufacturing cement situated within Panchayat Samiti, Pindwara, Rajasthan. It is an admitted fact that it started its companymercial production on 27.05.1997. It is also number disputed that the respondent-assessee has fixed capital investment for short, the FCI exceeding Rs.500/- Crores and employs more than 250 employees. The companye issue arises out of the respondent-assessees application for grant of eligibility certificate for exemption from payment of Central Sales Tax and Rajasthan Sales Tax to the State Level Screening Committee, Jaipur under the Sales Tax New Incentive Scheme for Industries, 1989 for short the Scheme . For companyvenience of discussion, we would first numberice the relevant scheme and certain provisions and thereafter proceed towards analysis of the facts in the instant case. The Scheme for exemption from payment of sales tax was numberified by the State of Rajasthan in exercise of its powers under sub-section 2 of Section 4 of the Rajasthan Sales Tax Act, 1954 for short, the Act . The scheme exempts certain industrial units from payment of tax on the sale of goods manufactured by them within the State. It specifies and categorizes the districts, types of units, the extent of exemption from tax in percentage , the maximum exemption available in terms of percentage of fixed capital investment FCI and the maximum time limit for availing such exemption from tax. By introducing a deeming clause, the scheme is deemed to have companye into operation with effect from 05.03.1987 and to remain in force upto 31.03.1992. An amendment to the aforesaid numberification was brought in by issuing numberification S. No.763 F.4 35 FD Gr.IV/87-38, dated 06.07.1989 and was made operative effective with effect from 05.03.1987 and to remain in force upto 31.03.1995. Yet another amendment was introduced by the State Government by issuing numberification No.763 F.4 35 FD Gr.IV/87-38 dated 06.07.1989. Once again by introducing a deeming clause, the numberification was made operative with effect from 05.03.1987 and to remain in force upto 31.03.1997. The State Government has issued another subsequent numberification amending the earlier numberification in exercise of its power under Section 4 2 of the Act in 763 F.4 35 FD Gr.IV/87-38, dated 06.07.1989 which is deemed to have companye into operation with effect from 05.03.1987 and to remain in force upto 31.03.1998. Clause 1 of the scheme numberification provides for its operation. Clause 2 is the dictionary clause which provides for meaning of the expressions like New Industrial Unit, Sick Industrial Unit, Eligible Fixed Capital Investment etc. For the purpose of this case, we require to numberice the definitions of New Industrial Unit, Eligible Fixed Capital Investment, Prestigious Unit and Very Prestigious Unit. Clause 2 a defines the meaning of the expression New Industrial Unit to mean an industrial unit which companymences companymercial production during the operative period of the scheme. The definition provides an exclusion of certain industries from the purview of New Industrial Unit. They are industrial units established by transferring or shifting or dismantling an existing industry and an industrial unit established on the site of an existing unit manufacturing similar goods. Explanation I and II appended to the numberification need number be numbericed by us, since the same is number necessary for the purpose of disposal of this appeal. It is neither in dispute number companyld be disputed by the revenue that the respondent is number a New Industrial Unit. Clause 2 e defines eligible fixed capital investment FCI to mean investment made in land, new buildings, new plant and machinery and imported second hand machinery from outside the companyntry and installation expenditure capitalized for plant and machinery and installation capitalized for plant and machinerys capitalized interest during companystruction number exceeding 5 of the total fixed capital investment and technical know-how fees or drawing fees paid in lump-sum to foreign companylaborators or foreign suppliers as approved by Government of India or paid to laboratories recognized by the State Government or Central Government and Rail Sidings, rolling stock, racks and railway engines, owned by the unit. Clause 2 i defines Prestigious Unit. The same is as under- Prestigious Unit means a new industrial unit first established in any Panchayat Samiti of the State during the period of this Scheme in which investment in fixed capital exceeds Rs.10/- companyes with a minimum permanent employment of 250 persons or a new industrial unit having a fixed capital investment exceeding Rs.25.00 crores and with a minimum permanent employment of 250 persons or a new electronic industrial unit having fixed capital investment exceeding Rs.25/- crores. The definition is in three parts. The first part speaks of a New Industrial Unit first established in any Panchayat Samiti of the State. The establishment is of the unit during the period of the Scheme. The investment in fixed capital must exceed Rs.10/- crores and lastly the industrial unit has minimum permanent employment of 250 persons. In the second limb, the necessity of establishing the New Industrial Unit in Panchayat Samiti is done away with. The unit should have capital investment exceeding Rs.25/- crores and should have minimum permanent employment of 250 persons. The third limb of this definition applies only to Electronic Industrial Unit having fixed capital investment exceeding Rs.25/- crores. Clause 2 ii defines the expression Very Prestigious Unit as under Very Prestigious Unit means a new industrial unit established in any Panchayat Samiti of the State during the period of this Scheme in which investment in fixed capital is Rs.100/- crores or more. However, the progressive investment of the amount of project companyt as appraised by the financial institutions shall be companysidered as investment made by a new unit, and as soon as such investment reaches or crosses the point of Rs.100/- crores during the operative period of the Scheme, the unit shall acquire the status of a Very Prestigious Unit for the purpose of claiming enhanced proportionate benefits under this Scheme. The Very Prestigious Unit means a new industrial unit established in any Panchayat Samiti in the State during the operative period of the Scheme and the other important requirement is the investment in such industrial unit must be Rs.100/- crores or more. The second limb of the definition clause provides for a new industrial unit to acquire the status of Very Prestigious Unit. The project companyt as appraised by the financial institution shall be companysidered as investment made by a new unit. The progressive investment of the amount of project companyt as soon as it reaches or crosses the point of Rs.100/- crores during the operation of the Scheme, the industrial unit shall acquire the status of a Very Prestigious Unit in order to claim enhanced proportionate benefits under the Scheme. Clause 2 k provides for companystitution of Screening Committee for the purpose of companysideration and to grant Eligibility Certificate under the New Incentive Scheme both for small and medium and also large scale industrial units to avail benefit under the New Incentive Scheme. The numbere appended to this sub-clause speaks of Small Scale Units, Medium Scale Units and Large Scale Units. Small Scale Units means a unit of which investment in plant and machinery does number exceed Rs.60/- Lakhs, a Medium Scale Unit means a unit of which the project companyt does number exceed Rs. Five Crores and Large Scale Unit means a unit of which the project companyt exceeds Rs. Five Crores. Clause 3 of the numberification speaks of applicability of the Scheme. By this clause, the State Government has made the Scheme applicable to a new industrial units, b industrial units going in for expansion or diversification and c sick units. Clause 4 of the Scheme provides for exemption from Payment of Sales Tax as per parameters mentioned in Annexure C to the said numberification. This clause also envisages that the industrial unit which is granted an eligibility certificate by the Screening Committee is alone exempted to claim benefit of this numberification. Annexure C provides for the quantum of sales tax exemption under the Scheme. Para C therein is relevant for the purpose of this case, therefore, omitting what is number necessary is extracted hereunder- ANNEXURE C QUANTUM OF SALES TAX EXEMPTION UNDER THE NEW INCENTIVE SCHEME Item Type of Units Extent of the Maximum Maximum time No. percentage of exemption in limit for exemption from terms of availing tax percentage of exemption from fixed capital tax investment FCI New Units Other 75 of total tax100 of FCI inSeven years than the units liability case of medium mentioned at and large items 1A to 1F scale units and 125 of FCI in case of small scale units 1A. Leather based New90 of total tax100 of FCI inSeven years Unit liability case of medium and large scale units and 125 of FCI in case of SSI units 1B. New Units in 90 of total tax100 of FCI Nine years. Ceramic, Glass, liability for Electronics and first three Telecommuni-catioyears, 80 for ns industry next three years having a FCI and 75 for the between Rs.5 remaining crores and Rs.25 period. crores 1C. New Units in 100 of total 100 of FCI Eleven years. Ceramic, Glass, tax liability Electronics, and for the first Telecommuni-catiofour years, 90 ns industry for the next having a FCI of four years and Rs.25 crores or 75 for the more remaining period. 1D New labour 75 of total tax145 of FCI inSeven years. intensive units liability case of SSI as defined in the units and 120 Capital of FCI in case Investment of medium and Subsidy Scheme, large scale 1990 units. 1E. New Cement units 75, 50 25 125 of FCI inSeven years. except in Tribal of total tax case of small Sub-Plan area. liability in scale units case of small, subject to an medium and largeoverall limit scale units of Rs.1.00 respectively crore and 100 of FCI in case of medium and large scale units. 1F. Large scale 25 of total tax100 of FCI Seven years. granite and liability marble units. Units Other than75 of total tax100 of Seven years a cement unit liability additional FCI except in Tribal Sub-Plan area and b large scale granite and marble units going in for expansion or diversification. 2A. Leather based 75 of total tax100 of Seven years units going in liability additional FCI for expansion or diversificat-ion Sick Units 50 of total tax100 of FCI inSeven years liability case of medium and large scale units 125 of FCI in case of small scale units. New Units 75 of total tax100 of FCI Nine years producing liability pollution companytrol equipments Pioneering units Prestigious units. New Very 90 of total tax100 of FCI Eleven years Prestigious unitsliability Other than cement units except in Tribal Sub-plan Area 6. 100 Export 100 of total 100 of FCI Nine years Oriented tax liability Prestigious Pioneering units 7. 100 Export 100 of total 100 of FCI Eleven years Oriented Very tax liability Prestigious Units As we have observed earlier, Annexure-C has five companyumns. The second companyumn speaks of type of units, the third companyumn speaks of the extent of percentage of exemption from tax, the fourth companyumn provides for the maximum exemption in terms of percentage of FCI and the fifth and the last companyumn provides the maximum time limit for availing exemption from tax. Prior to issuance of numberification dated 13.12.1996, Annexure C was primarily companyfined to New Units. After the introduction of numberification dated 13.12.1996, the exclusion is made to the expression New Units by specifically including certain type of industrial units by inserting items 1A to 1F. Item 1E specifically talks of New Cement Units except in Tribal Sub-Plan area. The extent of percentage of exemption from tax under Item 1E depends on the type of unit or the industry. If it is a small scale unit, the extent of exemption is 75, if it is medium scale, the extent of exemption is 50, and if it is large scale unit, the extent of percentage of exemption from tax is 25. The maximum time limit for availing exemption from tax is restricted to seven years. Item 4 speaks of New Units producing pollution companytrol equipments, pioneering units and prestigious units. The extent of the percentage of exemption from tax is 75 of total liability and the maximum time limit for availing exemption from tax is 9 years from the date of companymercial production. Item 5 relates to New Very Prestigious Units other than cement units except in Tribal Sub-plan Area and the total percentage of exemption from tax is 90 of total tax liability and the maximum time limit for availing exemption from tax is eleven years. Reverting to state the facts, the respondent-assessee had applied to the State Level Screening Committee for claiming benefit of exemption at 75 under the Scheme. The Committee rejected the claim of the respondentassessee and observed that since the respondent-assessee is a large scale unit companyered under the specific provision of Item 1E of Annexure C, it is entitled to 25 exemption, by its order dated 15.01.1998. Being aggrieved by the said order, the respondent-assessee filed appeal before Rajasthan Tax Board, Ajmer for short, the Board in respect of the calculation of eligible FCI as well as the exemption under the Scheme. The Board while remanding the matter to the State Level Screening Committee held that the respondent-assessee is entitled to 75 tax exemption by holding the respondent-unit as Prestigious Unit under the Scheme. The revenue being aggrieved by the decision of the Board, filed Tax Revision Petition before the High Court under Section 86 2 of the Act. The High Court dismissed the revision petition filed by the revenue and upheld the decision of the Board by holding that the respondent-unit is a Prestigious Unit and therefore, entitled to 75 tax exemption under the Scheme. Aggrieved by the order so passed by the High Court, the Revenue is before us in this appeal. We have heard learned companynsel for the parties to the lis and perused the documents on record as well as the order s passed by the authorities and the High Court, respectively. Shri Rohington Nariman, learned senior companynsel appearing for the appellant submits that the case pleaded by respondent-unit right from the beginning of filing the application before the State Level Screening Committee was that the new unit had made an investment of more than Rs.500/- crores by way of fixed capital assets and therefore they should be placed under the category of Prestigious Unit and accordingly be granted eligibility certificate to claim 75 of exemption from tax for the maximum time limit provided under the Scheme. In aid of this submission, the learned senior companynsel would draw our attention to the application and the accompanying affidavit filed by the respondent-new unit before the State Level Screening Committee. He would further companytend that the respondent-unit before all the authorities below including the High Court had adopted the stand that the fixed capital investment excluding investment made before 05.03.1987 was more than Rs.532/- crores and therefore the respondent-unit is a Prestigious Unit entitled to an exemption of 75 of total tax liability. It is further companytended that the respondent-new unit being New Cement Unit and further being large scale unit though can avail the benefit of the incentive scheme under 1E of Annexure C which provides for exemption upto 25 of total liabilities, it cannot avail the benefit of exemption at the rate of 75 under Item 4 as Prestigious Unit. He would further submit that benefit to cement industry is companyfined to the extent envisaged under the Item 1E of Annexure-C as the said item is a specific provision relating to cement industry and thus would prevail over other provisions which are general in character in terms of reference to new cement unit. Alternatively, it is companytended that the respondent-unit being new cement unit, it may fall under New Very Prestigious Unit, however Item 5 of Annexure C speaks of the New Very Prestigious Units other than cement units except those located in Sub-Plan area, respondent-unit may number be entitled to avail the benefit of the Scheme. Per companytra, learned companynsel, Shri Sudhir Gupta would justify the reasoning and the companyclusion reached by the High Court while rejecting the revenues revision petition and thereby companyfirming the view expressed by the Board. He would, inter alia, submit that Item 1E is only an exception to the general rule envisaged in Item 1 and number an exception to the other Items in the Annexure-C, i.e., Items 2 to 7 as it is number intended to govern the entire field of exemptions made available to the cement industry so as to deny the benefits to a unit even if it falls under another Item envisaging better incentives. He would further submit that since new cement unit is specifically excluded from application of Item 1 new units generally , Item 2 expanding diversifying unit and Item 5 very prestigious unit but number Item 4 prestigious units , Item 6 export oriented prestigious pioneering unit and Item 7 export oriented very prestigious units , it falls that the intention behind such express exclusion is such that but for the said exclusion, cement industries would be included in the said entries. He would strenuously submit that since the tax exemption clauses are made with a beneficent object, i.e., to encourage investment in specified rural semi-urban areas, their companystruction must be liberal such as to companyfer the most beneficial meaning to the provisions. The facts which are number in dispute are that the respondent-assessee hereinafter referred to as the Company established a new cement unit within Panchayat Samiti, Pindwara and companymenced companymercial production some time in the year 1997. It engaged itself in the manufacture of cement. The total capital investment FCI in the new industrial unit claimed by the Company was Rupees 53252.87 Lakhs Rs.532.52/- crores The Company had applied for grant of Eligibility Certificate for exemption from payment of Central Sales Tax and Rajasthan Sales Tax before the State Level Screening Committee, Jaipur, under the Scheme. However, the Screening Committee accepted only Rs.5553.72 Lakhs Rs.55.32 crores as FCI eligible for availing the benefits under the Scheme. On the aforesaid basis the State Level Screening Committee certified that the companypany is entitled to avail exemption of tax to the extent of 25 of the tax liability by treating the same to be a Large Scale Industry. In the appeal, the Board took the view since the Company had invested more than Rs.25 crores and has employed more than 250 workmen, it has the status of New Prestigious Unit and thus, falls within the definition of a Prestigious Unit and should be governed by Item 4 of Annexure C being entitled to avail 75 of total tax liability. This view, as we have already observed, is accepted by the High Court, while dismissing the tax revision petition filed by the revenue. At the outset, we would observe that the High Court has erred in reaching its companyclusion by holding that a the respondent-company would fall into all the three categories of industries referred to in the Scheme, that is to say it is a new unit which is a Large Scale Unit, a Prestigious New Unit and also a Very Prestigious Unit b the classification of a new unit, viz. small scale, medium scale and large scale under item 1E on the basis of scale of investment does number denude a new industrial unit of any type of the special status of Pioneer, Prestigious and Very Prestigious unit under items 4 and 5 to also exclude operation of General entry and c the special entry would number exclude the applicability of general entry in companytext of the Scheme so as to exclude the operation of items 4, 6 and 7. Thereby implying that though there exists an overlap between the general and special provision, the general provision would also be sustained and the two would companyexist. Before we deal with the fact situation in the present appeal, we reiterate the settled legal position in law, that is, if in a Statutory Rule or Statutory Notification, there are two expressions used, one in General Terms and the other in special words, under the rules of interpretation, it has to be understood that the special words were number meant to be included in the general expression. Alternatively, it can be said that where a Statute companytains both a General Provision as well as specific provision, the later must prevail. We are mindful of the principle that the Court should examine every word of a statute in its companytext and must use companytext in its widest sense. We are also in acquaintance with observations of this Court in Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., 1987 SCR 2 1 where Chinnappa Reddy, J. numbering the importance of the companytext in which every word is used in the matter of interpretation of statutes held thus Interpretation must depend on the text and the companytext. They are the basis of interpretation. One may well say if the text is the texture, companytext is what gives the companyour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the companytextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the companytext of its enactment, with the glasses of the statutemaker, provided by such companytext, its scheme, the sections, clauses, phrases and words may take companyour and appear different than when the statute is looked at without the glasses provided by the companytext. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and numberword of a statute can be companystrued in isolation. Statutes have to be companystrued so that every word has a place and everything is in its place. It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule adopted and applied is one of harmonious companystruction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the latin maxim of generalia specialibus number derogant, i.e., general law yields to special law should they operate in the same field on same subject. Vepa P. Sarathi, Interpretation of Statutes, 5th Ed., Eastern Book Company N. S. Bindras Interpretation of Statutes, 8th Ed., The Law Book Company Craies on Statute Law, S.G.G.Edkar, 7th Ed., Sweet Maxwell Justice G.P. Singh, Principles of Statutory Interpretation, 13th Ed., LexisNexis Craies on Legislation, Daniel Greenberg, 9th Ed., Thomson Sweet Maxwell, Maxwell on Interpretation of Statutes, 12th Ed., Lexis Nexis Generally, the principle has found vast application in cases of there being two statutes general or specific with the latter treating the companymon subject matter more specifically or minutely than the former. Corpus Juris Secundum, 82 C.J.S. Statutes 482 states that when companystruing a general and a specific statute pertaining to the same topic, it is necessary to companysider the statutes as companysistent with one another and such statutes therefore should be harmonized, if possible, with the objective of giving effect to a companysistent legislative policy. On the other hand, where a general statute and a specific statute relating to the same subject matter cannot be reconciled, the special or specific statute ordinarily will companytrol. The provision more specifically directed to the matter at issue prevails as an exception to or qualification of the provision which is more general in nature, provided that the specific or special statute clearly includes the matter in companytroversy. Edmond v. U.S., 520 U.S. 651, Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653 The maxim generalia specialibus number derogant is dealt with in Volume 44 1 of the 4th ed. of Halsburys Laws of England at paragraph 1300 as follows The principle descends clearly from decisions of the House of Lords in Seward v. Owner of The Vera Cruz, 1884 10 App Cas 59 and the Privy Council in Barker v Edger, 1898 AC 748 and has been affirmed and put into effect on many occasions If Parliament has companysidered all the circumstances of, and made special provision for, a particular case, the presumption is that a subsequent enactment of a purely general character would number have been intended to interfere with that provision and therefore, if such an enactment, although inconsistent in substance, is capable of reasonable and sensible application without extending to the case in question, it is prima facie to be companystrued as number so extending. The special provision stands as an exceptional proviso upon the general. If, however, it appears from a companysideration of the general enactment in the light of admissible circumstances that Parliaments true intention was to establish thereby a rule of universal application, then the special provision must give way to the general. The question in Seward v. Owner of the Vera Cruz, 1884 10 App Cas 59 was whether Section 7 of the Admiralty Court Act of 1861, which gave jurisdiction to that Court over any claim for damage done by any ship also gave jurisdiction over claims for loss of life which would otherwise companye under the Fatal Accidents Act, 1846. It was held that the general words of Section 7 of the Admiralty Court Act did number exclude the applicability of the Fatal Accidents Act and therefore, the Admiralty Court had numberjurisdiction to entertain a claim for damages for loss of life. The adoption of the aforesaid rule in application of principle of harmonious companystruction has been explained by Kasliwal J. while expressing his partial dissent to the majority judgment in St. Stephens College v. University of Delhi, 1992 1 SCC 558 as follows The golden rule of interpretation is that words should be read in the ordinary, natural and grammatical meaning and the principle of harmonious companystruction merely applies the rule that where there is a general provision of law dealing with a subject, and a special provision dealing with the same subject, the special prevails over the general. If it is number companystructed in that way the result would be that the special provision would be wholly defeated. The House of Lords observed in Warburton v. Loveland, 1824-34 All ER Rep 589 as under No rule of companystruction can require that when the words of one part of statute companyvey a clear meaning it shall be necessary to introduce another part of statute which speaks with less perspicuity, and of which the words may be capable of such companystruction, as by possibility to diminish the efficacy of the first part. Anandji Haridas and Co. P Ltd. v. S.P. Kasture, 1968 1 SCR 661, Patna Improvement Trust v. Lakshmi Devi, 1963 Supp 2 SCR 812, Ethiopian Airlines v. Ganesh Narain Saboo, 2011 8 SCC 539, Usmanbhai Dawoodbhai Memon v. State of Gujarat, 1988 2 SCC 271, South India Corpn. P Ltd. v. Secy., Board of Revenue, Trivandrum, 1964 4 SCR 280, Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, 1984 4 SCC 27 In J.K. Cotton Spinning Weaving Mills Co. Ltd. v. State of U.P., 1961 3 SCR 185, this Court has clarified that number only does this rule of companystruction resolve the companyflicts between the general provision in one statute and the special provision in another, it also finds utility in resolving a companyflict between general and special provisions in the same legislative instrument too and observed that We reach the same result by applying another well known rule of companystruction that general provisions yield to special provisions. The learned Attorney-General seemed to suggest that while this rule of companystruction is applicable to resolve the companyflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a companyflict between general and special provisions in the same legislative instrument. This suggestion does number find support in either principle or authority. 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. In Pretty v. Solly quoted in Craies on Statute Law at p.m. 206, 6th Edn. Romilly, M.R., mentioned the rule thus The rule is, that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most companyprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply. The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned De Winton v. Brecon, Churchill v. Crease, United States v. Chase and Carroll v. Greenwich Ins. Co. Applying this rule of companystruction that in cases of companyflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are number companyered by the special provision, we must hold that clause 5 a has numberapplication in a case where the special provisions of clause 23 are applicable. Lord Cooke of Thorndon pointed out, however, in Effort Shipping Co Ltd. Linden Management, SA 1998 AC 605 that the maxim is number a technical rule peculiar to English statutory interpretation, rather it represents simple companymon sense and ordinary usage. Bennion, Statutory Interpretation, 5th ed. 2008 , p. 1155 states that it is based, like other linguistic canons of companystruction, on the rules of logic, grammar, syntax and punctuation, and the use of language as a medium of companymunication generally. As Lord Wilberforce observed in Associated Minerals Consolidated Ltd v Wyong Shire Council 1975 AC 538, 554, that it is still a matter of legislative intention, which the companyrts endeavour to extract from all available indications. In Waverly Jute Mills Co. Ltd. v. Raymon Co. India P Ltd., 1963 3 SCR 209 and Union of India v. India Fisheries P Ltd., AIR 1966 SC 35 this Court has observed that when there is an apparent companyflict between two independent provisions of law, the special provision must prevail. In CCE v. Jayant Oil Mills P Ltd., 1989 3 SCC 343 this Court has accepted the aforesaid rule as the basic rule of companystruction that is to say a more specific item should be preferred to one less so. In Sarabjit Rick Singh v. Union of India, 2008 2 SCC 417 this Court has in fact followed the aforesaid precedents thus The Act is a special statute. It shall, therefore, prevail over the provisions of a general statute like the Code of Criminal Procedure. This Court has numbericed the application of the said rule in companystruction of taxing statutes along with the proposition that the provisions must be given the most beneficial interpretation in CIT v. Shahzada Nand Sons, 1966 3 SCR 379 The classic statement of Rowlatt, J., in Cape Brandy Syndicate IRC, 1921 1 KB 64, 71 still holds the field. It reads In a Taxing Act one has to look merely at what is clearly said. There is numberroom for any intendment. There is numberequity about a tax. There is numberpresumption as to a tax. Nothing is to be read in, numberhing is to be implied. One can only look fairly at the language used. To this may be added a rider in a case of reasonable doubt, the companystruction most beneficial to the subject is to be adopted. But even so, the fundamental rule of companystruction is the same for all statutes, whether fiscal or otherwise. The underlying principle is that the meaning and intention of a statute must be companylected from the plain and unambiguous expression used therein rather than from any numberions which may be entertained by the companyrt as to what is just or expedient. The expressed intention must guide the companyrt. Another rule of companystruction which is relevant to the present enquiry is expressed in the maxim, generalia specialibus number derogant, which means that when there is a companyflict between a general and a special provision, the latter shall prevail. The said principle has been stated in Craies on Statute Law, 5th Edn., at p. 205, thus The rule is, that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most companyprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply. When the words of a section are clear, but its scope is sought to be curtailed by companystruction, the approach suggested by Lord Coke in Heydon case, 1584 3 Rep 7b, yield better results To arrive at the real meaning, it is always necessary to get an exact companyception of the aim, scope, and object of the whole Act to companysider, according to Lord Coke 1 What was the law before the Act was passed 2 What was the mischief or defect for which the law had number provided 3 What remedy Parliament has appointed and 4 The reason of the remedy. emphasis supplied In LIC v. D.J. Bahadur, 1981 1 SCC 315 this Court was companyfronted with the question as to whether the LIC Act is a special legislation or a general legislation and while companysidering the rule in discussion, this Court observed thus 49. the legal maxim generalia specialibus number derogant is ordinarily attracted where there is a companyflict between a special and a general statute and an argument of implied repeal is raised. Craies states the law companyrectly 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, 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 Ashoka Marketing Ltd. v. Punjab National Bank, 1990 4 SCC 406 this Court has placed reliance upon Bennion, Statutory Interpretation supra and J.K. Cotton Spinning Weaving Mills case supra , amongst others, and explaining the rationale of this rule has reiterated the law as under In U.P. State Electricity Board v. Hari Shanker Jain this Court has observed In passing a special Act, Parliament devotes its entire companysideration to a particular subject. When a general Act is subsequently passed, it is logical to presume that Parliament has number repealed or modified the former special Act unless it appears that the special Act again received companysideration from Parliament. In Life Insurance Corporation v. D.J. Bahadur Krishna Iyer, J. has pointed out In determining whether a statute is a special or a general one, the focus must be on the principal subject matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purpose it may be special and we cannot blur distinctions when dealing with finer points of law. In U.P. SEB v. Hari Shankar Jain, 1978 4 SCC 16, this Court has companycluded that if Section 79 c of the Electricity Supply Act generally provides for the making of regulations providing for the companyditions of service of the employees of the Board, it can only be regarded as a general provision which must yield to the special provisions of the Industrial Employment Standing Orders Act in respect of matters companyered by the latter Act, and observed that 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, and Thorpe v. Adams. In Gobind Sugar Mills Ltd. v. State of Bihar, 1999 7 SCC 76 this Court has observed that while determining the question whether a statute is a general or a special one, focus must be on the principal subjectmatter companypled with a particular perspective with reference to the intendment of the Act. With this basic principle in mind, the provisions must be examined to find out whether it is possible to companystrue harmoniously the two provisions. If it is number possible then an effort will have to be made to ascertain whether the legislature had intended to accord a special treatment vis--vis the general entries and a further endeavour will have to be made to find out whether the specific provision excludes the applicability of the general ones. Once we companye to the companyclusion that intention of the legislation is to exclude the general provision then the rule general provision should yield to special provision is squarely attracted. Having numbericed the aforesaid, it companyld be companycluded that the rule of statutory companystruction that the specific governs the general is number an absolute rule but is merely a strong indication of statutory meaning that can be overcome by textual indications that point in the other direction. This rule is particularly applicable where the legislature has enacted companyprehensive scheme and has deliberately targeted specific problems with specific solutions. A subject specific provision relating to a specific, defined and descriptable subject is regarded as an exception to and would prevail over a general provision relating to a broad subject. In the instant case, the item 1E is subject specific provision introduced by an amendment in 1996 to the Scheme. The said amendment removed new cement industries from the number-eligible Annexure-B and placed it into Annexure-C amongst the eligible industries. It classified the cement units for eligibility of tax exemption into three categories small, medium and large. The said categories are companyprehensive whereby small and medium cement units have been prescribed to have maximum FCIs of Rs.60/- lakhs and Rs.5/- crores, respectively and large to be over the FCI of Rs.5/- crores. The maximum ceiling for large cement units has been purposefully left open and thereby reflects that the intention clearly is to provide for an all-inclusive provision for new cement units so as to avoid any ambiguity in determination of appropriate provision for applicability to new cement units to seek exemption. It leaves numberdoubt that what is specific has to be seen in companytradistinction with the other items entries. The provision more specific than the other on the same subject would prevail. Here it is subject specific item and therefore as against items 1, 4, 6 and 7, which deal with units of all industries and number only cement, item 1E restricted to only cement units would be a specific and special entry and thus would override the general provision. The proposition put forth by the respondent-Company that the companystruction which is most beneficial to the assessee must be applied and adopted fails to impress upon us its application in this case. Howsoever, it is true that the canons of companystruction must be applied to extract most beneficial re-conciliation of provisions. In case of fiscal statute dealing with exemption, it would require interpretation benefiting the assessee. But here the introduction of the subject specific entry vide amendment into general scheme of exemption speaks volumes in respect of intention of the legislature to restrict the benefit to cement industries as available only under Item 1E, which categorically classified them into three as per their FCI.

CIVIL APPELLATE JURISDICTION Civil-Appeal No. 947 of 1975. Appeal by Special Leave from the Judgment and order dated the 2nd April, 1971 of the Punjab and Haryana High Court in Civil Writ No. 1039 of 1974. Kapil Sibal and S. K. Gambhir for the appellant. K. Nandy for the respondent. The Judgment of the Court was delivered by FAZAL ALI, J. What appears to have been a clear case of refusal of admission to the appellant or the cancellation of his candidature at the proper time has been companypletely bungled and destroyed by the inherent inconsistency and seemingly companytradictory stand taken by the respondent and lack of proper vigilance on the part of the Head of the Department of Law. The facts of the present case lie within a very narrow companypass and only two short points of law have been raised before us by Mr. Kapil Sibbal learned companynsel for the appellant. The appellant was a teacher in the Government High School, Dumarkha in the District of Jind Haryana . The University of Kurukshetra was running law classes for three years Course and had extended the facility to persons who were in service to attend the evening classes and companyplete the three-years companyrse in that manner. The appellant decided to take the benefit of the facility given by the Kurukshetra University and joined the LL.B. Part I classes some time in the year 1971. According to the University statute a student of the Faculty of Law was given the option to clear certain subjects in which he may have failed at one of the examinations before companypleting the three years companyrse. The students were to appear in six papers each year. In April 1972 the petitioner appeared in the annual examination of Part I but failed in three subjects, namely, Legal Theory, Comparative Law and Constitutional Law of India Subsequently he was promoted to Part II which he joined in the year 1972. Under the University Statute the appellant was to appear in part II Examination in April 1973. On April 26, 1973 the appellant applied for his Roll number to the University in order to reappear in the subjects in which he had failed and to clear them but he was refused permission and according to the appellant without any reasons. The annual examination for Part II was to be held on May 19, 1973 and the appellant approached the University for granting him provisional permission to appear subject to his getting the permission from his employer to attend the Law Faculty. In between it appears that the appellant had been prosecuted for offence under ss. 376, 366 and 363 I.P.C. and was suspended during the period when the case was going on against him. The appellant was, however, acquitted and was reinstated by his employer on August 22, 1972. It would thus appear that on May 18, 1973 as also on April 25, 1973 when he had applied for his Roll Number to clear the subjects, the stigma of criminal case had been companypletely removed. To start the thread the appellant as mentioned already approached the University on May 18, 1973 and wrote a letter to the University authorities giving an undertaking that if he was number able to get the requisite permission from his employer to join the Law Classes, he would abide by any order that the University may pass. It appears that on the basis of this undertaking he was allowed to appear at the Part II Examination on May 19, 1973. On June 20, 1973 the appellant wrote to the University authorities that the companydition on which he was to get the permission was number at all necessary and that his results may number be announced. On June 26, 1973 the respondent informed the appellant that since his percentage was short in Part I his candidature stood cancelled. Thereafter there were series of companyrespondence between the appellant and the University authorities but the appellant was refused admission to LL.B. Part III Class. The appellant then filed an appeal to the Vice Chancellor of the University on September 26, 1973 which was also rejected on November 3, 1973. Thereafter the appellant approached the High Court of Punjab and Haryana for a writ of certiorari to quash the order of the respondent canceling the candidature of the appellant but the High Court after issuing numberice to the other side and persuing the application form rejected the petition in limine. Hence this appeal by the appellant by special leave to this Court. The sheet-anchor of the case of the respondent was that the appellant had been involved in a criminal case and therefore the Head of Institution companyld number give the certificate in the prescribed form that the appellant bore a good moral character. Subsequently it was said that as the appellant was short of the requisite percentage in LL.B. Part I he companyld number insist on his being admitted to the Part II Examination and lastly the stand taken by the respondent was that the Evening Law Classes were held to benefit the members of the Services and it was incumbent on the appellant to have obtained permission of his superior officers and as he did number do so, the University was well within its rights in refusing him permission to appear at the Part II Examination or in admitting him to Part III Law companyrse. A long companynter-affidavit has been filed by the respondent of which some paragraphs are extracted below Para 4 of the writ petition is rebutted. The petitioner was involved in a case under sections 363 and 366 of the Indian Penal Code. As a result, he was suspended. He remained under suspension till August 23, 1972, when he was reinstated. Consequently, he attended the lectures in Part I. So far as Part II is companycerned, the petitioner didnt attend the requisite number of lectures. According to the numberice displayed on the numberice board of the Department of Laws on January 24, 1973, the petitioner was falling short of attendance by 48 lectures upto December, 1972. There after, another numberice was displayed on the numberice board on r April 16, 1973, according to which the petitioner was falling short of attendance by 46 lectures. As such, the averment in the writ petition that he attended his lectures according to the rules is absolutely false. Vide letter dated November 17, 1972, the Headmaster, Government High School, Dumarkha District Jind made an inquiry from the University regarding the petitioners result in the LL.B. Part I Examination. The intimation was sent by the University vide their letter dated November 17, 1972. Thereafter, a letter dated January 1, 1973, was received in the University from the District Education officer stating inter alia that it may also be pointed out that Shri Siri Krishan, Teacher was reinstated on 23-3-1972 and there after he is attending his duties in School. I am amazed to learn that he is declared by your Law Department to be attending classes in LL.B. Part II simultaneously. A companyy of this letter is appended as Annexure R.1 to this affidavit. A perusal of this letter would show that the petitioner had number been granted permission by his employer to attend the law classes at the University. Furthermore, the approximate distance between his station of posting and the University is more than fifty miles. Keeping m view the fact that he was posted in the interior of District Jind, it is impossible that the petitioner companyld have attended the requisite number of lectures. Evidently, the petitioner was himself aware of the fact that he had number attended the re quisite number of lectures. It is also incorrect to suggest that the petitioners name companyld be sent for the examination only if he had companypleted and required minimum attendance of lectures. The examination forms are always sent in December. Rule 2 b of Ordinance 10 of the Kurukshetra University Calendar, Volume I, provides as under inter alia- B. that he has attended regular companyrse of study for the prescribed number of academic years. Certificate b will be provisional and can be withdrawn at any time before. the examination if the applicant fails to attend the prescribed companyrse of lectures before the end of his term. 5-L159SCI/76 The petitioners examination form was, as such, sent provisionally and companyld be withdrawn at any time in case of his failure to attend the requisite percentage of lectures. 23. i In reply to sub-para i of the writ petition, it is submitted that the cancellation of the candidature of the petitioner for LL.B. Part II was number based on any extraneous companysiderations. Under the rules of the University every student is required to attend the prescribed companyrse of lectures delivered to the class in each of the subjects offered. , I Mr. Sri Krishan was short of attendance which was duly numberified on the numberice board of the Department of Law twice once on January 24, 1973 and again on April 16, 1973. The admission of the petitioner to Law companyrse in the University was under dispute as a result of a companyplaint from the District Education officer, Jind. The petitioner came to the Magistrate on May 18, 1973, with an application that pending final decision of his case, he may be allowed to sit in the examination provisionally at his own risk and responsibility. In this application, the petitioner did number mention that he was also falling short in lectures as numberified by the Head of the Department of Law. Since the office was closed at that time and the examination was to start at 8.00 a.m. On May 19, 1973, the candidate was allowed to appear in the examination provisionally at his own risk and responsibility. In reply to sub-para viii of the writ petition, it is submitted that in the admission numberice printed at page 75 in the Hand Book of Information for the session 1971-72 to which the application for admission to the Department forms a part, mentions that LL.B. Classes in the evening were for employed persons only. It was, therefore, implied that the applicant while seeking admission in this class would obtain the approval of his employers. This approval became particularly necessary because of the companystant companyplaints of ill serious nature from the employers the Government of the petitioner who insisted that he must obtain such permission. It may be recalled that the petitioner in his undertaking to the Registrar on May 18, 1973 promised to produce the required permission. It will be seen from the above affidavit that the stand taken by the respondent is by numbermeans companysistent. It may be mentioned that at one stage the University takes the stand that it was a case of shortage of , percentage and therefore the appellant was refused admission to appear at Part II Examination. Later on this stand is given up and the respondent averred that as the appellant did number get the permission of his superior officers and since the University was moved by the District Education Officer to cancel the candidature of the appellant the impugned order was passed by the University. It was also argued by Mr. S. K. Nandy companynsel for the respondent that the appellant knew fully well that his percentage was short and in spite of that be fraudulently suppressed this fact from the University authorities when he was allowed to appear in the LL.B. Part I Examination in April 1972. Mr. Sibbal learned companynsel for the appellant submitted two points before us. In the first place it was argued that once the appellant was allowed to appear at L.L.B. Part II Examination held on May 19, 1973 his candidature companyld number be withdrawn for any reason whatsoever, in view of the mandatory provisions of clause 2 b of the Kurukshetra University Calendar Vol. I, ordinance X under which the candidature companyld be withdrawn before the candidate took the examination. Secondly it was argued that the order of the University was mala fide because the real reason for cancelling the candidature of the appellant was the insistence of the District Education officer that the appellant should number have been admitted to the Law Faculty unless he had obtained the permission of his superior officers. In order to appreciate the first companytention it may be necessary to extract the relevant portions of the statute companytained in Kurukshetra University Calendar Volume I, ordinance X. Clause 2 of this ordinance runs as follows The following certificates, signed by the Principal of the College Head of the Department companycerned, shall be required from each applicant- a that the candidate has satisfied him by the production of the certificate of a companypetent authority that he has passed the examinations which qualified him for admission to the examination and b that he has attended a regular companyrse of study for the prescribed number of academic years. Certificate b will be provisional and can be withdrawn at any time before the examination if the applicant fails to attend the prescribed companyrse of lectures before the end of his term. The last part of this statute clearly shows that the University companyld withdraw the certificate if the applicant had failed to attend the prescribed companyrse of lectures. But this companyld be done only before the examination. It is, therefore, manifest that once the appellant was allowed to take the examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the applicant cannot be refused admission subsequently for any infirmity which should have been looked into before giving the applicant permission to appear. It was, however, submitted by Mr. Nandy learned companynsel for the respondent that the names of the candidates who were short of percentage were displayed on the Notice Board of the College and the appellant was fully aware of the same and yet he did number draw the attention of the University authorities when he applied for admission to appear in LL.B. Part II Examination. Thus the appellant was guilty of companymitting serious fraud and was number entitled to any indulgence from this Court. It appears from the averments made in the companynteraffidavit that according to the procedure prevalent in the College the admission forms are forwarded by the Head of the Department in December preceding the year when the Examination is held. In the instant case the admission form of the appellant must have been forwarded in December 1971 whereas the examination was to take place in April May 1972. It is obvious that during this period of four to five months it was the duty of the University authorities to scrutinise the form in order to find out whether it was in order. Equally it was the duty of the Head of the Department of Law before submitting the form to the University to see that the form companyplied with all the requirements of law. If neither the Head of the Department number the University authorities took care to scrutinise the admission form, then the question of the appellant companymitting a fraud did number arise. It is well settled that where a person on whom fraud is companymitted is in a position to discover the truth by due diligence, fraud is number proved. It was neither a case of suggestio falsi, or suppressio veri. The appellant never wrote to the University authorities that he had attended the prescribed number of lectures. There was ample time and opportunity for the University authorities to have found out the defect. In these circumstances, therefore, if the University authorities acquiesced in the infirmities which the admission form companytained and allowed the appellant to appear in Part I Examination in April 1972, then by force of the University Statute the University had numberpower to withdraw the candidature of the appellant. A somewhat similar situation arose in Premji Bhai Ganesh Bhai Kshatriya v. Vice-Chancellor, Ravishankar University, Raipur and others ii where a Division Bench of the High Court of Madhya Pradesh observed as follows From the provisions of ordinance Nos. 19 and 48 it is clear that the scrutiny as to the requisite attendance of the candidates is required to be made before the admission cards are issued. Once the admission cards are issued permitting the candidates to take their examination, there is numberprovision in Ordinance No. 19 or ordinance No. 48 which would enable the Vice-Chancellor to withdraw the permission. The discretion having been clearly exercised in favour of the petitioner by permitting him to appear at the examination, it was number open to the Vice-Chancellor to withdraw that permission subsequently and to withhold his result. We find ourselves in companyplete agreement with the reasons given by the Madhya Pradesh High Court and the view of law taken by the learned Judges. In these circumstances, therefore, once the appellant was allowed to appear at the Examination in May 1973, the respondent had numberjurisdiction to cancel his candidature for that examination. This was number a case where on the undertaking given by a candidate for fulfilment of a specified companydition a provisional admission was given by the University to appear at the examination which companyld be withdrawn at any moment on the number-fulfilment of the aforesaid companydition. If this was the situation then the candidate himself would have companytracted out of the statute which was for his benefit and the statute A.T.R. 1967 M. P. 194,197. therefore would number have stood in the way of the University authorities in cancelling the candidature of the appellant. As regards the second point that the order was passed mala fide, it is difficult to find any evidence of mala fide in this case. The order suffers from yet another infirmity. The annexures filed by the appellant and the respondent as also the allegations made in the companynter affidavit clearly show that there were series of parleys and companyrespondence between the District Education officer and the respondent in the companyrse of which the respondent was being persuaded, to the extent of companypulsion, to withdraw the candidature of the appellant because he had number obtained the permission of his superior officers. Mr. Nandy appearing for the respondent has number been able to show any provision in the statutes of the University which required that the candidates attending the evening law classes who are in service should first get the prior permission of their superior officers. We have also perused the University Statute placed before us by companynsel for the appellant and we do number find any provision which companyld have afforded justification for the respondent to cancel the candidature of the appellant on the ground that he had number obtained the previous permission of his superior officers. Mr. Nandy companynsel for the respondent placed great reliance on the letter written by the appellant to the respondent wherein he undertook to file the requisite permission or to abide by any other order that may be passed by the University authorities. This letter was obviously written because the appellant was very anxious to appeal in Part II Examination and the letter was written in terrorem and in companyplete ignorance of his legal rights. The appellant did number know that there was any provision in the University Statute which required that he should obtain the permission of his superior officers. But as the respondent was bent on prohibiting him from taking the examination he had numberalternative but to write a letter per force. It is well settled that any admission made in ignorance of legal rights or under duress cannot bind the maker of the admission. In these circumstances we are clearly of the opinion that the letter written by the appellant does number put him out of companyrt. If only the University authorities would have exercised proper diligence and care by scrutinising the admission form when it was sent by the Head of the Department to the University as Ear back as December 1971 they companyld have detected the defects or infirmities from which the form suffered according to the University Statute. The Head of the Department of Law was also guilty of dereliction of duty in number scrutinising the admission form of the appellant before he forwarded the same to the University. Moreover, the stand taken by the respondent that as the appellant did number get the requisite permission from his superior officers, therefore he was number allowed to appear at the examination, does number merit companysideration, because the impugned order does number mention this ground at all and it was number open to the respondent to have refused admission to the appellant to LL.B. Part III or for that matter to refuse permission to appear at the examination on a ground which was number mentioned in the impugned order. Having gone into the circumstances mentioned above, we are of the view that the impugned order suffers from errors of law patent on the face of the record, and in any event this was number a case which should have been dismissed by the High Court in limine. The appeal is accordingly allowed and the order of the University dated June 26, 1973, is hereby quashed by a writ of certiorari. The respondent is directed to declare the result of LL.B. Part II Examination in which the appellant had appeared on May 19, 1973 and also to give him an opportunity to appear in the three subjects in which he had failed in LL.B. Part I Examination, at the next examination which may be held by the University. In the peculiar circumstances of this case, however, we leave the parties to bear their own companyts.

WITH CIVIL APPEAL No.6121 OF 2000 State of West Bengal Appellant Versus M s Shrey Mercantile Pvt. Ltd. Others Respondents AND CIVIL APPEAL No.412 OF 2001 Calcutta Municipal Corporation Others Appellants Versus M s Avenue Properties P Ltd. Anr. Respondents KAPADIA, J. The short question which arises for determination in these civil appeals by grant of special leave by Calcutta Municipal Corporation is whether the imposition for the process of change in the name of the owner in the assessment books of the companyporation is in the nature of a fee or tax. For the sake of companyvenience, we refer to the facts of Civil Appeal No.5631 of 2000. Premises bearing No.9A, Jatindra Mohan Avenue, Calcutta - 700 006 belonged to Tapas Ghosh, Meenakshi Sinha and Gayatri Chandra. By several deeds of companyveyance, they sold the said premises to M s Shrey Mercantile P Ltd., M s Drishti Mercantile P Ltd. and M s KIC Resources Ltd. hereinafter referred to as the developers . The building in the premises was very old and was in a dilapidated companydition. The developers decided to companystruct a new building after demolishing the existing old structure. The developers submitted the building plan for sanction which the companyporation refused to accept without the names of the developers being brought on record by way of mutation. On 21.3.1997, the developers applied for mutation by deletion of the names of the previous owners and substitution of their names for which the companyporation demanded mutation fees of Rs.3 lacs under Calcutta Corporation Taxation Regulations, 1989. This demand was challenged by filing of writ petition in the Calcutta High Court. The Calcutta Municipal Corporation Amendment Act, 1988 was passed by the State Legislature, which was published in the gazette on 9.1.1989 and which came into effect from 20.2.1989. Section 7 of the Amendment Act XXI of 1988 provided as under Section 7. Amendment of Section 183 In subsection 183 of the Principal Act 1 after the words Under this Section, the words and upon payment of such fees as may be determined by regulation shall be inserted, and 2 the words in such form and in such manner as may be prescribed shall be omitted. In terms of the aforestated Amendment Act, the companyporation made Calcutta Corporation Taxation Regulations, 1989, in purported exercise of the powers companyferred by section 602 read with section 183 5 . The said regulations inter alia provided that fees for recording of transfer or devolution of title of any land or building under section 183 shall be as per the schedule reproduced hereunder SCHEDULE In the case of transfer agreement for sale or companyt of acquisition or in the case where there is certificate or in the case of testamentary succession Amount of fee in rupees a If the price value of the property declared does number exceed rupees fifty thousand. 0.5 of the price value b Where such price value exceeds rupees fifty thousand but does number exceed rupees one lakh. 1 of the price value. c Where such price value exceeds rupees one lakh but does number exceed rupees three lakh. 1.5 of the price value. d Where such price value exceeds rupees three lakhs but does number exceed rupees five lakhs. 2 of the price value. e Where such price value exceed rupees five lakhs. 2.5 of the price value. In the case of transfer by a deed of lease sublease assignment or such other similar instrument, the amount to be paid will be at the same rates as at 1 above, on the value shown in the document for Stamp Duty Provided that in calculating the amount of fee to be paid under 1 or 2 above any fraction of a rupee amounting to fifty paise or more shall be rounded off to the nearest rupee. In the case of intestate succession Amount of fee a If the last decided annual valuation does number exceed rupees three thousand. Rs.25 b If such valuation exceeds rupees three thousand but does number exceed rupees six thousand. Rs.50 c If such valuation exceeds rupees six thousand but does number exceed rupees ten thousand. Rs.100 d If such valuation exceeds rupees ten thousand but does number exceed rupees fifteen thousand. Rs.200 e If such valuation exceeds rupees fifteen thousand Rs.250 In case of thika tenant hut owner in a Bustee hut premises. Rs.20 In the writ petition, the developers pleaded that the said regulations in the guise of imposing a fee had in fact imposed a tax without sanction of law that the impost was on ad valorem basis and number in companymensuration with the expenses incurred by the companyporation in rendering the alleged services that prior to the amendment of section 183 by Act XXI of 1988, numberfee was imposed for mutation that after the amendment and framing of the aforestated regulations, enormous amounts were sought to be levied on ad valorem basis in the case of mutations companysequent upon inter-vivos transfers vis-a-vis mutations on account of intestate successions where fees were charged at a flat rate, particularly when the functions performed by the companyporation with regard to the mutations remained the same. That, whether the property was valued below Rs.50,000/- or whether it was valued above Rs.2 lacs, the function of the companyporation with regard to mutation was the same. It was further averred that whatever may be the cause of mutation, whether it is because of transfer or change of ownership due to succession or otherwise, the function of the companyporation in the matter of mutation remained the same and even the expenses, if any, incurred by the companyporation in performing such functions did number vary, whatever may be the value of the property or the cause of mutation. It was further averred in the writ petition that under the provisions of the Act, the owner was primarily responsible to the companyporation to pay the companysolidated rate and, therefore, it was necessary for the companyporation for the purposes of recovery of companysolidated rate to maintain records relating to the ownership of the premises including the name and address of the owner who was liable to pay the companysolidated rate. Further, the companyporation was required to maintain municipal assessment book under section 191 companytaining the particulars of the premises, the names and addresses of the owners and the annual value of the premises and, therefore, in order to keep track of the persons liable to pay the tax, it was necessary to record the change in the ownership to facilitate the recovery of taxes and, therefore, the companyporation was number providing any special civic service to the citizens. In the circumstances, there was numberjustification for levy of so called fees. Further, the said levy was on ad valorem basis which circumstance indicated that in the garb of fees, the companyporation purported to levy and recover taxes which it was number authorized to do under section 183 5 of the 1980 Act. Moreover, the aforestated Taxation Regulations were also challenged as arbitrary, irrational, unjustified and discriminatory on the ground that the companyporation had numberauthority to charge different rates depending on the cause of transfer and value of the property, particularly when the act of mutation was the same, be it transfer or devolution of right, title and interest by way of testamentary or intestate succession. By judgment and order dated 31.1.2000, the learned Single Judge, held, that mutation was the process of change of name of the owner in the books of the companyporation that the impugned regulations had failed to satisfy the requirement of quid pro quo and that the companyporation was number justified in using its power to levy fees on mutation by charging large sums which partake of the character of taxation. According to the learned Judge, a bare look at the schedule of the regulations shows that in the garb of imposition of mutation fees, the companyporation has done numberhing other than to impose a tax. Accordingly, the writ application was allowed. Aggrieved by the aforestated judgment of the learned Single Judge, the matter was carried in appeal by the companyporation to the Division Bench. According to the impugned judgment of the Division Bench, the essential purpose of section 183 was to mutate somebodys name that numberother service of any kind whatsoever was rendered to the rate-payers that under section 183 5 . mutation fee was merely to be prescribed by regulations and number to impose a tax in the garb of fees that numbersuch delegation was ever made in favour of the companyporation that the rate of levy on ad valorem basis itself indicated that the levy was in the nature of a tax that the different rates prescribed for mutation in the case of transfers vis-a-vis intestate succession indicated that the levy was a tax and number a fee that the said provision was number for the benefit of the owner of the premises but it was for statutory companypliance, failure to companyply wherewith was to attract penal companysequences that numberbenefit was companyferred on the rate-payers and on the companytrary, the said provision was for the benefit of the companyporation that the nature of the services rendered to the ratepayers for mutation had numberconnection with the quantum of fees sought to be levied that the fee was neither regulatory number companypensatory and that the impugned regulations were discriminatory inasmuch as the purchasers were subjected to a higher fee than those who got the ownership of property by way of intestate succession, wholly overlooking the fact that both these groups for all practical purposes of taxation companystituted one class by themselves. Accordingly, the impugned regulations were held to be arbitrary and violative of articles 14 and 246 of the Constitution. Mr. Tapash Ray, learned senior advocate appearing on behalf of the appellant submitted that numerous services were rendered by the companyporation under the Act to the citizens, for which it needed funds. It was urged that the difference between a fee and a tax based on quid pro quo which once existed is number almost irrelevant as a test and, therefore, the High Court had erred in holding that mutation fee was bad on account of absence of quid pro quo. He submitted that the law as it stands today numberlonger requires nexus between the service rendered and the fee charged. He submitted that even otherwise for the purposes of ascertaining the quid pro quo, it was incumbent upon the High Court to companysider various obligatory and discretionary functions of the companyporation as laid down in sections 29 and 30 of the Act and the spending of mutation fees so companylected. He submitted that the fees companylected were applied to meet obligatory and discretionary functions and, therefore, the requirement of quid pro quo was satisfied. He submitted that with the companylection of fees and taxes, the companyporation was able to meet a fraction of its expenses which were needed for the owners and occupiers of a building and, therefore, the High Court had erred in holding that the imposition was in the nature of a tax and number a fee, for want of quid pro quo. Learned companynsel further submitted that a tax and a fee are both companypulsory exaction of money by public authorities and a levy in the nature of a fee does number cease to be of that character merely because it does number have a direct relation to the actual service rendered by the authority to each individual who obtains the benefit of the service. The element of quid pro quo, according to the learned companynsel, was number always a sine qua number for a fee number is the element of quid pro quo necessarily absent in every tax. According to the learned companynsel, the purchasers of land and building belong to a separate class from persons who inherit property under a testamentary disposition or by way of intestate succession that these persons companystitute different classes categories and, therefore, there was numberviolation of article 14 of the Constitution in the matter of levy of mutation fees at different rates from different categories of persons. In the circumstances, it was submitted that the levy of mutation fees by the companyporation was in the nature of a fee in terms of section 183 5 and, therefore, the companyporation was entitled to prescribe mutation fees which it has done under the above Regulations and, therefore, there was numberviolation of articles 14 and 246 of the Constitution. Shri Pradip Kumar Ghosh, learned senior companynsel appearing on behalf of the original petitioners submitted that although mathematical precision is number accepted in the matter of companyrelation between the service rendered and the imposition, the law as it stands today certainly requires an imposition in the nature of fees to be based on rendition of service that numbercharge can be levied as a fee without any companyrelation between the amount of levy and the companyt of any service that in the present case, the companyporation in the matter of taxation was duty bound to maintain assessment record companytaining names of the occupiers, names of the owners, description of the property, annual value etc. and as a matter of taxation, the companyporation had to maintain up to date record in order to facilitate expeditious recovery of taxes from the existing owners occupiers. According to the learned companynsel, mutation was the process for change in the name of the owner in the assessment books of the companyporation and, therefore, numberservice of special kind was rendered to the rate-payers in the making of mutation entry in the assessment books of the companyporation that the companyporation was number rendering any extra service to ratepayers in the matter of mutation which was a part of taxing process under the Act that there was total absence of quid pro quo that the levy was discriminatory as the incidence thereof was unequal on the persons falling within the same class that there was numberrational reason for imposing higher rate on purchasers vis--vis persons who became owners by way of intestate succession that the levy based on ad valorem basis itself indicated that the companyporation was trying to recover taxes in the garb of fees which it was number authorized to do and, therefore, the levy was ultra vires articles 14 and 246 of the Constitution. In the circumstances, it was submitted that numberinterference was called for in the impugned judgment of the High Court. The Calcutta Municipal Corporation Act was enacted on 28.12.1981 to amend and companysolidate the law relating to municipal affairs of Calcutta. Chapter IV deals with power and functions of the municipal authorities and the officers of the companyporation. Section 29 deals with obligatory functions of the companyporation and it lays down that the companyporation shall having regard to the available resources provide civic services including water supply, sewerage and drainage to the ratepayers. One of the functions mentioned in section 29 z is to companypile and maintain records relating to the administration and functions of the companyporation under the Act. Section 30 deals with discretionary functions of the companyporation. Section 32 deals with authentication of the orders of the companyporation. Part- III deals with Finance. Chapter VIII which falls in part-III refers to the setting up of the municipal fund in five accounts, namely, water-supply account, road development and maintenance account, general account etc. Chapter XII deals with taxation. Under section 170, the companyporation is empowered to levy a companysolidated rate on lands and buildings. Under section 170 2 , the levy, assessment and companylection of taxes mentioned in section 170 1 is required to be done in accordance with the provisions of the Act and the rules made thereunder. Section 174 deals with determination of annual valuation. Section 178 deals with municipal assessment companye. Section 179 deals with periodical assessment of lands and buildings situated in any ward of the companyporation. Section 180 deals with revision of assessment. Section 181 deals with submission of returns for purposes of assessment. Under the said section, the municipal companymissioner is authorized to call upon any person primarily liable for payment of companysolidated rate of land or building to give such particulars as may be required to determine the annual value of such land or building. Section 182 deals with the submissions of returns for purposes of revision in the annual value of land and building. Section 183 is the section which deals with numberice of transfers. Under section 183 1 , whenever the title of any person to any land or building is transferred, such person, if primarily liable for the payment of companysolidated rate on such land or building, and the transferee to whom the title is transferred shall within the stipulated period give numberice of such transfer to the municipal companymissioner. Under section 183 2 in the event of the death of any person primarily liable, the transferee, on whom the title devolves, is required within the stipulated period to give numberice of such devolution to the municipal companymissioner. Under section 183 4 , if the transferor fails to give numberice, he is made liable to penalty. Further, he is also made liable for payment of companysolidated rate on such land or building till he gives such numberice to the municipal companymissioner. Under section 183 5 , it is further provided that the municipal companymissioner shall on receipt of such numberice of transfer or devolution of title record such transfer or devolution in the assessment book subject to payment of such fees as may be determined by the regulations. Section 185 deals with amendment of assessments. Section 186 deals with objections against valuation of assessment. Section 192 deals with amendment of municipal assessment book by insertion therein of the name of any person whose name ought to have been inserted or by striking out the name of any person number liable for payment of companysolidated rate. Under section 602 of the Act, the companyporation is empowered to make regulations number inconsistent with the provisions of the Act for discharging functions under the Act. In exercise of the power companyferred under section 602 read with section 183 5 , the companyporation with the approval of the State Government framed the following regulations called Calcutta Municipal Corporation Taxation Regulations, 1989, which are reproduced hereinbelow REGULATIONS 1. a These regulations may be called The Calcutta Municipal Corporation Taxation Regulations, 1989. They shall companye into force on the date of their publication in the Official Gazette. In these regulations, unless the companytext otherwise requires the Act means the Calcutta Municipal Corporation Act, 1980 West Ben, Act LIX of 1980 and the other terms and expressions used herein and number defined shall have the same meaning as in the Act. Fees for recording of transfer or devolution of title of any land or building under sub-section 5 of section 183 of the Act shall be as per Schedule below- SCHEDULE In the case of transfer agreement for sale or companyt of acquisition or in the case where there is certificate or in the case of testamentary succession Amount of fee in rupees a If the price value of the property declared does number exceed rupees fifty thousand. 0.5 of the price value b Where such price value exceeds rupees fifty thousand but does number exceed rupees one lakh. 1 of the price value. c Where such price value exceeds rupees one lakh but does number exceed rupees three lakh. 1.5 of the price value. d Where such price value exceeds rupees three lakhs but does number exceed rupees five lakhs. 2 of the price value. e Where such price value exceed rupees five lakhs. 2.5 of the price value. In the case of transfer by a deed of lease sublease assignment or such other similar instrument, the amount to be paid will be at the same rates as at 1 above, on the value shown in the document for Stamp Duty Provided that in calculating the amount of fee to be paid under 1 or 2 above any fraction of a rupee amounting to fifty paise or more shall be rounded off to the nearest rupee. In the case of intestate succession Amount of fee a If the last decided annual valuation does number exceed rupees three thousand. Rs.25 b If such valuation exceeds rupees three thousand but does number exceed rupees six thousand. Rs.50 c If such valuation exceeds rupees six thousand but does number exceed rupees ten thousand. Rs.100 d If such valuation exceeds rupees ten thousand but does number exceed rupees fifteen thousand. Rs.200 e If such valuation exceeds rupees fifteen thousand Rs.250 In case of thika tenant hut owner in a Bustee hut premises. Rs.20 The central point in the entire companytroversy is whether the impugned imposition is in the nature of a fee or a tax. According to Words Phrases, Permanent Edition, Vol. 41 Page 230, a charge or fee, if levied for the purpose of raising revenue under the taxing power is a tax. Similarly, imposition of fees for the primary purpose of regulation and companytrol may be classified as fees as it is in the exercise of police power, but if revenue is the primary purpose and regulation is merely incidental, then the imposition is a tax. A tax is an enforced companytribution expected pursuant to a legislative authority for purpose of raising revenue to be used for public or governmental purposes and number as payment for a special privilege or service rendered by a public officer, in which case it is a fee. Generally speaking taxes are burdens of a pecuniary nature imposed for defraying the companyt of governmental functions, whereas charges are fees where they are imposed upon a person to defray the companyt of particular services rendered to his account. In the case of State of West Bengal v. Kesoram Industries Ltd. reported in 2004 10 SCC 201, the Constitution Bench of this Court while differentiating between the power to regulate and power to tax observed It is of paramount significance to numbere the difference between power to regulate and develop and power to tax. The primary purpose of taxation is to companylect revenue. Power to tax may be exercised for the purpose of regulating an industry, companymerce or any other activity the purpose of levying such tax, an impost to be more companyrect, is the exercise of sovereign power for the purpose of effectuating regulation though incidentally the levy may companytribute to the revenue. Cooley in his work on taxation Vol.1, 4th Edn., 1924 deals with the subject in paras 26 and 27 There are some cases in which levies are made and companylected under the general designation of taxes, or under some term employed in revenue laws to indicate a particular class of taxes, where the imposition of the burden may fairly be referred to some other authority than to that branch of the sovereign power of the State under which the public revenues are apportioned and companylected. The reason is that the imposition has number for its object the raising of revenue but looks rather to the regulation of relative rights, privileges and duties as between individuals, to the companyservation of order in the political society, to the encouragement of industry, and the discouragement of pernicious employments. Legislation for these purposes it would seem proper to look upon as being made in the exercise of that authority which is inherent in every sovereignty, to make all such rules and regulations as are needful to secure and preserve the public order, and to protect each individual in the enjoyment of his own rights and privileges by requiring the observance of rules of order, fairness and good neighborhood, by all around him. This manifestation of the sovereign authority is usually spoken of as the police power. The power to tax must be distinguished from an exercise of the police power. State v. Tucker 56 SC 516 35 SE 215. The police power is a very different one from the taxing power, in its essential principles, though the taxing power, when properly exercised, may indirectly tend to reach the end sought by the other in some cases. p.94 The distinction between a demand of money under the police power and one made under the power to tax is number so much one of form as of substance. p. 95 . The distinction between a levy in exercise of police power to regulate and the one which would be in the nature of tax is illustrated by Cooley by reference to a licence. He says So-called license taxes are of two kinds. The one is a tax for the purpose of revenue. The other, which is, strictly speaking, number a tax at all but merely an exercise of the police power, is a fee imposed for the purpose of regulation. p.97 Suppose a charge is imposed partly for revenue and partly for regulation. Is it a tax or an exercise of the police power? Other companysiderations than those which regard the production of revenue are admissible in levying taxes, and regulation may be kept in view when revenue is the main and primary purpose. The right of any sovereignty to look beyond the immediate purpose to the general effect neither is number can be disputed. The Government has general authority to raise a revenue and to choose the methods of doing so it has also general authority over the regulation of relative rights, privileges and duties, and there is numberrule of reason or policy in the Government which can require the legislature, when making laws with the one object in view, to exclude carefully from its attention the other. Nevertheless, cases of this nature are to be regarded as cases of taxation. If revenue is the primary purpose, the imposition is a tax. Only those cases where regulation is the primary purpose can be specially referred to the police power. If the primary purpose of the legislative body in imposing the charge is to regulate, the charge is number a tax even if it produces revenue for the public. Cooley, ibid., pp.98-99 This Court in a seven-Judge Bench decision in Synthetics and Chemicals Ltd. v. State of U.P. 1990 1 SCC 109 agreed that regulation is a necessary companycomitant of the police power of the State. However, it was an American doctrine and in the opinion of the Court it was number perhaps applicable as such in India. The Court endorsed recognizing the power to regulate as a part of the sovereign power of the State exercisable by the companypetent legislature. Brushing aside the need for discussion on the question, whether under the Constitution the States have police power or number, the Court accepted the position that the State has the power to regulate. However in the garb of exercising the power to regulate, any fee or levy which has numberconnection with the companyt or expenses of administering the regulation, cannot be imposed only such levy can be justified as can be treated as part of regulatory measure. Thus, the States power to regulate perhaps number as emanation of police power but as an expression of the sovereign power of the State has its limitations. In our opinion , these observations of the Court lend support to the view which we have formed that a power to regulate, develop or companytrol would number include within its ken a power to levy tax or fee except when it is only regulatory. Power to tax or levy for augmenting revenue shall companytinue to be exercisable by the legislature in whom it vests i.e. the State Legislature in spite of regulation or companytrol having been assumed by another legislature i.e. the Union. State legislation levying a tax in such manner or of such magnitude as can be demonstrated to be tampering or intermeddling with the Centres regulation and companytrol of an industry can perhaps be the exception to the rule just stated. Therefore, the main difference between a fee and a tax is on account of the source of power. Although police power is number mentioned in the Constitution, we may rely upon it as a companycept to bring out the difference between a fee and a tax. The power to tax must be distinguished from an exercise of the police power. The police power is different from the taxing power in its essential principles. The power to regulate, companytrol and prohibit with the main object of giving some special benefit to a specific class or group of persons is in the exercise of police power and the charge levied on that class to defray the companyts of providing benefit to such a class is a fee. Therefore, in the aforestated judgment in Kesorams case, it has been held that where regulation is the primary purpose, its power is referable to the police power. If the primary purpose in imposing the charge is to regulate, the charge is number a tax even if it produces revenue for the government. But where the government intends to raise revenue as the primary object, the imposition is a tax. In the case of Synthetics Chemicals Ltd. v. State of U.P. reported in 1990 1 SCC 109, it has been held that regulation is a necessary companycomitant of the police power of the State and that though the doctrine of police power is an American doctrine, the power to regulate is a part of the sovereign power of the State, exercisable by the companypetent legislature. However, as held in Kesorams case supra , in the garb of regulation, any fee or levy which has numberconnection with the companyt or expense of administering the regulation cannot be imposed and only such levy can be justified which can be treated as a part of regulatory measure. To that extent, the States power to regulate as an expression of the sovereign power has its limitations. It is number plenary as in the case of the power of taxation. These well settled principles have been reiterated by this Court in the case of Commissioner of Central Excise v. Chhata Sugar Co. Ltd. reported in 2004 3 SCC 466 in which it has been held- The Constitution of India postulates either a tax or a fee. However, the use of the expression tax or fee in a statute is number decisive as on a proper companystruction thereof and having regard to its scope and purport fee may also be held to be a tax. The definition of tax in terms of clause 28 of Article 366 of the Constitution is wide in nature. The said definition may be for the purpose of the Constitution but it must be borne in mind that the legislative companypetence companyferred upon the State Legislature or Parliament to impose tax or fee having been enumerated in different entries in the three lists companytained in the Seventh Schedule of the Constitution of India, the same meaning of the expression tax unless the companytext otherwise requires should be assigned. Having regard to the fact that different legislative entries have been made providing for imposition of tax and fee separately, indisputably, the said expression do number carry the same meaning. Thus a distinction between a tax and fee exists and the same while interpreting a statute has to be borne in mind. A distinction must furthermore be borne in mind as regards the sovereign power of the State as understood in India and the doctrine of police power as prevailing in the United States of America. In some jurisdictions a distinction may exist between a police power and a power to tax but as in the Constitution of India, the word tax is defined, it has to be interpreted accordingly. The expression regulatory fee is number defined. Fee, therefore, may be held to be a tax if numberservice is rendered. While imposing a regulatory fee, although the element of quid pro quo, as understood in companymon parlance, may number exist but it is trite that regulatory fee may be in effect and substance a tax. See Corpn. of Calcutta v. Liberty Cinema AIR 1965 SC 1107 . In Municipal Corpn. Amritsar v. Senior Supdt. of Post Offices 2004 3 SCC 92 it was held SCC p. 9-97, para 8 The question, whether the demand so made was by way of service charge or tax, need number detain us any longer. The demand so made was with regard to the services rendered to the respondents Department, like water supply, street-lighting drainage and approach roads to the land and buildings. In the companynter, the respondents averred that they are paying for the services rendered by the appellant separately. It is also categorically averred that numberother specific services are being provided to the respondents for which the tax in the shape of service charges can be levied and realized from the respondents. There is numberprovision in the Municipal Corporation Act for levying services charges. The only provision is by way of tax. Undisputedly, the appellant Corporation is companylecting the tax from general public for water supply, streetlighting and approach roads, etc. Thus, the tax was sought to be imposed in the garb of service charges. We may furthermore numberice that a seven-Judge Bench of this Court in Synthetics and Chemicals Ltd. v. State of U.P. 1990 1 SCC 109 while companysidering the question as to whether the levy on industrial alcohol by the State is justifiable, inter alia, held that when revenue earned out of the impost is substantial, the same would number be justifiable as fee. In Liberty Cinema this Court, while interpreting Section 548 of the Calcutta Municipal Act providing for grant of a licence, observed AIR p. 1116, para 18 The reference to the heading of Part V can at most indicate that the provisions in it were for companyferring benefit on the public at large. The cinema house owners paying the levy would number as such owners be getting that benefit. We are number companycerned with the benefit, if any, received by them as members of the public for that is number special benefit meant for them. We are clear in our mind that if looking at the terms of the provision authorizing the levy, it appears that it is number for special services rendered to the person on whom the levy is imposed, it cannot be a fee wherever it may be placed in the statue. A companysideration of where Sections 443 and 548 are placed in the Act is irrelevant for determining whether the levy imposed by them is a fee or a tax. It was further observed AIR p.1116, paras 19-20 The last argument in this companynection which we have to numberice was based on Sections 126 and 127 of the Act. Section 126 deals with the preparation by the Chief Executive Officer of the Corporation called Commissioner, of the annual budget. The budget has to include an estimate of receipts from all sources. These receipts would obviously include taxes, fees, licence fees and rents. Under Section 127 3 the Corporation has to pass this budget and to determine subject to Part IV of the Act, the levy of companysolidated rates and taxes at such rates as are necessary to provide for the purposes mentioned in sub-section 4 . Subsection 4 requires the Corporation to make adequate and suitable provision for such services as may be required for the fulfilment of the several duties imposed by the act and for certain other things to which it is number necessary to refer. The first point made was that these sections showed that the act made a distinction between fees and taxes. It does number seem to us that anything turns on this as the only question number is whether the levy under Section 548 is a fee. The other point was that clauses 3 and 4 of Section 127 showed that the Corporation companyld fix the companysolidated rates and taxes and that the determination of rates for these had to be in accordance with the needs for carrying out the Corporations duties under the Act. It was said that as the licence fee leviable under Section 548 did number relate to any duty of the Corporation under the Act, it being optional for the Corporation to impose terms for grant of licences for cinema houses, the rate for that fee was number to be fixed in reference to anything except rendering of services. We are unable to accept this argument and it is enough to say in regard to that it is number right that Section 443 does number impose a duty on the Corporation. We think it does so, though in what manner and when it will be exercised it is for the Corporation to decide. It is impossible to call it a power, as the respondent wants to do, for it is number given to the Corporation for its own benefit. The Corporation has been set up only to perform municipal duties and its powers are for enabling it to perform those duties. Furthermore there is numberdoubt that an estimate of the licence fee has to be included in the budget and therefore the word tax in Section 127 3 must be deemed to include the levy under Section 548. The words subject to the provisions of Part IV in Section 127 3 must be read with the addition of the words where applicable. The companyclusion to which we then arrive is that the levy under Section 548 is number a fee as the Act does number provide for any services of special kind being rendered resulting in benefits to the person on whom it is imposed. The work of inspection done by the Corporation which is only to see that the terms of the licence are observed by the licensee is number a service to him. No question here arises of companyrelating the amount of the levy to the companyts of any service. The levy is a tax. It is number disputed, it may be stated, that if the levy is number a fee, it must be a tax. A regulatory statute may also companytain taxing provisions. The decisions of this Court point out towards the need of existence of the element of quid pro quo for imposition of fee be it to the person companycerned or be it to a group to which he belongs irrespective of the fact as to whether the benefit of such service is received directly or indirectly. The point at issue is required to be companysidered keeping in view the aforementioned legal position. By reason of the provisions of the U.P. Sheera Niyantran Adhiniyam, 1964, the trade carried out by the respondents is sought to be regulated. Some service, therefore, was required to be rendered by the State or the statutory authority to the owners of the factory producing molasses or the molasses industries generally if an impost by way of fee was to be levied. Applying the above principles to the present case, we find enumeration of obligatory and discretionary functions of the companyporation in sections 29 and 30 under which civic services are rendered to the rate-payers for which taxes are leviable as mentioned in section 170 of the Act. As stated above, the entire part-IV of the Act deals number only with the levy of taxes, they also deal with assessments, valuation, companylection and recovery of taxes. The entire machinery for filing of returns, objections and inspection of records and properties companyes under the part which deals with taxation. The maintenance of assessment books, annual reports, valuation reports etc. all companye under the part which deals with taxation. Section 183 which deals with numberice of transfer also companyes under the same part. It is true that under section 183 5 , fees are payable for mutation as may be prescribed under the regulations, still as stated above, the primary object of such a charge is to augment the revenue and the levy of such a charge cannot be treated to be a part of the regulatory measure. Further, under the Regulations, the companyporation while prescribing fees has levied fees on ad valorem basis which is one more circumstance to show that the impugned levy is in the nature of tax and number in the nature of a fee. Further, the quantum of levy indicates that it is a tax and number a fee. The analysis of the various provisions of the Act and the impugned regulations show that the impugned levy is in exercise of power of taxation under the said Act to augment the revenues primarily and number as a part of regulatory measure. As stated above, the purpose of mutation is to register the transfer in the records of the companyporation which in turn would help the companyporation to recover taxes from the existing tax payers. Therefore, numberspecial benefit results to the transferee who is made statutorily liable to inform the companyporation of the change, if any, in the name of the person primarily liable to pay the tax. In the case of Nand Kishwar Bux Roy v. Gopal Bux Rai others reported in AIR 1940 Privy Council 93, the Court, while discussing the nature of mutation proceedings, observed Mutation proceedings are merely in the nature of fiscal inquiries, instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of the property may be put into occupation of it with the greater companyfidence that the revenue for it will be paid. Therefore, it is clear that mutation enquiry is instituted in the interest of the companyporation for tax purposes and number for the benefit of the tax payer. Now companying to the question of challenge to the levy as arbitrary and discriminatory and violative of Article 14, we find that the functions of the companyporation with regard to mutation remains the same, whether the applicant is a transferee under a companyveyance or a lessee or a beneficiary under a will or an heir in the case of intestate succession. Once an application for mutation is made, the same is examined by the department and after hearing the objections, if any, the record is ordered to be changed. Ultimately, the exercise is for fiscal purpose. Similarly, the property valuation may be below Rs.50,000/- or above Rs.2 lacs, the function of the companyporation in making the mutation entry remains the same. Similarly, whatever may be the cause of mutation, whether it is case of transfer or devolution, the activity of mutation remains companystant in all the cases. The expenses incurred in all the cases also cannot vary, whatever be the value of the property or the cause of mutation. In the circumstances, there is numberreason given for charging different rates depending on the value of the property and the cause of transfer. By doing so, the incidence of the levy falls differently on persons similarly situated resulting in violation of article 14 of the Constitution. Moreover, the quantum of fees is disproportionate to the so called services which is one more circumstance showing arbitrariness in the levy of such imposition. So far as article 14 is companycerned, the Courts in India have always examined whether the classification was based on intelligible differentia and whether the differentia had a reasonable nexus with the object of legislation See Om Kumar v. Union of India reported in 2001 2 SCC 386. Applying the said tests to the impugned levy, we find that the levy is irrational, arbitrary, discriminatory and beyond section 183 5 of the said 1980 Act. Before companycluding, we may point out that the entire argument advanced on behalf of the respondents herein was that the imposition was in the nature of a tax and number a fee and that the said imposition was arbitrary, discriminatory, irrational and ultra vires article 14 of the Constitution. There was numberchallenge to the power of the State to levy mutation fees under section 183 5 of the said 1980 Act as amended . In the case of Narendra Kumar Others v. Union of India Others reported in AIR 1960 SC 430, one of the arguments advanced on behalf of Union of India was that since the petitioner Narendra Kumar had companyceded the companypetency of the Central Government to make a Control Order under section 3 of the Essential Commodities Act, 1955, it was number open to him to submit that the said section 3 was ultra vires articles 19 1 f and 19 1 g . In the said case, the companytroversy was whether the Non-ferrous Metal Control Order issued by the Central Government under section 3 of the Essential Commodities Act fell within the saving provisions of articles 19 5 and 19 6 of the Constitution. Therefore, the Court was required to examine whether the Control Order violated the fundamental rights of the citizen and, if so, whether the law was saved by articles 19 5 and 19 6 . In the light of the said companytroversy, this Court while rejecting the companytention of Union of India examined the question of validity of section 3 of Essential Commodities Act, though it was number specifically challenged. Therefore, the ratio of the decision in Narendra Kumars case supra has numberapplication to the facts of the present case.

criminal appellate jurisdiction criminal appeal number 137 of 1957. appeal from the judgment and order dated october 31 1956 of the madras high companyrt in criminal appeal number 20/1956. b. dadachanji b. aggarwala s. n. andley j. rameshwar nath and p. l. vohra for the appellant. r. ganapathy iyer and t. m. sen for the respondent. k. daphtary solicitor-general of india h. j. umrigar and t. m. sen for the intervener union of india . 1960 february 26. the judgment of the companyrt was delivered by imam j.-this is an appeal on a certificate granted by the high companyrt of madras. the appellant was tried by the special judge of tiruchirappalli under s. 165a of the indian penal companye for attempting to bribe mr. kaliyappan deputy superintendent of police of ramanathapuram. the special judge came to the conclusion that the charge framed against the accused had number been established. he accordingly acquitted the appellant. against the order of acquittal the state of madras appealed to the high companyrt of madras under s. 417 of the companye of criminal procedure. the high companyrt came to the conclusion that the evidence established that the appellant had attempted to bribe the aforesaid deputy superintendent of police. it accordingly companyvicted the appellant under s. 165a indian penal companye and sentenced him to 6 months rigorous imprisonment and a fine of rs. 1000 in default to undergo further rigorous imprisonment for 6 months. according to the prosecution case the appellant attempted to bribe mr. kaliyappan the deputy superintendent of police by offering him a bum of money companytained in an envelope at his bungalow in the morning of june 14 1954. in order to appreciate the circumstances in which the bribe was offered reference to certain events which led to the incident on june 14 at the bungalow of the deputy superintendent of police becomes necessary. in village irwadi there are two factions one headed by the appellant and his brother and the other headed by the village munsif. on june 3 1954 two complaints reached the keelakarai police station one by the appellant against the village munsif and the other by the village munsif against the appellant. according to the appellant on june 3 1954 after prayers in the mosque the village munsif had abused him and had attempted to murder him with a knife. some persons intervened but he managed to escape but was chased by the village munsif to his house. the version of the village munsif was that he was busy that day preparing the receipt for the release of the appellants impounded cattle when the latter abused him beat him with his shoe and kicked him in the stomach causing minumber injuries. on june 5 1954 the appellant met mr. kaliyappan at the central bus-stand at madurai and handed over to him a petition ext. p-1 in which he companyplained against the village munsif. mr. kalivappan made ail endorsement on this petition directing the inspector of ramanathapuram circle to send for both the parties and warn them against doing acts which would create a breach of the peace in the village and that this petition was number to be sent to the sub-inspector w. 8 as it was alleged that he was siding against the appellant. on june 12 1954 mr. kaliyappan sent a memo ext. p-2 to the inspector of ramanathapuram circle directing him to take steps to see that peace was preserved in the village. this police officer was also asked to take action against the offenders with respect to whom there was evidence in companynection with the occurrence of june 3 1954. mr. kaliyappan also in view of the situation had directed this police officer to see whether steps should number be taken to seize the revolver of the appellants brother rashid for which he had a licence. the inspector of ramanathapuram circle thereafter prepared a detailed report ext. p-7 of the result of his enquiry and handed it over to mr. kali- yappan on june 13 1954. on the night of june 13 1954 at about 10 p.m. the appellant went to the bungalow of mr. kaliyappan the deputy superintendent of police at ramanathapuram and companyplained against the inspector of police of ramanathapuram circle and the sub- inspector requesting the s deputy superintendent of police to look into the matter personally and number to leave the investigation exclusively in the hands of the inspector. mr. kaliyappan told the appellant that he knew numberhing about the case and companyld number say or do anything off hand and that the appellant should see him about a week later by which time he would have perused the record and would be in a position to look into his grievances. according to the appellant however the deputy superintendent of police had asked him to companye to him next morning. on june 14 1954 according to the prosecution the appellant went to mr. kaliyappans bungalow at about 7-15 a.m. who was at that time looking into certain papers. he was informed that a visitor bad companye to see him. the appellant accordingly entered his office room when he again complained to the deputy superintendent of police against the village munsif. at the same time he presented to this police officer a closed envelope. mr. kaliyappan thought that the envelope companytained a petition but on opening it he found that it companytained currency numberes. he was annumbered at the companyduct of the appellant. he threw the envelope at the appellants face but the envelope fell down on the floor and the appellant picked it up. the deputy superintendent of police called his office orderly but as there was no response he went out of the office room and told his milk- maid to get the camp clerk. by that time the orderly turned up. the appellant had in the meantime remained in the office room and on the appearance of the orderly mr. kaliyappan asked the appellant to produce the envelope which he had thrown down and which the appellant had picked up. the appellant after taking out of his pocket some currency numberes placed them on the table without the envelope. subsequently during the police investigation torn bits of paper were companylected from near the office window and it is alleged that those torn bits of paper were the pieces of the envelope in which the currency numberes were presented to mr. kaliyappan. thereafter mr. kaliyappan asked his orderly to put office rubber stamp date seal on the numberes and the same was done. by that time the camp clerk p.w. 2 had arrived. mr. kaliyappan asked the camp clerk to numbere down the numbers of the currency numberes which he did. the list so prepared is ext. p-4. mr. kaliappan then dictated the memo. ext. p-5 to the local sub-magistrate informing the latter that the appellant bad offered him rs. 500 in currency numberes requesting him to drop action registered against the appellant at keelakarai police station. mr. kaliyappan informed the magistrate in this companynection that he had seized the currency numberes and his office rubber stamp seal had been placed on them and that he would be grateful to the magistrate if he would companye to his office and record the statement of the appellant whom he had detained in his office. the case of the appellant as would appear from his statement to the special judge was that he had been to mr. kaliyappan the deputy superintendent of police in the night of june 13 1954 and in the morning at 7-15 a.m. on june 141954. he had gone to mr. kaliyappans bungalow in the morning of june 14 as he bad been requested to do so. he had told the deputy superintendent of police that he had been humiliated by his police officers who had arrested him and had searched his house and that mr. kaliyappan should redress his grievances. mr. kaliyappan showed him scant courtesy and insulted him upon which the appellant told mr. kaliyappan number to insult him and that he should tell the appellant whether he would redress the grievances of the appellant or number and that if he was number prepared to redress the grievances the appellant would take the matter to the higher authorities. on this mr. kaliyappan got up from his chair and enquired of the appellant what companyld he do by going to the higher authorities and threatened to beat the appellant. the appellant also got up and said something to him upon which mr. kaliyappan called out for his orderly. the orderly came and was told by mr. kaliyappan that he was going to be beaten by the appellant and therefore he should catch hold of the appellant which the orderly did. then mr. kaliyappan told the orderly that there was money in the appellants pocket and that he should remove it. the orderly accordingly removed the money from the appellants pocket and gave it to mr. kaliyappan. the money in his pocket was rs. 500. mr. kaliyappan then directed his orderly to put his seal on the numberes. the special judge gave various reasons for number accepting the uncorroborated testimony of mr. kaliyappan and held that the presumption of the innumberence of the accused had number been displaced by his solitary testimony. the high companyrt did number companysider the grounds given by the special judge for discarding the testimony of mr. kaliyappan as at all justified and was of the opinion that the special judge had taken a perverse view of his evidence and of the other evidence in the case. in the main three points were urged in support of the plea that the companyviction of the appellant should be set aside. the first point urged was that the provisions of s. 422 of the companye of criminal procedure had riot been companyplied with. accordingly the high companyrt judgment setting aside the acquittal of the appellant was vitiated. the second point urged was that there had been violation of the provisions of art. 20 3 of the companystitution which vitiated the conviction. the third point urged was that the appellant having been acquitted by the special judge the high companyrt should number have set aside the acquittal unless there were compelling reasons. the several grounds stated by the special judge in distrusting the evidence of mr. kaliyappan had number been specifically companysidered by the high companyrt and without those grounds being displaced the high companyrt erred in setting aside the order of acquittal passed by the special judge. lastly it was urged that in the circum- stances of the present case the sentence passed by the high court was severe. the circumstances relied upon in this connection will be stated in due companyrse. regarding the first point a few facts have to be stated. the states appeal against the acquittal of the appellant was admitted by the high companyrt on february 22 1956. appearince. on behalf of the appellant was filed on february 24 1956. the advocates for the appellant ere m s. l. ethiraj and s. m. cassim. one mr. r. santanamn an advocate who worked in the office of the partnership of m s. v. l. ethiraj v. t. rangaswami ayyangar wrote to the high companyrt office on february 27 1956 requesting that summons need number be issued and companypliance with rule 240 a criminal rules of practice might be dispensed with in view of the appearance for the appellant having been filed on february 24 1956. as appearance had been entered on behalf of the appellant even before the issue of numberice to him numberice under s. 422 of the companye of criminal procedure was issued by the companyrt on march 5 1956 to m s ethiraj and cassim advocates for the appellant on the records of the high companyrt. after the appeal was ready for hearing the usual intimation under rule 240a was also sent on september 4 1956 to the special judge tiruchirappalli for being communicated to the appellant as it was the practice of the high companyrt number to dispense with altogether the issue of such intimation under any circumstance. mr. ethiraj appeared for the appellant at the hearing of the appeal and made submissions on questions of fact as well as on questions of law before the learned judge of the high companyrt who heard the appeal. it was companytended for the appellant that the of the appeal filed by the state against his acquittal because if the acquittal was set aside and the appellant was sentenced serious consequences would arise. as to the second submission art. 20 3 of the companystitution states numberperson accused of any offence shall be compelled to be a witness against himself . before this provision of the companystitution companyes into play two facts have to be established 1 that the individual companycerned was a person accused of an offence and 2 that he was companypelled to be a witness against himself. if only one of these facts and number the other is established the requirements of art. 20 3 will number be fulfilled. it was however urged that on the facts the appellant must be regarded as a person who was accused of an offence at the time that mr. kaliyappan asked him to produce the money. the circumstances also showed that the appellant did so on companypulsion. he was at the time within the power of the deputy superintendent of police and was companypelled to companyply with his direction. mr. kaliyappan being of the rank of a deputy superintendent of police companyld himself make the investigation. the offence had been committed in his presence and the appellant was in the situation of an arrested person reliance was placed upon the decision of this companyrt in m. p. sharma v. satish chandra and others 1 in support of the proposition that a compelled production of incriminating document by a person during police investigation is testimonial companypulsion within the meaning of art. 20 3 of the companystitution. in that case this companyrt had observed at p. 1088 indeed every positive volitional act which furnishes evidence is testimony and testimonial 1 1954 s.c.r. 1077. compulsion companynumberes companyrcion which procures the positive volitional evidentiary acts of the person as opposed to the negative attitude of silence or submission on his part. number is there any reason to think that the protection in respect of the evidence so procured is companyfined to what transpires at the trial in the companyrt-room. the phrase used in art. 20 3 is to be a witness and number to appear as a witness it follows that the protection afforded to an accused in so far as it is related to the phrase to be a witness is number merely in respect of testimonial companypulsion in the companyrt room but may well extend to companypelled testimony previously obtained from him. it is available therefore to a person against whom a formal accusation relating to the companymission of an offence has been levelled which in the numbermal companyrse may result in prosecution. whether it is available to other persons in other situations does number call for decision in this case. companysidered in this light the guarantee under art. 20 3 would be available in the present cases these petitioners against whom a first information report has been recorded as accused therein. it would extend to any companypulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against them. these observations were unnecessary in sharmas case having regard to the fact that this companyrt held that the seizure of documents on a search warrant was number unconstitutional as that would number amount to a companypulsory production of incriminating evidence. in the present case even on what was stated in sharmas case there was numberformal accusation against the appellant relating to the companymission of an offence. mr. kaliyappan had clearly stated that he was number doing any investigation. it does number appear from his evidence that he had even accused the appellant of having committed any offence. even if it were to be assumed that the appellant was a person accused of an offence the circumstances do number establish that he was companypelled to produce the money which he had on his person. numberdoubt he was asked to do so. it was however within his power to refuse to companyply with mr. kaliyappans request. in our opinion the facts established in the present case show that the appellant was number compelled to produce the currency numberes and therefore do number attract the provisions of art. 20 3 of the companystitution. as to the 3rd point we have read the evidence in the case the judgments of the special judge and of the high companyrt and have numberhesitation in saying that the high companyrts view that the judgment of the special judge was perverse is companyrect. this is an appeal on a certificate and the findings on questions of fact are number companycurrent. accordingly we can form our own companyclusions irrespective of the grounds given by the high companyrt for believing that the grounds given by the special judge for distrusting kaliyappans evidence were perverse. those grounds have however been placed before us and after a careful examination of them we have companye to the companyclusion that the grounds given by the special judge for distrusting mr. kaliyappans evidence are perverse. it was suggested that the documentary evidence and the manner in which mr. kaliyappan gave his evidence indicated that in the quarrel between the village munsif and the appellant he was siding with the village munsif. assuming that to be so though we make it quite clear that we do number hold it to be so it is impossible to believe that mr. kaliyappan would have companycocted a false case of an attempt made by the appellant to bribe him if he had number lone so. he companyld have quite easily told the appellant to leave his bungalow without companycocting a false case against him. if he was siding with the village munsif he companyld have as easily got his subordinate police officers to report that the village munsifs story was true and that the appellant should be prosecuted. there seems -to be numberoccasion for him to have made an elaborate story of an attempt on the part of the appellant to bribe him when in fact the appellant had done numberhing of the kind a great deal of emphasis -was laid on the fact that in the information which mr. kaliyappan sent to the magistrate he had made numbermention of money being offered to him in an envelope and that the torn bits of paper found outside the window of mr. kaliyappans office were number proved to be part of the envelope in which the bribe had been offered and that it was also number at all clear that the rs. 500 found on the person of the appellant were actually the currency numberes offered to mr. kaliyappan as bribe. it seems to us however that too much emphasis has been laid on all this. mr. kaliyappan had certainly alleged in his information to the magistrate that the appellant had offered him a bribe of rs. 500. whether that was the sum in the envelope or whether it had been offered in an envelope was beside the point. the important question for companysideration was whether mr. kaliyappan had been offered a bribe by the appellant. for that purpose it was a relevant circumstance that in fact on his person the appellant had a sum of rs. 500 and that if mr. kaliyappans story was true that it was offered in an envelope numberenvelope was produced with the currency numberes of rs. 500 which were placed on the table. on the other hand torn bits of paper which companyld form an envelope were found outside the window of the room where the bribe had been offered. it seems to us on a careful reading of mr. kaliyappans evidence that he had substantially told the truth and that there was numberreal reason for him to companycoct a false case against the appellant having regard to the circumstances. in which the bribe was offered companyroboration of his evidence in that respect companyld hardly be expected. his companyduct however throughout showed that he had acted in a bona fide manner. after a careful companysideration of his evidence and of the circumstances established in the case we entirely agree with the high companyrt that there was numberreal ground upon which his evidencc companyld be disbelieved. in the circumstances the high companyrt was entirely justified in acting upon it and setting aside the order of acquittal made by the special judge. lastly on the question of sentence it may be mentioned at once that on the second day of the hearing of this appeal learned advocate for the appellant stated that his client threw himself at the mercy of companyrt and apologized for what had happened. the learned advocate further urged that the appellant though an indian citizen was carrying on business in burma and had a visa from the burmese government for permanent residence and that unless he returned to burma by the 2nd of march by would lose the benefit of the visa and would numberlonger be allowed to reside in burma as a permanent resident. companyse- quently he would lose his entire business and property in that companyntry which would be a severe penalty if his sentence of imprisonment was upheld. it is also pointed out that on two occasions this companyrt on this very ground on the appellant furnishing security and giving an undertaking to return to this companyntry had allowed him to go to burma in order that he might number companytravene the companyditions of his visa. it was further pointed out that the incident took place in june 1954 some 5 years and eight months ago. even a substantial fine in lieu of the sentence of imprisonment would be sufficient punishment and a deterrent to the appellant. we have given the matter of sentence our anxious companysideration.

Leave granted. These appeals have been filed making allegations that the forms prescribed under Section 64 of the Delhi Sales Tax Act, 1975 which are meant to be carried by the truck-owners, have number been printed number made available by the prescribed authority and therefore the vehicle without the said forms companyld number have been detained.

This is an appeal under Section 379, Cr.P.C. read with Section 2 of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970. The appellant, who is the sole accused in the case, was tried for offences punishable under Sections 302, 326 and 324, I.P.C. for allegedly causing the death of one Pappachan and for causing grievous hurt to Baby, PW-2, and simple hurt to the father of the deceased, PW-1, on 26-10-1982 at about 2-30 p.m. near the tea shop of the deceased. The accused also received injuries and the plea of self-defence had been put forward. The prosecution case is mainly on the evidence of the two injured witnesses, P.Ws. 1 and 2 and PW-3, wife of the deceased. The trial companyrt having examined the evidence of the injured witnesses as well as that of PW-3, companycluded that it was the appellant who inflicted the fatal injuries on the deceased and caused grievous hurt to PW-2 and simple hurt to PW-1. But, taking into companysideration the plea set up by the accused, it took the view that the accused had a right of private defence and since he had a reasonable apprehension that the three persons were likely to cause his death or grievous hurt, in that view of the matter, acquitted the accused. The State preferred an appeal questioning the said order of acquittal and a Division Bench of the Kerala High Court reversed the same holding that the accused had numbersuch right of private defence. Hence, this appeal. The accused is numberother than the elder brother of P.W-1, and the deceased was the son of P.W-1 and PW-2 was the son of the deceased. It is stated that there was some family feuds between the deceased and his family members on the one hand, and the accused on the other. On the day of occurrence, P.W-1 got down from a jeep in front of the house of the deceased and by then a quarrel was going on between the accused and the deceased. He saw the quarrel between the accused and the deceased. He then saw the accused whipping out a knife and stabbing the deceased. At that juncture, PW-2, son of the deceased, came out of the house with a stick and dealt a blow on the head of the accused. Thereafter, the accused stabbed PW-2 also on his stomach. When P.W-I tried to pacify, it is alleged that the accused also inflicted an injury on him and ran away. All the three injured were taken to the hospital at Palghat whereat PW-1 gave a report, Ex. P-1, to the Police. The case was registered and the accused was arrested and at his instance, MO-1, the weapon was recovered. The deceased died and the post mortem was companyducted, and four incised injuries were found on the dead body. One of the injuries extended into the left lobe of the liver and the other injuries were on other parts, namely, on the left side of the neck and on dorsum of the left hand and on the back of the chest. It is only the injury to the liver which was serious. The Doctor, however, opined that the death was due to the injury to the liver as well as cumulative effect of the other injuries. PW-2 also was examined by the Doctor who found an incised injury on his stomach. On P.W-1 a simple incised injury was found on the left arm. The Doctor, who examined the accused, found one lacerated injury, 4 cm. x 0.5 cm. would deep on the right side of the head and also two abrasions on the forehead and on the palm. After companypletion of the investigation, a chargesheet was laid. When examined under Section 313, Cr.P.C. , the accused pleaded that he was number guilty and put forward a version stating that on the date of the incident he had gone to the house of one Jose in companynection with the purchase of a company and while he was passing through the road in front of the tea shop of the deceased, he saw the deceased, P.Ws. 1 and 2 standing in front of the shop armed with knives and a stick. The deceased abused him and caught hold of him and P.Ws. 1 and 2 beat him. Apprehending that he would be killed by them, the accused stated that he tried to wield the knife from him and then there was a scuffle between him and the three persons and, thereafter, he ran away. In his version the accused suggested that he did number intentionally inflict injuries on the three persons and it was during the scuffle that the three persons happened to receive those injuries. The trial companyrt accepted the evidence of P.Ws. 1 and 2 as well as that of PW-3 that the deceased and P.Ws. 1 and 2 received the injuries at the hands of the accused but observed that the prosecution has suppressed the genesis of the occurrence and the belated plea that PW-2 happened to inflict an injury on the accused cannot amount to a proper explanation of the injury found on the accused, and that the accused has taken a specific plea which leads to an inference that he must have acted while exercising his right of private defence and, therefore, the accused was entitled to acquittal. The High Court while upsetting that finding held that the accused had numberright of private defence and he was armed with a knife and deliberately inflicted injuries on these persons. It may be mentioned that P.W-1 who gave the report did number say anything about the accused having received any injury. No doubt, at a later stage, the prosecution has made an effort to explain away the injuries on the accused but when a specific plea has been put forward by the accused and the presence of injuries on him is companyroborated by medical evidence, the Court has to see whether the plea set up by him is -plausible. It is needless to say that the accused need number affirmatively establish that he had a right of private defence and he exercised the same in that manner. The General Exception which deals with the right of private defence lays emphasis on the reasonable apprehension in the mind of the accused while exercising the right of private defence. However, for the purpose of this case, we need number go into the various aspects that have to be kept in mind in giving benefit of the General Exception to the accused. Suffice it to say that where an injury is found on the accused and if the accused companyes forward with a specific plea, the same has to be companysidered in the facts and the surrounding circumstances obtaining in the case. Every kind of explanation put forward particularly at the belated stage by the prosecution will number be sufficient and cannot be held to be an appropriate explanation to reject the version put forward by the accused particularly when it does number appear to be false but, on the other hand, appears to be plausible. The injury was inflicted on the forehead of the accused which is on a vital part. In such a situation, it cannot be said that the accused had numberreasonable apprehension that some hurt, at least,, would be caused to him. Further, as pleaded by him, there were three persons who were about to attack. The presence of the three persons at the scene of occurrence is number in dispute. In such a case, naturally, a reasonable apprehension would have been there in the mind of the accused. It is in this background we have to companysider the plea set up by the accused and examine whether the accused was justified in exercise of right of private defence. At least a reasonable doubt arises in this case when we companysider the prosecution version as well as the version put forward by the accused in the light of the facts and surrounding circumstances and the situation in which the occurrence had taken place. As already mentioned, they are all closely related to each other. Though the trial companyrt has number satisfactorily dealt with the aspect of right of self-defence but We, having given our earnest companysideration, are of the view that the plea set up by the accused cannot simply be brushed aside. Under these circumstances, it is quite reasonable to hold that the accused had the right of self-defence. However, having regard to the fact that he inflicted four injuries on the deceased and also a serious injury on PVV-2, he certainly exceeded the same. Therefore, Exception 2 to Section 300 I.P.C. is attracted and number the General Exception, as held by the trial companyrt. Accordingly, in the result, we set aside the companyviction under Section 302 I.P.C. and sentence of life imprisonment awarded thereunder and companyvict him under Section 304, Part-I, I.P.C. and sentence him undergo 7 years R. I. The other sentences and companyvictions are, however, companyfirmed.

NANAVATI. J. The appellants have been companyvicted under Section 302 read with 34 IPC for causing death of Ranbir Singh. The deceased was the son-in-law of appellant No.1 Mange Ram, and husband of appellant No.2 Somwati. Both the companyrts below believed the dying decelerations made by the deceased before the Investigating Officer and Dr. Tiwari, and they have been made the basis of his companyviction. We have gone through the evidence of Dr. Tiwari who was the first person to record the dying declaration. He was stated that when he inquired from the patient how he had received burn injuries he had stated that at about 9.10. p.m. he was in his in-laws house and his father-in-law Manger Ram and his wife put kerosene oil on him and set him of fire. The defence was number able to take out anything in his cross examination which companyld create any doubt regarding truthfulness of his evidence. A.S.I. Harpal Singh P.W. 24 who had gone to the hospital on receiving information about admission of Ranbir Singh in the hospital has stated that he recorded the F.I.R of Ranbir Singh at about 11.45 p.m. Therein also Ranbir Singh has stated that his father-in-law and his wife had set him on fire. Both these dying declarations have been found reliable and companysistent by the companyrts below and we see on reason to differ from the finding. The learned companynsel for the appellant was number able to suggest any good reason to disbelieve the evidence of Dr. Tiwari and A.S.I. Harpal Singh. He, however, drew our attention to the statement, made by appellant No.1 Mange Ram when he was examined under Section 313 of the Criminal Procedure Code wherein he has stated that he was number residing in House No.80, which though belonged to him was in occupation of his daughter and sonin-law and that he had gone to that house after he was informed about the incident. He also drew our attention to the evidence of P.W. 8 Hari Singh who has also stated that Mange Ram had companye there after the neighbors had companylected. He then submitted that as the version given by Mange Ram was supported by a prosecution witness it ought to have been accepted and it should have been held that he was falsely involved by the appellant. P.W. 8 has stated that when he had gone inside the house he had seen Ranbir Singh lying on a company and groaning in pain. He was under the influence of liquor. But the evidence of doctor does number show that Ranbir Singh was under the influence of liquor. On the companytrary his evidence is that, when he was brought to the hospital Ranbir Singh was under the influence of liquor. On the companytrary his evidence is that, when he was brought to the hospital, Ranbir Singh has in full senses and was able to speak clearly.

With C.A. No. 8257/96, Civil Appeal Nos 1658-1663/1998 Arising out of S.L.P C Nos. 13678-13681/96, 13948/96 and 24862/92, C.A. Nos. 10750-10755/96 and 12985-12989/96 J U D G M E N T Mrs. Sujata V. Manohar. J. Delay companydoned. Leave granted. The respondents in these appeals are teachers in aided number-Government companyleges educational institutions. They claimed the revised scales of pay recommended by the University Grants Commission on the basis of Government Resolutions of the State of Orissa in Education and Youth Services Department dated 6th of October, 1989 and 6th of November, 1990. The respondents objected to a numbere attached to paragraph 2 of the Government Resolution of 6th of November, 1990 as a result of which the higher pay scales were given to full-time teachers in aided number-Government companyleges which had received Government companycurrence and University affiliation for opening of 3 Degree companyrse by Ist of April, 1989 and number thereafter. The writ petitions of the respondents were allowed by the Orissa High Court. The High Court struck down the numbere to paragraph 2 of the Government Resolution of 6th of November, 1990 and held that the respondents were entitled to higher scales of pay. The judgment of the High Court dated 4.11.1994 in O.J.C. No. 4085-4090 of 1993 which is the subject-matter of Civil Appeal No.8256 of 1996 has been followed in the impugned High Court judgments in the other appeals. Hence all these appeals have been heard together. The state of Orissa by its Resolution dated 6th of October, 1989, decided to revise pay scales of teachers in companyleges. In paragraph 2 of the Resolution it is stated that following the appointment of the Fourth Pay Commission for Central Government Employees, the University Grants Commission had appointed a Committee under the Chairmanship of Professor R.C. Meherotra to examine the present structure of the emoluments and companyditions of service of University and College Teachers. After companysidering the recommendations of the Committee, the University Grants Commission submitted its recommendations to the Government of India for their companysideration and implementation. The Government of India companymunicated its decision on the recommendations of the University Grants Commission to the State Government of Orissa by their letter dated 17th of June, 1987 and further clarifications on 17th September, 1987 and 22nd of July, 1988 and requested the State to implement the scheme in the State after taking local companyditions into companysideration. In paragraph 3 it stated that after careful companysideration the State Government has been pleased to decide to implement the scheme of revision of pay scales for companylege teachers on the terms and companyditions set out in that Resolution. Paragraph 3.1 of the Resolution is headed companyerage. It provides as follows- Coverage - The revised scales and other measures for improvement of standards in Higher Education shall be applicable to all categories of full time Teachers working in all affiliated Government Colleges and aided number-Government Colleges either companyered or eligible to be companyered under direct payment schemes till the 1st April 1989. The scheme will also be extended to full time eligible Teachers working in the College of Accountancy and Management Studies, Cuttack. In paragraph 3.3 pay scales of different categories of teachers in companyleges are laid down. Sub-paragraph A deals with general companyleges. The designations are of Lecturers. Lecturers Senior Scale , Lecturers Selection Grade , Reader, Professor and Principals of companyleges. The Principals of companyleges are further divided into i Degree Colleges, 3 post-graduate Colleges and iii Lead Colleges situated at State and District Headquarters and Colleges having post-graduate companyrses as per list appended. The list appended is of degree companyleges. Thereafter by a Government Resolution dated 6th of November, 1990, issued by the Government of Orissa, Education Youth Services Department, the Government issued instructions to regulate the revision of scales of pay of different categories of teachers serving in aided number- Government companyleges of the State pursuant to its earlier Resolution of 6th of October, 1989. Paragraph 2 of this Resolution is as follows- Category of teachers to whom these instructions shall apply- Save as otherwise provided by or under instructions, these instructions shall apply to all categories of full-time teachers working in all aided number-Government Colleges either companyered or eligible to be companyered under Direct payment scheme till the 1st day of April, 1989. NOTE - Colleges under these instructions shall mean aided Colleges which have been given Government which have been given Government companycurrence and University affiliation for opening of 3 Degree companyrses by the 1st April, 1989 and number thereafter. Sub-paragraph 2 of paragraph 2 excludes from the purview of the Resolution in clause v , teachers who are appointed primarily in 2 institutions existing as on 1st April, 1989 including Intermediate Colleges companyverted 2 institutions and vi teachers appointed after 1st April, 1989 to teach in 2 companyrses in existing Degree Colleges or 2 institutions. The respondents companytend that the companyerage which was given to the earlier Resolution of 6th of October, 1989 is reduced as a result of the numbere which is appended to paragraph 2 1 of the Resolution of 6th of November, 1990. However, under paragraph 3.1 of the Resolution of 6th of October, 1989 which deals with the companyerage of that Resolution, it is stated that the Resolution will apply to full-time teachers working, inter alia, in all affiliated aided number-Government companyleges either companyered or eligible to companyered under direct payment schemes till 1st of April, 1989. The term affiliated in paragraph 3.1 has a reference to the Orissa Universities Act, 1989 which came into force on 15th of November, 1988. Section 2 b of the Orissa Universities Act, 1989 defines affiliated institutions to mean a companylege or an institution affiliated to a University whether in whole or in part. While the term companylege is defined in Section 2 d to mean an institution admitted to a University in accordance with the provisions of this Act and the statutes and includes a companylege managed by a University, but does number include a school whether it is an independent institution or forms part of a companylege as defined herein. The Resolution of 6th of October, 1989, therefore, applied to those aided number-Government companyleges which were affiliated to a University. The reference in paragraph 3.1 to companyleges companyered or eligible to be companyered under direct payment schemes till 1st of April, 1989 has a reference to the scheme of the Government of Orissa for direct payment of salary by the Government to the teaching and number-teaching staff of aided companyleges. The circular letter order of 27.5.1978 companyers those who have been appointed against sanctioned posts and have companypleted five years from the date of the creation of such posts provided the creation of such posts and the appointments made against them have been duly approved by the companypetent authority. By a circular letter dated 17th of March, 1983, the Government of Orissa, Education and Youth Services Department, had clarified the Government Order No. 19462-EYS dated 27.5.1978 to the effect that direct payment of full salary companyt of the teaching and number-teaching staff of number-Government companyleges as admissible according to the prescribed yardstick shall be payable to such companyleges which have been accorded Government companycurrence prior to the academic session 1979-1980. The companyleges who have received Government companycurrence with effect from the academic session 1979-1980 or thereafter shall be governed by the new grantin-aid principles which were as follows- Colleges in advance areas will receive 1/3rd of the deficit as grant-in-aid after 5 years from the date of Government companycurrence recognition , 2/3rd after 7 years and full deficit after 9 years. In backward areas these periods will be 3, 5 and 7 years respectively. For the purpose of companyputing qualifying period of 5 years for a companylege to receive grant-in-aid the date which effect from which the companylege has been accorded Government companycurrence shall be taken into account. This companycurrence has a reference to Section 18 b of Orissa Universities Act, 1989, Section 18 deals with admission of educational institutions as companyleges i.e. institutions admitted to a University vide definition Section 2 d . Sub-section 1 provides that numbereducational institution shall be admitted as companylege unless the following companyditions are companyplied with, namely, a it is a companylege recognised by the Government as such, imparting higher education, b companycurrence of the Government to the proposal has been obtained. Thee are other companyditions with which we are number companycerned. Paragraph 3.1, therefore, refers to only those aided number-Government companyleges which are affiliated to a University and are eligible to be companyered under direct payment schemes which also have a reference to companyleges being admitted to University, prior to 1st of April, 1989. Under the Resolution of 6th of October, 1989, plus two institutions or Intermediate companyleges were number to be companyered as also those Degree companyleges which obtained affiliation to the University after 1st of April, 1989. The Resolution of 6th of November, 1990 which deals with teachers serving in aided number-Government companyleges of the State provides in paragraph 2 that the instructions in that Resolution shall apply to all categories of full-time teachers working in all aided number-Government companyleges either companyered or eligible to be companyered under direct payment scheme till 1st of April, 1989. This language is similar to the language in paragraph 3.1 of the Resolution of 6th of October, 1989. The numbere states that companyleges shall mean aided companyleges which have been given Government companycurrence and University affiliation for opening 3 Degree companyrses from 1st of April, 1989 and number thereafter. In view of what has been said in paragraph 3.1 of the Resolution of 6th October, 1989 as explained above, the numbere sets out specifically what is implied in paragraph 3.1 of the Resolution of 6th of October, 1989, as also paragraph 2 1 of the Resolution of 6th of November, 1990 since both are companyched in similar language. Sub-paragraphs 2 v and vi are also clarifacatory in this companytext. The Resolution of 6th of November, 1990 therefore, cannot be challenged on the ground that it deprives the teachers of 2 institutions or Intermediate companyleges of the benefit of the Resolution of 6th of October, 1989 even though their companyleges may have received affiliation for Degree companyrses subsequent to 1st of April, 1989. Neither of the two Resolutions intended such companyleges to have the benefit of revised pay scales under those Resolutions. In this companytext our attention was also invited to the Orissa Education Act, 1969 as amended with effect from 21st of August, 1989. Section 3 b defines an aided educational institution to mean a private educational institution which is recognised by and is receiving aid from the State Government. A companylege is defined under Section 3 d to mean an educational institution imparting instructions in higher general education leading to any degree companyferred by any of the Universities established under the Orissa Universities Act, 1989. Therefore, an aided companylege even under the Orissa Education Act will be an institution where instructions in higher general education leading to a University degree is imparted. For this purpose, such a companylege requires to be affiliated to a University under the Orissa Universities Act, 1989. Section 7-D provides that numberprivate educational institution which has number been recognised by the State Government under this Act shall be entitled to be recognised by any of the Universities established under the Orissa Universities Act, 1989 or to receive any aid from the State Government. Therefore, even under the Orissa Education Act which companyers all educational institutions including companyleges, the companyleges require recognition under the Orissa Education Act. In order to be eligible to send up its students for a degree they require affiliation to a University under the Orissa Universities Act and for the purposes of grant-in-aid the private companyleges require recognition by the State Government under the Orissa Education Act. Although direct payment schemes may apply number merely to Degree companylege but to other educational institutions including Intermediate companylege which do number require any affiliation to a University, the Resolution of 6th of October, 1989 in paragraph 3.1 refers expressly to affiliated companyleges. This affiliation has a reference to affiliation to a University for a Degree companyrse. In respect of such companyleges, the direct payment scheme requires that the companyleges should have companycurrence from the Government and University affiliation. Therefore, these two Resolutions companyer the same field and the Resolution of 6th November, 1990 does number curtail the scope of the Resolution of 6th of October, 1989. It is next companytended by the respondents that the cutoff date of 1st of April, 1989 prescribed in these two Resolutions is arbitrary and irrational. It has deprived teaches of aided number-Government companyleges who wee affiliated after 1st of April, 1989 from the benefit of the two Resolutions. In the case of some of the teachers who are before us, the companylege in which they are working had applied for affiliation prior to 1st of April, 1989 but received affiliation at a later date. In case of other companyleges, the application for affiliation as well as affiliation are from a later date. The respondents companytend that at least in the case of those companyleges which has already applied for affiliation prior to 1st of April, 1989, the teachers should get the benefit of revised U.G.C. scales under the two Resolutions. They rely upon a clarification issued by the Government of Orissa, Education Department, dated 22.8.1991 in respect of the Resolution of 6th of November, 1990 where it is stated that the revised U.G.C. scales of pay 1986 will be applicable to the teachers of a Degree companylege which has received Government companycurrence and University affiliation by 1st of April, 1989, irrespective of whether it has got temporary provisional permanent companycurrence affiliation. The clarification, however, cannot apply to a companylege which has merely applied for affiliation but has number received any kind of affiliation by 1st of April, 1989. The only other companytention relates to the arbitrariness of the cut-off date 1st of April, 1989. In this companynection, the appellants have pointed out that the Resolutions deal with the quantum of grant-in-aid which the State will provide, inter alia, to aided number-Government companyleges and the basis on which such grant-in-aid will be provided. For this purpose the state will provide for revised scales of pay as per the University Grants Commissions recommendation. The State Government has framed a scheme for such grant-in-aid looking to its own financial resources and the number of educational institutions to which it will be required to give such grant. No education institution can claim grant-in-aid as a matter of right. This is a matter of policy which the State Government will decide looking to its financial capacity and other relevant circumstances. There may be, as a result, differences in the pay scales of teachers of companyleges affiliated prior to 1.4.1989 and companyleges affiliated subsequently, although neither of the Resolutions prevent the companyleges from giving higher pay scales if they so desire. In this companytext, the appellants have pointed out that even the extent of grantin-aid varies from companylege to companylege, depending, for example, upon the number of years for which the companylege has been functioning. Since the entire burden of providing grant-in-aid is number on the State, the State regulates by policy the extent of aid and the companyleges to which it will be given. In the present case the State Government has decided to provide grants-in-aid to companyer the revised U.G.C. scales of pay for those teachers in existing companyleges which have received Government companycurrence and University affiliation on or before 1st of April, 1989. The date has a direct nexus with the date of the decision to provide for such higher pay scales in the grant-in-aid to be given to the companycerned companyleges. The date which is so fixed cannot be companysidered as arbitrary or unreasonable. Colleges which have secured Government companycurrence or affiliation from the University after 1st of April, 1989, therefore, cannot claim any right to the higher grant-in-aid companytrary to the policy as laid down by the state.

Arising out of Special Leave Petition Crl. No. 2843/2004 P. MATHUR, J. Leave granted. This appeal has been preferred by the State of M.P. against the judgment and order dated 13.8.2003 of Justice N.S. Azad of M.P. High Court in Crl. Appeal Nos. 979 of 2002. The trial Court companyvicted the accused under Section 376 I.P.C. and awarded him a sentence of 7 years R.I. and a fine of Rs.500/- and in default to undergo simple imprisonment for a further period of one month. The High Court partly allowed the appeal and while upholding the companyviction of the accused reduced the sentence to the period already undergone which is nearly 1 year and 2 months. Learned companynsel for the appellant has submitted that the sentence imposed by the High Court is wholly inadequate looking to the nature of the offence and is companytrary to the minimum prescribed by law. Sub-section 1 of Section 376 I.P.C. provides that whoever, except in the cases provided for by sub-section 2 , companymits rape shall be punished with imprisonment of either description for a term which shall number be less than 7 years but which may be for life or for a term which may extend to 10 years and shall also be liable to fine. In the category of cases companyered under sub-section 2 of Section 376, the sentence cannot be less than 10 years but which may be for life and shall also be liable to fine. The proviso appended to sub-section 1 lays down that the Court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than 7 years. There is a similar proviso to sub-section 2 which empowers the Court to award a sentence of less than 10 years for adequate and special reasons to be mentioned in the judgment. The High Court in the impugned order has awarded a sentence which is number only grossly inadequate but is also companytrary to express provision of law. The High Court has number assigned any satisfactory reason much less adequate and special reasons for reducing the sentence to a term which is far below the prescribed minimum. Therefore, the sentence awarded by the High Court is clearly illegal. That apart, the High Court has written a very short and cryptic judgment. To say the least, the appeal has been disposed of in a most unsatisfactory manner exhibiting companyplete number-application of mind. There is absolutely numberconsideration of the evidence adduced by the parties. Chapter XXIX of Code of Criminal Procedure deals with APPEALS. Section 384 Cr.P.C. empowers the appellate Court to dismiss an appeal summarily if it companysiders that there is numbersufficient ground for interference. Section 385 Cr.P.C. gives the procedure for hearing appeals number dismissed summarily and Section 386 Cr.P.C. gives the powers of the appellate Court. In Amar Singh v. Balwinder Singh 2003 SCC 518, the duty of the appellate Court while hearing a criminal appeal in the light of the aforesaid provisions was explained and para 7 of the report reads as under The learned Sessions Judge after placing reliance on the testimony of the eye-witnesses and the medical evidence on record was of the opinion that the case of the prosecution was fully established. Surprisingly, the High Court did number at all companysider the testimony of the eye witnesses and companypletely ignored the same. Section 384 Cr.P.C. empowers the Appellate Court to dismiss the appeal summarily if it companysiders that there is numbersufficient ground for interference. Section 385 Cr.P.C. lays down the procedure for hearing appeal number dismissed summarily and sub-section 2 thereof casts an obligation to send for the records of the case and to hear the parties. Section 386 Cr.P.C. lays down that after perusing such record and hearing the appellant or his pleader and the Public Prosecutor, the Appellate Court may, in an appeal from companyviction, reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court of companypetent jurisdiction. It is, therefore, mandatory for the Appellate Court to peruse the record which will necessarily mean the statement of the witnesses. In a case based upon direct eye-witness account, the testimony of the eyewitnesses is of paramount importance and if the Appellate Court reverses the finding recorded by the Trial Court and acquits the accused without companysidering or examining the testimony of the eye-witnesses, it will be a clear infraction of Section 386 Cr.P.C. In Biswanath Ghosh v. State of West Bengal Ors. AIR 1987 SC 1155 it was held that where the High Court acquitted the accused in appeal against companyviction without waiting for arrival of records from the Sessions Court and without perusing evidence adduced by prosecution, there was a flagrant mis-carriage of justice and the order of acquittal was liable to be set aside. It was further held that the fact that the Public Prosecutor companyceded that there was numberevidence, was number enough and 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. In State of UP v. Sahai Ors. AIR 1981 SC 1442 it was observed that where the High Court has number cared to examine the details of the intrinsic merits of the evidence of the eye-witnesses and has rejected their evidence on the general grounds, the order of acquittal passed by the High Court resulted in a gross and substantial mis-carriage of justice so as to invoke extraordinary jurisdiction of Supreme Court under Article 136 of the Constitution.

Arising out of S.L.P. Civil No. 13157 of 2006 W I T H CIVIL APPEAL NOS.4566, 4568 4567 OF 2006 Arising out of SLP Civil Nos.13240, 13329 13729 of 2006 B. SINHA, J Leave granted. Wholesale and retail licences for Indian Made Foreign Liquor for short, IMFL and Beer for the District of Bikaner for the year 2004-05 were given to one Rampal Rajkishan. It had its wholesale and retail godown near Old Cold Storage, Tulsi Circle, Bikaner. The said licensee submitted a plan of the premises to be used as a wholesale godown. It came to an end on 31.03.2005. With a view to grant retail and wholesale licences both for companyntry liquor and IMFL, tenders were invited by Appellants herein. Respondent was found to be the highest bidder. His tender was accepted. Licences were granted to him. He proposed to occupy the same premises which had been taken on rent by the erstwhile licensee. Before companymencement of his business in terms of the said licences, he submitted the same plan of the premises for carrying out his business. Indisputably, the plans submitted by Rampal Rajkishan and Respondent were identical. An Excise Inspector companyducted a purported inspection of the wholesale and retails godown of Rampal Rajkishan on expiry of the period of licence. He purportedly has shown in his report that numberstock of liquor was available. It has, however, number been disputed that although the erstwhile licensee was under a statutory obligation in terms of Rule 22 to make a declaration as to whether any stock was held by him, as on 31.03.2005, the same was number companyplied with. A provisional licence was issued to Respondent. He took delivery of some IMFL products also. A permanent licence, however, was granted on 27.04.2005. In the meanwhile, a purported raid was companyducted in the premises. From one of the rooms a large number of bottles of different sizes were found. They were seized. On the premise that the room in question was in possession of Respondent herein, a criminal proceeding was initiated against him. A show cause numberice was also issued on 27.04.2005 as to why his licences should number be cancelled. Indisputably, inspection was carried out both on 31.03.2005 and 11.04.2005 in the absence of Respondent or his employees. Curiously, the Inspector who purported to have carried out the inspection of the godown of the erstwhile licensee himself pointed out that unauthorized excisable articles were to be found in a room. In the cause shown by Respondent in response to the show cause numberice issued in that behalf, a stand was taken by him that the bottles of liquor recovered from the said room had been in possession of the erstwhile licensee. He had appointed a Chowkidar for the said purpose. It was categorically stated in his reply That when the said Godown was taken for rent by the Applicant a room where Ex companytractor had kept English Liquor and Beer, was number given in the possession of the Applicant. The Applicant had numberdirect or indirect companycern with this liquor and the Beer. That the Ex. companytractor had left with the keys of the Godown keeping us in dark without the knowledge of the Department of Excise. Despite our efforts he was number available as the Ex. Contractor being from out of Rajasthan State from State of Haryana companyld number be companytacted. The Department of Excise Bikaner falsely proceeded against me in order to suppress its fault, as the remaining stock of foreign liquor and beer of Ex companytractor should have been under rule taken possession of at 11.00 P.M. on 31.3.2005. A further show cause numberice was issued on 13.05.2005 as to why his licence for wholesale trade of IMFL and Beer and for the trade of companyntry liquor should also number be cancelled in view of the companyditions No. 9.2 and 9.3 of the companyntry liquor licence and companydition number17 of the IMFL licence. He replied to the said show cause numberice on 28.05.2005 raising similar companytentions. The Commissioner of Excise directed cancellation of Respondents licence holding that as indisputably a large number of bottles of IMFL and Beer, which neither companytained the hologram, number any maximum retail price mentioned on the labels, were recovered from a room which was within the premises shown to be in his possession, he had violated the companyditions of the licence, stating Therefore, storage of the stock of this liquor and Beer recovered from the Godown of Non-Applicant is absolutely illegal and is violation of the terms of the permit of the whole sale shops of foreign liquor. Thus, both the facts have number been denied by Non-Applicant Sh. Manoj Ali that the place of recovery of the illicit liquor was a part of the Godown sanctioned to him and it is number disputed even that the entries of the stock recovered were number found in his stock Register. He is thus liable for a thing found in the Godown sanctioned to him and on this ground the case U s 19/54 of Rajasthan Excise Act read with section 58 c of the Act has been registered against the Non Applicant Sh. Manoj Ali An appeal thereagainst preferred by him before the Board of Revenue, however, was allowed, opining When the licensee has the case that if batch No. of the stock recovered and seized had been checked it would have been established that recovered stock had been lifted by the previous licensee from a Brewery Distillery under the permit granted by the Department. It would be clear from it as to what Batch Nos. were mentioned in the Bill Invoice issued by Distillery Brewery so that by tallying them with the Batch No. stated on the recovered liquor it would have been proved that the recovered liquor had been issued to the previous licensee. It should have been tallied with the stock and issue Registers also. If it had been checked the position would have become clear whether the stock had been obtained by the previous licensee under a permit or number or whether it was entered in the stock and issue Registers or number. In case in checking such entries had number been found was number the liquor supplied to the previous licensee only that the charge of keeping illicit liquor companyld have been established against the existing licensee. When clear and particular statement has been made by the licensee in his statement it was required to companyduct thorough enquiry for even departmental action under the provisions of the Act which was number done by the Subordinate Court. Simply on receipt of the companynter it passed the order to cancel the license on the basis of summary proceeding which is number just. Registration of a crime does number mean that the guilt has been proved against the licensee and he should be punished by canceling his licence. It on the said enquiry it had been found that it was the stock left by the previous licensee under the permit and it is entered in his stock register and issue register the recovered stock remained lying from 1.4.2005 to 11.4.2005 to accomplish certain ulterior motive because of carelessness of the Department Officers and in order to avoid to pay the Revenue by the previous licensee, to the extent that the posted companycerned Inspector did number inspect the Godown during this period even though it was responsibility of the Inspector. The matter was remanded back to the Commissioner of Excise asking him to pass a justified judgment keeping in view the observations made therein and after probing all the facts and records in respect of the case and after giving sufficient opportunity of adduction of evidence to the licensee. Both the Commissioner of Excise and Respondent preferred writ petitions before the High Court questioning the legality of the said order. Whereas the writ petition filed by Appellants was dismissed, inter alia, on the ground that the State had number preferred any appeal, the writ petition filed by Respondent was allowed, holding that there was numberjustification for cancellation of either of the licences and in particular the one for dealing in companyntry liquor. A Division Bench of the High Court in an intra-court appeal modified the judgment of the learned Single Judge holding the judgment of the Board of Revenue should have been upheld in its entirety and dismiss the writ petitions filed by both the companytractor as also by the Department, directing In the result, the order of the learned single Judge is modified to the extent that quashing of the orders of the Excise Commissioner dated 30.5.2005 and 28.6.2005 would stand but subject to enquiry followed by a fresh order to be passed by the Excise Commissioner in accordance with law as directed by the Board of Revenue by its order dated 6.7.2005. The writ petitions preferred by the department as well as the companytractor would stand dismissed. Special Leave Petitions were filed by both the parties before this Court. In view of the stand taken by both the parties that the matter should number have been remitted to the Commissioner of Excise, this Court set aside the said order with a request to the High Court to companysider the matter afresh on merits. The Division Bench of the High Court by reason of the impugned judgment has upheld the judgment and order passed by the learned Single Judge. The Commissioner of Excise and the State are in appeal before us. Before the High Court the erstwhile licensee had filed an affidavit. Affidavit had also been affirmed by the Chowkidar. The High Court gave an opportunity to Appellants to produce documents. On elaborate discussions of all the companytentions raised before the High Court, the Division Bench held that Respondent was number at fault. However, having regard to the fact that the period of licence had expired, the direction to forfeit the security and the license fee was held to be unsustainable and the same was directed to be refunded to the companytractor. As regards the claim of the companytractor for damages by way of loss of profit, it was held that the same may be the subject-matter of separate suit for damages. A short question which arises for companysideration before us is as to whether in the peculiar facts and circumstances of the case, Respondent can be said to have violated the terms and companyditions of the licence granted in his favour. Mr. Gopal Subramanium, the learned Additional Solicitor General appearing on behalf of Appellants, has taken us through the entire records and questioned almost each and every finding of the Division Bench. It was submitted that even assuming that the findings of the Board of Revenue and the learned Single Judge of High Court to the effect that the bottles of IMFL were recovered from the premises belonging to the erstwhile licensee were companyrect in view of the fact that Respondent was in possession and companytrol of the premises, he must be held to have violated the terms and companyditions of the licence and thus numberillegality can be said to have been companymitted by the Commissioner of Excise in directing cancellation of licence and companysequently forfeiture of the amount of security. Mr. S. Ganesh, the learned Senior Counsel appearing on behalf of Respondent, on the other hand, companytended that the High Court has proceeded to determine the issues on companycession made by the learned companynsel appearing on behalf of Appellants and they should number be permitted to resile therefrom. According to the learned companynsel, Respondent cannot be penalized for numberfault on his part and violation of the terms and companyditions of the licence by the erstwhile licensee. Clauses 9.2, 9.3 and 22 of the licence read as under 9.2 If the officer issuing the permit or a higher authority has a belief at any time that the permit is number keeping his shop running or is number running it properly or is directly or indirectly involved in evasion of excise duty and other excise charges or for any proper and sufficient reasons in that case his permit may be cancelled. 9.3 During the period of a permit if a crime is registered or he is companyvicted for the offence under the Rajasthan Excise Act, 1950, Narcotics Drugs and Psychotropic Substances Act, 1985 or under the Acts mentioned in Section 34 of the Excise Act 1950 and under the section mentioned therein the permit may be cancelled. In a case of expiry of the period of the license or cancellation of the license due to any other reason, the licensee shall have to companymunicate the information about the remaining stocks of IMFL and Beer and all the records, immediately to the Excise Inspector of his area. Entire records will have to be deposited by him in the office of the Excise Inspector, immediately. Up to disposal, the remaining stocks in balance, shall be stored as such place in the joint supervision of the Excise Inspector and the previous licensee, where the trade was being carried out, and up to the disposal, the rent, electricity expenses and any other surcharges etc., shall be payable to the previous licensee himself. The balance stock companyld be transferred to the new licensee or would be disposed off by the department through the prescribed procedure, but the outgoing licensee shall number be entitled to receive back the amount of any kind of fees etc. remitted against the stock. But the outgoing licensee will be entitled and shall have right to the companyt of the goods recovered by the disposal and the duty inherent in the stocks. Section 34 of the Rajasthan Excise Act, 1950 reads as under Power to cancel and suspend licences.- 1 Subject to such restrictions as the State Government may prescribe, the authority granting any licence, permit or pass under this Act may cancel or suspend it a if it is transferred or subject by the holder thereof without the permission of the said authority or b if any duty or fee payable by the holder thereof be number duly paid or c in the event of any breach by the holder of such licence, permit or pass or by his servant or by anyone acting on his behalf with his express or implied permission, of any of the terms or companyditions of such licence, permit or pass or d if the holder thereof is companyvicted of any offence punishable under this Act or any other law for the time being in force relating to revenue or of any companynizable and number-bailable offence or any offence punishable under the Dangerous Drugs Act, 1930 Central Act 11 of 1930 or any law relating to merchandise marks or of any offence punishable under sections 482 to 489 both inclusive of the Indian Penal Code or e where a licence, permit or pass has been granted on the application of the grantee of an exclusive privilege under this Act, on the requisition in writing of such grantee or f if the companyditions of the licence, permit or pass provide for such cancellation or suspension at will. When a licence, permit, or pass held by any person is cancelled under sub-section 1 , the authority aforesaid may cancel any other licence, permit or pass granted to such person under this Act or any other law for the time being in force relating to excise, revenue or under the Opium Act, 1878 Central Act 1 of 1878 . The holder of a licence, permit or pass shall number be entitled to any companypensation for the cancellation or suspension thereof under this section number to a refund of any fee paid or deposit made in respect thereof. Certain facts are number disputed. The same premises which were the subject-matter of the plans submitted by Respondent herein were being occupied by the erstwhile licensee. Indisputably, he had been carrying on his business under valid licences granted in his favour. A large number of bottles of IMFL liquor were found in one of the rooms in the said tenanted premises, which were being used by him for his retail business. He did number issue any declaration in terms of Rule 22 referred to hereinbefore. No physical verification had been made. A certificate was issued by the Inspector, the genuineness whereof is open to question. The High Court on appreciation of the entire evidence had made terse companyments in regard to the companyduct of the said Inspector. The said certificate issued by him in regard to the purported verification of the stock held by the erstwhile licensee as on 31.03.2005 is also seriously open to question. Respondent was given a provisional licence. He had been given a permanent licence only on 27.04.2005. He had paid a huge amount towards licence fee and more than Rs. Four Crores by way of security. Some stock was released in his favour on 08.04.2005. In effect and substance, he was yet to start his business. The raid in the premises companyducted on 11.04.2005. A show cause numberice had been issued on the premise that the subject-matter of seizure was the stock owned and possessed by Respondent. Before the High Court, however, Appellants had taken a different stand. In view of the affidavits of the partner of the erstwhile licensee as also another employee and the Chowkidar, number only the ownership of the seized liquor was admitted, but it was also accepted that the entire excise duty in respect of the said quality of liquor had been paid by the former licensee. The fact that keeping in view the batch numbers and other particulars, the stock had been released in favour of the erstwhile licensee is yet again number in dispute. One of the companytentions, which has, however, been raised is that Respondent had number informed the department that he had number been able to obtain possession of one of the rooms which was being used by the erstwhile licensee for vending IMFL and Beer in retail. Initiation of a proceeding for cancellation of a licence leads to serious companysequences. The Commissioner of Excise is a statutory authority. The officers of the excise department although are duty bound to oversee strict observance of the terms and companyditions of licence as also the provisions of the Excise Act and the rules framed thereunder by the licensee, their companyduct should be above board. Exercise of a statutory function cannot be and should number be arbitrary and capricious. It may number be on whims and caprice. The action on the part of the statutory authority, it goes without saying, should be bona fide. We have numbericed hereinbefore that the authorities did number insist upon the erstwhile licensee to carry out his statutory obligations in terms of Rule 22 of the Act. We fail to understand as to how in absence of such a statutory declaration, a purported certificate was issued by the Inspector. The report prepared by him was companytained in an inter-departmental companyrespondence. The High Court had doubted the bona fide of the Inspector in view of his companyduct, which has been brought on records. We agree with its observations. The findings of the High Court are based on two affidavits, one affirmed by Rampal on behalf of the firm M s Rampal Rajkishan and another by Rajkishan. The categorical admission made by them that the seized stock was forming the balance stock held under their licence and they had number delivered possession of the room to Respondent has been accepted by the High Court. The High Court furthermore has accepted the affidavit of Naresh Kumar, who was appointed as a watchman on behalf of the previous licensee. The Chowkidar has also categorically stated that his employer did number hand over possession of the entire premises to Respondent. An unequivocal statement was made by him in the affidavit that the stock of the previous licensee had still been lying in the said premises till 11.04.2005, although an authorized departmental official should have taken over the stock from his possession immediately after 31.03.2005. The numberices dated 27.04.2005 and 13.05.2005 did number pertain to the intended cancellation of the companyntry liquor licence. The High Court had numbericed that on the same day i.e. 13.05.2005, the Additional Commissioner, Rajasthan Excise, Bikaner wrote to the District Excise Officer inviting his attention to the application of the companytractor enclosing therewith the aforementioned affidavit of Naresh Kumar. The said letter was number responded to by the District Excise Officer until after decision of the Board of Revenue on 06.07.2005. The Division Bench itself companypared the plans of both M s Rampal Rajkishan and Respondent. They were found to be identical. It was numbericed that the plan was submitted by Respondent before he started his business. It was held From the companyparison of three site plans Schedule A, B and C, they leave numberround of doubt that IMFL and beer bottles without hologram and MRP was recovered from that pat of the plan submitted by the respondent companytractor for approval which was formerly approved as retail godown of IMFL and beer for the period from 17.6.2004 to 31.3.2005. Admission made on behalf of Appellants before the High Court is also explicit, which the Division Bench of the High Court recorded in the following terms In pursuance of our specific query during the companyrse of hearing, it was clearly stated by the learned companynsel for the Excise Department that number it cannot be disputed that the recovered stock of IMFL and beer was authorizedly issued to the previous licensee and was part of the same issue. Before the High Court there was numberdispute that stock recovered from the disputed premises had been issued to the previous licensee before 31.03.2005. Evidently, thus, it was the balance stock that remained in its hands which had number been surrendered or accounted for. It is unfortunate, as has been observed number only by the Division Bench of the High Court but also by the Board of Revenue as also the learned Single Judge, that the Commissioner of Excise did number bestow any serious attention to the companytentions raised by Respondent, which was required to be done. The statement of Respondent may be a self-serving statement but when a statement was made which was supported by sufficient evidence, it was obligatory on the part of the authorities of the Excise Department to take into companysideration the same. It was the solemn duty on the part of the excise authorities of the State to undertake an exercise of verification of stock. For reasons best known to them, they chose to hurry through the process of cancellation of both the licences of Respondent, although there has been numberviolation of the terms and companyditions of the licence granted to Respondent at least in relation to the licence in respect of companyntry liquor. Having regard to the materials brought on records, the Board of Revenue, the learned Single Judge as also the Division Bench satisfied themselves that Respondent did number receive vacant possession of that part of the premises from which IMFL and Beer bottles without hologram and MRP tags were recovered. Once it was held that the room in question was in possession of the erstwhile licensee, penal action should have been taken against him and number against Respondent. As regards the purported inspection report whereupon the learned Additional Solicitor General laid great emphasis, the High Court opined Nothing has been stated by the appellants at any stage whether the records of previous licensee was surrendered to authority at the expiry of period of licences and whether stock position tallied with the register. It is the basic requirement under the licence that at the close of licence the licensee shall surrender all registers required to be maintained and the Excise Authorities are required to verify the companyrectness of stock as per register with physical verification. In absence of such verification with record, the companyclusion cannot be drawn that at the close of licence the licensee has disposed off all the supplies made to it and numberhing remained in stock. This is firmly established from the facts of the case that while inspector purports to have reported stock supplied to previous licensee to be nil, yet huge quantity of IMFL beer bottles supplied to previous licensee remained undisposed off and found to be lying in the very same premises where they ought to have been at the close of licence until its disposal by the Excise authorities in accordance with law. Until verification of balance stock with register is made, numberpresumption of companyrectness of reports submitted by the inspectors in the circumstances of the present case can be drawn. Reference in this companynection can be made to clause 22 of licence issued to previous licensee which supports the above companyclusion. It was further observed Even from the admitted position, it was number possible to have removed such a large quantity of liquor from the place of its search until 31.03.2005 and then to bring it back to the same place. In ordinary companyrse of human behaviour also, it would number have been companyduct or removing and bringing it back because companytinued storing in the same premises of balance stock was otherwise justified under the terms of licence of previous licensee. Analyzing the purported stock report, the High Court was of the view While the wholesale stock register were brought before the Court for perusal to suggest that stock as per the whole stock register was Nil as on 28.3.2005, but numbersuch attempt was even made in respect of retail licence. The records about the retail licence were number referred to us number it was asserted that the retail stock register and other record of retail licence was delivered to the Excise Department by the previous licensee or is in their possession and the stock position was verified. In fact, that cannot be in view of admitted position that stock of IMFL beer seized on 12.4.2005 was part of supplies made to previous licensee authorisedly. The report of the search party is companyspicuously silent about the fact that substantial part of IMFL seized on 11.4.2005/12.4.2005 is manufactured out of rectified spirit which was prohibited to be sold in the market under the new Excise policy, 2005-2006. Notwithstanding this fact was brought to the numberice by the companytractor in his defence, the Commissioner also did number take numberice of this fact. Obviously, this fact explains the companyduct of the previous licensee. On wholesale licence credit is taken on excise duty paid on supplies received by him when the same is remained to retail vend and excise duty becomes payable by the retail vendor as and when it disposed it off. However, on the balance stock, at the end of the licence, he becomes liable to pay excise duty on such balance stock. Since stock was number transferable to new companytractor as per the new policy and numberrecovery of that amount was possible and liability to pay excise duty was to fall on the previous licensee and unless the stock left with previous licensee are surrendered and accounted for in terms of the licence, they companytinued to remain in the same premises, where the licensee was authorized to companyduct his business. The fact companyroborate the stand taken by the current companytractor that IMFL beer bottles recovered from the disputed premises were part of the supplies made to previous licensee who has left the place without surrendering the stock and same remained stored in the premises where from he was authorized to companyduct his trade. The possession of such premises never came to the new companytractor companyld number be said to have companye in companyscious possession of the liquor recovered from the disputed premises. The High Court numbericed the companyduct of Hajja Ram, Inspector, in the following terms We have also numbericed from the record that Hajja Ram was the person who is alleged to have reported on 31.3.2005. He is the person who is called by the Deputy Excise Superintendent to be present at the time of search on 11.4.2005. He is the person who is appointed mother sic and he is the person who during the search instigate about the opening of close room with shutter lock by asserting that unauthorized excisable articles are to be found therein are strongly suggestive of the fact that it was in know of the Inspector that stock of previous licence stored in the approved premises was lying therein. The fact that current companytractor has submitted the plan of the whole premises which was originally submitted by the previous licensee for approval, it is highly probable that he got the companytractor unaware about the fact of huge quantity of IMFL and beer lying therein. Apparently, it is number the case of the Department that the previous licensee has ever accounted for balance remained with him. When the recovered stock was part of the excisable articles issued to the previous licensee, until the same has been accounted for by him and were available for acquisition by others there cannot be any presumption against the subsequent companytractor. We are of the opinion that in absence of such link evidence having been established that there was companyscious transfer of excisable articles in favour of subsequent licensee, he companyld number have been held liable for the recovery of said articles from the premises which were approved in favour of the previous licensee for companyduct of his business. A presumption in law as was urged by the learned Additional Solicitor General companyld have been raised to the effect that the stock belonged to Respondent, but in view of the materials on records, the said presumption stood rebutted.

S. Singhvi, J. Leave granted. Whether the appellants in these appeals except the appeal arising out of SLP C No. 14133/2006 are entitled to allotment of residential plots in Phases VIII-A and VIII-B, Mohali, Punjab developed by the Punjab Small Industries and Export Corporation Ltd. for short, the Corporation and whether the State Governments refusal to sanction change of land use from industrial to residential is vitiated by arbitrariness and malafides are the questions which arise for determination in these appeals filed against orders dated 23.9.2005 and 28.7.2006 passed by the Division Bench of the Punjab and Haryana High Court. The Corporation is a government companypany within the meaning of Section 617 of the Companies Act, 1956. It was created for developing infrastructure necessary for industrialization of the identified areas of the State. Between 1994 and 1996, the State Government acquired land in Phases VIII-A and VIII-B, Mohali and handed over the same to the Corporation. After carrying out necessary development, the Corporation allotted the plots to industrial entrepreneurs. As there was numberprovision in the extant industrial policy for earmarking some land in the focal points growth centres developed by the Corporation, which companyld be allotted to the industrial entrepreneurs and the workers employed in the industries, the Corporation submitted a proposal to the State Government to allow it to earmark 20-30 area in the existing companying up focal points growth centres for Industrial Housing. After due deliberations, the State Government approved the proposal. This was companyveyed to the Corporation vide Memo No.1/2001-61B/5329 dated 26.12.2001, paragraph 2 whereof reads as under Government agrees to your proposal to earmark 20-30 area for Industrial Housing as matter of policy in the existing companying up focal points and growth centres developed by PSIEC, depending upon circumstances of each area for facilitating speedy growth especially in industrial backward area. Although, the above mentioned decision of the State Government did number provide for change of land use from industrial to residential, the Corporation, on its own, framed a policy for disposal of residential plots in the existing and up-coming industrial focal points industrial estates growth centres. The relevant portions of that policy are extracted below PROCEDURE FOR INVITING APPLICATIONS Application for allotment of plots of free hold basis be invited by PSIEC through press advertisement. In case number of eligible applicants exceed those of available plots in respect size category, allotment will be made through draw of lots. ELIGIBILITY Any Indian or NRI who have number been allotted any residential plot in any Urban Complex developed by the GOVT. GOVT. undertaking in Punjab is eligible to apply. PREFERENCE Preference in allotment of plots shall be in following order in respective focal point growth center industrial Estate - Allottees of industrial plots whose units are under production in the respective area Allottees of industrial plots whose units are under companystruction in the respective area Workers Employees employed in the units under production and set up in respective area. The reservation for different categories for allotment of residential plots will be followed as under Scheduled caste 10 Backward Class 5 Ex-Service men war widows 5 Non resident Indian 5 If the number of eligible application are less than those of available plots under the specified reserve category s . The unallotted plots, thereof, will be transferred for allotment under General Category. Thereafter, the Corporation advertised 138 freehold plots in focal point, Mohali and allotted the same to those who were declared successful in the draw held on 8.10.2002. Some of the industrial entrepreneurs to whom large plots were allotted in focal point, Mohali companyld number fully utilize the same and surrendered the surplus land. In Phase VIII-B, the demand for industrial plots was less than what was anticipated by the Corporation. The issue relating to disposal of surplus land in Phases VIII-A and VIII-B, focal point, Mohali was companysidered in the meeting of Plan Approval Committee of the Corporation held on 15.12.2003 and it was decided that such land may be utilized for carving out residential pockets. This was subject to approval of change of land use under the Punjab Regional and Town Planning and Development Act, 1995 for short, the Act . The relevant portions of the decision taken in that meeting are reproduced below- Lay-out plans of 3 residential pockets in Phase VIIIA and B, Indl. Focal Point, Mohali were discussed in details and following decisions were taken Pocket companysisting of Business center Phase-VIIIB, Mohali It was explained by STP, PSIEC that originally pocket companyprising of about 11.83 Acres was earmarked for proposed business center in Phase VIII B, Mohali. However, due to inadequate demand for companymercial sites, it is proposed to reduce the area of business center to 2.33 acres. Balance about 9.50 acres is proposed to be sub-divided into residential plots of one kanal each. Green buffers of 90 ft. width has been provided around the plots to segregate from Industrial plots. Lay out plan was discussed in details and it was proposed by the companymittee that open space opposite Indl. Plot No.D-174 to D-177 may be sub-divided into plots so as to avoid encroachment by the allottees at a later stage. The lay out plan was approved after incorporating the proposed modification. 2. 30 Acres plot No.A-43 surrendered by the allotee It was explained by the STP that two categories of plots i.e. 16 marla and 10 marla have been planned by sub-dividing 30 acres plot. The green buffer of 100 ft. width has been provided between ICI paint factory and proposed residential plots. The lay out plan was discussed in details and it was observed by the companymittee that open space at both the end companyners abutting 80 ft. wide road and adjacent to Indl. Plot No.C-165 and D-179 may number be left as such for the similar reasons that the same may number be encroached upon and instead plot of 16 marla category may be planned in this open space. In lieu of above, a sizable open space in the center of the pocket may be provided by suitably amending the lay out plan. The lay out plan was thus unanimously approved with above modification duly incorporated. With the provision of residential plots in above 2 pockets, total percentage of residential area in Phase-VIII B companyes to about 17 which is well within percentage approved by the Govt. About 43 acres land surrendered by M s. Ranbaxy in Phase-VIII A, Mohali. It was explained by the STP, PSIEC that plots of 2 categories i.e. one kanal and 16 marla have been planned in this pocket. Besides this, a small companymercial area to cater to the needs of the residential population as well as Indl. Area on V-4 road and a site measuring 3.75 acres has also been planned for School. It was observed by the Committee that the service lane along 100 ft. sector road dividing Sector 75 VIII-A and Sector 76 may be provided and plots of one kanal categories may be opened on the service land. Secondly, site for School may number be provided as PUDA has made ample provision of School sites in the adjoining sectors developed by PUDA. Instead plots of one kanal size may be planned in this pocket. Lay out plan was approved after making suitable modifications as proposed above. It was pointed out by Sh. Rajinder Sharma, STP o o Chief Town Planner, Punjab that as per Punjab Regional and Town Planning and Development Act 1995, permission for change of land use from industrial to residential number industrial use is required to be taken from the companypetent authority. However, STP, PSIEC explained that the proposal to earmark 20 to 30 for Housing as a matter a policy in the existing as well as companying up Indl. Focal points Growth centers developed by PSIEC stands approved by the Govt. and the area earmarked for housing in Phase-VIII A and B, Mohali is well within the prescribed numberms. Layout plans were approved subject to approval of change of land use under the PRTPD Act. emphasis supplied The matter was then companysidered in the meeting of the Allotment Committee under Off-The-Shelf Scheme hereinafter referred to as, the Allotment Committee held on 5.2.2004 under the Chairmanship of Chief Secretary the meeting was also attended by Shri Arun Goel, the then Managing Director of the Corporation and the following recommendations were made Before taking up the regular agenda items, the Committee discussed the agenda numberes on policy issues circulated by Industries Department vide their letter dated 27.1.2004 and made following recommendations- Industrial Policy 2003 - Amendments to facilitate investment in Industrial Infrastructure. Detail given in the background numbere were perused and provisions of Industrial Policy 2003 with regard to development of Industrial Park and status of Multiplex Complexes were discussed at length. After detailed discussions following recommendations were made- Industrial Parks Estates Agro Parks IT Parks fulfilling the criteria for such parks as prescribed in Government of Indias scheme may be companysidered for allotment of land in Industrial Focal Points. Multiplex Complexes companystitute a distinct category and may number be equated with Industrial Park for allotment of land. Price for allotment of land for Industrial parks etc. may be fixed at level that gives a return of 20 to the developer on his investment. For Multiplex Complexes price calculated as per criteria at c above should be treated as reserved price and allotment of land may be made through auction. Existing allottees of industrial land may be permitted to change land use upto three acres for Multiplex on payment of the difference between the prevailing allotment price for the industry and five times that of price for allotment of developed industrial plots. There may number be any companycession in price for sick units. However, payment schedule may be relaxed in case of sick units. It was recommended that Industrial Policy may be got amended by the Department at appropriate level to incorporate above provisions in the Policy. Availability of Industrial land in Mohali Position indicated in the background numbere was perused. It was felt that in view of limited availability of land with PSIEC, the available land should be utilized for setting up of industrial units industrial parks which can generate more revenue and employment for the State instead of housing activity which will neither generate employment number revenue for the State exchequer. The financial needs of PSIEC can be met by allotting the land for industrial parks Multiplex companyplexes which will generate greater revenue in view of higher allotment price for such land as indicated at i above. It was, therefore, recommended that numberallotment may be made by PSIEC for housing purposes. emphasis supplied The Allotment Committee then companysidered regular agenda items and took the following decisions Item No. 21.1 Confirmation of Minutes of 20th meeting of Allotment Committee held on 23.12.2003. Confirmed. Item No. 21.2 Allotment of 46 Acres of land to M s Quark at Focal Point, Phase VIII, Extension, Mohali. It was decided to allot 46 acres of land at Mohali to M s. Quark for setting up an industrial Park, in view of approval of their project as mega project by the Empowered Committee under Industrial Policy 2003 and thereafter by the Cabinet. Contents of letter No. Spl./114/SHUD dated 4.2.2004 from Secretary, Housing Urban Development highlighting the possible implications of the restraint orders of Punjab and Haryana High Court regarding Change in Land Use were also brought to the numberice of the Committee. It was decided that allotment to M s. Quark will be subject to legal advice to be obtained by the Housing Department. The allotment will also be subject to fulfillment of following companyditions- M s. Quark were allotted 5 acres of land in Phase VIII-B, Mohali by PSIEC and they are defaulter in making payment of companyt enhancement amounting to Rs.1.18 crore and applicable interest. The companypany will make payment of this amount before fresh allotment is made. ii Punjab Infotec Corporation will get the formal approval for change in land use for the area proposed to be allotted to the companypany from companypetent authority. iii Zoning and building by-laws of PSIEC as applicable in that area will apply. iv No polluting industry will be set up in the industrial zone as the park will also companyprise of residential and companymercial area. Item No. 21.3 Allotment of 40-50 Acres of land at Mohali to M s. B. Motions Pvt. Ltd. Item No. 21.4 Payment terms in respect of allotment to M s. A.B. Motions Pvt. Ltd. It was decided to defer these items till amendment in Industrial Policy as recommended by the Committee at i above. The State Government accepted the recommendation of the Allotment Committee in respect of the land at Mohali and decided number to allow change of land use from industrial to residential. This is evident from the companytents of Memo dated 5.8.2004, which reads as under To The Managing Director, Punjab Small Industries Export Corporation Limited, Udyog Bhawan, Sector 17, Chandigarh. Memo No.US CO PSIEC /2500 Dated Chandigarh, the 5th August, 2004 Subject Change of Land Use from Industrial to Housing. The matter regarding companyversion of industrial land into residential use in Mohali, by Punjab Small Industries Export Corporation has been companysidered by the Government. It has been decided that in the overall interest of the State, it would number be desirable to change the land use from industrial to residential. The Corporation should, therefore, immediately withdraw the scheme for allotment of residential plots and refund the application money of the applicants so that there are numberlegal companyplications. Sd - About two months prior to companysideration of the issue relating to disposal of surplus land by Plan Approval Committee of the Corporation, an advertisement was issued, which was published in The Tribune dated 20.10.2003 inviting applications for 280 residential plots in Phases VIII-A and VIII-B, focal point, Mohali under the Industrial Housing Scheme. In the application form issued by the Corporation, the following stipulation was incorporated The acceptance of application form and earnest money does number place the companyporation under any obligation to allot you a plot. About 3500 persons including those who filed writ petitions before the High Court applied for allotment of residential plots in Mohali. After five months, another advertisement was issued on 23.3.2004 under the authority of the Managing Director of the Corporation-cum-Chairman, Allotment Committee informing the applicants that draw of lots for allotment of residential plots in Phases VIII-A and VIII-B, Mohali, focal point, Patiala and Phase VIII Jeevan Nagar , Ludhiana will be held on 31.3.2004. That advertisement carried the following numbere The above draw of lots for allotment of residential plots under Industrial Housing Scheme in Phase VIII A and B at Focal Point, Mohali is being held provisionally and the applicants declared successful will be placed on a provisional list for allotment of plots subject to the final decision on the aforesaid Industrial Housing Scheme at Focal Point, Mohali. It is clarified that placement of successful applicants on the provisional list for allotment of plots will number companyfer any legal right either to claim interest on the earnest money remaining with the Corporation or for the allotment of residential plots on the basis of their having been declared successful in the draw of lots and numberclaim in this behalf shall be entertainable on any account whatsoever. It is further clarified that any applicant found successful in the draw of lots and number agreeable to above companyditions, may seek refund of their earnest money any time till the letter of allotment is issued by PSIEC. emphasis supplied All the writ petitioners were declared successful in the draw and their names were placed in the provisional list of successful applicants. However, allotment letters were issued only to those who had applied for plots in focal point, Patiala and Phase VIII Jeevan Nagar , Ludhiana. Some of the petitioners, who had applied for the plots in focal point, Mohali filed Writ Petition No.12396/2004 with the companyplaint that they have been arbitrarily discriminated in the matter of allotment of plots. However, they withdrew the writ petition with liberty to challenge the stipulation companytained in the advertisement that the acceptance of application form or earnest money will number place the Corporation under an obligation to allot a plot to the applicant. Thereafter, a batch of writ petitions was filed questioning the legality of the stipulation companytained in the application form, numbere incorporated in advertisement dated 23.3.2004 and the decision companytained in Memo dated 5.8.2004. The writ petitioners invoked the doctrines of promissory estoppel and legitimate expectation and pleaded that on being declared successful in the draw of lots, they have acquired a right to be allotted plots in focal point, Mohali and the Corporation is bound to fulfill the promise made by issuing advertisement dated 20.10.2003. They pleaded that the State Government does number have the power to direct the Corporation to abandon the policy of allotting residential plots in the industrial focal points and the decision companytained in Memo dated 5.8.2004 is vitiated due to malafides because the same was designed to favour some individuals who wanted to utilize the land for companymercial purpose by building multiplex companyplexes. They further pleaded that the Corporations failure to issue allotment letters has resulted in discrimination and violation of their fundamental right to equality guaranteed under Article 14 of the Constitution. In the written statements filed on behalf of the State Government and the Corporation, it was pleaded that the decision companytained in Memo dated 5.8.2004 was in companysonance with policy of the State Government to promote industrialization of the State, which was expected to give impetus to the economy of different areas and generate employment. It was further pleaded that in its capacity as owner of the land, the State Government was entitled to take appropriate policy decision and the writ petitioners are number entitled to claim allotment of plots merely because they had applied pursuant to advertisement dated 20.10.2003 or their names were included in the provisional list of successful applicants. The Corporation relied upon Article 90 of its Memorandum of Association and pleaded that the State Government is empowered to issue directions on policy matters and its refusal to sanction change of land use in Phases VIII- A and VIII-B, Mohali falls within the ambit of Article 90. According to the Corporation, advertisement dated 23.3.2004 was issued for holding draw of lots because the Governments decision on the proposal for change of land use from industrial to residential was getting delayed and it was felt that the earnest money deposited by those who may be ultimately unsuccessful should number be retained for a long time. The parties filed further pleadings in the form of rejoinder and supplementary affidavits reiterating their respective stand. After adverting to the pleadings of the parties and arguments of the learned companynsel, the Division Bench of the High Court framed the following questions Whether the holding of a draw of lots for allotment of residential plots companyfers a right on the petitioners for the allotment of the plots on the principle of promissory estoppel and legitimate expectations? Whether in any case a companycluded companytract has companye into existence between the parties and if so, whether the petitioners can enforce the same by way of writ petition? What is the power of the State Government to issue directive to the PSIEC in terms of Article 90 of the Memorandum of Association of the PSIEC and if so, what is its binding effect? Besides, whether only the governor can issue such directive in his personal capacity and number the State Government? What is the scope of judicial review of the policy decision of the State Government whereby it has vide its impugned decision dated 5.8.2004 Annexure P-12 , decided number to be desirable to change the land use from industrial to residential and whether such policy decision is amenable to the writ jurisdiction of this Court? The Division Bench of the High Court first companysidered whether the writ petitioners were entitled to invoke the doctrines of legitimate expectation and promissory estoppel, referred to the judgments of this Court in Food Corporation of India v. M s. Kamdhenu Cattle Feed Industries 1993 1 SCC 71, Union of India v. Hindustan Development Corporation and others 1993 1 SCC 499, National Building Construction Corporation v. S. Raghunathan 1998 7 SCC 66, Pawan Alloys and Casting Private Limited v. U.P. State Electricity Board and others 1997 7 SCC 251, Kasinka Trading and another v. Union of India and another 1995 1 SCC 274 and held that even though the State Government and the Corporation, which is an instrumentality of the State, are expected to act fairly and reasonably in their dealing with the members of public, mere inviting of applications and draw of lots by the Corporation did number create a right in favour of the writ petitioners and they cannot invoke the doctrines of legitimate expectation and promissory estoppel for companypelling the Corporation to allot plots to them in Phases VIII-A and VIII-B, focal point, Mohali because in the format of application, it was clearly mentioned that acceptance of the application form and earnest money will number place the Corporation under an obligation to allot plot to the applicant. The Division Bench then referred to Article 90 of the Memorandum of Association of the Corporation, numbericed the judgments of this Court in Rakesh Ranjan Verma and others v. State of Bihar and others 1992 Supp. 2 SCC 343, Gujarat Housing Board Engineers Association and another v. State of Gujarat and others 1994 2 SCC 24, Chittoor Zilla Vyavasayadarula Sangham v. A.P. State Electricity Board and others 2001 1 SCC 396, Chairman and MD, BPL Limited v. S.P. Gururaja and others 2003 8 SCC 567 and two judgments of the High Court in CWP No.9626 of 2002 - Punjab State Industries and Export Corporation v. State of Punjab decided on 14.5.2004 and Punjab Financial Corporation Employees Welfare Association v. Punjab Financial Corporation 2004 ILR P H 113 and held the decision of the Government number to sanction change of land use from industrial to residential was in the nature of a direction which companyld be issued under Article 90 of the Memorandum of Association of the Corporation. The Division Bench finally companysidered the question whether the policy decision companytained in Memo dated 5.8.2004 is arbitrary, irrational and illogical or is vitiated due to malafides. After numbericing the broad parameters of judicial review of policy decisions, the Division Bench referred to minutes of the meeting of the Allotment Committee held on 5.2.2004, numberings dated 9.6.2004 and 20.6.2004 recorded by Principal Secretary, Industries and Commerce that the possibility of using the land in a manner which may generate maximum revenue may be explored rather than choosing the easy way out of changing land use to residential and held that the apprehension expressed by learned companynsel for the petitioners that the policy has been changed only to accommodate M s. A.B. Motions Pvt. Limited which was intending to set up multiplexes on the land in question is number entirely without basis. The Division Bench opined that the recommendations made by the Allotment Committee on 5.2.2004 have direct bearing on the final decision taken and companyveyed vide Memo dated 5.8.2004 and, therefore, the same is liable to be quashed. Shri P.S. Patwalia and Shri C.A. Sundaram, senior advocates and other learned companynsel appearing for the writ petitioners-appellants extensively referred to the pleadings of the parties and documents produced by them and argued that the High Court companymitted an error by declining to invoke the doctrine of legitimate expectation despite the fact that the policy decision companytained in Memo dated 26.12.2001 for earmarking 20-30 area for Industrial Housing was acted upon more than once by carving out residential plots in different focal points and allotting the same to the successful applicants. Learned companynsel relied upon the ratio of judgments in Food Corporation of India v. M s. Kamdhenu Cattle Feed Industries supra and Union of India v. Hindustan Development Corporation and others supra and argued that refusal of the State Government to approve utilization of some portions of land in focal point, Mohali for carving out residential pockets was wholly arbitrary and the Division Bench was number at all justified in declining relief to the writ petitioners only on the ground that at the time of submitting applications, they knew that the Corporation will number be obliged to allot plots to the successful applicants and that draw of lots was held with a clear indication that the same would be provisional. Learned senior companynsel emphasized that residential pockets were carved out by the Corporation in focal point, Mohali in companysonance with the policy companytained in Memo dated 26.12.2001 and when the Division Bench held that the decision companytained in Memo dated 5.8.2004 is vitiated due to malafides, a direction ought to have been given for allotment of residential plots to the successful applicants. Learned companynsel further argued that even though the draw held in furtherance of advertisement dated 23.3.2004 was provisional, after having treated the same as final and allotted residential plots to those who had applied for plots in focal points at Patiala and Ludhiana, the Corporation cannot refuse to fulfill its promise of allotting plots to those who had applied for the plots in focal point, Mohali. Learned companynsel appearing for the State and the Corporation argued that the writ petitioners are number entitled to invoke the doctrines of promissory estoppel and legitimate expectation because at the time of submitting applications, they were very much aware of the stipulation companytained in the format of application that the Corporation will number be obliged to allot plots to them and this was made more explicit by incorporating a numbere in advertisement dated 23.3.2004 that the draw of lots will be provisional and the same would number companyfer any right upon the successful applicants to claim allotment of plot or interest on the earnest money. Learned companynsel submitted that inclusion of the writ petitioners name in the provisional list of the successful applicants did number companyfer a right upon them to seek allotment of plots because the decision of Plan Approval Committee of the Corporation to approve the layouts of residential pockets in Phases VIII-A and VIII-B, Mohali was subject to sanction of change of land use and the Allotment Committee had categorically opined that numberallotment may be made by the Corporation for housing purposes. Learned companynsel then submitted that the State Governments decision to approve the Corporations proposal for earmarking 20-30 land for Industrial Housing did number result in change of the land use which companytinued to be industrial and the Corporation had numberright to suo motu change the land use from industrial to residential. Learned companynsel submitted that any change of land use is required to be approved by the companypetent authority companystituted under the 1995 Act and the State Government rightly declined to approve change of land use from industrial to residential because the same would have seriously undermined the object of industrialization of different parts of the State. Learned companynsel assailed the quashing of the decision companytained in Memo dated 5.8.2004 by arguing that the Division Bench companymitted serious error in declaring that the said decision is vitiated due to malafides merely because the Allotment Committee had companysidered the possibility of utilizing land in Phases VIII-A and VIII-B, Mohali for companymercial purposes including companystruction of multiplexes. Learned companynsel laid companysiderable emphasis on the fact that the State Government had number accepted the recommendations made by the Plan Approval Committee of the Corporation or the Allotment Committee and submitted that this, by itself, was indicative of the fact that ultimate decision of the Government was number influenced by any extraneous companysideration. Learned companynsel lastly argued that the Corporation cannot, on its own, allot land in any focal point for a purpose other than industrial and, in any case, land use cannot be changed from industrial to residential without companyplying with the relevant provisions of the 1995 Act. We have companysidered the respective arguments submissions and scrutinized the records. We shall first companysider whether the State Governments refusal to sanction change of land use from industrial to residential is vitiated due to malafides or arbitrary exercise of power. The Division Bench of the High Court answered this question in negative by relying upon numberings dated 9.6.2004 and 20.6.2004 recorded by Principal Secretary, Industries and Commerce, minutes of the meeting of Allotment Committee held on 5.2.2004 wherein a companyditional decision was taken to allot 46 acres of land at Mohali to M s. Quark and proposal for allotment of 40-50 acres of land to M s. A.B. Motions Pvt. Limited was companysidered. In the opinion of the Division Bench, refusal of the Government to sanction change of land use had close link nexus with the decision taken and or recommendations made by the Allotment Committee, which gave an impression that the State Government wanted to favour those who were intending to set up multiplex companyplexes. In our view, the aforesaid companyclusion of the Division Bench of the High Court is number based on companyrect appreciation of the factual matrix and the background in which the Government declined to sanction change of land use from industrial to residential. It is number in dispute that the State Government acquired land and handed over the same to the Corporation which, as mentioned above, was created for developing infrastructure necessary for industrialization of different areas of the State. The land placed at the disposal of the Corporation was meant to be used for industrial purposes. After carrying out necessary development, the Corporation allotted land to those interested in setting up industrial units. In December 2001, the State Government approved the proposal of the Corporation for earmarking 20-30 of the land for Industrial Housing in the existing and companying up focal points and growth centres developed by the Corporation. The object underlying this policy decision was to provide some land for residential purpose to those who had set up or were intending to set up industrial units and the workers already employed or to be employed in such units. It was felt that the availability of residential facility within the focal point or growth centre will help in accelerating industrialization of the area. This is the reason why the phrase Industrial Housing was used in companytrast to the term residential in Memo dated 26.10.2001. This is also the reason why Plan Approval Committee of the Corporation had, while approving layouts of residential pockets in Phases VIII-A and VIII-B had made it subject to approval of change of land use under the 1995 Act. In its meeting held on 5.2.2004, the Allotment Committee did recommend amendments in Industrial Policy 2003 to facilitate development of industrial parks estates agro-parks I.T. parks and multiplex companyplexes, but unequivocally opposed the idea of allotment of land for housing purposes. The issue was then companysidered by the State Government and an unequivocal decision was taken number to allow change of land use from industrial to residential. The record produced before the High Court and the documents produced before this Court do number show that the State Government had sanctioned change of land use in Phases VIII-A and VIII-B, Mohali from industrial to companymercial and allowed setting up of multiplex companyplexes within the focal points or growth centres. The writ petitioners have also number placed any material before this Court to show that the State Government had approved companyditional allotment of land to M s. Quark by the Allotment Committee or accepted the tentative recommendation made by it for allotment of land to M s. A.B. Motion Pvt. Ltd Rather, the events which followed the State Governments refusal to sanction change of land use from industrial to residential demonstrate that the said decision was in companysonance with the policy of industrialization which was unquestionably in public interest. In August 2004, the Corporation issued an advertisement which was published in The Tribune dated 13.8.2004, inviting applications for 65 industrial plots. In its meting held on 13.12.2005, the Allotment Committee decided to allot 39.3 acres land in Phase VIII-A, focal point, Mohali to M s. Wipro Limited for setting up its unit of Software and I.T. Enabled Services because the same was expected to attract investment of Rs.1336 crores and generate employment opportunities for more than 9000 people. The Committee also decided to allot 25 acres land to M s. Tata Consultancy Services for setting up their Software Development Centre by making an investment of Rs.25 crores with an employment potential of 575 persons. The High Court appears to have been unduly influenced by the fact that the Allotment Committee had companysidered a proposal for allotment of land to M s. A.B. Motions Pvt. Ltd However, in the absence of any tangible or substantive evidence to show that the State Government had taken a companyscious decision to allot the surplus land in Phases VIII-A and VIII-B, Mohali for companystruction of multiplex companyplexes or for any purpose other than industrial, the Division Bench of the High Court was number at all justified in recording a finding that the decision companytained in Memo dated 5.8.2004 is vitiated due to malafides. It is trite to say that while exercising power of judicial review, the superior companyrts should number readily accept the charge of malus animus laid against the State and its functionaries. The burden to prove the charge of malafides is always on the person who moves the Court for invalidation of the action of the State and or its agencies and instrumentalities on the ground that the same is vitiated due to malafides and the companyrts should resist the temptation of drawing dubious inferences of malafides or bad faith on the basis of vague and bald allegations or inchoate pleadings. In such cases, wisdom would demand that the Court should insist upon furnishing of some tangible evidence by the petitioner in support of his her allegations. It must always be remembered that in a democratic polity like ours, the functions of the Government are carried out by different individuals at different levels. The issues and policy matters which are required to be decided by the Government are dealt with by several functionaries some of whom may record numberings on the files favouring a particular person or group of persons. Someone may suggest a particular line of action, which may number be companyducive to public interest and others may suggest adoption of a different mode in larger public interest. However, the final decision is required to be taken by the designated authority keeping in view the larger public interest. The numberings recorded in the files cannot be made basis for recording a finding that the ultimate decision taken by the Government is tainted by malafides or is influenced by extraneous companysiderations. The Court is duty bound to carefully take numbere of the same. In this companytext, reference can usefully be made to the decision of the Constitution Bench in E.P. Royappa State of Tamil Nadu 1974 4 SCC 3. In that case, the petitioner, who was, at one time holding the post of Chief Secretary of the State, questioned the decision of the Government to post him as an Officer-on-Special Duty. One of the grounds on which he attacked the decision of the Government was that the Chief Minister of the State, Shri K. Karunanidhi was illdisposed against him. While dealing with the question whether the transfer and posting of the petitioner was vitiated due to malafides, Bhagwati, J. speaking for self and Y.V. Chandrachud and V.R. Krishna Iyer, JJ., observed Now, when we examine this companytention we must bear in mind two important companysiderations. In the first place, we must make it clear, despite a very strenuous argument to the companytrary, that we are number called upon to investigate into acts of maladministration by the political Government headed by the second respondent. It is number within our province to embark on a far-flung inquiry into acts of companymission and omission charged against the second respondent in the administration of the affairs of Tamil Nadu. That is number the scope of the inquiry before us and we must decline to enter upon any such inquiry. It is one thing to say that the second respondent was guilty of misrule and another to say that he had malus animus against the petitioner which was the operative cause of the displacement of the petitioner from the post of Chief Secretary. We are companycerned only with the latter limited issue, number with the former popular issue. We cannot permit the petitioner to side track the issue and escape the burden of establishing hostility and malus animus on the part of the second respondent by diverting our attention to incidents of suspicious exercise of executive power. That would be numberhing short of drawing a red herring across the trail. The only question before us is whether the action taken by the respondents includes any companyponent of mala fides whether hostility and malus animus against the petitioner were the operational cause of the transfer of the petitioner from the post of Chief Secretary. Secondly, we must number also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique companyduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the companyfidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this companytext it may be numbered that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are number known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy companyduct against ministers and other high authorities, number because of any special status which they are supposed to enjoy, number because they are highly placed in social life or administrative set up--these companysiderations are wholly irrelevant in judicial approach--but because otherwise, functioning effectively would become difficult in a democracy. Emphasis supplied The issue deserves to be companysidered from another angle. Section 79 of the 1995 Act, the applicability of which to the case in hand has number been questioned by the writ petitioners-appellants, mandates that after companying into operation of any Master Plan in any area, numberperson shall use or permit to be used any land or carry out development in that area otherwise than in companyformity with such Master Plan. Proviso to this section empowers the companypetent authority to allow companytinuance of any use of any land for a maximum period of 10 years for the purpose for which it was being used on the date of enforcement of the Master Plan. Section 81 of that Act lays down the procedure for change of land use. In terms of sub-section 2 of Section 81, even a department of the State Government or the Central Government or a local authority is required to numberify to the companypetent authority of its intention to carry out any development in respect of any land or change of use. The companypetent authority can object to such development or change of land use. In that event, the matter is required to be companysidered and decided by the State Government. In view of these provisions, the State Government was well within its power to take appropriate decision on the proposal made by the Corporation to change the land use from industrial to residential and we do number find any fault with its decision number to sanction such change. We shall number deal with the question whether the writ petitioners are entitled to allotment of residential plots in Phases VIII-A and VIII-B, Mohali. As numbered herein above, the writ petitioners had invoked the doctrines of promissory estoppel and legitimate expectation and urged that even though the application form companytained a stipulation that acceptance of application and earnest money will number put the Corporation under an obligation to allot a plot to the applicant, they were reasonably sure of getting residential plots because in 2002 the Corporation had undertaken a similar exercise and allotted 138 freehold plots in focal point, Mohali by inviting applications and holding draw of lots. We are in companyplete agreement with the Division Bench of the High Court that numberpromise much less an enforceable promise was made by the Corporation to the prospective applicants that by making an application pursuant to the advertisement and on being declared successful in the draw of lots, they will get residential plots. Rather, being companyscious of the fact that in terms of the approval accorded by the State Government vide Memo dated 26.12.2001, it companyld utilize 20-30 area of the focal point only for Industrial Housing, the Corporation had made it clear to the prospective applicants that there is numbercertainty of their getting residential plots in Phases VIII-A and VIII-B, Mohali. The decision taken by Plan Approval Committee of the Corporation to approve the layouts of residential pockets in Phases VIII-A and VIII-B, Mohali was number final. The same was subject to sanction of change of land use in accordance with the provisions of the 1995 Act. The Allotment Committee made a clear recommendation against utilization of surplus land for housing purposes. The writ petitioners were very much aware of the tentative character of the initial advertisement as also the advertisement issued for holding draw of lots. By incorporating numbere in the second advertisement, which has been reproduced herein above, the Corporation had made it known to every one that the entire exercise was provisional and those who did number want to participate in that exercise were at liberty to seek refund of the earnest money. To put it differently, the Corporation did number make any representation to the prospective applicants which induced them to part with their money or adversely change their position. Therefore, the High Court rightly refused to invoke the doctrine of promissory estoppel in favour of the writ petitioners. In Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., 1979 2 SCC 409, a two-Judge Bench of this Court discussed the doctrine of promissory estoppel in great detail and laid down the various propositions including the following The true principle of promissory estoppel, therefore, seems to be that where one party has by his words or companyduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would number be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or number. extracts from paragraph 8 The law may, therefore, number be taken to be settled as a result of this decision, that where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee, numberwithstanding that there is numberconsideration for the promise and the promise is number recorded in the form of a formal companytract as required by Article 299 of the Constitution. extracts from paragraph 15 A companytrary view was expressed by another two-Judge Bench in Jit Ram v. State of Haryana 1981 1 SCC 11, but the law laid down in Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. supra was reiterated in Union of India v. Godfrey Philips India Ltd. 1985 4 SCC 369, which was decided by a three-Judge Bench. Bhagwati, C.J. with whom the other two members of the Bench agreed on the exposition of law relating to the doctrine of promissory estoppel, observed Of companyrse we must make it clear, and that is also laid down in Motilal Sugar Mills case that there can be numberpromissory estoppel against the Legislature in the exercise of its legislative functions number can the Government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition. It is equally true that promissory estoppel cannot be used to companypel the Government or a public authority to carry out a representation or promise which is companytrary to law or which was outside the authority or, power of the officer of the Government or of the public authority to make. We may also point out that the doctrine of promissory estoppel being an equitable doctrine, it must yield when the equity so requires if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the Court would number raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would number require that the Government or public authority should be held bound by the promise or representation made by it. This aspect has been dealt with fully in Motilal Sugar Mills case and we find ourselves wholly in agreement with what has been said in that decision on this point. In Hira Tikoo v. Union Territory, Chandigarh 2004 6 SCC 765, this Court companysidered whether the High Court was justified in refusing to invoke the doctrine of promissory estoppel for issuing a mandamus to the respondent-Chandigarh Administration to allot industrial plots to the petitioners, who had applied in response to an advertisement issued in 1981. The Court numbered that some of the successful applicants were given possession of the plots but majority of them were number given allotment letters on the ground that the land formed part of the reserved forest and partially approved the decision of the High Court by making the following observations Surely, the doctrine of estoppel cannot be applied against public authorities when their mistaken advice or representation is found to be in breach of a statute and therefore, against general public interest. The question, however, is whether the parties or individuals, who had suffered because of the mistake and negligence on the part of the statutory public authorities, would have any remedy of redressal for the loss they have suffered. The rules of fairness by which every public authority is bound, require them to companypensate loss occasioned to private parties or citizens who were misled in acting on such mistaken or negligent advice of the public authority. There are numberallegations and material in these cases to companye to a companyclusion that the action of the authorities was mala fide. It may be held to be careless or negligent. In some of the English cases, the view taken is that the public authorities cannot be absolved of their liability to provide adequate monetary companypensation to the parties who are adversely affected by their erroneous decisions and actions. But in these cases, any directions to the public authorities to pay monetary companypensation or damages would also indirectly harm general public interest. The public authorities are entrusted with public fund raised from public money. The funds are in trust with them for utilisation in public interest and strictly for the purposes of the statute under which they are created with specific statutory duties imposed on them. In such a situation when a party or citizen has relied, to his detriment, on an erroneous representation made by public authorities and suffered loss and where the doctrine of estoppel will number be invoked to his aid, directing administrative redressal would be a more appropriate remedy than payment of monetary companypensation for the loss caused by number-delivery of the possession of the plots and companysequent delay caused in setting up industries by the allottees. The plea of the writ petitioners that they had legitimate expectation of being allotted residential plots in Phases VIII-A and VIII-B in Mohali because in 2002 138 plots were allotted to the successful applicants sans merit. At the companyt of repetition, it is necessary to mention that the writ petitioners had submitted applications knowing fully well that the same would number obligate the Corporation to allot plots to them. It is rather intriguing that even though approval of the layouts of residential pockets in Phases VIII-A and VIII-B, Mohali by Plan Approval Committee of the Corporation was subject to approval being accorded by the companypetent authority under the 1995 Act for change of land use from industrial to residential, and the Allotment Committee in which Managing Director of the Corporation had taken part, made a negative recommendation in the matter of allotment of land for housing purposes, the same officer authorized issue of advertisement dated 23.3.2004 for holding provisional draw of lots. In our view, this exercise was wholly unnecessary and uncalled for. If the companycerned officer had number acted in haste and waited for the decision of the companypetent authority on the issue of change of land use, the parties may number have been forced to fight this unwarranted litigation. Be that as it may, the writ petitioners cannot, by any stretch of imagination, claim that they had a legitimate expectation in the matter of allotment of plots despite the fact that change of land use was yet to be sanctioned. The doctrine of legitimate expectation has been described in Halsburys Laws of England 4th Edn. in the following words A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has numberlegal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from companysistent past practice. In Food Corporation of India v. Kamdhenu Cattle Feed Industries supra , this Court companysidered whether by submitting tender in response to numberice issued by the Food Corporation of India for sale of stocks of damaged food grains, the respondent had acquired a right to have its tender accepted and the appellant was number entitled to reject the same. While approving the view expressed by the High Court that rejection of the highest tender of the writ petitioner-respondent was legally companyrect, this Court observed The mere reasonable or legitimate expectation of a citizen, in such a situation, may number by itself be a distinct enforceable right, but failure to companysider and give due weight to it may render the decision arbitrary, and this is how the requirement of due companysideration of a legitimate expectation forms part of the principle of number-arbitrariness, a necessary companycomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due companysideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the companytext is a question of fact in each case. Whenever the question arises, it is to be determined number according to the claimants perception but in larger public interest wherein other more important companysiderations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of number-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent. In Union of India v. Hindustan Development Corporation supra , the doctrine of legitimate expectation was explained in the following words . For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope number can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however companyfidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does number attract legal companysequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does number by itself fructify into a right and therefore it does number amount to a right in the companyventional sense. The same principle has been stated and reiterated in Punjab Communications Ltd. v. Union of India 1999 4 SCC 727, Dr. Chanchal Goyal v. State of Rajasthan 2003 3 SCC 485, J.P. Bansal v. State of Rajasthan 2003 5 SCC 134, State of Karnataka v. Uma Devi 2006 4 SCC 1, Kuldeep Singh v. Government of NCT of Delhi 2006 5 SCC 702, Ram Pravesh Singh v. State of Bihar 2006 8 SCC 381 and Sethi Auto Service Station v. DDA 2009 1 SCC 180. In the last mentioned judgment, the Court referred to various precedents and observed the golden thread running through all these decisions is that a case for applicability of the doctrine of legitimate expectation, number accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative body by reason of a representation or by past practice or companyduct aroused an expectation which it would be within its powers to fulfil unless some overriding public interest companyes in the way. However, a person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court companyld interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and number taken in public interest.

P. Mathur,J. This petition has been filed by Jayendra Saraswathy Swamigal, Sankaracharya of Kanchi Kamakoti Peetam under Section 406 Cr.P.C. seeking transfer of Sessions Case No. 197 of 2005 pending before the Principal Sessions Court, Chenglepet, to any other State, out side the State of Tamil Nadu. The respondents arrayed in the Transfer Petition are 1 State of Tamil Nadu, 2 Director General of Police, Tamil Nadu, 3 Shri Prem Kumar, Superintendent of Police, Head of the Special Investigation Team SIT , 4 Shri S.P. Sakthivel, Chief Investigating Officer, SIT, besides respondent Nos. 5 to 28, who are companyaccused in the case. Except for respondent No. 5, P. Subramaniam Ravi Subramaniam, who has been granted pardon and has turned approver, the remaining companyaccused, namely, respondent Nos. 6 to 28 are supporting the prayer for transfer of the case and some of them have filed affidavits in that regard. An FIR was lodged at 7.00 p.m. on 3.9.2004 at Police Station B-2, Vishnu Kanchi by Shri N.S. Ganesan. It was stated therein that at about 5.45 p.m. on 3.9.2004 while he was in the office of Devarajaswamy Devasthanam, two persons armed with aruval came there and caused multiple injuries to Sankararaman, In-charge Administrative Manager, who was sitting on a chair. Four persons were waiting outside and the assailants escaped on their motorcycles. After the case was registered, necessary investigation followed and several persons were arrested. According to the case of the prosecution, the petitioner had entered into a companyspiracy with some other companyaccused for getting Sankararaman murdered. The motive for the companymission of the crime is said to be various companyplaints alleged to have been made by the deceased levelling serious allegations, both against the personal character of the petitioner and also his style of functioning as Shankaracharya of the Mutt. The petitioner was arrested on 11.11.2004 from Mehboobnagar in Andhra Pradesh. He filed a bail petition before the High Court of Madras, which was rejected on 20.11.2004 and the second petition was rejected on 8.12.2004. Thereafter, the petitioner filed Special Leave Petition Crl. No. 6192 of 2004, which was allowed by this Court on 10.1.2005 and he was granted bail. The very next day, i.e., on 11.1.2005 Vijayendra Saraswati Swamigal respondent No. 6 , who is the junior Sankaracharya, was arrested. According to the custom and tradition of the Mutt, he would succeed the petitioner. After companypletion of investigation the police submitted a chargesheet against all the 24 accused in the Court of Judicial Magistrate, Kanchipuram on 21.1.2005, which was registered as Preliminary Registered Case PRC No. 2 of 2005 and companymittal proceedings took place and finally the case was companymitted to the Court of Sessions where it has been registered as S.C. No. 197 of 2005. The transfer of the case has been sought on several grounds and basically speaking they are as under - The State machinery in Tamil Nadu and specially the Special Investigation Team headed by Shri Prem Kumar, Superintendent of Police, has shown great zeal and has made extraordinary efforts, much beyond what is required under the law to anyhow secure the companyviction of the accused and to achieve that object has procured and fabricated false evidence. ii The Chief Minister of the State of Tamil Nadu, who is also holding the Home portfolio, has made statements on the floor of the House that the petitioner and the other companyaccused are actually involved in the murder of Sankararaman and has also given some press statements and has thereby pre-empted a fair decision in the criminal trial, as statements of persons holding such high offices and specially those made on the floor of the House, are generally believed to be companyrect and thus the accused stand companydemned even before the companymencement of the trial. iii A solatium of Rs.5.00 lakhs was paid by the Chief Minister of Tamil Nadu to Padma Sankararaman widow of deceased Sankararaman on 24.11.2004, long before companypletion of investigation and submission of charge-sheet, and, this was given wide publicity in the electronic media and newspapers etc., which shows that the State Government is taking special interest in the case and is too keen to secure companyviction of the accused in order to justify the stand taken by it. iv Concocted and false cases have been registered against 16 company accused. Even before their bail applications in the present case companyld be heard, detention orders were passed against them under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 for short Goondas Act between 16.1.2005 and 6.2.2005 so that even after grant of bail by the companyrt they may remain in custody. The advocates appearing for the petitioner and other companyaccused have been put under great threat on account of lodging of false and fabricated criminal cases against them and a situation has been created wherein they may number be in a position to defend the accused properly. This will also have a general affect as other lawyers would feel hesitant to companyduct the case on behalf of the accused. vi The Mutt and other associated and companynected trusts have 183 accounts in banks, which were all frozen by the SIT resulting in paralyzing the religious and other activities of the Mutt and other companynected bodies. vii Criminal cases have been lodged against some leading journalists of the companyntry and other prominent personalities, who had written articles criticizing the arrest of the petitioner, which number only violates right of free speech but also creates an atmosphere of threat against anyone daring to speak or write in favour of the accused and thus the accused seriously apprehend that they would number get a fair trial in the State of Tamil Nadu. viii Shri Prem Kumar, who is heading the Special Investigating Team, is number a fair and upright officer and superior companyrts have passed strictures against him several times in the past for his uncalled for actions in going out of the way to implicate innocent persons in criminal cases. In reply to the Transfer Petition three sets of companynter affidavits have been filed, one on behalf of the State of Tamil Nadu and its Director General of Police, second by Shri Prem Kumar, Head of SIT, who has been impleaded as respondent No. 3 and the third by P. Subramaniam Ravi Subramaniam, companyaccused, who has been granted pardon and has turned approver in the case. A detailed rejoinder affidavit has been filed by the petitioner and some other affidavits have also been filed to which we will make reference at the appropriate stage. We have heard Shri F.S. Nariman, learned senior companynsel for the petitioner, Shri Ashok Desai, learned senior companynsel, who has appeared for respondent No. 6 Vijayendra Saraswati Swamigal junior Shankaracharya and Shri G.L. Sanghi, learned senior companynsel for respondent No. 8. We have also heard Dr. Rajeev Dhavan, learned senior companynsel, who has appeared for respondent Nos. 1 and 2, Shri Shanti Bhushan, learned senior companynsel, who has appeared for respondent No. 5 Ravi Subramaniam approver and Ms. Indira Jaisingh, who has appeared for Padma Sankararaman widow of the deceased , though she had number been arrayed as party to the Transfer Petition. The companytention raised on the basis of the statements made by the Chief Minister on the floor of the House does number impress us. The Chief Minister who is also holding the Home Portfolio made the statement on 17.11.2004 and also gave a Press statement on 1.12.2004. She merely stated that the investigation has revealed the involvement of the petitioner Jayendra Saraswathy in the Shankararaman murder case. The investigating agency has companye out with a case that the petitioner had entered into a companyspiracy with some other companyaccused in getting Shankararaman murdered. The petitioner had already been arrested earlier on 11.11.2004. The arrest of the petitioner had generated lot of publicity and in such circumstances numberexception can be taken to the statement made by the Chief Minister on the floor of the House. We are, therefore, of the opinion that the petitioner or other companyaccused cannot raise any grievance on the basis of the aforesaid statement of the Chief Minister and it cannot be a ground for transferring the case to another State. We will number take up the issue regarding availability of companynsel to the accused and companyduct of their cases by lawyers in a free atmosphere without any threat or fear, so that their defence may number go by default. The petitioner has engaged Shri K.S. Dinakaran, who is 67 years of age and is a very senior companynsel having put in 43 years of practice. Besides him Shri A. Shanmugam, who has a standing of 27 years at the Bar and some other lawyers are also appearing for him. Shri Shanmugam has filed an affidavit in this Court on 27.4.2005, which was sworn on 18.4.2005. It is averred therein that the companyy of the charge-sheet, which is a long document and runs into 1873 pages, was given to the accused on 31.3.2005 and on the same day the prosecution sought to examine Ravi Subramaniam approver before the Court of Judicial Magistrate, who had taken companynizance of the offence and was holding companymittal proceedings. An application was then moved on behalf of the petitioner praying for permission to cross-examine Ravi Subramaniam in case his statement was recorded and for this purpose some time was sought in order to go through all the documents companytained in the charge-sheet. The learned Magistrate fixed 4.4.2005 for disposal of the application moved on behalf of the accused and after one more adjournment it was taken up on 7.4.2005 when the learned Magistrate held that the accused were entitled to cross examine Ravi Subramaniam. However, the prayer made on behalf of the accused to furnish companyy of the video and audio cassettes, which are mentioned in the charge-sheet, was rejected. The examination-in-chief of Ravi Subramaniam companymenced on 7.4.2005 which companyld number be companypleted on that day and the case was adjourned to 8.4.2005 and thereafter to 11.4.2005. On the said day, while his cross-examination was going on, on the instructions of Shri Prem Kumar, Superintendent of Police and Head of SIT one police inspector by the name of Srinivasan, who is part of the SIT and is said to have been instrumental in effecting the arrest of the approver Ravi Subramaniam, whispered something to him. Immediately thereafter, Ravi Subramaniam of his own volunteered and made a statement that Shri K.S. Dinakaran, senior companynsel who is appearing for the petitioner, had met his wife Smt. Chitra at his house and had threatened her that he Ravi Subramaniam should number give any statement against the petitioner. This companyduct of Shri Prem Kumar and inspector Srinivasan of prompting the witness to make a statement against the senior companynsel Shri Dinakaran was strongly objected to by the defence lawyers and they expressed their anguish in the manner in which the police was going out of its way in making insinuations and securing statement of witnesses against the defence lawyers. On the objection being taken by the defence lawyers the learned Judicial Magistrate, who had witnessed the entire incident, asked the inspector Srinivasan to leave the companyrt. He also declined to record the aforesaid statement made by Ravi Subramaniam wherein he had said that Shri S. Dinakaran had gone to his house and had threatened his wife. Shri K.S. Dinakaran, in his letter dated 23.9.2005 sent to Shri Krishna Kumar, Advocate on Record for the petitioner in the Supreme Court companyy of which has been placed on record , has mentioned that the said incident did take place in the companyrt of learned Judicial Magistrate on 11.4.2005 and the affidavit filed by Shri A. Shanmugam, Advocate, wherein the aforesaid incident had been narrated, is companyrect. The allegation made against him by Ravi Subramaniam at the instance of Shri Prem Kumar and on the whispering made to him by inspector Srinivasan are false, frivolous and vexatious, apart from being motivated and he had never met the wife of Ravi Subramaniam at any time. He has also written that this is an attempt to demoralize and scare him by scandalizing his reputation and casting slur on his character and companyduct. In the companynter affidavit filed on behalf of the State it is stated in paragraph 15 vi that Ravi Subramaniam had himself made a voluntary statement to the effect that Shri K.S. Dinakaran had met his wife at his house and had threatened her. However, the allegation that the aforesaid statement was made at the prompting of Shri Prem Kumar and thereafter whispering by inspecter Srinivasan to Ravi Subramaniam is denied. It is also denied that the learned Magistrate asked Srinivasan to leave the companyrt. Shri Prem Kumar has given exactly similar version of the incident in paragraph 9 of his companynter affidavit, namely, that Ravi Subramaniam made a voluntary statement that Shri K.S. Dinakaran had met his wife at his house and had threatened her and further that the said statement was number made either on his prompting or on the whispering of Srinivasan. It is important to numbere that in the statement of Ravi Subramaniam, as recorded in the companyrt of Judicial Magistrate on 11.4.2005, the sentence that Shri K.S. Dinakaran had met his wife at his house and had threatened her does number find place. This, therefore, establishes the companyrectness of the version of the incident given by Shri A. Shanmugam in his affidavit and also by Shri K.S. Dinakaran, advocate in his letter, namely, that the aforesaid statement was given by Ravi Subramaniam at the prompting of Shri Prem Kumar and then whispering done by inspector Srinivasan to the witness and as a result of the objection raised by the defence lawyers the learned Magistrate declined to record the said part of the statement of the witness. This companyduct of the prosecution machinery in prompting the witness to make a totally false allegation against a very senior companynsel appearing for the defence is hound to demoralize and scare him and he cannot perform his duty of companyducting the case in a fearless and proper manner. No lawyer would like to get associated with a case where a slur is made on his character and companyduct and the reputation, which he has earned by maintaining high professional standards for a long period, is sought to be damaged. Any dignified lawyer would number agree to companyduct a case on behalf of the accused in such an atmosphere and even if he does so, he would number be able to discharge his duties properly on account of threat to his personal reputation. This is bound to result in miscarriage of justice for the accused. There is some other material to show threat to lawyers. One Mrs. Revathy Vasudevan is an advocate practicing at Kanchipuram and she is junior of Shri A. Shanmugam, Advocate. Another lady lawyer Mrs. Nadhira Banu is also practicing at Kanchipuram and is junior of Shri Y. Thiagarajan. Shri A. Shanmugam and Shri Y. Thiagarajan are appearing as companynsel for the accused. Mrs. Revathy Vasudevan has been appointed by the Chairman, Legal Aid Service Authority as companynsel to assist prisoners, who may be on remand and want to avail the services of a legal aid companynsel. Mrs. Nadhira Banu has been appointed as a companynsel for visiting the sub-jail, Kanchipuram and providing legal assistance from Legal Services Authority to under trial prisoners, who want to seek legal aid. On 19.2.2005 Smt. Chitra wife of Ravi Subramaniam approver lodged an FIR at B-1 Sivakanchi Police Station, alleging that she had visited the Kanchipuram sub-jail on the said date as she had companye to know through newspaper reports that her husband had been arrested in companynection with the Sankararaman murder case by the police and has turned as approver and is lodged at Kanchipuram sub-jail. When she met her husband, he told her that on 1.2.2005 and 9.2.2005 two lady advocates, namely, Revathy and Nathira Banu met him in the jail and asked him number to give any statement or evidence against the Shankaracharya and for this purpose he would be given huge sum of money and if he did number abide by their advice he would be killed when he would companye out of the jail. He also told her that this threat was given to him by the lady lawyers as per the directions of Jayendra Saraswathi Swamigal petitioner herein and two advocates, viz., Shri Shanmugam and Shri Thiyagarajan. On the basis of the aforesaid report a case was registered as Crime No. 127 of 2005 under Section 201 read with Section 109, 213E, 506 2 IPC at Sivakanchi Police Station. It is numbereworthy to mention here that in his companyfessional statement, which was recorded under Section 164 Cr.P.C. on 31.12.2004 before the Chief Judicial Magistrate, Chenglepet, Ravi Subramaniam had stated that his relations with his wife were strained for over ten years. Shri A. Shanmugam, advocate, apprehending that the FIR lodged by Smt. Chitra was manipulated by the State machinery and he may be falsely implicated in the aforesaid case and may be arrested, then filed Writ Petition No. 6407 of 2005 A. Shanmugham vs. State of Tamil Nadu and others in the High Court of Madras praying for a writ of mandamus for transferring the investigation of case Crime No. 127 of 2005 from the local police to CBI. The writ petition was disposed of on 15.3.2005 by the following order - The learned Public Prosecutor states that numberproceedings are companytemplated against the writ petitioner Mr. A. Shanmugham. Therefore, numberhing further survives in the writ petition. The writ petition is disposed of accordingly. Consequently, the companynected W.P.M.P. No. 6990 of 2005 is closed. The two lady lawyers, namely, Revathy Vasudevan and Nadhira Banu also filed similar writ petitions being Writ Petition Nos. 19146 of 2005 and 19147 of 2005 praying that a writ of mandamus be issued directing the transfer of investigation of case Crime No. 127 of 2005 registered against them from the local police to the CBI. The local police, however, acted with companysiderable speed and submitted a charge-sheet on 17.6.2005 against both the lady lawyers under Sections 451, 214 IPC read with Sections 109, 201, 506 2 IPC and a case was registered on the file of Judicial Magistrate No. I, Kanchipuram being PRC No. 3 of 2005. The writ petitions were disposed of on 24.6.2005 and paragraphs 1, 5, 6 and 7 of the order passed by the High Court are being reproduced below - Petitioners herein are practicing Women Lawyers at Kancheepuram and both of them are in the panel of Taluk Legal Services Committee, Kancheepuram. Misconstruing their visit to the sub-jail on 1.2.2005 and 9.2.2005 as though they had attempted to induce one Ravisubramaniam, an accused in the sensitive criminal case, namely, Sankararaman murder case, in crime No. 914 of 2004 on the file of Vishnu Kanchi Police Station and number pending as S.C. No. 197 of 2005 on the file of District and Sessions Court, Chingleput, to resile from his earlier statement made against the companyaccused in the said case, a case was registered against both the petitioners in crime No. 127 of 2005 for the offences punishable under Sections 201 read with 109, 213, 451 and 506 2 IPC, in which final report had already been filed and was taken on file as PRC No. 3 of 2005 on the file of Judicial Magistrate No. I, Kancheepuram. Today Mr. K. Doraisami, learned Public Prosecutor after getting necessary instructions from the Government, perusing the relevant records, applying his mind on the issue and taking into companysideration the facts and circumstances of the case, submits that necessary steps will be taken to withdraw the case against the petitioners in accordance with law or alternatively the petitioners may be permitted to take appropriate steps in PRC 3 of 2005 on the file of Judicial Magistrate No. I, Kancheepuram, to discharge themselves, to which learned Public Prosecutor will number have any objection. Of companyrse, the learned Public Prosecutor also expects the petitioners that they will number give any room for such allegations in future. Both the petitioners present before the Court today stated that they did number involve in any such act as companyplained and charged, number they will involve in such act in future. The above statement of the petitioners is put on record. In view of the fair stand of Mr. K. Doraisamy, learned Public Prosecutor, I am of the companysidered opinion that numberhing survives in the above writ petitions and therefore numberfurther orders are required in the matter, except to permit the learned Public Prosecutor to take steps for withdrawal of the case against the petitioners as companytemplated under Section 321 Crl.P.C., or alternatively, to permit the petitioners to get themselves discharged from PRC No. 3 of 2005 on the file of Judicial Magistrate No. I, Kancheepuram, in accordance with law, in appropriate proceedings. Shri F.S. Nariman, learned senior companynsel for the petitioner has strongly urged that in case the version given in the FIR lodged by Smt. Chitra, wife of Ravi Subramaniam, was companyrect there was numberoccasion for the public prosecutor to make a statement that necessary steps would be taken to withdraw the case and the prosecution should have proceeded with the case to its logical end which would have revealed the truth. He has further submitted that in spite of the statement of the public prosecutor on the basis of which the writ petition was disposed of on 24.6.2005, till number numberapplication has been moved under Section 321 Cr.P.C. seeking withdrawal of the case. Dr. Rajeev Dhavan, learned senior companynsel for the State has, however, submitted that the presence of the two lady lawyers in the jail on the dates mentioned in the FIR lodged by Smt. Chitra is number disputed, which prima facie indicates about the companyrectness of the FIR lodged by her. Dr. Dhavan has also placed some papers for the perusal of the Court which show that the District Magistrate has written to the Government for withdrawing the case. However, the fact remains that so far numberapplication under Section 321 Cr.P.C. has been moved to withdraw the criminal case wherein a charge-sheet has been submitted against the two lady lawyers. The fact that Shri A. Shanmugam, advocate for the petitioner, had to move a writ petition in the High Court for transfer of the investigation of the case lodged by Smt. Chitra and the two lady lawyers, who are juniors to the advocates appearing for the accused, had also to file similar writ petitions gives an idea of the atmosphere in which the lawyers appearing for the accused are functioning and discharging their professional duties. The mere statement of the public prosecutor that steps will be taken to withdraw the criminal case, in absence of any companycrete steps having been taken in that regard, namely, filing of an application under Section 321 Cr.P.C., can hardly give any solace to the companycerned lawyers. There cannot be even a slightest doubt that a lawyer appearing for an accused who is facing a murder charge, cannot perform his professional duty as is required of him when he himself is faced with criminal prosecution, for a serious charge like 201 and 214 IPC, which are punishable with imprisonment for a term which may extend to seven years and also fine. Though it is number necessary for the decision of the present Transfer Petition yet we cannot restrain ourselves from companymenting that the necessary ingredient of an offence under Section 201 IPC is actually causing any evidence of the companymission of an offence to disappear with the intention of screening the offender from legal punishment. Therefore, the oral threat or inducement allegedly given by the two lady lawyers to Ravi Subramaniam number to give any statement against the petitioner cannot amount to companymission of an offence under the said section. Yet the local police submitted a charge-sheet against the aforesaid lady lawyers for their prosecution under Section 201 IPC. Institution of the criminal case against the junior lawyers, whose seniors are appearing as companynsel for the accused, undoubtedly shows that in the prevailing companyditions the accused will be seriously handicapped in defending themselves on account of threat and intimidation to their companynsel. Another strong circumstance, pointed out by the learned companynsel for the petitioner to show that the State machinery is going out of its way in preventing the petitioner and some other accused companynected with the Mutt in defending themselves and to secure their companyviction by any means, is the action of the SIT in issuing a direction for freezing the accounts of the Mutt in the banks. Shri Prem Kumar and Shri S.P. Sakthivel, Head and Chief Investigating Officer of SIT respondent Nos. 3 and 4 wrote to several banks to stop all further transactions, if any, through your bank in future whereby 183 bank accounts belonging to the Mutt and even independent trusts, which had been functioning under the companytrol and or direction of the Mutt, became unfunctional. The result whereof was that the entire working of the Kanchi Mutt came to a standstill. Faced with such a draconian order of the State authorities His Holiness Sri Kanchi Kamakoti Peetadhipathi Jagadguru Sri Sankaracharya Swamigal Srimatam Samasthanam, represented by its Manager, filed writ petition No. 1050 of 2005 impleading 1 State of Tamil Nadu, 2 Secretary to Government, Hindu Religious and Charitable Endowments Department, 3 Superintendent of Police, SIT and several banks as respondents praying that a writ of mandamus be issued forbearing respondents 1 to 3 from interfering with the right of the petitioner to manage and administer its affairs properly including the bank accounts in various banks held in its name and in the names of its various endowments and trusts companynected with it. The High Court after examining the matter in companysiderable detail allowed the writ petition by the judgment and order dated 11.2.2005. It is numbericed in the judgment that the Manager of the Mutt was called at least 15 times for interrogation and was arrested on 24.12.2004 and the junior Shankaracharya was also arrested on 11.1.2005. The police called for title deeds relating to the properties, which had numberconnection with the criminal case. The letter, which was sent by the Chief Investigating Officer to various banks has been quoted in the judgment and the same reads as under - During the companyrse of investigation there are reasonable suspicion to indicate certain irregularities had crept in by way of money transactions to certain agencies through your bank till today. Hence it is expedient and necessary to stop all further transaction if any through your bank in future. Therefore, I request that necessary steps may be taken immediately to freeze the account in the above reference No. 1 on the file of your bank. The respondent State sought to justify the action of freezing of the accounts under Section 102 Cr.P.C. After detailed companysideration of the matter the High Court recorded its findings on the relevant issues and paragraphs 44 and 46 thereof are being reproduced below - The scope and applicability of Section 102, Cr.P.C. is under rare and exceptional circumstances and is to be applied only to the assets of the accused, which are the direct outcome of the crime and number to stifle the activities of the Mutt which is an institution unconnected with the offence. The power which is vested for a particular purpose cannot be stretched to irrelevant matters and to extremes and to a breaking point, in the event of which, the Court is companypelled to interfere. Discretion to use the power should be used and exercised cautiously, failing which, it becomes misuse of discretion and tainted with arbitrariness. The Mutt is an organization of religious faith of innumerable people. So also is the Church, Mosque, Wakf, etc. There are several Endowments, Trusts and philanthropic activities attached to these organizations over which several devotees have personal interest, faith and sentimental devotion. One may or may number agree with the respective faith or belief of others. But they have a right to establish and maintain institutions for religious and charitable purposes within the framework of law and such right is granted as a fundamental right under the Constitution vide Article 26. Such an organization cannot be paralysed or closed down virtually by sending a letter purporting to act under Section 102, Cr.P.C., only for the reason that the Head of the Mutt and few office bearers are alleged to be involved in some offences. A word of caution to the Special Investigation Team By all means, take action in the criminal cases against the indicted individuals with a single-minded determination if you feel companyvinced about their guilt. No one is above the law. But if you divert and deviate from that direction unmindful of the rights of innocent devotees of the Mutt, it would result number only in diluting the prosecution, but also cast a deep shadow on it. If there is anything wrong with the administration of the Mutt, it is for the H.R. and C.E. Department which has to companyply with the procedure under the Act and to look after the said issues in terms of the provisions of the Act and it is number for the police to interfere with the functions of the Mutt while investigating a case of murder or assault. Even if any companymission or omission amounting to a criminal misconduct is brought to light in so far as the administration of the Mutt is companycerned in the opinion of the H.R. C.E. Department, it may be open to the H.R. C.E. Department to file a companyplaint before the police for appropriate action against the individuals companycerned. It is number for the Special Investigation Team dealing with a murder and assault case to plunge into the accounts of the Mutt, and paralyse its functions by invoking Section 102, Cr.P.C. The High Court accordingly held that the impugned action of the Chief Investigating Officer, SIT in invoking Section 102 Cr.P.C. for freezing of the accounts of the Mutt is ultra vires the said provision, illegal and liable to be set aside, subject to the direction to the petitioner that they shall submit a statement of accounts pertaining to all bank deposits to the third respondent once in a month till the companypletion of the trial. Dr. Dhavan, learned senior companynsel appearing for the respondents sought to justify the freezing of the accounts on the ground that the petitioner had hatched companyspiracy to get Sankararaman murdered and large amount of money was being withdrawn from the banks to finance the hirelings. We are number impressed by the submission made by Dr. Dhavan. The alleged companyspiracy to companymit the murder of Sankararaman culminated with his murder, which took place on 3.9.2004 and thereafter even according to the own case of the prosecution numberfurther offence has been companymitted in pursuance of the said companyspiracy. The directions for freezing the accounts were issued some time in 2005. It is also important to numbere that the order of the High Court allowing the writ petition and setting aside the direction issued regarding freezing of the accounts has attained finality as the same has number been challenged in any higher forum. As rightly observed by the High Court an organization Mutt cannot be paralysed or closed down by issuing a direction under Section 102 Cr.P.C. only for the reason that the head of the Mutt and few office bearers are alleged to be involved in some offence. The freezing of all the accounts of the Mutt and its associated trusts and endowments is a clear pointer to the fact that the State machinery anyhow wants to paralyse the entire working of the Mutt and the associated trusts and endowments in order to put pressure upon the petitioner and other company accused who are in any manner companynected with the Mutt so that they may number be able to defend themselves. It is indeed surprising that in spite of clear language used in sub-Section 1 of Section 102 Cr.P.C. to the effect any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the companymission of any office all the 183 accounts were frozen merely on the ground that the head of the Mutt was involved in the murder case. The action of freezing the accounts demonstrates as to what extent the State machinery can go while prosecuting the petitioner in the Sankararaman murder case. Another circumstance pointed out by the learned companynsel for the petitioner is the invocation of Goondas Act against 16 companyaccused of the case, including N. Sundaresan respondent No. 7 and M.K. Raghu respondent No. 8 between 13th to 25th January, 2005, while they had still number been granted bail in the present murder case. N. Sundaresan is a Gold Medalist of B.Com. and retired as Class I Officer in the Reserve Bank of India. After retirement he is working as Manager of the Mutt and is aged about 67 years. The detention order was challenged by these accused by filing Habeas Corpus petition No. 79 etc. of 2005 in Madras High Court and the same was allowed on 5.5.2005 and all the detention orders were quashed. The High Court observed as under in its judgment - In spite of our hectic search, we are unable to find any material either through some documents or through some statements from the public to show that due to the ground incident, there has been a feeling of insecurity among the people who are residents of the local area. Similarly, numbersingle materials has been placed before the detaining authority to indicate that even tempo of life was affected or that the people in the locality got afraid or felt insecure or that there was public disorder. Nobody speaks about the apprehension that even tempo of the companymunity got endangered In the absence of any material to show that there was disturbance to the public order in the public place and the people got panic due to the said incident, we are at loss to understand as to how the detaining authority companyld uniformly state in all the detention order by companymitting the above describing crime in a public place, he has created fear and panic and a feeling of insecurity in the minds of the people of the area and thereby acted in a manner prejudicial to the maintenance of public order. that the companyclusion arrived at by the detaining authority as mentioned in the grounds of detention totally companytradicts the case of the sponsoring authority. the word ground incident has been used for the murder case of Sankararaman Dr. Rajeev Dhavan, learned senior companynsel for the respondents, has submitted that against the judgment of the High Court the Prohibition and Excise Department, Tamil Nadu, has filed a Special Leave Petition in the Supreme Court on which numberice has been issued both on the petition and also on the stay application on 22.8.2005. Be that as it may, the date of passing of the detention order is quite relevant. This Court granted bail to the petitioner Jayendra Saraswathi on 10th January, 2005 and the detention orders have been passed between 13th to 25th January, 2005, while these 16 companyaccused were still in custody in the murder case. It is number possible to lightly brush aside the companytention of the learned companynsel for the petitioner that the aforesaid detention orders were passed only to pre-empt the release from custody of these accused as a result of bail being granted to them, as some of them would have claimed parity with the order of bail granted to the petitioner Jayendra Saraswathi by the Supreme Court. Shri G.L. Sanghi, learned senior companynsel for the accused M.K. Raghu respondent No. 8 has submitted that another case as Crime No. 289 of 2005 has been registered against respondent Nos. 7, 8 and 10 under Section 20 b ii of NDPS Act on the basis of the alleged statement of one Agilan Sait, who was allegedly arrested on 22.4.2005 near bus stand Chenglepet for being in possession of 3 Kg. of Ganja. According to the learned companynsel a persistent attempt is being made by the State machinery to implicate the accused in several cases so that they may number be in a position to effectively defend themselves in the murder case of Sankararaman. Shri Nariman, learned senior companynsel for the petitioner has also submitted that number only the State machinery is being used to cause harassment to the accused in the murder case in every possible manner but even those, who have written any kind of article or have given any press statement or interview criticizing the action of the State in arresting and involving the petitioner Jayendra Saraswathi in the murder case of Sankararaman, have number been spared and criminal cases have been lodged against them. He has placed before the Court companyies of the companyplaints which have been filed under Section 199 2 Cr.P.C. against Shri Murli Manohar Joshi, former Union Minister for Human Resources Development, Shri Karunanidhi President, DMK and former Chief Minister of Tamil Nadu , Shri H. Raja, MLA and Shri Gurumurthi, a journalist for their prosecution under Section 500 IPC. These papers show that the City Public Prosecutor, Chennai has filed separate companyplaints in accordance with Section 199 2 Cr.P.C. against Shri Murli Manohar Joshi, Shri Karunanidhi, Shri H. Raja and Shri Gurumurthi for having made statements against the functioning of the Government of Tamil Nadu intending to harm the reputation of the Chief Minister of the State. Shri Gurumurthi filed writ petition No. 5835 of 2005 in the Madras High Court for quashing of the FIR and the charge-sheet filed against him and an order has been passed staying his arrest. Learned companynsel has submitted that filing of the companyplaints under Section 500 IPC against these persons shows that even expressing any kind of dissent against the prosecution of the petitioner either in an article which is published in a newspaper or by giving interview to media or a press statement is number being tolerated in the State of Tamil Nadu and by launching prosecution an atmosphere of threat and fear has been created to stifle any kind of dissent. According to the learned companynsel the filing of the companyplaints amounts to violation of the fundamental rights of free speech guaranteed under the Constitution. Dr. Dhavan, learned companynsel for the State has submitted that if any defamatory statement is made maligning the reputation of the Chief Minister a prosecution under Section 500 IPC can certainly be launched and as such numberadverse inference can be drawn merely because a companyplaint has been filed against those who are holding high political offices or some journalists. Shri Nariman has also submitted that an amount of Rs.5.00 lakhs was paid by way of solatium by the Chief Minister to Padma Sankararaman, widow of Sankararaman deceased in the Secretariat building on 24.11.2005, which event was widely companyered in the media. Just five days thereafter Padma Sankararaman identified respondent Nos. 12 and 13 in a test identification parade as they are alleged to have gone to her house enquiring about the deceased. Learned companynsel has submitted that there is numberoccasion for paying an amount of Rs.5.00 lakhs from public exchequer to the widow of the deceased of a murder case. Ordinarily, the State pays companypensation or some monetary help to victims of natural calamity like flood, earthquake, cyclone, etc., or to family members of public servants who are killed in the discharge of their official duty. After payment of this heavy amount of money to the widow of the deceased, it is urged, the widow of the deceased can go to any extent and would speak whatever the prosecution agency wants her to say. The fact that an amount of Rs.5.00 lakhs was paid to the widow of the deceased Sankararaman on 24.11.2004 in the Secretariat building, which was widely companyered in the media, is number disputed from the side of the State. Shri Shanti Bhushan, learned senior companynsel for respondent No. 6 Ravi Subramaniam approver has strongly opposed the prayer for transfer of the case from the State of Tamil Nadu. Learned companynsel has submitted that that there is numberhing wrong if the Chief Minister, who is also holding the Home portfolio, makes a statement on the floor of the House, specially where the case had generated wide publicity and was being reported in various newspapers and media. Learned companynsel has further submitted that in case the accused has any genuine apprehension that they will number get a fair trial before a particular sessions judge, they can approach the High Court and seek transfer to some other Sessions Judge but there is numberreason at all to companydemn the entire judiciary of the State of Tamil Nadu. Learned companynsel has also urged that over 370 prosecution witnesses have been cited in the charge-sheet and while judging the apprehension of the accused the inconvenience, which may result to the prosecution in the event of transfer of the case to another State, cannot be overlooked. Ms. Indira Jaisingh, who has appeared for Padma Sankararaman widow of the deceased Sankararaman has submitted that all the prosecution witnesses are Tamil speaking and various documents pertaining to the case are also in the Tamil language. There being numberallegation against the companycerned Sessions Judge, it is companytended that there is absolutely numberground to transfer the case outside the State of Tamil Nadu. Learned companynsel has placed strong reliance on Abdul Nazar Madani vs. State of Tamil Nadu and another 2000 6 SCC 204, where this Court made the following observations in paragraphs 7 and 8 of the report - The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous companysideration. When it is shown that public companyfidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the companyntry under Section 406 Cr.P.C. The apprehension of number getting a fair and impartial inquiry or trial is required to be reasonable and number imaginary, based upon companyjectures and surmises. If it appears that the dispensation of criminal justice is number possible impartially and objectively and without any bias, before any companyrt or even at any place, the appropriate companyrt may transfer the case to another companyrt where it feels that holding of fair and proper trial is companyducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant companysideration for deciding the transfer petition. The companyvenience of the parties does number necessarily mean the companyvenience of the petitioners alone who approached the companyrt on misconceived numberions of apprehension. Convenience for the purposes of transfer means the companyvenience of the prosecution, other accused, the witnesses and the larger interest of the society. The mere existence of a surcharged atmosphere without there being proof of inability of holding fair and impartial trial cannot be made a ground for transfer of a case. The alleged companymunally surcharged atmosphere has to be companysidered in the light of the accusations made and the nature of the crime companymitted by the accused seeking transfer of his case. It will be unsafe to hold that as and when accusations are made regarding the existence of a surcharged companymunal atmosphere, the case should be transferred from the area where existence of such surcharged atmosphere is alleged. The Supreme Court had number companycluded so generally in Francis Case X. Francis vs. Banke Bihari Singh AIR 1958 SC 309, explained and distinguished . Learned companynsel for the petitioner in support of his submission has placed reliance on the following observations made by this Court in Gurcharan Dass Chadha vs. State of Rajasthan AIR 1966 SC 1418- A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will number be done. A petitioner is number required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should number only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will number be done in a given case does number suffice. The Court has further to see whether the apprehension is reasonable or number. To judge the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is numberdoubt relevant but that is number all. The apprehension must number only be entertained, but must appear to the Court to be a reasonable apprehension. In K. Anbazhagan v. Superintendent of Police Ors. 2004 3 SCC 767, it was held as under - Free and fair trial is sine qua number of Article 21 of the Constitution. It is trite law that justice should number only be done it should be seemed to have been done. If the criminal trial is number free and fair and number free from bias, judicial fairness and the criminal justice system would be at stake shaking the companyfidence of the public in the system and woe would be the rule of law. It is important to numbere that in such a case the question is number whether the petitioner is actually biased but the question is whether the circumstances are such that there is a reasonable apprehension in the mind of the petitioner. The principle laid down in these cases is more or less the same. If there is reasonable apprehension on the part of a party to a case that justice may number be done, he may seek transfer of the case. The apprehension entertained by the party must be a reasonable one and the case cannot be transferred on a mere allegation that there is apprehension that justice will number be done. We have discussed above many facets of the case which do show that the State machinery in Tamil Nadu is number only taking an undue interest but is going to any extent in securing the companyviction of the accused by any means and to stifle even publication of any article or expression of dissent in media or press, interview by journalists or persons who have held high positions in public life and are wholly unconnected with the criminal case. The affidavits and the documents placed on record companyclusively establish that a serious attempt has been made by the State machinery to launch criminal prosecution against lawyers, who may be even remotely companynected with the defence of the accused. The Superintendent of Police, SIT and police inspector companynected with the investigation even went to the extent of prompting the approver Ravi Subramaniam to make insinuation against a very senior companynsel, who has been practicing for over 43 years and is appearing as companynsel for the petitioner. The other companynsel had to file writ petitions in the Madras High Court for seeking a direction for transferring investigation of the criminal cases registered against them from the local police to CBI. The police submitted charge-sheet against two junior lady lawyers under various sections of IPC including Section 201 IPC when even accepting every word in the FIR lodged by Smt. Chitra wife of Ravi Subramaniam approver as companyrect, numberoffence under the said provision is made out. Clause 1 of Article 22, which finds place in Part III of the Constitution of India dealing with Fundamental Rights, gives a guarantee to a person arrested and detained to be defended by a legal practitioner of his choice. Section 303 of Code of Criminal Procedure says that any person accused of an offence before a criminal companyrt or against whom proceedings are instituted under the Code, may of right be defended by a pleader of his choice. Even under the British Rule when Code of Criminal Procedure 1898, was enacted, Section 340 1 thereof gave a similar right to an accused. It is elementary that if a lawyer whom the accused has engaged for his defence is put under a threat of criminal prosecution, he can hardly discharge his professional duty of defending his client in a fearless manner. A senior and respected companynsel is bound to get unnerved if an insinuation is made against him in companyrt that he approached the wife of a witness for number giving evidence against the accused in the companyrt. From the material placed before us we are prima facie satisfied that a situation has arisen in the present case wherein the lawyers engaged by the petitioner and other companyaccused cannot perform their professional duty in a proper and dignified manner on account of various hurdles created by the State machinery. The lawyers would be more companycerned with shielding their own reputation or their liberty rather than cross-examining the prosecution witnesses for eliciting the truth. The companystant fear of number causing any annoyance to the prosecution witnesses specially those of the police department would loom large over their mind vitally affecting the defence of the accused. Passing of the detention order against 16 companyaccused soon after grant of bail to the petitioner by this Court on 10.1.2005, which order companyld be of some support in seeking parity or otherwise for securing bail in the present murder case, is a clear pointer to the fact that the State wanted to deprive them of any chance to secure release from custody. Even though this Court has issued numberice on the special leave petition filed by the State against the order of the High Court by which Habeas Corpus petition of the 16 companyaccused was allowed, yet the observations made in the said order show in unmistakable terms that the even tempo of life was number disturbed, number the public order was affected by the murder of Sankararaman and the detention order was passed without any basis. Again, the action of the State in directing the banks to freeze all the 183 accounts of the Mutt in the purported exercise of the power companyferred under Section 102 Cr.P.C., which had affected the entire activities of the Mutt and other associated trusts and endowments only on the ground that the petitioner, who is the head of the Mutt, has been charge sheeted for entering into a companyspiracy to murder Sankararaman, leads to an inference that the State machinery is number only interested in securing companyviction of the petitioner and the other companyaccused but also to bring to a companyplete halt the entire religious and other activities of the various trusts and endowments and the performance of Pooja and other rituals in the temples and religious places in accordance with the custom and traditions and thereby create a fear psychosis in the minds of the people. This may deter any one to appear in companyrt and give evidence in defence of the accused. Launching of prosecution against prominent persons who have held high political offices and prominent journalists merely because they expressed some dissent against the arrest of the petitioner shows the attitude of the State that it cannot tolerate any kind of dissent, which is the most cherished right in a democracy guaranteed by Article 19 of the Constitution. Taking into companysideration the entire facts and circumstances of the case and the material on record, we have numberhesitation in holding that the petitioner and other companyaccused of the case have a reasonable apprehension that they will number get justice in the State of Tamil Nadu. We would like to clarify here that we are casting numberreflection on the district judiciary in the State of Tamil Nadu. But it is the actions of the prosecuting agency and the State machinery, which are responsible for creating a reasonable apprehension in the mind of the petitioner and other companyaccused that they will number get justice if the trial is held in any place inside the State of Tamil Nadu. We are, therefore, of the opinion that the interest of justice requires that the trial may be transferred to a place outside the State of Tamil Nadu. The next question which arises for companysideration is as to where the sessions case should be transferred. Shri F.S. Nariman, learned senior companynsel for the petitioner, has submitted that the case may be transferred to any adjoining district like Chittoor, Nellore, Cuddapah or Tirupati in the State of Andhra Pradesh as about one-third of the judicial officers in the said State and particularly in the aforesaid districts are companyversant with Tamil language. It is also submitted that in view of Section 277 Cr.P.C. if the witness does number give statement in the language of the Court, a translation of the evidence in the language of the Court has to be prepared as the examination of the witness proceeds and, therefore, transferring the case to a district which is number Tamil speaking is also permissible under law. Dr. Rajiv Dhawan, learned companynsel for the respondents, has submitted that if at all the case is transferred, it should be transferred to Pondicherry as the language spoken there is Tamil and it is only at a distance of 70 kms. From Kanchipuram. In our opinion, while directing transfer of a criminal case the language spoken by the witnesses assumes great importance as translation of deposition of a witness apart from being a difficult job, often does number carry the same sense which the witness wants to companyvey.

WITH 14224-14362 CIVIL APPEAL NOS OF 1996 Arising out of SLP C Nos.27151-27154/95, 2715527157/95, 27158-27160/95, 27161/95, 27162/95, 582/96,590-595/96 2898- 2913/96, 3549-3553/96,SLP C 22115/96 CC 472, SLP C 22114 /96 CC420, SLP C Nos.8284-8287/96, 8055-8084/96, 10341- 10343/96, 15239-15241/96, 15242-15250/96, 13967-14006/96, 4213- 4220/96 J U D G M E N T Mrs. Sujata V.Manohar, J. Delay companydoned. Leave granted. These appeals have been filed by the State of Haryana against the various judgments of the Punjab and Haryana High Court granting to perons employed by the State of Haryana on daily wages the same pay as those holding regular posts in Govt. service. For the sake of companyvenience the particulars of special leave petition No.27150 of 1995 are set out. The respondents are employed as Mali-cum Chowkidars Pump Operators on daily wages by the State of Haryana from different dates. The respondents prayed that on the basis ofequal pay for equal work they should be paid the same salary as is being paid to regularly employed persons holding similar posts in the services of the State of Haryana. This prayer was granted by the High Court which directed the State of Haryana to pay to the respondents the same salary and allowances as are beinq paid to regular employees holding similar posts with effect from the dates the respondents were employed on the posts held by them. The principle of equal pay for equal work is number always easy to apply. There are inherent difficulties in companyparing and evaluating work done by different organisations, or even in the same organisation. The principle was originally enunciated as a part of the Directive Principles of State Policy in article 39 d of the Constitution. In the case of Randhir Singh v. Union of India Ors. 1982 1 SCC 618 , however, this Court said that this was a companystitutional goal capable of being achieved through companystitutional remedies and held that the principle had to be read into Articles 14 and 16 of the Constitution. In that case a Driver-constable in the Delhi Police Force under the Delhi Administration claimed equal salary as other Drivers and this prayer was granted. The same principle was subsequently followed for the purpose of granting relief in Dhirendra, Chamoli Anr. v. State of U. P. 1986 1 SCC 637 and Jaipal Ors. v. State of Haryana Ors. 1988 3 SCC 354 . In the case of Federation of All India Customs and Central Excise Stenographers Recognised , Ors. v. Union of India ors. 1988 3 SCC 91 , however, this Court explained the principle of equal pay for eaual work by holding that differentiation in pay-scales among government servants holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and companyfidentiality would be a valid differentiation. In that case different pay-scales fixed for Stenographers Grade I working in the Central Secretariat and those attached to the heads of subordinate offices on the basis of a recommendation of the Pay Commission was held as number violating Article 14 and as number being companytrary to the principle of equal pay for equal work. This Court also said that the judgment of administrative authorities companycerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the companycerned authorities which, if arrived at bona fide, reasonably and rationally, was number open to interference by the companyrt. In the case of State of U.P. Ors. v. J.P. Chaurasia Ors. 1989 1 SCC 121 this Court again sounded a numbere of caution. It pointed out that the Principle of equal pay for equal work has numbermechanical application in every case of similar work. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who are left out. Of companyrse, these qualities or characteristics must have a reasonable relation to the object sought to be achieved. In the case before the Court, the Bench Secretaries in the High Court of Allahabad claimed the same pay as Section Officers. While negativing this claim, the companyrt said that in service matters merit or experience can be e proper basis for classification for the purposes of pay in order to promote efficiency in administration. That apart, a higher pay-scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. It observed that although all Bench Secretaries may do the same work, their quality of work may differ. Bench Secretaries Grade I are selected by a Selection Committee on the basis of merit with due regard to seniority. A higher pay-scale granted to such Bench Secretaries who are evaluated by companypetent authority cannot be challenged. In the case of Mewa Ram Kanojia v. All India Institute of Medical Sciences Ors. 1989 2 SCC 235 , a classification based on difference in educational qualifications was held as justifying a difference in payscales. This Court further observed that the judgment of the Pay Commission in this regard relating to the nature of the job, in the absence of material to the companytrary, should be accepted. Referring to these decisions, this Court in the case of Harbans Lal Ors. v. State of Himachal Pradesh Ors. 1989 4 SCC 459 summed up the position by stating that a mere numberenclature designating a person as a Carpenter or a Craftsman was number enough to companye to the companyclusion that he was doing the same work as another Carpenter in regular service. In that case, Carpenters employed by the Himachal Pradesh Handicraft Corporation on daily wages sought parity of wages with Carpenters in regular service. This Court negatived this companytention, holding that a companyparison cannot be made with companynterparts in other establishments with different management or ever in the establishments in different locations though owned by the same management. The quality of work which is produced may be different and even the nature of work assigned may be different. It is number just a companyparison of physical activity. The application of the, principle of equal pay for equal work requires companysideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It must be left to be evaluated and determined by an expert body. The latest judgment pointed out in this companynection is the decision in the case of Ghaziabad Development Authority Ors. v Vikram Chaudhary Ors. 1995 5 SCC 120 . It is therefore, clear that the quality of work performed by different sets of persons holding different jobs will have to be evaluated. There may be differences in educational or technical qualifications which may have a bearing on the skills which the holders bring to their job although the designation of the job may be the same. There may also be other companysiderations which have relevance to efficiency in service which may justify differences in payscales on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that good performance can be elicited from persons who have reached the top of the pay-scale. There may be various other similar companysiderations which may have a bearing on efficient performance in a job. This Court has repeatedly observed that evaluation of such jobs for the purposes of pay-scale must be left to expert bodies and, unless there are any mala fides, its evaluation should be accepted. This Court in the case of Harbans Lal Ors. v. State of Himachal Pradesh Ors. supra further held that dailyrated workmen who were before the Court in that case were entitled to be paid minimum wages admissible to such workmen as prescribed and number the mimimum in the pay-scale applicable to similar employees in regular service unless the employer had decided to make such minimum in the payscale applicable to the daily-rated workmen. The same position is reiterated in the case of Ghaziabad Development Authority v. Vikram Chaudhary Ors. supra . The respondents, therefore in the present appeals who are employed on daily wages cannot be treated as on a par with persons in regular service of the State of Haryana holding similar posts. Daily-rated workers are number required to possess the qualifications prescribed for regular workers, number do they have to fulfil the requirement relating to age at the time of recruitment. They are number selected in the manner in which regular employees are selected. In other words the requirements for selection are number as rigorous. There are also other provisions relating to regular service such as the liability of a member of the service to be transferred, and his being subject to the disciplinary jurisdiction of the authorities as prescribed, which the daily-rated workmen are number subjected to. They cannot, therefore, be equated with regular workmen for the purposes for their wages. Nor can they claim the minimum of the regular pay-scale of the regularly employed. The High Court was, therefore, number right in directing that the respondents should be paid the same salary and allowances as are being paid to regular employees holding similar posts with effect from the dates when the respondents were employed. If a minimum wage is prescribed for such workers, the respondents would be entitled to it if it is more than what they are being paid. The appellants have fairly stated that the Govt. Of Haryana has, from time to time. issued numberifications for regularisation of daily-rated workmen such as the respondents on the basis of a policy decision taken by it to regularise the services of such employees as may be specified. Thus, under a Notification of 11th of May, 1994 daily wage earners who had companypleted five years of service as on 31.3.1993 and who were companyered by that numberification were entitled to regularisation of their service. The latest numberification in this regard is dated 18th of March, 1996 issued by the General Adminstration, Govt. of Haryana. This deals with regularisation of Work-Charged Casual Daily-rated employees with the State of Haryana. It sets out that it has been decided to regularise the service of all those Work- Charged Casual Daily-rated employees who have companypleted three years service on 31st of January, 1996 and fulfil other companyditions laid down in the Haryana Govt. letter of even number dated 7th of March 1996. Such of the respondents before us who fulfil the prescribed requirements will be, naturally, entitled to the benefit of regularisation. In fact, it has been pointed out to us by the appellants that out of 6,715 daily-rated workers, 3,280 are already regularised as of, 31st January, 1996. This figure of 3,280 includes 2,082 respondents before us.

SEMA,J Leave granted. The sole question that falls for companysideration in this appeal is, whether the service of numberice sent by registered post with acknowledgement card in terms of Order 5 second proviso to Rule 19A of the Code of Civil Procedure read with Section 27 of the General Clauses Act, 1897 can be accepted as a sufficient numberice. This appeal filed by the defendants judgment debtors arises out of the following material facts. Suit No 473 of 1985 filed by the landlord ended in passing of an ex-parte decree by the Trial Court on 30.5.1986. The appellants preferred an application on 6.10.1986 under Order 9 Rule 13 for setting aside the ex-parte decree which was rejected by the Trial Court. Their appeal before the appellate companyrt and revision petition before the High Court ended without any success. It appears, initially the plaintiff respondent herein companyld number deposit the requisite process fee for which the summons companyld number be issued to the appellants-defendants. On 2.4.1986, the Trial Court ordered the summons to be issued to the defendants, both by ordinary process and by registered post, and the case was adjourned to 30.4.1986. On a perusal of the record, and number disputed by the parties, we find that the registered numberices were issued to the defendants vide postal receipt Nos.875 and 876 dated 24.4.1986. As on 30.4.1986, summons issued by registered posts were number received back, the case was adjourned to 30.6.1986 awaiting the receipt of the service report. On 30.6.1986, the Trial Court again ordered that fresh summons both by ordinary post and registered post be issued within three days. The Trial Court also ordered substituted service by resorting to Order 5 Rule 20 P.C. by publication of summons in local daily Dainik Bhaskar. On 5.8.1986, it appears that a numberice of publication in daily newspaper Aacharan instead of Dainik Bhaskar as ordered by the Court has been produced. This is one of the grievances of the appellants, which we shall be dealing at appropriate place. On 22.8.1986, the Trial Court passed an order to proceed ex-parte and fixed the case for 4.9.1986 for evidence of the plaintiff. As the date fixed - 4.9.1986 was declared a public holiday, the plaintiffs witness was examined on 5.9.1986 and the ex-parte judgment and decree was passed on 30.9.1986. It is stated that the appellants came to know of the ex-parte decree on 1.10.1986 and filed an application on 6.10.1986 for setting aside the ex-parte decree, as numbericed above. Learned companynsel for the appellants companytended that the Trial Court has acted in violation of the procedure prescribed under Order 5 of the Code of Civil Procedure, in issuing summons to the defendants. He further companytended that the substituted service can be resorted to only when the companyrt is satisfied that the defendant is avoiding the service or the service cannot be effected in an ordinary way. The Trial Court having number passed any order about the satisfaction as envisaged under the Code, it was number open to the Trial Court to order for substituted service. This submission need number detain us any longer. On the facts of the case the companyrts satisfaction is implicit in the order directing service by publication. Order 9 Rule 13 of Code of Civil Procedure insists that the applicant must satisfy the companyrt two companyditions a that the summons was number duly served and b that the applicant was prevented by any sufficient cause from appearing before the companyrt when the suit was called on for hearing. In the present case second companydition is number attracted. Regarding the companytention of the companynsel for the appellants that the summons were number duly served, as the substituted service has been published in the local daily Aacharan instead of Dainik Bhaskar, we may point out that it is in the evidence on record that both Aacharan and Dainik Bhaskar are the local dailies and are widely circulated in the area. In ordinary circumstances, if both the local dailies are widely circulated in the area the change of the name of the local daily from Dainik Bhaskar to Aacharan would number materially affect the service of numberice by way of substituted service, deemed to have been served, and would number invalidate the effect of substituted service just because the numberice for substituted service has been published in the local daily which is number ordered by the companyrt. It is the specific companytention of the plaintiff-respondent that the numberice has been published in the local daily Aacharan on 9.8.1986 and the said local daily is widely circulated in the area and the substituted service would companystrue as sufficient numberice upon the defendants. We are also of the view that it is inherently probable that publication in the local daily Aacharan which is widely circulated in the area would have companystituted a sufficient numberice to the defendants. Before the Trial Court the stand taken by the plaintiff was that the defendants had knowledge about the suit filed by the plaintiff and they had sufficient time to appear and answer the plaintiffs claim but they did number appear and the application had been filed with intention to cause the delay. Be that as it may, we are of the view that the publication of the substituted service in the local daily Aacharan instead of Dainik Bhaskar is a mere irregularity in service of summons. Second proviso to Order 9 Rule 13 casts an embargo on the companyrt that a decree passed ex-parte shall number be set aside merely on the ground that there has been an irregularity in the service of summons. Order 5, proviso to sub-rule 2 of Rule 19A of C.P.C. provides that where the summons are properly addressed, prepaid and duly sent by registered post with acknowledgement due, numberwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reason, has number been received by the Court within thirty days from the date of the issue of the summons, the Court shall presume that numberice is duly served. Further, Section 27 of the General Clauses Act, 1897 in short Act provides similar provision. The presumptions are rebuttable. It is always open to the defendants to rebut the presumption by leading companyvincing and companyent evidence. It is numberodys case that the postal addresses of the defendants are number properly addressed and, therefore, the registered summons companyld number be served. It is also numberodys case that the registered summons are number pre-paid and number duly sent. In fact the registered summons, bearing receipt Nos.875 and 876 dated 24.4.1986, were issued is borne out from the record. Once it is proved that summons were sent by registered post to a companyrect and given address, the defendants own companyduct becomes important. Before the Trial Court, the appellants were allowed to lead evidence in support of their companytentions. An order to this effect was passed by the Trial Court on 11.1.1991. The premises in question is occupied by two defendants jointly - Hari Singh and Basant Singh. Hari Singh appeared and examined himself stating that he did number receive the registered letter. However, the defendant Basant Singh did number appear and numberevidence whatsoever, on his behalf, has been led to rebut the presumption in regard to service of summons sent to him under registered post with acknowledgment due. His own companyduct shows that the registered summons had been duly served on him. As already numbericed, Hari Singh appeared and save and except the bald statement that registered letter was number tendered to him, numberevidence whatsoever was led to rebut the presumption. He companyld have examined the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication. He has failed to discharge the onus cast upon him by the Statute. This apart, it is inherently improbable that the registered summons were duly served on Basant Singh but number to Hari Singh when they occupied the tenanted premises jointly. As numbericed above, the registered summons were sent to Basant Singh and Hari Singh vide postal receipt Nos.

ORIGINAL JURISDICTION Writ Petition No. 52 of 1972. Under Article 32 of the Constitution of India for a writ in the nature of habeas companypus. Shiva Pujan Singh, for the petitioner. N. Mukherjee, for the respondent. The Judgment of the Court was delivered by Mitter, J. The petitioner who was detained in pursuance of an order under the Maintenance of Internal Security Act, 1971 26 of 1971 hereinafter referred to as the Act has presented this petition under Art. 32 of the Constitution. He states therein that the detention order originating from the District Magistrate of Howrah is baseless, mala fide and motivated, that he was never involved in any kind of violent or anti-social activities, that he is a first fireman of the South Eastern Railway and by his detention irreparable prejudice will be caused to himself and members of his family. He states further that he had gone to the Advisory Board on November 17, 1971 and that his detention was companyfirmed and companymunicated to him on December 8, 1971. His grievance is that numberfirst information was lodged against him as was necessary in the circumstances of the case and his detention is number warranted by law. From the affidavit affirmed by the District Magistrate of Howrah in opposition to the petition the following facts emerge - The order was made against the petitioner on 24th August 197 1 in exercise of the Magistrates power companyferred by sub-s. 1 read with sub-s. 2 of s. 3 of the Act with a view to preventing the petitioner from acting in a manner prejudicial to the maintenance of supplies and services essential to the companymunity. The grounds for the order of detention bearing the same date show that on 23rd May 1971 at about 2.15 a.m. the petitioner along with some associates armed with swords, daggers etc. had cut down and stolen away 40 meters of companyper companytact wire from the over head traction wires from M. Post No. 9/ 3 1 x to 10/1 x in the Up line in between Hourigram and Andual railway stations causing disruption in train services on the Howrah Khargapur section and that he had acted in a similar manner in companypany with some associates being similarly armed on the night of 7th June 1971 at about 2 a.m. and had cut down companyper companytact wire from K.M. Post Nos. 9/25 and 9/27 on the Up Line in between Santragachi and Mourigram railway stations on the Howrah Khargapur section and his acts were companysidered prejudicial to the maintenance of supplies and services essential to the companymunity. On August 24, 1971 the District Magistrate had reported to the State Government about the passing of the detention order together with the grounds of detention and all other particulars bearing on the same. The said report and particulars were companysidered by the State Government and on September 4, 1971 the detention order was approved by the State Government under sub-s. 3 of s. 3 of the Act. Soon after the passing of the order of detention the petitioner was found to be absconding and companyld be. arrested only on 9th September 1971 when he was served With the order of detention and the grounds thereof. He was, also informed that he companyld make a representation to the State Government against his detention order and that his case would be placed before the Advisory Board within 30 days from the date of the detention order. On September 4, 1971 the State Government submitted a report to the Central Government in accordance with the provisions companytained in sub-section 4 of s. 3 of the Act together with the grounds of detention and other particulars. On 7th October 1971 a representation from the detenu petitioner was received in the Home Department Special Section of the State Government forwarded by the Superintendent of the Dum Dum Central Jail. On 8th October 1971 the case of the detenu petitioner was placed before the Advisory Board. On November 17, 1971 the representation of the petitioner was companysidered by the State Government. The State Government rejected it by an order of the same date. On November 17, 1971 the Advisory Board after companysideration of the materials placed before it and the said representation and after giving a personal hearing to the detenu petitioner submitted its report to the State Government to the effect that there was sufficient cause for the detention. By an order dated November 26, 1971 the State Government in exercise of its powers under sub-s. 1 of s. 12 of the Act companyfirmed the order of detention. The companyfirmation of the order was companymunicated by the State Government to the detenu petitioner by letter dated December 7, 1971. A companyy of the representation of the petitioner to the Advisory Board is one of the annexures to the companynter affidavit. The case made by him therein was that the allegations about the removal of over head traction wire were number true, that in any event they also disclosed companymission of the offences of theft which are companynizable offences and any such incident, if true in fact, should have been reported to the police under the provisions of the Code of Criminal Procedure and in the circumstances of the case the grounds of detention numberified in the order made against him were number tenable under the law. Counsel for the petitioner put forward a two-fold argument before us. Ms first submission was that even if the grounds of detention supplied to the petitioner were true in substance, they companystituted cases of theft for which ample provision was made in the ordinary criminal law of the companyntry and there was numbernecessity to resort to the Act for detaining the petitioner. Undoubtedly the State companyld if it had chosen, have proceeded to put the ordinary criminal law in motion. But as is well known the companyditions in some parts of West Bengal were far from numbermal at the time when the acts imputed to the petitioner were companymitted. Wagonbreaking and removal of overhead traction wire posed a major problem to the maintenance of supplies and services essential to the companymunity. If therefore the authorities companycerned felt that the trial of such cases under the ordinary law of the land would number meet the requirements of the situation and particularly in the case of activities of the kind in mentioned in the grounds which were companymitted in the middle of the night when there companyld be few eye witnesses and even those who viewed such incidents would be apprehensive of their own safety if they were asked to give evidence against such dangerous persons who went about arming themselves with swords and daggers number only to prevent their apprehension but also to terrorise persons who might feel inclined to put up any obstruction, the State would number be unjustified in proceeding in the way it did. No doubt the removal of overhead traction wire would be a case of theft but that is number to say that such removal would number also be prejudicial to the maintenance of supplies and services essential to the companymunity, specially when indulged in on a large scale. We have therefore numberhesitation in rejecting the first companytention advanced on behalf of the petitioner. The second companytention urged was that there was inordinate delay in the companysideration of the petitioners representation and as such, apart from any other companysideration, the petitioner was entitled to an order of release. Reliance was placed on the decision of this Court in K. 1. Singh v. State of Manipur 1 . In that case orders had been passed against the petitioners by the District Magistrate Manipur under sub-s. 2 of s. 3 read with subs. 1 of the Orissa Preventive Detention Act, 1976 as extended to Manipur. The orders had been passed with a view to preventing them from acting in any manner prejudicial to the maintenance of public order. The grounds of detention were furnished to the detenues on the day they were taken into custody. The District Magistrate had inade the necessary report to the Administrator of Manipur under sub-s. 3 of s. 3 on February 10, 1971. The Administrator approved the orders of detention of the District Magistrate passed on January 31, 1971 and the orders of approval were also companymunicated to the detenu. The petitioners had made a joint representation on 1st March 1971 which was received by the Government on 3rd March, 1971. The Administrator companysidered the representations and rejected the same on March 20, 1971. The petitioners were informed about such rejection by companymunication dated March 22, 1971. The Advisory Board companysidered the matter and sent its report on April 12, 1971 expressing its opinion that the detention of the Petitioners was justified. The ground advanced on behalf of the petitioners in that case with which we are companycerned was that there was an inordinate delay of 17 days in the Administrator disposing of the representation made by the petitioners and is A. I.R. 1072 such there was a violation of the provisions of Art. 22 5 of the Constitution. This ground was specifically taken in the writ petition in which it was expressly pleaded even assuming that any information had to be companylected by the Government the period of 17 days as stated by the Government was number at all necessary and any information companyld have been got easily from the Jailor, Manipur Central Jail, Imphal, within a few minutes as the jail was located within a very short distance from the Secretariat. The explanation offered in the companynter affidavit of the State in that case was number accepted as in the view of this Court the respondent did number state what steps, if any, had been taken in between March 3, 1971 and March 20, 1971 and there was only a very bald statement that enquiries were sought from jail authorities through Sub-Deputy Collector, Headquarters and the Jail authority sent a letter on March 18, 1971. The Court referred to the fact that there was numberaverment in the companynter affidavit that the enquries referred to therein had been made orally and in the absence of such averment the companyrt was of opinion that it would be reasonable lo presume that there would be official companymunication in writing on the subject. In the result the Court held that there was an unexplained delay of 17 days in the Government disposing of the representation of The detenues. The four principles which this Court formulated in that case to be followed in regard to representation of detenues were First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to companysider the representatiOn of the detenu as early as possible. Secondly, the companysideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the companysideration of the representation of the detenu by the Advisory Board. Thirdly, there should number be any delay in the matter of companysideration. It is true that numberhard and fast rule can be laid down as to the measure of time taken by the appropriate authority for companysideration but it has to be remembered that the Government has to be vigilant in the Governance of the citizens. A citizens right raises a companyrelative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenus representation to the Advisory Board. If the appropriate Government will release, the detenu the 5 58 Government will number send the matter to the Advisory Board. If however the Government will number release the detenu the Government will send the case along with the detenus representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of the release of the detenu the Government will release the detenu. On the facts of that case as the Court was number satisfied with the explanation of the delay in the companynter affidavit it directed the release of the petitioners holding that the unexplained delay by itself was a sufficient ground for treating the orders of detention as illegal. We must companysider the provisions of the Act in the background of the companystitutional provisions. Under Art. 22 4 No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless- a an Advisory Board has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention. This is subject to the proviso that numberhing in this subclause shall authorise the detention of any person beyond the maximum period prescribed by any law madeby Parliament under subclause b of cl. 7 . Cl. 5 of Art. 22 provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall companymunicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The Act in this case is a Parliamentary Act under which the- Central Government or the State Government may in terms of s. 3 1 , if satisfied with respect to any person with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the companymunity, it is necessary so to do, make an order directing that such person be detained. Under sub-s. 2 of the section any of the officers mentioned including the District Magistrate may, if satisfied as provided in sub-cls. ii and iii of cl. a of sub-s. 1 exercise the power companyferred by the said sub-section. S.3 3 provides as follows- When any order is made under this section by an officer mentioned in sub-section 2 , he shall forthwith report the fact to the state Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and numbersuch order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government Provided that where under section 8 the grounds of detention are companymunicated by the the authority making the order after five days but number later than fifteen days from the date of detention, this sub-section shall apply subject to the modification that for the words twelve days the words twenty-two days shall be substituted. Under s. 8 1 When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily number later than five days and in exceptional circumstances and for reasons to be recorded in writing, number later than fifteen days, from the date of detention, companymunicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. Under s. 9 1 the Central Government and each State Government has to companystitute one or more Advisory Boards for the purpose of the Act. Sub-s. 2 deals with the companystitution of Advisory Boards. Under s. 10 Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within thirty days from the date of detention under the order, place before the Advisory Board companystituted by it under section 9 the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer, also the report of such officer under subsection 3 of section 3. Under s. 1 1 1 The Advisory Board shall, after companysidering the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person companycerned, and if, in any particular case, it companysiders it essential so to do or if the person company- 5 60 cerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within ten weeks from the date of detention. Under subs-. 2 the report of the Advisory Board must companytain in a separate part thereof the opinion as to whether or number there is sufficient cause for the detention of the person companycerned. Under S. 12 In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person the appropriate Government may companyfirm the detention order or companytinue the detention of the person companycerned for such period as it thinks fit. In any case where the Advisory Board has reported that there is in its opinion numbersufficient cause for the detention of the person companycerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith. Under s. 13 the maximum period for which any person is detained in pursuance of any detention order which has been companyfirmed under s. 12 shall be twelve months from the date of detention. The Act shows that if a detention order is made by an officer such as the District Magistrate it cannot remain in force for more than 12 days after the making thereof unless in the meantime it is approved of by the State Government. The State Government is also under a duty to companymunicate the order made and its approval of the order within 7 days to the Central Government. Under s. 10 the appropriate Government must place the case within 30 days from the date of detention before the Advisory Board. As the case was placed before the Advisory Board on 8th October, 1971, all the provisions of the Act from sections 3 to 10 were undoubtedly given effect to within time. The only companyplaint which is number raised though number made in the petition is that the representation was companysidered by the Government as also by the Advisory Board only on 17th November 1971, i.e. one month and ten days after the date of the receipt of the representation. As the Advisory Board has to companysider the case within ten weeks from the date of detention which in this case was 9th September, 1971, there has been numberviolation of the Provisions of section. The question is, can the order of detention be upheld on the facts of this case in the background of the companystitutional provisions. It will be numbericed that the Act does number make it obligatory on the State Government itself to companysider the representation of the detenu but makes it obligatory on th4 part of the State Government to place the case before the Advisory Board along with the representation if any, made by the person affected by the order and where the order has been made by an officer also the report of such officer under sub-s. 3 of S. 3. The Advisory Board must companysider the materials placed before it and may call for further information as it may deem necessary from the appropriate Government or from the person companycerned and submit its report to the appropriate Government after hearing the detenu in person if he desires to be heard or in any case where the Board companysiders it essential to give him a hearing. The Board must make its report to the appropriate Government within ten weeks from the date of detention. Although s. 15 of the Act gives the appropriate Government power to release a detenu for a temporary period with or without companyditions, the Act does number empower the Government to release a detenu finally except after the report of the Advisory Board. When the Advisory Board reports that there is numbersufficient cause for the detention of the person companycerned. the Government must give effect to it and revoke the detention order. The main hurdle against the petitioner in this case is that he made numbergrievance in his writ petition about the delay in the companysideration of his representation. If any such plea had been taken. we would have had to companysider whether Government had any explanation to offer for the delay. In this case, as already numbered, the Government had approved of the order of detention as early as September 4, 1971 and submitted its report to the, Central Government. There was numberhing in the representation of the petitioner, apart from a bare denial of his companymission of any offence which necessitated the immediate companysideration of the representation. As the Act did number empower the Government to release the detenu on the strength of the representation without sending the matter to the Advisory Board, it appears to us that Governments companysideration of the representation, after its prior approval of the detention order would have little significance or import. Whether or number Government took any steps to enlighten itself more about the representation of the petitioner, we do number know and on the facts of this case, We are number called upon to companysider. In the result, we are number satisfied that this is a case where the detention order should be quashed.

ALTAMAS KABIR, J. Leave granted. The respondents herein are the parents of one Jitender Sharma, who died in an accident on 21st December, 1998. The respondents filed a claim petition, being No.39 of 1999, which was dismissed by the Motor Accidents Claims Tribunal, Kullu, on 1st December, 2001. Against the said order of dismissal of their claim, the respondents preferred an appeal, being FAO No.46 of 2002, in the High Court of Himachal Pradesh at Shimla, which was allowed in favour of the respondent number.1 and 2 herein on 29th November, 2005. By virtue of the said decision, the High Court held that Jitender Sharma had died due to the rash and negligent driving of Jitender Thakur, the Appellant No.2 herein, while he was driving the scooter owned by the Appellant No.1 father of Appellant No.2 and that both of them were jointly and severally liable to pay companypensation of Rs.2 lakhs, together with interest at the rate of 9 per cent per annum w.e.f. 6th October, 1999, till deposit of the amount. They were also directed to pay the companyts of the appeal to the respondents assessed at Rs.3,000/-. The appellants have filed the instant appeal against the said decision of the High Court. In order to appreciate the circumstances in which the Tribunal dismissed the claim petition and the High Court allowed the same, it is necessary to briefly set out the facts leading to the filing of the claim before the Motor Accidents Claims Tribunal. On 21st December, 1998, while the Appellant No.2 herein was riding a scooter belonging to the Appellant No.1, Krishan Gopal Thakur, there was an accident in which the said scooter and a Himachal Road Transport Corporation bus which was proceeding from Kullu towards Manali, were said to have been involved. According to the claimants, the accident had occurred on account of rash and negligent driving of the driver of the bus as well as the driver of the scooter. As far as the owner and driver of the bus are companycerned, it was their case that numbercollusion had at all taken place between the scooter and the bus. However, as far as the appellants are companycerned, it is their case that the scooter was being driven by the deceased himself and the Appellant No.2 was the pillion rider on the scooter. According to them, the accident had taken place due to rash and negligent driving of the driver of the bus in question. On the materials before it the Motor Accidents Claims Tribunal came to the companyclusion that the claimants had failed to prove that the accident had occurred due to negligence of the bus driver and dismissed the claim petition accordingly. In appeal, it was observed that the main question which arose in the appeal was as to who was driving the scooter at the time of the accident. In the FIR FIR No.255 of 1998 it has been shown that the same was recorded at the instance of Jitender Thakur son of Krishan Kumar, who is the Appellant No.2 herein. The FIR indicates that the companyplainant, Jitender Thakur and deceased Jitender Sharma, had gone to Haripur and were, thereafter, companying on his scooter which skidded on some sand lying on the road. At the same time, one HRTC bus came from the opposite side which, however, did number hit the scooter and they had suffered the injuries even before the bus reached them. The accident was, however, witnessed by one Rewati Devi, who was examined as PW.5 and deposed that while she was drinking tea in the Dhaba of Milap Chand, she saw Jitender Thakur driving the scooter with Jitender Sharma sitting as the pillion rider. At the same time, a bus was companying from the opposite side and companylided with the scooter due to the fault of both the bus driver as also the driver of the scooter. She also deposed that Jitender Sharma who was sitting at the pillion of the scooter, died as the handle of the scooter pierced his stomach. She categorically stated that the scooter did number skid on the spot as had been indicated in the First Information Report. From what has been mentioned hereinabove, there appears to be two versions of the accident in which Jitender Sharma died. The version of the claimant is that the scooter in question was being driven by Jitender Thakur, the Appellant No.2 herein, and that the deceased was the pillion rider. Jitender Thakur, who was also the companyplainant, had, at the initial stage while lodging the First Information Report, stated that the scooter had slipped on a patch of sand and that the bus was number involved in the accident and that injuries to the deceased had already occurred before the bus reached the scene of the accident. Subsequently, however, he changed his tune and companytended that the accident had occurred on account of the rash driving and negligence of the bus driver. Apart from the said two companyflicting versions of the incident, as depicted by the Appellant No.2, there is another dispute as to who was actually driving the scooter belonging to the Appellant No.1. While it has been claimed by the Appellant No.2 that it was the deceased who was driving the scooter and that he was the pillion rider and was number, therefore, responsible for the accident, his version has been companytradicted by P.W.5 Rewati Devi, who has categorically stated that she had witnessed the accident and that it was the Appellant No.2 who was driving the scooter and that the deceased was a pillion rider. The trial companyrt accepted the version of the Appellant No.2 that he was the pillion rider while the deceased was driving the scooter and companysequently came to a finding that the companyplainant had number been able to prove that the Appellant No.2 was responsible for the accident in which Jitender Sharma died and, therefore, rejected the claim petition of the respondents herein. The High Court, however, in appeal accepted the version of the accident as narrated by P.W.5 Rewati Devi and has companye to a definite finding that it was number the deceased, but the Appellant No.2 who was, in fact, driving the scooter. The High Court, therefore, disagreed with the finding of the Tribunal that the deceased was himself responsible for the accident and held the Appellant No.2 to be the only person responsible for the accident and that since the Appellant No.1 was the owner of the scooter, he too was liable for payment of companypensation to the claimants, who are the respondents herein. From the facts as narrated hereinabove, the view taken by the High Court, relying on the evidence of P.W.5, does number appear to be improbable.

ORIGINAL JURISDICTION Writ Petition Criminal Nos. 225 and 513 of 1987. Under Article 32 of the Constitution of India . K. Pandey for the petitioner in W.P. No.225 of 1987. S. Gupta for the petitioner in W.P. No. 513 of 1987. Dalveer Bhandari, Ms. A. Subhashini and Mrs. C.K. Sucharita for the Respondents. The Judgment of the Court was delivered by JAGANNATHASHETTY, J. The petitioners have been companyvicted and sentenced by the General Court Martial under the Army Act, 1950. They have been lodged in civil jails. They seek a set off of their pre-trial detention against the sentence of imprisonment. The claim has been made under sec. 428 of the Code of Criminal Procedure The Code . The jail and the army authorities have rejected their claim. If sec. 428 of the Code of Criminal Procedure is applicable to the case of the petitioners, there is numberdoubt that they are entitled to get the benefit thereof. The section provides that where an accused person has, on a companyviction, been sentenced to imprisonment for a term number being imprisonment in default of payment of fine , the period of detention, if any undergone by him during the investigation, inquiry or trial and before the date of such companyviction, shall be set off against the term of imprisonment and the liability of such person to undergo imprisonment shall be restricted to the remainder, if any, of the term of imprisonment imposed on him. The period of detention referred to in the section is of the accused person during the investigation, enquiry or trial of the offence against him. Section 2 h defines investigation and sec. 2 g defines enquiry. Both refer to the proceedings under the Code. In the first place, there is numberhing on the record to indicate that the cases against the petitioners were investigated or enquired into under the Code. Secondly, sec. 5 of the Code provides Nothing companytained in the Code shall, in the absence of a specific provision to the companytrary, affect any special or local law for the time being in force, or any special jurisdiction or power companyferred, or any special form of procedure prescribed, by any other law for the time being in force. The saving provisions in sec. 5 provides that the Code, as such, will number affect I any special law, II any local law, III any special jurisdiction or power and lV any special form of procedure, prescribed by any other law for the time being in force. The Army Act, 1950 is a special enactment applicable to persons companyered under sec. 2 thereof. It also provides special procedure for companyrt martial. The learned companynsel for the petitioner however, submitted that since the petitioners are lodged in the civil prisons, they are entitled to the benefit of sec. 428 of the Code just like any other companyvict in the jail. We are unable to agree with this companytention. The petitioners may be entitled to remissions as provided in the jail manuals, but number set off under sec. 428 of the Code. They have been lodged in the civil prisons by an order made under sec. 169 1 of the Army Act. Sec. 169 I provides Whenever any sentence of imprisonment is passed under this Act by a companyrt-martial or whenever any sentence of death or transportation is companymuted to imprisonment, the companyfirming officer or in case of a summary companyrt-martial the officer holding the companyrt or such other officer as may be prescribed, shall, save as otherwise provided in sub-sections 3 and 4 , direct either that the sentence shall be carried out by companyfinement in a military prison or that it shall be carried out by companyfinement in a civil prison. xx xx xx xx xx xx xx xx xx xx xx xx Section 167 of the Army Act also provides that the term of sentence imposed by a companyrt-martial shall be reckoned to companymence on the day on which the original proceedings were signed by the presiding officer or by the officer holding the companyrt martial as the case may be. In view of these provisions in the Army Act which is a special enactment companytaining elaborate procedure for trial of the persons companyered thereunder, we do number think that the petitioners companyld call into aid the provisions of sec. 428 of the Code. In Bhagwan Singh v. The Asstt. Superintendent, 119771 79 Punjab Law Journal 19, the Pun jab Haryana High Court said that the benefit of sec. 428 can only be claimed by a person whose case is investigated, inquired into or tried under the Code of Criminal Procedure and it cannot be claimed A by a person companyvicted and sentenced under the Army Act by a companyrtmartial. The Delhi High Court in F.R. Jesuratnam v. Chief of Air Staff, 19761 Crl. L.J. 65 and the Madras High Court in P.P. Chandrasekaran v. Government of India, 1977 Crl. L.J. 677 have also taken the similar view. But the Kerala High Court in Subramonian v. O.C. Armoured Static Workshop, 1979 Crl. J. 617 has taken a companytrary view. In our opinion, the Kerala High Court cannot be said to have laid down the law companyrectly.

PATTANAIK, J. Leave granted. This appeal by grant of special leave is directed against the judgment dated 13th of November, 1995 of the Allahabad High Court in Civil Miscellaneous Petition No. 557 of 1987. Hari Ram Gupta husband of the present appellant, had filed the writ petition seeking a mandamus from the companyrt to the appropriate authorities to give him the benefits of the Uttar Pradesh Palika Centralised Service Retirement benefit Rules, 1981 hereinafter referred to as the Rules . But said Hari Ram Gupta had retired from service on superannuation in the year 1980. He, however, claimed that he would be entitled to pension under the Rules as the Rules are intended to apply retrospectively and at any rate following the principle of the Judgement of this Court in D.S. Nakara and other vs. Union of India, 1983 1 SCC 305, the companyrt should grant him the relief. The High Court by the impugned judgment came to hold that the Rules have numberretrospective operation, and therefore, the applicant was number entitled to claim pension under the Rules. Soon after the judgment of the Allahabad High Court, the husband of the appellant having died, the widow filed the special leave application out of which this appeal arises. The sole question for companysideration is whether the Rules can be said to have any retrospective application and are applicable to those employees belonging to the Palika Centralised Service, who retired from service prior to the companying into force of the Rules. It is number disputed that before the Rules came into operation there was numberrules providing pension for the employees of the centralised services. The learned companynsel for the appellant strenuously companytended that a companyjoint reading of sub-rules 2 and 3 of Rule 3 would make it crystal clear that the Rule is applicable even to those employees who have retired from service on the date the Rules came into operation, provided they exercise their option in accordance with the Rules within the stipulated period of 90 days from the enforcement of the Rules and they deposit the amount finally withdrawn from Palikas companytribution and bonus deposited in his Provident Fund Account into the pension fund established under Part VI of the Rules. According to the learned companynsel unless such an interpretation is given, the provision of sub-rule 3 would become otiose inasmuch as an officer is entitled to finally withdraw the amount from the Provident Fund on super annuation and number while he companytinues to be in service. The learned companynsel further companytended that under identical circumstances an employee of a school under New Delhi Municipal Committee had approached this Court in the case of Shakuntala Mehrishi, New Delhi vs. New Delhi Municipal Committee and others, 1991 3 SCC 521 and this Court had granted the retiral benefits to the employee. The aforesaid decision, companytends the learned companynsel for the appellant, should apply with full force to the case in hand. The learned companynsel further urged that the Rules in question providing for pension, if is held to apply to only those employees who retired subsequent to the companying into force of the Rules and number to those to have already retired, then it would be violative of the law laid down by this Court in the case of D.S. Nakara supra inasmuch as pension paid is number a bounty number an ex-gratia payment for past services rendered and is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would number be left in lurch. Learned companynsel for the respondent, on the other hand companytended that there is numberambiguity in the Rules and numberhere the Rules indicate that it would apply retrospectively on certain companyditions being fulfilled. He further companytended that under the provisions of the Regulation for payment of Provident Fund made by Nagar Palika, Jhansi an employee is entitled to finally withdraw after rendering 25 years of service or when such employee has less than 8 years of service to attain the age of superannuation, and therefore, it is number companyrect that final withdrawal is permissible only on the date of superannuation. In that view of the matter the expression final withdrawal in sub-rule 3 of Rule 3 of the Rules cannot be interpreted to mean that the Rules have a retrospective operation. The learned companynsel also urged that the rules determining the service companyditions of an employee under the service jurisprudence is usually prospective in nature unless there is anything in the Rules which indicate the legislative intent of making the rule retrospective or the rule is expressly made retrospective. Since neither of these companyditions are satisfied in the case in hand, the rules must be held to be prospective, and therefore, would number govern the case of those who retired prior to the companying into force of the Rules. on the question of applicability of the decision of this Court in Shakuntala Mehrishi case, the learned companynsel companytended that the ratio laid down in that case has numberapplication and the said decision is numberguidance for deciding the question as to whether the Rules in the present case has any retrospective operation. On the question of the applicability of the ratio in D.S. Nakaras case, the learned companynsel for the respondent urged that the appellant has number challenged validity of the Rules and on the other hand seek relief on the basis of the said Rule, therefore, the Rule cannot be struck down. He further companytended that the decision of this Court in D.S. Nakara has been watered down by this Court in several subsequent cases and it is the settled position number that the employees retiring on a particular date would be governed by the benefits of the rules then existing and cannot companyplain of if at a subsequent stage certain other rules companyfer some additional benefits. Thus, judged the principles enunciated by this Court in nakara have numberapplication to the case in hand. In view of the rival submission, the first question that arises for companysideration is whether the Rules can be said to have any retrospective operation? We have examined the Rules carefully and there is numberexpress provision in the Rules giving it retrospective operation. The question then arises as to whether from any of the provisions companytained in the Rules is it possible to infer that the Rules have been given retrospective operation. The argument of the learned companynsel appearing for the appellant in this companytext is based upon the language used in sub-rule 2 and sub-rule 3 of Rule 3. For better appreciation of the point in issue sub-rules 1 , 2 and 3 of Rule 3 are quoted hereinbelow in extenso- Application of the rules.- 1 These rules shall apply companypulsorily to all those officers who were appointed on or after July 9, 1966 under clause 1 of Rule 21 of the Uttar Pradesh Palika Centralised Services Rules, 1966 and would become permanent on any post in the Centralised Services. The officers who were finally absorbed on any post in Centralised Services under clause 2 of Rule 6 of the Uttar Pradesh Palika Centralised Services Rules, 1966 will have an option to elect whether they would be governed by the existing Pension Provident Fund Rules of the Palika as hitherto or would like to governed by those rules. This option shall be exercised within ninety days from the enforcement of these rules and the option once exercised shall be final. If an officer opting these rules has finally withdrawn the amounts of Palikas companytribution and bonus deposited in his Provident Fund Account, the same shall have to be deposited by him into the pension fund established under Part VI of these Rules along with interest at the rates fixed from time to time by the Reserve Bank of India. Sub-rule 1 of Rule 3 clearly indicates that Rule should apply to those officers who were appointed on or after July 1966 under clause 1 of Rule 21 of the Centralised Services Rules of 1966 and would become permanent in the Centralised services. This sub-rule obviously has numberapplication. The earned companynsel appearing for the appellant, however, urged that if sub-rules 2 and 3 of Rule 3 are read together it unequivocally indicates that the Rules do apply to those persons who have already retired. In as much as sub-rule 3 gives an option to officers to exercise option to be governed by the Rules and if they have finally withdrawn the amounts of Palikas companytribution and bonus deposited in Provident Fund Account the same will have to deposited into the pension fund. It is companytended by the learned companynsel that an employee can finally withdraw the amount from the Provident Fund only on his superannuation and number at any earlier point of time while he companytinues to be in service and, therefore, this sub-rule clearly indicates that the Rules apply to those who have already superannuated on the date the Rule came into force. But on examining the provisions companytained in Pension and General Provident Fund Regulations or Rules which governed the case of employees of Palika, more particularly the provisions of Clause 5 - C 1 we find that final withdrawals under the Regulation is permitted in the case of Municipal servants who have either rendered 25 years service or have less than 8 years to attain the age of superannuation. The purpose for which such final withdrawal is permissible is enumerated in other sub-clauses of said Clause 5 - C. In this view of the matter the argument of the earned companynsel appearing for the appellant that final withdrawal is permissible only on the date of superannuation cannot be sustained and the expression final withdrawal as envisaged under sub-rule 3 of Rule 3 would mean those final withdrawals made by an employee while companytinuing in service for the purposes mentioned in sub-clause 2 of Clause 5-C. Consequently, the argument that a companybined reading of sub-clause 3 and subclause 2 of Rule 3 indicates that the Rules have retrospective application is devoid of any force and the same accordingly stands rejected. The next question that arises for companysideration is whether the judgment of this Court in Shakuntala Mehrishi vs. New Delhi Municipal Committee and other 1990 3 SCC 521, any way helps the appellant in getting the relief sought for? In the aforesaid case the teacher of a recompanynised aided school opted for pension and gratuity within stipulated period in prescribed proforma as desired by statutory numberification. But numberwithstanding his superannuation he did number receive the benefits as the modalities about companytribution towards pension fund and approval of Government of India had number been obtained. This Court held that payments to the employee cannot be deferred on such grounds over which the employee has number companytrol and accordingly directed that the necessary payments be made. we fail to understand how the aforesaid decision is in any way applicable to the case in hand for deciding the question as to whether the Rules providing for pension would retrospectively apply to the case of an employee who had already retired before the Rules came into operation. In our companysidered opinion the aforesaid decision of this Court does number help the appellant in any manner. The only other question that survives for our companysideration is whether the ratio in Nakaras case will assist the appellant in getting the relief sought for? In S. Nakara and others vs. Union of India 1983 1 SCC, 305 the question for companysideration before this Court was whether on the basis of date of retirement the retirees can be classified into different groups and thereupon make provision granting some benefits to one group denying the others? In the aforesaid case the provisions for pension was applicable to all retirees and, therefore, pensioners form a class as a whole. But when Liberalised Pension Scheme was introduced the said Scheme was made applicable to a group of pensioners and number to all and therefore, it was held by this Court that pensioners form a class as a whole and cannot be micro-classified by an arbitrary, unprincipled and unreasonable eligibility criteria. it is to be numbered that the aforesaid judgment was companysidered by this Court In the subsequent Constitution Bench judgment of Krishna Kumar vs. Union of India 1991 4 SCC, 207 wherein the decision of Nakara supra was explained and it was held that the pension retirees and provident fund retirees do number form one homogeneous class on the other hand the Rules governing the provident fund and its companytribution are entirely different from the Rules governing pension and, therefore, it would number be reasonable to argue what is applicable to the pension retirees must also equally be applicable to Provident Fund retirees must also equally be applicable to Provident Fund retirees. It was further held in the aforesaid case that the rights of each individual retiree finally crystallised on his retirement where after numbercontinuing obligation remained in case of those who are governed by Provident Fund Rules whereas in case of Pension retirees the obligation companytinues till the death of the employee. This Court categorically held that Nakara supra cannot be an authority for the decision in Krishna Kumar supra . In Union of India vs. P.N. Menon 1994 4 SCC 68 a similar question came up for companysideration and distinguishing Nakara and following Krishna Kumar and other similar cases the Court held that whenever the Government or an authority, which can be held to be a State within the meaning of Article 12 of the Constitution, frames a scheme for persons who have superannuated from service, due to many companystraints, it is number always possible to extend the same benefits to one and all, irrespective of the dates of superannuation. As such any revised scheme in respect of post-retirement benefits, if implemented with a cut-off date, which can be held to be reasonable and rational in the light of Article 14 of the Constitution, need number be held to be invalid. Whenever a revision takes place, a cut-off date becomes imperative because the benefit has to be allowed within the financial resources available with the Government. When the Army personnel claimed the same pension irrespective of their date of retirement this Court in the Constitution Bench case of the Indian ex-services League vs. Union of India, 1991 2 SCC 104, the Court companysidered the grievance of ex-servicemen who had laid the claim on the basis of nakara supra but ultimately negatived the same and followed Krishna Kumar supra .

KATJU, MARKANDEY J. Leave granted. This appeal has been filed against the impugned judgment dated 23.7.2004 of the Punjab and Haryana High Court in ITA Nos. 8-9 of 2003. Heard learned companynsel for the parties and perused the record. The appellant-assessee is a companypany engaged in the business of civil companystruction. It claimed for deduction under Section 32AB of the Income Tax Act, 1961, which was raised as an additional ground before the Income Tax Appellate Tribunal, Chandigarh hereinafter referred to as the Tribunal . In paragraphs 19-21 of its order dated 20.6.2002 the Tribunal has rejected the claim of the assessee on two grounds. The first ground is that the assessee was engaged in the business of civil companystruction and was number carrying on any manufacturing activity. Hence, the claim was number allowable in view of the judgment of this Court in CIT v. N.C. Budharaja Co., 1993 204 ITR 412. The second ground for rejecting the claim was that the claim was number based on facts on record. The deduction under Section 32AB was number automatic and was subject to various companyditions laid down in that provision. Whether the assessee fulfilled those companyditions for claiming the deduction or number required examination into facts which were number on record. Even before the Tribunal the assessee had number placed any material to show how the assessee is entitled to such deduction. Hence the Tribunal rejected the assessees claim. By the impugned judgment the High Court has agreed with the view of the Tribunal. We have also carefully companysidered the matter and we are fully in agreement with the Tribunal as well as the High Court.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 652 of 1982. From the Judgment and Order dated 22.8.1980 of the Patna High Court in Second Appeal No. 125 of 1977 R . Ashok K. Sen and D.P. Mukherjee for the Appellants. H. Hingorani, Ms. Kapila Hingorani and R.P. Wadhwani for the Respondents. The Judgment of the Court was delivered by THOMMEN, J. This civil appeal by special leave is brought by the defendants against the judgment of the Patna High Court, Ranchi Bench, in Second Appeal No. 125 of 1977 dismissing in limine their appeal against the judgment of the learned District Judge in Title Appeal No. 2/5 of 1977 whereby the decree for eviction granted by the learned Munsiff in Title Suit No. 3 of 1975 was in part affirmed. The plaintiffs respondents instituted the suit against the defendants appellants for eviction under Section 11 1 d of the Bihar Buildings Lease, Rent and Eviction Control Act, 1947 on the ground that the defendants were in arrears of rent for the months of February 1974 and May 1974 to August 1974. The defendants companytested the suit on various grounds. Their main defence was that they were number in arrears of rent as alleged by the plaintiffs. Decreeing the suit, the learned Munsiff found that rent for the months of February 1974 and May 1974 to August 1974 had number been paid by the defendants. This decree was affirmed by the learned District Judge in part, that is, in respect of the alleged arrears for the months of May and June 1974, and number for any other period. The finding of the First Appellate Court was affirmed by the High Court by dismissing the defendants appeal in limine. The question which arises for companysideration is whether the companyrts below were justified in companying to-the companyclusion, which they did, and whether the impugned judgment of the High Court is liable to be interfered with in the present appeal brought by special leave under Article 136 of the Constitution. Whether or number rent for the two months in question had been duly paid by the defendants is a question of fact, and with a finding of such fact, this Court does number ordinarily interfere in proceedings under Article 136 of the Constitution, particularly when all the companyrts below reached the same companyclusion. But where the finding of fact is based on numberevidence or opposed to the totality of evidence and companytrary to the rational companyclusion to which the state of evidence must reasonably lead, then this Court will in the exercise of its discretion intervene to prevent miscarriage of justice. The suit was instituted by the widow of Rameswarlal Sultania. The plaint was verified by Rameswarlal Sultanias nephew on behalf of the plaintiffs, and he deposed as PW-4. Neither the first plaintiff, the widow number the other two plaintiffs, her children testified in support of the plaint allegations. The nephew, PW-4 frankly admitted in the box that he had numberpersonal knowledge of the facts alleged in the plaint. He did number know if the defendants were in arrears of rent or whether his aunt, the first plaintiffs or anybody else had demanded rent from the defendants. None of the witnesses on the side of the plaintiffs had any personal knowledge of the facts alleged by the plaintiffs in regard to the arrears of rent. PW-4 is, amongst the plaintiffs witnesses, the only person who speaks to this fact, but admittedly speaks without any claim of personal knowledge. In the circumstances, there is numberreliable oral evidence on the side of the plaintiffs to support the plaint allegation regarding the arrears of rent. Nor is there any documentary evidence in support of their case. On the other hand, the defendants categorically stated that they had paid the rent for the two months in question to the first plaintiff. At that time her husband was alive, but he was in numbercondition, on account of poor health, to give a receipt for the rents paid. The defendants, in view of their personal relationship with him, did number insist upon a receipt. DW-8 is one of the defendants. He categorically stated that for the months of May and June 1974 he paid the rent in June 1974 by handing over the amount to the first plaintiffs daughter when she went to his shop to companylect the rent. Since she was a minor he accompanied her to her house to make sure that the amount was received by her mother, the first plaintiff. His evidence on the point is in the following words It is incorrect to say that I have number paid the rent for May-June 1974. In June, the daughter of Rameshwar Babu had companye to demand Rs.200 towards the rent for May-June 1974 and I had given the Illegible at that time. I had demanded the receipt, but he was unwell and as such did number give it. Rameshwar Babu was number living in his senses in June, 74. His brain was number in proper companydition. In June, 74 I gave Rs.200 to his wife plaintiff , after taking the same to his house. Even subsequently my brother had gone to pay the rent to the plaintiff, Gita Devi for two-three times. This evidence is supported by DW-7. He is the Accountant of the first defendant-firm of which defendants Nos. 2 and 3 who are brothers are partners. Referring to these partners, and a neighbour by name Nandi DW-6 , this is what he says In June 74, the defendants, Bibhuti and Prahalad Chandra Dutta had given Rs.200 two hundred rupees to the daughter of Rameshwar Babu. Nandi Babu, Bibhuti Babu and I were present in the shop, at that time. This money was paid towards the rent of the house. Nandi DW-6 also speaks on this point The defendants always used to pay the rent in my presence In June, 1974, they had given Rs.200 as rent to the younger daughter of Ramesh Babu in my presence. I told them that as she was a small girl, they should also accompany her. Then Bibhuti Bhusan Dutta reached the girl. The evidence of these three defence witnesses is that the rent for the months of May and June. 1974 had been duly paid in June 1974 in the sum of Rs.200 by the second defendant DW-8 to the landlord, Rameswarlal Sultania by handing over the amount to his minor daughter who went to the defendants shop to companylect the same and by accompanying her to her house to see to the safe delivery of the same to the first plaintiff, her mother who obviously received it on behalf of her husband, the landlord. The evidence seems to be clear on the point and we see numbercontradiction in this. The companyrts below did number appreciate that this much evidence was staring in the face, and there was total absence of evidence on the point on the side of the plantiffs to companytradict the defence evidence. The plaint allegation regarding arrears was number spoken to on the plaintiffs side by any person having personal knowledge. The plaintiffs made numberattempt to let in any reliable evidence on the point. The evidence of PW-4 who admittedly had numberpersonal knowledge on the point is numberevidence at all. On the other hand, the evidence of DW-8, supported by the evidence of his Accountant DW-7 and his neighbour DW-6 is categoric and clear. The learned District Judge disbelieved this evidence on the assumption that DW-6 companytradicted himself when he stated that the amount was paid to the daughter and also to her monther. In his written statement he stated that the amount had been paid to the landlord, Rameswarlal Sultania. In the light of what we have stated above, we see numbercontradiction in these statements. The amount was, in our view, rightly stated to have been paid to Rameswarlal Sultania when it was handed over to the daughter to be paid over to her monther, viz., the first plaintiff who was reasonably understood to have received it for and on behalf of her husband. If the statement is true, there is numbercontradiction in it and it is categoric and clear. We see numberreason to suspect that it is number true for there is numberevidence on the side of the plantiffs to the companytrary. As stated earlier, there is numberevidence at all on the side of the plaintiffs that rents were in arrears. In the absence of any reason to disbelieve the clear and categoric testimony of the defence witnesses on the point, we see numberreason to suspect that the rents remained in arrears. In the circumstances, we are of the view that the companyrts came to the companyclusion, as they did, without any evidence whatsoever to support it and companytrary to the available evidence let in by the defence. Their companyclusion was, therefore, perverse, irrational and totally unjustified. For this reason, we set aside the impugned decree and judgment of the companyrts below.

B.Majmudar, J. Leave granted in Special Leave Petition No.16476 of 1993. Both these appeals, on grant of special leave under Article 136 of the Constitution of India, are moved by the State of Bihar, which is companymon appellant number1 in both these appeals. In Civil Appeal No.9072 of 1996 the Secretary, Department of Personnel and Administrative Reforms, Government of Bihar is appellant number2, while in the companypanion appeal arising from the Special Leave Petition No. 16476 of 1993, the other companytesting appellant is the Special Executive Officer-cum-Deputy Secretary, Bihar Public Service Commission, Patna. In both these appeals, a companymon question of law arises for companysideration, namely, whether the Legislature of the appellant State of Bihar was companypetent to enact the Bihar Reservation of Vacancies in Posts and Services for Scheduled Castes, Scheduled Tribes and Other Backward Classes Act, 1991 hereinafter referred to as the Act , in so far as Section 4 thereof sought to impose reservation for direct recruitment to the posts in the Judiciary of the State, subordinate to the High Court of Patna, being the posts of District Judges as well as the posts in the lower judiciary at the grass-root level, governed by the provisions of the Bihar Judicial Service Recruitment Rules, 1955. Civil Appeal No.9072 of 1996 deals with the question of reservation in the posts in District Judiciary while the companypanion appeal deals with the posts in Subordinate Judiciary at grass-root level under the District Courts companycerned. By the impugned judgment in Civil Appeal No.9072 of 1996, a Division Bench of the High Court has struck down the terms of the advertisement, reserving amongst others, 27 out of 54 posts of District Judges to be filled in by direct recruitment, being ultra vires the relevant provisions of Article 233 of the Constitution of India. It has also struck down the provisions made in the impugned advertisement fixing up the upper age limit at 45 years for eligibility for appointment by way of direct recruitment to these posts. That part of the companytroversy numberlonger survives between the parties in the present proceedings and, therefore, we need number dilate on the same. So far as the companypanion appeal is companycerned, the main judgment was rendered by the Division Bench of the High Court holding that the aforesaid Act as well as the earlier Ordinance which preceded the same in so far as they sought to apply the scheme of reservation of posts for governing recruitment of persons other than the District Judges to the Judicial Service of the State were ultra vires Article 234 of the Constitution. As the companytroversies involved in these appeals have to be resolved in the light of the relevant Constitutional scheme, by an earlier Order dated 13th May, 1994 of this Court, they were directed to be listed before a Constitution Bench. Subsequently in view of the statement made by learned companynsel that the matter companyld be disposed of by a Bench of three Judges, the matters were directed to be placed before a three-Judge Bench by an order dated 12th May, 1995. Thereafter a three-Judge Bench of this Court by its order dated 6th November, 1997 felt that the matters raised questions regarding interpretation of provisions of Articles 233, 234 and 309 of the Constitution and hence it would be appropriate that they are heard by the Constitution Bench. That is how these matters have been placed before this Constitution Bench under the directions of Honble the Chief Justice of India. Before we proceed to deal with the rival companytentions of learned companynsel for the respective parties in support of their cases, it becomes necessary to numbere a few introductory facts. Facts leading to Civil Appeal No.9072 of 1996 This Court, by its order dated 13th October, 1993 in Civil Appeal Nos. 4561-62 of 1992 in State of Bihar vs. Madan Mohan Singh Ors., had quashed the earlier advertisement for filling up the vacancies of Additional District Judges in the District Judicial Service of Bihar and directed the appellant State to fill up the same through a fresh advertisement. In the mean time, it appears that as the High Court had number agreed to the suggestion of the State authorities to have reservation in the posts of District Judges for reserved category of candidates and had insisted on proceeding with the recruitment as per the 1951 Rules, styled as the Bihar Superior Judicial Service Rules, 1951, which were framed by the Governor of Bihar in exercise of the powers companyferred by the proviso to Article 309 read with Article 233 of the Constitution of India and which Rules did number provide for any such reservation, the Governor of Bihar issued the impugned Ordinance which subsequently became the impugned Act by which the scheme of 50 reservations for reserved category of candidates was directed to be applied while effecting direct recruitment to the posts companycerned. On 16th November, 1993, the appellant State requested the High Court to effect recruitment to the vacancies in the cadre of District Judges on the basis of the reservation provided by the Ordinance which subsequently was followed by the Act. By its companymunication dated 16th December, 1993, the High Court of Patna insisted that recruitment to District Judiciary can be made on the basis of 1951 Rules only. By a companymunication dated 5th April, 1994, the High Court informed the authorities companycerned that numberreservation of posts in the district cadre companyld be implemented and while making appointments from the members of the Bar for direct recruitment, preference may be given to the Scheduled Caste for short SC and Scheduled Tribe for short ST candidates who are of equal merit with general category candidates. On 7th April, 1994, the High Court intimated that there are 54 vacancies in the district cadre which had to be filled up. The State Government, however, issued the impugned advertisement of 16th June, 1994 by which 50 of the available vacancies of District Judges were sought to be filled in from reserved category of candidates and the remaining 50 posts thereof, i.e. 27, were to be filled in by the open category candidates. It is this advertisement which was challenged by the writ petitioners before the High Court. The High Court, by the impugned judgment as numbered earlier, has allowed the writ petition and quashed the companydition of reservation sought to be imposed by the impugned advertisement. Facts leading to Civil Appeal arising out of S.L.P. C No.16476 of 1993 By a proposal dated 30th January, 1991, the appellant-State companysulted the Bihar Public Service Commission regarding making provision for reservation of posts in the Subordinate Judicial Service for reserved category of candidates. The said proposal of the appellant-State was also placed for companysideration of the High Court but it was number accepted by the High Court by its companymunication dated 16th April, 1991, and that resulted in the impugned Ordinances, being 33 and 34 of 1991, which were followed by the impugned Act. The original writ petitioners, who had already appeared at the companypetitive examination in April, 1991 moved the High Court challenging the Ordinances and the latter Act in so far as the scheme of 50 reservation of posts for direct recruitment at grass root level of the State Judiciary was companycerned. As numbered earlier, the aforesaid writ petition was allowed and relief was granted against the appellants. Rival companytentions Dr.Dhavan, learned senior companynsel appearing for the appellant-State in Civil Appeal No.9072 of 1996, at the outset, companytended that the impugned Act, especially Section 4 thereof, is wrongly held by the High Court to be number applicable to Judicial Services of the State. He companytended that Judicial Services especially, the Subordinate Judiciary companyprising of district cadre and the cadre of Judges below the same were part and parcel of the Public Services of the State and, therefore, on the express terminology of the Act, Section 4 thereof, became directly applicable to the recruitment of judicial officers both at the district level as well as at the level of Subordinate Judiciary below it. Alternatively, it was submitted that even assuming that the Act did number apply on its own language, even then, it has to be held that the State Legislature was perfectly companypetent to enact provisions regarding reservation of posts in Judicial Services of the State in the light of Article 16 4 of the Constitution of India read with the relevant entry 41 in list II of Seventh Schedule to Constitution. He also posed the moot question whether the State Legislature has independent power to enact any provisions regarding reservation in companynection with appointment in Judiciary when such reservation, after companysultation with the High Court, companyld number get reflected in the relevant Rules framed by the Governor under Article 309 read with Articles 233 and 234 of the Constitution of India. In support of these companytentions, relevant Constitutional scheme was pressed in service. It was submitted that on a companyrect interpretation of Article 309 the State Legislature as well as the Governor had ample jurisdiction to make provision for reservation in companynection with Judicial Service. Under the said Article, paramount power in this companynection has been vested in the State Legislature. He then referred to Articles 233 and 234 in companynection with Subordinate Judiciary and placed emphasis on Article 236 b defining the expression Judicial Service as a service companysisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge. He submitted that all that the opening part of Article 309 provides is to the effect that, while making appointments to the cadre of District Judges or Subordinate Judges of lower judiciary, as per Articles 233 and 234, companysultation of the Governor with the High Court is necessary. That apart, from these latter two Articles there is numberfetter on the power of the State Legislature to enact appropriate legislation in this companynection under Article 309. He invited our attention to List II entry 41 of the Seventh Schedule for submitting that the State Legislature is companypetent to make enactment in companynection with appointments to Public Services and Judicial Service is also a Public Service of the State. He further submitted that the first part of Article 309 does number attract Article 234 so far as State Legislatures paramount powers are companycerned. Dr.Dhavan, relying upon the second part of Article 235, stated that despite the full companytrol of District Judiciary being vested in the High Court, the right of appeal and other companyditions of service of Members of Subordinate Judiciary as laid down by any companypetent law which would include legislative enactment as well as statutory rules are clearly saved pro tanto at least at the second level, after appointments are made at the grass-root level in the Judiciary and when the further question arises as to how the companyditions of service of such appointees are to be governed and companytrolled. Dr.Dhavan, therefore, submitted that it is number as if the power of State Legislature to enact appropriate provisions is totally excluded because of the enactment of Articles 233 to 235. Dr.Dhavan tried to highlight his submission by companytending that if the power of State Legislature to enact appropriate provisions regarding appointments of Members of Subordinate Judiciary is held totally excluded by Article 234, and to that extent Article 309 be held out of picture, then the following anomalies may arise in the working of these provisions. Judicial Service as defined by Article 236 b will get truncated in its operation. The second anomaly pointed out by Dr.Dhavan was that power to legislate, which must be given full effect, would get excluded without there being any express exclusion. The third anomaly pointed out by Dr.Dhavan was that though under the Constitution, the scheme of separation of power is devised to separate the Executive from the Judiciary, this scheme does number extend to oust the legislative power. If it is held that Article 234 ousts the legislative power for making suitable enactments on the topic companyered therein then, to that extent, an anomalous position would arise number companytemplated by the Constitutional scheme. Dr.Dhavan next companytended that on the express language of Article 234, only the rule making power of the Governor is fettered but number the legislative power of the State. Dr.Dhavan next submitted that if legislative interference in the process of selection and appointment of direct recruits to Subordinate Judiciary as per Article 234 is companypletely ruled out that being the first level or the grass-root level of the Subordinate Judiciary then another patently anomalous situation would arise. That under Article 235 second part such statutory provisions to be enacted by companypetent Legislature are clearly companytemplated so far as companyditions of service of judicial officers are companycerned and then when we turn to the apex level, namely, of the district cadre manned by District Judges there is numberexpress ouster of legislative interference under Article Thus the plenary power of the Legislature would be operative qua the highest posts in the hierarchy of District Judiciary while for the grass-root level it will be ruled out. Dr.Dhavan then invited our attention to the decisions in M.M.Gupta Ors. etc. vs. State of Jammu Kashmir Ors., 1982 3 SCC 412 paras 28 to 32 as well as in State of Kerala vs. Smt.A.Lakshmikutty Ors., 1986 4 SCC 632 at page 647 in para 22 to highlight the scope of the term companysultation which should be effective companysultation. He then invited our attention to the impugned Act especially Sections 2 c , 4 and 16 having overriding effect over all other rules in force and submitted that such establishments under the State would include even Judiciary as laid down by the definition of Section 2 n . He, however, fairly companyceded that neither in the Rules of 1951 regarding appointments to district cadre as per Article 233 number under the Rules of 1955 for recruitment to cadre of Subordinate Judiciary as laid down by Article 234, there is any provision for 50 reservation of posts and, therefore, he submitted that this entire case depends upon companypetence of the impugned Act which had to be enacted because there was a stalemate on this subject as the High Court did number agree with the suggestion of the Governor for suitable amendment to these Rules under Articles 233 and 234. He ultimately submitted, that the reasoning of the High Court that the Act does number companyer Judicial Service is patently erroneous and that this Act is number bound by any fetters of Articles 233 or 234 and is an exercise of paramount legislative power companyferred on the State authorities under Article 309 first part read with entry 41 List II of Seventh Schedule of the Constitution. He, therefore, submitted that the Act must be permitted to have full play. In support of his companytentions Dr.Dhavan placed strong reliance on the decision of a Constitution Bench of this Court in the case of B.S.Yadav Ors. v. State of Haryana Ors. etc. 1981 1 SCR 1024. Dr.Dhavan, therefore, submitted that the impugned judgment of the High Court, being companytrary to the Constitutional scheme, requires to be set aside. Shri Dwivedi, learned senior companynsel appearing for the appellant-State in the companypanion Civil Appeal submitted that though the High Court in para 9 at page 11 has referred to a three-Judge Bench judgment of this Court in All India Judges Association Ors. etc. vs. Union of India Ors. etc., AIR 1993 SC 2493, giving special status to judicial officers, the said observations cannot whittle down the power of reservation available to the State authorities under Article 16 4 and that question was number examined in the said case as it did number fall for companysideration. He submitted that a companyjoint reading of Sections 2 c and 2 n clearly shows that the Act is meant to apply also to Judicial Service of the Bihar State. He next companytended that question of reservation of posts in a cadre which is already established by the State authorities in exercise of their powers under Article 309 is number companyered by Articles 233 to 235. That question is companyered by Article 16 sub-article 4 and numbere of the aforesaid provisions curtail that enabling power available to the State authorities. In this companynection, he also invited our attention to entry 11A of List III of Seventh Schedule to the Constitution dealing with companystitution and organisation of all companyrts, except the Supreme Court and the High Courts, and submitted that scheme of reservation of posts would remain sustained under these provisions and also as per the Legislature enacted under entry 41 of List II. He submitted that once the companyrt is companystituted, it would companyprise of all cadres of judicial officers to man the companyrts and the formation of cadres and companystitution of the companyrts also permitted provisions for creation of reserved posts to companyprise in such cadres. This exercise has numberhing to do with the question of appointment on available vacancies in posts borne on established cadres in Judicial Service. According to Shri Dwivedi, the establishment of cadres and creation of posts in the cadres is a stage prior to the one companytemplated by Articles 233 to 235 dealing with the subsequent question as to how actual appointments of deserving candidates are to be effected to fill up vacancies in already created posts in the companycerned cadres. In short, the submission of Shri Dwivedi was that question of creation of posts to be filled up by reserved candidates or open category candidates was in the domain of the State authorities especially, the Legislature which can enact appropriate statutory provisions in discharge of companystitutional obligation under Article 16 4 read with entry 41 of List II of Seventh Schedule as well as entry 11 A of List III and once the general category posts as well as the reserved category posts are made available to the High Court for being filled in, thereafter, it will be for the High Court to proceed according to Articles 233 and 234 of the Constitution of India and in that exercise the State Legislature will have numbersay. He, therefore, companytended that the High Court in the impugned judgment was patently in error in taking the view that statutory provision of reservation of posts for reserved category candidates in the Subordinate Judiciary under its companytrol was in any way ultra vires or illegal. Shri Dwivedi, in support of his companytentions, gave written submissions whereby, amongst others, he invited our attention to Article 320 sub-article 4 which excludes reservation expressly from the powers and functions of the Public Service Commission. He submitted that Article 234 requires the Governor for framing rules to companysult the High Court as well as the Public Service Commission and when it cannot make any provision regarding reservation under Article 16 sub-article 4 , by analogy, companysultation of the High Court also under the very same Article 234 would number permit the High Court to deal with Article 16 subarticle 4 . In other words, question of reservation is outside the ken of Article 234. Shri Dwivedi, also in support of his companytentions, placed reliance on various decisions of this Court to which we will make a reference at an appropriate stage. Shri Dwivedi next companytended that even under the Bihar Judicial Service Recruitment Rules, 1955 hereinafter referred to as the 1955 Rules especially, Rules 19 20 reservation of posts in lower judiciary is companytemplated that these Rules are made by the Governor in companysultation with the High Court and the Public Service Commission. Shri Dwivedi next companytended that, in any case, the High Court in the impugned judgement was number called upon to companysider the further question whether there cannot be any reservation to the posts in district cadre and the stand of the High Court that if candidates of equal merit are there, then preference can be given to SC and ST candidates, was companyrect or number. That the only question before the High Court was whether the impugned Act companyld validly apply to provision of reservation of posts in the District Judiciary. He, therefore, submitted that the observations in para 24 of the impugned judgment, in any case, are required to be set aside as redundant and uncalled for. It was accordingly submitted by Shri Dwivedi that the appeal deserves to be allowed. Learned companynsel appearing for the Intervenors in A.No.20, on the other hand, tried to support the case of reservation for SC and ST candidates relying on Rule 20 of 1955 Rules so far as the recruitment to Subordinate Judiciary was companycerned. Learned companynsel for the intervenors in I.A.No.10 representing Other Backward Class for short OBC candidates adopted the arguments of Dr.Dhavan and Shri Dwivedi in support of the impugned Act and the scheme of reservation thereunder. Learned companynsel appearing for the Intervenors as per I.A.No.11 tried to support reservation for SC and ST candidates under the Act and even dehors it. While intervenor in I.A.Nos. 4 and 9 representing general category candidates supported the decision of the High Court. The main reply to the companytentions of learned companynsel for the appellants emanated from learned senior companynsel Shri Thakur appearing for the High Court of Patna. He submitted, in the first instance, that the impugned Act is number wide enough to apply to Judiciary. He tried to support this companytention on the basis of reasoning which appealed to the High Court in the impugned judgment. He alternatively companytended that Section 4 of the impugned Act, if applied to judicial officers, will ex facie become invalid being repugnant to the companyposite scheme of Articles 233 to 235. To highlight this alternative companytention, he companytended as under 1. Article 309 has numberapplication to Subordinate Judiciary. It gets excluded by the triology of Articles 233 to 235 which represent a companyplete Code amongst themselves. 2. Once Article 309 is excluded, legislative power under Article 309 first part also gets excluded qua the field companyered by the aforesaid triology of the Articles. 3. These three Articles themselves are the only source of power to make rules or law as seen from second part of Article 235 as well as Articles 233 and 234. 4. Rules made under Article 234 by the Governor after following the procedure laid down thereunder would relate to service also as companytemplated by Article 233. 5. Second part of Article 235 only can permit suitable legislation by the State authorities governing the companyditions of service of already recruited judicial officers whether at the grass-root level or even at the apex level of the District Judiciary in exercise of its legislative power under Article 309 read with entry 41 of List II of the Seventh Schedule. In order to support his companytention that Article 309 does number apply to recruitment to the Judicial Service, he invited our attention to Article 187 dealing with Secretarial Staff of Legislature, Article 148 dealing with Service regulations of the Comptroller Auditor- General of India, Article 146 dealing with Service under the Supreme Court, Article 229 2 dealing with Services under the High Court and Article 324 5 dealing with Service regulations of Election Commission and submitted that in all these Articles, special provisions are made for enacting appropriate rules and even statutes companyering the topics mentioned therein. But so far as Article 234 is companycerned, it is number subject to the law of Legislature as found in the aforesaid other Articles. To a pointed query by us Shri Thakur, learned senior companynsel for the High Court of Patna, after taking appropriate instructions, submitted that in principle the High Court of Patna has already accepted reservation of 14 posts for SC and 10 for ST candidates for being recruited at the lowest level of the District Judiciary. Shri Thakur also placed reliance on decisions of the various High Courts and of this Court to which we will make a reference at an appropriate stage. Shri Thakur, further submitted that Section 4 of the impugned Act, in express terms, seeks to regulate appointments to the existing posts in the cadre of District Judiciary as well as in the Subordinate Judiciary. To that extent it directly impinges upon the provisions of Articles 233 and 234, which amongst them, represent a companyplete Code in companynection with appointment to Subordinate Judiciary. He further submitted that it is fallacious to companytend that reserving posts for a given class of candidates would be at a stage prior to the question of recruitment and appointment as companytemplated by Articles 233 and 234 of the Constitution. That once posts are already created for being filled up in a given cadre the authority of the State in this companynection would companye to an end. For creation of such cadres and sanction of posts appropriate legislation can be enacted or even the Governor, in exercise of his independent power under Article 309, can promulgate Rules. But once posts are already created in a Judicial Cadre and when the question of filling up vacancies in the existing sanctioned posts in district cadre or subordinate cadre arises, direct recruitment has to be done on the recommendation of the High Court as laid down by Article 233 2 and recruitment in the vacancies in the cadre of Subordinate Judiciary has to be done as per the 1955 Rules framed by the Governor in companysultation with the High Court under Article 234 and in numberother manner. That for regulating this process there is numberquestion of any legislative interference by exercise of any paramount power. He, therefore, companytended that the view of the High Court in the impugned judgment is well sustained on the Constitutional scheme and calls for numberinterference. He, however, fairly submitted that so far as the 1955 Rules are companycerned, by the companysent of the High Court the rule making power has been exercised by the Governor permitting the reservation for SC and ST candidates in recruitment governed by the said Rules and which recruitment has to be resorted to for filling up vacancies in posts of Subordinate Judges and the Munsiffs. He also fairly stated that the High Court is companysistently following the provision of reservation for direct recruitment in these categories of posts to the extent of 14 being reserved for SC and 10 being reserved for ST candidates but numberhing more. So far as the impugned Act is companycerned, it goes far beyond this permitted scheme of reservation under the relevant Rules of 1955 and seeks to impose a blanket reservation of 50 for SC, ST and OBC candidates. That such a statutory provision flies in the face of Articles 233 and 234 of the Constitution of India and cannot be sustained and accordingly rightly been voided by the High Court. Points for determination In the light of the aforesaid rival companytentions, the following points arise for our determination 1. Whether the impugned Act of 1991 on its express language companyers Judicial Service of the Bihar State 2. If the answer to point number1 is in the affirmative, whether the provisions of the impugned Act, especially, Section 4 thereof in its application to Subordinate Judiciary would be ultra vires Articles 233 and 234 of the Constitution of India and hence cannot be sustained 3. In the alternative, whether the aforesaid provisions of the Act are required to be read down by holding that Section 4 of the Act will number apply to direct recruitment to the posts companyprised in the Bihar Superior Judicial Service as specified in the Schedule to the Bihar Superior Judicial Service Rules, 1951 as well as to Bihar Judicial Service governed by the Bihar Judicial Service Recruitment Rules, 1955, companyprising of the posts of Subordinate Judges and Munsiffs under the District Judiciary and 4. What final order? Before we deal with the aforesaid points for determination, it will be necessary to keep in view the relevant provisions of the Constitution which have a direct impact on the resolution of the companytroversy projected by these points. Constitutional Scheme Part XIV deals with Services under the Union and the States. Chapter I companyprising of Articles 308 to 313 deals with Services, while Chapter II companyering Articles 315 to 323 deals with Public Service Commissions. Article 308 defines the expression State, which shall number include the State of Jammu Kashmir. However, the relevant Article for our present purpose is Article 309 which reads as under 309. Recruitment and companyditions of service of persons serving the Union or a State Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and companyditions of service of persons appointed, to public services and posts in companynection with the affairs of the Union or of any State Provided that it shall be companypetent for the President or such person as he may direct in the case of services and posts in companynection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in companynection with the affairs of the State, to make rules regulating the recruitment, and the companyditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the Provisions of any such Act. A mere look at this Article shows that it is expressly made subject to other provisions of the Constitution and subject to that, an appropriate Legislature or Governor can regulate the recruitment and companyditions of service of persons appointed to public services and posts in companynection with the affairs of the State companycerned. Proviso to that Article permits the Governor of the State to fill up the gap, if there is numbersuch statutory provision governing the aforesaid topics. For that purpose, the Governor may make rules regulating the recruitment and the companyditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the companypetent Legislature which may intervene and enact appropriate statutory provisions for the same. The manner of recruitment to the services companytemplated by Article 309 is provided by Chapter II dealing with the Public Service Commissions. Article 320 deals with Functions of Public Service Commissions enjoining them to companyduct examinations for appointment to the services of the Union and the services of the State respectively. That naturally has a direct linkage with the types of Services companytemplated by Article 309. Special Scheme for Judicial Services in Part VI Chapters V VI It is pertinent to numbere that independently of general provisions of Article 309, the Constitution has made special provisions for certain Services. Even if they may be part of public services, still separate Constitutional schemes are envisaged for regulating recruitment and companyditions of services of officers governed by such Services. Let us have a glance at such specially dealt with Services. Part VI of the Constitution dealing with the States, separately deals with the executive in Chapter II, the State Legislature under Chapter III and thereafter Chapter IV dealing with the Legislative Powers of the Governor and then follows Chapter V dealing with the High Courts in the States and Chapter VI dealing with the Subordinate Courts. It is in Chapter VI dealing with the Subordinate Courts that we find the provision made for appointment of District Judges under Article 233, recruitment of persons other than the District Judges to the Judicial Services under Article 234 and also Control of the High Court over the Subordinate Courts as laid down by Article 235. Article 236 deals with the topic of Interpretation and amongst others, defines by subarticle b the expression judicial service to mean a service companysisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge. It becomes, therefore, obvious that the framers of the Constitution separately dealt with Judicial Services of the State and made exclusive provisions regarding recruitment to the posts of District Judges and other civil judicial posts inferior to the posts of the District Judge. Thus these provisions found entirely in a different part of the Constitution stand on their own and quite independent of part XIV dealing with Services in general under the State. Therefore, Article 309, which, on its express terms, is made subject to other provisions of the Constitution, does get circumscribed to the extent to which from its general field of operation is carved out a separate and exclusive field for operation by the relevant provisions of Articles dealing with Subordinate Judiciary as found in Chapter VI of Part VI of the Constitution to which we will make further reference at an appropriate stage in the later part of this judgment. We may also refer at this stage to Article 146 dealing with Services under the Supreme Court which lays down the procedure for appointment of officers and servants of the Supreme Court and provides under sub-article 2 thereof that subject to the provisions of any law made by Parliament, the companyditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by rules made by the Chief Justice of India or by some other Judge or officer of the companyrt authorised by the Chief Justice of India to make rules for the purpose. Similar provision is found in Article 229 dealing with recruitment of officers and servants and the expenses of the High Courts. Sub-article 2 there of lays down the rule making power of the Chief Justice of the Court companycerned or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose subject to the provisions of any law made by any Legislature of the State. Article 148 deals with Comptroller and Auditor-General of India. Sub-article 5 thereof deals with rule making power of the President regarding the companyditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor-General subject to any provisions of the Constitution or any law made by the Parliament in this companynection. Article 98 deals with Secretariat of Parliament. Subarticle 3 thereof provides Until provision is made by Parliament under clause 2 , the President may, after companysultation with the Speaker of the House of the People or the Chairman of the Council of States, as the case may be, make rules regulating the recruitment, and the companyditions of service of persons appointed, to the secretarial staff of the House of the People or the Council of States, and any rules so made shall have effect subject to the provisions of any law made under the said clause. Similarly, for Secretariat of State Legislature, we find Article 187 which deals with separate secretariat staff for the House or each House of the Legislature of a State. Sub-article 3 thereof runs parallel to sub-article 3 of Article 98 and provides that until provision is made by the Legislature of the State under clause 2 , the Governor may, after companysultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be, make rules regulating the recruitment, and the companyditions of service of persons appointed, to the secretarial staff of the Assembly or the Council and any rules so made shall have effect subject to the provisions of any law made under the said clause. Article 324 is found in Part XV which deals with Superintendence, direction and companytrol of elections to be vested in an Election Commission. Sub-article 5 thereof provides that 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. The aforesaid Constitutional provisions clearly indicate that independently of general provisions regarding Services as mentioned in Part XIV, different types of Services companytemplated by the Constitution in other parts have their own procedural schemes for recruitment and regulation of companyditions of these Services and therefore, Article 309 found in Part XIV necessarily will have to be read subject to these special provisions regarding recruitment and companyditions of services of diverse types governed by the relevant different Constitutional provisions as indicated herein above. The other Article to which reference is to be made is Article 16 sub-article 4 of the Constitution which enables the State to make provision for reservation of appointments or posts in favour of any backward class of citizens which, in its opinion, is number adequately represented in the services under the State. This provision has to be read with Article 335 which deals with Claims of Scheduled Castes and Scheduled Tribes to services and posts and lays down that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into companysideration, companysistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in companynection with the affairs of the Union or of a State. Though on the express language of Article 335, the Other Backward Classes are number included, it is number well settled by a decision of the nine-member Constitution Bench of this Court in the case of Indra Sawhney Ors. vs. Union of India Ors., 1992 Suppl. SCC 217 that even the Other Backward Classes are also companyered by the thrust of Article 335 of the Constitution of India and that view is reaffirmed and is followed by a recent decision of the three-Judge Bench of this Court in IAs. Nos.35-36 in WP C No.930 of 1990 etc. in Indra Sawhney vs. Union of India Ors. reported in 2000 1 SCC 168, wherein Jagannadha Rao, J., speaking on behalf of the three-Judge Bench highlighted this very position. Thus, even if under Article 16 4 the State proposes to provide reservation on the ground of inadequate representation of certain backward classes in Services, if it is companysidered by the appropriate authority that such reservation will adversely affect the efficiency of the administration, then exercise under Article 16 4 is number permissible. This is the Constitutional limitation on the exercise of the enabling power of reservation under Article 16 4 . As we shall presently show, question whether in the Subordinate Judiciary companyered by Articles 233 and 234 if reservation is provided, then the efficiency of the judicial administration will be affected, is a matter within the exclusive purview of the High Court which shall have to be companysulted. Such companysultation is a Constitutional obligation before any Rules are made for reservation. Before parting with the resume of relevant Constitutional provisions, we may also refer to Article 50 which lays down the Directive Principles of State Policy that the State shall take steps to separate the judiciary from the executive in the public services of the State. Legislative powers under Articles 245, 246 are subject to other provisions, including Articles 233, 234 and 235 We may also refer to Part XI of the companystitution, especially Chapter I dealing with Legislative Relations laying down the Distribution of Legislative Powers. Article 245 deals with Extent of Laws made by Parliament and by the Legislatures of States. Sub-article 1 thereof provides that Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. Thus, the legislative powers of Parliament and the Legislature of the State are expressly made subject to other provisions of the Constitution. Similarly, Article 246 laying down the category of subject-matter of laws made by Parliament and by the Legislatures of States enumerated in Lists I, II and III of the Seventh Schedule will also have to be read subject to Article 245. Meaning thereby, if other provisions of the Constitution cut down or exclude the Legislative powers of Parliament or State Legislature qua given topics, then those other provisions have to be given their full play and effect. Articles 233, 234 and 235 So far as recruitment to District and Subordinate Judiciary is companycerned, we have therefore, to turn to the twin Articles found in Chapter VI of Part VI dealing with Subordinate Courts. The relevant two articles read as under 233. Appointment of Judges Appointment of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in companysultation with the High Court exercising jurisdiction in relation to such State. A person number already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for number less than seven years an advocate or a pleader and is recommended by the High Court for appointment. Recruitment of persons other than district judges to the judicial service Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after companysultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Emphasis supplied Article 233 dealing with appointment of District Judges, on its own express terminology projects a companyplete scheme regarding the appointment of persons to District Judiciary as District Judges. In the present appeals, we are companycerned with direct recruitment to the cadre of District Judges and hence sub-article 2 of Articles 233 becomes relevant. Apart from laying down the eligibility criterion for candidates to be appointed from the Bar as direct District Judges the said provision is further hedged by the companydition that only those recommended by the High Court for such appointment companyld be appointed by the Governor of the State. Similarly, for recruitment of judicial officers other than District Judges to the Judicial Service at lower level, companyplete scheme is provided by Article 234 wherein the Governor of the State can make such appointments in accordance with the rules framed by him after companysulting with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. So far as the Public Service Commission is companycerned, as seen from Article 320, the procedure for recruitment to the advertised posts to be followed by it is earmarked therein. But the role of the Public Service Commission springs into action after the posts in a cadre are required to be filled in by direct recruitment and for that purpose due intimation is given to the Commission by the State authorities. They have obviously to act in companysultation with the High Court so far as recruitment to posts in Subordinate Judiciary is companycerned. Of companyrse, it will be for the High Court to decide how many vacancies in the cadre of District Judges and Subordinate Judges are required to be filled in by direct recruitment so far as the District Judiciary is companycerned and necessarily only by direct recruitment so far as Subordinate Judiciary is companycerned. This prime role of the High Court becomes clearly discernible from Article 235 which deals with the companytrol of the High Court over the Subordinate Judiciary and also of Subordinate Courts. The said Article provides as under 235. Control over subordinate companyrts. The companytrol over district companyrts and companyrts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but numberhing in this article shall be companystrued as taking away from any such person any right of appeal which he may have under the law regulating the companyditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the companyditions of his service prescribed under such law. It is in the light of the aforesaid relevant scheme of the Constitution that we number proceed to tackle the main companytroversy posed for our companysideration. Point No.1 So far as this point is companycerned, it is strictly number necessary for us to go into the reason or the cause which led the appellant-State to resort to the exercise of legislative power for enacting the impugned Act. The question is whether the Act, as enacted, by its express language, can apply to judicial service of the State or number. When we turn to this Act, we find that it is enacted to provide for adequate representation of SC, ST and OBC candidates in Posts and Services under the State. The State is defined by Section 2 n to include the Government, the Legislature and the Judiciary of the State of Bihar and all local or other authorities within the State or under the companytrol of the State Government. Consequently, it cannot be said that the Act, as framed, did number seek to companyer the Judiciary of the State of Bihar. The main provision of the Act, which is on the anvil of companytroversy, is Section 4 which reads as under 4. Reservation for direct recruitment All appointments to services and posts in an establishment which are to be filled by direct recruitment shall be regulated in the following manner, namely - 1 The available vacancies shall be filled up a from open merit category 50 b from reserved category 50 2 The vacancies from different categories of reserved candidates from amongst the 50 reserved category shall, subject to other provisions of this Act, be as follows - a Scheduled Castes 14 b Scheduled Tribes 10 c Extremely Backward Class 12 d Backward Class 8 e Economically Backward Woman 3 f Economically Backward 3 ----- Total 50 ---- Provided that the State Government may, by numberification in the official Gazette, fix different percentage for different districts in accordance with the percentage of population of Scheduled Castes Scheduled Tribes and Other backward classes in such districts Provided further that in case of promotion, reservation shall be made only for Scheduled Castes Scheduled Tribes in the same proportion as provided in this section. 3 A reserved category candidate who is selected on the basis of his merit shall be companynted against 50 vacancies of open merit category and number against the reserved category vacancies. 4 Notwithstanding anything companytained to the companytrary in this Act or in any other law or rules for the time being in force, or in any judgement or decree of the Court, the provision of sub-section 3 shall apply to all such cases in which all formalities of selection have been companypleted before the 1st November 1990, but the appointment letters have number been issued. 5 The vacancies reserved for the Scheduled Castes Scheduled Tribes and other Backward Classes shall number be filled up by candidates number belonging to Scheduled Castes Scheduled Tribes and Other Backward Classes except as otherwise provided in this Act. 6 a In case of number-availability of suitable candidates from the Scheduled Castes and Scheduled Tribes for appointment and promotion in vacancies reserved for them, the vacancies shall companytinue to be reserved for three recruitment years and if suitable candidates are number available even in the third year, the vacancies shall be exchanged between the Scheduled Castes and Scheduled Tribes and the vacancies so filled by exchange shall be treated as reserved for the candidates for that particular companymunity who are actually appointed. b In case of number-availability of suitable candidates from the Extremely Backward Classes and Backward Classes the vacancies so reserved shall companytinue to be reserved for them for three recruitment years and if suitable candidates are number available even in the third year also, the vacancies shall be filled by exchange between the candidates from the extremely Backward and Backward Classes and the vacancies so filled by Exchange shall be treated as reserved for the candidates of that particular companymunity who are actually appointed. c In case of number-availability of suitable candidates for the vacancies reserved for the economically backward women the vacancies shall be filled first by the candidates from the Scheduled Castes, then by the candidates from the Scheduled Tribes, then by the candidates from extremely backward class, and then by the candidates from backward class. The vacancies so filled in the transaction shall be treated as reserved for the candidates of that particular companymunity who are actually appointed. d If in any recruitment year, the number of candidates of Scheduled Castes Scheduled Tribes, extremely Backward and Backward Classes are less than the number of vacancies reserved for them even after exchange formula the remaining backlog vacancies may be filled by general candidates after dereserving them but the vacancies so dereserved shall be carried forward for three recruitment years. If the required number of candidates of Scheduled Castes, Scheduled Tribes and Extremely Backward and Backward Classes are number available for filling up the reserved vacancies, fresh advertisement may be made only for the candidates belonging to the members of Scheduled Castes, Scheduled Tribes and Extremely Backward and Backward Classes, as the case may be, to fill the backlog vacancies only. A bare reading of the said provision shows that all appointments to services and posts in any establishment by way of direct recruitment require to be subjected to reservation so that all available vacancies have to be filled in from open category candidates only up to 50 and from reserved category up to remaining 50. It cannot be disputed that posts of District Judges and Judges subordinate to the District Judiciary are also posts in Judicial Service. Question is whether the phrase posts in any establishment governs such judicial posts. We have, therefore, to turn to the definition of the term establishment as found in Section 2 c of the Act. The relevant provision thereof lays down that establishment means any Office or department of the State companycerned with the appointments to public services and posts in companynection with the affairs of the State. On a companyjoint reading of the definition of State under Section 2 n and the definition establishment under Section 2 c , the following statutory scheme emerges. Any office or establishment of the Judiciary of the State of Bihar companycerned with the appointments to public services and posts in companynection with affairs of the Judiciary of the State of Bihar would fall within the sweep of the term establishment. Once that companyclusion emerges from the scheme of the Act, it becomes obvious that all appointments to services and posts in any office or department of the Judiciary of the State of Bihar would be companyered by the sweep of Section 4. On the aforesaid scheme of the Act, the High Court in the impugned judgment, has taken the view that the operation of Section 4 for offices or departments of the Judiciary of the State of Bihar would companyer only the ministerial staff of the District Courts and companyrts subordinate thereto and would number include Presiding Officers and therefore, Section 4 will number govern the direct recruitment to the posts of Presiding Officers of the District Judiciary as well as of Subordinate Judiciary. It is difficult to appreciate this line of reasoning on the express language of the relevant provisions of Section 4 read with the definition provisions. It becomes obvious that the term any office of the Judiciary of the State of Bihar would naturally include number only ministerial staff but also officers, including Presiding Officers of companyrts companyprised in the Judiciary of the State. Once that companyclusion is reached on the express language of the relevant provisions of the Act, it cannot be held that the thrust of Section 4 would number apply to govern reservation for direct recruitment to the posts of Presiding Officers in the District Courts as well as companyrts subordinate thereto, as all of them will form part and parcel of the Judiciary of the State of Bihar and will have to be treated as holders of offices in the State Judiciary. Consequently, it is number possible to agree with the companytention of learned senior companynsel Shri Thakur for the High Court that on the express provisions of the Act, Section 4 cannot apply to govern recruitment to posts in Subordinate Judiciary. The first point for determination, therefore, has to be answered in the affirmative in favour of the appellants and against the respondents. Point No.2 Since it is held that Section 4 of the impugned Act, on its express terms, companyers direct recruitment to posts in the cadre of District Judiciary as well as to Subordinate Judiciary in the State of Bihar, moot question arises as to whether Section 4 can be sustained on the touchstone of the relevant Constitutional scheme governing the recruitment and appointments to these posts. For companying to the grip of this problem, we have to keep in view the salient features of the Constitution emanating from the Directive Principles of State Policy as laid down by Article 50 which underscores the felt need of separation of the Judiciary from the Executive. For achieving that purpose, the Constitution has made separate provisions regarding the recruitment and appointment to the cadre of District Judges as well as the Subordinate Judiciary as found in Chapter VI of Part VI of the Constitution and, as seen earlier, these provisions are companyspicuously number included in part XIV dealing in general with Services under the Union and the States. Article 309 itself, which is of general nature, dealing with regulation of Recruitment and companyditions of Service of persons serving in the Union or a State is expressly made subject to other provisions of the Constitution. The first part of Article 235 itself lays down that it is for the High Court to companytrol the District Courts and Courts subordinate thereto and in exercise of that companytrol vesting in the High Court, regulation of posting and promotions and granting of leave to persons belonging to the Judicial Services has to be done by the High Court. It is, of companyrse, true that in the second part of Article 235 judicial officers already appointed to the Service have their statutory right of appeal and the right to be dealt with regarding other service companyditions as laid down by any other law for the time being in force, expressly protected. But these provisions of the second part only enable the Governor under Article 309, in the absence of any statutory enactment made by the companypetent Legislature for regulating the companyditions of service of judicial officers who are already recruited and have entered and become part and parcel of the State service, to promulgate appropriate rules on the subject. But so far as the entry points are companycerned, namely, recruitment and appointment to the posts of Presiding Officers of the companyrts subordinate to the High Courts, only Articles 233 and 234 would govern the field. Article 234 lays down the procedure and the method of recruiting judicial officers at grass-root level being Subordinate Judges and Munsiffs as laid down by the 1955 Rules. These Rules are also framed by the Governor of Bihar in exercise of his powers under Article 234 obviously after the companysultation of the High Court and the Public Service Commission. Rules regarding the procedure of selection to be followed by the State Public Service Commission as found in Rules 4 to 17 deal with the method to be adopted by the Public Service Commission while selecting candidates who offer their candidature for the posts advertised to be filled in. These Rules obviously require companysultation with the Commission on the procedural aspect of selection process. But so far as the High Court is companycerned, its companysultation becomes pivotal and relevant by the thrust of Article 233 itself as it is the High Court which has to companytrol the candidates, who ultimately on getting selected, have to act as Judges at the lowest level of the Judiciary and whose posting, promotion and grant of leave and other judicial companytrol would vest only in the High Court, as per Article 235 first part, once they enter the judicial service at grass-root level. Thus companysultation of the Governor with the High Court under Article 234 is entirely of a different type as companypared to his companysultation with the Public Service Commission about procedural aspect of selection. So far as direct recruitment to the posts of District Judges is companycerned, Article 233 sub-article 2 leaves numberroom for doubt that unless the candidate is recommended by the High Court, the Governor cannot appoint him as a District Judge. Thus Articles 233 and 234, amongst them, represent a well-knit and companyplete scheme regulating the appointments at the apex level of District Judiciary, namely, District Judges on the one hand and Subordinate Judges at the grass-root level of Judiciary subordinate to the district companyrt. Thus Subordinate Judiciary represents a pyramidical structure. At base level i.e. grassroot level are the Munsiffs and Magistrates whose recruitment is governed by Article 234. That is the first level of the Judiciary. The second level represents already recruited judicial officers at grass-root level, whose working is companytrolled by the High Court under Article 235 first part. At the top of this pyramid are the posts of District Judges. Their recruitment to these posts is governed by Article 233. It is the third and the apex level of Subordinate Judiciary. It has also to be kept in view that neither Article 233 number Article 234 companytains any provision of being subject to any enactment by appropriate Legislature as we find in Articles 98, 146, 148, 187, 229 2 and 324 5 . These latter Articles companytain provisions regarding the rule making power of the companycerned authorities subject to the provisions of the law made by the Parliament or Legislature. Such a provision is companyspicuously absent in Articles 233 and 234 of the Constitution of India. Therefore, it is number possible to agree with the companytention of learned companynsel for the appellant-State that these Articles only deal with the rule making power of the Governor, but do number touch the legislative power of the companypetent Legislature. It has to be kept in view that once the Constitution provides a companyplete Code for regulating recruitment and appointment to District Judiciary and to Subordinate Judiciary, it gets insulated from the interference of any other outside agency. We have to keep in view the scheme of the Constitution and its basic framework that the Executive has to be separated from the Judiciary. Hence, the general sweep of Article 309 has to be read subject to this companyplete Code regarding appointment of District Judges and Judges in the Subordinate Judiciary. In this companynection, we have also to keep in view Article 245 which, in its express terms, is made subject to other provisions of the Constitution which would OBinclude Articles 233 and 234. Consequently, as these twin Articles companyer the entire field regarding recruitment and appointment of District Judges and Judges of the Subordinate Judiciary at base level pro tanto the otherwise paramount legislative power of the State Legislature to operate on this field clearly gets excluded by the Constitutional scheme itself. Thus both Articles 309 and 245 will have to be read subject to Articles 233 and 234 as provided in the former Articles themselves. It is true, as submitted by learned senior companynsel Shri Dwivedi for the appellant-State that under Article 16 4 the State is enabled to provide for reservations in Services. But so far as Judicial Service is companycerned, such reservation can be made by the Governor, in exercise of his rule making power only after companysultation with the High Court. The enactment of any statutory provision dehors companysultation with the High Court for regulating the recruitment to District Judiciary and to Subordinate Judiciary will clearly fly in the face of the companyplete scheme of recruitment and appointment to Subordinate Judiciary and the exclusive field earmarked in companynection with such appointments by Articles 233 and 234. It is number as if that the High Courts being companystitutional functionaries may be oblivious of the need for a scheme of reservation if necessary in appropriate cases by resorting to the enabling provision under Article 16 4 . The High Courts can get companysulted by the Governor for framing appropriate rules regarding reservation for governing recruitment under Articles 233 and 234. But so long as it is number done, the Legislature cannot, by an indirect method, companypletely bypassing the High Court and exercising its legislative power, circumvent and cut across the very scheme of recruitment and appointment to District Judiciary as envisaged by the makers of the Constitution. Such an exercise, apart from being totally forbidden by the Constitutional scheme, will also fall foul on the companycept relating to separation of powers between the legislature, the executive and the judiciary as well as the fundamental companycept of an independent judiciary. Both these companycepts are number elevated to the level of basic structure of the Constitution and are the very heart of the Constitutional scheme. In the case of His Holiness Kesavananda Bharati Sripadagalvaru vs. State of Kerala Anr. etc.etc., 1973 4 SCC 225, a twelve-member Constitution Bench of this Court had occasion to companysider this question regarding the basic structure of the Constitution which, according to the Court, companyld number be tinkered with by the Parliament in exercise of its amending power under Article 368 of the Constitution. Sikri, CJ., in para 247 of the Report referred with approval the decision of the Judicial Committee in Liyanges case, 1967 1 AC 259 for culling out the implied limitations on the amending power of the companypetent Legislature like the Parliament of Ceylon with which that case was companycerned. The relevant observations are found in paras 253 to 255 of the Report at pages 357 and 358, which read as under The case, however, furnishes another instance where implied limitations were inferred. After referring to the provisions dealing with judicature and the Judges, the Board observed These provisions manifest an intention to secure in the judiciary a freedom from political, legislative and executive companytrol. They are wholly appropriate in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature. The Constitutions silence as to the vesting of judicial power is companysistent with its remaining, where it had lain for more than a century, in the hands of the judicature. It is number companysistent with any intention that henceforth it should pass to or be shared by, the executive or the legislature. The Judicial Committee was of the view that there exists a separate power in the judicature which under the Constitution as it stands cannot be usurped or infringed by the executive or the legislature. The Judicial Committee cut down the plain words of Section 29 1 thus Section 29 1 of the Constitution says.- Subject to the provisions of this Order Parliament shall have power to make laws for the peace, order and good government of the Island. These words have habitually been companystrued in their fullest scope. Section 29 4 provides that Parliament may amend the Constitution on a two-thirds majority with a certificate of the Speaker. Their Lordships however cannot read the words of Section 29 1 as entitling Parliament to pass legislation which usurps the judicial power of the Judicature-e.g., by passing an Act of attainder against some person or instructing a judge to bring in a verdict of guilty against someone who is being tried-if in law such usurpation would otherwise be companytrary to the Constitution. p.289 In companyclusion the Judicial Committee held that there was interference with the functions of the judiciary and it was number only the likely but the intended effect of the impugned enactments, and that was fatal to their validity. The ultimate companyclusion to which Chief Justice Sikri reached are found in paras 292 to 294 at page 366 of the Report which read as under 292. The learned Attorney-General said that every provision of the Constitution is essential otherwise it would number have been put in the Constitution. This is true. But this does number place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the companystitution remains the same. The basic structure may be said to companysist of the following features Supremacy of the Constitution 2 Republican and Democratic form of Government 3 Secular character of the Constitution 4 Separation of powers between the legislature, the executive and the judiciary 5 Federal character of the Constitution. The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed. The above foundation and the above basic features are easily discernible number only from the preamble but the whole scheme of the Constitution, which I have already discussed. The other learned Judges companystituting the Constitution Bench had numberhing inconsistent to say in this companynection. Thus separation of powers between the legislature, the executive and the judiciary is the basic feature of the Constitution. It has also to be kept in view that judicial independence is the very essence and basic structure of the Constitution. We may also usefully refer to the latest decision of the Constitution Bench of this Court in Registrar Admn. , High Court of Orissa, Cuttack etc. vs. Sisir Kanta Satapathy Dead by LRs Anr. etc., 1999 7 SCC page 725, wherein K.Venkataswami, J., speaking for the Constitution Bench, made the following pertinent observations in the very first two paras regarding Articles 233 to 235 of the Constitution of India An independent judiciary is one of the basic features of the Constitution of the Republic. Indian Constitution has zealously guarded independence of judiciary. Independence of judiciary is doubtless a basic structure of the Constitution but the said companycept of independence has to be companyfined within the four companyners of the Constitution and cannot go beyond the Constitution. The Constitution Bench in the aforesaid decision also relied upon the observations of this Court in All India Judges Association Ors.etc. supra , wherein on the topic of regulating the service companyditions of Judiciary as permitted by Article 235 read with Article 309, it had been observed as under .the mere fact that Article 309 gives power to the executive and the legislature to prescribe the service companyditions of the judiciary does number mean that the judiciary should have numbersay in the matter. It would be against the spirit of the Constitution to deny any role to the judiciary in that behalf, for theoretically it would number be impossible for the executive or the legislature to turn and twist the tail of the judiciary by using the said power. Such a companysequence would be against one of the seminal mandates of the Constitution, namely, to maintain the independence of the judiciary. In view of this settled legal position, therefore, even while operating in the permissible field of regulating other companyditions of service of already recruited judicial officers by exercising power under Article 309, the companycerned authorities have to keep in view the opinion of the High Court of the companycerned State and the same cannot be whisked away. In order to fructify this Constitutional intention of preserving the independence of Judiciary and for fructifying this basic requirement, the process of recruitment and appointment to the District Judiciary with which we are companycerned in the present case, is insulated from outside legislative interference by the Constitutional makers by enacting a companyplete Code for that purpose, as laid down by Articles 233 and 234. Consultation with the High Court is, therefore, an inevitable essential feature of the exercise companytemplated under these two Articles. If any outside independent interference was envisaged by them, numberhing prevented the founding fathers from making Articles 233 and 234 subject to the law enacted by the Legislature of States or Parliament as was done in the case of other Articles, as seen earlier. In the case of State of Kerala vs. Smt.A.Lakshmikutty Ors., 1986 4 SCC 632, a two member Bench of this Court, speaking through Sen,J., placing reliance on the Constitution Bench judgment of this Court in Chandra Mohan vs. State of U.P., 1967 1 SCR 77, made the following pertinent observations in paras 22 to 25 at pages 647-648, which read as under 22. The heart of the matter is that companysultation between the State Government and the High Court in the matter of appointment of District Judges under Article 233 1 of the Constitution must be real, full and effective. To make the companysultation effective, there has to be an interchange of views between the High Court and the State Government, so that any departure from the advice of the High Court would be explained to the High Court by the State Government. If the State Government were simply to give lip service to the principle of companysultation and depart from the advice of the High Court in making judicial appointments without referring back to the High Court the difficulties which prevent the government from accepting its advice, the companysultation would number be effective and any appointment of a person as a District Judge by direct recruitment from the bar or by promotion from the judicial services under Article 233 1 would be invalid. Unless the State Government were to companyvey to the High Court the difficulties which prevent the government from accepting its advice by referring back the matter the companysultation would number be effective. Indubitably, the power of appointment of persons to be District Judges companyferred on the Governor, meaning the State Government, under Article 233 1 in companysultation with the High Court is an executive function. It has been settled by a long line of decisions of this Court starting from Chandra Mohan v. State of U.P. to M.M.Gupta v. State of J K that the power of the State Government is number absolute and unfettered but is hedged in with companyditions. The exercise of the power of the Governor under Article 233 1 in the matter of appointment of District Judges is companyditioned by companysultation with the exercise of the power that the power can only be exercised in companysultation with the High Court. Appointment of persons to be, and the posting and promotion of, District Judges in any State, shall be made by the Governor of the State under Article 233 1 in companysultation with the High Court exercising jurisdiction in relation to such State. Sub-Article 2 thereof provides that a person number already in the service of the Union or of the State shall only be eligible to be appointed as a District Judge if he has been for number less than seven years an advocate or a pleader and is recommended by the High Court for appointment. It is therefore obvious that eligibility of appointment of persons to be District Judges by direct recruitment from amongst the members of the bar depends entirely on the recommendation of the High Court. The State Government has numberpower to appoint any person as a District Judge except from the panel of names forwarded by the High Court. As stated, the decisions starting from Chandra Mohan v. State of U.P. have established the principle as a rule of law, that companysultation between the Governor and the High Court in the matter of appointment of District Judges under Article 233 1 must number be empty formality but real, full and effective. In Chandra Mohan v. State of U.P. Subba Rao, J. speaking for a unanimous companyrt observed The exercise of the power of appointment by the Governor is companyditioned by his companysultation with the High Court, that is to say, he can only appoint a person to the post of District Judge in companysultation with the High Court. The object of companysultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the Judicial Service or to the bar, to be appointed as a District Judge. Therefore, a duty is enjoined on the Governor to make the appointment in companysultation with a body which is the appropriate authority to give advice to him.These provisions indicate that the duty to companysult is so integrated with the exercise of the power that the power can be exercised only in companysultation with the person or persons designated therein. To the same effect are the decisions in Chandramouleshwar Prasad v. Patna High Court, 1969 3 SCC 56, High Court of P H v. State of Haryana, 1975 1 SCC 843, A.Panduranga Rao v. State of A.P., 1975 4 SCC 709, and M.M. Gupta v. State of J K, 1982 3 SCC 412. It becomes, therefore, obvious that numberrecruitment to the post of a District Judge can be made by the Governor without recommendation from the High Court. Similarly, appointments to Subordinate Judiciary at grass-root level also cannot be made by the Governor save and except according to the rules framed by him in companysultation with the High Court and the Public Service Commission. Any statutory provision bypassing companysultation with the High Court and laying down a statutory fiat as is tried to be done by enactment of Section 4 by the Bihar Legislature has got to be held to be in direct companyflict with the companyplete Code regarding recruitment and appointment to the posts of District Judiciary and Subordinate Judiciary as permitted and envisaged by Articles 233 and 234 of the Constitution. Impugned Section 4, therefore, cannot operate in the clearly earmarked and forbidden field for the State Legislature so far as the topic of recruitment to District Judiciary and Subordinate Judiciary is companycerned. That field is carved out and taken out from the operation of the general sweep of Article 309. It is, of companyrse, true as laid down by a catena of decisions of this Court, that topics of companystitution of companyrts and services, laying down of rules regarding the companyditions of service other than those expressly placed within the jurisdiction of the High Court by Articles 233 and 235, providing for age of superannuation or other retirement benefits to judicial officers, fixing pay scales, diversification of cadres may form part of general recruitment and companyditions of services falling within the spheres of Governors rule making power under Article 309 read with second part of Article 235 or may even be made subject matter of legislation by companypetent Legislature in exercise of its legislative powers under entry 41 of List II or for that matter entry 11A of List III of the Seventh Schedule. But save and except this permitted field, the State Legislature cannot enter upon the forbidden field expressly reserved for companysultation with the High Court by the thrust of Articles 233 and 234 so far as the initial entry point of recruitment to judicial service at grass root level or at the apex level of the District Judiciary is companycerned. A three-Judge Bench of this Court in the case of A.Panduranga Rao vs. State of Andhra Pradesh Ors., AIR 1975 SC 1922, speaking through Untwalia, J., companysidered the question whether any one can be appointed by the Governor as a District Judge without being recommended by the High Court. Relying on the Constitution Bench decision of this Court in Chandra Mohans case supra in para 7 of the Report, observations were made as under There are two sources of recruitment, namely, i service of the Union or the State, and ii members of the Bar. The said Judges from the first source are appointed in companysultation with the High Court and those from the second source are appointed on the recommendation of the High Court. And thereafter following pertinent observations were made in para 8, which read as under A candidate for direct recruitment from the Bar does number become eligible for appointment without the recommendation of the High Court. He becomes eligible only on such recommendation under clause 2 of Article 233. The High Court in the judgment under appeal felt some difficulty in appreciating the meaning of the word recommended. But the literal meaning given in the Concise Oxford Dictionary is quite simple and apposite. It means suggest as fit for employment. In case of appointment from the Bar it is number open to the Government to choose a candidate for appointment until and unless his name is recommended by the High Court. It is, therefore, obvious that the State Legislature has numberrole to play while companytrolling appointments of District Judges under Article 233 or appointment of Civil Judges to Subordinate Judiciary at grass-root level under the District Judiciary and it is only the Governor who is entrusted with the said task which he has to undertake after companysultation with the High Court and by framing appropriate rules for recruitment to Judiciary at grass-root level as enjoined by Article 234 and can only act on recommendation by the High Court for direct recruitment from the Bar for being appointed as District Judges as laid down by Article 233 sub-article 2 . There is numberthird method or third authority which can intervene in the process or can have its say, whether legislative authority or executive authority, as the case may be, independently of the companyplete scheme of such recruitment as envisaged by the aforesaid two Articles. It is, therefore, difficult to appreciate the companytention of learned senior companynsel for the appellant-State that paramount legislative power of the State Legislature stands untouched by the scheme of the aforesaid two Articles of the Constitution. Shri Dwivedi, learned senior companynsel for the appellant-State was right when he companytended that Article 16 4 is an enabling provision permitting the State to lay down a scheme of reservation in State Services. It may also be true that Judicial Service can also be companysidered to be a part of such Service as laid down by this Court in the case of B.S.Yadav Ors.etc. supra . However, so far as the question of exercising that enabling power under Article 16 4 for laying down an appropriate scheme of reservation goes, as seen earlier, we cannot be oblivious of the fact that the High Court, being the high Constitutional functionary, would also be alive to its social obligations and the Constitutional guideline for having scheme of reservation to ameliorate the lot of deprived reserved categories like the SC, ST and Other Backward Classes. But for that purpose, the Governor can, in companysultation with the High Court, make appropriate rules and provide for a scheme of reservation for appointments at grass-root level or even at the highest level of the District Judiciary, but so long as this is number done, the State Legislature cannot, by upsetting the entire apple-cart and totally bypassing the Constitutional mandate of Articles 233 and 234 and without being required to companysult the High Court, lay down a statutory scheme of reservation as a road roller straight jacket formula uniformly governing all State Services, including Judiciary. It is easy to visualise that the High Court may, on being properly and effectively companysulted, endorse the Governors view to enact provision of reservation and lay down the percentage of reservation in Judicial Service, for which it will be the appropriate authority to suggest appropriate measures and required percentage of reservation, keeping in view the thrust of Article 335 which requires the companysideration of the claim of members of SC, ST and OBC for reservation in Services to be companysistent with the maintenance of efficiency of administration. It is obvious that maintenance of efficiency of judicial administration is entirely within the companytrol and jurisdiction of the High Court as laid down by Article 235. The State Legislature, on its own, would obviously lack the expertise and the knowledge based on experience of judicial administration which is possessed by the High Court. Consequently, bypassing the High Court, it cannot, in exercise of its supposed paramount legislative power enact any rule of thumb and provide fixed percentage of reservation for SC, ST and Other Backward Classes in Judicial Services and also lay down detailed procedure to be followed as laid down by sub-sections 3 to 6 of Section 4 for effecting such statutorily fixed 50 reservation. It is easy to visualise that if the High Court is number companysulted and obviously cannot be companysulted while enacting any law by the State Legislature and en bloc 50 reservation is provided in the Judicial Service as is sought to be done by Section 4 of the Act and which would automatically operate and would present the High Court with a fait accompli, it would be deprived of the right to suggest during the Constitutionally guaranteed companysultative process, by way of its own expertise that for maintenance of efficiency of administration in Judicial Service companytrolled by it, 50 reservation may number be required, and or even lesser percentage may be required or even may number be required at all. Even that opportunity will number be available to the High Court if it is held that the State Legislature can enact the law of reservation and make it automatically applicable to Judicial Service bypassing the High Court companypletely. Such an exercise vehemently canvassed for our approval by learned senior companynsel for the appellant- State cannot be companyntenanced on the express scheme of the Constitution, as discussed by us earlier. Even proceeding on the basis that the scheme of Article 16 1 read with Article 16 4 may be treated to be forming a part of the basic feature of the Constitution, it has to be appreciated that for fructifying such a Constitutional scheme Article 335 has to be kept in view by the authority companycerned before such a scheme of reservation can be promulgated. Once Article 335 has to be given its full play while enacting such a scheme of reservation, the High Court, entrusted with the full companytrol of Subordinate Judiciary as per Article 235 by the Constitution, has got to be companysulted and cannot be treated to be a stranger to the said exercise as envisaged by the impugned statutory provision. We may number refer to one submission of learned senior companynsel Shri Dwivedi for the appellant-State. He companytended that there cannot be any dispute reOBgarding appointments to available vacancies in the cadre of District Judiciary and that they can be filled in only on the recommendation of the High Court and equally there cannot be any dispute regarding filling up of all vacancies in the Subordinate Judiciary as per Article 234. They can be filled in by the Governor as per rules framed in companysultation with the High Court and the Public Service Commission. But so far as reservation of vacancies to be filled in by reserved category of candidates is companycerned, it is an exercise which is resorted to by the State authorities in discharge of their enabling powers under Article 16 4 . That is a stage anterior to the question of recruitment or appointment on available vacancies in the cadre of District Judiciary or in the cadre of Subordinate Judiciary. Consequently, such an exercise invoked by any administrative order or, even by legislation, cannot be said to be companyflicting in any manner with the procedure of recruitment and appointment to District Judiciary and Subordinate Judiciary as per Articles 233 and 234 of the Constitution. This argument, as submitted, looks attractive but on closer scrutiny falls through, as we shall see presently. It is number in dispute and cannot be disputed that creation of cadres and creation of posts in a cadre companyprised in Judicial Service of the State can be resorted to by the Governor in exercise of his rule making power under Article 309 or for that matter by any appropriate Legislation by the State authorities under the very same Article. But once cadre of District Judges and Subordinate Judiciary are companystituted by the aforesaid authorities and posts backed up by suitable budgetary provisions are created and are accordingly made available to be filled in in the companycerned cadres, process of creation of posts companyes to an end. Thereafter when in the created posts borne on any judicial cadre, whether at the District Court level or at the Subordinate Court level, any vacancies arise by retirement or otherwise number-availability of the incumbents due to any other reason, question of filling up of those available vacancies would arise. Such available vacancies of sanctioned posts have to be filled in only after following the procedure laid down by Articles 233 and 234 of the Constitution of India and cannot be subjected to any other procedure. At that stage, directing the High Court without its companysent and companysultation and merely by the thrust of legislative provision that 50 of the available vacancies in the cadre of District Judges or Judges of the Subordinate Judiciary must be filled in from reserved candidates only would ex-facie cut across the power of the High Court which alone can recommend the filling up of all such vacancies in the district cadre as per Article 233 and equally the power of the High Court to render effective companysultation to the Governor under Article 234 when he frames rules for recruitment of candidates for filling up of all available vacancies in the Subordinate Judiciary under the district companyrt as per Article 234. It is difficult to appreciate how filling up of vacancies in the already sanctioned posts in these cadres will remain an exercise anterior to the procedure laid down by the Constitution for filling up of these vacancies as per Articles 233 and 234, as the case may be. In any case, impugned Section 4 of the Act, by its express wordings, does number companytemplate any such stage anterior to filling up of vacancies in the existing posts. On the companytrary, it provides that all appointments to Services and Posts in an establishment which are to be filled in by direct recruitment shall be regulated in the manner laid down therein. Meaning thereby, 50 of the appointments to such available posts have to be done from reserved category candidates as per percentage provided for each of such classes. That necessarily means that 50 of the existing vacancies in the available posts in the Services have to be filled in from reserved category candidates only. This mandate of Section 4, therefore, gets directly hit by the scheme of the companyplete Code for such direct recruitment to the Judicial Services in the district cadre or subordinate cadre, as envisaged by Articles 233 and 234 of the Constitution of India. We may take an example to highlight this position. Supposing there are 10 vacancies of District Judges at a given point of time in the State, which are available to be filled in by direct recruitment keeping in view the ratio of such direct recruitment permissible under the relevant rules. Once these 10 vacancies of District Judges are required to be filled in by direct recruitment on the recommendation of the High Court from the members of the Bar subject to the minimum eligibility laid down under Article 233 sub-article 2 , the High Court obviously has to undertake the exercise of selection of eligible candidates on its own. The Governor, in such a case, shall have only to pass companysequential orders of appointment from the panel as recommended by the High Court. If numbersuch recommendations are forthcoming, the Governor will have numberjurisdiction or power to make any such appointment as clearly mandated by Article 233 sub-article 2 . Once the High Court undertakes such an exercise and prepares a panel of eligible and suitable direct recruits from the Bar after holding appropriate tests whether written or oral as the relevant procedural rules may provide, it will, in the serial order of inter se merit prepare a panel of 10 candidates and recommend them for appointment and the panel may be sent for passing appropriate orders. If that is so, all the 10 vacancies have to be filled in in the light of the panel prepared by the High Court, keeping in view the names of candidates listed in the panel as per the rankings made by the High Court in the order of their respective merits. Therefore, the High Court will prepare a panel of 10 recommendees for appointment to first 10 vacancies in the serial order of their ranking as per merit and suitability. This is the Constitutional mandate of that Article. Now if it is visualised that the State Legislature, by an independent enactment, as in the present case, requires the High Court to treat only the first five vacancies to be filled in by direct recruitment from general category in the order of merit and the remaining five vacancies are required to be filled in from reserved category of candidates only and even if those reserved five vacancies can be filled in by appointing reserved category of candidates as per the order of their inter se merit, even then the thrust of Section 4, to that extent, will certainly cut across or restrict the power and authority of the High Court to recommend appointments to all the ten vacancies of suitable meritorious candidates as found by it. The result would be that first five vacancies may go to the first five candidates recommended in the panel according to merit but so far as the vacancy number.6 to 10 are companycerned even though the 6th direct recruit recommended by the High Court is obviously more meritorious than the candidate listed in the panel at serial number7, he may have to be bypassed if the candidate at serial number6 in the panel belongs to general category while candidate number7 belongs to SC category namely, reserved category. The net result would be that though the High Court, in exercise of its Constitutional obligation and authority, recommends the 6th vacancy in the District Judge cadre to be filled up by candidate number6 listed in the panel, by thrust of impugned Section 4 of the Act, the 6th vacancy can be filled in by the Governor by appointing candidate number7 who is less meritorious as companypared to candidate number6 and who is number recommended by the High Court for being appointed in vacancy number6. Thus, he will be bypassed by candidate number7 who may belong to the SC category and who may be standing higher in so far as inter se merit between the SC candidates only are companycerned. Supposing at serial number9 there is another SC candidate then vis--vis candidate number.7 and 9, who both belong to SC category, this 6th vacancy, because of the thrust of Section 4 can be filled up by candidate number7. The submission of Shri Dwivedi that between two SC candidates or candidates belonging to the same reserved category it will be open to the High Court to recommend appointment of more meritorious reserved category candidate as companypared to the candidate of the same category who is less meritorious and this exercise would satisfy the requirement of Article 233 sub-article 2 only gives lip service to that Article. The reason is obvious. The High Courts power and in fact Constitutional obligation to recommend meritorious candidates found suitable by it for filling up of all vacant posts will obviously get truncated and restricted and the High Court though number recommending candidate No.7 as suitable candidate for filling up vacancy number6, will be helpless by number being permitted appointment of candidate number6 who belongs to general category to occupy that post and will have willy-nilly to suffer against its own decision regarding appointment of candidate number7 who belongs to SC category for filling up vacancy number6 and this exercise will be thrust upon the High Court without being companysulted in this companynection by the State Legislature by enacting the impugned Section 4 of the Act. This appointment obviously will be null and void and violative of Article 233 2 . This type of bypassing the High Court will clearly be an act of interference with independence of judiciary which is the hallmark and bedrock of the Constitutional scheme. Section 4, therefore, has got to be held number to be operative on the forbidden field occupied by Articles 233 and 234 of the Constitution of India. This is obviously a type of reservation which is thrust upon the High Court by Section 4. It cannot be treated to be referable to a stage anterior to the process of recruitment and appointment. In fact, as seen above, Section 4 itself deals with the reservation for direct recruitment on available posts. Therefore, in the field of recruitment itself Section 4 seeks to have its independent sway. Both Article 233 and Article 234 also deal with the very same question of recruitment and appointment to District Judiciary. It is this very field wholly reserved for operation of Articles 233 and 234 that is encroached upon by Section 4, by its express language, if made applicable to judicial appointments. As seen earlier, companysultation with the High Court is a sine qua number in companynection with direct recruitment of judicial officers at grass-root level i.e. Munsiffs and Magistrates and whose recruitment is governed by the rules framed under Article 234 being the 1955 Rules. Similarly, recruitment at district level judiciary is governed by 1951 Rules framed under Article 233 read with Article 309 of the Constitution of India. However, direct recruitment as District Judges has to be solely based on appropriate recommendations of suitable candidates by the High Court. In fact Rule 3 thereof, provides that the strength of the Service and the number and character of the posts shall be as specified in the schedule to these rules, and once we turn to the Schedule to the 1951 Rules, we find listed five cadres of superior judiciary at the district level and the total posts sanctioned being 26. Obviously, this rule has a direct nexus with Article 309 read with Article 233. But beyond that when the question of filling up of vacancies in the cadres of higher District Judiciary on the already sanctioned posts crops up, the field is fully occupied by Article 233 sub-articles 1 and 2 and there is numberother power with any other Constitutional authority to effect such recruitment on available vacancies. It is number possible to visualise that, while providing for direct recruitment to District Judiciary as per Article 233 sub-article 2 , even though the minimum eligibility qualification laid down under the said provision is that the candidate should have been practising for number less than seven years as an advocate or a pleader, any further eligibility as belonging to a reserved category is envisaged for a given post. Consequently, it is number possible to agree with the companytention of learned companynsel Shri Dwivedi for the appellant-State that question of recruitment to the cadre of District Judges by directing the High Court to recommend eligible candidates for appointment keeping in view only 50 of the available vacancies to be filled in by general category and by treating the remaining 50 of the vacancies as reserved would be a stage anterior to the stage of recruitment or appointment to such available vacancies on the already sanctioned posts in the cadre of District Judiciary. At this stage we may also refer to the decision of a Constitution Bench of this Court in B.S.Yadavs case supra wherein Chandrachud, CJ had an occasion to interpret Article 235 read with Article 309 proviso. The question which arose for companysideration in that case was whether the rule of seniority of existing members of Superior Judicial Services as framed by the Governor in exercise of his powers under Article 309 proviso companyld validly operate to regulate the seniority of such already recruited and appointed judicial officers in Subordinate Judiciary. In order to avoid the operation of the said rule which was having a direct nexus with companyditions of service of already appointed judicial officers, a companytention was raised that under Article 235 even this subject matter was part and parcel of the companytrol of Subordinate Judiciary vesting in the High Court under that article. While negativing this companytention, the Constitution Bench, speaking through Chandrachud, CJ, placed reliance on the second part of Article 235 and observed as under The power of companytrol vested in the High Court by Art.235 is expressly made subject to the law which the State Legislature may pass for regulating the recruitment and service companyditions of judicial officers of the State. The framers of the Constitution did number regard the power of the State Legislature to pass laws regulating the recruitment and companyditions of service of judicial officers as an infringement of the independence of the judiciary. The mere powers to pass such a law is number violative of the companytrol vested in the High Court over the State judiciary. Placing strong reliance on the aforesaid observations it was companytended by learned senior companynsel for the appellant-State that it has been authoritatively ruled by the Constitution Bench of this Court that the framers of the Constitution did number regard the power of the State Legislature to pass laws regulating the recruitment and companyditions of service of judicial officers as an infringement of the independence of the judiciary. Now it must be kept in view that these observations are made in the light of second part of Article 235 which expressly saves laws regulating the companyditions of service of already recruited judicial officers and who are functioning under the companytrol of the High Court under Article 235. Once the very same Article permits the limited field for operation of law-makers or rule-makers under Article 309 for regulating the companyditions of services of such already appointed judicial officers by way of enacting any appropriate statutory provision either by exercise of rule making power of the Governor under Article 309 proviso or by appropriate legislation under the said Article, it cannot be said that these observations have laid down even impliedly, that while recruiting judicial officers either at grass-root level under Article 234 or at district level under Article 233 any legislation can be enacted by the Legislature or that the Governor by independent exercise of his rule making power can make such a provision. This question of companytrolling recruitment and appointment at the entry point either at grass-root level i.e. level number1 or at the apex level being level number3 in the pyramid of District Judiciary never arose for companysideration of the Constitution bench and hence the aforesaid observations cannot be companysidered to be the decision rendered by the Court on this moot point. It is also easy to visualise that while companysidering the scope of play of Article 309 vis--vis second part of Article 235 which carves out a permissible field by the very same Article for law to be made for regulating other permissible companyditions of service the term recruitment has been employed almost by way of mere reference to the language of Article 309 and numberhing more. If it is held that even impliedly the aforesaid decision of the Constitution Bench has taken the view that the appropriate authority, i.e. the Governor, in exercise of his delegated legislative powers under the Proviso to Article 309 or any State Legislature in exercise of its paramount power under Article 309 first part, can companytrol the recruitment of judicial officers at district level or at the level of Subordinate Judiciary bypassing the High Court, then such an implied thrust of the said observations must be held to be totally obiter and uncalled for. Consequently, the aforesaid decision in S.Yadavs case supra must be companyfined to the facts of that case laying down the limited ratio that for deciding the rule of seniority of already appointed judicial officers in District Judiciary or Subordinate Judiciary, appropriate law or rules can be framed under Article 309 by the companycerned authority as permissible under second part of Article 235. That is the only ratio of that decision and it cannot travel any further. However, leaving aside that question, it can easily be visualised that the aforesaid observations in the Constitution Bench judgment in S.Yadavs case supra may, in general sense, refer to the companycept of recruitment as laid down by proviso under Article 309 in view of the settled legal position that, in exercise of their powers under the said Article, the companycerned authorities can form cadres of service in Subordinate Judiciary and can also create sanctioned posts in these cadres. The said exercise of creation of posts may also get companyered by the companycept of recruitment. It is only in this broad sense that the term recruitment can be said to have been mentioned by the Constitution Bench in the aforesaid observations but they can certainly number go any further number can be treated to have ruled anything companytrary to the express scheme of Articles 233 and 234. This is the additional reason why the aforesaid general observations have to be companyfined to the limited scope and ambit of Article 309, as indicated therein. For all these reasons, therefore, the decision in B.S.Yadavs case supra cannot be of any real assistance to learned companynsel for the appellant-State. We may number briefly deal with the main companytentions canvassed by learned senior companynsel for the appellant-State in support of their appeals. We shall first deal with the companytentions canvassed by Dr.Dhavan for the appellant-State. The interpretation sought to be put on Article 309 by Dr.Dhavan, as we have already seen earlier, is number capable of having wider companyerage so as to engulf recruitment to judicial offices on district cadre as well as on those below the district cadre. The Constitutional scheme examined and seen earlier companytra-indicates this companytention. So far as Dr.Dhavans submission that second part of Article 235, despite the full companytrol of District Judiciary being vested in the High Court permits enactment of suitable provisions under Article 309 also, cannot be of any real assistance. As we have already seen above, the second part of Article 235 deals with the topic of other companyditions of service including the right of appeal which might be guaranteed to judicial officers by appropriate legislation enacted by the authorities acting under Article 309 but that is an operation on the limited field permitted by the second part of Article 235 at second level of the pyramid of Subordinate Judiciary and numberhing more. Dr.Dhavan was right when he companytended that on the scheme of Articles 233 to 235 it is number as if other legislation is a total taboo. However, the said submission ignores the fact that it is the limited field earmarked by second part of Article 235 regarding permissible regulation of companyditions of service that is reserved for operation of Article 309 through its appropriate authorities. But, save and except this limited aspect which is permitted, the rest of the companytrol totally vests in the High Court under Article 235 first part. What is permitted by Article 235 cannot be companysidered as a blanket power entrusted to the Legislature or to the Governor under Article 309 by the Constitutional makers dehors the companyplete net of Constitutional scheme companytrolling recruitment and appointment to District Judiciary and the Subordinate Judiciary under Articles 233 and 234 of the Constitution of India. These twin Articles companyspicuously do number envisage even the limited independent field for operation of Article 309 as is permitted by Article 235 second part. That shows the clear intention of the Constitutional makers that so far as question of recruitment and appointment to available vacancies in the cadre of District Judges and Judges of the Subordinate Judiciary is companycerned, neither the Legislature number the Governor, dehors any companysultation with the High Court, can have any independent say. We may number deal with the supposed anomalies that may result if the interpretation canvassed by the respondent High Court is accepted. Dr.Dhavan companytended that, if power of the State Legislature to enact appropriate provisions for appointment of members of Subordinate Judiciary is excluded by Article 234, and to that extent Article 309 is also to be out of picture, then various anomalous situations may arise. He firstly, submitted that judicial service as defined by Article 236 b will get truncated in its operation. It is number possible to agree with this companytention for the simple reason that the definition of judicial service only earmarks the Members of that Service. How their appointment is to be made has to be gathered from Articles 233 and 234. If they exclude any statutory interference by the State Legislature such interference would remain excluded by the sweep of these two Articles themselves. The second anomaly pointed out by Dr.Dhavan is that power to legislate must be given full effect unless there is express exclusion. Even this cannot be said to be an anomaly for the simple reason that Article 309 itself is subject to the opening part of the clause and has to give way if other Articles of the Constitution companyer the field. The companyplete Code projected by Articles 233 and 234 would itself be an exclusion of the legislative power and equally the Governors independent power under Article 309 qua that field. Even that apart, Article 245 dealing with the legislative powers of Parliament and the State Legislatures in terms makes the said provisions subject to other provisions of the Constitution. Therefore, on the same analogy by which Article 309 cannot independently operate qua the exclusive field carved out by Articles 233 and 234, the legislative powers of Parliament as well as the State Legislature would also get excluded. The next anomaly pointed out by Dr.Dhavan was that under the Constitution, the scheme of separation of powers is devised to separate the Executive from the Judiciary and that this scheme does number extend to oust the legislative power. If it is held that Article 234 ousts the legislative power for making suitable enactment on the topic companyered by it, then to that extent, it is companytended, an anomalous situation would arise number companytemplated by the Constitutional scheme. It is difficult to appreciate this companytention. As per Article 50 of the Constitution of India, judicial functioning has to be treated to be separate from that of the executive and to fructify the said Constitutional scheme, Article 309 is made subject to other relevant Articles of the Constitution including Articles 233 and 234. Thus Articles 233 and 234 have their full sway number being inhibited by any outside independent interference to be made by the Governor under proviso to Article 309 or by the State Legislature in that companynection. Dr.Dhavan next companytended that on the express language of Article 233, only the rule making power of the Governor is fettered but number the legislative power of the State. This submission is mis-conceived as the legislative power is companyterminus with the Governors rule making power. For regulating the companyditions of Service of Members of public service as found in Article 309, as the proviso to Article 309 itself shows, what the legislature can enact in companynection with the topic mentioned therein can be done by the Governor in exercise of his rule making power as a stop-gap arrangement till the very same field is companyered by the statutory enactment. Thus the earmarked field is the same, namely, companyditions of Service of employees of State Public Service. Employees of a Public Service are a genus of which Members of Judicial Service are a species. So far as the appointment to Judicial Service is companycerned, the said topic is carved out from the general sweep of Article 309 on account of the words in its opening part, read with Articles 233 and 234. The Governors rule making power in this companynection is separately dealt with under Article 234 and it is the procedure laid down therein which will govern the said rule making power of the Governor and cannot draw any sustenance independently from Article 309 which gets excluded in its own terms so far as Members of Judicial Service are companycerned. A limited play available to the Legislature to deal with unexcepted and open categories of companyditions of Service of judicial officers as found in Second Part of Article 235, therefore, cannot be read backwards to govern even by implication the method of appointment of Members of Subordinate Judiciary even at the grass-root level. For that purpose, Article 234 is the only repository of the power available to the companycerned Constitutional authority which has to follow the gamut of the procedure laid down therein. Dr.Dhavan tried to salvage the situation by submitting that if this view is taken, the greatest anomaly that would arise is that there would be total ouster of legislative interference as per Article 234. There will be definite permissible interference of legislative power on topics mentioned in second part of Article 235. While so far as appointments of District Judges under Article 233 are companycerned, there is numberexpress ouster of legislative interference at all. He, therefore, submitted that a totally anomalous situation would emerge, as at the grass-root level i.e. lowest rung of regulating the recruitment and appointment of Judiciary, there will be total exclusion of legislative interference while at the apex level i.e. at the district level there will be numberouster of legislative interference. Even this argument of despair cannot be companyntenanced for the simple reason that on the topic of appointment of direct recruits to the District Judiciary at the district companyrt level or even at the grass-root level of Munsiffs and Civil Judges-junior division or senior division, as the case may be, both under Article 234 as well as under Article 233 interference by the State Legislature is totally excluded. If appointments at the grass-root level in Subordinate Judiciary is taken as base level number1 in the pyramid of Subordinate Judiciary, as indicated earlier, then the express language of Article 234 lays down a companyplete procedure which cannot be tinkered with by any outside agency like the legislature. For regulating the service companyditions of already appointed judicial officers which will be treated as level number2, to the extent to which the companyditions of service can be regulated by law as laid down by second part of Articles 235 a limited field is kept open for legislative play. It is only because of the permissible field indicated by the very same Article that the Governor under Article 309 or even the State Legislature can be permitted to operate in that field. While at the apex level of the pyramid of Subordinate Judiciary, which is level number3, for recruiting District Judges a companyplete Code is furnished by Article 233 excluding outside interference, as indicated earlier. Thus neither at the base level i.e. at the grass-root level of companytrolling entry point to Subordinate Judiciary number at the entry point at the apex level of the pyramid for appointing District Judges any State Legislatures interference is companytemplated or companyntenanced. On the companytrary, it is companytra-indicated by necessary implication. Thus, neither at the first level number at the third level, both dealing with entry points to Subordinate Judiciary, the State Legislature has any say and at the second level it has a limited say to the extent permitted by the very same Article 235 second part and which does number pertain to recruitment or appointments at all. Thus, it cannot mean that because of this limited independent play at the joint is available to the authorities functioning under Article 309 at the second level to frame rules or legislation for permissively regulating the companyditions of service of the members of the judiciary who have already entered the Judicial Service at the grass-root level, or even at the district level, any anomalous situation emerges. Dr.Dhavan then invited our attention to the observations of a nine-Judge Constitution Bench judgment of this Court in Indra Sawhney Ors. case supra , para 694 at page 662, para 738 at page 689 and para 788 at page 720, for submitting that Article 16 sub-article 4 enables the State authorities to direct reservation in Services under the State. This Constitutional power, once exercised, cannot be sought to be circOBumscribed or curtailed by number-compliance with the procedure of Article 234 or for that matter Article 233. This argument of his cannot be companyntenanced. It is obvious that for utilising the enabling power under Article 16 4 , the State Legislature cannot enter the forbidden field and companyflict with substantive provisions of Article 233 or first part of Article 235. Meaning thereby, neither can it lay down new criterion of eligibility companytrary to sub-article 2 of Article 233 for appointment to the District Judiciary number can it affect the companytrol of the High Court in companynection with District Judiciary as vested in the High Court under first part of Article 235. If at all any reservation policy under Article 16 4 is to be pursued, it has to be exercised in companysonance with the scheme of Articles 233 and 234 and number dehors it. Dr.Dhavan fairly companyceded that neither in the Rules of 1951 regarding appointments to district cadre as per Article 233 number under the Rules of 1955 for appointments in the cadre of Subordinate Judiciary as laid down by Article 234, there is any provision for 50 reservation of posts. As already numbered earlier, Article 16 4 is an enabling provision and it enables the companypetent authority which is entrusted with the task of recruitment and appointment to any service including the Judicial Service to exercise this enabling power and provide for appropriate reservation. In fact there is numberdispute between the parties in these proceedings that with the companysent of the High Court of Patna, 14 reservation for SC and 10 reservation for STs is already accepted as permissible reservation for direct recruitment at the grass-root level and Rule 20 of the Rules of 1955 clearly points to such reservation, percentage of which has already been agreed to between the High Court on the one hand and the Government on the other. That would be perfectly a permissible exercise under Article 16 4 read with Article But beyond that unless the rules are properly amended by following the procedure of Articles 233 and 234 read with Article 309 after companysulting the High Court, the Governor on his own cannot provide for any more reservation. Nor can, by a legislative Act, an independent provision under Article 16 4 totally bypassing the High Court be resorted to. As already seen earlier, Article 16 4 has to be read with Article 335 and maintenance of efficiency of administration in the making of appointments to Services and posts would be a sine qua number before companysidering the claim for reservation of SC and STs which would also include the OBCs as laid down by a Constitution Bench judgment of this Court in Indra Sawhneys case supra , 2000 1 SCC 168 JT 1999 9 SC If Article 16 4 has to be read with Article 335 as already ruled by the Constitution Bench judgment of this Court, the same authority which can have the pulse and full companytrol of administration pertaining to companycerned services having sufficient expertise can avail of the aforesaid Article 16 4 keeping in view the mandate of Article 335. In case of Subordinate Judicial Services companyprising of district companyrts and companyrts subordinate thereto, the full companytrol vests in the High Court under Article 235 which can companytrol the promotions and postings of such members of the Judiciary. It is the High Court which will have full knowledge and expertise for deciding the question of adequacy of representation by way of reservation in Judicial Service. Therefore, it is the High Court only which can give green signal regarding the extent of such reservations at entry points as candidates entering on reserved posts in Judicial Service of the District Judiciary both at the apex level and at the grass-root level have to act under its companytrol. In the absence of such a green signal by the High Court there would be numberoccasion to invoke Article 16 4 read with Article 335. We fail to appreciate how the State Legislature by enacting Section 4 of the Act, can decide for itself that 50 reservation is required to be made in appointments to District and Subordinate Judiciary companysistent with the maintenance of efficiency of judicial administration which is under full companytrol of the High Court as per Article 235. As it cannot of its own be alive to this vital aspect lacking requisite knowledge and expertise, any scheme of reservation framed by the legislature under Article 16 4 dehors Article 335 so far as judicial appointments are companycerned, must necessarily fall through. The authority giving green signal as per Article 16 4 read with Article 335 can be only the High Court. It will be totally out of picture so far as enactment of such straight jacket reservation provisions dehors the High Courts companysultation goes. In this view of the matter, the broad submission of Dr.Dhavan that reservation in fulfillment of right to equality of opportunity under Article 16 1 read with Article 16 4 can be resorted to without reference to the High Court and therefore, the impugned Act cannot be found fault with, cannot be accepted. Reliance placed by Dr.Dhavan to the decision of this Court in Durgacharan Misra vs. State of Orissa Ors., 1987 4 SCC 646, wherein at para 15 a two Judge Bench observed that Rules under Article 234 are framed by the Governor, in exercise of his rule making power under Article 309, cannot be of any assistance to him. Even if the rules companytemplated by Article 234 are framed by the Governor under Article 309 proviso, that power is clearly fettered and regulated by Article 234 as well as Article 233 wherein companysultation of the High Court in one case and total clearance by the High Court by way of recommendation of the appointees in the other case, cannot be given a go by. Turning to the companytentions canvassed by Shri Dwivedi in support of the companypanion appeal, it may be stated that he adopted the arguments of Dr.Dhavan but he further companytended that under Article 234, the rule making power of the Governor is hedged in by companysultation with the High Court and the Public Service Commission. So far as the Public Service Commission is companycerned, as per Article 320 sub-article 4 , it is number required to be companysulted in respect of the manner in which any provision referred to in clause 4 of Article 16 may be made or as respects the manner in which effect may be given to the provisions of Article 335. Shri Dwivedi, therefore, submitted that companysultation with the Public Service Commission cannot be in companynection with Article 16 4 and if that is so, by necessary implication, companysultation with the High Court under Article 234 can also be treated to be standing at par and companysequently the decision on any policy of reservation as per Article 16 4 need number get companyered by any companysultation with the High Court. It is difficult to appreciate this companytention. The Public Service Commission is merely an examining body which examines the candidates for seeking appointments to the advertised posts. It has, therefore, numberhing to do with the policy decision of laying down of reservation in appointments to the posts. That policy has to be resorted to under Article 16 4 by the authority calling upon the Public Service Commission to proceed with the procedure of selection of suitable candidates for filling up advertised posts subject to the companyditions laid down in the advertisement. That type of companysultation naturally would number stand at par with the companysultation with the High Court as laid down by Article 234 of the Constitution. As seen earlier, companysultation with the High Court as envisaged by Article 234 is for fructifying the Constitutional mandate of preserving the independence of Judiciary, which is its basic structure. The Public Service Commission has numbersuch Constitutional imperative to be fulfilled. The scope of examining bodys companysultation can never be equated with that of companysultation with the appointing body whose agent is the former. It is also pertinent to numbere that the essence of companysultation is the companymunication of a genuine invitation to give advice and a genuine companysideration of that advice which in turn depends on sufficient information and time being given to the party companycerned to enable it to tender useful advice. It is difficult to appreciate how the Governor while companysulting the Public Service Commission before promulgating the Rules of Recruitment under Article 234 has to solicit similar type of advice as he would solicit from the High Court on due companysultation. The advice which in the process of companysultation can be tendered by the Public Service Commission will companyfine itself to the Constitutional requirements of Article 320. They are entirely different from the nature of companysultation and advice to be solicited from the High Court which is having full companytrol over Subordinate Judiciary under Article 235 of the Constitution and is directly companycerned with the drafting of efficient judicial appointments so that appropriate material will be available to it through the process of selection both at the grass-root level and at the apex level of the District Judiciary. Consultation, keeping in view the role of the High Court under Article 234 read with Article 235, stands on an entirely different footing as companypared to the companysultation with the Public Service Commission which has to discharge its functions of entirely different type as envisaged by Article 320 of the Constitution. Naturally, therefore, companysultation with the High Court will have a direct linkage with the policy decision as to how many posts should be advertised, what are the felt needs of District Judiciary and whether there can be any reservation which can be permitted to be engrafted in the Rules framed by the Governor companysistent with the maintenance of efficiency of judicial administration in the State. It is also pertinent to numbere that there is numberexpress fetter regarding companysultation with the High Court excluding Article 16 4 as we find in Article 320 4 in companynection with the Public Service Commissions companysultation. This very departure and absence of such exclusion of the High Courts companysultation indicate the intention of the Constitutional makers that policy decision as per Article 16 4 has to be taken by the Governor in companysultation with the High Court while framing appropriate rules governing the recruitment and appointments to the Judicial Service both at the apex level and at the grass-root level. Submission of Shri Dwivedi that legislative power stands independently and dehors Articles 235 and 234 cannot be companyntenanced for the detailed reasons given by us while rejecting the companytentions of Dr.Dhavan. Shri Dwivedis effort to draw sustenance for his argument from the observations of the learned Judges of the Constitution Bench in Indra Sawhneys case supra namely, Justice Pandians observations at para 243, Justice Sawant at para 555 and Justice Kuldip Singh in para 383, also cannot be of any avail to him. The question of reservation of posts in a cadre cannot be equated with the question of creation of posts in a cadre. After the posts in a cadre are created how many thereof can be filled in from general category and how many from reserved category candidates, will remain a policy decision which has to be undertaken under Article 16 4 read with Article 335 and only by the companypetent authority namely, the High Court in dialogue with the Governor so far as Judicial Service is companycerned, as we have seen earlier. The observations of learned Judges in the aforesaid Indra Sawhneys case supra therefore, regarding the scope and ambit of Article 16 4 in general in companynection with those services wherein such reservation would be effected by the companypetent authorities themselves without companysultation with other agencies like the High Court, cannot be of any avail to Shri Dwivedi for culling out the companypetence of the authority companycerned to impose such reservation in companynection with Judicial Services without companysulting the High Court. Reliance placed by learned companynsel for the appellant-State on various rules framed by Governors of other States in companysultation with High Courts like the Uttar Pradesh Governor also cannot be of any avail as those rules are framed by the Governors in companysultation with the High Courts after following the procedure of Articles 234 or for that matter Article 233. Decisions of this Court relied on by Shri Dwivedi for showing that the Governor can create cadres and also can lay down provisions for regulating the companyditions of Service as provided under Article 235 second part also are besides the point. The effort made by learned companynsel for the appellant-State to show that Judicial Service also represents a part of State Service and it is the State within the meaning of Article 12 amenable to writ jurisdiction under Article 226 so far as the administrative decisions taken by the companyrts are companycerned also cannot solve the problem which is posed for our companysideration. The High Court may be an authority within the meaning of Article 12, its administrative decisions may be subject to its writ jurisdiction on judicial side but that does number mean that for recruiting judicial officers for manning Judicial Services, the say of the High Court can be totally bypassed by enacting provisions like the impugned Act by the State Legislature which, while enacting this statute, was number expected to companysult any one else including the High Court. Of companyrse, Shri Dwivedi was right when he companytended that in Civil Appeal No.9072 of 1996 there was numberoccasion for the High Court to treat the policy reflected by the stand of the High Court regarding giving preference in appointments to SC and ST candidates if they are of equal merit with general category candidates as the only reasonable one. It is true that this exercise was number required to be undertaken by the High Court which was companycerned with the short question as to whether the impugned Act, especially Section 4 thereof, can be permitted to operate of its own so far as the recruitment to District Judiciary was companycerned. To that extent, the aforesaid reasoning of the High Court in the impugned judgment cannot be sustained as being redundant and uncalled for. We may number briefly refer to the written submissions on behalf of the appellant-State submitted by Shri Dwivedi on 20th January, 2000. As we have already discussed earlier, it is number possible for us to agree with the companytention that reservation of posts does number truncate the High Courts power of making appointments on available vacancies. In cases where reservations are made after companysultation with the High Court, the situation stands entirely on a different footing as the High Court itself agrees with the rule making authority under Article 234 or for that matter under Article 233 to recommend reserved category candidates on earmarked vacancies in the already created posts in a cadre. But the question is as to whether bypassing the High Court such an exercise can be undertaken by the State Legislature or by the Governor under Article 309. As seen earlier, such an exercise is number companyntenanced by the relevant Constitutional scheme. It is also number possible to agree with the companytention that in the absence of express exclusion of any law made by the Legislature, the legislative power remains untouched by Articles 233 and 234. On the companytrary, as seen earlier, because of the opening words of Article 309 as well as Article 245 what is provided by Articles 233 and 234 is a companyplete Code, which cannot be touched independently of the High Courts companysultation either by the Legislature or by the rule making authority. Reliance placed on the observations in paras 16 17 in the case of M.M.Gupta Ors. etc. vs. State of Jammu Kashmir Ors., supra to the effect that appointing authority is the Governor also cannot advance the case of Shri Dwivedi for the simple reason that under the scheme of Articles 234 and 233 once effective companysultation is made with the High Court and rules are framed as per Article 234 and selections are made as per these rules or when the High Court recommends appointments under Article 233, the selection process is over, only the ministerial work of issuing actual appointment orders may be carried out by the Governor. But that would number, in any case, interfere with the independence of Judiciary and the power of the High Court. The Governor, acting as per Article 234 while framing rules in companysultation with the High Court and the Public Service Commission and also while acting on the recommendation of the High Court under Article 233, only performs the ultimate act of issuing actual appointment orders to the selectees but these selectees have undergone the process of filtering by the High Court as per Article 233 2 or in cases governed by Article 234, as per the procedure laid down in the rules framed under that Article, after companysultation with the High Court. It is number as if the Council of Ministers or the Legislature has anything independently to say to the Governor in this companynection bypassing the High Court. Reference to the case in Samsher Singh etc. vs. State of Punjab Anr. etc., AIR 1974 SC 2192, about Cabinets responsibility to Legislature is totally besides the point while companysidering the moot question with which we are companycerned. It is difficult to appreciate on the scheme of Articles 233 to 235 the companytention of Shri Dwivedi that recruitment procedure companyld be laid down either by the Legislative enactment or rules under Article 309 without having companysultation with the High Court. Further companytention of Shri Dwivedi that Parliamentary system of governance is also a basic feature of the Constitution also cannot advance his case for the simple reason that Article 235 itself read with Article 309 furnishes restraints on the legislative power so far as topics of recruitment and appointment to District Judiciary and Subordinate Judiciary are companycerned being companyered by the companyplete companye of Articles 233 and 235, as seen earlier. The dichotomy sought to be suggested between the process of selection for recruitment to advertised posts on the one hand and reservation of posts in a cadre on the other by Shri Dwivedi is number a real one. As already seen earlier, recruitment and appointments have to be done to already created posts in the cadre and once the procedure of creation of posts is over, the further question as to how these posts are to be filled in and from which source or category of candidates, will entirely depend upon the rules framed by the Governor in companysultation with the High Court, so far as Article 234 is companycerned and will wholly be subject to the recommendations of the High Court under Article 233. The submission of Shri Dwivedi that cadre formation is in the exclusive domain of the government and forms part of companystitution of State Judicial Service, cannot have any impact on the moot question as to how created posts in a given cadre can be filled in and from which category of candidates. That remains essentially in the domain of recruitment and appointment to already existing, created and sanctioned posts in a given cadre. Reliance placed on Articles 37, 38 and 46 read with Article 16 4 cannot have any impact on the decision of the question posed for our companysideration. Reliance placed by Shri Dwivedi on the decisions of this Court in Indra Sawhneys case supra , Dr.Preeti Srivastava Anr. etc. vs. State of M.P. Ors.etc., 1999 7 SCC 120 and in Durgacharan Misra vs. State of Orissa Ors. supra also cannot be of any effective help for resolving the question with which we are companycerned. The general scheme of reservation and to what extent it can be applied to a given service directly under the companytrol of the State without any reference to Judicial Service, as discussed in the first two cases, can be of numberavail to Shri Dwivedi. So far as the case of Smt.A.Lakshmikutty supra is companycerned, the relevant observations in the companycerned paragraphs do number support the submissions put forward by Shri Dwivedi for the appellant-State. Even if Judicial Service is also a State Public Service and hence a Service under the State as laid down therein so as to attract Articles 12 and 226 of the Constitution, the question which remains for companysideration is as to whether the scheme of recruitment and appointment to the Subordinate Judiciary as laid down by the Constitution itself can be encroached upon, whittled down or cut across by any enactment or rule dehors the said Constitutional scheme. Smt.A.Lakshmikuttys judgment supra had number to companysider that question. Even though judicial officer in the Judicial Service of the State would be an officer under the State and according to which principle, to a limited extent, the companyditions of service of said judicial officer can be laid down by the State or the Governor under Article 309 independently of the High Court as per the second part of Article 235, so far as Articles 233 and 234 are companycerned as already seen earlier, they stand entirely on a different footing and do number companyntenance any independent encroachment on the field companyered by the said provisions bypassing the High Court. There cannot be any dispute that laying down of pay-scales as one of the companyditions of Service under the second part of Article 235 is number within the expression of companytrol which is vested in the High Court as laid down in Smt.Lakshmikuttys case supra . But it is difficult to appreciate how reservation can be treated on par with laying down of pay scales. Making available pay-scales to the members of the Judicial Service will have a direct impact on the State exchequer and Consolidated Fund of State in case of District Judiciary but that does number mean that the recruitment to such judicial posts also can be companytrolled by the State, dehors the requirements of Articles 233 and 234. The next written submission of Shri Dwivedi placing reliance on a judgment of this Court in the Belsund Sugar Co. Ltd. vs. The State of Bihar Ors.etc., JT 1999 5 SC 422, that reservations are a special topic and, therefore, the general expression of appointments would number embrace, the same cannot be accepted for the simple reason that once posts are created and sanctioned in a cadre, to the extent to which any independent order or direction under Article 309 or Article 16 4 encroaches upon the field of recruitment and appointment to such posts, specially carved out by the Constitutional makers for operation by the Governor in companysultation with the High Court or with the companycurrence or recommendation of the High Court, as the case may be, the said encroachment would remain totally ultra vires and cannot be saved by provisions of reservation envisaged by Article 16 4 . Reliance placed by Shri Dwivedi on a decision of this Court in Chandra Mohans case supra to show that there is numbercomplete separation of powers has to be appreciated in the light of the observations made therein in companynection with the nature of permissible field for operation of state authorities under Article 235 2 . These observations have numberhing to do with the companyplete separation of powers between the Judiciary and the Executive so far as initial recruitment at entry points in Subordinate Judiciary up to district level is companycerned. Even if rules under Article 234 can be said to have been framed by the Governor of the companycerned State, on a companyjoint reading of Articles 234 and 309 the fact remains that these rules, in order to be effective, have to satisfy the Constitutional requirement of the procedure laid down therein for their promulgation. The alternative companytention that when the State sends a proposal to the High Court for introducing reservations, the High Court is bound to carry out the mandate of Articles 15 4 , 16 4 , 38 and 46 of the Constitution, and should respond with such duty-consciousness, cannot be of any avail on the facts of the present case as we are number companycerned with such a situation. The rules framed under Articles 233 and 234 by the Bihar Government in companysultation with the High Court are number on the anvil of scrutiny. The only short question with which we are companycerned is whether in the absence of appropriate provision being made in these rules, the State Legislature can intervene on its own bypassing the High Court and lay down a rule of thumb by way of fixed quota of reservation in all the posts in the Subordinate Judiciary. The Mandal Commission Report has numberhing to do with the question with which we are companycerned. Even if adequate representations of reserved category of candidates for appointment to Judiciary may be a laudable object, it has to be kept in view that whatever is right has to be done in a right manner or number at all. Even in the present case 24 reservation for SC and ST candidates at grass-root level in Judiciary has already been agreed to by the High Court and the appointments are accordingly being made since years. The only question is whether by Section 4 of the impugned Act that percentage of reservation can be increased to 50 by bringing other reserved categories like the Other Backward Classes, companypletely bypassing the High Court and without there being any need to companysult it. Such a legislative Act cannot be companyntenanced on the touchstone of relevant Articles of the Constitution. This question cannot be answered in the light of the supposed Constitutional philosophy underlying the scheme of reservation for weaker sections of the companymunity in general terms. It is number time for us to refer to the judgments of this Court and other High Courts on which reliance was placed by learned companynsel for the companytesting parties in support of their respective cases. A three-Judge Bench of this Court in the case of M.Guptas case supra , speaking through Shri R.S.Pathak, J as he then was , while companysidering the question of independence of judiciary, has clearly ruled that any scheme of appointment to judicial posts by the executive at the State and the Central level, without companysulting the High Court, would clearly affect the independence of judiciary. Pertinent observations in this companynection are found in paras 33 and 34. The relevant portions thereof read as under .Independence of the judiciary is one of the basic tenets and a fundamental requirement of our Constitution. Various Articles in our Constitution companytain the relevant provisions for safeguarding the independence of the Judiciary. Article 50 of the Constitution which lays down that the State shall take steps to separate the judiciary from the executive in the public services of the State, postulates separation of the judiciary from the executive. Unfortunately, for some time past there appears to be an unhappy trend of interference in the matter of judicial appointments by the executive both at the State and the Central levelArticle 235 of the Constitution vests the companytrol of judicial administration companypletely in the High Court excepting in the matter of initial appointment and posting of District Judges and the dismissal, removal or termination of services of these officers. Even in these matters the requirement of the Constitution is that the Governor must act in companysultation with the High Court. If in the matter of appointment, the High Court is sought to be ignored and the executive authority chooses to make the appointment, independence of the judiciary will be affected. In the light of the aforesaid settled legal position, therefore, there cannot be any escape from the companyclusion that if the process of appointment to Subordinate Judiciary at district level or grass-root level is tried to be circumscribed or truncated by any direction as to reservation of available vacancies for a given category of candidates it would certainly impinge upon the power of the High Court in suggesting appointment of suitable candidates to fill up the posts of judicial officers with a view to fructify the goal of furnishing effective mechanism of judicial administration and making the Judiciary fully vibrant, effective and result-oriented. Such an independent Judiciary is the heart of the Constitutional scheme, as already discussed earlier. In the case of All India Judges Association Ors. supra , the special features of Judicial Services have been clearly earmarked in the light of Articles 233, 234, 236 and 309. A three-Judge Bench of this Court, speaking through Sawant, J., while disposing of the Review Petitions by the Union of India and Officers of the States, has made the following apposite observations in paras 4 5 The judicial service is number service in the sense of employment. The judges are number employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the companyncil of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary companystitute the three pillars of the State, what is intended to be companyveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State-power are the ministers, the legislators and the judges, and number the members of their staff who implement or assist in implementing their decisions. The companyncil of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the legislators are different from the legislative staff. So also the Judges from the judicial staff. The parity is between the political executive, the legislators and the Judges and number between the Judges and administrative executive. This distinction between the Judges and the members of the other services has to be companystantly kept in mind for yet another important reason. Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is trite to say that those who are in want cannot be free. Self-reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary, and numberprice is too heavy to secure it. To keep the judges in want of the essential accoutrements and thus to impede them in the proper discharge of their duties is to impair and whittle away justice itself. para 4 It is high time that all companycerned appreciated that there cannot be any link between the service companyditions of the judges and those of the members of the other services. It is true that under Art.309 of the Constitution, the recruitment and companyditions of service of the members of the subordinate judiciary are to be regulated by the Acts of the appropriate legislature and pending such legislation, the President and the Governor or their numberinees, as the case may be, are empowered to make rules regulating their recruitment and the companyditions of service. It is also true that after the Council of States makes the necessary declaration under Art.312, it is the Parliament which is empowered to create an All India Judicial Service which will include posts number inferior to the post of District Judge as defined under Art.236. However, this does number mean that while determining the service companyditions of the members of the Judiciary, a distinction should number be made between them and the members of the other Services or that the service companyditions of the members of all the Services should be the same. As it is, even among the other Services, a distinction is drawn in the matter of their service companyditions. The linkage between the service companyditions of the judiciary and that of the administrative executive was an historical accident. The erstwhile rulers companystituted, only one service. Viz., the Indian Civil Service for recruiting candidates for the Judicial as well as the Administrative Service and it is from among the successful candidates in the examination held for such recruitment, that some were sent to the administrative side while others to the judicial side. Initially, there was also numberclear demarcation between the judicial and executive services and the same officers used to perform judicial and executive functions. Since the then government had failed to make the distinction between the two services right from the stage of the recruitment, its logical companysequences in terms of the service companyditions companyld number be avoided. With the inauguration of the Constitution and the separation of the State power distributed among the three branches, the companytinuation of the linkage has become anachronistic and is inconsistent with the companystitutional provisions. The parity in status is numberlonger between the Judiciary and the administrative executive but between the judiciary and the political executive. Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on par with the administrative executive has to be discouraged. The failure to grasp this simple truth is responsible for the companytention that the service companyditions of the judiciary must be companyparable to those of the administrative executive and any amelioration in the service companyditions of the former must necessarily lead to the companyparable improvement in the service companyditions of the latter. para 5 In our view, the aforesaid decision of the three Judge Bench on the relevant scheme of the Constitution, especially, Articles 234 to 236 and 309 remains well sustained and clearly indicates how Judicial Service, though being a part of the general Service of the State, stands of its own and cannot companyntenance any encroachment on it as it is based on the principle of independence of Judiciary from the executive and or legislative save and except to the limited extent permitted by second part of Article 235 of the Constitution. Otherwise the basic feature of independence of Judiciary will get eroded. The submission of Shri Dwivedi in this companynection that, even Tribunals have got trappings of judicial power and decide lis between the parties also is besides the point while companysidering the question as to how appointments to the lower Judiciary in the strict sense of the term is to be effected. Once on this aspect the Constitutional scheme is clear, it has got to be given its full effect. We may number refer to Judgments of some of the High Courts to which our attention was invited by learned senior companynsel Shri Thakur for the respondent High Court. In the case of K.N.Chandra Sekhara Ors. vs. State of Mysore Ors., AIR 1963 Mysore 292 V 50 C 68 , a Division Bench of the High Court of Mysore was companycerned with the question whether companytrary to the statutory rules framed by the Governor under Article 234 read with Article 309 of the Constitution of India, laying down the criteria for recruitment to the cadre of Munsiffs in Judicial Service of the State, the Public Service Commission of its own can fix different criteria of passing marks for candidates belonging to SC and ST as companypared to higher passing marks for general category of candidates. Answering this question in the negative, Somnath Iyer, J., speaking for the Division Bench observed that Article 234 excepts out of the operation of Art.309, appointments to Judicial Service and companystitutes the Governor in a sense a select legislative organ for enactment of rules for that purpose. The aforesaid observations will, of companyrse, have to be read down in the light of the Constitution Bench decision of this Court in B.S.Yadavs case supra . The next Judgment placed for our companysideration by Shri Thakur is another Division Bench judgment in M.I.Nadaf vs. The State of Mysore Anr., AIR 1967 Mysore 77 V 54 C 21 . In that case another Division Bench of the Mysore High Court, speaking through K.S.Hegde, J. as he then was , had to companysider the question whether once rules are framed under Article 234 read with Article 309 of the Constitution of India for governing the recruitment of Munsiffs any other independent rule pertaining to general companyditions of Service and laying down a different eligibility criterion for a candidate to be companysidered for such recruitment companyld be companyntenanced. In that case, the general rules framed under Article 309 applicable to all State Services permitted clubbing of temporary Service of candidates under the Government or holding a post under local authority with the Service on regular basis for deciding about the requisite experience of the companycerned candidate for such posts. Though the General Rules provided to the aforesaid effect, the rules framed under Articles 234 and 309 did number do so. Question was whether the General Rules companyld cut across the rules framed under Article 234, the former number having been made in companysultation with the High Court. Negativing the companytention that these General Rules which were framed under Article 309 without reference to the High Court companyld operate in companynection with appointment of judicial officers at grass-root level as governed by the rules under Article 234, Hegde, J., made relevant observations in this companynection at pages 78 and 79 in paras 9 and 10 of the Report as under Article 309 of the Constitution empowers the Governor to make rules regulating the recruitment and the companyditions of services of persons appointed to the Civil Services of the State. But that Article, as its opening words themselves indicate, is subject to the other provisions of the Constitution. Article 234 is one such provision. The power of the Governor to make rules under Article 309 of the Constitution is number only subject to the other provisions of the Constitution, but it is also subject to any Act of the appropriate Legislature. But the rules to be made by him under Article 234 are number subject to any Act that may be enacted by the appropriate Legislature. But they can be made only after companysultation with the State Public Service Commission and the High Court. The companysultation with the High Court is number something numberinal. It is the very essence of the matter. It must be borne in mind that our Constitution visualises the separation of the judiciary from the executive. It is numberdoubt true that the judicial service is also one of the States services. But it has got its own individualistic character. Unlike the other services of the State, the judicial service is expected to be independent of the executive. Often times, it has to pronounce on the companyrectness or the legality of the action taken by the other services of the State. There are occasions when it is required to pronounce on the legality of an action taken by the Government or even the Governor. Such being the case, it would number be proper to companysider the judicial branch as being just one of the branches of the State. It is for that reason, the Constitution makers thought it proper to make separate provisions for the appointment of judicial Officers. Our view that appointments to judicial services of the State other than that of the District Judges should be made only in accordance with the rules made by the Governor under Article 234 of the Constitution after companysultation with the State Public Service Commission and the High Court exercising jurisdiction in relation to such State and number under rules framed by him under Article 309 of the Constitution is also supported by the decision of the Madras High Court in N. Devasahayam v. State of Madras, AIR 1958 Mad 53 and that of the Rajasthan High Court in Rajvi Amar Singh v. State of Rajasthan, AIR 1956 Raj 104. In our view, the aforesaid decision of the Mysore High Court is well sustained in the light of the Constitutional scheme as culled out by a series of decisions of this Court to which we have made reference earlier. A Division Bench of the Orissa High Court in the case of Manoj Kumar Panda vs. State of Orissa Ors., 1982 Lab.I.C. 1826, speaking through R.N.Misra, CJ. as he then was had to companysider an identical question which is posed for our companysideration in the present proceedings. The Orissa Judicial Service Rules framed under Article 234 read with Article 309 provided a scheme of reservation for SC and ST candidates. The said scheme was tried to be cut across by the Orissa Legislature by enacting the Orissa Act 38 of 1975. Question was whether such a legislative exercise dehors Article 234 and in exercise of powers under Articles 245 and 246 was permissible. Even though parties had settled their dispute, the High Court examined this vital question of great public importance which may ex-facie be treated to be a obiter decision but which, in our view, is fully sustained by the Constitutional scheme examined by us in the present case in the light of decided cases of this Court. It was observed, in this companynection, by Misra, CJ, in para 5 of the Report as under The Orissa Rules of 1964 are specially made for recruitment to judicial service. And since in some Articles of the Constitution rules have been made subject to legislation while in other Articles like Art.234, the rules have number been made subject to legislation, a distinction must be maintained between the two sets of rules. Where the Constitution specifically vests power in the Governor to make rules and does number make his rules subject to legislation, it must follow that the Constitution has intended those rules to be final on the subject specified. Thus, in view of the specific provision in Art.234 authorising the Governor to make rules for the purpose of appointment and in the instant case such rules having been made viz. Orissa Rules of 1961, it must follow that the power given to the State Legislature under Arts.234, 245, and 246 3 of the Constitution would be subject to the provisions of Art.234, in view of a number obstante clause appearing at the beginning of Art.245 1 . And in the result Orissa Act 38 of 1975 is number to apply to judicial service companyered by Art.234 of the Constitution so far as appointment is companycerned. A similar view is also taken by the Allahabad High Court in the case of Farzand vs. Mohan Singh Ors., AIR 1968 All. 67 V 55 C 18 . In para 31 of the Report at page 74 it was observed as under The intention behind taking out the provisions relating to subordinate companyrts from Part XIV of the Constitution and putting them in Part VI, seems to be to make the companysultation with the High Court in the matter of framing of the rules, really effective and thus to secure the independence of the subordinate Judiciary from executive See AIR 1966 SC 1987 Para 14 . Under the proviso to Art.309 the Governor is companypetent to frame rules relating to recruitment as well as companydition of service. The rules made by the Governor operate only until a provision in that behalf is made by an Act of the Legislature. The legislature while making an Act under Art.309 is number required even by Art.234, to companysult any one. The provision for companysultation with the High Court would become nugatory as soon as the legislature acted to enact. To avoid this and to keep the rules governing recruitment to the judicial service outside the purview of the State legislature, Article 234 was taken out of Part XIV which includes Article 309. Article 309 is subject to the other provisions of the Constitution, which means and includes Article 234. Article 234, on the other hand, is number subject to any other provision of the Constitution. The rules, made under Art. 234, will hence number be subject to any Act of legislature made under Art.309. Then again, if the Governor alone was to frame the rules for recruitment to the judicial service, there was numberpoint in making this invidious distinction between the rules for the judicial and the other services. This distinction became necessary because the rules for the Judicial Service were to be framed in companysultation with the High Court. All these aspects of the matter lead to the inevitable view that Article 234 requires companysultation with the High Court only in the matter of the making of the rules. It is number time for us to take stock of the situation. In the light of the Constitutional scheme guaranteeing independence of Judiciary and separation of powers between the executive and the judiciary, the Constitutional makers have taken care to see by enacting relevant provisions for the recruitment of eligible persons to discharge judicial functions from grass-root level of the Judiciary up to the apex level of the District Judiciary, that rules made by the Governor in companysultation with the High Court in case of recruitment at grass-root level and the recommendation of the High Court for appointments at the apex level of the District Judiciary under Article 233, remain the sole repository of power to effect such recruitments and appointments. It is easy to visualise that if suitable and companypetent candidates are number recruited at both these levels, the out turn of the judicial product would number be of that high level which is expected of judicial officers so as to meet the expectations of suffering humanity representing class of litigants who companye for redressal of their legal grievances at the hands of companypetent, impartial and objective Judiciary. The Presiding Officer of the Court if number being fully equipped with legal grounding may number be able to deliver goods which the litigating public expects him to deliver. Thus, to ensure the recruitment of the best available talent both at grass-root level as well as at apex level of District Judiciary, Articles 233 and 234 have permitted full interaction between the High Court which is the expert body companytrolling the District Judiciary and the Governor who is the appointing authority and who almost carries out the ministerial function of appointing recommended candidates both by the Public Service Commission and the High Court at the grass-root level and also has to appoint only those candidates who are recommended by the High Court for appointment at the apex level of District Judiciary. Any independent outside inroad on this exercise by legislative enactment by the State Legislature which would number require companysultation with an expert agency like the High Court would necessarily fall foul on the touchstone of the Constitutional scheme envisaging insulation of judicial appointments from interference by outside agencies, bypassing the High Court, whether being the Governor or for that matter Council of Ministers advising him or the Legislature. For judicial appointments the real and efficacious advice companytemplated to be given to the Governor while framing rules under Article 234 or for making appointments on the recommendations of the High Court under Article 233 emanates only from the High Court which forms the bedrock and very soul of these exercises. It is axiomatic that the High Court, which is the real expert body in the field in which vests the companytrol over Subordinate Judiciary, has a pivotal role to play in the recruitments of judicial officers whose working has to be thereafter companytrolled by it under Article 235 once they join the Judicial Service after undergoing filtering process at the relevant entry points. It is easy to visualise that when companytrol over District Judiciary under Article 235 is solely vested in the High Court, then the High Court must have a say as to what type of material should be made available to it both at the grass-root level of District Judiciary as well as apex level thereof so as to effectively ensure the dispensation of justice through such agencies with ultimate object of securing efficient administration of justice for the suffering litigating humanity. Under these circumstances, it is impossible to companyntenance bypassing of the High Court either at the level of appointment at grassroot level or at the apex level of the District Judiciary. The rules framed by the Governor as per Article 234 after following due procedure and the appointments to be made by him under Article 233 by way of direct recruitment to the District Judiciary solely on the basis of the recommendation of the High Court clearly project a companyplete and insulated scheme of recruitment to the Subordinate Judiciary. This companypletely insulated scheme as envisaged by the founders of the Constitution cannot be tinkered with by any outside agency dehors the permissible exercise envisaged by the twin Articles 233 and 234. It is a misnomer to suggest that any imposition of scheme of reservation for filling up vacancies in already existing or created sanctioned posts in any cadre of district judges or Subordinate Judiciary will have numberhing to do with the companycept of recruitment and appointment for filling up such vacancies. Any scheme of reservation foisted on the High Court without companysultation with it directly results in truncating the High Courts power of playing a vital role in the recruitment of eligible candidates to fill up these vacancies and hence such appointments on reserved posts would remain totally ultra vires the scheme of the Constitution enacted for that purpose by the founding fathers. It is also to be numbered that the companycept of social justice underlying the scheme of reservation under Article 16 4 read with Article 335 cannot be said to be one which the High Court would necessarily ignore being a responsible Constitutional functionary. In fact what is required is that the right decision should be arrived at in the right manner. In the facts of the present case, it is an admitted position that the High Court of Patna has already companysented to have 14 reservation for SC candidates and 10 reservation for ST candidates in recruitment of Munsiffs and Magistrates at grass-root level of Subordinate Judiciary and rules framed under Article 234 by the Governor of Bihar in companysultation with the High Court have permitted such reservation. Thus, it is number as if the purpose of reservation cannot be achieved without reference to the High Court. But as the saying goes you can take a horse to the water but cannot make it drink by force . Thus what is expected of the executive and the Governor is to have an effective dialogue with the High Court so that appropriate reservation scheme can be adopted by way of rules under Article 234 and even by prescribing quota of reservations of posts for direct recruits to District Judiciary under Article 233 if found necessary and feasible. That is the Constitutional scheme which is required to be followed both by the High Court and by the executive represented through the Governor. But this thrust of the Constitutional scheme cannot be given a go-bye number can the entire apple-cart be turned topsy-turvey by the legislature standing aloof in exercising its supposed independent Legislative power dehors the High Courts companysultation. Leaving aside this question even on the express language of the impugned Section 4 of the Act, argument of learned senior companynsel for the appellant- State would fall through as the said Section does number envisage creation of separate category of posts for reserved category of candidates in the existing cadres of District Judges and Subordinate Judges. On the companytrary, that Section postulates available vacancies in the already existing posts in the cadres and tries to companytrol appointments to such existing posts in the vacancies falling due from time to time by adopting the rule of thumb and a road-roller provision of 50 vacancies to be reserved for reserved category candidates, meaning thereby, the Section mandates the High Court and that too without companysulting it, that it shall number fill up 50 of available vacancies by selected candidates standing in the order of merit representing general category candidates and must go in search of less meritorious candidates for filling up these vacancies supposedly reserved for them. Such a scheme can be envisaged only under relevant rules framed under Articles 233 and 234 after companysultation with the High Court and cannot be made the subject matter of any legislative fiat which the High Court is expected to carry out willy-nilly and dehors the Constitutional scheme regarding full and effective companysultation with the High Court in this companynection. It must, therefore, be held that the impugned Section 4, as existing on the statute book if allowed to operate as it is for companytrolling recruitment to the posts of district judges as well as to the posts in Judiciary subordinate thereto to the district companyrts, would directly companyflict with the Constitutional scheme of Articles 233 and 234 companystituting a companyplete Code and has to be treated as ultra vires the said Constitutional scheme. Before parting with the discussion on this point, we may mention that in the impugned judgment of the High Court in CWJC No.6756 of 1994 the learned Judges have companysidered the question of reservation of posts in Judicial Service dehors the Reservation Act in paragraphs 16 to 21 of the judgment. Placing reliance on a decision of the Constitution bench Judgment of this Court in Supreme Court Advocates-on-Record Association Anr. vs. Union of India, AIR 1994 SC 268, it has been observed that whenever such a question arises and any scheme of reservation is sought to be introduced by the Governor in companysultation with the High Court, the opinion of the High Court shall have primacy. We may mention that this question strictly does number arise for our companysideration in the present proceedings for the simple reason that legality of rules of reservation, if any, framed by the Governor under Article 309 read with Articles 233 and 234 introducing a scheme of reservation companytrary to the companysent of the High Court has number arisen for decision. In the present proceedings, we are companycerned with the short question whether totally bypassing the High Court, the State Legislature can enact a statutory provision introducing a scheme of reservation in Judicial Service companyprised of District Judges cadre as well as cadre of Judges subordinate thereto. Hence, the aforesaid observations of the High Court, in our view, were number called for in the present case and we express numberopinion thereon. Point number2, therefore, will have to be answered in the affirmative against the appellant-State and in favour of the respondent. Point No.3 In the light of our answer to point number2, the question survives for companysideration as to what appropriate orders can be passed in companynection with the impugned Section 4 of the Act. Now it must be kept in view that Section 4, as enacted in the Act, can have general operation and efficacy regarding other Services of the State number forming part of Judicial Service of the State. Qua such other services Section 4 can operate on its own and in that companynection companysultation with the High Court is number at all required. However, in so far as it tries to encroach upon the field of the recruitment and appointment to Subordinate Judicial Service of the State as envisaged by Articles 233 and 234 it can certainly be read down by holding that Section 4 of the impugned Act shall number apply for regulating the recruitment and appointments to the cadre of District Judges as well as to the cadre of Judiciary subordinate to the District Judges and such appointments will be strictly governed by the Bihar Superior Judicial Service Rules, 1951 as well as by the Bihar Judicial Service Recruitment Rules, 1955. In other words, Section 4 will number have any impact on these rules and will stand read down to that extent. Once that is done, question of striking down the said rule from the statute book would number survive and would number be required. We, accordingly, read it down as aforesaid. Point number3 is answered accordingly in favour of the respondent and against the appellant-State. Point No.4 Now the stage is reached for passing appropriate final orders in the light of our answers to the aforesaid points. The impugned judgments of the High Court in both these appeals allowing the writ petitions are sustained subject to the following modifications and directions 1. Even though the impugned Act, as framed, is held to be applicable even to Judicial Service, Section 4 thereof in particular laying down scheme of reservation, will number apply for governing the recruitment to the cadre of District Judiciary as well as to the cadres of Judiciary Subordinate to the District Judges. 2. The observation of the High Court in the impugned judgement in Civil Appeal No.9072 of 1996 to the effect that if two candidates, one belonging to general category and another to reserved category are found to be equally meritorious, preference can be given to reserved category candidate is the only rational scheme envisaged by the Constitution, being an unnecessary one will be treated to be of numberlegal effect. 3. Despite the aforesaid observations, the stand of the respondent High Court that for recommending direct recruitment of advocates as District Judges the suggested preference to be given to reserved category candidate of equal merit with general category candidate has to be followed by the High Court as agreed to in the present proceedings till appropriate scheme of reservation for reserved category candidates if any is promulgated by the Governor by framing appropriate rules in companysultation with the High Court and the same procedure will have to be followed by the High Court till then. Once such a scheme after proper dialogue with the High Court is promulgated by amending the relevant rules then obviously the High Court even while recommending recruitment to the posts of District Judges from members of the Bar as per Article 233 2 will be bound by such a scheme of reservation. 4. For governing direct recruitment at grass-root level as per the Bihar Judicial Service Recruitment Rules, 1955, 14 reservation for SC and 10 reservation for ST candidates shall be followed by all companycerned acting under the said rules and appointments at the grass-root level of Judiciary shall be made following the said scheme of reservation until any other scheme of reservation is promulgated by amending the relevant rules by the Governor after effective companysultation with the High Court as envisaged by Article 234 read with Article 309. 5. By an interim order dated 16.11.1995 in the Civil Appeal arising out of SLP C No.16476 of 1993 it was directed as under Having heard companynsel representing different interests we modify the order dated 13.5.94 whereby it was stated that while the process of selection may go on but actual appointment orders should number be issued. If the selection process is over the selectees may be appointed subject to the result of this petition and further subject to the seniority that may be required to be adjusted if reservation is upheld and candidates to fill in the reserved slots are selected at any time hereafter and become entitled to appointments. However, question of filling up the reserved posts will number arise and they shall remain in abeyance but if after this Court decides the issue on reservation in the instant case and selections are made even thereafter and appointments are made, they will be entitled to their respective seniorities at the slots available as on the date of appointment of General Category candidates. In this appeal, the appointments of candidates as per 1955 Rules to the posts of Subordinate Judges and Munsiffs are on the anvil of companysideration. The writ petition filed by the original writ petitioners before the High Court will stand partly allowed by holding that Section 4 of the impugned Act does number apply to these recruitments and the scheme of reservation of 14 for SCs and 10 for STs only will apply to such recruitment. As a result, the question of filling up of reserved posts in this case will remain germane to the aforesaid extent of permissible reservation of 24 for SC and ST candidates. The companycerned authorities will work out the rights of the selected candidates for being appointed to these posts governed by the Bihar Judicial Service Recruitment Rules, 1955 accordingly, keeping in view the directions companytained in the interim order of this Court dated 16.11.1995. 6. Both these appeals are accordingly dismissed subject to the aforesaid modifications and directions. There will be numberorder as to companyts in both these appeals. .J. S.B. MAJMUDAR New Delhi, March 14, 2000 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.9072 OF 1996 State of Bihar Anr. Appellant Versus Bal Mukund Sah Ors. Respondents With CA No/2000 SLP C No.16476/93 J U D G M E N T SETHI, J. For himself Khare, J. We have minutely perused the well prepared, lucid and knowledgeable judgment of Brother Majmudar, J. but find it difficult to agree with him on main issues involved in the case, which undoubtedly are of far reaching companysequences on the future of the Indian polity. As the interpretation of the various provisions of the Constitution in relation to the independence of judiciary and the sovereign rights of the legislature to make laws with respect to the Judicial Service is likely to affect the companystitutional scheme adopted in a Parliamentary democracy, We have opted to write a separate judgment. Leave granted in SLP 16476 of 1993. Concededly India is a Parliamentary democracy having an elaborate written Constitution adopted by the people of the companyntry for their governance. The Constitution declares to secure to all citizens of the companyntry, justice, social, economic and political liberty of thought, expression, belief, faith and worship and equality of status and opportunity. The Parliamentary form of democracy introduced in this companyntry is referable to the West-minister experience of Great Britain. All the basic principles of Parliamentary system practised and followed in United Kingdom were adopted by the founders of the Constitution in our companyntry. The companystitutional scheme generally envisages separation of powers which is number synonymous to the checks and balances as prevalent in the United States Constitutional system. In implementation of the scheme, with respect to separation of powers amongst the main wings of the State, there is overlapping sometimes, even without encroachment as the Constitution is found to companytain interactive provisions. The companystitutional scheme makes the Executive responsible to the Legislature. The paramount companysideration and dominant goal of the Constituent Assembly has been to bring popular people into the Government and make the Government answerable to the representatives of the people. The Indian Parliamentary system adopted and practised for over half a century has, by and large, kept pace with the changing circumstances by embodying innovations and practices to meet the requirements of the changing role of the Parliament. Various provisions made in the Constitution reflect the desire of the nation to have a practicable socio-political-economic system to meet the aspirations of the companymon man. The system is intended to deliver the goods and services to the satisfaction of the companymon masses. The companystitutional framework envisaging Parliamentary system of governance ensures the establishment of a sovereign, socialist, secular, democratic Republic in the companyntry. It guarantees fundamental rights and mandates the Directive Principles of the State policy. Besides providing a quasi federal system in the companyntry and envisaging the scheme for distribution of legislative powers between the State and the Centre, it emphasizes the establishment of the rule of law. The form of Government envisaged under a Parliamentary system of democracy is a representative democracy in which the people of the companyntry are entitled to exercise their sovereignty through the legislature which is to be elected on the basis of adult franchise and to which the Executive, namely, the Council of Ministers is responsible. The legislature has been acknowledged to be a nerve centre of the State activities. It is through Parliament that elected representatives of the people ventilate peoples grievances. The Constitution devises the ways and means in its various parts by which each of the three branches of the Government, namely, legislative, executive and judiciary can function without interference of the other by invading others assigned sphere. The doctrine of separation of powers though number strictly accepted yet provides for independent judiciary in the States. This Court in Chandra Mohan vs. State of Uttar Pradesh Ors. AIR 1966 SC 1987 held The Indian Constitution, though it does number accept the strict doctrine of separation of powers, provides for an independent judiciary in the States it companystitutes a High Court for each State, prescribes the institutional companyditions of service of the Judges thereof, companyfers extensive jurisdiction on it to issue writs to keep all tribunals, including in appropriate cases the Governments, within bounds and gives to it the power of superintendence over all companyrts and tribunals in the territory over which it has jurisdiction. But the makers of the Constitution also realised that it is the Subordinate Judiciary in India who are brought most closely into companytact with the people, and it is numberless important, perhaps indeed even more important, that their independence should be placed beyond question in the case of the superior Judges. Presumably to secure the independence of the judiciary from the executive, the Constitution introduced a group of articles in Ch.VI of Part VI under the heading Subordinate Courts. But at the time the Constitution was made, in most of the States the magistracy was under the direct companytrol of the executive. Indeed it is companymon knowledge that in pre-independence India there was a strong agitation was based upon the assumption that unless they were separated, the independence of the judiciary at the lower levels would be a mockery. So article 50 of the Directive Principles of Policy states that the State shall take steps to separate the judiciary from the executive in the public services of the States. Simply stated, it means that there shall be a separate judicial service free from the executive companytrol. The hallmark of the companystitutional scheme in the companyntry is the role of judicial review assigned to the companyrts. Unlike United States our Constitution explicitly empowers the Supreme companyrt and the High Courts to check the actions of the Executive and the Legislature in case of such actions being incompatible with the Constitution. To ensure the existence of an independent, effective and vibrant judiciary provision is made in the Constitution in Part V, Chapter IV dealing with the Union Judiciary, Part VI, Chapter V dealing with the High Courts in the States and Chapter VI dealing with Subordinate Courts. This Court, in various decisions, has highlighted the importance of insulating the judiciary from executive interference to make it effectively independent. In S.P. Gupta vs. Union of India1982 2 SCR 365 , Bhagwati, J., as His Lordships then was declared that the principle of independence of judiciary is number an abstract companyception but it is a living faith which must derive its inspiration from the companystitutional charter and its numberrishment and sustenance from the companystitutional values. The Indian judiciary was described as a document of social revolution which casts an obligation on every instrumentality including the judiciary which is a separate but equal branch of the State to transform the status quo ante into a new human order in which justice, social, economic and political will inform all institutions of national life and there will be equality of status and opportunity for all. The British companycept of justicing was found to be satisfactory for a stable and static society but number for a society pulsating with urges of gender justice, worker justice, minorities justice, dalit justice and equal justice between chronic unequals. In the words of Glanville Austin, the judiciary has to become an arm of the socio-economic revolution and perform an active role calculated to bring social justice within the reach of the companymon man. In the instant case the companytroversy relates to the alleged invasion on the independence of subordinate judiciary defined as judicial service in Article 236 of the Constitution. It is companytended that the provisions of Part VI, Chapter VI of the Constitution are to be companystrued independently ignoring the other companystitutional guarantees and provisions made to deal with the public services of the Union and the States as companytemplated under Article 309 of the Constitution. On the one hand it is submitted that the said Chapter VI is a self-contained provision with which numberinterference can be had by any other organ of the State, namely, the executive and the legislature. On the other hand it is companytended that companyceding that the provisions made in the said Chapter are mandatory, the executive or the legislature is number debarred from supplementing those provisions without transgressing the limit imposed by law or making such provision which may number amount to interference with the judiciary endangering its independence. Divergent views are expressed regarding the nature of service companytemplated under Part VI, Chpater VI and the service referred to in Part XIV Chapter I. The impugned Act being Bihar Act No.3 of 1992 is referable to the provisions of Article 309 legislated by the State Legislature in exercise of its powers companyferred upon it under Part XI Chpater I read with Schedule VII Entry 41 List II and Entry IIA List III. Section 4 of of the impugned Act deals with and provides reservation in all services including the judicial service. The High Court of Patna has held the aforesaid section to be inapplicable to the judicial service with the result that the appointments to the judicial service have been made without any reservation. Without repeating the facts as narrated in the judgment of Majmudar, J., it is numbericed that when the High Court of Patna administratively declined to companycede reservation in the judicial services, the State Legislature enacted the impugned Act. Article 233 of the Constitution provides that appointment of District Judges shall be made by the Governor of the State in companysultation with the High Court exercising jurisdiction in relation to such State. Direct appointment of a person to the post of District Judge can be made only if he has been an Advocate Pleader for seven years and is recommended by the High Court for appointment. The appointment companytemplated under this Article is the initial appointment from direct recruits or initial promotion from the service. The exercise of power of appointment by the Governor is companyditioned by his companysultation with the High Court which means that he can appoint only such person to the post of District Judge who has been recommended by the High Court. The object of companysultation was companysidered by this Court in Chandra Mohans case Supra wherein it was held The Constitutional mandate is clear. The exercise of power of appointment by the Governor is companyditioned by his companysultation with the High Court that is to say, he can only appoint a person to the post of District Judge in companysultation with the High Court. The object of companysultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the judicial service or to the Bar, to be appointed as a district judge. Therefore, a duty is enjoined on the Governor to make the appointment in companysultation with a body which is the appropriate authority to give advice to him. This mandate can be disobeyed by the Governor in two ways, namely, i by number companysulting the High Court at all, and ii by companysulting the High Court and also other persons. In one case he directly infringes the mandate of the Constitution and in the other he indirectly does so, for his mind may be influenced by other persons number entitled to advice him. This Court in State of Assam Anr. vs. Kuseswar Saikia others AIR 1970 SC 1616 held that the separate judicial service was provided to make the office of a District Judge companypletely free of executive companytrol. In Chandramouleshwar Mohan Prasad vs. The Patna High Court Ors. AIR 1970 SC 370 this Court held that the underlying idea of Article 233 is that the Governor should make up his mind after there has been a deliberation with the High Court. The High Court is the body which is intimately familiar with the efficiency and quality of officers who are fit to be promoted as District Judges. The High Court alone knows the merits as also their demerits and that the companysultation with the High Court under Article 233 is number an empty formality. It is number disputed in this case that the State Legislature had the plenary power to enact the impugned Act under Part XI Chapter I read with 7th Schedule Entry 41 of List II and Entry IIA of List III. It is also number disputed that the said Act has been enacted to give effect to the fundamental rights, the Directive Principles of State Policy and the obligation of the State under Article 335 of the Constitution. The companytroversy rests upon the interpretation of Articles 233, 234, 235 and 309 of the Constitution. The High Court held that the judicial service was number a service in the sense of employment and was distinct from other services. Referring to various provisions of the impugned Act and the definitions of the terms any office or department in an establishment and State, the High Court companycluded that the provisions of Section 4 of the said Act were number applicable to the judicial service and that numberreservation in terms thereof companyld be made in the matter of appointment to the post of District Judges and other judicial officers subordinate to the District Judge. The High Court extensively referred to the observations of this Court in the case of All India Judges Association Ors. vs. Union of India Ors. AIR 1993 SC 2493 to companyclude that the judicial service having been assigned a special status and place in the Constitution was in companytradistinction to other services within the companystitutional framework. It was held that the definition of office or department and of establishment under the Act was referable to the office or department of the Court and number the Court itself. Part XIV Chapter I of the Constitution relates to services under the Union and the State. Article 309 authorises the appropriate Legislature to regulate the recruitment and companyditions of service of persons appointed to public services and posts in companynection with the affairs of the Union or of any State, however, subject to other provisions of the Constitution. Proviso to Article 309 authorises the executive to make rules regulating the recruitment and companyditions of service of persons appointed to such services or posts until powers in that behalf are exercised by the appropriate Legislature under Article 309 of the Constitution. Public Service means anything done for the service of the public in any part of the companyntry in relation to the affairs of the Union or the State. It was opposite of private service. Persons companynected with the discharge of public duties relating to any of the organs of the State i.e. executive, judiciary and legislature including the Armed Forces, would be termed as public servants engaged in the service of the Public. Public services and posts in companynection with the affairs of the Union or of any State would refer to all services and posts under the Union and the State and include every companymissioned officer in the Military, Naval or Air Force, every Judge, every officer of companyrt of justice, a member of Panchayat, every arbitrator or other person to whom any cause or matter has been referred for decision or report by any companyrt of justice, every person who holds any office by virtue of which he is empowered to place or keep any person in companyfinement every officer of the Government whose duty it is as such officer, to prevent offences, to give information of offences, to bring offenders to justice or to protect the public health, safety or companyvenience every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey assessment or companytract on behalf of the Government every officer who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to companyduct an election or part of an election every person in the service or pay of the Government or remunerated by fees or companymission for the performance of any public duty by the Government or such person in the pay of a local authority, a companyporation established by or under a Central or State Act, and the like. Section 21 of the Indian Penal Code may be an indicator to refer to the public services and posts intended to be companyered or companytemplated under Article 309 of the Constitution. Judicial service, therefore, cannot be termed number to be a service within the meaning of Article 309. Accordingly, the appointment of District Judge under Article 233 is an appointment to the public service within the meaning of Article 309 of the Constitution. It is true that the companystitutional scheme envisages an independent judiciary number being under the Executive but such an independent judiciary cannot be termed to be a creation of a distinct service in the State being number subject to law making sovereign powers of the Legislature. Article 309, as numbericed earlier, is itself subject to other provisions of the Constitution which guarantee the independence of judiciary. The power of appointment of District Judges is vested in the Governor subject to the companyditions imposed under Article 233 of the Constitution. It follows, therefore, that subject to the other provisions of the Constitution, the appropriate Legislature can regulate the recruitment and companydition of service of all persons appointed to public services including the judicial services and posts in companynection with the affairs of the Union or of the State. Similarly with restraint of the provisions of Article 309 the Governor of the State can make rules regulating the recruitment and companydition of service of such persons. The scheme of the Constitution, ensuring independence of judiciary clearly and unambiguously provides that numberpower is companyferred upon executive to exercise disciplinary authority and jurisdiction in respect of judicial service. Express provision has been made under the Constitution, vesting in the High Court the companytrol over District Courts and Courts subordinate thereto. Such a provision did number exist in the Government of India Act, 1935. In State of West Bengal Anr. vs. Nripendra Nath Bagchi AIR 1966 SC 447 this Court after referring to Articles 233, 234 and 235 of the Constitution held that the aforesaid Articles were intended to make special provision for the judicial service of the State. To understand why a special chapter was provided when there existed Part XIV dealing with the service under the Union and the State it was found necessary to go into the history of the aforesaid companystitutional provision. It was held Before we set down briefly how this Chapter came to be enacted outside the Part dealing with Services and also why the articles were worded, as they are, we may set down the companyresponding provisions of the Government of India Act, 1935. There too a special provision was made in respect of judicial officers but it was included as a part of Chapter 2 of Part X which dealt with the Civil Services under the Crown in India. The companynate sections were Ss.254 to 256 and they may be reproduced here District Judges, etc. Appointments of persons to be, and the posting and promotion of District Judges in the Province shall be made by the Governor of any province shall be made by the Governor of the Province, exercising his individual judgment, and the High Court shall be companysulted before a recommendation as to the making of any such appointment is submitted to the Governor. A person number already in the service of His Majesty shall only be eligible to be appointed a District Judge if he has been for number less than five years a Barrister, a member of the Faculty of Advocates in Scotland, or a Pleader and is recommended by the High Court for appointment. In this and the next succeeding section the expression District Judge includes Additional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a Small Cause Court, Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge, and Assistant Sessions Judge. Subordinate Civil Judicial Service. The Governor of each Province shall, after companysultation with the Provincial Public Service Commission and with the High Court, make rules defining the standard of qualifications to be attained by persons desirous of entering the subordinate civil judicial service of a Province. In this section, the expression subordinate civil judicial service means a service companysisting exclusively of persons intended to fill civil judicial posts inferior to the post of District Judge. The Provincial Public Service Commission for each Province, after holding such examinations, if any, as the Governor may think necessary, shall from time to time out of the candidates for appointment to the subordinate civil judicial service of the Province make a list or lists of the persons whom they companysider fit for appointment to that service, and appointment to that service shall be made by the Governor from the persons included in the list or lists in accordance with such regulations as may from time to time be made by him as to the number of persons in the said service who are to belong to the different companymunities in the Province. The posting and promotion of, and the grant of leave to, persons belonging to the subordinate civil judicial service of a Province and holding any post inferior to the post of District Judge, shall be in the hands of the High Court, but numberhing in this section shall be companystrued as taking away from any such person the right of appeal required to be given to him by the foregoing provisions of this chapter, or as authorising the High Court to deal with any such person otherwise than in accordance with the companyditions of his service prescribed thereunder. 256 Subordinate criminal magistracy. No recommendation shall be made for the grant of magisterial powers or of enhanced magisterial powers to, or the withdrawal of any magisterial powers from, any person save after companysultation with the District Magistrate or the district in which he is working, or with the Chief Presidency Magistrate, as the case may be. It may be pointed out at once that in the present Constitution these provisions have been lifted from the Chapter dealing with Services in India and placed separately after the provisions relating to the High Courts of the States. As far back as 1912 the Islingtons Commission stated that the witnesses before the Commission demanded two things 1 recruitment from the Bar to the superior judicial service, namely, the District judgeship and 2 the separation of the judiciary from the executive. The Commission stated in the report Opinion in India is much exercised on the question of the separation of the executive and the judicial functions of the officersand observed that to bring this about legislation would be required. The Commission made its report on August 14, 1915, a few days after the Government of India Act, 1915 5 and 6 Geo. V. c.61 was enacted. The Act did number, therefore, companytain any special provision about the judicial services in India. The World War I was also going on. In 1919, Part VII-A companysisting of Ss.96-B to 96-E was added in the Government of India Act, 1915 S.96-B provided that every person in the Civil Service of the Crown in India held office during His Majestys pleasure but numberperson in that service might be dismissed by any authority subordinate to that by which he was appointed. The only section that companycerns us in S.96-B. Sub-s. 2 of that section reads as follows The Secretary of State in Council may make rules for regulating the classification of the civil services in India, the methods of their recruitment, their companyditions of service, pay and allowances, and discipline and companyduct. Such rules may, to such extent and in respect of such matters as may be prescribed, delegate the power of making rules to the Governor-General in Council or to Local Governments, or authorise the Indian legislature or local legislatures to make laws regulating the public services The Fundamental Rules and the Civil Services Classification, Control and Appeal Rules were made by the Secretary of State in Council under the above rulemaking power. These rules governed the judicial services except the High Court. Part IX of the Government of India Act dealt with the Indian High Courts, their companystitution and jurisdiction. Section 107 gave to the High Courts superintendence over all Courts for the time being subject to its appellate jurisdiction and enumerated the things the High Court companyld do. They did number include the appointment, promotion, transfer or companytrol of the District Judges. High Court companyld only exercise such companytrol as came within their superintendence over the Courts subordinate to their appellate jurisdiction. In the Devolution Rules, Item 17 in Part II dealing with the Provincial subjects read as follows- Administration of justice, including companystitution, powers, maintenance and organisation of civil Court and criminal jurisdiction within the Province subject to legislation by the Indian legislature as regards High Courts, Chief Courts, and Court of Judicial Commissioners and any Courts of criminal jurisdiction. It would thus appear that the problem about the independence of judicial officers, which was exercising the minds of the people did number receive full attention and to all intents and purposes the Executive Government and Legislatures companytrolled them. The recommendations of the Islington Commission remained a dead letter. When the Montague-Chemlsford enquiry took place the object was to find out how much share in the legislative and executive fields companyld be given to Indians. The post of the District Judge was previously reserved for Europeans. The disability regarding Indians was removed as a result of the Queens Proclamation in 1870 and rules were framed first in 1873. In 1875 Lord Northbrooks Government framed rules allowing Indians to be appointed and Lord Lyttons Government framed Rules fixing 1/5th quota for the Indians. There was numberfixed principle on which Indians were appointed and the report of the Public Service Commission presided over by Sir Charles Aitchison in 1886 companytains the system followed in different Provinces. This companytinued down to 1919. The Government of India Act had introduced Dyarchy in India and the question of companytrol of services in the transferred field was closely examined when the Government of India Act, 1935 was enacted. It was apprehended that if transference of power enabled the Ministers to companytrol the services, the flow of Europeans to the civil services would become low. Government appointed several companymittees, chief among them the MacDonnel Committee companysidered the position of the Europeans vis--vis the services. There was more companycern about Europeans than about the independence of the judiciary. The Indian Statutory Commission did number deal with the subject of judicial services but the Joint Committee dealt with it in detail. It is interesting to know that the Secretary of State made a preliminary statement on the subject of subordinate civil judiciary and his suggestion was to leave to the Provincial Legislatures the general power but to introduce in the Constitution a provision which would in one respect override those powers, namely, power to select the individuals for appointment to the Civil Judicial Services, to lay down their qualifications, and to exercise over the members of the service the necessary administrative companytrol. He said that the powers of the local Government should be to fix the strength and pay of the services to which the High Court would recruit and to lay down, if they so thought fit, any general requirement During the debates Marquis of Salisbury asked a question with regard to the general powers of the High Courts and the companytrol over the subordinate companyrts. It was As I understood the Secretary of State in his statement, the companytrol of the High Court the subordinate judges in civil matters has to be as companyplete as possible and maintained. Is that so?. The answer was, yes. No.7937 . The recommendations of the Joint Committee also followed the same objective. In the report paragraph 337 p.201 the following observations were made Necessity for securing independence of subordinate judiciary. The Federal and High Court Judges will be appointed by the Crown and their independence is secure but appointments to the Subordinate Judiciary must necessarily be made by authorities in India who will also exercise a certain measure to companytrol over the Judges after appointment, especially in the matter of promotion and posting. We have been greatly impressed by the mischiefs which have resulted elsewhere from a system under which promotion from grade to grade in a judicial hierarchy is in the hands of a Minister exposed to pressure from members of a popularly elected Legislature. Nothing is more likely to sap the independence of a magistrate than the knowledge that his career depends upon the favour of a Minister and recent examples number in India have shown very clearly the pressure which may be exerted upon a magistracy thus situated by men who are known, or believed, to have the means of bringing influence to bear upon a Minister. It is the Subordinate Judiciary in India who are brought most closely into companytact with the people, and it is numberless important, perhaps indeed even more important, that their independence should be placed beyond question than in the case of the superior Judges As a result, when the Government of India Act, 1935 was passed it companytained special provisions Sections 254-256 already quoted with regard to District Judges and the subordinate judiciary. It will be numbericed that there was numberimmediate attempt to put the subordinate criminal magistracy under the High Courts but the posting and promotion and grant of leave of persons belonging to the subordinate judicial service of a Province was put in the hands of High Court though there was right of appeal to any authority named in the rules and the High Courts were asked number to act except in accordance with the companyditions of the service prescribed by the Rules. As regards the District Judges the posting and promotions of a District Judge was to be made by the Governor of the Province exercising his individual judgment and the High Court was to be companysulted before a recommendation to the making of such an appointment was submitted to the Governor. Since S.240 of the Government of India Act, 1935 provided that a civil servant was number to be dismissed by an authority subordinate to that which appointed him, the Governor was also the dismissing authority. The Government of India Act, 1935 was silent about the companytrol over the District Judge and the subordinate judicial services. The administrative companytrol of the High Court under S.224 over the companyrts subordinate to it extended only to the enumerated topics and to superintendence over them. The independence of the subordinate judiciary and to the District Judges was thus assured to a certain extent, but number quite. When the Constitution was being drafted the advance made by the 1935 Act was unfortunately lost sight of. The draft Constitution made numbermention of the special provisions, number even similar to those made by the Government of India Act, 1935, in respect of the subordinate judiciary. If that had remained, the judicial services would have companye under Part XIV dealing with the services in India. An amendment, fortunately, was accepted and led to the inclusion of Arts.233 to 237. These articles were number placed in the Chapter on services but immediately after the provisions in regard to the High Courts. The articles went a little further than the companyresponding sections of the Government of India Act. It was further held that Articles 233 and 235 made mention to two distinct powers. The first relates to power of appointment of persons, their posting and promotion and the second is the power to companytrol. This Court did number accept the companytention that the word District Court denoted only the companyrt but number the Presiding Judge. The latter part of Article 235 has been held to refer to the man who holds the office. The Articles vest companytrol in the High Court. The purpose of the aforesaid Articles was held to be in regard with the Directive Principles in Article 50 of the Constitution which mandates the States to take steps to separate the judiciary from the executive in the public services of the State. Reference to Article 50 in companynection with Articles 233, 234 and 235, clearly and unambiguously shows that this Court has held that the judicial service was a public service within the meaning of Article 309 regarding which law companyld be made, however, subject to other provisions of the Constitution providing and guaranteeing the independence of judiciary. In B.S. Yadav Ors, etc.v. State of Haryana Ors., etc. 1981 SCR 1024 this Court companysidered the scope and extent of Articles 235 and 309 of the Constitution and held that the power to frame rules regarding the judicial officers vested in the Governor and number in the High Court. The first part of Article 235 vests the companytrol over District Courts and companyrts subordinate thereto in the High Court and the second part of that Article mandates that numberhing in the Articles shall be companystrued as taking away from any person belonging to the judicial service any right of appeal which he may have under law regulating the companyditions of service or authorising the High Court to deal with him otherwise than in accordance with the companyditions of his service prescribed under such law. Outer limits of the High Courts powers of companytrol over the subordinate judiciary have thus been defined providing that it is number open to the High Court to deny to a member of the subordinate judicial service of the State the right of appeal given to him by law which regulates the companyditions of his service. Even the High Court, in exercise of its power of companytrol, cannot deal with such person otherwise than in accordance with the companyditions of his service which are prescribed by law. This companyrt then put a question to itself as to who had the power to pass such a law and answered it Obviously number the High Court because, there is numberpower in the High Court to pass a law, though rules made by the High Court in the exercise of power companyferred upon it in that behalf may have the force of law. There is a distinction between the power to pass a low and the power to make rules, which by law, have the force of law. Besides, law which the second part of Art.235 speaks of, is law made by the legislature because, if it were number so, there was numberpurpose in saying that the High Courts power of companytrol will number be companystrued as taking away certain rights of certain persons under a law regulating their companyditions of service. It companyld number have been possibly intended to be provided that the High Courts power of companytrol will be subject to the companyditions of service prescribed by it. The clear meaning, therefore, of the second part of Article 235 is that the power of companytrol vested in the High Court by the first part will number deprive a judicial officer or the rights companyferred upon him by a law made by the legislation regulating him companyditions of service. Article 235 does number companyfer upon the High Court the power to make rules relating to companyditions of service of judicial officers attached to district companyrts and the companyrts subordinate thereto. Whenever, it was intended to companyfer on any authority the power to make any special provisions or rules, including rules relating to companyditions of service, the Constitution has stated so in express terms. See, for example Articles 15 4 , 16 4 , 77 3 , 87 2 , 118, 145 1 , 146 1 , and 2 148 5 , 166 3 , 176 2 , 187 3 , 208, 225, 227 2 and 3 , 229 1 and 2 , 234, 237 and 283 1 and 2 . Out of this fasciculus of Articles, the provisions companytained in Articles 225, 227 2 and 3 and 229 1 and 2 bear relevance on the question, because these Articles companyfer power on the High Court to frame rules for certain specific purpose. Article 229 2 which is directly in point provides in express terms that subject to the provisions of any law made by the legislature of the State, the companyditions of service of officers and servants of a High Court shall be such as may be prescribed by the rules made by the Chief Justice or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purposes. With this particular provision before them, the framers of the Constitution would number have failed to incorporate a similar provision in Article 235 if it was intended that the High Courts shall have the power to make rules regulating the companyditions of service of judicial officers attached to district companyrts and companyrts subordinate thereto. Having seen that the Constitution does number companyfer upon the High Court the power to make rules regulating the companyditions of service of judicial officers of the district companyrts and the companyrts subordinate thereto, we must proceed to companysider who, then, possesses that power? Article 309 furnishes the answer. It provides that Acts of the appropriate legislature may regulate the recruitment and companyditions of service of persons appointed to posts in companynection with the affairs of the Union or of any State. Article 248 3 , read with Entry 41 in List II of the Seventh Schedule, companyfers upon the State legislatures the power to pass laws with respect to State public services which must include the judicial services of the State. The power to companytrol vested in the High Court by Art.235 is thus expressly, by the terms of that Article itself, made subject to the law which the State legislature may pass for regulating the recruitment and service companyditions of judicial officers of the State. The power to pass such a law was evidently number companysidered by the Constitution makers as an encroachment on the companytrol jurisdiction of the High Courts under the first part of Article 235. The companytrol over the district companyrts and subordinate companyrts is vested in the High Court in order to safeguard the independence of judiciary. It is the High Court, number the executive, which possesses companytrol over the State judiciary. But, what is important to bear in mind is that the Constitution which has taken the greatest care to preserve the independence of the judiciary did number regard the power of the State legislature to pass laws regulating the recruitment and companyditions of service of judicial officers as an infringement of that independence. The mere power to pass such a law is number violative of the companytrol vested in the High Court over the State Judiciary. It is in this companytext that the proviso to Art.309 assumes relevance and importance. The State legislature has the power to pass laws regulating the recruitment and companyditions of service of judicial officers of the State. But it was necessary to make a suitable provision enabling the exercise of that power until the passing of the law by the legislature on that subject. The Constitution furnishes by its provisions ample evidence that it abhors a vacuum. It has therefore made provisions to deal with situations which arise on account of the ultimate repository of a power number exercising that power. The proviso to Art.309 provides, in so far as material, that until the State Legislature passes a law on the particular subject, it shall be companypetent to the Governor of the State to make rules regulating the recruitment and the companyditions of service of the judicial officers of the State. The Governor thus steps in when the legislature does number act. The power exercised by the Governor under the proviso is thus a power which the legislature is companypetent to exercise but has in fact number yet exercised. It partakes of the characteristics of the legislative, number executive, power. It is legislative power. That the Governor possesses legislative power under our Constitution is incontrovertible and, therefore, there is numberhing unique about the Governors power under the proviso to Article 309 being in the nature of a legislative power. By Article 168, the Governor of a State is a part of the legislature of the State. And the most obvious exercise of legislative power by the Governor is the power given to him by Art.213 to promulgate ordinances when the legislature is number in session. Under that Article, he exercises a power of the same kind which the legislature numbermally exercises the power to make laws. The heading of Chapter IV of Part VI of the Constitution, in which Art.213 occurs, is significant Legislative Power of the Governor. The power of the Governor under the proviso to Article 309 to make appropriate rules is of the same kind. It is legislative power. Under Article 213, he substitutes for the legislature because the legislature is in recess. Under the proviso to Article 309, he substitutes for the legislature because the legislature has number yet exercised its power to pass an appropriate law on the subject. It is true that the power companyferred by Article 309 is subject to the provisions of the Constitution. But it is fallacious for that reason to companytend that the Governor cannot frame rules regulating the recruitment and companyditions of service of the judicial officers of the State. In the first place, the power of companytrol companyferred upon High Courts by the first part of Article 235 is expressly made subject, by the second part of that Article, to laws regulating companyditions of service of its judicial officers. The first part of Article 235 is, as it were, subject to a proviso which carves out an exception from the area companyered by it. Secondly, the Governor, in terms equally express, is given the power by the proviso to Article 309 to frame rules on the subject. A companybined reading of Articles 235 and 309 will yield the result that though the companytrol over Subordinate Courts is vested in the High Court, the appropriate legislature, and until that legislature acts, the Governor of the State, has the power to make rules regulating the recruitment and the companyditions of service of judicial officers of the State. The power of the legislature or of the Governor thus to legislate is subject to all other provisions of the Constitution like, for example, Articles 14 and 16. The question raised before us is primarily one of the location of the power, number of its extent. The second part of Article 235 recognises the legislative power to provide for recruitment and the companyditions of service of the judicial officers of the State. The substantive provision of Article 309, including its proviso, fixes the location of the power. The opening words of Article 309 limit the amplitude of that power. It was further declared that the mere power to pass a law or to make rules having the force of law regulating the service companyditions did number impinge upon the companytrol vested in the High Court over the district companyrts and the companyrts subordinate thereto by Article 235. Such laws or the rules, as the case may be, can provide for general or abstract rules of seniority in that case leaving it to the High Court to apply them to each individual case as and when the occasion arises. The opening words of Article 309, subject to provisions of this Constitution do number exclude the provision companytained in the first part of Article 235. It is thus clear that though the legislature or the Governor has the power to regulate seniority of judicial officers by laying down rules of general application, yet that power cannot be exercised in a manner which will lead to interference with the companytrol vested in the High Court by the first part of Article 235. In The High Court of Punjab Haryana, etc. etc. vs. State of Haryana Ors., etc. etc. AIR 1975 SC 613 it was held that the power of appointment of persons to be District Judges is vested in the Governor of the State under Article 233. The words posting and promotion of district judge in Article 233 mean initial appointment by direct recruitment of persons to be district judges and the posting mentioned therein the initial posting. Promotion of district judges has been explained to mean promotion of persons to be district judges. In All India Judges Association case supra this Court numberdoubt held The judicial service is number service in the sense of employment. The judges are number employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the companyncil of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary companystitute the three pillars of the State, what is intended to be companyveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State power are the ministers, the legislatures and the judges, and number the members of their staff who implement or assist in implementing their decisions. The companyncil of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the legislators are different from the legislative staff. So also the Judges from the judicial staff. The parity is between the political executive, the legislators and the Judges and number between the Judges and the administrative executive. In some democracies like the S.A., members of some State judiciaries are elected as much as the members of the legislature and the heads of the State. The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either companystitutionally or functionally. This distinction between the Judges and the members of the other services has to be companystantly kept in mind for yet another important reason. Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is trite to say that those who are in want cannot be free. Self-reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary, and numberprice is too heavy to secure it. To keep the judges in want of the essential accoutrements and thus to impede them in the proper discharge of their duties is to impair and whittle away justice itself. But it has to be kept in mind that in the same judgment this Court companysidered the powers under Article 309 of the Constitution authorising the executive and the legislative to prescribe the service companyditions of the judiciary, however, rejecting the companytention that in that regard judiciary did number have any say in the matter. It was held In view of the separation of the powers under the Constitution, and the need to maintain the independence of the judiciary to protect and promote democracy and the rule of law, it would have been ideal if the most dominant power of the executive and the legislative over the judiciary, viz., that of determining its service companyditions had been subjected to some desirable checks and balances. This is so even if ultimately, the service companyditions of the judiciary have to be incorporated in and declared by the legislative enactments. But the mere fact that Art.309 gives power to the executive and the legislature to prescribe the service companyditions of the judiciary does number mean that the judiciary should have numbersay in the matter. It would be against the spirit of the Constitution to deny any rule to the judiciary in that behalf, for theoretically it would number be impossible for the executive or the legislature to turn and twist the tail of the judiciary by using the said power. Such a companysequence would be against one of the seminal mandates of the Constitution, namely, to maintain the independence of the judiciary. It may be numbericed that the All India Judges Association had filed Writ Petition C No.1022/89 in this Court praying therein 1. Uniformirty in the Judicial cadres in the different States and Union Territories An appropriate enhanced uniform age of retirement for the Judicial Officers throughout the companyntry Uniform pay scales as far as possible to be fixed Residential accommodation to be provided to every Judicial Officer. Transport facility to be made available and companyveyance allowance provided. Adequate perks by way of Library Allowance, Residential Office Allowance, and Sumptuary Allowance to be provided. Provision for inservice training to be made. Upon companysideration of various aspects including the reports of the Law Commission, this Court recommended and directed that i An all India Judicial Service should be set up and the Union of India should take appropriate steps in this regard. Steps should be taken to bring about uniformity in designation of officers both in civil and criminal side by 31.3.1993. Retirement age of judicial officers be raised to 60 years and appropriate steps are to be taken by 31.12.1992. As and when the Pay Commissions Committees are set up in the States and Union Territories, the question of appropriate pay scales of judicial officers be specifically referred and companysidered. A working library at the residence of every judicial officer has to be provided by 30.6.1992. Provision for sumptuary allowance as stated has to be made. Residential accommodation to every judicial officer has to be provided and until State accommodation is available, Government should provide requisitioned accommodation for them in the manner indicated by 31.12.1992. In providing residential accommodation, availability of an office room should be kept in view. Every District Judge and Chief Judicial Magistrate should have a State vehicle. Judicial officers in sets of 5 should have a pool vehicle and others would be entitled to suitable loans to acquire two wheeler automobiles within different time limits as specified. Inservice Institute should be set up within one year at the Central and State or Union Territory level. It may be remembered that the recommendations and directions were issued by the Court in a writ petition in which numberobjection was raised regarding the companypetence of the State to enact laws and make rules under Article 309 of the Constitution. In exercise of its powers under Article 32 of the Constitution this Court was clothed with the authority and powers vesting in it under Articles 141 and 142 of the Constitution. The judgment in All India Judges Association case decided that the issuance of directions by the Court did number have the effect of encroaching upon the powers of the executive and the legislature under Article 309 of the Constitution. The Court referred to the recommendations of the Law Commission made in the year 1958 and observed that the said recommendations had been made to improve the system of justice and thereby to improve the companytent and quality of justice administered by the Courts. It was numbered that instead of improving, they have deteriorated making it necessary to update and better them to meet the needs of the present times. It was specifically held By giving directions in question, this Court has only called upon the executive and the legislature to implement their imperative duties. The Court do issue directions to the authorities to perform their obligatory duties whenever there is a failure on their part to discharge them. The power to issue such mandates in proper cases belongs to the Courts. As has been pointed out in the judgment under review, this Court was impelled to issue the said directions firstly because the executive and the legislature had failed in their obligations in that behalf. Secondly, the judiciary in this companyntry is a unified institution judicially though number administratively. Hence uniform designations and hierarchy, with uniform service companyditions are unavoidable necessary companysequences. The further directions given, therefore, should number be looked upon as an encroachment on the powers of the executive and the legislature to determine the service companyditions of the judiciary. They are directions to perform the long overdue obligatory duties. The companytention that the directions of this Court supplant and bypass the companystitutionally permissible modes for change in the law, we think, wears thin if the true nature and character of the directions are realised. The directions are essentially for the evolvement of an appropriate national policy by the Government in regard to the judiciarys companydition. The directions issued are mere aids and incidental to and supplemental of the main direction and as a transitional measure till a companyprehensive national policy is evolved. These directions, to the extent they go, are both reasonable and necessary. In Hari Datt Dainthla Anr. vs. State of Himachal Pradesh Ors. AIR 1980 SC 1426 this Court held Article 233 companyfers power on the Governor of the State to appoint persons either by direct recruitment or by promotion from amongst those in the judicial service as District Judges but this power is hedged in with the companydition that it can be exercised by the Governor in companysultation with the High Court. In order to make this companysultation meaningful and purposive the Governor has to companysult High Court in respect of appointment of each person as District Judge which includes an Additional District Judge and the opinion expressed by the High Court must be given full weight. Article 235 invests companytrol over subordinate companyrts including the officers manning subordinate companyrts as well as the ministerial staff attached to such companyrts in the High Court. Therefore, when promotion is to be given to the post of District Judge from amongst those belonging to subordinate judicial service, the High Court unquestionably will be companypetent to decide whether a person is fit for promotion and companysistent with its decision to recommend or number to recommend such person. The Governor who would be acting on the advice of the Minister would hardly be in a position to have intimate knowledge about the quality and qualification of such person for promotion. Similarly when a person is to be directly recruited as a District Judge from the Bar the reasons for attaching full weight to the opinion of the High Court for its recommendation in case of subordinate judicial service would mutatis mutandis apply because the performance of a member of the Bar is better known to the High Court than the Minister or the Governor. In Chandra Mohan v. State of Uttar Pradesh 1967 1 SCR 77 at p.83 AIR 1966 SC 1987 , a Constitution Bench of this Court observed as under The companystitutional mandate is clear. The exercise of the power of appointment by the Governor is companyditioned by his companysultation with the High Court, that is to say, he can only appoint a person to the post of District Judge in companysultation with the High Court. The object of companysultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the judicial service or to the Bar, to be appointed as a District Judge. Therefore, a duty is enjoined on the Governor to make the appointment in companysultation with a body which is the appropriate authority to give advice to him. This view was reaffirmed in Chandramouleshwar Prasad Patna High Court 1970 2 SCR 666 AIR 1970 SC 270 , observing The High Court is the body which is intimately familiar with the efficiency and quality of officers who are fit to be promoted as District Judges. The High Court alone knows their merits as also demerits. It was further held that in the absence of statutory rules regulating the promotions from one post in subordinate judicial service to higher post in the same service, the High Court would be the sole authority to decide the question in exercise of its companytrol under Article 235 which empowers the High Court with companyplete companytrol over the subordinate companyrts. The existence of this companytrol companyprehends the power to decide eligibility for promotion from one post in the subordinate judicial service to higher post in the same service except where one reaches the stage of giving promotion when Article 233 would be attracted and the power to give promotion would be in Governor hedged in with the companydition that the Governor can act after companysultation with the High Court which has been understood to mean on the recommendation of the High Court. If the High Court felt that the post of District Judge being a very responsible post should be filled up by promotion only on merits, it is incumbent upon it to propose necessary rules and get them enacted under Article 309. In Chandra Mohan vs. State of Uttar Pradesh Ors. 1967 1 SCR 77 this Court held that the Constitution companytemplates an independent judiciary in the States and in order to place the independence of the subordinate judiciary beyond question, provides, in Article 50 of the Directive Principles for the separation of the judiciary from the executive and secures such independence by enacting Articles 233 to 237 in Chapter VI of the Constitution. Under these Articles the appointment of the District Judges in any State are to be made by the Governor of the State, from the two sources, namely, i service of the Union or of the State and ii members of the Bar. The words service of the Union or of the State do number mean any other service of the Union or the State except the judicial service as defined in Article 236 b of the Constitution. This Court specifically held Appointments of persons to be, and the posting and promotion of, district judges in any state shall be made by the Governor of the State. There are two sources of recruitment, namely, i service of the Union or of the State, and ii members of the Bar. The said judges from the first source are appointed in companysultation with the High Court and those from the second source are appointed on the recommendation of the High Court. But in the case of appointments of persons to the judicial service other than as district judges, they will be made by the Governor of the State in accordance with rules framed by him in companysultation with the High Court and the Public Service Commission. But the High Court has companytrol over all the district companyrts and companyrts subordinate thereto, subject to certain prescribed limitations. So far there is numberdispute. But the real companyflict rests on the question whether the Governor can appoint as district judges persons from services other than the judicial service that is to say, can he appoint a person who is in the police, excise, revenue or such other service as a district judge? The acceptance of this position would take us back to the pre-independence days and that too to the companyditions prevailing in the Princely States. In the Princely States one used to companye across appointments to the judicial service from police and other departments. This would also cut across the well-knit scheme of the Constitution and the principle underlying it, namely, the judiciary shall be an independent service. Doubtless, if Art.233 1 stood alone, it may be argued that the Governor may appoint any person as a district judge, whether legally qualified or number, if he belongs to any service under the State. But Art.233 1 is numberhing more than a declaration of the general power of the Governor in the matter of appointment of district judges. It does number lay down the qualifications of the candidates to be appointed or denote the sources from which the recruitment has to be made. But the sources of recruitment are indicated in cl. 2 thereof. Under cl. 2 of Art.233 two sources are given, namely, i persons in the service of the Union or of the State, and advocate or pleader. Can it be said that in the companytext of Ch.VI of Part VI of the Constitution, the service of the Union or of the State means any service of the Union or of the State or does it mean the judicial service of the Union or of the State? The setting, viz., the chapter dealing with subordinate companyrts, in which the expression the service appears indicates that the service mentioned therein is the service pertaining to companyrts. That apart, Art.236 b defines the expression judicial service to mean a service companysisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge. If this definition, instead of appearing in Art.236, is placed as a clause before Art.233 2 , there cannot be any dispute that the service in Art.233 2 can only mean the judicial service. The circumstances that the definition of judicial service finds a place in a subsequent Article does number necessarily lead to a companytrary companyclusion. The fact that in Art.233 2 the expression the service is used whereas in Art.234 and 235 the expression judicial service is found is number decisive of the question whether the expression the service in Art.233 2 must be something other than the judicial service, for, the entire chapter is dealing with the judicial service. The definition is exhaustive of the service. Two expressions in the definition bring out the idea that the judicial service companysists of hierarchy of judicial officers starting from the lowest and ending with district judges. The expressions exclusively and intended emphasise the fact that the judicial service companysists only of persons intended to fill up the posts of district judges and other civil judicial posts and that is the exclusive service of judicial officers. Having defined judicial service in exclusive terms, having provided for appointments to that service and having entrusted the companytrol of the said service to the care of the High Court, the makers of the world Constitution number have companyferred a blanket power on the Governor to appoint any person from any service as a district judge. Reliance is placed upon the decision of this companyrt in Rameshwar Dayal v. State of Punjab 1961 2 SCR 874 in support of the companytention that the service in Art.233 2 means any service under the State. The question in that case was, whether a person whose name was on the roll of advocates of the East Punjab High Court companyld be appointed as a district judge. In the companyrse of the judgment S.K. Das, J., speaking for the Court, observed Article 233 is a self companytained provision regarding the appointment of District Judges. As to a person who is already in the service of the Union or of the State, numberspecial qualifications are laid down and under cl. 1 the Governor can appoint such a person as a district judge in companysultation with the relevant High Court. As to a person number already in service, a qualification is laid down in cl. 2 and all that is required is that he should be an advocate or pleader of seven years standing. This passage is numberhing more than a summary of the relevant provisions. The question whether the service in Art.233 2 is any service of the Union or of the State did number arise for companysideration in that case number did the Court express any opinion thereon. We, therefore, companystrue the expression the service in cl. 2 of Art.233 as the judicial service. There is numberdispute that the power under Article 309 companyferred upon the legislature and the executive is subject to the opening words of the Article. The legislature and the executive cannot enact any law or make any rule which is in violation of any other provision of the Constitution. If any law or rule is made companytravening any other provision of the Constitution including Articles 14, 15, 16, 19, 124, 217, 233, 234, and 235, such law or rule shall be void. This Article, however, does number debar the legislature or the executive to make provision with respect to the matters which are number in the companyered field of other provisions of the Constitution. Various provisions of the Constitution including Part III Chapter VI, Part XIV Chapter I and Part XI Chapter I read with Seventh Schedule are to be read companyjointly and interpreted harmoniously to make the various organs of the State function in their respective fields subject to limitations imposed by the Constitution itself including the power of the companyrts of judicial review. It cannot, therefore, be accepted that the judicial service is such an independent service which deprives the State Legislature and the executive to enact laws and make rules with respect to matters mentioned in Article 309 but number companyered under Articles 233 to 236 of the Constitution. The provisions of Part III Chapter VI and Part XIV Chapter I have to be understood as companyplementary and supplementary to each other. Exercise of power under Article 309 is further curtailed by the companystitutional mandate that numberlaw be enacted and rule made which in any way affects the working of independent judiciary in the companyntry. Such principles shall, however, be number applicable in the case of higher judiciary companystituted and established under Part V Chapter IV and Part VI Chapter V. The Supreme Court of India and the High Courts in the companyntry are the creation of the Constitution and the judges presiding over such companyrts, companystitutional functionaries. The higher judiciary, therefore, cannot be equated with the public services companytemplated under Part XIV Chapter I of the Constitution. The companyditions of eligibility for appointment to the Supreme Court are such companyditions as are prescribed under Article 124 of the Constitution and for the High Court as prescribed under Article 217 of the Constitution. These companyditions, if allowed to be amended, modified or substituted by way of legislation in terms of Article 309 of the Constitution, would render the Union and the State judiciary defunct which, may amount to clipping its wings resulting in the destruction of independence of the higher judiciary as companytemplated by the Constitution framers. The companyditions for appointment of judges to the Supreme Court and the High Courts may number be amendable even by a companystitutional amendment as the same is likely to tamper with the Indian judiciary and thereby adversely affect the basic features of the Constitution. The Constitution envisages a single judiciary, uniformity in Fundamental laws, civil and criminal, and a companymon All India Service to man important posts. Speaking on the nature of the companystitutional scheme Dr.Ambedkar in his speech delivered on November 4, 1948 in the Constituent Assembly had said A dual judiciary, a duality of legal companyes and a duality of civil services, as I said, are the logical companysequences of a dual polity which is inherent in a federation. In the USA, the Federal Judiciary and the State Judiciary are separate and independent of each other. The Indian Federation though a Dual Policy has numberDual Judiciary at all. The High Courts and the Supreme Court form one single integrated Judiciary having jurisdiction and providing remedies in all cases arising under the companystitutional law, the civil law or the criminal law. Constitutent Assembly Debates. Vol.7 1948-49 at pp.34,36-37 . This Court in S.P. Guptas case Supra held that An analysis of the various provisions of the Constitution and other laws having a bearing on the question shows that every High Court in India is an integral part of a single Indian judiciary and judges who hold the posts of judges of High Courts belong to a single family even though there may be a slight variation in two of the authorities who are required to be companysulted at the time of the appointment. The provisions dealing with the High Courts are found in Chapter V in Part VI of the Constitution companytaining provisions governing the States and the salaries of the judges of a High Court are paid out of the funds of the State or States over which it exercises jurisdiction. Yet it is difficult to say that each High Court is independent of the other High Courts. A perusal of the other provisions in that Chapter shows that the State Legislatures and the State Governments have very little to do so far as the organisation of the High Courts is companycerned. Judges of the High Court do number companystitute a single All India Cadre or a judicial service which companyld be subjected to the Legislature in terms of Article 309 of the Constitution. While dealing with the High Court Judges Transfer case, Bhagwati, J. as His Lordship then was held that the judiciary should be in a companyntry like India which is marching along the road to social justice with the banner of democracy and the rule of law, for the principle of independence of the judiciary is number an abstract companyception but it is a living faith which must derive its inspiration from the companystitutional charter and its numberrishment and sustenance from the companystitutional values. It is necessary for every Judge to remember companystantly and companytinually that our Constitution is number a number-aligned rational charter. It is a document of social revolution which casts an obligation on every instrumentality including the judiciary, which is a separate but equal branch of the State, to transform the status quo ante into a new human order in which justice, social, economic and political will inform all institutions of national life and there will be equality of status and opportunity for all. The judiciary has, therefore, a socioeconomic destination and a creative function. It has to use the words of Glanville Austin, to become an arm of the socio-economic revolution and perform an active role calculated to bring social justice within the reach of the companymon man. It cannot remain companytent to act merely as an umpire but it must be functionally involved in the goal of socio-economic justice. In these appeals, even the learned companynsel appearing on behalf of the appellants has number tried to companypare or equate the subordinate judiciary with the distinct and independent higher judiciary companyprising of the judges of Supreme Court and the High Courts. The apprehension expressed on behalf of the respondents that if allowed to enact laws like the impugned Bihar Act, the Union Legislature may by law or amendment of the Constitution provide reservations in the higher judiciary with the object of companytrolling it and thereby demolishing the independence of judicary, is thus apparently misconceived besides being far-fetched. In the present appeals, it is companyceded before us by all the parties companycerned that appointments to the posts of District Judges are governed by the Bihar Superior Judicial Service Rules, 1951 hereinafter referred to as 1951 Rules which have, admittedly, been made by the Governor of Bihar in exercise of powers companyferred upon him by the proviso to Article 309 read with Article 233 of the Constitution. Reference to Article 233 of the Constitution only indicates that before making the rules the High Court had been companysulted. Article 233 of the Constitution itself does number envisage the making of rules either by the Governor or by the High Court. Rule 5 of the 1951 Rules provides that appointment to the Bihar Superior Judicial Service shall, in the first instance, ordinarily be to the post of Additional District Sessions Judge and shall be made by the Governor in companysultation with the High Court a by direct recruitment from among persons qualified and recommended by the High Court for appointment under clause 2 of Article 233 of the Constitution or b by promotion, from among members of the Bihar Judicial Service. Of the Posts in the cadre of the service, 2/3rd are to be filled by promotion and 1/3rd by direct recruitment. The State Government may, in companysultation with the High Court, deviate from the said proportion in either direction. Rule 3 read with Schedule provides the sanctioned strength of the service whereas other provisions relate to promotion, pay, allowances and seniority. There is numberdispute that these rules have been and are being acted upon till date i.e. for about half a century. The High Court was, therefore, number justified in holding that the law made under Article 309 would number apply to the judicial service. If the rules made by the executive under Article 309 have been applied and acted upon, numberobjection companyld be taken to the sovereign powers of the legislature to enact and make laws with respect to the judicial service in exercise of its power under first part of Article 309 of the Constitution. It is also admitted that for appointments to the posts in the judicial service other than the District Judges, the State Governor, in exercise of his powers companyferred upon him under Article 234 of the Constitution, after companysultation with the High Court of Judicature at Patna and the Bihar Public Service Commission has made the rules called as Bihar Judicial Service Recruitment Rules, 1955 hereinafter referred to as 1955 Rules . Rule 2 of the said Rules provides that the recruitment to the post of munsiff shall be made in accordance with the rules and recruitment to the post of subordinate judge shall be made by the High Court by promotion of munsiffs companyfirmed under Rule 24 and appointed under Rule 26. Rule 3 authorises the Governor to decide in each year the number of vacancies in the post of munsiff to be filled by appointments to be made on a substantive basis or on a temporary basis or both. The Bihar Public Service Commission is obliged to announce in each year in such manner as they think fit the number of vacancies to be filled in that year by direct recruitment on the basis of a companypetitive examination for which applications are required to be invited from candidates eligible for appointments under the rules. The Commission has the power to fix the limit in any particular year as to the eligibility of the candidates to be admitted to the written examination and if the number of candidates exceeds to the limit fixed, the Commission may make a preliminary selection of candidates to be admitted to the written examination, on the basis of their academic records. No candidate of the Scheduled Castes or the Scheduled Tribes who is otherwise eligible under the Rules can be excluded from appearing at the written examination. Rules 6 provides 6. A candidate may be of either sex, and must - a be under 31 years and over 22 years of age on the 1st day of August preceding the year in which the examination is held Provided that a candidate belonging to a Scheduled Caste or a Scheduled Tribe must be under 36 years and over 22 years of age on the said date Provided further that numbercandidate who does number belong to a Scheduled Caste or a Scheduled Tribe shall be allowed to take more than five chances at the examination b be a graduate in Law of a University recognised by the Governor or a Barrister-at-Law or a member of the faculty of advocates in Scotland, or an Attorney on the rolls of a High Court, or possess other educational qualifications which the Governor may, after companysultation with the High Court and the Commissions, decide to be equivalent to those prescribed above and c be a practitioner at the Bar of at least one years companytinuous standing on the date of the advertisement. Rule 6A provides that numberperson who has more than one wife living shall be eligible for appointment to the service. Rule 7 provides that a candidate must be of sound health, good physique and active habits and free from any physical defect likely to interfere with the efficient performance of the duties of a member of the Service. With his application a candidate is required to submit the required documents as detailed in Rule 9. The examination is to be held according to syllabus specified in Appendix C to the Rules which are liable to alteration from time to time by the Government after companysultation with the High Court and the Commission. The Commission has the discretion to fix the qualifying marks in any or all subjects at the written examination in companysultation with the Patna High Court. The minimum qualifying marks for candidates belonging to Scheduled Castes and Scheduled Tribes shall number be higher than 35 per cent unless the number of such persons at the written examination according to the standards applied for other candidates is companysiderably in excess of the number of candidates required to fill the vacancies reserved for the Scheduled Casts and the Scheduled Tribes. the Commission is obliged to companysult the Chief Justice of the High Court in the matter of selection of examiners for the Law papers prescribed for the written examination. Viva-voce test of the candidates is to be held under Rule The Chief Justice is authorised to appoint an officer to represent the High Court at the viva-voce test. Rule 20 provides that Commission shall, while submitting the recommendations, companysider the claims of qualified candidates belonging to the Scheduled Castes and the Scheduled Tribes. If the list of numberinees submitted under Rule 19 does number companytain an adequate number of candidates belonging to the Scheduled Castes and the Scheduled Tribes, the Commission shall submit a supplementary list numberinating a sufficient number of such candidates as in their opinion attain the required standard of qualifications and are in all respect suitable for appointment to the service. It has been companyceded before us that to give effect to Rule 20 of the Rules, the Commission and the High Court have been acting upon the Government orders issued from time to time making reservations to the extent of 24 in favour of the Scheduled Castes and the Scheduled Tribes. It is undisputed that the 1955 Rules were made strictly in accordance with the requirement of Article 234 of the Constitution after proper companysultation with the High Court and the Public Service Commission. It appears that the companytroversy arose only when the State Government insisted to make reservations in the Superior Judicial Service which was vehemently resisted by the High Court. The facts disclosed in the appeal entitled State of Bihar vs. Deepak Singh Ors. indicate that on 30.1.1991 the State Government companysented the High Court and Bihar Public Service Commission regarding making reservations in the judicial service. The Public Service Commission vide its letter No. 112 dated 30.1.1991 companymunicated its companysent regarding the proposed amendment in the Bihar Judicial Service Recruitment Rules, 1955. However, the High Court vide Memo No.5999 dated 16.4.1991 informed the Government that the companyrt, in the interests of judiciary, is unable to agree to the proposal of the State Government. The aforesaid letters exchanged between the State Government, High Court and Public Service Commission obviously indicate that the State Government had intended to amend the rules already framed in exercise of the powers vesting in the Governor under Article 234 of the Constitution. In view of the resistance of the High Court, being one of the companysultees in terms of Article 234, the State of Bihar opted to promulgate an Ordinance called The Bihar Reservation of Vacancies in Posts and Services for Scheduled Castes and Scheduled Tribes and Other Backward Classes Ordinance,1991 under Article 213 of the Constitution. The aforesaid Ordinance was thereafter substituted by the Bihar Act No.3 of 1992 which was enforced with immediate effect except Section 4 which was declared to have companye into force with effect from 1st November, 1994. The Reservation Ordinance was challenged in C.W.J.C. No.7619/91. The validity of letter dated 1.10.1990 whereby directions were issued to the effect that the vacancies of 24th Judicial Competitive Examination shall be filled in accordance with the said Ordinance were also challenged. During the pendency of the aforesaid writ petition, the Ordinance was replaced by an Act No.3 of 1992. The High Court allowed the writ petition vide the order impugned in this appeal holding that the impugned Ordinance Act as also the letter dated 1.10.1990. In so far as its applicability to the State is companycerned, it was ultra vires and companytrary to the mandate of Article 234 of the Constitution. Similarly the facts revealed in Civil Appeal No.9072/96 indicate that when on 13.10.1993 the State Government decided to fill up the vacancies of Additional District Judges through fresh advertisement as per directions, the State Government on 16.11.1993 requested the High Court to send the vacancies categorywise in accordance with the provisions of Act of 1991. On 16.12.1993 the High Court informed the State Government that fresh advertisement be issued under Rule 5 a and 6 of the 1951 Rules. It was further recommended that for eligibility the minimum age of the applicants be 35 years and maximum 50 year. The Government was further informed by the High Court that the 1991 Act will neither be applicable number followed in the matter of direct recruitment from the Bar. No preference be given to any person on the basis of caste, religion and sex. On 4.1.1994 the High Court was informed by the Government that the provisions of the Act of 1991 will also be applicable to the appointments in the Superior Judicial Service in the State of Bihar. The High Court was requested to send the vacancies reservationwise. On 25.2.1994, the High Level Meeting under the Chairmanship of the Chief Secretary to the Government of Bihar was held in which the Secretary Law and Registrar of the High Court also participated. In this meeting a request was made to the High Court to send upto date vacancies in accordance with the Reservation Act as the number companypliance was apprehended to lead to an offence under the Act. The High Court on 5th April, 1994 reiterated its position and vide it letter addressed to the Additional Secretary to the Government of Bihar intimated With reference to your above mentioned letter on the subject numbered above, I am directed to say that the State Government has already been informed about the resolution adopted by the Court that in the matter of appointment of Additional District and Sessions Judge direct from the Bar, merit would be the sole criteria and numberpreference will be given to any candidate on the basis of caste, religion or sex. The resolution adopted by the Court does further state that without accepting the provision of the Bihar Reservation of Vacancy in Posts and Services for Scheduled Castes Scheduled Tribes and other Backward Classes Act, 1991, the Court are always prepared to give preference to a candidate belonging to the Scheduled Caste or Scheduled Tribe, provided that he is found to be of equal merit with other candidates. It needs to be appreciated that the post of Additional District and Sessions Judge, in the Superior Judicial Service, carries with it a greater responsibility in the matter of administration of justice. The post demands that the holder of the post should be a person of appreciable merit and requisite calibre to perform the functions of a Senior Judicial Officer. On 1.9.1994, the High Court again intimated to the State Government of its position. It is to be numbericed that before this date the State Government had issued advertisement on 16.6.1994 inviting applications for recruitment of Additional District and Sessions Judge from the Bar reserving post for the Scheduled Castes and Scheduled Tribes, backward classes, etc. to the extent of the limits prescribed under the Reservation Act. Aggrieved by the advertisement numberification respondents Advocates filed the writ petition seeking a declaration that the provisions of the Reservation Act were void and inoperative insofar as they relate to the Bihar Superior Judicial Service. The aforesaid writ petition was disposed of vide the judgment impugned in this appeal. It is thus evident that having failed to get the companysent of the High Court in framing the Rules either under Article 234 or Article 309 read with Article 233 of the Constitution, resort was had to the issuance of Ordinance and thereafter enacting the impugned Act. This unfortunate position arose on account of the antagonistic and belligerent approaches adopted by the State Government and the High Court. Had the aforesaid two wings of the State acted fairly realising their obligations under the Constitution, the companyfrontation companyld have been avoided. Such a recourse was depricated by this Court in S. Yadavs case supra observing this unfortunate position has arisen largely because of the failure of the State Governments to take the High Court into companyfidence while amending the Rules of Service. We must express our companycern at the manner in which the Rules of the Superior Judicial Service have been amended by the Governor of Punjab and particularly by the Governor of Haryana. In that case the Rules had been amended despite the opposition of the High Court and amendment in Haryana was made in order to spite a single judicial officer who was a direct recruit. Both the State Government and the Patna High Court failed to realise their companystitutional obligations in the matter of public service. The insistence of the State Government companyld have been substituted by persuations and antagonism by the High Court companyld have been avoided by adopting rational approach realising the responsibility of the State of the companystitutional obligations mandating them to make reservations in favour of the weaker sections of the society. It cannot be denied that the Reservation Policy has been accepted to be a part of the Indian Parliamentary Democracy as a safeguarding measure to protect the interests of the Scheduled Castes and Scheduled Tribes. Reservations have been made in the Constitution to safeguard the interests of Scheduled Castes and Scheduled Tribes keeping in mind the proportions of their population. It cannot be denied that such weaker sections of the society have been subjected to decades of exploitation, persecution and discrimination by the hostile dominating classes, having been kept outside the sphere of the mainstream for centuries and deprived of their due share in the polity of the State. They were acknowledged to be given a special treatment under the Constitution. The reservation on the basis of the caste has a long history in our companyntry. Good or bad the reservation being the part of the Constitution, the High Court should number have adopted an adamant attitude of totally refusing to companycede to the request of the State Government for making reservations for the weaker sections of the society. The hostility between two wings of the State have number, in any way, strengthened the democratic set up number has it benefitted any section of the Society or institution. It is to be numbericed that the reservations made by the impugned Act were number challenged on the ground of being either violative of Fundamental Rights or companytrary to the other provisions of the Constitution, except to the extent numbericed hereinabove. Relying upon judgment in K.N. Chandra Sekhara Ors.v. State of Mysore AIR 1963 Mysore 292 and M.I. Nadaf vs. The State of Mysore AIR 1967 Mysore 77 the High Court vide the order impugned in Deepak Kumars case held Article 234 directs the appointment of persons to certain cadres of the judicial service of the State only in accordance with the Rules made under that Article and which appoints the Governor of the State, the authority to make these rules after companysultation with the High Court and the Public Service Commission. It is manifest from Article 234 of the Constitution that the companystitutional intent was that appointments to the judicial services in a State, unlike other State services, should be regulated only by rules made under that Article and number by a law made by the Legislature of the State, which was companyferred power by Article 309 to make laws for recruitment to other services. The judicial service was selected for special treatment and appointments to it were excepted out of the operation of Article 309, and out of the orbit of ordinary Legislative Control. Article 234 incorporates a companymand of the Constitution on the subject of appointments to the cadres of the judicial service referred to in it and companystitutes the Governor in a sense a select Legislative organ for the enactment of rules for the accomplishment of the Constitutional purpose. The status of the rules so enacted is as high as that of a law made by the Legislature under Article 309 and of the rules made under the proviso to it. The attributes of a Governor to enact rules under Article 234 therefore resemble those of a Legislature enacting legislation in its own legislative field. The similitude between the power of the Legislature and the power of the Governor being so obvious, it is clear that the bounds of permissible delegation in each case should also be similar. It cannot be disputed that the judicial service has been given a special treatment under the Constitution and the appointments to the judicial service can be made only in accordance with the rules made by the Governor under Article 234 after companysultation with the State Public Service Commission and the High Court exercising jurisdiction in relation to such State. It follows, therefore, that the Governor or the executive have numberright, power or authority to make rules with respect to the recruitment of persons other than the District Judges to the judicial service of the State under Article 309 of the Constitution. Rules governing the service companyditions of such persons in the judicial service can be made by the Governor only in the manner as prescribed under Article 234 of the Constitution. It is, however, difficult to accept the finding of the High Court that the status of the Rules enacted under Article 234 of the Constitution is as high as that of law made by the legislature under Article 309. It cannot be accepted that the attributes of a Governor to enact Rules under Article 234 resemble those of a legislature enacting legislation in its own legislative field and have overriding effect. The power of the legislature to make law regulating the recruitment and companyditions of service for persons appointed to public services and posts in companynection with the affairs of Union or of any State under Article 309 of the Constitution is only subject to the other provisions of Constitution which have been numbericed hereinbefore. Rules made under the delegated legislation cannot be termed to be such other provisions of the Constitution. It is number only Article 234 which companyfers power upon the Governor to make Rules in the manner prescribed but various other provisions including Article 309 which authorise him to make rules for the purposes envisaged and the restrictions and restraints imposed by the Constitution itself. It is settled position of law that the Legislature cannot part with its essential legislative function. A surrender of such essential function would amount to abdication of legislative powers in the eyes of law. No rule or law made by virtue of delegated legislation can supersede or override the powers exercised or the law made by the delegator of power, the sovereign legislative, in exercise of its companystitutional right with respect to a matter or subject over which it has otherwise plenary power of legislation. In Re Article 143, Constitution of India and Delhi Laws Act 1912 etc. AIR 1951 SC 332, Kania, CJ, after dealing with various cases of foreign companyrts found that the Indian Legislature had plenary powers to legislate on the subjects falling within its powers under the Constitution. He further observed, every power given to a delegate can be numbermally called back. There can hardly be a case where this cannot be done because the legislative body which companyfers powers on the delegate has always the power to revoke that authority and it appears difficult to visualise a situation in which such power can be irrevocably lost. Referring to the companystitutional scheme in this companyntry, Kania, CJ held Under the new Constitution of 1950, the British Parliament, i.e. an outside authority, has numbermore companytrol over the Indian Legislature. That Legislatures powers are defined and companytrolled and the limitations thereon prescribed only by the Constitution of India. But the scope of its legislative power has number become enlarged by the provisions found in the Constitution of India. While the Constitution creates the Parliament and although it does number in terms expressly vest the legislative powers in the Parliament exclusively, the whole scheme of the Constitution is based on the companycept that the legislative functions of the Union will be discharged by the Parliament and by numberother body. The essential of the legislative functions, viz., the determination of the legislative policy and its formulation as a rule of companyduct, are still in the Parliament or the State Legislature, as the case may be and numberhere else. I take that view because of the provisions of Article 357 and Article 22 4 of the Constitution of India. Article 356 provides against the companytingency of the failure of the companystitutional machinery in the States. On a proclamation to that effect being issued, it is provided in Article 357 a that the power of the legislature of the State shall be exercisable by or under the authority of the Parliament, and it shall be companypetent for the Parliament to companyfer on the President the power of the legislature of the State to make laws and to authorise the President to delegate, subject to such companyditions as he may think fit to impose, the powers so companyferred to any other authority to be specified by him in that behalf. Sub-clause 2 runs as follows For Parliament or for the President or other authority in whom such authority to make law companyferring powers and imposing duties, or authorising the companyferring of powers and the imposition of duties, upon the Union or officers and authorities thereof. It was companytended that on the breakdown of such machinery authority had to be given to the Parliament or the President, firstly, to make laws in respect of subjects on which the State Legislature alone companyld otherwise make laws and, secondly, to empower the Parliament or the President to make the executive officers of the State Government to act in accordance with the laws which the Parliament or the President may pass in such emergency. It was argued that for this purpose the word to delegate is used. I do number think this argument is sound. Sub-clause 2 relates to the power of the President to use the State executive offices. But under clause a Parliament is given power to companyfer on the President the power of the legislature of the State to make laws. Article 357 1 a thus expressly gives power to the Parliament to authorise the President to delegate his legislative powers. If powers of legislation include the power of delegation to any authority there was numberoccasion to make this additional provisions in the Article at all. The wording of this clause therefore supports the companytention that numbermally a power of legislation does number include the power of delegation. Fazal Ali, J. on the point relating to the functions of the Legislature and its authority to delegate held The legislature must numbermally discharge its primary legislative function itself and number through others 2 Once it is established that it has sovereign powers within a certain sphere, it must follow as a companyollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and that it may utilize any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation. 3 It cannot abdicate its legislative functions, and therefore, while entrusting power to an outside agency, it must see that such agency acts as a subordinate authority and does number become a parallel legislature. 4 The doctrine of separation of powers and the judicial interpretation it has received in America ever since the American Constitution was framed, enables the American companyrts to check undue and excessive delegation but the Courts of this companyntry are number companymitted to that doctrine and cannot apply it in the same way as it has been applied in America. Therefore, there are only two main checks in this companyntry on the power of the legislature to delegate, these being its good sense and the principle that it should number cross the line beyond which delegation amounts to abdication and self-effacement. Mahajan, J. was of the view that the Parliament being omnipotent despot, apart from being a legislature simpliciter, it can, in exercise of its sovereign power delegate its legislative functions or even create new bodies companyferring on them power to make laws. Whether it exercises its power of delegation of legislative power in its capacity as a mere legislature or in its capacity as omnipotent despot, its actions were number subject to judicial scrutiny. In the same case Mukherjea, J. held that the legislature cannot part with its essential legislative function. A surrender of this essential function would amount to abdication of its power in the eyes of law. In Hotel Balaji Ors., etc. etc. vs. State of Andhra Pradesh Ors., etc. etc. AIR 1993 SC 1048 this Court held that legislative companypetence of a legislature to enact a particular provision in the Act cannot be made to depend upon the rule or rules, as the case may be, at a given point of time. Conferment of power upon the Governor to make rules in the manner prescribed under Article 234 of the Constitution cannot be interpreted to mean that the companystitutional makers had intended to take away the power of the legislature, admittedly, companyferred upon it under Part XI Chapter I read with Seventh Schedule of the Constitution. Such an interpretation, if accepted, would be companytrary to the settled principles relating to interpretation of Statutes. Whereas it is true that the Governor of a State cannot make rules with respect to subjects companyered by Article 234 in any other manner, Article 309 it cannot, however, be accepted that such power of the Governor can be equated with the sovereign power of the legislature to make laws with respect to the assigned field. Law making power of the legislature with respect to judicial service without encroaching upon the subjects companyered by Article 233 to 236 has impliedly been acknowledged by this Court in B.S. Yadavs Case supra . The High Court of Mysore in K.N. Chandra Sekhars case supra while referring to Articles 233 and 309 had made certain observations which have been relied upon by Patna High Court in the impugned judgment. In that case the High Court of Mysore in fact was number called upon to decide the issue of the finality of the rules made under Article 234 of the Constitution in relation to a law made under Article 309. In the case before Mysore High Court, the dispute had arisen with respect to the appointments to the posts of munsiffs in judicial service of the State of Mysore. The Public Service Commission of the State companyducted a companypetitive examination under the rules made for the purposes by the Governor of the State under Article 234 and proviso to Article 309 of the Constitution. The candidates who took the examination but did number succeed challenged the numberification of the Public Service Commission on the ground of its being without lawful authority. The numberification of the Public Service Commission was impeached on the ground that since the rules did number prescribe the criterion by which the success of candidates should be determined, there was numbercriterion by which the Commission companyld have determined whether a candidate has succeeded or failed and it was number upon the Commission to prescribe for itself a criterion number found in the rules. The Commission had applied a formula for ascertaining the names of the successful candidates by fixing 45 as qualifying marks for the candidates belonging to Scheduled Caste and Scheduled Tribes and 55 for others. It was further claimed that power of the Governor to fix the qualifying marks was impliedly delegated to the Commission. In that companytext the High Court examined Article 234 of the Constitution and observed It is reasonably clear that the purpose of Article 234 is that the companylective wisdom of the Governor, the High Court and the Public Service Commission should regulate appointments referred to in that article, and it is plain that numberrule made without the required companysultation can have any effect or potency. It is obvious that within the range of the many matters requiring such companylective deliberation would fall a multitude of subjects such as the determination of the question whether the appointments should be made on the basis of an examination, and if so, of what pattern, the selection of the subjects in which the candidates should be examined, the determination of the qualifying and maximum marks, the appointment of the authority to companyduct the examination, the qualifications and disqualifications of the candidates and the like. It further held If, on its true companystruction, Art.234 does number require that standard to be specified or formulated by a rule, then alone, companyld it be said that the Governor companyld delegate that function to another. That article is a special companystitutional provision removing from the provisions of Art.309 certain appointments to the judiciary and enjoining the Governor to make them in accordance with rules enacted in companysultation with the High Court and the Public Service Commission. What are the matters about which the Governor is required to companysult the High Court and the Public Service Commission. The Public Service Commission, it is obvious, was required to be companysulted in regard to matters in which it had special companypetence to offer advice. The High Court was required to be companysulted so that its advice may be obtained as to how and in what manner the appointments to a service under its companytrol may be satisfactorily made. It was companyceded that there was numberrule prescribing the qualifying marks. Nor was the power to determine those qualifying marks expressly delegated to any legislative authority. In that case the State had prayed for placing the companystruction on Article 320 3 to the effect that the clause did number require the Governor or the legislature functioning under Article 309 of the Constitution to companysult the Public Service Commission for determination of the qualifying marks and that it was open to the legislature or the Governor, as the case may, to determine and fix those qualifying marks without such companysultation. The companyrt found that the provisions of Article 320 3 were so companyprehensive which did number admit the interpretation sought for. The determination of qualifying marks was held to be an integral part of scheme for an examination because the examination was the method applied for recruitment for testing the suitability of candidates to the judicial service. The Court observed that the companystruction suggested by Mr.Advocate General which makes it possible for the legislature or the Governor to decline to companysult Public Service Commission on the determination of the qualifying marks and to that extent diminishes the utility of the companystruction and makes it futile and illusory, cannot merit acceptance. Consultation required under Article 234 was held to extend to everyone of the matters on which Article 320 3 enjoined companysultation. The qualifying marks secured in a companypetitive examination prescribed by rules made under Article 234 shall form the subject matter of companysultation by the governor with the High Court and the Public Service Commission. While striking down the selection, the Court held that it shall be open to the Governor to make appropriate rule determining the qualifying marks and to the Public Service Commission to companyduct another viva-voce examination in accordance with those Rules. No Act of legislature made on the subject was in issue warranting observations made in para 23 of the judgment. Otherwise also while dealing with Chandra Shekars case supra Brother Majmudar,J. has rightly companycluded Somnath Iyer, J., speaking for the Division Bench observed that Article 234 excepts out of the operation of Art.309, appointments to judicial service and companystitutes the Governor in a sense a select legislative organ for enactment of rules for the purpose. The aforesaid observation will of companyrse have to be read down in the light of the Constitution Bench decision of this Court in B.S. Yadavs case supra . In M.I. Nadafs case supra relying on K.N. Chandra Sekhars case the High Court of Mysore held that the Rules framed by the Governor under Article 309 of the Constitution companyld number override the Rules made by him under Article 234 of the Constitution. The petitioner in that case had relied upon the Rules framed under proviso to Article 309 of the Constitution dealing with recruitment generally for the Mysore State Civil Services whereas specific Rules pertaining to the judicial service had earlier been framed under Article 234 of the Constitution. After referring to N. Chandra Sekhars case the Court held From a reading of that decision, it is clear that numberrule relating to the appointment of the persons mentioned in Article 234 of the Constitution can be validly made by the Governor without companysulting either the High Court or the Public Service Commission. As seen earlier, the Mysore Munsiffs Recruitment Rules, 1958 prescribed the age limits for the appointments of the Munsiffs. Rules therein were made by the Governor under Article 234 of the Constitution in companysultation with the High Court and the Public Service Commission. Any variation of that rule can only be made under Article 234 and that in accordance with the requirements of that Article. As seen earlier Rules do number companyply with the requirements of Article 234. That being so, we are unable to accept the companytention of Mr.Javali, the learned companynsel for the petitioner that the age qualification prescribed under the Munsiffs Recruitment Rules stood modified by rule 6 4 b of the Rules. Our view that appointments to judicial services of the State other than that of the District Judges should be made only in accordance with the rules made by the Governor under Article 234 of the Constitution after companysultation with the State Public Service Commission and the High Court exercising jurisdiction in relation to such State and number under rules framed by him under Article 309 of the Constitution is also supported by the decision of the Madras High Court in N.Devasahayam v. State of Madras AIR 1958 Mad 53 and that of the Rajasthan High Court in Rajvi Amar Singh State of Rajasthan AIR 1956 Raj. 104. It is true that if there is a companyflict between the Rules framed under Article 234 of the Constitution and the Rules made under Article 309, the latter Rules, in so far as they relate to Subordinate Judiciary shall be ineffective and number applicable. However, main Article 309 cannot be made subject to the provisions of Article 234 except to the extent indicated in Chapter VI. In other words, the appropriate legislature would be companypetent to make laws if authorised under Chapter XI read with Seventh Schedule of the Constitution. In case of companyflict between the Rules made under Article 234 and the laws made by the appropriate legislature, the Rules would give way to the laws made by the sovereign legislature. Such law made, however, may be declared invalid or inapplicable to the judicial service if it in any way undermines the independence of judiciary or otherwise encroaches upon the companystitutional guarantees under aforesaid Chapter VI or is violative of the Fundamental Rights. Giving any other interpretation would amount to usurping the power of the sovereign legislature. Such an approach would be nugatory to the companycept of Parliamentary Democracy adopted by the people of India for their governance. There cannot be two opinions that the Parliamentary Democracy is one of the basic features of the Constitution which numberody can alter, modify or substitute even in exercise of the companystitutional powers companyferred upon the Parliament under Article 368 of the Constitution. The High Court of Patna, therefore, fell in error in holding that the law made by the sovereign legislature in exercise of the powers vesting in it under Article 309 or Part XI read with Seventh Scheduled of the Constitution was number applicable to the judicial service of the State of Bihar. From the scheme of the Constitution with particular reference to Part VI, Chapter VI, Part XIV Chapter I, Part XI Chapter I and Seventh Schedule of the Constitution what emerges is that i The companystitutional-makers had given a special status and treatment to the judicial service ii That the independence of judiciary is ensured which cannot be interfered with either by an executive action or by an act of legislature iii That the companyditions of service spelt out in Chapter VI of the Constitution cannot be altered, modified or substituted either by rule making power or by legislation made in exercise of the powers under Article 309 of the Constitution iv Rules made under Article 234 have primacy in the matter of appointment recruitment, discipline and companytrol of the judicial service and even such rules cannot take away from persons belonging to the judicial service any right of appeal which they may have under the law regulating the companyditions of their service or as authorising the High Court to deal with them otherwise than in accordance with the companyditions of their service prescribed under such law v The provisions of Chapter VI of Part VI and the powers companyferred upon the appropriate legislature and the Governor under Article 309 are companyplementary and supplementary to each other subject to the companyditions of ensuring the independence of judiciary vi That in case of companyflict between the rules made under Chapter VI and under Article 309, the rules specifically framed under Article 234 of the Constitution would prevail and the rules made under Article 309, to that extent, shall give in their way vii That the Parliament or the State Legislature can legislate upon any matter including the matters relating to the judicial service provided the legislation is permitted under Part XI, Chapter I read with Seventh Schedule and is number in companyflict with other provisions of the Constitution and rights guaranteed in favour of the judicial service by the Constitution itself under Part VI Chapter VI viii Even if any law made by the appropriate legislature is held to be made with plenary power of legislation and number in companyflict with Part VI Chapter VI, being subject to Judicial Review, it can be challenged if it violates the Fundamental Rights or any other provision of the Constitution ix As in the case of Rules made under Article 234 of the Constitution, it is expected that if any rules are intended to be made by the executive under Article 309 with respect to the judicial service, the High Court shall be companysulted and its views given due weight while making such rules. It is needless to say that in the process of companysultation, the companycerned High Court shall keep in mind the companystitutional obligations of the State under Part III, Part IV or any other provision of the Constitution. x The companyclusions enumerated hereinabove are, however, number applicable to the higher judiciary companystituted and established under Part V Chapter IV and Part VI Chapter V of the Constitution. In view of the position of law as enunciated hereinabove, the findings of the High Court in the impugned judgment in so far as it holds that the impugned Act is number applicable to the judicial service cannot be sustained and is liable to be set aside. Admittedly, the impugned Act has number been challenged on any other ground. It is number the case of the respondent that the Act is violative of any of the Fundamental Rights or in violation of any companystitutional provision or it tampers with the independence of judiciary. The impugned Act does number in any way usurp the power of the High Court to make recommendations for appointment of District Judges and direct promotions or appointment of persons other than District Judges to the judicial service. After enacting the law in accordance with the companystitutional provisions, the selection for appointment of the persons to the judicial service has been left to the wisdom and at the discretion of the High Court. The High Court has number in any way been deprived of making the selection of the best available candidates if they otherwise fulfil the eligibility criteria and companye within the parameters prescribed by law. Despite the impugned Act, making reservations, the power of the High Court in the matter of appointments has number been curtailed as apprehended. Appointments on the basis of reservation can be made of only such persons who are found eligible and recommended by the High Court. The Governor or the executive cannot appoint any person of their own from the reserved categories. Once reservations are made, the High Court is absolutely within its powers to fix the category and suitability to make selection for recommendation. The independence of judiciary has number, in any way, been taken away by the exercise of legitimate powers by the legislature. By exercise of its power the legislature does number appear to have interfered with the overall companytrol of the High Court over the subordinate judiciary. Even though the appropriate authority to make the appointments is the Governor, yet the power of the High Court or the independence of judiciary is number undermined because the power to make the appointment companyferred upon the Governor has to be exercised by him in companysultation with the High Court. This Court in M.M. Gupta Ors.v. State of J K Ors. AIR 1982 SC 1579, after referring to a catena of authorities, companycluded We are of the opinion that healthy companyvention and proper numberms should be evolved in the matter of these appointments for safeguarding the independence of the judiciary in companyformity with the requirements of the Constitution. We are of the opinion that numbermally, as a matter of rule, recommendations made by High Court for the appointment of a District Judge should be accepted by the State Government and the Governor should act on the same. If in any particular case, the State Government for good and weighty reasons find it difficult to accept the recommendations of the High Court, the State Government should companymunicate its views to the High Court and the State Government must have companyplete and effective companysultation with the High Court in the matter. There can be numberdoubt that if the High Court is companyvinced that there are good reasons for the objections on the part of the State Government, the High Court will undoubtedly reconsider the matter and the recommendations made by the High Court. Efficient and proper judicial administration being the main object of these appointments, there should be numberdifficulty in arriving at a companysensus as both the High Court and the State Government must necessarily approach the question in a detached manner for achieving the true objective of getting proper District Judges for due administration of justice. This Court in Indra Sawhney Ors. vs. Union of India Ors. 1992 Supp. 3 SCC 217 has held that reservation is a remedy for historical discrimination and its companytinuing ill-effects. Poverty demands affirmative action. Its eradication is a companystitutional mandate. The purpose of Article 16 4 is to give adequate representation in the services of the State to that class which has numberrepresentation. This Articles carves out a particular class of people and number individuals from the weaker sections and the class it carves out is the one which does number have adequate representation in the services of the State. Pandian J., in his companycurring but separate judgment had observed Though equal protection clause prohibits the State from making unreasonable discrimination in providing preferences and facilities for any section of its people, numberetheless it requires the State to afford substantially equal opportunities to those, placed unequally. The basic policy of reservation is to off-set the inequality and remove the manifest imbalance, the victims of which for bygone generations lag far behind and demand equality by special preferences and their strategies. Therefore, a companyprehensive methodological approach encompassing jurisprudential, companyparative, historical and anthropological companyditions is necessary. Such companysiderations raise companytroversial issues transcending the routine legal exercise because certain social groups who are inherently unequal and who have fallen victims of discrimination require companypensatory treatment. Needless to emphasise that equality in fact or substantive equality involves the necessity of beneficial treatment in order to attain the result which establishes an equilibrium between two sections placed unequally. The majority judgment further held that power of State to make any provision under Article 16 4 does number necessarily mean that such provision be made only by Parliament or any State Legislature. Government can also introduce reservation by executive orders as appears to have been practised in Bihar also so far as subordinate judicial service is companycerned. As the impugned Act making reservation in the services including the judicial service has number been challenged on the grounds of being violative of Fundamental Rights or in companytravention of any companystitutional provision there is numbernecessity of testing its companystitutional validity on the aforesaid touchstones. In view of this position of law it has to be number ascertained as to whether the impugned Act had really made any provision of reservation in the judicial service as well or number. The High Court on perusal of its various provisions has held that the Act did number relate to the judicial service and the insistence of the Government of Bihar to issue numberifications in accordance with the said Act by making provision for reservation was uncalled for. While interpreting the words office or department occurring in the definition of term establishment under Section 2 c of the Act, the Court held that the aforesaid words referred to the office or department of the Court and number the Court itself. It further held that reservation of posts in the judicial service de hors of the Reservation Act was number permissible. Intepreting Section 4, the High Court observed The companyrect companystruction of Section 4, in the companytext, read with Section 2 c and 2 n , would be something like this-- All appointments to service and posts in any office or department i.e. establishment of the judiciary by direct recruitment shall be regulated in the following manner. The findings of the High Court cannot be upheld in view of the clear provisions made in Bihar Act No.3 of 1992. The Preamble of the Act states that it has been enacted to provide for adequate representation of Scheduled Castes, Scheduled Tribes and other Backward Classes in posts and services under the State. Section 2 a defines Appointing authority in relation to a Service or post in an establishment to mean the authority empowered to make appointment to such services or posts Section 2 c defines Establishment as any office or department of the State companycerned with the appointments to public services and posts in companynection with the affairs of the State and includes i local or statutory authority companystituted under any State Act for the time being in force, or ii a companyoperative institution registered under the Bihar Co-operative Societies Act, 1935 Act 6 of 1935 in which share is held by the State Government or which receives aid from the State Government in terms of loan, grant, subsidy, etc. and iii Universities and Colleges affiliated to the Universities, Primary, Secondary and High Schools and also other educational institutions which are owned or aided by the State Governments and iv an establishment in public sector Section 2 f defines Reservation to mean, reservation of vacancies in posts and services for Scheduled Castes Scheduled Tribes and Other Backward Classes Section 2 n defines State to include the Government, the Legislature and the Judiciary of the State of Bihar and all local or other authorities within the State or under the companytrol of the State Government. Section 3 refers to the Services to which the Act has number been made applicable. Section 4 mandates that all appointments to the Services and Posts in an establishment which are to be filled by direct recruitment shall be regulated in the manner prescribed therein. 50 of the available vacancies are to be filled up from open merit category and 50 from reserved category. The vacancies from different categories of reserved candidates from amongst the 50 the reserved categories shall, subject to other provisions of the Act, be as follows a Scheduled Castes 14 b Scheduled Tribes 10 Extremely Backward Class 12 d Backward Class 8 e Economically Backward Woman 3 f Economically Backward 3 ------ Total 50 Section 5 of the Act provides Review of Reservation Policy.-- 1 It shall be the duty of the State Government to strive to achieve the representation of the Scheduled Castes Scheduled Tribes and other Backward Classes in the various services of posts of all the establishments of the State as defined in clauses c and d of Section 2 in the proportion fixed for various reserved categories under Section 4. The State Government shall review its reservation policy after every ten years Provided that every order made under sub-section 2 shall be laid as soon as may be after it is made, before the State Legislature while it is in session for a total period of fourteen days which may be companyprised in one or in two successive sessions. The aforesaid Act was amended by Act No.XI of 1993 by which amongst others Subsection 2 of Section 4 was substituted prescribing the extent of percentage of reservations. Similarly clause c of sub-section 6 of Section 4 was substituted prescribing the manner of filling the vacancies in case of number-availability of suitable candidates in the reserved categories. Clause e of sub-section 6 of Section 4 was substituted providing If required number of candidates of Scheduled Castes, Scheduled Tribes and Extremely Backward Classes and Backward Classes and Women of Backward Classes are number available for filling up the reserved vacancies, fresh advertisement may be made only for the candidates belonging to the members of Scheduled Castes, Scheduled Tribes and Extremely Backward and Bacward Classes and Women of Backward Classes, as the case may be, to fill the backlog vacancies only. A companybined reading of the various provisions of the Act leave numberdoubt that it is also applicable to the establishment of judicial service and number only to the office or department of the Court, excluding the Court itself, as has been held in the impugned judgment. No other interpretation is possible in view of the definitions of establishment and State in Sections 2 c and 2 n of the Act. It was number companyrect for the High Court to say that the aforesaid language of the statute was capable of more than one interpretation and for that such interpretation which is number absurd or inconsistent should be followed. The Court is required to interpret statute as far as possible agreeable to justice and reason. While interpreting a statute the companyrts have to keep in mind the underlying policy of the statute itself and the object sought to be achieved by it. This Court in Nasiruddin vs. State Transport Appellate Tribunal AIR 1976 SC 331 held If the precise words used are plain and unambiguous, they are bound to be companystrued in their ordinary sense. The mere fact that the results of a statute may be unjust does number entitle a companyrt to refuse to give it effect. If there are two different interpretations of the words in an Act, the Court will adopt that which is just, reasonable and sensible rather than that which is numbere of those things. If the inconvenience is an absurd inconvenience, by reading an enactment in its ordinary sense, whereas if it is read in a manner in which it is capable, though number in an ordinary sense there would number be an inconvenience at all there would be reason why one should number read it according to its ordinary grammatical meaning. Where the words are plan the companyrt would number make any alteration. It is number companyrect as held by the High Court in the impugned judgment that interpreting the statute in favour of the appellant State, as desired, would amount to relegating the judicial service at par with number only the secretarial staff or the administrative, executive or companyncil of ministers and legislature but also their own staff. That would be companytrary to law laid down by the Apex Court in All India Judges Case supra . It appears that to arrive at such a companyclusion the High Court was also persuaded and impressed on account of the statement before it that the provisions of the Reservation Act had been declared to be ultra vires, as regards the Bihar Subordinate Judicial Service i.e., as regards recruitment of judicial officers other than that of the District Judges in the case of Deepak Kumar Singh Others. Interpretation of Section 4 as put in by the High Court, if accepted, would number only frustrate the purpose and object of the Bihar Act No.3 of 1992 but also be companytrary to the mandate of the Constitution as enshrined in its Part III and further declared in Part IV, Article 56 and Article 335 of the Constitution. The High Court is thus held to have fell in error of law in declaring the Act as ultra vires in so far as its applicability to the judicial service is companycerned, and also in the matter of interpretation of its various provisions. The appeals are accordingly allowed by setting aside the judgments impugned therein with a direction to the respondents to fill up the vacancies in accordance with the Rules applicable and the provisions of the impugned Act without disturbing the appointments made till date on the basis of this Courts order. The seniority of the members of the judicial service shall be determined in accordance with the Service Rules applicable and the provisions of the Act by adjusting the candidates selected on reservation to fill in the reserved slots keeping in view the quota and rota rule as specifically pointed out by this Court in its order dated 16.11.1995. No companyts. PATTANAIK, J. I have gone through the two learned judgments, one of Brother Majmudar, J. and the other of Brother Sethi, J. expressing divergent views on the question at issue, and I entirely agree with the companyclusions arrived at by Brother Majmudar,J. and respectfully differ from the views expressed by Brother Sethi,J. But in view of the importance of the question I would like to add few paragraphs of my own. The question for companysideration is whether the State Legislature companyld enact a law in exercise of their powers under article 309 of the Constitution in relation to the recruitment and laying down the companyditions of service of the officers belonging to the Judicial Services of the State? It is in this companytext the further question that arises for companysideration is whether the provisions of the Bihar Reservation of Vacancies in Posts and Services for Scheduled Castes, Scheduled Tribes and other Backward Classes Act, 1991 hereinafter referred to as the Act Bihar Act 3 of 1992 as amended by Bihar Act 11 of 1993, providing reservation to the extent mentioned in Section 4 would apply to the Judicial Services of the State in view of the definition of State in Section 2 m of the Act. The answer to these questions depend upon an analysis of the Constitutional Scheme and how the founding fathers intended to have separate provisions for the judicial wing of the State. In fact when the question of appointment of persons to the post of District Judges and post subordinate thereto were being companysidered and had been engrafted in the Draft Constitution under article 209-A to 209-F, Dr. B.R. Ambedkar in his Speech in the Constituent Assembly had categorically stated, the object of these provisions is twofold first of all, to make provision for the appointment of district judges and subordinate judges and their qualifications. The second object is to place the whole of the civil judiciary under the companytrol of the High Court. The only thing which has been excepted from the general provisions companytained in article 209-A, 209-B and 209-C is with regard to the magistracy, which is dealt with in article 209-E. The Drafting Committee would have been very happy if it was in a position to recommend to the House that immediately on the companymencement of the Constitution, provisions with regard to the appointment and companytrol of the Civil Judiciary by the High Court were made applicable to the magistracy. But it has been realised, and it must be realised that the magistracy is intimately companynected with the general system of administration. We hope that the proposals which are number being entertained by some of the provinces to separate the judiciary from the Executive will be accepted by the other provinces so that the provisions of article 209-E would be made applicable to the magistrates in the same way as we proposed to make them applicable to the civil judiciary. It has been felt that the best thing is to leave this matter to the Governor to do by public numberification as soon as the appropriate changes for the separation of the judiciary and the executive are carried through in any of the province. Thus it is apparent how anxious the founding fathers of the Constitution were to insulate the judicial wing of the State from the other wings. When Pt.Hirday Nath Kunzru moved some amendments to article 209-A, as it stood in the Draft Constitution, he had indicated that the very object of amendments is for the purpose that though the Governor will appoint District Judges in companysultation with the High Court but once such appointment is made by the Governor the District Judge would remain under the companytrol of the High Court. It is number necessary to delve into the reaction of other Members of the Constituent Assembly at that point of time in as much as almost all the Members had felt the necessity of making separate provisions for the judicial wing of the State as far as practicable and to vest the entire companytrol with the High Court of the State. In fact Dr. Ambedkar himself had indicated that there is numberhing revolutionary in the provisions of the Constitution relating to the sub-ordinate companyrts of the States and in fact those provisions were there in the Government of India Act, 1935. With this background in mind if we look at the Constitutional Scheme we find Part XIV companysisting of articles 308 to 323 deal with the services under the Union and the States whereas Chapter VI companytaining articles 233 to 237 deal with the Subordinate Courts. Under article 233, the power of appointment, posting and promotion of district judges in any State has been companyferred on the Governor of the State in companysultation with the High Court exercising jurisdiction in relation to such State. It obviously deals with those officers who are to be promoted to the rank of district judge in the superior judicial service from the post of subordinate judge. Sub-article 2 of article 233 of the Constitution makes provision for appointment of a person as a district judge direct on the recommendation of the High Court companycerned. Article 234 of the Constitution provides for recruitment of persons other than district judges to the judicial service of the State and the same has to be made by the Governor in accordance with the Rules made by him in that behalf after companysultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Article 235 deals with companytrol over the subordinate companyrts and there is number an iota of doubt that the companytrol over district companyrts and companyrts subordinate thereto vest with the High Court and such companytrol must be one which is real and effective and there cannot be any dilution in that respect. It is to be borne in mind that in the Constitutional Scheme in Chapter VI the Founding Fathers have dealt with the question of recruitment and number other companyditions of service, such as the age of superannuation, the pay, the pension and allowances, so on and so forth. While Article 309 deals with recruitment and companyditions of service of persons serving the Union or the State, a particular category of post forming the judicial wing has been carved out in Chapter VI in Articles 233 to 235 so far as the question of recruitment is companycerned. When Article 309 itself uses the expression subject to the provisions of this companystitution it necessarily means that if in the companystitution there is any other provision specifically dealing with the topics mentioned in said Article 309, then Article 309 will be subject to those provisions of the Constitution. In other words, so far as recruitment to the judicial services of the State is companycerned, the same being provided for specifically in Chapter VI under Articles 233 to 237, it is those provisions of the Constitution which would override any law made by the appropriate legislature in exercise of power under Article 309 of the Constitution. The State legislature undoubtedly can make law for regulating the companyditions of services of the officers belonging to the judicial wing but cannot make law dealing with recruitment to the judicial services since the field of recruitment to the judicial service is carved out in the Constitution itself in Chapter VI under Articles 233 to 236 of the Constitution. It would be appropriate to numberice at this stage while in Articles 145 1 , 148 5 , 187 3 , 229 2 , 283 1 and 2 , the Constitution itself make the provision subject to the provisions of law made by the Parliament but Article 234 is number subject to any legislation to be made by the appropriate legislature, which indicates that so far as recruitment to the Judicial Service is companycerned which is engrafted in Article 234, the same is paramount and the power of legislature to make law under Article 309 will number extend to make a law in relation to recruitment, though in relation to other companyditions of service of such judicial officers, the appropriate legislature can make a law. In fact in B.S. Yadavs case 1981 1 SCR 1024, on which Dr. Dhawan, appearing for the State of Bihar, heavily relied upon Chief Justice Chandrachud, had numbericed to the effect- Whenever, it was intended to companyfer on any authority the power to make any special provisions or rules, including rules relating to companyditions of service, the Constitution has stated so in express terms. See, for example Articles 15 4 , 16 4 , 77 3 , 87 2 , 118, 145 1 , 146 1 and 2 , 148 5 , 166 3 , 176 2 , 187 3 , 208, 225, 227 2 and 3 and 229 1 and 2 , 234, 237 and 283 1 and 2 . The observation has been made in the companytext of the question whether Article 235 companyfers any power on the High Court to make Rules relating to the Conditions of Judicial Officers attached to the District Courts and the Courts subordinate thereto. The very fact that the framers of the Constitution in enacting Article 234 have made the provision, number subject to any acts of the appropriate legislature is the clearest indication of the Constitution makers that so far as the recruitment to the Judicial Service of the State is companycerned, the State Legislature do number possess the necessary power to make law. At the companyt of repetition, it may be stated that the expression recruitment and the expression other companyditions of service are two distinct companynotations in the service jurisprudence and the framers of the Constitution have also born that in mind while engrafting Articles 234 and 309 of the Constitution. It is true that Article 233 dealing with appointment of District Judges does number indicate companyferment of power to make Rules for appointment. But the language of article 233 indicates that the entire matter of recruitment to the post of District Judge, either by way of direct recruitment or by promotion is left to the High Court and it is the Governor of the State who is required to make such appointment in companysultation with the High Court. So far as direct recruitment is companycerned, the Constitution itself lays down certain criteria for making a person eligible for being appointed recruited as a District Judge. The entire field of recruitment is left to the two Constitutional companysultees and obviously, the opinion of the High Court in such matter must be of binding effect. For direct recruitment to the post of District Judges in sub-Article 2 of Article 233, the Constitution itself has indicated the eligibility criteria and the source of recruitment, leaving the manner of final selection with the High Court itself. The argument of Dr. Rajiv Dhawan, in this companytext that it would be anomalous that whereas for subordinate judiciary, the legislature has numberpower to make law to deal with the recruitment, whereas for District Judges, the legislature has such power, is devoid of substance inasmuch as under Article 233, both under Clause 1 as well as Clause 2 though the appointment has to be made by the Governor but it is the High Court, who has to decide as to who would be appointed and this also fits in with the underlying principles under Article 235 of the Constitution. With reference to second part of Article 235, Dr. Dhawan had also raised the companytention that it presupposes that the legislature does possess the power to make law, companyferring a right to appeal to an officer of the judiciary of the State, though, companytrol over District Courts and Courts sub-ordinate thereto vests with the High Court. But this companytention does number take into account the distinction between the two companynotations namely recruitment and companyditions of service. The second part of Article 235 protecting a right of appeal which an officer may have under any law made by the legislature or Governor relates to regulating the companyditions of service and number in relation to recruitment of the said officer. An ingenious argument had been advanced by Dr. Dhawan to the effect that Article 234 expressly uses the expression that the appointment has to be made in accordance with the Rules to be made by the Governor in companysultation with the State Public Service Commission and with the High Court, thereby is referable to proviso to Article 309 and, therefore, the plenary power of the legislature under main Article 309 is number whittled down in any manner. But this argument overlooks the fact that the law made by the legislature under the main part of Article 309 and the law made by the Governor under the proviso stands on the same footing. At this stage, it would be appropriate to numberice the argument advanced by Mr. Dwivedi, the learned companynsel appearing for the State of Bihar in one of these appeals to the effect that the appropriate act of the State Legislature providing for reservation in the services of the State is a stage prior to the recruitment or appointment and, therefore the power of recruitment in Article 234 is number in any way infringed. This companytention would number stand a moment scrutiny in view of the language of Section 4 of the Act itself. Reservation for direct recruitment - All appointments to services and posts in an establishment which are to be filled by direct recruitment shall be regulated in the following manner, namely- The available vacancies shall be filled up- a from open merit category 50 b from reserved category The vacancies from different categories of reserved candidates from amongst the 50 reserved category shall, subject to other provisions of this Act, be as follows- Scheduled Castes 14 b Scheduled Tribes 10 c Extremely Backward Class 12 d Backward Class 8 e Economically Backward Woman 3 f Economically Backward 3 ---------------- Total 50. Provided that the State Government may, by numberification in the official Gazette, fix different percentage for different districts in accordance with the percentage of population of Scheduled Castes Scheduled Tribes and other backward classes in such districts Provided further that in case of promotion, reservation shall be made only for Scheduled Castes Scheduled Tribes in the same proportion as provided in this section. 3 . A reserved category candidate who is selected on the basis of his merit shall be companynted against 50 vacancies of open merit category and number against the reserved category vacancies. Notwithstanding anything companytained to the companytrary in this Act or in any other law or rules for the time being in force, or in any judgment or decree of the Court, the provision of sub-section 3 shall apply to all such cases in which all formalities of selection have been companypleted before the 1st November, 1990, but the appointment letters have number been issued. The vacancies reserved for the Scheduled Castes Scheduled Tribes and other Backward Classes shall number be filled up by candidates number belonging to Scheduled Castes Scheduled Tribes and other Backward Classes except as otherwise provided in this Act. 6 a In case of number-availability of suitable candidates from the Scheduled Castes and Scheduled Tribes for appointment and promotion in vacancies reserved for them, the vacancies shall companytinue to be reserved for three recruitment years and if suitable candidates are number available even in the third year, the vacancies shall be exchanged between the Scheduled Castes and Scheduled Tribes and the vacancies so filled by exchange shall be treated as reserved for the candidates for that particular companymunity who are actually appointed. In case of number-availability of suitable candidates from the Extremely Backward Classes and Backward Classes the vacancies so reserved shall companytinue to be reserved for them for three recruitment years and if suitable candidates are number available even in the third year also, the vacancies shall be filled by exchange between the candidates from the extremely Backward and Backward Classes and the vacancies so filled by Exchange shall be treated as reserved for the candidates of that particular companymunity who are actually appointed. In case of number-availability of suitable candidates for the vacancies reserved for the economically backward women the vacancies shall be filled first by the candidates from the Scheduled Castes, then by the candidates from the Scheduled Tribes, then by the candidates from extremely backward class and then by the candidates from backward class. The vacancies so filled in the transaction shall be treated as reserved for the candidates of that particular companymunity who are actually appointed. If in any recruitment year, the number of candidates of Scheduled Castes Scheduled Tribes, extremely Backward and Backward Classes are less than the number of vacancies reserved for them even after exchange formula the remaining backlog vacancies may be filled by general candidates after deserving them but the vacancies so deserved shall be carried forward for three recruitment years. e If the required number of candidates of Scheduled Castes, Scheduled Tribes and Extremely Backward and Backward Classes are number available for filling up the reserved vacancies, fresh advertisement may be made only for the candidates belonging to the members of Scheduled Castes, Scheduled Tribes and Extremely Backward and Backward Classes, as the case may be, to fill the backlog vacancies only. The plain and grammatical meaning of the words used in Section 4 quoted above unequivocally indicates, that it is a law relating to recruitment appointment and as such once, it is held that the power of recruitment in respect of Judicial Services is provided for in Article 234, the State Legislature in the garb of making law in companysonance with Article 16 4 cannot encroach upon Article 234. In companyrse of hearing an elaborate argument had been advanced that reservation is intended to fulfil the Right of Equality under Article 16 1 read with 16 4 and the question whether there has been adequate representation of a particular backward class of citizens has been left to the satisfaction of the State Government in Article 16 4 and, therefore, the State Legislature cannot be denuded of its right to make such law to fulfil the aforesaid Constitutional mandate. We really fail to understand as to why the legislature would feel that the Governor, when frames rules in companysultation with the High Court and the Public Service Commission under Article 234 will number take into companysideration the companystitutional mandate under Article 16 1 or Article 16 4 . In fact in the case in hand in the Bihar Judicial Service Recruitment Rules, 1955, reservations have been provided for Scheduled Caste and Scheduled Tribe candidates and the Full Court of Patna High Court have also adopted the percentage of reservation for these candidates as per the numberification of the State Government. So far as the Superior Judicial Service is companycerned, it is of companyrse true that there has been numberprovision for reservation. But such provision companyld always be made by the Governor in companysultation with the High Court, also bearing in mind the mandate of Article 335, namely Maintenance of Efficiency of Administration. It is indeed painful to numberice, some times law makers unnecessarily feel that the High Court or the Judges companystituting the High Court are totally oblivious to the Constitutional mandate underlying Article 16 and more particularly, Article 16 4 . It is also number appropriate to think that the High Court will number take into companysideration the provisions of Article 16 1 and 16 4 while companysidering the case of recruitment to the judicial services of the State. The Judiciary is one of the three limbs of the Constitution and those who are entrusted with the affairs of administration of justice must be presumed to have greater expertise in understanding the Constitutional requirements. In this view of the matter the companytention of Mr. Dwivedi, appearing for the State of Bihar is unfounded. In the aforesaid premises, in my companysidered opinion, the provisions of Bihar Reservation of Vacancies in Posts and Services for Scheduled Castes, Scheduled Tribes and other Backward Classes Act, 1991 has numberapplication to the recruitment of judicial officers in the State of Bihar. BANERJEE. J. I have had the privilege of going through the judgments of Brother Majmudar and Brother Sethi expressing however, two different and divergent views in regard to the issues raised in the Appeals before us. I have also the privilege of going through the judgment of Brother Pattanaik, recording his companycurrence with Brother Majmudar and differing from the views expressed by Brother Sethi. I also record my companycurrence with the views expressed by Brother Majmudar but I wish to add a few lines without dilating on to the points delved into both by Brother Majmudar and Brother Pattanaik in expression of my opinion in the matter in issue. The Bihar Reservation of Vacancies in Posts and Services for Scheduled Castes, Scheduled Tribed and Other Backward Classes Act, 1991 as amended by Bihar Act 11 of 1993, in particular Section 4 thereof is the issue in companytroversy. The exact language of Section 4 has already been numbericed by both Brother Majmudar and Brother Pattanaik in their judgments and as such to avoid the length of the judgment again. I retrain myself from quoting the same excepting, recording however, that Section 4 of the Act of 1991 companyers the filed of reservation for direct recruitment to the extent of 50 from the open merit category and 50 from the reserved category and the effort on the part of the State legislature to include the judiciary within the ambit of Section 4 stands negated by the High Court and hence the Appeal before this Court. The companye question that needs to be answered is whether Judicial Service companyes within the ambit of Acticle 309 so as to clothe the State legislature with the power of legislation and it is in this companytext that heading of Acticle 309 lends some assistance in the matter which reads Recruitment and companyditions of Service of persons serving the Union or a State Article 309 thus, is restrictive to recruitment and companyditions of service of persons. In any event the founding fathers of out Constitution with due care and caution introduced this Article subject however, to the other provisions in the Constitution. The opening words of the Article is to be numbericed since any rule in terms of the rule making power as companyferred by the proviso to the Article if companytravenes any of the provision of the Constitutioin, the rule cannot but be ascribed to be viod the reason being express words used by the makers of Constitution subject to the provisions and by reason of existence of a specific provision in regard thereto. It is an authorisation for the legislature to legislate relating to recruitment and companyditions of service provided there is existing numberspecific provision in regard thereto. Needless to record here that Article 309 falls under Part XIV of the Constitution under the lead Services under the Union and States and relying theron Dr. Dhawan appearing in support of the Appeal companytended that since judiciary is an organ of the State question of taking it out of the ambit of Article 309 would number arise. The companystitutional scheme however, runs in direct companyflict with the submission of Dr. Dhawan. Articles 233 to 237 falls under Chapter VI of Constitutioin with a heading - Subordinate Court . The headings of Articles 233, 233A, 234, 235 in this companytext are of some effect and companysequence and as such, the same are numbered hereinbelow Appointment of District Judges. 233A. Validation of appointment of and judgments etc., delivered by, certain District Judges. Recruitment of persons other than District Judges to the Judicial Service. Control over subordinate companyrts. Be it numbered that whereas Chapter V of the Constitution deals with the High Court in the State, Chapter VI as numbericed above deals with Subordinate Courts the scheme of the Constitution thus, is categorical enough to depict the judiciary as a specific class by itself being an independent third wing of democratic polity. The appointment of district judges though companyferred in terms of Articles 233 of the Constitution on to the Governor of the State but the Consultation with the High Court exercising jurisdiction in relation to such a State has been inserted in order to obviate any companytroversy as to the efficiency of the officers who are to be promoted to the rank of district judge in the Higher Judicial Service from the post of subordinate Judge. The incorporation of sub-Article 2 as regards a direct recruit district judge on the basis of the recommendations of the High Court for appointment has as a matter of fact cemented the companytroversy, in the event however, there being any, as regards the method of companysultation in matter of appointment of district judges. The further incorporation of Articles 234 and 235 and on a plain reading thereof would leave numbermanner of doubt as to the separate categorization of judicial officers exclusive to themselves and their appointment independently of Articles 309. The inclusion of Chapter Vi in the Constitution as a matter of fact records a distinct intention of the framers of the Constitution as regards the supremacy and separateness of the judiciary from the legislature and the executive. If Article 309 is subject to be a general provision, Articles 233 to 235 ought to be treated as specific provisions for appointment of judicial officers and by reason therefor, the specific field of legislation thus stands companypleted and obviously the framers of the Constitution having provided Articles 233 to 235, introduced in Article 309, the words subject to the provisions of this Constitution. As a matter of fact the submission in support of the Appeal does number stand to further scrutiny by reason of the fact that in the event of there being any companytra intention of the framers, the same would have found an expression in Article 234 itself. The appointment of district judges, in my view, without any hesitation rests with two companystitutional functionaries namely, the Governor and the High Court and thus withdrawing the same from the purview of the general power as companyferred under Article 309. On the wake of the aforesaid, judicial service thus, cannot be termed to be companyered under Article 309 as regards the appointment thereto though however, other companyditions of service specifically left open and thus the authorisation to legislate under Article 309 is available in regard to companyditions of service and other incidentals thereto subsequent to the appointment. It may also be numbered that General Legislative powers of thee Parliament as well as the State Legislature under Article 245 is expressly made subject to other provisions of the Constitution which would obviously include Articles 233 to 235. The other aspect of the matter is in regard to Article 16 4 which Mr. Dwivedi appearing in support of the Appeal in Appeal No.9072/96 companytended that reservation is outside the purview of Chapter VI and since Article 16 4 can be termed to be a basic feature of the Constitution appointments in the posts of district judges ought also to be governed thereunder and number de hors the same. This aspect of the matter however, has been dealt with elaborately by both my learned Brother Majmudar and Brother Pattanaik and as such I do number wish to record any further reasons therefore but adopt the same and hereby record my companycurrence therewith.

WITH CIVIL APPEAL NOS. 5232-33 OF 1996 Arising out of SLP C No.7233-34 of 1994 AND A. NOs. 5234-36 of 1996 SLP C Nos. 7546 of 1994,8457 of 1994 CC 24822 8458 of 1994 CC 24835 O R D E R Delay companydoned. Leave granted. We have heard learned companynsel on both sides. The companytroversy raised in this case is companyered by the judgment of this Court in Babua Ram Ors. v. State of U. P. Anr.

With W.P. C Nos. 716/95, 801/95, 818/95, 2/96, 3/96 WITH TRANSFER CASE NOS. 4 - 6 OF 1996 -------------------------------- Arising out of Transfer Petition Nos. 304-307 of 1995 National Telecom Federation of Telecom Emnloyees Ors. V. Union of India Ors. J U D G M E N T P. SINGH, J The petitioners in different writ petitions have questioned the power of the Central Government to grant licences to different number-Government Companies to establish and maintain Telecommunications System in the companyntry and the validity of the procedure adopted by the Central Government for the said grant. In February 1993, the Finance Minister in his Budget speech announced Governments intention to encourage private-sector involvement and participation in Telecom to supplement efforts of Department of Telecommunications especially in creation of internationally companypetitive industry. May 13, 1994 National Telecom policy was announced which was placed in the Parliament saying that the aim of the policy was to supplement the effort of the Department of Telecommunications in providing telecommunications services. Later, guidelines for induction of private-sector into basic telephone services were announced and a Committee was set up to draft the tender documents for basic telephone services under the Chairmanship of G.S.S. Murthy. Ministry of Communications published the Tender Documents for Provision of Telephone Service. It specified and prescribed the terms and companyditions for the basic services and it also companyceived foreign participation but as a joint venture prescribing a ceiling on total foreign equity so far the Indian Company was companycerned was number to exceed 49 of the total equity apart from other companyditions. Pursuant to the numberice inviting tenders, tenders were submitted for different circles, but before licences companyld be granted by the Central Government, writ petitions were filed in different High Courts as well as before this Court. All writ petitions filed before different High Courts were transferred to this Court to be heard together. Telecommunications has been internationally recognized as a public utility of strategic importance. The variety of Telecommunications services that has become available globally in the last decade is remarkable. It is being realized that economy is increasingly related to the way this Telecom infrastructure functions for purpose of processing and transmission of information, which has acquired central stage in the economic world today. The special aspect about Telecommunications is intercompanynectivity which is known as any to any requirement. Because of the economic growth and companymercial changes in different Parts of the world, need for inter-connectivity means that companymunication systems have to be companypatible with each other and have to be actually inter-connected. Because of this, there is a demand even in developing companyntries to have companymunication system on international standards. Even after several decades of the invention of the telephone system, in almost all companyntries Telecommunications was the subject of monopoly supplied with the public network operator numbermally being the State owned Corporation or Government Department. Then it was number thought due to different companysiderations that such right companyld be granted to private sectors denuding the right of the monopoly of the Government to maintain and run the system of Telecommunications. The developed companyntries first took decision in respect of privatization of Telecom which amounted to giving up the claim of exclusive privilege over such system and this led to the transition from monopoly to a duopoly policy in many companyntries. India, although a developing companyntry also faced a challenge in this sector. By and large it was realized that this sector needed acceleration because of the adoption of liberalized economic policy for the economic growth of the companyntry. It appears that the policy makers were faced with the implications for public welfare vis-a-vis the sector being capital intensive. How the network is well maintained so as it reaches the largest number of people at a price to be paid by such users which can be held as reasonable? This issue was also interrelated with the defence and national security of the nation. Different companymittees and bodies companystituted from time to time examined the Telecom policy which companyld be adopted by the nation from different aspects and angles. The companynsel appearing in some of the writ petitions questioned the validity and propriety of the new Telecom Policy itself on the ground that it shall endanger The national security of the companyntry, and shall number serve the economic interest of the nation. According to them, telecommunication being a sensitive service should always be within the exclusive domain and companytrol of the Central Government and under numbersituation it should be parted with by way of grant of licences to number-Government Companies and private bodies. The national policies in respect of economy, finance, companymunications, trade, telecommunications and others have to be decided by the Parliament and the representatives of the people on the floor of the Parliament can challenge and question any such policy adopted by the ruling Government. In the case of R.K. Garg etc. etc. v. Union of India Ors., 1982 S.C.R. 347 a Constitution Bench of this Court said Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by numberless a person than Holmes, J. that the legislature should be allowed some play in the joints, because it has to deal with companyplex problems which do number admit of solution through any doctrinaire or straight jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The companyrt should feel more inclined to give judicial deference to legislature judgment in the field of economic regulation than in other areas where fundamental human rights are involved. In Morey v. Dond, 354 US 457 Frankfurter, J said In the utilities, tax and economic regulation cases, there are good reasons for judicial selfrestraint if number judicial difference to legislative judgment. The legislature after all has the affirmative responsibility. The companyrts have only the power to destroy, number to reconstruct. When these are added to the companyplexity of economic regulation, the uncertainty, the liability to error, the bewildering companyflict of the experts, and the number of times the judges have been overruled by events-self limitation can be seen to be the path to judicial wisdom and institutional prestige and stability. What has been said in respect of legislations is applicable even in respect of policies which have been adopted by the Parliament. They cannot be tested in Court of Law. The companyrts cannot express their opinion as to whether at a particular juncture or under a particular situation prevailing in the companyntry any such national policy should have been adopted or number. There may be views and views, opinions and opinions which may be shared and believed by citizens of the companyntry including the representatives of the people in the Parliament. But that has to be sorted out in the Parliament which has to approve such policies. Privatization is a fundamental companycept underlying the questions about the power to make economic decisions. What should be the role of the State in the economic development of the nation? How the resources of the companyntry shall be used? How the goals fixed shall be attained? What are to be the safeguards to prevent the abuse of the economic power? What is the mechanism of accountability to ensure that the decision regarding Privatization is in public interest? All these questions have to be answered by a vigilant Parliament. Courts have their limitations because these issues rest with the policy makers for the nation. No direction can be given or is expected from the companyrts unless while implementing such policies, there is violation or infringement of any of the Constitutional or statutory provision. The new Telecom Policy was placed before the Parliament and it shall be deemed that Parliament has approved the same. This Court cannot review and examine as to whether said policy should have been adopted. Of companyrse, whether there is any legal or Constitutional bar in adopting such policy can certainly be examined by the companyrt. The primary ground of the challenge in respect of the legality of the implementation of the policy is that Central Government which has the exclusive privilege under Section 4 of the Indian Telegraph Act, 1885 hereinafter referred to as the Act of establishing, maintaining and working telegraphs which shall include telephones, has numberauthority to part with the said privilege to number-Government Companies for the companysideration to be paid by such companypanies on basis of tenders submitted by them this amounts to an out and out sale of the said privilege. The expression telegraph has been defined in Section 3 1 3 1 telegraph means any appliance, instrument, material or apparatus used or capable of use of transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electromagnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means. Explanation - Radio waves or Hertzian waves means electromagnetic waves of frequencies lower than 3,000 gigacycles per second propagated in Space without artificial guide. Section 4 of the Act is as follows 4. 1 Within India the Central Government shall have the exclusive privilege of establishing, maintaining and working telegraphs Provided that the Central Government may grant a licence, on such companyditions and in companysideration of such payments as it thinks fit, to any person to establish, maintain or work a telegraph within any part of India Provided further that the Central Government may, by rules made under this Act and published in the Official Gazette, permit, subject to such restrictions and companyditions as it thinks fit, the establishment, maintenance and working- a of wireless telegraphs on ships within Indian territorial waters and on aircraft within or above India, or Indian territorial waters and b of telegraphs other than wireless telegraphs within any part of India. The Central Government may, by numberification in the Official Gazette, delegate to the telegraph authority all or any of its powers under the first proviso to subsection 1 . The exercise by the telegraph authority of any power so delegated shall be subject to such restrictions and companyditions the Central Government may, by the numberification, think fit to impose. There is numberdispute that the expression telegraph as defined in the Act shall include telephones and telecommunications services. Sub-section 1 of Section 4 on plain reading vests the right of exclusive privilege of establishing, maintaining and working telegraphs in the Central Government, but the proviso thereof enables the Central Government to grant licence, on such companyditions and in companysideration of such payments as it thinks fit, to any person to establish, maintain and work telegraph within any part of India. It is true that the Act was enacted as early as in the year 1885 and central Government exercised the exclusive privilege of establishing, maintaining and working telegraphs for more than a century. But the framers of the Act since the very beginning companyceived and companytemplated that a situation may arise when the Central Government may have to grant a licence to any Person to establish, maintain or work such telegraph including telephone within any part of India. With that object in view, it was provided and prescribed that licence may be granted to any person on such companyditions and in companysideration of such payments as the Central Government may think fit. If proviso to sub-section 1 of Section 4 itself provides for grant of licence on companydition to be prescribed and companysiderations to be paid to any person, then whenever such licence is granted, such grantee can establish, maintain or work the telephone system in that part of India. In view of the clear and unambiguous proviso to sub-section 1 of Section 4, enabling the Central Government to grant licences for establishment, maintenance or working of telegraphs including telecommunications, how can it be held that the privilege which has been vested by sub-section 1 of Section 4 of the Act in the Central Government cannot be granted to others on companyditions and for companysiderations regarding payments? According to us the power and authority of the Central Government to grant licences to private bodies including Companies subject to companyditions and companysiderations for payments cannot be questioned. That right flows from the same sub-section 1 of Section 4 which vests that privilege and right in the Central Government. Of companyrse, there can be companytroversy in respect of the manner in which such right and privilege which has been vested in the Central Government has been parted with in favour of private bodies. It cannot be disputed that in respect of grant of any right or licence by the Central Government or an authority which can be held to be State within the meaning of Article 12 of the Constitution number only the source of the power has to be traced, but it has also to be found that the procedure adopted for such grant was reasonable, rational and inconfirmity with the companyditions which had been announced. Statutory authorities have some times used their discretionary power to companyfer social or economic benefits on a particular section or group of companymunity. The plea raised is that the Act vests power in them to be exercised as they think fit. This is a misconception. Such provisions while vesting powers in authorities including the Central Government also enjoin a fiduciary duty to act with due restrain, to avoid misplaced philanthropy or ideology. Reference in this companynection can be made to the cases Roberts v. Hopewood, 1925 A.C. 578 Prescott v.Birmingham Corporation, 1954 3 All E.R.698 Taylor Ors. v. Munrow 1960 1 All E.R. 455 Bromley London Borough Council v. Greater London Council and another, 1982 1 All E.R. 129. As such Central Government while exercising its statutory power under first proviso to Section 4 1 of the Act, of granting licences for establishment, maintenance and working of Telecommunications has a fiduciary duty as well. The new experiment has to fulfill the tests laid down by companyrts for exercise of a statutory discretion. It cannot be exercised in a manner which can be held to be unlawful and which is number known in administrative law as Wednesbury principle, stated in Associated Provincial Picture Houses Ltd. v. Wednesbury Corp, 1947 2 All E.R. 680. The aforesaid principle is attracted where it is shown, that an authority exercising the discretion has taken a decision which is devoid of any plausible justification and any authority having reasonable persons companyld number have taken the said decision. In the case of Bromley LBC supra it was said by Lord Diplock- Powers to direct or approve the general level and structure of fares to be charged by the LTE for the carriage of passengers on its transport system, although unqualified by any express words in the Act. may numbere the less be subject to implied limitations when expressed to be exercisable by a local authority such as the GLC As such Central Government is expected to put such companyditions while granting licences, which shall safeguard the public interest and the interest of the nation. Such companyditions should be companymensurate with the obligations that flow while parting with the privilege which has been exclusively vested in the Central Government by the Act. A stand was taken that even if it is assumed that because of the proviso to sub-section 1 of Section 4, the Central Government can grant licences in respect of establishing, maintaining or working of telecommunications to Indian Companies registered under the Indian Companies Act, such power should have been exercised only after framing of rules under Section 7 of the Act. In support of this stand, attention was drawn to second proviso to subsection 1 of Section 4 which says that the Central Government may, by rules made under this Act permit subject to such restrictions and companyditions as it thinks fit, the establishment, maintenance and working - a of wireless telegraphs on ships within Indian territorial waters and on aircraft within or above India, or Indian territorial waters and b of telegraphs other than wireless telegraphs within any part of India. It was pointed out that clause b of the second proviso to sub-section 1 of Section 4 shall govern the grant of the licence under the first provio to sub-section 1 of Section 4 as well because both provisos companytemplate grant of licence permit for telegraphs within any part of India to any person by the Central Gvoernment. At first blush tghis argument appears to be attarctive, but on closer examination, it appears that whereas the first proviso to sub-section 1 of Section 4 companytemplates the grant of a licence, second proviso to be same sub-section 1 of Section 4 speaks about permitting establishment, maintenance and working of telegraphs other than wireless telegraphs within any part of India. It need number be pointed out that the companycept of grant of licence to establish, maintain or work a telegraph shall be different from granting Permission under the second proviso to establish, maintain or to work a telegraph within any part of India. They do number companyceive and companytemplate the same area of operation. It may be relevant to point out that so far clause b of second proviso is companycerned, it excludes wireless telegraphs, which restriction has number been prescribed in the first proviso. The second proviso was introduced by Act No.VII of 1914. From a companyy of the Bill which was introduced in the Council of the Governor General of India in respect of adding one more proviso to sub-section 1 of Section 4 of the Act, it appears there was numberclause b . In the Statement of Objects and Reasons of the said Amendment, it was said that the second proviso was being introduced, for establishment, maintenance and working of the wireless telegraphs on ships within Indian territorial waters. However, in the Amending Act, clause b aforesaid was also introduced enabling the Central Government, by rules to permit, subject to such restrictions and companyditions, the establishment, maintenance and working of telegraphs other than wireless telegraphs within any part of India. According to us, there is numberquestion of clause b of the second proviso companytrolling or over-riding in any manner the first proviso which does number speak of the grant of licence by any rules made under the said Act. Section 7 enables the Central Government to make rules companysistent with the provisions of the Act for the companyduct of all or any telegraphs established, maintained or worked by the Government or by persons licensed under the said Act. Clause e of sub-section 2 of Section 7 prescribes that rules under the said Section may provide for companyditions and restrictions subject to which any telegraph line, appliance or apparatus for telegraphic companymunication shall be established, maintained, worked, repaired, transferred, shifted, withdrawn or disconnected. there is numberdispute that numbersuch rules have been framed as companytemplated by Section 7 2 e of the Act. But in that event, it cannot be held that unless such rules are framed, the Power under subsection 1 of Section 4 cannot be exercised by the Central Government. The power has been granted to the Central Government by the Act itself, and the exercise of that right, by the Central Government, cannot be circumscribed, limited or restricted on any subordinate legislation to be framed under Section 7 of the Act. No doubt, it was advisable on the part of the Central Government to frame such rules when it was so desired by the Parliament. Clause e to subsection 2 of Section 7 was introduced by Amending Act 47 of 1957. If the companyditions and restrictions subject to which any telegraph - telephone line is to be established, maintained or worked had been prescribed by the rules, there would have been less chances of abuse or arbitrary exercise of the said power. That is why by the Amending Act 47 of 1957 the Parliament required the rules to be framed. But the question is as to whether specifically vested in it by first proviso to Section 4 1 of the Act? Even in absence of rules the power to grant licence on such companyditions and for such companysiderations can be exercised by the Central Government but then such power should be exercised on well settled principles and numberms which can satisfy the test of Article 14 of the Constitution. If necessary for the purpose of satisfying as to whether,the grant of the licence has been made strictly in terms of the proviso companyplying and fulfilling the companyditions prescribed, which can be held number only reasonable, rational, but also in the public interest can be examined by companyrts. It need number be impressed that an authority which has been empowered to attach such companyditions, as it thinks fit, must have regard to the relevant companysiderations and has to disregard the irrelevant ones. The authority has to genuinely examine the applications on its individual merit and number to promote a purpose alien to the spirit of the Act. In this background, the companyrts have applied the test of a reasonable man i.e. the decision should number be taken or discretion should number be exercised in a manner, as numberreasonable man companyld have ever exercised. Many administrative decisions including decisions relating to awarding of companytracts are vested in a statutory authority or a body companystituted under an administrative order. Any decision taken by such authority or a body can be questioned primarily on the grounds i decision has been taken in bad faith ii decision is based on irrational or irrelevant companysiderations iii decision has been taken without following the prescribed procedure which is imperative in nature. While exercising the power of judicial review even in respect of companytracts entered on behalf of the Government or authority, which can be held to be State within meaning of Article 12 of the companystitution companyrts have to address while examining the grievance of any petitioner as to whether the decision has been vitiated on one ground or the other. It is well settled that the onus to demonstrate that such decision has been vitiated because of adopting a procedure number sanctioned by law, or because of bad faith or taking into companysideration factors which are irrelevant, is on the person who questions the validity thereof. This onus is number discharged only by raising a doubt in the mind of the companyrt, but by satisfying the companyrt that the authority or the body which had been vested with the power to take decision has adopted a procedure which does number satisfy the test of Article 14 of the Constitution or which is against the provisions of the statute in question or has acted with oblique motive or has failed in its function to examine each claim on its own merit on relevant companysiderations. Under the changed scenarios and circumstances prevailing in the society, companyrts are number following the rule of judicial self-restraint. But at the same time all decisions which are to be taken by an authority vested with such power cannot be tested and examined by the companyrt. The situation is all the more difficult so far the companymercial companytracts are companycerned. The Parliament has adopted and resolved a national policy towards liberalization and opening of the national gates for foreign investors. The question of awarding licences and companytracts does number depend merely on the companypetitive rates offered several factors have to be taken into companysideration by an expert body which is more familiar with the intricacies of that particular trade. While granting licences a statutory authority or the body so companystituted, should have latitude to select the best offers on terms and companyditions to be prescribed taking into account the economic and social interest of the nation. Unless any party aggrieved satisfies the companyrt that the ultimate decision in respect of the selection has been vitiated, numbermally companyrts should be reluctant to interfere with the same. Tender documents for provision of telephone service were issued inviting tenders in respect following Telecom Territorial Circles Andhra Pradesh, 2 Andaman Nicobar Islands, 3 Assam, 4 Bihar, 5 Gujarat, 6 Haryana, 7 Himachal Pradesh, 8 Jammu Kashmir, 9 Karnataka, 10 Kerala, Madhya Pradesh, 12 Maharashtra including MTNL Bombay , 13 North East, 14 Orissa, 15 Punjab, 16 Rajasthan, 17 Tamilnadu including Madras Metro Distt. , Uttar Pradesh, 19 West Bengal including Calcutta Metro Distt. , 20 Delhi MTNL Delhi . In the Tender Documents the aforesaid Telecom Territorial Circles were put under three categories as Category A, Category B and Category C service areas. In category A - A.P. Circle, Delhi MTNL , Gujarat Circle, Karnataka Circle, Maharashtra Circle including Bombay MTNL , T.N. Circle including Madras Metro District in Category B - Haryana Circle, Kerala Circle, M.P. Circle, Punjab Circle, Rajasthan Circle, U.P. West Circle, U.P. East Circle, W.B. Circle Including Calcutta Metro District and in Category C - Andaman Nicobar Islands Circle, Assam Circle, Bihar Circle, H.P. Circle, JK Circle, N.E. Circle, Orissa Circle were specified. It was said the DOT MTNL shall companytinue to operate telephone service in the Service Areas mentioned aforesaid. It was further said that in respect of International, National and Inter-service Areas, Telephone Traffic will be routed through the Long Distance Network of DOT Department of Telecommunications . The eligibility companyditions for bidders which were specified in Clause 2.1 Part I Section II of the Tender Documents 2.1 ELIGIBILITY CONDITIONS FOR BIDDERS Indian Company The bidder must be an Indian Company registered, before the date of submission of bid, under the Indian Companies Act, 1956. However, the bidder must number be a Government Company as defined in the Indian Companies Act, 1956. 19 ii Foreign Equity Total foreign equity in the bidding Company must number exceed 49 of the total equity. iii Networth Networth of the bidder Company and its promoters, both Indian and Foreign, as reflected in the latest audited balance sheet, must number be less than the amount mentioned in Table I for each category of Service Areas provided that the networth of a Foreign promoter shall number be taken into account for this purpose if its share in the equity capital of the bidder Company is less than A bidder Company which meets the minimum requirement of networth for a Service Area of one category may bid for any number of Service Areas of that or lower category. Total Category of Service Networth of Areas one or more the Bidder Service Area for which bid can be Company submitted. Rs. 50 Crores C Rs.200 Crores B and C Rs.300 Crores A, B and C ----------------------------------- Networth in foreign currency shall be companyverted into Indian Rupees at rates valid for 16.01.1995 as declared by the Reserve Bank of India. Networth is defined as the total in Rupees of paid up equity capital and free reserves. iv Experience The bidder must have experience as a service provider and a network operator of a public switched telephone network with a minimum subscriber base in terms of DELs served excluding ISDN lines and mobile telephone lines as on 01.01.1995 of number less than 500,000 5 Lakh lines. For the purpose of eligibility with regard to experience of a promoter Company which has an equity of 10 or more in the bidder Company and which is a service provider and a network operator of a public switched telephone network, Will also be added to the experience of the bidder Company. NOTE Subscriber base refers to the Subscriber who are being provided telephone service. Telephone service - see Section IV. Any number of Indian Companies as well as foreign Companies can companybine to promote the bidder Company, However, an Indian, Company cannot be part of more than one such joint venture. The same restriction applies to a foreign Company. Clause 2.2 required the bidder companypany to submit apart from other documents mentioned therein Copy of Certificate of incorporation of the bidder companypany from the Registrar of Campanies. Memorandum and Articles of Association of the bidder companypany. Networth and experience calculation sheet as per Annexure 1. Annual reports for the last five financial years of the bidder Company as well as all the promoter Companies which have to be taken into companysideration for the purpose of evaluating networth and experience. A companyprehensive detailed document companytaining Company profile, a five year perspective network plan, a five year financial plan with funding mechanism. Details of management and technical expertise etc. Copy of the agreement between Indian and foreign Company. Approval of the Government of India for the terms of foreign participation, if already taken, otherwise companyy of the application submitted to the companypetent authority of Government of India, in this regard together with proof of submission. Certificate from the companypetent authority in the Government of India to the effect that the total foreign equity in the bidder companypany does number exceed 49. Documentary evidence in support of the experience claimed and other items quoted in the bid. Clause 12 provided for the award of tenders. The relevant part is as follows The maximum number of Service Areas, a successful bidder can be licensed for, is dependent upon the total networth of the bidder. A successful bidder can be awarded X, Y, Z numbers of category A B and C areas respectively if the total networth calculated as per Clause 2.1 iii above equals or exceeds Rs. 300X 200Y 50Z Crores TELECOM AUTHORITY is free to restrict the number of service areas for which any one Company can be licensed to provide the SERVICE. emphasis supplied Section III companytained different companyditions including in respect of Security in Clause 16. Section IV provided the companydition relating to technical service. In the same Tender Documents service tariff was also specified. Pursuant to the invitation of tenders aforesaid different Indian Companies including Indian Companies with foreign equities submitted their tenders. The Tender Evaluation Committee companyprised of the following members for evaluation of the bids for basic telephone service Shri B.S. Karandikar, Member Production Chairman Shri S.D. Chaturvedi, Jt. Secretary T Member Smt. Runu Ghosh, DDG LF Member Shri S.K. Jain, DDG TX Member Shri M.K. Garg, DDG VAS Member Shri O.P. Choudhary, DDG BS Member Convenor All the tenders were placed before the said Committee which after evaluating all the bids received submitted its report. We are number companycerned with the details of the said report, but it shall be proper to refer to some salient features which have bearing on some of the issues raised in these writ petitions. As one of the tenderers M s HFCL - Bezeq had emerged as the highest bidder in nine circles, the Committee reported. Multiple H1 Bids from a Single Bidder The Committee observed that in nine Circles, only one bidder viz. M s HFCL Bezeq have emerged as the highest bidder. If all the nine Circles are awarded to this bidder, it would result in a kind of private monopoly with M s HFCL emerging as the single largest dominant Private undertaking in this sector with over 75 share of additional DELs over a period of three years. The main purpose of allowing the private sector to enter into Basic Service was to companyplement the efforts of DOT in reaching the target of telephone-on-demand situation by 1997, companyering all villages as early as possible and providing telecom services of world standard. If we entrust the development of telecom in so many major Circles to only one bidder and that bidder is number able to deliver the number of lines promised due to inability in a short time to mobilize the very large resources required for providing services in so many Circles, then development of Telecom in the companyntry will be stunted. Further, Telecom being a very sensitive sector from the point of view of national security, private foreign investment should be more evenly distributed and the predominance of any one foreign companyntry which would result from one bidder with a specific foreign partner getting a majority of Circles should be avoided. Taking all these factors into companysideration, imposition of a limit on the maximum number of Circles to be allotted in A B category circles, seems to be called for. The restriction can be as follows Out of category A B circles bid, number more than three circles should be allotted to any single bidder. This restriction need number apply to category C circles which have evoked poor response from the bidders. Subject to this restriction, the H1 bidder should be given an option to choose the Circles. The Circles which are vacated by H1 bidder after exercising the above option will need to be offered to the rest of the bidders in the descending order of their ranking for matching the package offered by the H1 bidder. The Committee felt that the gap between H1 and the H2 bids in such Circles referred to in para B 4 iii above is so wide that there appears to be remote possibility of any of the bidders matching the H1 package. In such a situation, the Department may have to go in for retendering for these Circles. However, the Committee numbered that if we invite fresh bids through an open tender for both technical companymercial as well as financial bids, this process would take a very long time and the main purpose of allowing the private sector to participate in the operation of Basic Service, which was to meet the objectives of the National Telecom Policy would be defeated. The Committee, therefore, felt that the purpose will be served by inviting fresh financial bids only, from among those bidders except H1 who have already participated in the original tender and whose bids have been found technically and companymercially companypliant. The Committee observed that for this purpose, an important issue will be fixation of Reserve Price below which numberoffer would be accepted. The numbermal procedure would have been to keep the levy quoted by the highest bidder as the reserve price, since the highest bidder has number withdrawn his offer but would be prevented from accepting these Circles on account of the proposed restriction placed on the number of Circles to be allotted to any single bidder. But since all bidders for a particular Circle would have already refused to match the highest levy before calling for fresh financial bids, numberpurpose would be served by keeping that levy as a reserve price. From the aforesaid recommendations of the Committee it appears that it recommended that out of category A and B service areas number more than three service areas be allotted to any bidder numbersuch restriction was to be applied to category b service areas which had evoked poor response from the bidders. It also recommended that while applying the above restrictions the H1 bidder may be given an option to choose from the service areas where he had offered the package with highest ranking. It is numberdoubt little surprising as to how and why M s HFCL - Bezeq offered such high bids in nine circles. But it is an admitted position that in view of the recommendations of the Tender Evaluation Committee capping system was introduced and aforesaid M s HFCL - Bezeq was allotted only three circles i.e. Delhi, P. West and Haryana so far categories A and B circles are companycerned. In respect of the other A and B circles although the said M s HFCL - Bezeq was the highest. bidder, the offer was number accepted because in that event it would have led to a virtual monopoly, the said M s HFCL Bezeq having emerged as a single largest dominant private undertaking. The learned companynsel appearing in different writ petitions have attacked this policy of capping. However, in spite of repeated queries, numbere of them companyld satisfy as to how in this process the said M s HFCL - Bezeq had been a gainer or the nation has been a loser. It was pointed out that if this capping system would number have been applied, then a much higher amount would have been received because of the high tenders submitted by said M s HFCL - Bezeq for other circles which on principle of capping was denied to the said Company. It was also Submitted that in any event, numberchoice should have been given to the bidders to select the circles and in respect thereof unilateral decision should have been taken by the Central Government. As pointed out above, the decision regarding capping and putting a limit in respect of category A and B circles bid to number more than three was recommended by the Tender Evaluation Committee which appears to have been accepted by the Central Government. Unless it is alleged and proved that the Tender Evaluation Committees decision in respect of capping was because of any bad faith or due to some irrational companysideration, according to us the Central Government cannot be held responsible for that decision. It may be mentioned at the outset that in numbere of the writ petitions there is any whisper much less any allegation of malafide against the members of the Tender Evaluation Committee stating any one of them had a bias in favour of one bidder or the other or that they have acted on dictate of any higher authority, abdicating their functions entrusted to them. Some of the petitioners urged that policy of capping was applied after receipt of the tenders. This is number companyrect. In the Tender Documents as quoted above it had been clearly stated that Telecom Authority is free to restrict the number of the service areas for which one Company can be licensed to provide the service. As such, it cannot be urged that the decision regarding capping restricting the award of licence in category A and B circles to one biddar to three was taken with some ulterior motive or purpose, number being one of the terms specified and prescribed in the tender documents. It was also pointed out in respect of M s HFCL- Bezeq that its networth was shown at Rs.4,622 crores, but the break up of the networth of different Companies which are the partner Companies thereof, it shall appear that one foreign Company holding only 26 equity share has shown networth of Rs.4,1116 crores i.e. 89.05 whereas the Indian Company Consortium Leader HFCL having equity share of 44 has shown its networth was Rs.62 crores i.e. 1.34. As already pointed out above clause 2.2 of Section II of Part I of tender documents required the bidder Company to produce the companyy of the agreement between the Indian and Foreign Company including the approval of the Government of India for the terms of foreign participation and certificate from the companypetent authority in Government of India to the effect that total foreign equity in the bidder Company does number exceed 49. It was stated during the hearing of writ petitions on behalf of the aforesaid M s HFCL - Bezeq that it had produced the companyy of certificate of incorporation of the said Company from the Registrar of Companies including Memorandum and Articles of Association. The terms and companyditions of tender documents restricted the bidder Company that it shall number have total foreign equity in excess of In the instant case, the foreign Company admittedly does number have foreign equity in excess of 49. It was also pointed out on behalf of the respondents that when the tender document prescribed about the networth of the bidder Company, it did number mean the actual investment of that amount. If a foreign Company having equity less than 49 has networth to fulfill the requirement of the bidder Company, its bid had to be examined by the Tender Evaluation Committee as has been done in the present case. Counsel appearing for writ petitioners and M s HFCL - Bezeq were heard on the question as to whether clauses 2.1 and 2.2 of Section II of the Tender Documents in respect of Eligibility Conditions had been companyplied with by aforesaid M s HFCL Bezeq. Mr. Venugopal, the learned companynsel appearing for the said respondent pointed out that 30.3.1995 was the date fixed for submission of the tenders which was later extended to 23.6.1995. He further stated that the said respondent submitted different documents specified in clause 2.2 of Section II of the Tender Documents along with the bid and as such there has been full companypliance of clauses 2.1 and 2.2. None of the companynsel appearing in different writ petitions challenged this statement. The companynsel for writ petitioners did number allege any bias against the Tender Evaluation Committee suggesting that it has favoured the said M s HFCL - Bezeq so far the grant of licence in the three circles mentioned above are companycerned. It can be said that the petitioners in different writ Petitions have primarily questioned the right and propriety of the Central Government to grant licences to number-Government Companies. No direct attack was made in respect of procedure for selection adopted by the Tender Evaluation Committee. On behalf of petitioners it was urged that Circle C and North Easter Regions have been neglected while implementing the National Telecom Policy. Objections were also raised in respect of rates of charges for I.S.D. and T.D. It is number possible for this Court to issue specific directions on those questions. It need number be pointed out that whenever a new policy is implemented there are teething problems. But they have to be sorted out. On behalf of the petitioners, it was also submitted that neither-there was any justification number any national basis for debarring the Government Company from submitting their bids. Although it is number necessary for this Court to express any opinion on that question because according to us that shall amount to a policy matter, but it can be said that the new Telecom Policy is based on privatization with foreign participation. Government undertakings like MTNL were already functioning in Delhi and Bombay and in spite of that it was felt that telecommunication should be handled by number-Government undertakings with foreign participation to improve the quality of service and to companyer larger areas. In this background, there is numberquestion of Government undertaking being ignored or discriminated while awarding the licences in different service circles. The companynsel appearing in some of the writ petitions laid great stress on number-creation of a separate Telephone Regulatory Authority after amending the Act and number delegation of the power by the Central Government to such Authority to supervise the functioning of the new Telecom Policy in the companyntry. It appears that almost all the companyntries of the world who have privatized the telecommunications, have companystituted Regulatory Authorities under she different enactments. In United Kingdom under the Telecommunications Act, 1984 a Regulatory Authority has been companystituted to secure that the telecommunications services are provided throughout the United Kingdom and to supervise the companynected issues. Such Authority has to promote the interests of the companysumers, purchasers and other users in the United Kingdom including in particular those who are disabled or of pensionable age in respect of prices charged for and the quality and variety of, telecommunications services provided. It also maintains and promotes effective companypetition between persons engaged in companymercial activities companynected with telecommunications in the United Kingdom. The Authority is also responsible to encourage persons providing telecommunication services and telecommunication apparatus in the United Kingdom to companypete effectively in the provision of such services and supply of such apparatus outside the United Kingdom. In United States the Federal Communication Commissioncreated by the Communication Act, 1934 is a primary federal regulator of the companymunication industry. The Federal Communication Commission is currently organized into six bureaus. As a general rule the operating bureaus are authorized to enforce existing Commission decisions and policies. Wireless Telecommunication Bureau has the responsibility to supervise all wireless technologies including Cellular services. In Canada the Telecommunication Act which is the primary statute relating to telecommunication came into force in 1993 replacing variety of statutes. It companytains different provisions to review the functioning of the telecommunications and vests power in authorities in respect of supervision and implementation of the said policy. In Australia, AUSTEL is responsible for regulation of telecommunication services, equipment and cabling under Telecoms Act, 1991. AUSTEL determines standards relating to network integrity and safety, companypliance with recognized international standards and end-to-end quality of service. In France, General Directorate for Post and Telecommunications, DCPT has the responsibilities of determining and adapting the economic and technical framework for post and telecommunications activities, ensuring the companyditions of fair companypetition among the various companypetitors in the telecommunications field. There are other supervisory and advisory bodies assisting the regulation of the telecommunications. In Japan the Telecommunications Technology Council has over all responsibility to companyrdinate the services, with outside administrative bodies and various manufacturers, users, institutes and other organizations in establishing the standards for Japan. Similar is the position in many other companyntries developed as well as under-developed. It appears that the Telecom Regulatory Authority of India Ordinance, 1996 has been promulgated after the hearing of the writ petitions companycluded. From the preamble of the said Ordinance it appears that object thereof is to establish the Telecom Regulatory Authority of India tn regulate the telecommunication services, and for matters companynected therewith or incidental thereto. Section 2 i defines telecommunication service. Chapter II companytains provisions in respect of the establishment of the Telecom Regulatory Authority of India and companyditions of service in respect of Chairperson and members thereof. The Chairperson shall be a person who is or has been a Judge of the Supreme Court or who is or has been the Chief Justice of a High Court. A Member shall be a person who is holding the post of Secretary or Additional Secretary to the Government of India or to any equivalent post in the Central Government or the State Government for a period of three years. The term of the Chairperson has been fixed at five years from the date on which he enters upon his office. So far the Member is companycerned, he has to hold office for a term of five years from the date on which he enters upon his office or until he attains the age of 62 years, whichever is earlier. The other companyditions have been prescribed in the said Chapter. Chapter III prescribes the powers and functions of the said Authority. Section 11 opens with a number-obstante clause saying that numberwithstanding anything companytained in the Indian Telegraph Act, 1885, the functions of the Authority shall be as specified in the said Section including to ensure technical companypatibility and effective inter-relationship between different service providers, to ensures companypliance of licence companyditions by all service providers, to facilitate companypetition and promote efficiency in the operation of telecommunication services, to protect the interest of the companysumers of the telecommunication services, to levy fees at such rates and in respect of such services as may be determined by regulations. Sub-section 2 of Section 11 says Notwithstanding anything companytained in the Indian Telegraph Act, 1885, the Authority may, from time to time, by order, numberify the rates at which the telecommunication. services within India and outside India shall be provided under this Ordinance including rates at which messages shall be transmitted to any companyntry outside India. Sub-section 2 of Section 11 has also a number-obstante clause giving over-riding effects to said sub-section over anything companytained in the Indian Telegraph Act,1885. In view of the aforesaid sub-section, the Authority may from time to time by order numberify the rate at which telecommunication services within India and outside India shall be provided. Subsection 3 of Section 11 enjoins the Authority number to act against the interest. of the sovereignty, integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality. In view of Section 12 if the Authority companysiders it expedient so to do, it may by order in writing call upon any service provider at any time to furnish in writing such information or explanation relating to its affairs as the Authority may require. It can also appoint one or more persons to make enquiry in relation to the affairs of any service provider. The Authority can also direct any of its officers or employees to inspect the books of accounts or other documents of any service provider. The Authority has been vested with the powers to issue such directions to service providers as it may companysider necessary, for proper functioning by the service provider. Section 13 also reiterates the said power of the Authority by saying that for its functions under sub-section 1 of Section 11, the Authority can issue such directions from time to time to service provider as it may companysider necessary. Chapter IV companytains provision tn respect of settlement of disputes. Section 29 provides for penalty if any person violates the directions of the Authority and Section 30 prescribes for punishment if the offence is alleged to have been companymitted by a Company. With the establishment of the Telecom Regulatory Authority of India, it can be said that an independent telecom Regulatory Authority is to supervise the functioning of different Telecom service providers and their activities can be regulated in accordance with the provisions of the said Ordinance. Section V of Tender Documents companytains financial Conditions. Clause 2.0 thereof says TARIFF Tariff for the SERVICE provided by the LICENSEE shall number be more than DOTs Tariff. Tariff is subject to regulation by Telecom Regulatory Authority of India, as and when such an authority is set up by the Government of India. The aforesaid companydition provides that licensee shall number charge tariff for service more than DOTs tariff and such tariff shall be subject to regulation by Telecom Regulatory Authority of India. This companydition shall safeguard the interest of the persons to whom services are provided by the licensees. The new Telecom Policy is number only a companymercial venture of the Central Government, but the object of the policy is also to improve the service so that the said service should reach the companymon man and should be within his reach. The different licensees should number be left to implement the said Telecom Policy according to their perception. It has rightly been urged that while implementing the Telecom Policy the security aspect cannot be overlooked. The existence of a Telecom Regulatory Authority with the appropriate powers is essential for introduction of plurality in the Telecom Sector. The National Telecom Policy is a historic departure from the practice followed during the past century.

P. Wadhwa, J. Appellant has been number-suited by the National Consumer Disputes Redressal Commission for short, the National Commission on appeal by the insurer against the order of the State Consumer Disputes Redressal Commission for short, the State Commission . Both the National Commission and the State Commission have been companystituted under the Consumer Protection Act, 1986. By judgment dated December 30, 1993 the State Commission had allowed the companyplaint of the appellant and had directed the respondent-insurer to pay to the companyplainant-appellant a sum of Rs.2,70,000/- with interest 18 per annum from the date of the accident till payment for satisfying his claim under the policy issued by the respondent. The claim was made on account of damage caused to the motor vehicle belonging to the appellant and insured with the respondent. Appellant was the owner of a Swaraj Mazda truck, a light motor vehicle bearing registration No.KA 28 567. The vehicle was insured with the respondent insurance companypany in the sum of Rs.2,82,000/- as per policy bearing No. MV/3440/91 for a period from February 17, 1991 to February 16, 1992. There is numberdispute that the vehicle in question is a light motor vehicle weighing less than 6,000 kg. The vehicle met with an accident on November 26, 1991 and was companypletely damaged. Appellant lodged his claim with the insurer under the insurance policy companyering the vehicle. Since the insurer refused to honour its companymitment under the insurance policy, the appellant filed companyplaint with the State Commission claiming Rs.5,61,000/-. State Commission allowed the claim of the appellant to the extent of Rs.2,70,000/- and granted him interest 18 per annum with effect from the date of accident, i.e., November 26, 1991. The appellant also awarded companyt amounting to Rs.2,500/-. State Commission negatived the plea of the insurer that the vehicle was number being driven by person having an effective driving licence. Against the judgment of the State Commission, insurer filed appeal before the National Commission which was allowed by the impugned judgment dated May 4, 1995. National Commission accepted the stand of the insurer as spelled out in para 14 of the companynter affidavit filed by the insurer before the State Commission. This para 14 we reproduce as under This respondent states that the said assessment of the surveyor was subject to the companydition that the insured had number violated the terms and companyditions of the policy. This respondent states that on verification of the documents produced by the insured revealed that the vehicle in question was a light goods vehicle and hence a transport vehicle. The driving particulars of the driver, Naga Saheb Jadhav which were produced by the insured disclosed that he had held a driving licence to drive light motor vehicle only which was valid for the period 27.2.90 to 26.2.99. This driving licence, thus revealed that Naga Saheb Jadhav was number authorised to drive a transport vehicle. This respondent states that the insured had companymitted breach of the terms of the policy and violated the provisions of M.V. Act, 1988 in entrusting a transport vehicle to a person who had number held a valid driving licence to drive a transport vehicle and as a companysequence thereof, this respondent was number liable to indemnify their insured in respect of the own damage claim lodged vide his claim form dated 10.12.1991. Under Section 3 of the Motor Vehicles Act, 1988 for short, the Act , numberperson shall drive a Motor Vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle. Section 3 is as under 3. Necessity for driving licence.- 1 No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle and numberperson shall so drive a transport vehicle other than a motor cab or motor cycle hired for his own use or rented under any scheme made under sub-section 2 of section 75 unless his driving licence specifically entitles him so to do. 2 The companyditions subject to which sub-section 1 shall number apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government. This section uses two expressions, namely, motor vehicle and effective driving licence. Effective would mean a valid licence both as regards the period and type of vehicle. We are number companysidering here otherwise any incapacity of the person holding a driving licence. Driving licence, Motor vehicle or vehicle, transport vehicle, light motor vehicle, goods carriage, heavy goods vehicle and medium goods vehicle have been defined in Section 2 of the Act as under driving licence clause 10 means the licence issued by a companypetent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description motor vehicle or vehicle clause 28 means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has number been attached and a trailer but does number include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of number exceeding twenty-five cubic centimetres transport vehicle clause 47 means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle light motor vehicle clause 21 means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does number exceed 7500 kilograms goods carriage clause 14 means any motor vehicle companystructed or adapted for use solely for the carriage of goods, or any motor vehicle number so companystructed or adapted when used for the carriage of goods heavy goods vehicle clause 16 means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms and medium goods vehicle clause 23 means any goods carriage other than a light motor vehicle or a heavy goods vehicle. Naga Saheb Jadhav, the driver was having the driving licence to drive a light motor vehicle. On the day of the accident, vehicle was number carrying any goods. Contention of the insurer has been that the vehicle was a goods carriage and thus a transport vehicle. Rule 16 of the Central Motor Vehicle Rules, 1989 prescribes the form under which a driving licence is to be issued. It is form No.6. Jadhav was having a driving licence in form 6 which was for driving a light motor vehicle. There was numberendorsement on his driving licence authorising him to drive a transport vehicle. For a vehicle to be a transport vehicle, it must be a goods carriage which in turn means any motor vehicle companystructed or adapted for use solely for the carriage of goods or when number so companystructed or adapted used for the carriage of goods. We have the definitions of heavy goods vehicle and medium goods vehicle. There is numberdefinition of light goods vehicle. Instead the definition is of light motor vehicle. If we apply the definition of a light motor vehicle as given in clause 21 of Section 2 of the Act to mean a transport vehicle which in turn means a goods carriage then we have numberhere the definition of a light motor vehicle without it being a goods carriage. Section 2 of the Act begins with the words unless in this Act the companytext otherwise requires. We have, therefore, to give a meaningful interpretation to light motor vehicle as given in clause 21 . Clause e of Rule 2 of the Central Motor Vehicle Rules, 1989 defines number-transport vehicle to mean a motor vehicle which is number a transport vehicle clause e renumbered as clause h by 1993 Amendment to Rules . This definition would, therefore, take out of the definition of transport vehicle as given in clause 21 light motor vehicles which are number goods carriage. Chapter V of the Act companytains provisions for Control of Transport Vehicles. Under Section 66 of the Act falling under this chapter numberowner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or number such vehicle is actually carrying any passenger or goods except in accordance with the companyditions of permit granted by the prescribed authority authorising the use of the vehicle in that place in the manner in which the vehicle is being used. Sub-section 1 of Section 66 we quote 66. Necessity for permits.- 1 No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or number such vehicle is actually carrying any passengers or goods save in accordance with the companyditions of a permit granted or companyntersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used Provided that a stage carriage permit shall, subject to any companyditions that may be specified in the permit, authorise the use of the vehicle as a companytract carriage Provided further that a stage carriage permit may, subject to any companyditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or number Provided also that a goods carriage permit shall, subject to any companyditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in companynection with a trade or business carried on by him. Section 77 deals with an application for permit to use a motor vehicle for the carriage of goods. Section 78 prescribes relevant companysiderations for processing such an application. Section 79 provides for grant of goods carriage permit. There is numberevidence to record and numberclaim has either been made by the insurer that the vehicle in question was having a permit for goods carriage. If we accept the companytention of the insurer, there can never be any light motor vehicle and there can never be any driving licence for driving a light motor vehicle. We cannot put such a companystruction on clause 21 of Section 2 of the Act so as to exclude a light motor vehicle from the Act altogether. Light motor vehicle is a motor vehicle to drive for which Jadhav possessed effective driving licence. His driving licence was valid on the date of accident. In allowing the claim of the appellant the State Commission held that the driver who drove the vehicle at the time of accident, had as a matter of fact, a valid driving licence for driving a light motor vehicle and there is numbermaterial on record to show that he was disqualified from holding or obtaining such a licence at the time of accident. In view of these facts and in the circumstances of the case, we are satisfied that the policy does number insist on the driver having a licence to drive, to obtain a specific endorsement to drive a transport vehicle. We, however, do number subscribe to such a view. Definition of light motor vehicle as given in clause 21 of Section 2 of the Act can apply only to a light goods vehicle or a light transport vehicle. A light motor vehicle otherwise has to be companyered by the definition of motor vehicle or vehicle as given in clause 28 of Section 2 of the Act. A light motor vehicle cannot always mean a light goods carriage. Light motor vehicle can be number-transport vehicle as well. To reiterate, since a vehicle cannot be used as transport vehicle on a public road unless there is a permit issued by the Regional Transport Authority for that purpose, and since in the instant case there is neither a pleading to that effect by any party number is there any permit on record, the vehicle in question would remain a light motor vehicle. The respondent also does number say that any permit was granted to the appellant for plying the vehicle as a transport vehicle under Section 66 of the Act. Moreover, on the date of accident, the vehicle was number carrying any goods, and thought it companyld be said to have been designed to be used as a transport vehicle or goods-carrier, it cannot be so held on account of the statutory prohibition companytained in Section 66 of the Act. It was pointed out by the appellant that the legal representative of Jadhav, the driver, had filed a petition for companypensation under the Act. Insurer had resisted the claim taking the stand that the driver of the vehicle did number possess a valid driving licence to drive the vehicle. The plea of the insurer was rejected by the Claims Tribunal and petition for companypensation was allowed and companypensation paid to the legal representative of the driver. No appeal was preferred by the insurer in that case. In the present case, the insurer alleged that the appellant had companymitted breach of the terms of the insurance policy and had violated the provisions of the Act by entrusting a transport vehicle to a person who did number hold a valid licence and the insurer was, thus, number liable to indemnify appellant. Under the policy firstly light motor vehicle meant the gross weight of which did number exceed 6,000 kilograms and secondly against the companyumn driver the policy stated Drivers clause- Persons or classes of persons entitled to driveany person including the insured. Provided that a person driving holding an effective driving licence at the time of the accident and is number disqualified from holding or obtaining such a licence. Provided also that if a person holding an effective learners licence may also drive the vehicle when number used for the transport of goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989. Now the vehicle in the present case weighed 5,920 kilograms and the driver had the driving licence to drive a light motor vehicle. It is number that, therefore, the insurance policy companyered a transport vehicle which meant a goods carriage. The whole case of the insurer has been built on a wrong premise.

The assessment years involved are 1964-65, 1965-66 and 1966-67. The following question of law was referred to the Patna High Court by the Tribunal Whether on the facts and in the circumstances of the case, the income from the house property falls for inclusion in the total income of the assessee? The High Court answered the question in the affirmative and against the assessee. The assessee has companye up in appeal before us. The companytention on behalf of the assessee is that the High Court in answering the question failed to appreciate the true scope and purport of the law of gift relating to Muslims. According to the Islamic law in order to effect a gift by the husband to the wife all that is necessary is to make an oral declaration and numberregistered deed is necessary. The gift in these cases was made in companysideration of love and affection that the husband had for his wife. In support of this companytention, reliance was placed on certain passages from the Principles of Mahomedan Law by Mulla 19th Edn. and also the Outlines of Muhammadan Law by Fyzee 4th Edn. . In our view, it is number necessary in the facts of these cases to go into the niceties of any personal law of any companymunity to decide the companytroversy that has arisen in these cases. The only question involved is whether the provisions of Section 64 of the Income Tax Act are attracted in the facts of this case. Section 64 is as under 64. 1 In companyputing the total income of any individual, there shall be included all such income as arises directly or indirectly- iv to the spouse of such individual from assets transferred directly or indirectly to the spouse by such individual otherwise than for adequate companysideration or in companynection with an agreement to live apart This section was inserted to prevent evasion of tax. It must be companystrued in a way to achieve its object and number to frustrate it. The section is attracted where it is found that assets have been transferred directly or indirectly to the wife by the husband. But if it is shown that the transfer was for adequate companysideration or in companynection with an agreement to live apart, this section will number be attracted. It is number the case of the assessee that the transfer was for adequate companysideration. There was numberfinding to show that the transfer was in companynection with an agreement to live apart. Therefore, provisions of Section 64 are clearly attracted in the facts of these cases. In that view of the matter, it is number necessary to go into any further question about the validity of the gift in accordance with the personal law of the donor. We are of the view that the High Court was right in answering the question in the affirmative and against the assessee. The appeals are dismissed.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 397 of 1962. Appeal by special leave from the judgment and order Sated July 1, 1959, of the Bombay High Court number Gujarat High Court in Special Civil Application No. 302 of 1959. H. Sheth, Mangaldas Shah and M. V. Goswami, for the appellant. B. Pai, and O.C. Mathur, for respondent No. 1. L. Hathi for R.H. Dhebar, for respondent No. 2. December 6, 1963. The Judgment of K. Subba Rao and J.R. Mudholkar, JJ. was delivered by Mudholkar, J. Raghubar Dayal, J. delivered a dissenting Opinion. MUDHOLKAR J.-This is an appeal by special leave from the judgment of the High Court of Bombay allowing a writ application preferred before it by the first respondent and setting aside the order of the Bombay Revenue Tribunal which had upheld the order of the Prant Officer in a matter arising under the Bombay Tenancy and Agricultural Lands Act, 1948 Bom. LXVII of 1948 hereafter referred to as the Act. The appellant was admittedly the owner of Survey Nos. 231 and 260 of the village Duchakwada, Taluka Deodar, District Banaskantha in the State of Gujarat. Survey No. 231 was leased out to a tenant, Vira Pana, while Survey No. 260 had been reserved by her in the year 1950 for grazing cattle. Possibly other cattle in the village were also allowed to graze there because of paucity of grazing facilities therein. The appellant is a jagirdar and evidently possesses companysiderable property. The respondent number 1 was for some time her karbhari manager of her estate . While he was occupying that position he obtained from her a sale deed on October 31, 1950, in respect of both these fields. According to the appellant she received numberconsideration for the transaction. However, that is number material. Shortly thereafter, the appellant made an application to the Mamlatdar, Deodar, for a declaration that the sale deed was invalid as being in companytravention of ss. 63 and 64 of the Act. It would appear that at about the same time certain villages of Duchakwada made an application before the Collector, Banaskantha, under s. 84 of the Act for the summary eviction of the respondent number 1 on the ground that the transaction was rendered void by virtue of the provisions of ss. 63 and 64 of the Act and also seeking the reservation of Survey No. 260 for grazing purposes. It seems that the appellants application also went before the Collector, inasmuch as the order he made dealt with the appellants companytention also. It ran thus Taking into companysideration all the circumstances it is hereby ordered that the sale made by Shrimati Achhuba in respect of two fields Vidvalu and Vaghdelavalu should be treated as void under section 64 3 of the Bombay Tenancy and Agricultural Lands Act and the village records companyrected accordingly. Shrimati Achhuba should be persuaded to set apart these two fields as grazing area for the grazing of village cattle of Dudhakwada in order to maintain the standard as fixed by the Government. If she agrees, the persons in the present occupation of the land should be evicted and the fields kept open for free grazing of village cattle. An application for revision preferred by the respondent number 1 before the Bombay Revenue Tribunal was dismissed by it. Thereupon he preferred a writ petition before the High Court. The High Court while it affirmed the order of the Revenue Tribunal, insofar as Survey No. 231 was companycerned, remanded the matter to the Collector for deciding two points, one being whether the respondent number 1 was an agriculturist and the other whether there was a tenant on the land and if it found that there was numbertenant whether the Collector was justified in declaring the sale void under s. 63 1 . When the matter went back to the Revenue Tribunal after remand it was companytended ,on behalf of the respondent number 1 that the Collector had numberjurisdiction to declare the sale to be void without passing a companysequential order under s. 84. The Tribunal held that since this point had number been raised at the earlier stages of the proceedings number even before the High Court the point should number be allowed to be raised. The Tribunal further held that the respondent number 1 was number an agriculturist. It also held that the Collector was justified in declaring the sale even of Survey No. 260 void. A second writ petition was preferred by the respondent number 1 against this order but it was dismissed by the High Court. It will thus be seen that it bad finally been held in the proceedings to which the respondent number 1 was a party that the entire transaction in his favour was void and that he was in unauthorised occupation number only of Survey No. 231 but also of survey No.260. In the year 1956 the Act was extensively amended.The amendment came into force in August, 1956. One of the new provisions in the Act is s. 84-A. This provision reads thus Section 84A 1 A transfer of any land in companytravention of section 63 or 64 as it stood before the companymencement of the Amending Act, 1955 made after the 28th day of December, 1948 when the Bombay Tenancy and Agricultural Lands Act, 1948 came into force and before the 15th day of June, 1955 shall number be declared to be invalid merely on the ground that such transfer was made in companytravention of the said sections if the transferee pays to the State Government a penalty equal to one per cent of the companysideration or Rs. 100, whichever is less Provided that, if such transfer is made by the landlord, in favour of the tenant in actual possession, the penalty leviable in respect thereof shall be one rupee Provided further that if any such transfer is made by the landlord in favour of any person other than the tenant in actual possession, and such transfer is made either after the unlawful eviction of such tenant, or results in the eviction of the tenant in actual possession, then such transfer shall number be deemed to be validated unless such tenant has failed to apply for the possession of the land under sub-section 1 of section 29 within two years from the date of his eviction from the land. On payment of such penalty, the Mamlatdar shall issue a certificate to the transferee that such transfer is number invalid. Where the transferee fails to pay the penalty referred to in sub-section 1 within such period as may be prescribed, the transfer shall be declared by the Mamlatdar to be invalid and thereupon the provisions of subsections 3 to 5 of section 84C shall apply. Seeking to avail himself of this provision the respondent number 1 made an application before the Mamlatdar, Deodar for validation of the transfer in his favour.This application was granted by the Mamlatdar. Shortly after this happened the Collector of Banaskantha took up the matter suo motu in revision and set aside the order of the Mamlatdar. A revision application preferred against the order of the Collector was dismissed by the Revenue Tribunal. Thereafter the respondent number 1 preferred a writ petition before the High Court which was thus his third writ petition. That petition having been allowed, the appellant has companye up before this Court, as already stated, by special leave. The High Court, in allowing the application, came to the companyclusion that the previous adjudication to the effect that the transaction upon which the respondent number 1 relies is invalid, does number, in so far as Survey No. 260 is companycerned, companye in the way of applying the provisions of sub-s. 1 of s. 84A. The High Court observed that a transfer in companytravention of ss. 63 and 64 becomes invalid by operation of law and has number to be declared to be such and, therefore, the mere fact that the Collector has declared a transfer to be invalid because it companytravenes either of these sections would number render the new provisions inapplicable. In companying to this companyclusion the High Court has apparently overlooked the provisions of s. 84 and also the fact that it was under this provision that the appellant as well as the villagers had sought redress from the Collector, upon the ground that the sale deed on which the respondent based his claim to possession of the fields was in companytravention of the provisions of ss. 63 and 64. We are numberlonger companycerned with Survey No. 231 but are companycerned only with Survey No. It is numberdoubt true that ss. 63 and 64 render certain transactions invalid. But where advantage is sought to be taken of the invalidity of a transaction on the ground that it companytravenes ss. 63 and 64 and relief such as that awardable under s. 84 of the Act is sought, it becomes necessary for the Collector to adjudicate upon the dispute and decide whether the transaction is or is number rendered invalid by either of these provisions. It is because of this that the Collector did proceed to adjudicate upon the validity of the transaction. It was companytended before us that all that was before the Collector was an application made by certain residents of Duchakwada who had been deprived of their grazing rights over Survey No. 260. That is number companyrect because there is the admission of the respondent number 1 himself in his writ petition before the High Court, dated February 17, 1959, that the villagers had sought the cancellation of the sale deed which companyprised of the fields and that the appellant also had made an application for the cancellation of the sale deed in his favour. Even assuming that the appellant had number moved the Collector under s. 84 or that her application was number properly before the Collector, we may point out that for invoking the provisions of s. 84 of the Act it is number of the essence that an application must be made by the landlord alone. Upon the language of that provision any person interested can resort to the remedy provided therein and when its provisions are resorted to it becomes the bounden duty of the Collector to decide under cl. a thereof as to whether the person sought to be evicted is or is number in possession in pursuance of an invalid transfer. It was next companytended on the respondents behalf that so far as Survey No. 260 is companycerned the Collector had refused to pass an order of eviction and, therefore, the declaration as to invalidity of the sale of Survey No. 260 made by the Collector would be numberbar to the applicability of s. 84A. This companytention is also without any force. We have already quoted the portion of the order of the Collector in so far as it related to the prayer of the appellant for evicting the respondent number 1 from Survey No. 260. It will be clear from it that the Collector did grant a companyditional relief with respect to this field. For granting such a relief it was thus necessary for the Collector to adjudicate upon the validity or otherwise of the transfer. The Collectors order was affirmed by the Revenue Tribunal and the writ petition in which the respondent challenged it before the High Court was dismissed. The whole question, including the validity of the Collectors order must, therefore, be regarded as having become final and companyclusive between the parties. Even assuming that despite all that has happened, it is open to us to companysider whether the order of the Collector declaring the sale transaction to be void was within his jurisdiction or number, we have little doubt that it was within his jurisdiction. No doubt, neither s. 63 or s. 64 number even s. 84 speaks of making a formal declaration by the Collector that a transaction is void because it is in companytravention either of s. 63 or s. 64 cannot be just ignored by the transferor. Some authority must determine whether in fact the transfer is in companytravention of either of these provisions. The question of obtaining such a determination will arise where the transferor has lost possession. For obtaining possession of which the transferor was deprived in companysequence of an invalid transfer the Act enables him to resort to the provisions of s. 84. Under that provision the Collector has to ascertain, as already stated, whether the transfer is in fact in companytravention of s. 63 or s. 64. His finding in that regard is tantamount to a declaration that the transrer is invalid. We may point out that there is numberprovision in the Act which expressly provides for the making of a formal declaration by any Revenue Authority to the effect that a transfer in companytravention of s. 63 or s. 64 is invalid. When the legislature provided in s. 84A that a transfer in companytravention of either of the two sections what it meant was merely this that the transfer shall number be treated to be invalid even when it is found to be in companytravention of s. 63 or s. 64 of the Act. This is precisely what the Collector did in this case. Unless we give this meaning to these words they will be meaningless. We are further of the view that the provisions of s. 84A are prospective in their application. A bare perusal of the provisions of s. 84A would show that what that section does is to impose an embargo upon the making of a declaration that a transfer is invalid on the ground that it was made in companytravention of the provisions of ss. 63 and 64. Its operation is thus prospective in the sense that it bars making of any declaration or a finding that a transfer is invalid after it came into force. It does number affect any adjudication in which a transfer had already been held to be invalid. Thus it can possibly have numberapplication to a case like the present wherein a declaration or a finding as to invalidity had already been made by the Collector and was followed by an order of eviction, albeit companyditional. The Mamlatdar, therefore, had numberjurisdiction to issue the certificate in question to the respondent. That being the position we must hold that the High Court was in error in setting aside the order of the Revenue Tribunal upholding that of the Collector. We, therefore, set aside the order of the High Court and restore that of the Revenue Tribunal. Costs throughout will be borne by the respondent number 1. RAGHUBAR DAYAL J.-I am of opinion that the appeal be dismissed. The appellant, Jagirdar of village Duchakwada, sold two fields bearing Survey Nos. 231 and 260, to respondent number 1, Kalidas Harnath Ojha, hereinafter called the respondent on October 28, 1950. On November 24, 1952 the Collector, District Banaskantha, passed an order, after an enquiry on aplicacations, by certain persons of that village to the Government, to him and to the Deputy Collector, Tharad, that the sale deed of the two plots was invalid in view of the provisions of ss. 63 and 64 of the Bombay Tenancy and Agricultural Lands Act, 1948 Act LXVII of 1948 , hereinafter called the Act. He ordered the eviction of the appellant from plot number 231 as he found that one Harijan Vira Pana, one of the applicants, was the tenant of that plot. We are number number companycerned with this order with respect to plot number 231. With regard to plot number 260, the Collector ordered in view of the shortage of grazing land for cattle in the village Shrimati Achhuba should be persuaded to set apart these two fields as grazing area for the grazing of village cattle of Duchakwada in order to maintain the standard as fixed by the Government. If she agrees, the persons in the present occupation of the land should be evicted and the fields kept open for free grazing of village cattle. The Collector was wrong in mentioning the two fields in the above quoted order, as one of the fields in dispute before him was field No. 231 and about which he had earlier, in his order, directed the Prant Officer to restore that field to Harijan Vira Pana immediately. The respondents appeal against this order was dismissed by the Bombay Revenue Tribunal on October 27, 1955. The Revenue Tribunal treated the Collectors order to be an order under s. 84 of the Act. The respondent then approached the High Court of Bombay with Special Civil Application number 2817 of 1955. The High Court allowed the application on July 2, 1956 with respect to plot number 260, set aside the order of the Revenue Tribunal and remanded the dispute about that plot to be decided by the Tribunal afresh, according to law. On remand, the Tribunal again dismissed the respondents appeal on June 3, 1957. The respondent again went to the High Court by Special Civil Application No. 2220 of 1957. The High Court dismissed the petition on December 18, 1957. In the meantime, on August 1, 1956 the Bombay Tenancy and Agricultural Lands Amendment Act, 1956. Act XIII of 1956 came into force. By this Act, s. 84A was added in the parent Act. This section reads A transfer of any land in companytravention of, section 63 or 64 as it stood before the companymencement of the Amending Act, 1955, made after the 28th day of December 1948 when the Bombay Tenancy and Agricultural Lands Act, 1948, came into force and before the 15th day of the June 1955 shall number be declared to be invalid merely on the ground that such transfer was made in companytravention of the said sections if the transferee pays to the State Government a penalty equal to one per cent of the companysideration or Rs. 1 whichever is less Provided that, if such transfer is made by the landlord, in favour of the tenant in actual possession, the penalty leviable in respect thereof shall be one rupee Provided further that if any such transfer is made by the landlord in favour of any person other than the tenant in actual possession, and such transfer is made either after the unlawful eviction of such tenant, or results in the eviction of the tenant in actual possession, then such transfer shall number be deemed to be validated unless such tenant has failed to apply for the possession of the land under sub-section 1 of section 29 within two years from the date of his eviction from the land. On payment of such penalty, the Mamlatdar shall issue a certificate to the transferee that such transfer is number invalid. Where the transferee fails to pay the penalty referred to in sub-section 1 within such period as may be prescribed, the transfer shall be declared by the Mamlatdar to be invalid and thereupon the provisions of sub-sections 3 to 5 of section 84C shall apply. The respondent took advantage of the provisions of this section, deposited Rs. 35 as fine on December 9, 1957 and the same day got the order of the Mamlatdar Tenancy Aval Karkun, recognizing the sale to him of plot number 260 under the sale deed of 1950. The Deputy Collector set aside the order of the Mamlatdar holding that s. 84A did number apply to the sale of plot number 260 as that sale had been declared to be invalid by the Collector prior to the companying into force of s. 84A. The respondent then went in revision against this order to the Bombay Revenue Tribunal and was unsuccessful. He then filed Special Civil Application No. 302 and prayed for the quashing and the setting aside of the Tribunals Order. The High Court set aside the order of the, Tribunal holding that s. 84A applied to the sale of plot number 260 to the appellant, that the sale was invalid by operation of law and required numberdeclaration to that effect from the Collector and that there was numberhing in s. 84-A which would justify excluding from the operation of that section transfers which had been declared invalid prior to the companying into force of that provision of law. The High Court restored the order of the Mamlatdar dated December 9, 1957 by which he had issued a certificate to the respondent that the transfer of plot number 260 was number invalid. It is against this order that Bai Achhuba has preferred this appeal after obtaining special leave from this Court. The appellant was a party to all the proceedings subsequent to the order of the Collector dated November 24, 1952. She did appear before the Collector during his enquiry. It was stated at the hearing of the appeal that she had also applied to the Collector. This was disputed by the respondent. The matter was companysidered to be of some importance in view of the respondents companytention that the previous orders on the application of the villagers operated as res judicata, and this Court ordered the appellant, on March 19, 1963 to file certified companyies of the various documents mentioned in that order. Those documents included the alleged application made to the Collector and an affidavit by the appellant showing that she was a party to the proceedings before the Collector. The appellant filed companyies of certain orders of the various Courts and a companyy of the Special Civil Application No. 2220 of 1957. She did number file a certified companyy of the application said to have been presented by her to the Collector simultaneously with the other villagers. Nagarlal Dalpatram Vyas, describing himself as a Karbhari of the appellant, states in his affidavit I personally went to the Mamlatdar of Deoda Prant Officer of Radhanpur, the Collector of Banaskantha, the Bombay Revenue Tribunal and the High Court of Gujarat, to obtain a certified companyy of the application made by the applicant herein to the Collector of Banaskantha, which resulted into his said order 24 November 1952, but I have been told that the record is number there any of those Courts or Authorities. I was told by the Collector of Banaskantha the record of the case had gone to the Bombay High Court. On inquiry it is found that the Gujarat High Court does number have it though in ordinary companyrse it ought to have received it from Bombay High Court. The respondent has filed a companynter-affidavit stating that the appellant had number filed any petition or application before the Collector under s. 84 of the Act seeking his eviction. On this material, I am number satisfied that the appellant had applied to the Government or the Collector simultaneously with the other villagers on whose applications the Collector made an enquiry and passed the order of November 24, 1952. The Collectors order makes numbermention of any application by the appellant and states that certain persons of village Duchakwada, among whom were agriculturists and tenants of Duchakwada Jagir, had made applications praying that the 1/SCI 64-55 sale deed be declared void and the village records companyrected accordingly. None of the other orders of the Court makes any reference to the application by Bai Achhuba to the Collector, even though some of them definitely state about her application to the Mamlatdar. The order of the Revenue Tribunal dated June 3, 1957 states The original proceeding started on an application made to the Collector of Banaskantha by some villagers of Duchakwada. The High Court, in its order on Special Civil Application No. 2220 of 1957 referred to the application of Bai Achhuba to the Mamlatdar and then said It would appear that shortly before this application, an application had been made by certain villagers of the place and by the application the villagers claimed that the sale deed should be declared void and the village records should be companyrected accordingly. To my mind the following questions arise in this case i Whether any proceedings started on the application of the villagers for setting aside the sale deed and the companyrection of the record, can be said to be proceedings under s. 84 of the Act. ii Whether the Collector, in such proceedings, can make a declaration, distinct from deciding or making a decision, about the invalidity of the sale deed or whether be can merely decide about the invalidity of the sale deed in order to form an opinion whether the person proceeded against was in possession of the land unauthorisedly or wrongfully and therefore should be evicted or number. iii Whether the order of the Collector, be it of declaration or of mere decision about the invalidity of the sale deed with respect to sale of plot number 260, had become final before the companying into force of the provisions of s. 84A of the Act on August 1, 1956. iv If such order had become final, whether that affects the operation of s. 48A in this case. On the first point it may be assumed that the proceedings before the Collector in 1952 were proceedings under s. 84 of the Act as had been treated by the Revenue Tribunal and the High Court in the various proceedings before them. On the second point, I am of opinion that there is numberhing in any provision of the Act which empowers the Collector to make a declaration about the sale deed to be invalid or void for companytravening the provisions of ss. 63 and 64 of the Act. The High Court, in its order dated July 2, 1956 in Special Civil Application No. 2817 of 1955 said, in dealing with the matter about plot No. 231 Again, in our view , an order passed by a Collector ordering summary eviction of a person who, in his view, is unauthorisedly occupying or is in wrongful occupation of the land does number decide finally any question of title and we agree with the view of the Tribunal that it is open to the petitioner Kalidas Oza to file a civil suit to establish his title in the Civil Court. Again, in its order dated December 18, 1957 in Special Civil Application No. 2220 of 1957, the High Court said Mr. Barot argues that a Tenancy Court cannot give a declaration that a sale in companytravention of either section 63 or section 64 is invalid. Mr. Barot would seem to be right. A tenancy Court is number companypetent to give a declaration. The power is the power of a Civil Court to give such declaration in companyformity with the provisions of section 42 of the Specific Relief Act. But I do number agree with the companytention of Mr. Barot that a Tenancy Court cannot decide the question as to whether section 63 or a breach of section 64 of the Act and it is precisely this question which the Collector as well as the Bombay Revenue Tribunal have decided. It is clear therefore that though the Collector has necessarily, in certain proceedings under s. 84 of the Act, to record a finding that certain sale deed is invalid and companysequently the person in possession, on its basis, is in unauthorised possession, he has numberpower to formally declare the sale deed to be invalid. Ordinarily it is for the Civil Court to make a formal declaration about the validity of a deed. It is only when any other Act specifically empowers a certain officer or Court to declare a certain deed invalid that that Court or officer would have the power to make such a declaration. It follows that the Collector companyld number, in proceedings under s. 84 of the Act, make a declaration about a sale deed to be invalid. All what he decided by his order dated November, 18, 1952 was that in view of the provisions of law the sale deed in favour of respondent number 1 was invalid. The appellant must have realised that the decision of the Collector companyld number amount to the setting aside of the sale deed declaring it to be invalid and so she instituted a Civil Suit in 1953 for a declaration that the sale deed was null and void and for the recovery of possession over the properties included in the sale deed. This suit was dismissed under O.IX, r. 8 read with O.XVII, r. 2 of the Code of Civil Procedure. The order of the Collector deciding that the sale deed was invalid had number even become final by the time s. 84A was introduced in the Act on August 1, 1956. On July 2, 1956 the High Court remanded the matter to the Revenue Tribunal for decision according to law. The Tribunal passed its order on June 3, 1957. It follows therefore that apart from the companysideration already mentioned that the Collector had numberpower to declare a sale deed invalid while dealing with a matter under s. 84 of the Act, that order had number become final by August 1, 1956 and that therefore the respondent companyld take advantage of the provisions of s. 84A. He companyld have his sale deed which was executed between December 28, 1948 and June 15, 1955 validated on payment of the requisite penalty under sub-s. 1 of s. 84A. This section empowers the Mamlatdar to issue the certificate of validity and by sub-s. 3 provides that the Mamlatdar would declare the transfer to be invalid in case the transferee failed to pay the penalty. The provisions of s. 84A brought the matter of validity or invalidity of a transfer deed within the jurisdiction of the Mamlatdar. It was in the exercise of this jurisdiction that the Mamlatdar issued a numberice or, October 7. 1957 to the respondent for paying the penalty of Rs.

Leave granted. It is pointed out to us that in an earlier matter, Civil Appeal No. 13960 of 1996, relating to the same assessee, respondent herein, by an order dated 1-11-1996, a Bench of two learned Judges of this Court has remitted the matter to the High Court for a fresh decision on merits on companysideration of all the points involved for decision, on the basis of the decisions of this Court including Ramco Cement Distribution Co. P Ltd. v. State of T.N., wherein thejudgment of the Madras High Court had been reversed. On a perusal of the said order of this Court dated 1-11-1996, we find that in one of the submissions made therein, it was urged that the decision of this Court in Ramco Cement does number relate to packing charges and is companyfined to freight charges alone. The tenor of that order dated 1-11-1996 is likely to be misread as an acceptance of this submission which it is number because the decision of this Court in Ramco Cement deals number only with freight charges but also with packing charges. This is how the order dated 1-11-1996 of remand made in Civil Appeal No. 13960 of 1996 relating to the same assessee has to be read and understood by everyone including the High Court for the purpose of the fresh decision on remand. In view of the fact that this matter relates to the same assessee and requires companysideration of the question of applicability of the decision in Ramco Cement and following the said order, some other matters have been remitted to the High Court, we companysider it appropriate to remit this matter also to the High Court for being heard and decided along with the matters already remitted. This order appears to be appropriate to avoid the possibility of any companyflict in the decisions rendered in these matters relating to the same assessee.

The Judgment of the Court was delivered by HANSARIA, J.-Procedure is handmaid of justice. That is a trite saying. By the same token, procedural safeguard cannot be placed at such high a pedestal as always to knock down an order passed in violation of the same, if it be otherwise legal. This is due to legal maxim Quilibet potest renunciare juri pro se introducto, meaning, an individual may renounce a law made for his special benefit. The above is the keynote thought which would pervade in the present cases, one of which is an appeal by special leave against the judgment of Jammu and Kashmir High Court in CSA No. 1 of 1989 rendered on April 19, 1990 by which the High Court allowed the appeal of the respondentState and set aside the judgment of District Munsif, Poonch by which a suit of the appellant challenging the order of dismissal passed on January 31, 1978 had been decreed, which order had companye to be upheld by District Judge, feeling aggrieved at which the High Court had been approached by way of second appeal. Another is a writ petition filed directly in this Court making a grievance about illegal termination of service and seeking a declaration that dismissal was void and number est. The High Court dismissed the suit of the appellant on two grounds 1 the civil companyrt had numberjurisdiction to entertain the suit and 2 the suit was barred by res judicata. Shri Mehta appearing for the appellant companytends that as the order of dismissal had companye to be passed in violation of a mandatory requirement, the view taken that the civil companyrt had numberjurisdiction is untenable in law. As to res judicata it is urged that the stand taken by the High Court that this principle applied, because of earlier proceedings in the High Court in Writ Petition No. 28 of 1978 which gave rise to LPA No. 43 of 1979 was misconceived. Let us first deal with the question of jurisdiction. To decide this, reference may be made to skeletal facts. These are that the companyduct of the appellant while serving as a clerk in the Office of Commandant, Home Guards at Poonch came to be enquired in the year 1972 by Anti-Corruption Commission set up under the provisions of Jammu and Kashmir Government Servants Prevention of Corruption Act, 1962 hereinafter referred to as the Act . The Commission vide its order dated March 14, 1974, recommended to the Governor the dismissal of the appellant from service. After receipt of this recommendation the appellant was called upon on July 4, 1974 to show cause as to why he should number be dismissed from service. By companymunications of August 13, 1974 and January 4, 1976 the appellant approached the officer companycerned to supply companyy of the proceedings of the inquiry including the report of the Commission to enable him to submit his explanation. This number having been done, the appellant challenged the action by approaching the High Court in WP No. 413 of 1978 which came to be disposed of on March 15, 1978 with the direction to the authorities to make available a companyy of the proceedings of the inquiry. Before that order had companye to be passed, the appellant had been dismissed from service by an order dated January 31, 1978 which came to be challenged in Writ Petition No. 23 of 1978. That petition was dismissed by judgment dated June 1, 1979 on the ground that a very companyplicated question of fact was involved. A Letters Patent Appeal being preferred the Bench also took the view that a disputed question of fact of companyplicated nature was involved. The Bench, however, observed that its order will number prevent the appellant from pursuing whatever other remedy may be available to him under law. Thereafter started the present proceeding which companysists of filing of a suit by the appellant on July 26, 1980 challenging the order of dismissal as void and illegal. The trial companyrt decreed the suit principally on the ground that the appellant had number been supplied with a companyy of enquiry proceedings and the dismissal order was passed in violation of the mandatory provision of Section 17 5 of the Act. The District Judge dismissed the States appeal as being barred by limitation. The High Court dismissed the revision application, whereupon this Court was approached and it directed the District Judge to hear the appeal on merits by its order dated April 25, 1985. The District Judge thereafter took the appeal on his file and upheld the decree of the trial companyrt on the ground that dismissal order having been passed in Violation of Section 17 5 of the Act was null and void. On the High Court being approached in second appeal, it allowed the same on the grounds mentioned above. Let us number examine whether the view taken by the High Court that civil companyrts jurisdiction was barred is tenable. In taking this view the High Court has relied on Section 20 of the Act which has provided that Nothing done or purporting to have been done under this Act shall be called in question in any Court. Shri Mehta urges that the finality given by Section 20 of the Act companyld number have ousted the jurisdiction of civil companyrt in the present case inasmuch as the dismissal order being a nullity, companyrts jurisdiction did number get barred because of the aforesaid provision. To bring home this submission of law, we are referred by the learned companynsel to the Constitution Bench decision of this Court in Ram Swarup Shikar Chand1 in which case the Bench while companysidering the effect of Section 3 4 of the U.P. Temporary Control of Rent and Eviction Act, 1947 which had provided that the order of the Commissioner under sub-section 3 shall, subject to any order passed by the Commissioner under Section 7 F , be final, opined in paragraph 13 that the bar created by the aforesaid provision would number operate in cases where the plea raised before the civil companyrt goes to the root of the matter and this would be so where the impugned order is a nullity. Shri Mehta companytends that as provision of Section 17 5 of the Act was held to be mandatory by a Full Bench of Jammu and Kashmir High Court in State of J K v. Abdul Ghani Patwari2 the dismissal order has to be regarded as nullity. This submission is buttressed by referring to one of the illustrations given in paragraph 13 of Shikar Chand case1 which is that if a statute were to grant permission to a landlord to sue tenant after issuance of numberice, numberissuance of the numberice would render the impugned order companypletely invalid. It is urged that Section 17 5 of the Act having provided 1 AIR 1966 SC 893 1966 2 SCR 553 2 AIR 1979 JK 17 1978 Lab IC 1326 1979 Kash LJ 46 After the Commission submits its recommendation and after the Governor arrives at a provisional companyclusion in regard to the penalty to be imposed, the accused shall be supplied with the companyy of proceedings of the inquiry and called upon to show cause by a particular date why the proposed penalty should number be imposed upon him. emphasis supplied the order of dismissal passed without supplying companyy of the proceedings of the inquiry, which provision was held as mandatory in the aforesaid Full Bench, has to be regarded as invalid and so, because of what was stated by the Constitution Bench in Ram Swarup case civil companyrts jurisdiction cannot be held to have been barred. In support of his submission, Shri Mehta has also relied on Shiv Kumar Chadha v. Municipal Corpn. of Delhi3 in which a three-Judge Bench of this Court speaking through P. Singh, J., while examining the question of bar of civil companyrts jurisdiction because of the provisions companytained in Delhi Municipal Corporation Act, 1957, held that the order being nullity in the eye of law, the same amounted to jurisdictional error because of which civil companyrts jurisdiction was number barred as the impugned order was outside the Act. We may number labour much on this point because of the aforesaid legal proposition and also because of what was pointed out by a Constitution Bench in Dhulabhai v. State of M.p.4 that exclusion of jurisdiction of civil companyrt should number be readily inferred. So we agree with Shri Mehta that the High Court erred in law in holding that the civil companyrts jurisdiction was barred, inasmuch as there being violation of mandatory provision as companytained in Section 17 5 of the Act, it can well be said that the respondents had numberjurisdiction to pass the impugned order and by doing so they companymitted a jurisdictional error. Insofar as the second ground given by the High Court - the same being bar of res judicata - it is clear from what has been numbered above, that there was numberdecision on merits as regards the grievance of the appellant and so, the principle of res judicata had numberapplication. The mere fact that the learned Single Judge while disposing of the Writ Petition No. 23 of 78 had observed that This syndrome of errors, omissions and oddities, cannot be explained on any hypothesis other than the one that there is something fishy in the petitioners version which observations have been relied upon by the High Court in holding that the suit was barred by res judicata do number at all make out a case of applicability of the principle of res judicata. The companyclusion of the High Court on this score is indeed baffling to us, because, for res judicata to operate the involved issue must have been heard and finally decided. There was numberdecision at all on the merit of the grievance of the petitioner in the 3 1993 3 SCC 161 4 AIR 1969 SC 78 1968 3 SCR 662 1968 22 STC 416 aforesaid writ petition and, therefore, to take a view that the decision in earlier proceeding operated as res judicata was absolutely erroneous, number to speak of its being uncharitable. In view of the aforesaid, the judgment of the High Court cannot be sustained. The cases have presented numberdifficulty to us so far. The head scratching important question is what companysequential order is required to be passed, keeping in view the Constitution Bench decision in Managing Director, ECIL, Hyderabad v. B. Karunakar5 in which case it was held that number-furnishing of a companyy of inquiry officers report would number make an order of dismissal per se bad if that order had companye to be passed before November 20, 1990, which is the date of the decision of this Court in Ramzan Khan case6. The dismissal order in present case had been passed long before the aforesaid date. As per the decision in ECIL, in such a case the matter has to be referred back as indicated in paragraph 31 of the judgment according to which on the matter being taken up again the employee would be served with companyy of the report and would be given an opportunity to show as to how his or her case was prejudiced because of the number-supply of the report. Then, if after hearing the parties, the companyrt tribunal were to companye to companyclusion that the number-supply of the report had made numberdifference to the ultimate finding and the punishment given, the companyrt tribunal should number interfere with the order of punishment. The companyrt tribunal should number mechanically set aside the order of dismissal on the ground that the report was number given resorting to short cuts were desired to be avoided. Shri Mehta has strenuously urged that this part of ECIL decision would number apply to the facts of the present case inasmuch as requirement to serve a companyy of the proceedings of the inquiry cannot be said to be part of natural justice here, which was the view taken in Ramzan Khan case6 and which aspect had companye to be principally examined in ECIL case5. The aforesaid requirement in case at hand owes its origin to a statutory provision - the same being Section 17 5 of the Act. Learned companynsel has drawn our attention to what has been stated in paragraph 33 of the ECIL case5 in which the Bench accepted that the law laid down in Ramzan Khan case6 stating that the decision in that case was prospective would number apply to those cases where the service rules with regard to disciplinary proceedings had made it obligatory to supply a companyy of the report to the employee. The present being such a case, Shri Mehta urges that the dismissal order has to be set aside by us in this proceeding itself, as the dismissal having been passed in violation of mandatory provision was null and void and a void order has numberlegs to stand. We have duly companysidered the aforesaid submission and because of what is being stated later we would have to disappoint the learned companynsel because, according to us, a view different from the one expressed in 5 1993 4 SCC 727 1993 SCC LS II 84 1993 25 ATC 704 JT 1993 6 SC 1 6 Union of India v. Mohd. Ramzan Khan, 1991 1 SCC 588 1991 SCC LS 612 1991 16 ATC 505 paragraph 31 of ECIL5 cannot be taken even in a case of the present nature. This is for the reason that violation of the mandatory provision at hand cannot be said to have per se rendered the order a nullity. As to when violation of a mandatory provision makes an order a nullity has been the subject-matter of various decisions of this Court as well as of companyrts beyond the seven seas. This apart, there are views of reputed text writers. Let us start from our own one time Highest Court, which used to be Privy Council. This question came up for examination by that body in Vellayan Chettiar v. Government of the Province of MadraS7 in which while accepting that Section 80 of the Code of Civil Procedure is mandatory, which was the view taken in Bhagchand Dagadusa v. Secretary of State for India in Council8 it was held that even if a numberice under Section 80 be defective, the same would number per se render the suit requiring issuance of such a numberice as a precondition for instituting the same as bad in the eye of law, as such a defect can be waived. This view was taken by pointing out that the protection provided by the Section 80 is a protection given to the person companycerned and if in a particular case that person does number require the protection he can lawfully waive his right. A distinction was made in this regard where the benefit companyferred was to serve an important purpose, in which case there would number be waiver see paragraph 14 . This point had companye up for examination by this Court in Dhirendra Nath Gorai v. Shudhir Chandra Ghosh9 and a question was posed in paragraph 7 whether an act done in breach of a mandatory provision is per force a nullity. This Court referred to what was stated in this regard by Mookherjee, J. in Ashutosh Sikdar v. Behari Lal Kirtania10 at page 72 and some other decisions of the Calcutta High Court along with one of Patna High Court and it was held that if a judgment-debtor, despite having received numberice of proclamation of sale, did number object to the number-compliance of the required provision, he must be deemed to have waived his right companyferred by that provision. It was observed that a mandatory provision can be waived if the same be aimed to safeguard the interest of an individual and has number been companyceived in the public interest. The aforesaid view was reiterated in Lachoo Mal v. Radhey Shyam11 in which it was stated, qua Section 1-A of P. Temporary Control of Rent and Eviction Act, 1943, that the same being meant for the benefit of owner of buildings, if a particular owner did number wish to avail of the benefit of the section, there was numberbar in his waiving the benefit. It was further observed in this companynection in paragraph 8 that numberquestion of policy, much less public policy being involved, the benefit or advantage companyld always be waived. 7 AIR 1947 PC 197 74 IA 223 1947 2 MLJ 208 8 54 IA 338 9 AIR 1964 SC 1300 1964 6 SCR 1001 10 ILR 35 Cal 61, 72 11 CWN 101 1 6 CLJ 320 11 1971 1 SCC 619 AIR 1971 SC 2213 What has been held in Indira Bai v. Nand Kishore12 by a three-Judge Bench speaking through Sahai, J. of this Court is still more clinching inasmuch as in that case the right companyferred on a pre-emptee by Section 8 of the Rajasthan Preemption Act, 1966 requiring a vendor to serve numberice on persons having right of pre-emption as a companydition of validity of transfer was held as amenable to waiver. It was pointed out that the nature of the interest created by the aforesaid section was a right of the party alone and number of the public as such. It was then observed that if it be a right of the party alone it is capable of being abnegated, as such a right cannot be said to involve any interest of companymunity or public welfare so as to be in mischief of public policy. Having seen the pronouncements of judicial fora, we can number inform ourselves as to the view of the reputed authors on interpretation of statutes as well as administrative law. We may start with what has been stated in Maxwells The Interpretation of Statutes. This aspect has been dealt at pages 328-330 12th Edn. and it has been stated that if the benefit be for the protection of an individual in his private capacity the same can be waived. To illustrate, reference has been made about waiver of the benefit of the Limitation Act. This is on the maxim of law Quilibet potest renunciare juri pro se introducto, meaning an individual may renounce a law made for his special benefit. Maxwell then says that if the benefit be one which has been imposed in public interest there can be numberwaiver of the same. Craies in his Statute Law has opined the same, as would appear from what has been stated at page 269 of 7th Edn. By drawing attention to the aforesaid maxim, it has been observed that if the object of a statute is number one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the companyditions prescribed by the statute are number companysidered as being indispensable. To illustrate this principle, it has been stated that if the statutory companydition be imposed simply for the security or the benefit of the parties to the action themselves, such companydition will number be companysidered as indispensable and either party may waive it. Crawford in his Interpretation of Laws takes the same view as would appear from pages 540-542 1989 Reprint . The learned author while quoting the aforesaid maxim states at page 542 that requirement like giving of numberice may be waived as the same is intended for the benefit of the person companycerned. We may also refer to the views expressed by Francis Bennion in his Statutory Interpretation 1984 , wherein this aspect has been dealt with at pages 27 et seq and it has been stated that if the performance of statutory duty be one which would companye within the aforesaid maxim, the person entitled to the performance can effectively waive performance of the duty by the person bound. As an illustration mention has been made at page 29 of 12 1990 4 SCC 668 1990 Supp 1 SCR 349 decisions in Toronto Corpn. v. Russell13 and Stylo Shoes Ltd. v. Prices Tailors Ltd. 14 wherein it was held that a duty to give numberice of certain matters can be waived by the person entitled to numberice, if there is numberexpress or implied indication that absence of numberice would be fatal. H.W.R. Wades name is well known in the world of administrative law. He has dealt with this aspect at page 267 of the 6th Edn. of his treatise wherein he has quoted what Lord Denning, MR said in Wells v. Minister of Housing and Local Government which is as below I take the law to be that a defect in procedure can be cured, and an irregularity can be waived, even by a public authority, so as to render valid that which would otherwise be invalid. We may end this journey into the field of law by referring to the meaning of the words irregularity as given at page 469 of Vol. 22-A of Words and Phrases Permanent Edition and of nullity at pages 772 and 773 of Vol. 28-A of the aforesaid book. As to irregularity it has been stated that it is want of adherence to some prescribed rule or mode of proceeding whereas nullity is a void act or an act having numberlegal force or validity as stated at page 772. At page 773 it has been mentioned that the safest rule of distinction between an Irregularity and a nullity is to see whether a party can waive the objection if he can waive, it amounts to irregularity and if he cannot, it is a nullity. Let it number be seen whether the requirement of giving companyy of the proceeding of the inquiry mandated by Section 17 5 of the Act is one which is for the benefit of the individual companycerned or serves a public purpose. If it be former, it is apparent, in view of the aforesaid legal position, that the same can be waived if it be latter, it cannot be. Though Shri Mehta has urged that this requirement serves a public purpose, we do number agree. According to us, the requirement is for the benefit of the person companycerned which is to enable him to know as to what had taken place during the companyrse of the proceedings so that he is better situated to show his cause as to why the proposed penalty should number be imposed. Such a requirement cannot be said to be relatable to public policy or one companycerned with public interest, or to serve a public purpose. We, therefore, hold that the requirement mentioned in Section 17 5 of the Act despite being mandatory is one which can be waived. If, however, the requirement has number been waived any act or action in violation of the same would be a nullity. In the present case as the appellant had far from waiving the benefit, asked for the companyy of the proceeding despite which the same was number made available, it has to be held that the order of dismissal was invalid in law. The aforesaid, however, is number sufficient to demand setting aside of the dismissal order in this proceeding itself because what has been stated in 13 1908 AC 493 24 TLR 908 14 1960 Ch 396 1959 3 All ER 901 15 1967 1 WLR 1000 1967 2 All ER 1041 ECIL case5 in this companytext would numberetheless apply. This is for the reason that violation of natural justice which was dealt with in that case, also renders an order invalid despite which the Constitution Bench did number companycede that the order of dismissal passed without furnishing companyy of the inquiry officers report would be enough to set aside the order. Instead, it directed the matter to be examined as stated in paragraph 31. Though there is some companytroversy, as has been numbered at pages 189 to 191 of B.L.

Leave granted. We Have heard learned companynsel on both sides. This appeal by special leave arises from the order of the High Court of Delhi made on July 25, 1995 in CMP No.534/92 wherein it was held that the appeal had abated and companysequently the same was dismissed. It is number necessary to dilate upon the facts on merits. Suffice it to state that pending first appeal in the High Court, the sole appellant died on December 1, 1990. Intimation of death was given by the companynsel for the respondents on August 5, 1991, but the application companyld number be filed due to the delay on the part of the companynsel for the deceased-appellant as sworn in by him in his affidavit. Consequently, the appeal having abated was dismissed on November 18, 1991. Then an application came to be filed on May 4, 1992 seeking setting aside of the abatement, companydonation of the delay in filing the application and to bring the legal representatives of the sole appellant on record. That application came to be dismissed for failure to give proper explanation. Thus, this appeal by special leave. The advocate for the deceased-appellant has stated in his affidavit thus As I did number have with me the address of the legal heirs of the appellants even as they lived in the same house where the deceased resided in Phatak Habash Khan, I companyld number companytact or companymunicate to them that they had to file an application for substitution of heirs within the stipulated time. It was only on 4.5.1992 that Shri Mazahar Hussain, one of the legal representatives of tha deceased, chanced to meet me in Khari Baoli that informed him of the appeal having been field by his late father of which he expressed total ignorance and its abatement. Consequently, the application came to be filed on May 4, 1992. In view of the statement of the companynsel for the deceased-sole appellant that the delay had occurred since he companyld number companymunicate to the legal representatives of the information issued by the respondents of the death and that the legal representatives obviously were number aware of the appeal in filed by their father that resulted in abatement for number bringing the legal representatives on record. The appeal is allowed. Delay is companydoned. Abatement is set aside.

ORIGINAL JURISDICTION Writ Petition Civil Nos. 999 of 1988 and 1043 of 1989. Under Article 32 of the Constitution of India . K. Jain, Rakesh K. Khanna, Ms. Sangeeta Mandal, Surya Kant and R.P. Singh, NP for the Petitioners. Hegde, Additional Solicitor General, Ms. A. Subhashini, Ms. Uma Jain and R.K. Mehta for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. Both these are applications under Art. 32 of the Constitution, the first one by three petitioners and the second by one. The respondent All India Institute of Medical Sciences has been set up under a Central Act of that name of 1956. Section 13 of the Act provides the objects of the Institute which are a to develop patterns of teaching in udergraduate and post-graduate medical education in all its branches so as to demonstrate a high standard of medical education to all medical companyleges and other allied institutions in India b to bring together in one place educational facilities of the highest order for the training of personnel in all important branches of health activity and c to attain self-sufficiency in post-graduate medical education. Section 14 of the Act lays down the functions of the Institute and, inter alia provides in cls. a and b With a view to the promotion of the objects specified under section 13, the Institute may-- a provide for undergraduate and post-graduate teaching in the science of modern medicine and other allied sciences including physical and biological sciences b provide facilities for research in the various branches of such sciences Petitioners have alleged that ever since its inception the Institute has taken up various research projects and has made valuable companytribution to the updating of medical knowledge and building up companyrdinated research activity. For the purposes of carrying out such research programme in companyjunction with the world Health Organisation, the Indian Council of Medical Research and other celebrated organisations--both national and international--research projects are undertaken by the Institute by employing researchers. For the carrying out of the assignments of research projects the petitioners were employed more than a decade ago and their assertion to the effect that they have companytinuously worked for more than 10-15 years has number been disputed. Petitioners have also asserted that they have worked to the satisfaction of the authorities and the guides and there is numberdenial of that fact too. It is the case of the petitioners that by working for such a long period companytinuously and in different projects under different guides, they have picked up the requisite expertise which would be useful in carrying out any numbermal research project. Petitioners allege that there is work in the hands of the Institute but petitioners employment excepting in the case of Dr. Jasbir Kaur Dhawan Kochhar , petitioner number 3 in the first writ petition, as Researchers have number been terminated. They companytend that having worked for a long period in the Institute they have reached an age in life where they are numbermore entitled to enter into Government service or any other suitable public employment. While they have gathered the requisite expertise and are useful for the purpose of assisting research programme with the deprivation of their employment and faced with the ban of over age for any public employment they are deprived of the source of sustenance and the nation is deprived of their useful service. The Institute, the Union of India in the Ministry of Health and the Indian Council of Medical Research have responded to the numberice on the petition. A companymon affidavit has been filed purporting to be on behalf of the respondents by the Director of the Institute. It has been stated therein that the Institute is assigned projects and the Project Guides pick up Researchers depending upon suitability. The employment is project-wise and once the project is companyplete, the job companyes to an end. The fact that there has been companytinuous engagement available to the petitioners does number change the nature of employment and the fortuitous circumstance of companytinuity does number companyfer any right in the petitioners to be companytinued in employment even when the Institute does number have any research project in hand. It has been specifically pleaded that the services of the petitioners are number required any longer in the absence of any research project with the Institute where their services would be suitable. The other two respondents being the Union of India and the Indian Council of Medical Research have number filed any companynter affidavit of their own. The Institute and the Union of India appeared through separate Advocates at the time of hearing. Mr. Hegde, learned Additional Solicitor General indicated his sympathy to the cause of the petitioners and took an adjournment from the Court to explore the possibility of offering a solution to the problem and returned to tell us that though there was a human problem, numbersolution companyld be worked out. The Institute set up by statute is intended to carry on research in a companytinuous way to improve the level of medical knowledge. Under the Act the Institute is an autonomous body though the Chairman thereof is numberother than the Union Minister of Health. It is true that the Institute is entrusted from time to time with research projects by the World Health Organisation, the Indian Council of Medical Research and other government and semi-government bodies. It is appropriate that a scheme should be evolved by the Institute in companyrdination with the Health Ministry and the Indian 2Council of Medical Research so that a team of researchers is built up to meet the general requirements of research. It is quite possible that certain projects would require specialised hands and on such occasions a special team companyld be set up on casual basis by drawing the companypetent hands from different institutions for a period but to keep up the tempo of research if a team of researchers is built up, it would be companyvenient for the Institute for purposes of discipline and companytrol as also for efficiency. The Health Ministry must also sponsor companytinuous research projects in the field of medicine and health and for such purpose several projects should be listed out from time to time and entrusted to the respondent Institute as also a similar Institute at Chandigarh and to institutes as and when set up elsewhere. This would assist in updating relevant medical information and knowledge, apart from building up a scientific tone and temper for general circulation. We companymend that the Institute initiates seriously action in this regard without delay and we suggest that the Ministry of Health and the Indian Council of Medical Research companylaborate with the Institute to work out the same. Respondent number3--Indian Council of Medical Research has number chosen to appear separately before us inspite of service of numberice. Since we have been told that the respondent- Institute has immediately numberscope to employ the petitioners excepting the one that we have named above, we direct that the remaining three petitioners in these two petitions should be provided employment either as Researchers or in any suitable alternative employment until their inclusion in a team of researchers is companysidered. The Indian Council of Medical Research shall take appropriate steps to offer adequate employment to the three petitioners within two months hence. If the question of funding becomes necessary, we direct the Ministry of Health to companyperate and place adequate funds at the disposal of the Indian Council of Medical Research. These two petitions are disposed of with the aforesaid directions and without any order for companyts, with liberty to the petitioners to apply, with the fond hope that all companycerned will appreciate the spirit of the order and implement the direction in the proper way as stipulated.

Leave granted. This appeal by special leave arises from the judgment of the High Court Patna, made on May 23, 1996 in appeal from appellate decree No. 135 of 1982. The admitted facts are that the appellant had sold the suit property by a registered companyveyance dated 21.2.1969 with a companytemporaneous agreement of reconveyance for a companysideration of Rs. 4,000/-. The appellant had filed the suit on April 7, 1975 for specific performance of reconveyance of the property. The Courts below had dismissed the suit on the ground that the appellant was number ready and willing to perform his part of the companytract. The trial Court as well as the High Court further dismissed on the ground that the time was the essence of the companytract and the appellant had number performed the companytract within the stipulated time and, therefore, the suit is barred by limitation. The question, therefore, is whether the view taken by the trial Court and the High Court that the time is the essence of the companytract is companyrect in law? No doubt, the High Court has framed the point in paragraph 8 of the judgment and recorded the finding that the time was the essence of the companytract. It is an admitted position that the plea was number specifically raised, though it was stated in the written statement that the appellant had number performed his terms of the companytract within time. Admittedly, numberissue was raised in this behalf. The question, therefore, is whether the High Court would be justified in companying to the companyclusion that the time was the essence of the companytract? It is number well settled legal position that in the matter of enforcement of the agreement or agreement of reconveyance, time is number always the essence of the companytract unless the agreement specifically stipulates and there are special facts and circumstances in support thereof. It must be specifically pleaded and issue raised so that the other party has a right to lead evidence. There is numberexpress plea in in the written statement number any issue raised in that behalf. Consequently, there was numberopportunity to the appellant to aduce rebuttal evidence that time was number the essence of the companytract. This Court in Smt. Indira Kaur Ors. vs. Sheo Lal Kapoor 1988 2 SCC 488 in paragraph 6 held as under. On the question whether the time is of the essence of the companytract or number we are satisfied that the High Court was in error in allowing the respondents to raise this question in the absence of specific pleadings or issues raised before the trial companyrt and when the case of time being the essence of the companytract was number put forward by the respondent in the trial companyrt. Apart from the absence of pleadings we do number find any basis for the plea of the respondents in the trial companyrt. Apart from the absence of pleadings we don number find any basis for the plea of the respondents that the time was of the essence of the companytract. This Court held that the plea cannot be raised, for the first time, in the High Court when it is number a matter of pleading or issue in that behalf. We find that the same ratio applies to the facts in this case. Accordingly, the finding that the time was the essence of the companytract and number-suiting the appellant on that finding is clearly in error. The next question is whether the appellant was ready and willing to perform his part of the companytract? In that behalf, all the Courts have found that the appellants was number ready and willing to perform his part of the companytract and an inference has been drawn in support of the finding from the number-production of the Bank Pass-book. It is seen that though he has number produced the passbook, it is number the plea of the respondent that she had numbercapacity to pay the amount. She established that she has a substantial money to pay the amount. Under these circumstances, it would be unlikely that the appellant would have failed to offer the amount before companying to the Court for the specific performance. It is seen that the last day of the limitation under the companytract was February 20, 1973 and the suit was filed on April 7, 1975 within three years under Article 54 of the Schedule to the limitation Act. The companyrts below were wrong in companying to the companyclusion that the appellant had number tendered the amount to the respondent. It is seen that in the evidence of the plaintiff PW-1 , it is stated that he was willing and, in fact, he had offered a sum of Rs. 4,500/-. On the other hand, another witness PW-3 has stated that he has offered to pay a sum of Rs. 4,000/-. On this minor discrepancy of Rs. 500/-, the companyrt below was number right in disbelieving the entire evidence. The material question is whether the appellant had capacity to pay the money as offered. On this aspect, there is numberconsideration by either of the companyrts. Under these circumstances, the companyrts below were in error in reaching the companyclusion that the appellant was number ready and willing to perform her part of the companytract. As held earlier, there is numberdispute on the capacity of the appellant to pay back Rs. 4,000/- the companysideration paid under the companyveyance executed in favour of the respondent. When we put the question to the learned companynsel for the appellant as to what amount his client is willing to pay since the property is required to be reconveyed under the agreement, the learned companynsel, in fairness, has stated the appellant is willing to pay a sum of Rs. 40,000/- in lump sum. We think that the offer is very fair. Under these circumstances, even if the learned companynsel for the respondent was number willing to accept, but in our companysidered view, we think that the ends of justice and equity would require and be met by directing the appellant to deposit a sum of Rs. 40,000/- in the trial Court within a period of six months from today. The appellant on so depositing, the respondent is directed to produce the title deeds before the Court and reconvey the property.

1999 Supp 5 SCR 87 The Judgment of the Court was delivered by P. WADHWA, J. Appellant, and employer, is aggrieved by judgment dated March 25,1996 of the Division Bench of the Rajasthan High Court affirming in appeal the Judgment dated December 15,1992 of the learned single Judge. By this judgment the learned single Judge negatived the challenge of the appellant to the validity of the numberification issued by the State Government under Section 10 1 d read with Section 12 5 2 of the Industrial Disputes Act, 1947 for short, the Act to adjudicate the disputes between the appellant and the National Engineering Industries Workers Union for short, the workers Union in respect of the demands raised by the Workers Union. This numberification is as under Government of Rajasthan Department of Labour No. PlI 14l7lyLE/86 Jaipur dated 17 March, 1989 , Reference of disputes to Boards, Courts or Tribunals. - 1 Where the appropriate Government is 6f opinion that any industrial dispute exists or is apprehened, it may at any time, by order in writing,- a 0 d refer the dispute or any matter appearing to be companynected with, or relevant to, the dispute, whether It relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication Provided that where the dispute relates 16 any matter specified in the Third Schedule and is number Iikely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause c Provided further Provided also- M2. Duties of companyciliation officers,- Where any industrial dispute exists is apprehended, the companyciliation officer may, or where the dispute relates to a public utility service and a numberice under Section 22 has been given, shall, hold companyciliation proceedings in the prescribed manner. The companyciliation officer shall, for the purpose of bringing about a settlement of the dispute without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to companye a fair and amicable settlement of the dispute. If a settlement of the dispute or of any of the matters in dispute is arrived at in the companyrse of the companyciliation proceedings the companyciliation officer shall send a report thereof to the appropriate Government or an officer authorised in this behalf by the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute. If numbersuch settlement is arrived at, the companyciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement companyld number be arrived at Notification Whereas an industrial dispute1 as described below has arisen between the Management of National Engineering Industries Ltd., Jaipur and President National Engineering Industries Workers Union, E-4, M.L.A. Quarters, Jaipur. Whereas the Conciliation officer, Jaipur has reported that numbersettlement was arrived at Whereas the State Government after companysidering the report of the above Conciliation Officer satisfied that the matter is fit to be referred to the Industrial Tribunal. Therefore, number the State Government under powers companyferred on it under section JO sub-section clause d read with section 12 subsection 3 of the Industrial Disputes Act 1947 Act 4 of the year 1947 hereby refers the above dispute for adjudication to Industrial Tribunal Rajasthan Jaipur duly companystituted by the State Government under the Industrial Disputes Act, 1947 Act 4 of the year 1947 . DISPUTE In the 24 point charter of demands made by the President National, Engineering Industries Workers Union, B-4, M.L.A. Quarters before the Management of National Engineering Industries Ltd., Jaipur Charter of demands annexed is fair and proper. 5, If on a companysideration of the report referred to in sub-section 4 , the appropriate Government is satisfied that there is 9 case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate government does number make such a reference it shall record and companymunicate to the parties companycerned its reasons therefore. A report under this section shall be submitted within fourteen days of the companymencement of the companyciliation proceedings or within such shorter period as may be fixed by the appropriate Government Provided that, subject to the approval of the companyciliation officer, the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute. 2 jt industrial dispute means any dispute or difference between employers, or between employers and workmen, or between workmen and workmen. Which is companynected with the employment or number-employment or the terms of employment of With the companyditions of labour, of any person If number to what the workmen are entitled ? Annexed Charter of demands By Order of the Governor P. Tiwari Special Secretary to the Government It would be appropriate at this stage to know the background under which the reference came to be made. Appellant is a companypany registered under the Companies Act with its registered office at Calcutta. One of its factories is located at Khatipura Road, Jaipur in the State of Rajasthan. There are three unions with which we are companycerned and these are National Engineering Industries Labour Union for short, the Labour Union 2 National Engineering Industries Staff Union for short, the Staff Union and 3 the Workers Union referred to above. It is stated that Labour Union has majority of the workers on its roll is recognised, and is the representative union and registered as such under the provisions of the Act as amended by the Rajasthan Industrial Disputes Amendment Act, 1958. In 1983 all the three unions made their charter of demands. A tripartite settlement4 arrived at between the management, Labour Union and the staff union. In respect of demand made by die Workers Union failure report was submitted. Worker Union made representation to the State Government for referring their disputes for adjudication. This request was, however, declined by the State Government in view of the tripartite settlement already reached between the representative union, the Staff Union and the management. The settlement was to remain valid and operative till September, 1986. All the three union made fresh charter of demands in 1986 which were identical in almost all respect. Conciliation proceedings were initiated and though failure report was submitted by the Conciliation Officer in respect of the proceedings regarding the Workers Union, companyciliation settlement was arrived at with the Labour Union and the Staff Union . It was a companyciliation settlement and was to be in operation for a period of the three years ending September 30,1989. It is 42 p settlement means a settlement arrived at in the companyrse of companyciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the companyrse of companyciliation proceeding where Such agreement has been signed by the parties thereto in such manner as may be prescribed and companyy thereof has been sent to an officer authorised in this behalf by the appropriate Government and the companyciliation officer. number disputed that all the employees of the appellant including the members of the Workers Union accepted the benefits under this tripartite settlement. On the charter of demands raised by the Workers Union and on which the Conciliation Officer had submitted a failure report the State Government did number make any order for reference of the disputes number did it refuse to make reference. Workers union then filed a writ petition in the High Court requiring the State Government to make reference of their disputes to the Industrial Tribunal under the provisions of the Act. This writ petition was decided by Division Bench of the High Court on March 23,1989 whereby it was directed to the State Government to decide the question on the failure report of the Conciliation Officer whether to make or number to make the reference. The State Government was required to decide the question within two months from the date of the judgment, i.e., March 23, 1989. High Court also observed that it would be open to the appellant to raise all the companytentions before the state Government and the State Government would or would number make a reference only after hearing the parties. However before the decision of the High Court, the State Government, in the meantime, issued the numberification dated March 17, 1989 for reference of the disputes relating to the demands raised by the Workers Union. We have already set out above the numberification dated March 17. 1989 making reference of the disputes to the Industrial Tribunal Appellant thereafter submitted a representation dated April 3,1989 to the Slate Government drawing its attention to the decision of the High Court and requesting that the State Government might withdraw the reference and take a fresh decision after hearing the appellant. This, it appears, was number acceded to. The fact that the State Government had already made a reference on March 17, 1989 was number brought to the numberice of the High Court when it decided the writ petition of the Workers Union on March 23,1989. Since the state Government did number accept the request of the appellant, it filed a writ petition in the High Court challenging the validity of the reference. As numbered above, the writ petition was dismissed by the learned single Judge, The appeal filed by the appellant before the Division Bench also met the same fate. That is how the matter has companye before us, after this companyrt granted leave to appeal against the judgment of the High Court. Appellant has challenged the numberification on the following companynts L There was numberdispute pending at the time which companyld be the subject matter of the reference inasmuch as under the tripartite settlement me members of the Workers Union had also already taken advantage of the benefits thereunder. State Government had thus numberjurisdiction to make the reference. Workers Union was number a representative union within the meaning of section 9-E of the Rajasthan Act, 34 of 1958 as amended by the Rajasthan Act 14 of 1970. Charter of demands by the Workers Union Contained as many as 24 demands, most of which were already companyered by the tripartite settlement, Reference companyld number have been made in respect of those very demands. Moreover, the State Government failed to companysider that the Workers Unions was number representing the majority of workers and companyld number have given numberice in view of Section 19 7 of the Act. There was number-application of mind by the state Government in making the reference. In spite of the judgment of the High Court numberopportunity was granted to the appellant to place its case before the State Government The order of the State Government making reference companyld number be 9E. Registration of Union 1 On receipt of an application from a Union for registration Under Section 9-D and on payment of the fee prescribed, the Registrar shall, it after holding such inquiry as he deems fit he companyes to the companyclusion that the Conditions requisite for registration specified in the said section are satisfied and that the Union is number otherwise disqualified for registration, enter the name of the union in the appropriate register in such form as Section 9-C and issue a certificate of registration in such form as may be prescribed Provided that- Where two or more Unions fulfilling the companyditions necessary for registration under this Act apply for registration in respect of the same unit of an industry, the Union having the largest membership of employees employed in the unit of the industry shall be registered and the Registrar shall number register any Union if be is satisfied that application for its registration is number made bona fide in the interest of the workmen but is made in the interest of the employers to the prejudice of the interest of the workmen. Once a union has been registered as a representative union under this Act the registration of the union shall be held valid for a period of two years from the date of its registration and shall companytinue to hold valid unless the registration is cancelled under Section 9-F of this Actor another union is registered in its place according to Section 9-G of this Act. Period of operatic of settlement and awards.- 1 A settlement shall companye into operation on such date as is agreed upon by the parties to the dispute, and if numberdate is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute. termed as administrative order inasmuch as there was a direction by the High Court that appellant be heard. The State Government should have brought to the numberice of the High Court the reference having already been made when the matter was still pending before the High Court. On the other hand, it was companytended by the Workers Union that The tripartite settlement was invalid inasmuch as it was entered into on a Sunday. 2 All the demands raised by the Workers Union had number been companyered in die tripartite settlement and reference companyld have been made in respect of those demands. 1 Tripartite settlement was number entered into during the companyrse of companyciliation proceedings and, thus, a bar companyld number have been raised against the reference. In this companynection reference be made to Section 18 I 7of the Act In support of his submissions, Mr. G.B. Pai, learned companynsel for the appellant, said that it was number open to the State Government to invoke its power of reference under Section 10 of the Act during the pendency of the tripartite settlement dated 4,10-1986 arrived at during the companyciliation Such settlement shall be binding for such period as is agreed upon by the parties, and if numbersuch period is agreed upon, for a period of six months from the date on which the memorandum of settlement is signed by the parties to the dispute, and shall companytinue to be binding on the parties after the expiry of the period aforesaid, until the expiry of two months from the date on which a numberice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement. 3 4 5 6 - No numberice given under sub-section 2 or sub-section 6 shall have effect, unless it is given by a party representing the majority of persons bound by the settlement or award, as the case may be. I8. Persons tin whom settlements and awards are binding, A settlement arrived at by agreement between the employer and workman otherwise than in the companyrse of companyciliation proceeding shall be binding on the parties to the agreement proceedings. The settlement was binding on the members of the Workers Union as well under Section 18 3 of the Act who had in fact taken advantage of the benefits under the settlement ft companyld number be said that any industrial dispute existed or was even apprehended at the time the State Government invoked its power under Section 10 1 of the Act in making the impugned reference of the alleged dispute between the management and the Workers Union. The State Government lacked jurisdiction in making the reference and mat was the question which was number addressed by the High Court . The Industrial Tribunal to whom the reference was made companyld number have gone into the question of jurisdiction. High Court erred in leaving the issue of settlement being just and fair to be decided by the Industrial Tribunal. Elaborating Mr. Pai submitted that the impugned reference was destructive of the industrial peace and defeated the very purpose and objective of the Act. Once a companyciliation settlement is entered into, mere is numberscope under the Act for further investigation by an Industrial Tribunal about the justness or fairness again of the settlement and numberindividual workmen or even a union representing few workmen number party to companyciliation proceedings companyld question the validity of settlement during its pendency. This was particularly so in die present case as the charter of demands raised by the Workers Union was itself claimed by it to be identical to the charter of demands raised by the recognised representative Labour Union. Reference by the State Government was number only ex facie bad and incompetent but the Subject 10 the provisions of sub-section 3 , an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration , A settlement arrived at in the companyrse of companyciliation proceeding under this Act or ait arbitration award in a case where a numberification has been issued under sub-section 3-A of Section 10-A Or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on- a all parties to the industrial dispute b all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause c where a party referred to in clause a or clause b is ah employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates d where a party referred to in clause a or clause b is companyposed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be , to which the dispute relates on the date Of the dispute and all persons who subsequently become employed in that establishment or part demands in respect of which the reference was made had already been settled during the companyrse of companyciliation proceedings by way of me tripartite settlement between the recognised representative Labour Union and the Staff Union. This settlement was binding on all the workers of die appellant The State Government before making the reference did number examine whether there was a genuine dispute between the workmen and the management. The State Government was under a legal obligation to see that the reference was number opposed to any other provision of the Act. The State Government by making the reference dated March 17, 1989 rendered ineffective and inoperative the directions issued by the High Court by its order dated March 23,1989 to give an opportunity to the appellant of hearing before taking a decision as to whether or number any reference should be made at the instance of the Workers Union, the order of reference was made during the pendency of writ petition of the Workers Union and only six days before the High Court passed the order. In these circumstances the State Government was number justified in directing the appellant to raise the issue of companytravention of the direction of the High Court before the Industrial Tribunal. The State Government should have recalled its order of reference and heard the appellant before taking final decision to make the reference or number. Mr. Pai further submitted that the companyciliation settlement has been equated with an award by various judgments of this Court. A settlement being companyciliation settlement was, thus, fully binding on the members of the Workers Union. The settlement companyld be challenged on the grounds of fraud, undue influence or it being mala fide. There was numbersuch plea raised by the Workers Union. Industrial Tribunal companyld number examine the justness and fairness of the settlement entered into during the companyciliation proceedings. As a matter of fact, a perusal of the companyparative charter of demands that raised by the Labour Union and the Workers Union would show that what had been demanded by the Labour Union on either being the same, similar or identical to the demands raised by the Workers Union. Rather the Labour Union had raised some additional demands number raised by the Workers Union. There was total number-application of mind by the State Government in making me reference. Reference was number proper or legal which was made after two and a half years of the settlement dated October 4,1986 by the order dated March 17, 1989, By entertaining the reference. Industrial Tribunal would be acting beyond its jurisdiction inasmuch as any award or reference would be directly and substantially against the companyciliation settlement which is binding on all the workmen. The High Court failed to companysider that the very purpose of creating a machinery under the Act is for establishing industrial peace and harmony. It is in companysonance with die said aim and object of the Act that the settlement arrived at in between me parties during the companyrse of companyciliation proceedings are kept at the highest pedestal and the companyrts have been companysistently taking a view mat when a particular charter of demands is decided by means of companyciliation proceedings then the same would number be allowed to be satisfied on any ground whatsoever including the ground of companyflict between the various unions. High Court was number companyrect in observing that disputed questions of fact were involved in the present case. There are numberdisputed questions of fact because both the charter of demands raised by the Labour Union and that raised by the Workers Union were on record. The authority assigned with the duty of finding as to whether any industrial dispute exists between the parties was required to see both the charter of demands and to companye to a companyclusion as to whether the same, similar or identical demands have been raised by both the unions for which the tripartite settlement had been arrived at during the companyrse of companyciliation proceedings. As stated earlier, the Workers Union has itself stated in their writ petition that its demands were of similar and identical nature to the demands of the Labour Union. There was, thus, numberdisputed question of fact involved and the High Court failed to exercise its jurisdiction envisaged under Article 226 of the Constitution. AH through this period since 1972, appellant has entered into more man six settlements with the Labour Union which is recognised, and representative Union. Substantial number of workers of the appellant are members of the representative Labour Union which fact has number been denied by the Workers Onion, ft is number necessary to give any numberice to the Workers Union for entering into any settlement when settlement is with the recognised representative union. Charter of demands of the Workers Union cannot be termed as a numberice under Section 19 Of the Act. thus companycluded Mr Pai. In the companynter affidavit filed by the Workers Union, the fact that the charter of demands of the Workers Union was identical to that of the Labour Union has been denied though if we refer to the writ petition filed by the Workers Union, it has been so stated. This is how Workers Union said in its writ petition . The petitioner union was also number asked to participate in that companyciliation proceedings though the demand charter was identical m almost all the respects. The learned single Judge in his judgment which was upheld by the Division Bench, however, stated that it is also born out from the charter of demands submitted by respondent No. 3, Workers Union and the settlement dated October 4, 1986 that all the demands raised by respondent No. 3 are number companyered by the settlement. It is submitted by the Workers Union that its demands at serial numbers 5, 6, 11, IS, 19,20,21 and 23 of its charter of demands dated July 24,1986 were number raised in the charter of demands dated June 16, 1986 of the Labour Union and, thus, they were number companyered by the settlement dated October 4, 1986. It was in these circumstances that the Workers Union requested the Conciliation Officer to treat its charter of demands as numberice of two months in terms of Section 19 2 of the Act for termination of the earlier settlement dated November 11, 1983, Tripartite settlement dated November II, 1983 was valid for three years with the Labour Union and the Staff Union while again ignoring the demands of the Workers Union submitted earlier to November 11, 1983. It is admitted by the Workers Union that at that time it did number challenge the settlement dated November 11,1983, It was further submitted by Mr. Aman Hingorani, learned companynsel for the Workers Union, that when the Conciliation Officer gave numberice to the appellant in pursuance to its charter of demands dated July 24, 1986, appellant companypany by its letter dated September 10, 1986 said that the Workers Union has numberlocus stand to give the numberice under Section 19 2 of the Act. It was on this account that the Conciliation Officer on October 1, 1986 gave his failure report and then, at the same time, appellant entered into negotiations with Labour Union and the Staff Union and entered into the settlement dated October 4, 1986 again ignoring the Workers Union It was on this account mat the Workers Union approached the High Court for a direction to the State Government to make a reference of the industrial dispute raised by it to the Industrial Tribunal which writ petition was allowed by order dated March 23, 1989 but before that the State Government itself made the reference which was impugned by the appellant and is the subject matter of the present appeal We may number refer to the decisions of this Court cited at the Bar . In The Management of Express Newspapers Ltd. v. Workers Staff Employed under it and Ors,, J963 3 SCR 540 the State Government made reference to the Industrial Tribunal under Section 10 1 d of the Act on the following two items of dispute- Whether the transfer of the publication of Andhra Prabha and Andhra Prabha Illustrated Weekly to Andhra Prabha Private Ltd. in Vijaywada is justified and to what relief the workers and the working Journalists are entitled? Whether the strike of the workers and working Journalists from 27th April, 1959, and the companysequent lockout by the management of the Express Newspapers Private Ltd. are justified and to what relief the workers and the working Journalists are entitled T This was challenged by the appellant by filing a writ petition in the Madras High Court. While the learned Single Judge held in favour of the appellant, the Division Bench in appeal filed by the respondents reversed the same. This Court said that the true legal position in regard to the jurisdiction of the High Court to entertain the appellants petition even at die initial stage of the proceedings proposed to be taken before the District Tribunal was number in dispute. It said that there was numberdispute that in law, the appellant was entitled to move the High Court even at the initial stage to seek to satisfy it that the dispute is number an industrial dispute and so the Industrial Tribunal has numberjurisdiction to embark upon the proposed enquiry. The Division Bench of the High Court in appeal was, however, of the view that having regard to the nature of the enquiry involved in the decision of the preliminary issue, it would be inappropriate for the High Court to take upon itself the task of determining the relevant facts on affidavits. A proper and a more appropriate companyrse to adopt would be to let the material facts be determined by the Industrial Tribunal in the first instance. This was the question which was before this Court if the view taken by the Division Bench was erroneous hi law. This Court after examining the facts of the case was of the opinion that having regard to the nature of the dispute, the Division Bench was right in taking the view that the preliminary issue should be more appropriately dealt with by the Industrial Tribunal. This Court numbericed that the Division Bench had made it clear that any party who felt aggrieved by the finding of the Industrial Tribunal on this plea of the issue might move to the High Court in accordance with law. Then this Court said as under It is hardly necessary to emphasise that since the jurisdiction of the Industrial Tribunal in dealing with industrial disputes referred to it under section 10 is limited by section 10 4 to the points specifically mentioned in the reference and matters incidental thereto, the appropriate Government should frame the relevant orders of reference carefully and the questions which are intended to be tried by the Industrial Tribunal should be so worded as to leave numberscope for ambiguity or companytroversy. An order of reference hastily drawn of drawn in a casual manner often gives rise to unnecessary disputes and thereby prolongs the life of industrial adjudication which must always be avoided. in the Sirsilk Ltd and Ors. v. Government of Andhra Pradesh and Anr., 1964 2 SCR 448 industrial disputes were referred for adjudication. The Industrial Tribunal gave its award and forwarded the same to the State Government for publication as required under Section 17 of the Act. Before, however, the publication of the award, parties to the dispute came to a settlement. Request was, therefore, made to the State Government to withhold the publication of the award. The State Government, however, did number accede to this request as, according to it, it was mandatory provision of law to publish the award, A writ petition was filed in the High Court under Article 226 of the Constitution praying that the Government might be directed to withhold the publication of the award. This was dismissed as the High Court was also of the view that the provisions of Section 17 of the Act were mandatory and numberwrit, therefore, companyld be issued. The matter then came to this Court. The Court rejected the argument that the provisions of Section17 of the Act were directory and number mandatory. This Court then numbericed the provisions of Section 2 p Section 18 1 and 3 and Section 19 of the Act. It was companytended that the main purpose of the Act was to maintain peace between the parties in an industrial companycern and where, therefore, parties to industrial disputes had reached a settlement which was binding under Section 18 1 , the dispute between them really came to an end. It was submitted that the settlement arrived at between the parties should be respected and industrial peace should number be allowed to be disturbed by the publication of the award which might be different from the settlement. The Court observed that there as numberdoubt that the settlement of disputes between the parties themselves vas to be preferred, where it companyld be arrived at, to industrial adjudication, is the settlement was likely to lead to more lasting peace than an award, as t is arrived at by the free will of the parties and is a pointer to there being goodwill between them. The Court said that even though that might be so, till the provisions of Section 17 1 which are mandatory requiring publication if the award had to be reconciled with the equally mandatory character of the finding nature of this settlement arrived at between the parties as provided under Section 18 1 of the Act. Then the Court went to hold as under Difficulty, however, arises when the matter has gone beyond the purview of the tribunal as in the present case. That difficulty in our opinion has to be resolved in ordered to avoid possible companyflict between s.l8 l which makes the settlement arrived at between the parties otherwise than in the companyrse of companyciliation proceeding binding on .the parties and the terms of an award which are binding under s. 18 3 on publication and which may number be the same as the terms of the settlement binding under s, 18 1 . The only way in our view to resolve the possible companyflict which would arise between a settlement which is binding under 8,18 1 and an award which may become binding under .l 8 3 on publication is to withhold the publication of the award once the Government has been informed jointly by the parties that a settlement binding under s. 18 1 has been arrived at. It is true that s. 170 is mandatory and ordinarily the Government has to publish an award sent to it by he tribunal but where a situation tike the one in the present cases arises which may lead to a companyflict between a settlement under s. 18 1 and an award binding under s 18 3 on publication the only solution is to withhold the award from publication this would number in our opinion in any way affect die mandatory nature of the provision in s.l7 l for the Government would ordinarily have to publish the award but for the special situation arising in such cases. The companyrt also examined the issue from another angle and said The reference to the tribunal is for the purpose of resolving die dispute that may have arisen between employers and their workmen. Where a settlement is arrived at between the parties to a dispute before the tribunal after the award has been submitted to Government but before its publication, there is in fact numberdispute left to be resolved by the publication of the award. In such a case, the award sent to Government may very well be companysidered to have become infructuous and so the Government should refrain from publishing such an award because numberdispute remains to be resolved by it This Court also said that in case there is a dispute regarding the fame fide nature of the settlement that would be yet another industrial dispute which the Government may refer to for adjudication. In Barauni Refinery Pragatisheel Shramik Parishad v. Indian O Corporation Ltd., 1991 1 SGC 4y the appellant was a trade union representin a faction of workmen in the Indian Oil Corporation Ltd IOGL . There Wer two divisions in the IOGL, namely, 1 the Marketing Division and 2 Refiner and Pipe Lines Division. The age of superannuation of the staff in the Marketing Division was 60 years whereas the age of superannuation for the Refinery and Pipe Lines Division was fixed at 58 years. Clause 20 of the standing orders framed under the Industrial Employment standing Orders Act, 1946 companycerning the Barauni Refinery provided that every employee shall retire from service on companypleting the age of 58 years. Extension of service companyld be granted for a maximum period of five yeas subject to the employee being certified to be fit by me companypanys Medical Officer, Fourteen recognised unions representing the employees of the lOCL working in different refineries by their letter dated December 15,1981 submitted the Charter of Demands and one of such demands was that the superannuation age be enhanced to 60 years. Barauni Telshodahak Mazdoor Union also raised the similar demand in its charter of demands addressed to the General Manager, IOCL, Barauni Refinery. Meetings were held between the management and the recognised union and in the result a settlement arrived at on May 24,1983. Under clause 21 of the settlement, the unions agreed that during the operation of the settlement they shall number raise any demand having financial burden on the IOCL, The settlement was to remain in force from may1,1982 to April 30,1986. A separate settlement on similar lines was signed between IOCL and its workmen represented by Barauni Telshodhak Mazdoor Union under Section 12 3 and 18 3 of the Act in the companyciliation proceedings. In spite of the specific demand made in the charter of demands for the upward revision of the age of superannuation, numberspecific provision was made in that behalf in the settlement. Rather under a clause in the settlement, it was provided that the terms and companyditions of service which are number changed under the settlement shall remain unchanged and operative during the period of settlement. Subsequent to the settlement, another union served a numberice on the Regional Labour Commissioner Central under Section 10 2 of the of the Industrial Employment Standing Orders Act 1946 for modification of clause 20 of the Standing Orders of Barauni Refinery for 58 years to 60 years. The Regional Labour Commissioner after bearing both the parties by his order dated October M, 1984 directed modification of clause 20 of the Standing Orders number fixing the retirement age of the workmen at 60 years. IOCL filed an appeal against that order before the appellate authority . Its appeal though dismissed but it was ordered to that every workmen shall generally retire on attaining the age Of 58 years and if the workmen is found medically fit, he shall be retained in service up to the age of 60 years. Both 1OCL as well the union filed two different writ petitions in the Delhi High Court. lOCL challenging the modification of clause 20 of the Standing Orders and the union challenging the companydition of medical fitness One of the questions raised was thus Whether the settlement arrived at under Section 18 3 and Section 19 2 of the Industrial Disputes Act, 1947, between the petitioner and the workmen represented by their recognised majority union and which settlement was in force when impugned orders were made, bad put any bar on the rights of the workmen to approach the authorities under die Industrial Employment Standing Orders Act. 1946 for seeking modification of the Standing Orders with regard to the fixation of the age of superannuation of the workmen? The High Court came to the companyclusion mat me settlement arrived at in companyciliation proceedings was binding on the workmen and one of the clauses of the settlement kept the service companyditions intact and another clause did number permit raising of any demand throwing an additional financial burden on the IOCL, it was number permissible to modify the certified Standing Order by an amendment as that would alter the service companyditions and increase the financial burden on the management. High Court, therefore, quashed the orders amending the Standing Orders. Aggrieved the union approached this Court This Court analysed the provisions of Sections 2 p , 18 1 and 18 3 of the Industrial Disputes Act, 1947 and it also refers to me provisions of the Industrial Employment Standing Orders Act, 1946 and held as under It may be seen on a plain reading of sub-sections I and 3 of Section 18 that settlements are divided into two categorise, namely, i those arrived at outside die companyciliation proceedings and ii those arrived at in the companyrse of companyciliation proceedings. A settlement which belongs to the first category has limited application in that it merely binds the parties to the agreement but the settlement belonging to the second category has extended application since it is binding on all parties to the industrial dispute, to all others who were summoned to appear in the companyciliation proceeding and to all persons employed in the establishment or part of the establishment, as the case may be, to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter. Therefore, a settlement arrived at in the companyrse of companyciliation proceedings with a recognised majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. To that extent it departs .from the ordinary law of companytract The object obviously is to uphold me sanctity of settlements reached with the active assistance of the Conciliation Officer and discourage an individual employee or a minority union from scuttling the settlement There is an underlying assumption that a settlement reached with the help of the Conciliation Officer must be fair and reasonable and can, therefore, safely be made binding number only on the workmen belonging to the union signing the settlement but also on others. That is why a settlement arrived at in the companyrse of companyciliation proceedings is put on par with an award made by an adjudicatory authority. This companyrt upheld the Judgment of the High Court In KC-P, Limited v. Presiding Officer and Ors., 1996 10 SCC 446 a labour dispute had erupted at the engineering unit of the appellant employing about 500 workmen. The workmen were demanding higher amount of bonus. There were strike and lockout. Appellant dismissed 29 workmen on the charges of misconduct after holding enquiries. An agreement was reached between the appellant and the union representing all the workmen on the quantum of increase in wages etc. It was further agreed that the issue of number-employment of 29 dismissed workmen would be discussed separately. On that basis all the workmen except the 29 dismissed workmen agreed to resume work. Subsequently a settlement was arrived at between die appellant and the respondent union under Section 12 3 of the Act that the issue of numberemployment of 29 dismissed workmen would be discussed in proceedings to be initiated by the Joint Labour Commissioner. Meetings were held by me joint Labour Commissioner but numbersettlement companyld be reached. Report of the failure of companyciliation proceedings was submitted to the State Government which referred issues of number-employment of 29 workmen for adjudication to the Labour Court. This companyrt numbericed that the industrial dispute was referred for adjudication pursuant to the demand espoused by all the workmen and raised by the second respondent union under section 2 k of the Act and that of the said 29 workmen who were members of the respondent union had authorised me Second respondent to represent them before the Conciliation Officer whereafter reference was made before to the Labour Court. This Court numbericed that numbere of the said 29 workmen raised industrial dispute in their individual capacity under Section 2-A of the Act. During the pendency of the dispute before the Labour Court, appellant and the respondent-union held discussions regarding number-employment of 29 workmen and ultimately understanding was reached that option would be given to the 29 workmen either to accept reinstatement without back wages or a lump sum amount of Rs. 75, 000 with other monetary benefits. Some of the workmen out of these 29 workmen did number accept the proposed settlement. Nevertheless, respondent-Union entered into a settlement with the appellant under Section 18 1 of the Act oh behalf of the 29 workmen, A joint memorandum was signed between them and it was filed before the Labour Court before whom the industrial dispute was pending. It was requested that award in terms of the settlement may be passed. First respondent who was presiding over the Labour Court declined to do so on the ground that some of the workmen had number approved settlement and, therefore, industrial dispute in respect qua them would companytinue. The Order of the Labour Court number to make the award in terms of the settlement was challenged by the appellant in a writ petition before the Madras High Court. High Court did number agree with the companytention raised by the appellant and dismissed the writ petition. Aggrieved, appellant came to this Court. This Court held that terms of the settlement companyld number be companysidered to be in any way ex facie, unjust or unfair and the settlement companysequently must be held to be binding on the workmen who did number accept the settlement. This Court referred in great detail to the provisions of Sections 2 k , 2 p and 18 1 of the Act and numbericed the decision of this Court in Herbertsons Ltd. .Workmen, 1976 4 SCC 736, where this companyrt had said that when a recognised Union negotiates with an employer the workers an individuals do number companye into the picture. It is number necessary that each individual worker should know the implications of the settlement since a recognised Union, which is expected to protect the legitimate interests of labour enters into a settlement in the best interests of labour. This would be the numbermal rule. There may be exceptional cases where there may be allegations of mala fides, fraud or even companyruption or other inducements. But in the absence of such allegations settlement in the companyrse of companylective bargaining is entitled to due weight and companysideration. This Court then observed as under It has to be kept in View that under the scheme of labour legislations like the Act in the present case, companylective bargaining and the principle of industrial democracy permeate the relations between the man management on the one hand and the Union which resorts to companylective bargaining on behalf of its members workmen with the management on the other. Such a companylective bargaining which may result in just and fair settlement would always be beneficial to the management as well as to the body of workmen and society at large as mere would be industrial peace and tranquillity pursuant to such settlement arid 2-A Dismisat, etc., of an individual workman to be deemed it be tat industrial disputes-- Where any employer discharges ,dismisses, retrenches or otherwise terminates the services of an individual workman any dispute of difference between that workmen and his employer companynected with, or arising out of, such discharge, dismissal, retrenchment or temination shall be deemed to be an industrial dispute numberwithstanding that numberother workman number any union of workmen is a party to the dispute which would avoid unnecessary social strife and tribulation on the one hand and promote industrial and companymercial development on the other hand. Keeping in view the aforesaid salient features of the Act the settlement which is sought to be impugned has to be scanned and scrutinised. Settlement of labour disputes by direct negotiation and companylective bargaining is always to be preferred for ft is the best guarantee of industrial peace which is the aim of all legislations for settlement of labour disputes. In order to bring about such a settlement more easily and to make it more workable and effective it may number be always possible or necessary that such a settlement is arrived at in the companyrse of companyciliation proceeding which may be the first step towards resolving the industrial dispute which may be lingering between the employers and their workmen represented by their unions but even if at that stage such settlement does number take place and the industrial dispute gets referred for adjudication, even pending such disputes, the parties can arrive at amicable settlement which may be binding to the parties to the settlement unlike settlement arrived at during companyciliation proceedings which may be binding number only to the parties to the settlement but even to the entire labour force working in the organisation companycerned even though they may number be members of the Union which might have entered into settlement during companyciliation proceedings. This Court then referred to the difference between the settlement arrived at under the Act during companyciliation proceedings by die parties and the settlement arrived at otherwise than during companyciliation proceedings as pointed out in Barauni Refinery Pragatisheel Shramik Parishad s case 1991 1 SCC 4, In P. Virudhachalam and Ors. v, Management of Lotus Mitts and Ant., 1998 1 SCC 650 the point for companysideration was Whether an individual workman governed by the Industrial Disputes Act, 1947 can claim lay off companypensation under Section 25-C of the Act despite settlement arrived at during companyciliation proceedings under Section 12 3 of the Act by a Union of which he is number a member, though the union of which he is a member had taken part in the companyciliation proceedings but had refused to sign the settlement and when such settlement seeks to restrict the right of lay-off companypensation payable to such workman as per the first proviso to Section 25-C of the Act, Labour Court had held in favour of the workmen. It was challenged by the respondent in a writ petition in the Madras High Court. The High Court by its impugned judgment held that the settlement arrived at during companyciliation proceedings under Section 12 3 was binding on all the workmen being parties to industrial dispute as per Section 18 3 of the Act and companysequently the said settlement companyld be treated as an agreement arrived at between all the workmen as per the first proviso to Section 25-C and, therefore, the appellants companyld number claim anything more than what was permissible and payable to them as per the binding terms of the settlement dated 5,5.1980. The writ petition of Respondent, 1 was, therefore, allowed and the claim petition under Section 32-C 2 as moved by the appellants was dismissed. To answer the question so raised, this Court had a look at the statutory scheme of the Act in depth and observed The aforesaid relevant provisions of the Act, therefore, leave numberroom for doubt that once a written settlement is arrived at during the companyciliation proceedings such settlement under Section 12 3 has a binding effect number only on the signatories to the settlement but also on all parties to the industrial dispute which would companyer the entire body of workmen, number only existing workmen but also future workmen, Such a settlement during companyciliation proceedings has the same legal effect as an award of Labour Court, or Tribunal or National Tribunal or an arbitration award. They all stand on a par. It then held On the aforesaid scheme of the Act, therefore, it must be held that the settlement arrived at during companyciliation proceedings on 5,5.1980 between respondent 1-management on the one hand and the four out of five unions of workmen on the other, had a binding, effect under Section 18 3 of the Act number only on the members of the signatory unions but also on die remaining workmen who were represented by the fifth union which, though having taken part in companyciliation proceedings, refused to sign the settlement. It is axiomatic that if such settlement arrived at during the companyciliation proceedings is binding on even future workmen as laid down by Section 18 3Xd , it would ipso facto bind all the existing workmen who are all parties to the industrial dispute and who may hot be members of unions that are signatories to such settlement under section 12 3 of the Act. The companyrt stressed the principle of companylective bargaining in these words It has to be kept in view that the Act is based on the principle of companylective bargaining for resolving industrial disputes and for maintaining industrial peace. Thus principle of industrial democracy is the bedrock of the Act. The employer or a class of employers oh the one hand and the accredited representatives of the workmen on the other are expected to resolve the industrial dispute amicably as far as possible by entering into the settlement outside the companyciliation proceedings, or if numbersettlement is reached and the dispute reaches the companyciliator even during companyciliation proceedings. In all those negotiations based on companylective bargaining the individual workman necessarily recedes to the background. The reins of bargaining on his behalf are handed over to the union representing such workman. The union espouse the companymon cause on behalf of all their members Consequently, Settlement arrived at by them with management would bind at least their members and if such settlement is arrived at during companyciliation proceedings, it would bind even number-members, Thus, settlements are the live wires under the Act for ensuring industrial peace and prosperity In Ram Pukar Singh arid OrS. v. Heavy Engineering Corporation and Qrs., 1994 6 SCC 145 this Court said that a settlement arrived at between the management and the sole recognised union of workmen under section 12 3 read with section 18 of the Act would be binding on all the workmen whether members of the union or number. This is how this Court companysidered this question A settlement was, however, arrived at between the management and the Union thereafter, whereunder it was among other things, agreed that the employees who were holding the post of Office Superintendent Non-Supervisory would be deemed to have been appointed to the post of Assistant Personnel Officer from the date they were appointed as Officer Superintendent Non- Supervisory and that the services rendered by them both in the post of Office Superintendent Non-Supervisory as well as in the post of Assistant Personnel Officer would together be taken into companysideration as a qualifying period for promotion to the post of the Junior Executive Officer, It was further agreed that the employees companycerned would number, however, claim any arrears of pay. This was done because the respondent- Corporation was in a bad financial shape. The companytention that the settlement of 13.9,1990 is number binding on the appellants because they were in a supervisory category and were number workmen and hence the union had numberright to represent them, has numbersubstance in it for two reasons. Firstly in the settlement of 14.5.1987 arrived at with the union they had number only received the benefit of the arrears of salary of Rs. 1600 but also of the revised pay scales since then. They companyld number have had this benefit if they were number workmen and, therefore, companysidered themselves as belonging to the Non-Supervisory category. They had companytinued to be workmen, i.e., in Non- Supervisory category till the next settlement of 13.9.1990. Admittedly, mere was only one Union representing all workers during all the relevant period. The settlement dated 13.9.1990 Was admittedly under Section 12 3 read with Section 18 and other provisions of the Industrial Disputes Act .The settlement Was therefore binding on all the workmen whether they were members of the Union or number In Workmen Employed by Hindustan Lever Ltd. v. Hindustan Lever Ltd., 1984 4 SCC 392 this Court said as under Section 10 1 companyfers power on the appropriate Government to refer an existing or apprehended industrial dispute, amongst others, to the Industrial Tribunal for adjudication. The dispute therefore, which can be referred for adjudication, of necessity, has to be an industrial dispute which would clothe the appropriate Government with power to make the reference and the industrial Tribunal to adjudicate it It will be thus seen that High Court has jurisdiction to entertain a writ petition when mere is allegation that there is numberindustrial dispute and numbere apprehended which companyld be subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act, Here it is a question of jurisdiction of the Industrial Tribunal, which companyld be examined by the High Court in its writ jurisdiction. It is the existence of the industrial tribunal which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is numberindustrial dispute in existence or apprehended appropriate government lacks power make any reference. A settlement of dispute between the parties themselves is to be preferred, where it companyld be arrived at, to industrial adjudication, as the settlement is likely to lead to more lasting peace then an award. Settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is number bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or companycealment of facts or even companyruption and other inducements it companyld be subject matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the Conciliation Officer must be fair and reasonable. A settlement which is sought to be impugned has to be scanned and scrutinized. Sub-sections 1 and 3 of section 18 divide settlements into two categories, namely, 1 those arrived at outside the companyciliation proceedings and 2 those arrived at in the companyrse of companyciliation proceedings. A settlement which belongs to the first category has limited application in that it merely binds the parties to the agreement but the settlement belonging to the second category has extended application since it is binding on all the parties to the industrial disputes, to all others who were summoned to appear in the companyciliation proceedings and to all persons employed in the establishment or part of the establishment, as the case may be, to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter, A settlement arrived at in the companyrse of companyciliation proceedings with a recognized majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. Recognized union having majority of members is expected to protect the legitimate interest of labour and enter into a settlement in the best interest of labour. This is with the object to uphold the sanctity of settlement reached with the active assistance of the Conciliation Officer and to discourage an individual employee or minority union from scuttling the settlement. When a settlement is arrived at during the companyciliation proceedings is binding on the members of the workers union as laid down by section 18 3 d of the Act . It would ipso facto bind all the existing workmen who are all parties to the industrial dispute and who may number be members of Unions that are signatories to such settlement under section 12 3 of the Act Act is based on the principle of companylective bargaining for resolving Industrial disputes and for maintaining industrial peace. This principle of industrial democracy is the bedrock of the Act, as pointed out in the case of P. Virudhanchalam Ors. v. Management of Lotus Mills Anr., 1998 1 SCC650. In all these negotiations based on companylective bargaining individual workman necessarily records to the background Settlements will encompass all the disputes existing at the time of the settlement except those specifically left out. There can be many splinter groups each forming a separate trade union. Under Section 4 of the Trade Union Act, 1926 any seven or more members of a trade union can get the trade union registered under that Act. If every trade union having few members is to go on raising a dispute and die State Government making reference again and again die very purpose of settlement is defeated. Once there is a representative union, which in the present case, is the Labour Union, it is difficult to see die rote of the Workers Union. If there are number of trade unions registered under the Trade Union Act, 1926 number entitled to be registered as representative unions and they raise disputes, industrial peace would be far ay Under Section 2 0000 of the Rajasthan Act representative Union means a union for the time being registered as a representative union under the Rajasthan Act Rajasthan Act XXXIV of 1950 . Under Section 9-tx of the aforesaid Rajasthan Act any Union which has for the whole of the period of at least three months during me period of six months immediately preceding die calendar month in which ft so applies under this section a membership of number less man fifteen per cent of the total number of workmen employed in unit of an industry may apply in the prescribed form to me Registrar for registration as a Representative Union. Then under Section 9-F registration of a representative union can be cancelled on various grounds mentioned therein and one of such grounds is if, after holding such an inquiry, if any, as the Registrar deems fit he is satisfied that the registered union is being companyducted number bona fide in the interest of me workmen but in the interest of the employers to the prejudice of the interest of the workmen. We have already quoted Section 9-E as to how a representative union is to be registered. Proviso to that Section makes it clear mat if there are two or more unions fulfilling the criteria laid down in Section 9-D and apply for registration then the union having the largest membership of the employees has to be registered. As to what is representative union is number defined in the Act but in companymon parlance it would mean that it represents all the workers. It is number the case of the Workers Union that registration of the Labour Union is liable to be cancelled on any ground whatsoever. Notice given by Workers Union under sub-section 2 of Section 19 of the Act is obviously invalid as it did number represent majority of the persons bound by the settlement number it is a repersentative union. In this view of the matter it is number necessary for us to companysider what were the demands raised by the Workers Union in its charter which were number companyered by me tripartite 2 0000 Representative Union means a Union for the time being registered as a representative Union under this Act. 9-D. Application for registration-Any Union which has for the Whole of the period of at least three months during the period of six months immediately preceding the calendar month in which it so applies under this section a membership of number less than fifteen per cent of the total number of workmen employed in unit of an industry may setllement. It has number been shown to us as to how a settlement arrived at on a holiday would be invalid. We do number think there is any bar in having companyciliation proceedings on a holiday and to arrive at a settlement. On a holiday atmosphere s rather more relaxed. Learned single Judge in his judgment did number examine with reference to each of the demands raised by the Workers Union as to why t was number companyered under the tripartite settlement and even the earlier settlement ofl983. Industrial Tribunal is the creation statute and it gets jurisdiction on the basis of reference. It cannot go into tile question on validity of the reference. question before the High Court was one of jurisdiction which it failed to companysider. A tripartite settlement has been arrived at among the management, labour Union and the Staff Union. When such a settlement is arrived at it 5 a package deal. In such -a deal some demands may be left out. It is number that emands which are left out, should be specifically mentioned in the settlement. t is number the companytention of Workers Union that tripartite settlement is in any by mala fide. It has been companytended by the Workers Union that the settlement was number arrived at during the companyciliation proceedings tinder Section 12 of the act and as such number binding on the members of the Workers Union. This companytention is without any basis as the recitals to the tripartite settlement early show that the settlement was arrived at during the companyciliation receedings. State Government failed to give due companysideration to the direction of apply in the prescribed form to the Registrar for registration as a Representative Union. 9-F, Cancellation for registration.- The Registrar shall cancel the registration of a Union- a if, after holding such an inquiry, if any. as he deems fit he is satisfied to that the -registered Union is being companyducted number bona fide in the interests of workmen but in the interest of employers to the prejudice of the interest of workmen, or iv If its registration under the Indian Trade Unions Act, 1926 Central Act XVI of 1926 is cancelled. The High Court in its judgment dated March 23, 1989. State Government also failed in its duty to bring to the numberice of the High Court of its numberification dated March 17, 1989 making the impugned reference. It appears to us that the reference had occasioned while the judgment had been reserved by the High Court. In any case it was expected of the State Government to bring to the numberice of the High Court before making a reference its decision to make the reference. After the judgment had been announced and directions issued by die High Court to hear the appellant it was incumbent of the State Government, in the circumstances of the case, to recall the reference, It companyld number direct the appellant to raise its objection to reference before the Industrial Tribunal for which Industrial Tribunal certainly lacked jurisdiction. State Government before making the reference did number companysider all the relevant companysiderations which would clothe it with the power to make the reference under Section 10 of the Act, We find substance in the submissions of Mr. Pai. Wholesale reference of all the disputes in the charter of demands of Workers Union for adjudication was also bad inasmuch as many of such disputes were already the subject matter of tripartite settlement. This also shows number-application of mind by the State Government in making the reference . When numberice was issued on the special leave petition proceedings on the reference were stayed. Earlier also during the pendency of the writ petition before the High Court, which led to the impugned judgment proceedings, had been stayed. There has net been any progress before the Industrial Tribunal and all these years have passed.

Sathasivam, J. These appeals relate to a sensational case of triple murder of an Australian Christian Missionary - Graham Stuart Staines and his two minor sons, namely, Philip Staines, aged about 10 years and Timothy Staines aged about 6 years. Criminal Appeal No. 1366 of 2005 is filed by Rabindra Kumar Pal Dara Singh against the final judgment and order dated 19.05.2005 passed by the High Court of Orissa at Cuttack in Criminal Appeal No. 239 of 2003 whereby the High Court dismissed the appeal of the appellant upholding the companyviction and companymuting the death sentence passed by the trial Court into that of life imprisonment. Against the same judgment, Criminal Appeal No. 1259 of 2007 is filed by Mahendra Hembram challenging his life imprisonment awarded by the trial Court and companyfirmed by the High Court. Against the acquittal of rest of the accused by the High Court, the Central Bureau of Investigation in short the CBI filed Criminal Appeal Nos. 1357-1365 of 2005. Since all the appeals arose from the companymon judgment of the High Court and relating to the very same incident that took place in the midnight of 22.01.1999/23.01.1999, they are being disposed of by this judgment. The case of the prosecution is as under Graham Stuart Staines, a Christian Missionary from Australia, was working among the tribal people especially lepers of the State of Orissa. His two minor sons, namely, Philip Staines and Timothy Staines were burnt to death along with their father in the midnight of 22.01.1999/23.01.1999. The deceased-Graham Staines was engaged in propagating and preaching Christianity in the tribal area of interior Orissa. Manoharpur is a remote tribal village under the Anandapur Police Station of the District Keonjhar of Orissa. Every year, soon after the Makar Sankranti, the said missionary used to companye to the village to companyduct the Jungle Camp. Accordingly, on 20.01.1999, the deceased-Staines, along with his two minor sons Philip and Timothy and several other persons came to the village Manoharpur. They companyducted the camp for next two days by hosting a series of programmes. On 22.01.1999, the Missionary Team, as usual companyducted different programmes in the village near the Church and retired for the day. Graham Staines and his two minor sons slept in their vehicle parked outside the Church. In the midnight, a mob of 60-70 people came to the spot and set fire to the vehicle in which the deceased persons were sleeping. The mob prevented the deceased to get themselves out of the vehicle as a result of which all the three persons got burnt in the vehicle. The local police was informed about the incident on the next day. Since the local police was number able to proceed with the investigation satisfactorily, on 23.04.1999, the same was handed over to the State Crime Branch. Even the Crime Branch failed to companyduct the investigation, ultimately, the investigation was transferred to CBI. On 03.05.1999, the investigation was taken over by the CBI. After thorough investigation, charge sheet was filed by the CBI on 22.06.1999. On the basis of charge sheet, as many as 14 accused persons were put to trial. Apart from these accused, one minor was tried by Juvenile Court. The prosecution examined as many as 55 witnesses whereas in defence 25 witnesses were examined. Series of documents were exhibited by the prosecution. By a companymon judgment and order dated 15.09.2003 and 22.09.2003, Sessions Judge, Khurda companyvicted all the accused and sentenced them for offences punishable under various sections. The death sentence was passed against Dara Singhappellant in Criminal Appeal No. 1366 of 2005 and others were awarded sentence of life imprisonment. The death reference and the appeals filed by the companyvicted persons were heard together by the High Court and were disposed of by companymon judgment dated 19.05.2005 companycluding that the witnesses are number trustworthy and numbercredence should be given to their statements and companyfessional statements were procured by the investigating agency under threat and companyrcion. The High Court, by the impugned judgment, modified the death sentence awarded to Dara Singh into life imprisonment and companyfirmed the life imprisonment imposed on Mahendra Hembram and acquitted all the other accused persons. Questioning the companyviction and sentence of life imprisonment, Dara Singh and Mahendra Hembram filed Criminal Appeal Nos. 1366 of 2005 and 1259 of 2007 respectively and against the acquittal of rest of the accused, CBI filed Criminal Appeal Nos. 1357-65 of 2005 before this Court. Heard Mr. KTS Tulsi and Mr. Ratnakar Dash, learned senior companynsel for the accused appellants and Mr. Vivek K. Tankha, learned Addl. Solicitor General for the CBI. Mr. K.T.S. Tulsi, learned senior companynsel appearing for Rabindra Kumar Pal Dara Singh A1 and other accused in the appeals against acquittal filed by the CBI, after taking us through all the relevant materials has raised the following companytentions- Confessions of various accused persons, particularly, Rabi Soren A9 , Mahadev Mahanta A11 and Turam Ho A12 under Section 164 of the Code of Criminal Procedure, 1973 hereinafter referred to as Cr.P.C. cannot be companysidered to be voluntary on account of the fact that all the companyaccused persons were produced before the Magistrate from the police custody and were remanded back to police custody. Similarly, Dayanidhi Patra Daya A14 was produced from the police custody for companyfession while Umakant Bhoi A13 made his statement while on bail. Besides all companyfessions being exculpatory and made after companyspiracy ceased to be operative and inadmissible. Inasmuch as recording of companyfessions of various accused persons was done after the investigation was taken over by Jogendra Nayak PW 55 , I.O. of the CBI which shows the extent to which strong arm tactics were used by the investigating agency. The statements of eye-witnesses are companytradictory to each other on all material points. There are several circumstances which are inconsistent with the fire started by arson from outside and several circumstances companysistent with the fire emanating from inside of the vehicle and then spread to rest of the vehicle after fuel tank caught fire. This Court in cases of appeals against acquittal has held that when two views are possible, one in favour of the accused should be accepted. Mr. Dash, learned senior companynsel appearing for the accused Mahendra Hembram A3 reiterating the above submissions of Mr. Tulsi also pinpointed deficiency in the prosecution case insofar as A3 is companycerned. Mr. Vivek Tankha, learned Addl. Solicitor General, after taking us through oral and documentary evidence, extensively refuted all the companytentions of the learned senior companynsel for the accused and raised the following submissions- The High Court companymitted an error in altering the death sentence into life imprisonment in favour of A1 and acquitting all other accused except A3 . He pointed out that the appreciation of the evidence by the High Court is wholly perverse and it erroneously disregarded the testimony of twelve eye-witnesses. The High Court failed to appreciate the fact that the three accused, namely, Mahendra Hembram A3 , Ojen Suresh Hansda A7 and Renta Hembram A10 belonging to the same village were known to the eye-witnesses and, therefore, there is numberrequirement to companyduct Test Identification Parade in short TIP . The High Court erred in acquitting 11 accused persons on the sole ground that TIP was number companyducted and, therefore, identification by the eye-witnesses was doubtful. The evidence of identification in Court is substantive evidence and that of the identification in TIP is of companyroborative value. The High Court companymitted a serious error in law in disregarding the companyfessional statements made under Section 164 of the Cr.P.C. as well as the extra-judicial companyfessions made by Dara Singh A1 and Mahendra Hembram A3 . The High Court wrongly held inculpatory companyfessional statements as exculpatory and on that ground rejected the same. The High Court failed to appreciate that in their companyfessional statements A9 , A11 , A12 , A13 and A14 have clearly admitted their plan for companymitting the crime. The adverse observations against PW 55 the Investigating Officer of CBI, by the High Court are number warranted and in any event number supported by any material. Inasmuch as it was Dara Singh A1 who originated and organized the heinous act and also prevented the deceased persons from companying out of the burning vehicle, the High Court ought to have companyfirmed his death sentence. The reasons given by the High Court in acquitting 11 persons are unacceptable and the judgment to that extent is liable to be set aside. We have companysidered the rival submissions and perused all the oral and documentary evidence led by the prosecution and defence. With the various materials in the form of oral and documentary evidence, reasoning of the trial Judge and the ultimate decision of the High Court, we have to find out whether the companyviction and sentence of life imprisonment imposed on Dara Singh A1 and Mahendra Hembram A3 is sustainable and whether prosecution has proved its case even against the accused who were acquitted by the High Court. Eye witnesses According to the learned senior companynsel for the accused, the statements of eye-witnesses are companytradictory to each other on all material points. It is his further claim that exaggerated and improved version of the incident makes it difficult to place implicit reliance on the statements of any of those witnesses. On the other hand, it is the claim of the prosecution that the statements of eye-witnesses are reliable and acceptable and it was rightly companysidered by the trial Court and erroneously rejected except insofar as against Dara Singh A1 and Mahendra Hembram A3 by the High Court. PW2, Basi Tudu, one of the prime eye-witness, identified in dock the previously known accused of her village Ojen Hansda. She was number examined by local police, however, examined by the CID on 04.02.1999 and by the CBI on 05.06.1999. In her evidence, she stated that she is a Christian by faith. Before the companyrt, she deposed that her house is located near the place of occurrence. She also stated that Graham Staines along with his two sons came at Manoharpur church after Makar Sankranti and stayed there in the night. He along with his two sons slept inside the vehicle. Inside the companyrt, during her deposition, she first wrongly identified accused Rajat Kumar Das as accused Ojen Hansda. However, when she had a better view of the accused in the companyrt, she companyrectly identified Ojen Hansda as the person whom she saw among 60 persons holding torch lights and lathis going towards the church. She stated that in the midnight, on hearing barking of dogs, she woke up from sleep and came out of the house. She found about 60 persons going towards the church where the vehicles of Graham Staines were parked. Those persons did number allow her to proceed further. Therefore, she went to the thrashing floor from where she found that people had surrounded the vehicle of Graham Staines. Thereafter, she found the vehicle on fire. The wheels of vehicle in which Graham Staines and his two sons were sleeping, bursted aloud, and they were burnt to death. The people who surrounded the vehicles raised slogans Jai Bajarang Bali and Dara Singh Zindabad. It is clear that she companyld identify only Ojen Suresh Hansda by face for the first time before the trial Court. No TIP was held to enable her to identify him. It shows that her identification of Ojen Suresh Hansda by face during trial was number companyroborated by any previously held TIP. It is also clear that though she was examined by the State Police CID, she never disclosed the name of Ojen Suresh Hansda. Though she claims to have identified Ojen Suresh Hansda by the light of the lamp locally called Dibri which she had kept in the Verandah, it must be numbered that it was midnight during the peak winter season and there is numberexplanation for keeping the lamp in the Verandah during midnight. In her cross-examination, she admitted that she companyld number identify any of the persons who had surrounded the vehicle of Graham Staines and set it ablaze. ii The next eye-witness examined on the side of the prosecution is PW3, Paul Murmu. He admitted that he was companyverted to Christianity in the year 1997. He identified accused Dara Singh in dock. He was examined by the local police on 23.01.1999, by CID on 10.02.1999 and by the CBI on 20.04.1999. He used to accompany Graham Staines at different places. He last accompanied Graham Staines on his visit to Manoharpur on 20.02.1999. He stated that Graham Staines with his two sons was in a separate vehicle and the witness along with other three persons was in another vehicle. In the night of 22.01.1999, Graham Staines along with his two sons slept in his vehicle, which was parked in front of the church. The witness slept in a hut, which was raised behind the church. In the midnight, Nimai Hansda driver of vehicle woke him up. He heard the sound of beating of the vehicles parked in front of the church. He along with Nimai Hansda went near the chruch and found 60-70 persons putting straw beneath the vehicle of Graham Staines and setting it on fire. Three persons broke the glass panes of the vehicle in which Graham Staines and his two sons were sleeping and gave strokes to them with sticks. They were focusing the torch into the vehicles. One of them was having a beard. The witness pointed out to the accused Dara Singh A1 on the dock saying that the bearded man resembled like him. The witness was unable to identify the other two persons who were in the dock. However, he also asserted the hearing of slogans saying Dara Singh Zindabad which companyroborates his identification. iii The next eye-witness examined by the prosecution is PW4, Rolia Soren. It was he who lodged FIR. He was examined by the local police on 23.01.1999, by the CID on 03.02.1999 and by the CBI on 09.04.1999. He is a resident of Manohapur Village the place of occurrence and Graham Staines was well known to him. He stated that Graham Staines along with his two sons and other persons visited Manoharpur on 20.01.1999. In the night of 22.01.1999, Graham Staines and his two sons slept in the vehicle bearing No. 1208 which was parked in front of the church. Another vehicle No. 952 was also parked in front of the church. The house of witness was situated in the south of church, four houses apart and the vehicles parked in front of church were visible from the road in front of his house. In the night of 22.01.1999, his wife woke him up and said that she found large number of people with lathis and torches going towards the church. After walking about 100 ft. towards the vehicles, he found a large number of people delivering lathis blow on the vehicle in which Graham Staines and his two sons were sleeping and the other vehicle bearing No. 952 was already set on fire. Three-four persons belonging to the group caught hold of him by companylar and restrained him from proceeding towards the vehicle. The witness companyld number recognize them as their heads were companyered with caps and faces by mufflers. The witness went towards the village and called Christian people. When along with these persons, the witness reached near the church, he found both the vehicles burnt. Graham Staines and his two sons were also burnt to death. The next day, at about 9 P.M., the Officer-In-Charge OIC Anandpur PS showed his written paper and said that was the FIR and he had to lend his signature and accordingly, he lend his signature thereon. The witness had identified his signatures during his deposition in the companyrt. Though he mentioned large number of miscreants, but they were number chargesheeted. In the FIR itself it was stated by this witness that at the time of occurrence miscreants raised slogans saying Bajrang Bali Zindabad and Dara Singh Zindabad. iv Singo Marandi PW5 was examined as next eye-witness. Though he named accused Ojen Hansda, in his deposition stated that he belonged to his village and in the dock he companyld number identify him with certainty. His statement was number recorded by the local police but recorded by the CID on 03.02.1999 and by the CBI on 07.06.1999. This witness is a resident of Manoharpur the place of occurrence . He stated that on Saraswati Puja day of 1999, after witnessing the Nagin dance along with his mother, he slept in Verandah of Galu and her mother was sitting by his side. At about midnight, his mother woke him up. He saw something was burning near the church and found a vehicle moving towards the road. Ojen and Chenchu of his village carrying torch and lathis came to them and warned them number to go near the fire as some people were killing the Christians there. Thereafter, he heard sounds of blowing of whistles thrice and raising slogans saying Dara Singh Zindabad. It is seen from his evidence that at that time he was prosecuting his studies at Cuttack and his mother was working as a labourer in Bhadrak. It is also number clear as to what was the need for him to sleep in Verandah of another person with his mother sitting beside him till midnight during peak of the winter. The next eye-witness examined by the prosecution is Nimai Hansda PW10 . He was examined by the local police on 23.01.1999, by the CID on 11.02.1999 and by the CBI on 20.04.1999. He did number identify any of the accused.He was the driver of Graham Staines. Vehicle No. 1208 was driven by him. He along with Graham Staines and others came to the place of occurrence on 20.01.1999. Graham Staines and his two sons used to sleep in the said vehicle. He stated that in the midnight of 22.01.1999, on hearing bursting sounds, he woke up. He heard the sound of beating the vehicles parked in front of church in which Graham Staines and his two sons were sleeping. He ran towards the vehicles and found some people beating the vehicles with lathis. They first broke the glass pane of vehicle No. 952. Thereafter, a boy set the vehicle on fire. Before setting the vehicle on fire, he put bundle of straw at front right wheel of vehicle. When the witness raised a numberse of protest, those people assaulted him. He went to call the people but numberody came. When he came back to the place of occurrence, he found both the vehicles on fire. The witness stated that there were about 30-40 people armed with lathis and holding torches. They raised slogan Jai Bajarang Bali and Dara Singh Zindabad. The fire was extinguished at 3 a.m. By that time, both the vehicles were companypletely burnt. Graham Staines and his two sons were companypletely charred and burnt to death. The witness companyld number identify any of the miscreants who set the vehicles on fire. vi PW11, Bhakta Marandi was next examined on the side of the prosecution as eye-witness. He identified accused Dara Singh and Rajat Kumar Das in dock. His statement was neither recorded by local police number by the CID but recorded by the CBI on 05.06.1999. He belongs to Village Manoharpur the place of occurrence . His house is situated two houses apart from the church. He stated that the deceased Graham Staines was known to him. He last visited Manoharpur on 20.01.1999 along with his two sons and others in two vehicles. Graham Staines and his two sons used to sleep in the night inside the vehicle parked in front of the church. As usual in the night of 22.01.1999, Graham Staines and his two sons had slept in a vehicle. In the midnight, the witness was woken up by his wife on hearing bursting sounds. He came out of his house and found 4/5 persons standing in front of his house holding torches and lathis. They were threatening that they will kill the persons who will dare to companye in their way. One of them threw a baton like stick at him. He retreated to his house and went to the house of another person situated one house apart from the church. A slim and tall man was holding an axe. They set on fire one of the vehicles. Some of them brought straw and put the same on the vehicle. They set fire both the vehicles and both the vehicles were burnt. They raised the slogans Jai Bajarang Bali and Dara Singh Zindabad. The witness pointed accused Dara Singh A1 and accused Rajat Kumar Das in the dock as two of those persons beating the vehicles and setting fire on the vehicles. The witness identified accused Dara Singh A1 as slim and tall fellow holding the axe and guiding the miscreants. The witness further stated that the CBI while interrogating him showed photographs of some persons and he had identified two of the photographs as that of miscreants. He had signed on those photographs. About the admissibility of the identification of the accused persons with the photographs can be companysidered at a later point of time. He did number report the incident to the Collector or any other police officer camping at the site. vii The next eye-witness examined was Mathai Marandi PW15 . He identified accused Uma Kant Bhoi A 13 in the TIP. He also identified accused Dara Singh A1 , Dipu Das A2 , Ojen Suresh Hansda and Mahadev. Out of these accused, Ojen Hansda was previously known to him, belonging to the same street of his village. In his evidence, it is stated that he is native of Manoharpur village and the church Place of occurrence is located adjacent to his house. Deceased Graham Staines was well known to him as he used to visit his village for the last 15-16 years. He stated that Graham Staines last visited their village on 20.01.1999. He along with his two sons and other persons came there in two vehicles. He further stated that in the night of 22.01.1999, on hearing bursting sound, his wife woke him up. After companying out of the house, he found 40-50 persons gathered near the vehicles parked in front of the church and beating the vehicles by lathis. Those miscreants were holding lathis, axe, torches, bows and arrows. He heard cries raised by the minor sons of Graham Staines. He went near the vehicle, but 3 to 4 persons threatened him with lathis and, therefore, he retreated to his house. Thereafter, he went to the huts raised behind the church and called the persons staying there and went to the place of occurrence and found the vehicles set on fire. The miscreants put the straw inside the vehicle and set it on fire. They first set the empty vehicle on fire and thereafter the vehicle in which Graham Staines and his sons were sleeping. Both the vehicles caught fire and were burnt. The witness identified accused Dara Singh A1 , Dipu Das A2 , Ojen Suresh Hansda and Mahadev as the miscreants present at the scene of occurrence and taking part in the offence. The witness further stated that Ojen Hansda and Mahendra Hembram belonged to his village. He had identified accused Uma Kanta Bhoi in the TIP companyducted at Anandpur Jail as one of the persons setting fire on the vehicle. He further stated that after the vehicles were burnt, the miscreants blew whistle thrice and raised slogan Jai Bajarang Bali and Dara Singh Zindabad. However, it is relevant to numbere that his omission to mention all important aspects in his evidence including names of the appellants and his previous statements recorded by three Investigating Officers creates a doubt about his veracity. viii Joseph Marandi PW23 was examined as another eyewitness to the occurrence. He belonged to village Manoharpur Place of occurrence and his house is located near the church. He identified accused Renta Hembram, Mahendra Hembram, Dara Singh and Rajat Kumar Dass Dipu. Out of these, two accused - Renta Hembram and Mahendra Hembram, were previously known to him as they belonged to his village. He was examined by the local police on 02.02.1999, by the CID on 06.02.1999 and by the CBI on 03.06.1999. He stated that Graham Staines along with his two sons and other persons came to Manoharpur on 20.01.1999 on two vehicles. On 22.01.1999 deceased Graham Staines and his two sons slept in a vehicle parked in front of the church and other persons slept in the huts raised behind the church. In the mid-night, he heard the sound of beating of vehicles and woke up. When he came out of the house, 3 to 4 persons holding lathis and torches restrained and threatened him to assault if he proceeds further. Thereafter, he stood in a lane between his house and the church. He saw that about 20-22 persons had surrounded the vehicle in which deceased Graham Staines and his two sons were sleeping. Some people were setting the vehicle on fire by putting straw beneath it and igniting it by match sticks. After the vehicle caught fire and was burnt, somebody blew whistle thrice and they shouted slogan Jai Bajarang Bali and Dara Singh Zindabad. The other vehicle was number visible to the witness. The witness identified accused Renta Hembram and Mahendra Hembram of his village who were among the miscreants. The witness also identified accused Dara Singh A1 and accused Rajat Kumar Das Dipu A2 as the miscreants who among others had set fire to the vehicles. The witness further stated that the CBI officers had shown him 30-40 photographs out of which he identified the photographs of the accused Renta Hembram, Mahendra Hembram, Dara Singh A1 and Rajat Kumar Das Dipu A2 . He is also a witness to the seizure of some articles seized from the place of occurrence and he has proved the seizure list. Admittedly, he did number disclose the names of these persons before either of the aforesaid three I.Os. ix Raghunath Dohari PW36 , one of the eye-witnesses, identified accused Dara Singh, Harish Chandra, Mahadev and Turam Ho. His statement was number recorded by local police and the CID but it was recorded by the CBI on 04.12.1999. He belongs to village Manoharpur place of occurrence . He stated that about 3 years before his deposition 1999 during Saraswati puja, Graham Staines visited their village. In the night, he heard the sound of beating. He got up and went to the church, where there was a gathering of 60-70 persons in front of the Church and they were beating the vehicles with sticks. They brought straw and set fire to the vehicles by burning straw. The witness identified accused Dara Singh A1 , Harish Chandra, Mahadev and Turam Ho as the miscreants who were in the gatherings and set fire to the vehicles. It is relevant to point out that apart from the police party, the Collector and other Police Officers though were camping at the place of occurrence, the fact remains that this witness did number report the incident either to the companycerned Investigating Officer or to the Collector for about four months. However, the fact remains that he identified some of the appellants before the trial Court for the first time. As stated earlier, the legality or otherwise of dock identification, for the first time, would be dealt with in the later part of the judgment. Another eye-witness PW39, Soleman Marandi identified accused Dara Singh, Rajat Kumar Dass, Surtha Naik, Harish Chandra, Ojen Hansda and Kartik Lohar. Out of these accused, Ojen Hansda was known to him being resident of his village. His statement was number recorded by the local police but recorded by the CID on 03.02.1999 and by the CBI on 30.05.1999. He is a resident of village Manoharpur place of occurrence . He stated that Graham Staines visited Manhorpur last time about 3 years back i.e. in the year 1999 after Makar Sankranti. He came there with his two sons and other persons in two vehicles. In the third night of his stay, he along with his two sons slept in the vehicle during night. The vehicles were parked in front of the church. In the midnight, the witness heard the sound of beating of vehicles. He came out of the house and went near the church. He found that about 30-40 persons had surrounded the vehicles and some of them were beating the vehicles in which Graham Staines along with his two sons was sleeping. He heard the cries of two sons of Graham Staines companying from the vehicle. These people set fire to the second vehicle parked near the vehicle of Graham Staines. When the vehicle caught fire, the vehicle moved towards the road. Three of those miscreants put a log of wood preventing the vehicle moving further. The witness identified accused Dara Singh as A1 , Rajat Kumar Das, Suratha Naik, Harish Mahanta, Ojen Hansda and Kartik Lohar amongst the accused persons in the dock as the miscreants who had set fire to the vehicles. Accused Ojen Hansda belonged to his village. The witness further stated that CBI showed him number of photographs among which he identified photographs of 5 persons who had taken part in the occurrence. He identified Dara Singh A1 without any difficulty and it is also companyroborated by the slogan he heard which miscreants raised in the name of Dara Singh. xi The last eye-witness examined on the side of the prosecution is PW43, Lablal Tudu. He identified accused Dara Singh, Turam Ho, Daya Patra and Rajat Kumar Das. His statement was number recorded by local police and by the CID but recorded by the CBI on 03.06.1999. He is also a resident of Manoharpur village and his house is located near the Church the place of occurrence . He stated that Graham Staines visited their village about three years before his deposition in the Court January, 1999 . He came there on Wednesday and stayed till Friday. On Friday night, Graham Staines and his two sons slept in a vehicle parked in front of the church. In the midnight, his mother PW2 heard the beating sounds of vehicle and woke him up. He found 50-60 persons beating the vehicle by lathis in which Graham Staines and his two sons had slept. Three-four of them put the straw beneath the empty vehicle and lit the straw by matchsticks. After setting the empty vehicle ablaze, those persons put straw beneath the vehicle of Graham Staines and his two sons and ignited the same. Those two vehicles caught fire and began to burn. The witness identified four persons, namely, Dara Singh A1 , Turam Ho A12 , Daya Patra A14 and Rajat Das A2 as the persons beating the vehicle and setting on fire. The fact remains that admittedly he did number report the incident to his mother about what he had seen during the occurrence. He also admitted that there was a police camp from the next day of the incident. However, he did number make any statement to the State Police and only for the first time his statement was recorded by the CBI i.e., five months after the occurrence. It is relevant to numbere that the incident took place in the midnight of 22.01.1999/23.01.1999. Prior to that, number of investigating officers had visited the village of occurrence. Statements of most of the witnesses were recorded by PW 55, an officer of the CBI. In the statements recorded by various IOs, particularly, the local police and State CID these eye witnesses except few claim to have identified any of the miscreants involved in the incident. As rightly observed by the High Court, for a long number of days, many of these eyewitnesses never came forward before the IOs and the police personnel visiting the village from time to time claiming that they had seen the occurrence. In these circumstances, numberimportance need to be attached on the testimony of these eyewitnesses about their identification of the appellants other than Dara Singh A1 and Mahendra Hembram A3 before the trial Court for the first time without companyroboration by previous TIP held by the Magistrate in accordance with the procedure established. It is well settled principle that in the absence of any independent companyroboration like TIP held by judicial Magistrate, the evidence of eye-witnesses as to the identification of the appellants accused for the first time before the trial Court generally cannot be accepted. As explained in Manu Sharma vs. State NCT of Delhi 2010 6 SCC 1 case, that if the case is supported by other materials, identification of the accused in the dock for the first time would be permissible subject to companyfirmation by other companyroborative evidence, which are lacking in the case on hand except for A1 and A3. In the same manner, showing photographs of the miscreants and identification for the first time in the trial Court without being companyroborated by TIP held before a Magistrate or without any other material may number be helpful to the prosecution case. To put it clear, the evidence of witness given in the companyrt as to the identification may be accepted only if he identified the same persons in a previously held TIP in jail. It is true that absence of TIP may number be fatal to the prosecution. In the case on hand, A1 and A3 were identified and also companyroborated by the evidence of slogans given in his name and each one of the witnesses asserted the said aspect insofar as they are companycerned. We have also adverted to the fact that numbere of these witnesses named the offenders in their statements except few recorded by IOs in the companyrse of investigation. Though an explanation was offered that out of fear they did number name the offenders, the fact remains, on the next day of the incident, Executive Magistrate and top level police officers were camping the village for quite some time. Inasmuch as evidence of the identification of the accused during trial for the first time is inherently weak in character, as a safe rule of prudence, generally it is desirable to look for companyroboration of the sworn testimony of witnesses in companyrt as to the identity of the accused who are strangers to them, in the form of earlier TIP. Though some of them were identified by the photographs except A1 and A3 , numberother companyroborative material was shown by the prosecution. Now let us discuss the evidentiary value of photo identification and identifying the accused in the dock for the first time. Learned Addl. Solicitor General, in support of the prosecution case about the photo identification parade and dock identification, heavily relied on the decision of this Court in Manu Sharma supra . It was argued in that case that PW 2 Shyan Munshi had left for Kolkata and thereafter, photo identification was got done when SI Sharad Kumar, PW 78 went to Kolkata to get the identification done by picking up from the photographs wherein he identified the accused Manu Sharma though he refused to sign the same. However, in the companyrt, PW 2 Shyan Munshi refused to recognise him. In any case, the factum of photo identification by PW 2 as witnessed by the officer companycerned is a relevant and an admissible piece of evidence. In para 254, this Court held Even a TIP before a Magistrate is otherwise hit by Section 162 of the Code. Therefore to say that a photo identification is hit by Section 162 is wrong. It is number a substantive piece of evidence. It is only by virtue of Section 9 of the Evidence Act that the same i.e. the act of identification becomes admissible in companyrt. The logic behind TIP, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is number known to the witnesses, the IO companyducts a TIP to ensure that he has got the right person as an accused. The practice is number borne out of procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of companyduct of a witness in photo identifying the accused in the presence of an IO or the Magistrate, during the companyrse of an investigation. It was further held It is trite to say that the substantive evidence is the evidence of identification in companyrt. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in companyrt. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, companysidered a safe rule of prudence to generally look for companyroboration of the sworn testimony of witnesses in companyrt as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the companyrt is impressed by a particular witness on whose testimony it can safely rely, without such or other companyroboration. The identification parades belong to the stage of investigation, and there is numberprovision in the Code which obliges the investigating agency to hold or companyfers a right upon the accused to claim a test identification parade. They do number companystitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would number make inadmissible the evidence of identification in companyrt. The weight to be attached to such identification should be a matter for the companyrts of fact. In appropriate cases it may accept the evidence of identification even without insisting on companyroboration. It was further held that the photo identification and TIP are only aides in the investigation and do number form substantive evidence. The substantive evidence is the evidence in the companyrt on oath. In Umar Abdul Sakoor Sorathia vs. Intelligence Officer, Narcotic Control Bureau, AIR 1999 SC 2562, the following companyclusion is relevant In the present case prosecution does number say that they would rest with the identification made by Mr. Mkhatshwa when the photograph was shown to him. Prosecution has to examine him as a witness in the companyrt and he has to identify the accused in the companyrt. Then alone it would become substantive evidence. But that does number mean that at this stage the companyrt is disabled from companysidering the prospect of such a witness companyrectly identifying the appellant during trial. In so companysidering the companyrt can take into account the fact that during investigation the photograph of the appellant was shown to the witness and he identified that person as the one whom he saw at the relevant time In Jana Yadav vs. State of Bihar, 2002 7 SCC 295, para 38, the following companyclusion is relevant Failure to hold test identification parade does number make the evidence of identification in companyrt inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in companyrt should number form the basis of companyviction, the same being from its very nature inherently of a weak character unless it is companyroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in companyrt of an accused by a witness and the same is a rule of prudence and number law. It is clear that identification of accused persons by witness in dock for the first time though permissible but cannot be given credence without further companyroborative evidence. Though some of the witnesses identified some of the accused in the dock as mentioned above without companyroborative evidence the dock identification alone cannot be treated as substantial evidence, though it is permissible. Mr. Tulsi, learned senior companynsel for the accused heavily companymented on the statements of eye-witnesses which, according to him, are companytradictory to each other on material points. He highlighted that exaggerated and improved version of the incident makes it difficult to place implicit reliance on the statements of any of these witnesses. He cited various instances in support of his claim. As regards the number of persons who have allegedly attacked the vehicles, it was pointed out that PW 23 - Joseph Marandi brother of PW 15 Christian/15 years at the time of incident has stated that 20-22 persons surrounded the vehicle. On the other hand, PW 39 - Soleman Marandi and PW 10 - Nimai Hansda deposed that 30/40 persons surrounded the vehicle. PW 15 - Mathai Marandi found 40/50 persons were beating with lathis. PW 43 - Lablal Tudu son of PW 2 deposed that 50/60 persons were beating the vehicle whereas PW 2 - Basi Tudu found 60 persons going towards the church. PW 3, Paul Murmu found 60/70 persons putting straw beneath the vehicle and setting fire. PW 36 - Raghunath Dohal mentioned that about 60-70 people gathered in front of the church. As regards straw being kept on the roof of the vehicle to prevent companyd, PWs 3, 10, 11, 15, 36, 39, 43, 45 and 52 mentioned different versions. With regard to whether there was a light or number which is vital for identification of miscreants prior to vehicle caught fire, PW 2 has stated that Moon had already set and he identified Chenchu and A 7 in the light of lamp dibri put in the verandah. On the other hand, PW 5, who was 11 years old at the time of evidence has mentioned that it was dark night. PW 11 has stated that he had number seen any lamp burning in the verandah of neighbours but saw some miscreants due to illumination of fire. PW 43 has stated that there is numberelectricity supply in the village and stated that they do number keep light in verandah while sleeping inside the house during night. About chilly wintry night, PW3 has stated it was chilly night with dew dropping whereas PW15 has stated that he cannot say whether there was fog at the night of occurrence and PW 36 has stated it was wintry night and PW52 has stated fog occurs during the month of December and January and he companyld number say if there was any fog at the night of occurrence. With regard to clothes worn by attackers, PW36 has stated that A1 was wearing a Punjabi Kurta, A3 and A12 were wearing a banian. PW19 has stated that he saw 9 persons out of which 8 were wearing trousers and shirts and one person who was addressed as Dara was wearing a lungi and Punjabi Kurta. PW39 has stated that during winter season people usually companye with their body companyered. PW52 has stated that usually people wear winter clothing during December and January. With regard to the aspect whether the accused persons had companyered their faces, PW 4 who is the informant has stated that the faces of the accused were companyered. On the other hand, PWs 11, 15 and 36 have asserted that numbere companyered their faces. As regard to who lit the fire, PW3 has stated that a short person lit fire. PW10 has mentioned that he did number see anyone whereas PW11 has stated that number of people set fire. PW32 has mentioned that there was numbergathering near the vehicles when they caught fire. PW 36 has stated number seen any villager in between the house of the PW4 and the Church and PW39 has stated he had number seen any female near the place of occurrence. As regard to whether Nagin dance was over or number, PW 32 had deposed that when the vehicle caught fire, Nagin dance was being performed whereas PW 39 has deposed that dance companytinued throughout the night. Whether Nagin dance was visible from the place of occurrence, PW 3 has stated that it was number visible due to darkness. PW 4 has stated the distance between Nagin dance and Church is 200 ft. PW 5 has stated that Church was number visible from the place of Nagin dance and the distance was 200 ft. PW 6 has mentioned that Church was visible from the place of Nagin dance and distance was 200 ft and finally PW 32 has stated the church was visible from the place of Nagin dance. With regard to distance between place of occurrence and Nagin dance, PW 15 has mentioned the distance is 200 ft. PW 32 has stated that vehicles were visible from the place of Nagin dance, PW 36 has stated Nagin dance staged 10-12 houses apart from Church at front side whereas PW 39 has stated Nagin dance staged 4 houses apart from Chruch and PW 43 has stated that it was staged 5 houses apart from church and he admitted that he was number sure of the distance between church and the place of Nagin dance. With regard to their arrival at the place of occurrence, PW 11 has stated that PWs 4, 15 and 23 came to the place of occurrence an hour after the miscreants left the place whereas they deposed that they were present there from the beginning. PW 10 has stated that he woke up on hearing bursting and beating sound. PW 15 has deposed that he went to the huts behind the church and called PWs 10, 3 and others. PW 3 has stated that he was woken up by PW 10. By pointing out these companytradictions, Mr. Tulsi submitted that the presence of these witnesses becomes doubtful. However, if we see these witnesses through microscope, it is true that the above mentioned companytradictions would be visible and clear but by and large they explained the prosecution case though they companyld number identify all the accused persons with clarity except Dara Singh A1 and Mahendra Hembram A3 . By virtue of these minor companytradictions, their testimony cannot be rejected in toto. But, by and large, there are minor companytradictions in their statements as demonstrated by Mr. Tulsi. In the face of the above-mentioned difference in the evidence of prosecution witnesses with regard to light, clothing, number of accused persons, fog, faces companyered or number, it is number acceptable in toto except certain events and incidents which are reliable and admissible in evidence. CONFESSIONS It was submitted that companyfessions of various accused persons, namely, A9, A 11 and A 12 under Section 164 Cr.P.C. cannot be companysidered to be voluntary on account of the fact that all the companyaccused persons were produced before the Magistrate from police custody and were remanded back to police custody. It was further highlighted that accused No. 14 was produced from police custody for recording his companyfession while A 13 made his statement when he was on bail and in numbercase the Magistrate ensured the accused persons that if they decline they would number be sent to police custody. It was further highlighted that illiterate accused persons cannot be expected to have knowledge of finest nuances of procedure. It was pointed that besides all companyfessions being exculpatory and made after companyspiracy ceases to be operative are inadmissible. Finally, it was stated that Section 164 Cr.P.C. requires faithful companypliance and failure impairs their evidentiary value. Section 164 Cr.P.C. speaks about recording of companyfessions and statements. It reads thus Recording of companyfessions and statements. 1 Any Metropolitan Magistrate or Judicial Magistrate may, whether or number he has jurisdiction in the case, record any companyfession or statement made to him in the companyrse of an investigation under this Chapter or under any other law for the time being in force, or at any, time afterwards before the companymencement of the inquiry or trial Provided that any companyfession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence Provided that numberconfession shall be recorded by a police officer on whom any power of a Magistrate has been companyferred under any law for the time being in force. The Magistrate shall, before recording any such companyfession, explain to the person making it that he is number bound to make a companyfession and that, if he does so, it may be used as evidence against him and the Magistrate shall number record any such companyfession unless, upon questioning the person making it, he has reason to believe that it is bear, made voluntarily. If at any time before the companyfession is recorded, the person appearing before the Magistrate states that he is number willing to make the companyfession, the Magistrate shall number authorize the detention of such person in police custody. Any such companyfession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the companyfession and the Magistrate shall make a memorandum at the foot of such record to the following effect. I have explained to name that he is number bound to make a companyfession and that, if he does so, any companyfession he may make may be used as evidence against him and I believe that this companyfession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be companyrect, and it companytains a full and true account of the statement made by him. Signed A.B. Magistrate Any statement other than a companyfession made under sub-section 1 shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case and the Magistrate shall have power to administer oath to the person whose statement is so recorded. The Magistrate recording a companyfession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried. While elaborating number-compliance of mandates of Section 164 Cr.P.C., Mr. Tulsi, learned senior companynsel appearing for the accused cited various instances. Accused No. 9, Rabi Soren, was arrested by the investigating agency and remanded to police custody for 7 days i.e. from 20.05.1999. It is their claim that on 18.05.1999, Accused No.9 made a statement under Section 164 Cr.P.C. and thereafter remanded back to police custody. It was also pointed out that in his statement under Section 313 Cr.P.C. the accused person stated that he was beaten by the investigating agency. Another instance relates to Mahadev Mahanta, Accused No. 11 who was arrested on 01.07.1999 by the investigating agency and he was remanded to police custody. However, on 08.07.1999, Accused No. 11 made a statement under Section 164 Cr.P.C. PW 55, I.O. has stated that the statement of the accused was recorded under Section 164 Cr.P.C. that he was under police custody and he was remanded back to police custody. In his statement under Section 313 Cr.P.C. he also stated that he was beaten by the investigating agency. In the case of Turam Ho Accused No. 12, he was arrested on 13.05.1999 by the Investigating Agency and from 19.05.1999 to 23.05.1999 the accused person was in custody of the investigating agency. While so, on 21.05.1999, the accused No. 12 made a statement under Section 164 Cr.P.C and thereafter remanded back to police custody. It was pointed out that he also stated in his statement under Section 313 Cr.P.C. that he was beaten by the investigating agency. The next instance relates to Umakanta Bhoi, Accused No. 13 who refused to make a statement under Section 164 Cr.P.C prayed by I.O. to be put for 16.03.1999 for recording statement. It was directed to jail authority to keep the accused under calm and companyl atmosphere. A 13 was produced from Judicial Custody for recording statement under Section 164 Cr.P.C. and he refused to make a statement. However, on 31.08.1999, he made a companyfessional statement. In the case of Dayanidhi Patra, Accused No. 14, on 21.09.1999, he was arrested by the Investigating Agency. On 24.09.1999, Learned ASJ granted police remand for 7 days i.e. on 01.10.1999 and that on that day A 14 made a statement under Section 164 Cr.P.C. It was pointed out that in his statement under Section 313 Cr.P.C. the accused person stated that he was beaten by the investigating agency. Before analyzing the companyfessional statements of various accused persons and its applicability and the procedure followed by the Magistrate in recording the statement, let us companysider various decisions touching these aspects. In Bhagwan Singh and Ors. vs. State of M.P. 2003 3 SCC 21, while companysidering these issues, it was held 27The first precaution that a Judicial Magistrate is required to take is to prevent forcible extraction of companyfession by the prosecuting agency see State of U.P. v. Singhara Singh, AIR 1964 SC 358 . It was also held by this Court in the case of Shivappa v. State of Karnataka, 1995 2 SCC 76 that the provisions of Section 164 CrPC must be companyplied with number only in form, but in essence. Before proceeding to record the companyfessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is numberscope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. It has also been held that the Magistrate in particular should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. He should be granted sufficient time for reflection. He should also be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a companyfessional statement. Unfortunately, in this case, the evidence of the Judicial Magistrate PW 1 does number show that any such precaution was taken before recording the judicial companyfession. The companyfession is also number recorded in questions-andanswers form which is the manner indicated in the criminal companyrt rules. It has been held that there was custody of the accused Pooran Singh with the police immediately preceding the making of the companyfession and it is sufficient to stamp the companyfession as involuntary and hence unreliable. A judicial companyfession number given voluntarily is unreliable, more so when such a companyfession is retracted. It is number safe to rely on such judicial companyfession or even treat it as a companyroborative piece of evidence in the case. When a judicial companyfession is found to be number voluntary and more so when it is retracted, in the absence of other reliable evidence, the companyviction cannot be based on such retracted judicial companyfession. See Shankaria State of Rajasthan, 1978 3 SCC 435 para 23 In Shivappa vs. State of Karnataka 1995 2 SCC 76, while reiterating the same principle it was held- From the plain language of Section 164 CrPC and the rules and guidelines framed by the High Court regarding the recording of companyfessional statements of an accused under Section 164 CrPC, it is manifest that the said provisions emphasise an inquiry by the Magistrate to ascertain the voluntary nature of the companyfession. This inquiry appears to be the most significant and an important part of the duty of the Magistrate recording the companyfessional statement of an accused under Section 164 CrPC. The failure of the Magistrate to put such questions from which he companyld ascertain the voluntary nature of the companyfession detracts so materially from the evidentiary value of the companyfession of an accused that it would number be safe to act upon the same. Full and adequate companypliance number merely in form but in essence with the provisions of Section 164 CrPC and the rules framed by the High Court is imperative and its numbercompanypliance goes to the root of the Magistrates jurisdiction to record the companyfession and renders the companyfession unworthy of credence. Before proceeding to record the companyfessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is numberscope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the mind of an accused. In case the Magistrate discovers on such enquiry that there is ground for such supposition he should give the accused sufficient time for reflection before he is asked to make his statement and should assure himself that during the time of reflection, he is companypletely out of police influence. An accused should particularly be asked the reason why he wants to make a statement which would surely go against his self-interest in companyrse of the trial, even if he companytrives subsequently to retract the companyfession. Besides administering the caution, warning specifically provided for in the first part of sub-section 2 of Section 164 namely, that the accused is number bound to make a statement and that if he makes one it may be used against him as evidence in relation to his companyplicity in the offence at the trial, that is to follow, he should also, in plain language, be assured of protection from any sort of apprehended torture or pressure from such extraneous agents as the police or the like in case he declines to make a statement and be given the assurance that even if he declined to make the companyfession, he shall number be remanded to police custody. The Magistrate who is entrusted with the duty of recording companyfession of an accused companying from police custody or jail custody must appreciate his function in that behalf as one of a judicial officer and he must apply his judicial mind to ascertain and satisfy his companyscience that the statement the accused makes is number on account of any extraneous influence on him. That indeed is the essence of a voluntary statement within the meaning of the provisions of Section 164 CrPC and the rules framed by the High Court for the guidance of the subordinate companyrts. Moreover, the Magistrate must number only be satisfied as to the voluntary character of the statement, he should also make and leave such material on the record in proof of the companypliance with the imperative requirements of the statutory provisions, as would satisfy the companyrt that sits in judgment in the case, that the companyfessional statement was made by the accused voluntarily and the statutory provisions were strictly companyplied with. From a perusal of the evidence of PW 17, Shri Shitappa, Additional Munsif Magistrate, we find that though he had administered the caution to the appellant that he was number bound to make a statement and that if he did make a statement that may be used against him as evidence but PW 17 did number disclose to the appellant that he was a Magistrate and that the companyfession was being recorded by him in that capacity number made any enquiry to find out whether he had been influenced by anyone to make the companyfession. PW 17 stated during his deposition in companyrt I have number stated to the accused that I am a Magistrate and further admitted I have number asked the accused as to whether the police have induced them Chithavani to give the statement. The Magistrate, PW 17 also admitted that at the time of recording the statement of the accused numberpolice or police officials were in the open companyrt. I cannot tell as to whether the police or police officials were present in the vicinity of the companyrt. From the memorandum prepared by the Munsif Magistrate, PW 17 as also from his deposition recorded in companyrt it is further revealed that the Magistrate did number lend any assurance to the appellant that he would number be sent back to the police custody in case he did number make the companyfessional statement. Circle Police Inspector Shivappa Shanwar, PW 25 admitted that the sub-jail, the office of the Circle Police Inspector and the police station are situated in the same premises. No companytemporaneous record has been placed on the record to show that the appellant had actually been kept in the sub-jail, as ordered by the Magistrate on 21-7-1986 and that he was out of the zone of influence by the police keeping in view the location of the sub-jail and the police station. The prosecution did number lead any evidence to show that any jail authority actually produced the appellant on 22-7-1986 before the Magistrate. That apart, neither on 21-7-1986 number on 22-7-1986 did the Munsif Magistrate, PW 17 question the appellant as to why he wanted to make the companyfession or as to what had prompted him to make the companyfession. It appears to us quite obvious that the Munsif Magistrate, PW 17 did number make any serious attempt to ascertain the voluntary character of the companyfessional statement. The failure of the Magistrate to make a real endeavour to ascertain the voluntary character of the companyfession, impels us to hold that the evidence on the record does number establish that the companyfessional statement of the appellant recorded under Section 164 CrPC was voluntary. The cryptic manner of holding the enquiry to ascertain the voluntary nature of the companyfession has left much to be desired and has detracted materially from the evidentiary value of the companyfessional statement. It would, thus, neither be prudent number safe to act upon the companyfessional statement of the appellant In Dagdu and Others vs. State of Maharashtra, 1977 3 SCC 68, the following paragraph is relevant- Learned Counsel appearing for the State is right that the failure to companyply with Section 164 3 of the Criminal Procedure Code, or with the High Court Circulars will number render the companyfessions inadmissible in evidence. Relevancy and admissibility of evidence have to be determined in accordance with the provisions of the Evidence Act. Section 29 of that Act lays down that if a companyfession is otherwise relevant it does number become irrelevant merely because, inter alia, the accused was number warned that he was number bound to make it and the evidence of it might be given against him. If, therefore, a companyfession does number violate any one of the companyditions operative under Sections 24 to 28 of the Evidence Act, it will be admissible in evidence. But as in respect of any other admissible evidence, oral or documentary, so in the case of companyfessional statements which are otherwise admissible, the Court has still to companysider whether they can be accepted as true. If the facts and circumstances surrounding the making of a companyfession appear to cast a doubt on the veracity or voluntariness of the companyfession, the Court may refuse to act upon the companyfession even if it is admissible in evidence. That shows how important it is for the Magistrate who records the companyfession to satisfy himself by appropriate questioning of the companyfessing accused, that the companyfession is true and voluntary. A strict and faithful companypliance with Section 164 of the Code and with the instructions issued by the High Court affords in a large measure the guarantee that the companyfession is voluntary. The failure to observe the safeguards prescribed therein are in practice calculated to impair the evidentiary value of the companyfessional statements. Davendra Prasad Tiwari vs. State of U.P. 1978 4 SCC 474, the following companyclusion arrived at by this Court is relevant- 13 It is also true that before a companyfessional statement made under Section 164 of the Code of Criminal Procedure can be acted upon, it must be shown to be voluntary and free from police influence and that the companyfessional statement made by the appellant in the instant case cannot be taken into account, as it suffers from serious infirmities in that 1 there is numbercontemporaneous record to show that the appellant was actually kept in jail as ordered on September 6, 1974 by Shri R.P. Singh, Judicial Magistrate, Gorakhpur, 2 Shri R.P. Singh who recorded the so called companyfessional statement of the appellant did number question him as to why he was making the companyfession and 3 there is also numberhing in the statement of the said Magistrate to show that he told the appellant that he would number be remanded to the police lock-up even if he did number companyfess his guilt. It cannot also be gainsaid that the circumstantial evidence relied upon by the prosecution must be companyplete and incapable of explanation of any other hypothesis than that of the guilt of the accused. In Kalawati Ors. vs. State of Himachal Pradesh, 1953 SCR 546 at 631, this Court held In dealing with a criminal case where the prosecution relies upon the companyfession of one accused person against another accused person, the proper approach to adopt is to companysider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the companyrt is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the companyrt turns to the companyfession with a view to assure itself that the companyclusion which it is inclined to draw from the other evidence is right. In State thr. Superintendent of Police, CBI SIT vs. Nalini and Others 1999 5 SCC 253 at 307, the following paragraphs are relevant which read as under- What is the evidentiary value of a companyfession made by one accused as against another accused apart from Section 30 of the Evidence Act? While companysidering that aspect we have to bear in mind that any companyfession, when it is sought to be used against another, has certain inherent weaknesses. First is, it is the statement of a person who claims himself to be an offender, which means, it is the version of an accomplice. Second is, the truth of it cannot be tested by cross-examination. Third is, it is number an item of evidence given on oath. Fourth is, the companyfession was made in the absence of the companyaccused against whom it is sought to be used. It is well-nigh settled, due to the aforesaid weaknesses, that companyfession of a companyaccused is a weak type of evidence. A companyfession can be used as a relevant evidence against its maker because Section 21 of the Evidence Act permits it under certain companyditions. But there is numberprovision which enables a companyfession to be used as a relevant evidence against another person. It is only Section 30 of the Evidence Act which at least permits the companyrt to companysider such a companyfession as against another person under the companyditions prescribed therein. If Section 30 was absent in the Evidence Act numberconfession companyld ever have been used for any purpose as against another companyaccused until it is sanctioned by another statute. So, if Section 30 of the Evidence Act is also to be excluded by virtue of the number obstante clause companytained in Section 15 1 of TADA, under what provision can a companyfession of one accused be used against another company accused at all? It must be remembered that Section 15 1 of TADA does number say that a companyfession can be used against a companyaccused. It only says that a companyfession would be admissible in a trial of number only the maker thereof but a company accused, abettor or companyspirator tried in the same case. Sir John Beaumont speaking for five Law Lords of the Privy Council in Bhuboni Sahu v. R., AIR 1949 PC 257 had made the following observations Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his companyfession against others as well as himself. But a companyfession of a companyaccused is obviously evidence of a very weak type. It does number indeed companye within the definition of evidence companytained in Section 3, Evidence Act. It is number required to be given on oath, number in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is number subject to any of those infirmities. Section 30, however, provides that the companyrt may take the companyfession into companysideration and thereby, numberdoubt, makes it evidence on which the companyrt may act but the section does number say that the companyfession is to amount to proof. Clearly there must be other evidence. The companyfession is only one element in the companysideration of all the facts proved in the case it can be put into the scale and weighed with the other evidence. The above observations had since been treated as the approved and established position regarding companyfession vis- -vis another companyaccused. Vivian Bose, J., speaking for a three-Judge Bench in Kashmira Singh v. State of M.P., AIR 1952 SC 159 had reiterated the same principle after quoting the aforesaid observations. A Constitution Bench of this Court has followed it in Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184. In State of Maharashtra vs. Damu 2000 6 SCC 269, the same principles had been reiterated which read as under- We have companysidered the above reasons and the arguments addressed for and against them. We have realised that those reasons are ex facie fragile. Even otherwise, a Magistrate who proposed to record the companyfession has to ensure that the companyfession is free from police interference. Even if he was produced from police custody, the Magistrate was number to record the companyfession until the lapse of such time, as he thinks necessary to extricate his mind companypletely from fear of the police to have the companyfession in his own way by telling the Magistrate the true facts. We may make it clear that in Kashmira Singh this Court has rendered the ratio that companyfession cannot be made the foundation of companyviction in the companytext of companysidering the utility of that companyfession as against a companyaccused in view of Section 30 of the Evidence Act. Hence the observations in that decision cannot be misapplied to cases in which companyfession is companysidered as against its maker. The legal position companycerning companyfession vis--vis the companyfessor himself has been well-nigh settled by this Court in Sarwan Singh Rattan Singh v. State of Punjab as under In law it is always open to the companyrt to companyvict an accused on his companyfession itself though he has retracted it at a later stage. Nevertheless usually companyrts require some companyroboration to the companyfessional statement before companyvicting an accused person on such a statement. What amount of companyroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case. This has been followed by this Court in Kehar Singh v. State Delhi Admn. The following principles emerge with regard to Section 164 Cr.P.C.- The provisions of Section 164 Cr.P.C. must be companyplied with number only in form, but in essence. Before proceeding to record the companyfessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is numberscope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. The maker should be granted sufficient time for reflection. He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a companyfessional statement. A judicial companyfession number given voluntarily is unreliable, more so, when such a companyfession is retracted, the companyviction cannot be based on such retracted judicial companyfession. Non-compliance of Section 164 Cr.P.C. goes to the root of the Magistrates jurisdiction to record the companyfession and renders the companyfession unworthy of credence. During the time of reflection, the accused should be companypletely out of police influence. The judicial officer, who is entrusted with the duty of recording companyfession, must apply his judicial mind to ascertain and satisfy his companyscience that the statement of the accused is number on account of any extraneous influence on him. At the time of recording the statement of the accused, numberpolice or police official shall be present in the open companyrt. Confession of a companyaccused is a weak type of evidence. Usually the Court requires some companyroboration from the companyfessional statement before companyvicting the accused person on such a statement. Judicial Magistrates PWs-29 34 Ashok Kumar Agrawal, PW29 and Tojaka Bharti, PW34, Judicial Magistrates recorded the companyfessional statements of some of the accused. Judicial Magistrate, PW29 recorded the companyfessional statement of Rabi Soren and Turam Ho and PW34, Judicial Magistrate recorded the companyfessional statement of Mahadev Mahanta, Uma Kant Bhoi and Dayanidhi Patra. It is the claim of Mr. K.T.S. Tulsi, learned senior companynsel for the accused, that the evidence of PW29 and PW34, Judicial Magistrates shows that they were blissfully unaware of the stringent responsibility cast on them by Section 164 Cr.P.C. According to him, their evidence create an impression that they were number aware of the difference between the police custody and judicial custody number do they seem to understand the significance of Section 164 Cr.P.C. He pointed out that why the first four pages in case of each of the accused persons is number signed by the accused is number explained. They neither asked any searching questions regarding the nature of custody either from the accused persons or from police number did they scrutinize the records to ascertain the same from remand orders. He also pointed out that numbere of the accused who have companyfessed had been given the assurance that if they refuse to make any companyfession, they would number be remanded to police custody. This assurance is required for an accused to make an informed decision being fully aware of the companysequences of refusing. It is seen from the evidence of PW29, who recorded the companyfession of Rabi Soren, that at the relevant time the accused was in the custody of CBI and from that custody he was produced before the Addl. Chief Judicial Magistrate on 18.05.1999. Though PW29 had asked the accused many things about the voluntariness, the High Court, on analysis of his entire evidence, came to a companyclusion that only a routine statutory certificate as required under Section 164 Cr.P.C. was given by him. The High Court also pointed out that he did number caution that if the accused Rabi Soren refused to make any companyfession, he would number be remanded to C.B.I. or Police custody. He was number informed that if he companyfessed, such companyfession may be used in evidence against him and on that basis there was possibility of his being sentenced to death or life imprisonment. It was also pointed out that his body was number checked to find out as to whether he was subjected to torture when he was in police custody. It was also pointed out by the High Court that five hours time was given for reflection during which period he was in the custody of his Bench Clerk in his Chamber. PW29, after recording companyfessional statement of Rabi Soren on 18.05.1999, again remanded him to the custody of police, i.e. C.B.I. till 20.05.1999. This is clear from the evidence of PW55 I.O. . It is relevant to point out that under sub-section 3 of Section 164 Cr.P.C. that if any accused refuses to make any companyfessional statement, such Magistrate shall number authorize detention of the accused in police custody. Remanding Rabi Soren to Police custody after his statement was recorded under Section 164 Cr.P.C. is number justified. As rightly observed by the High Court, possibility of companyrcion, threat or inducement to the accused Rabi Soren to make the companyfession cannot be ruled out. In the same manner, companyfession of another accused Turam Ho was also recorded by the very same Magistrate. Here again, the High Court pointed out that he was number cautioned that if he made any companyfession, same may be used against him in evidence and on that basis he may be sentenced to death or imprisonment for life. Equally he was number cautioned by PW29 that if he refused to make the companyfessional statement, he would number be remanded to police custody. It is further seen that both of these accused, in their companyfessional statements, made exculpatory statements. PW34, Judicial Magistrate, recorded the companyfessional statement of accused Mahadev Mahanta on 08.07.1999 immediately after his production before him from the police custody. PW34 was directed by the Addl. C.J.M. to record the companyfessional statement of Mahadev Mahanta. It was numbered that he was given only 10 minutes time for reflection after his production from police custody. The other accused who made the companyfessional statement is Dayanidhi Patra whose statement was recorded by PW34. The High Court, on companyroboration of the companyfessional statement, had found that the entire companyfessional statement is exculpatory and he also retracted from the companyfession. It was further found that this companyfessional statement was made long after the charge-sheet was filed i.e. on 22.06.1999. The analysis of evidence of PWs 29 34 - Judicial Magistrates shows that many of the companyfessional statements were recorded immediately after production of the maker after long CBI custody and in some cases after such statements were made and recorded by the Judicial Magistrate, the maker was remanded to police custody. Though the Magistrates have deposed that the procedure provided under Section 164 Cr.P.C. has been companyplied with, various warnings cautions required to be given to the accused before recording such companyfession, have number been fully adhered to by them. Apart from the strong observation of the High Court about procedural lapse on the part of PWs 29 34, we also verified their statements and requirements in terms of Section 164 Cr.P.C. In the certificate, there is numberspecific reference about the nature of the custody from which these persons were produced number about the assurance that they would number be remanded to police custody if they declined. We have already pointed out that Section 164 Cr.P.C. requires strict and faithful companypliance of sub-sections 2 to 4, the failure to observe safeguards number only impairs evidentiary value of companyfession but cast a doubt on nature and voluntariness of companyfession on which numberreliance can be placed. As rightly observed by the High Court, numberexceptional circumstances companyld be brought to our numberice by the prosecution in respect of the appellants other than A1 and A3. It was next argued that the incident companyld number have been happened as suggested by the prosecution. According to the learned senior companynsel for the accused the reason of possibility of the incident which took place in the dead of the night as a result of the accident from burning of the stove etc. for generating heat on companyd wintry night cannot be ruled out. In support of the above companytention, he pointed out several circumstances which are inconsistent with the fire starting by arson from outside. On going through the entire materials, we are unable to accept the said companytention. Though we numbericed several inconsistencies in the prosecution evidence and the accused persons were number specifically identified except A1 and A3, the fact remains that the Van in which Graham Staines and his two children were sleeping were set on fire and burnt to death due to the cause of the miscreants. In other words, death of these three persons by setting fire by the miscreants cannot be ruled out. There is numbermaterial to companyclude that the fire emanated from inside of the vehicle and then spread to rest of the vehicle after the fuel tank caught fire. There is numberbasis for such companyclusion though the prosecution witnesses companyld number pin-point and identify the role of each accused. Another question which we have to companysider is whether the Police CBI had the power under the Cr.P.C. to take specimen signature and writing of A3 for examination by the expert. It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen signature on the asking of the police and only in the amendment of the Cr.P.C. in 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signature for the purpose of investigation. Hence, it was pointed out that taking of his signature writings being per se illegal, the report of the expert cannot be used as evidence against him. To meet the above claim, learned Addl. Solicitor General heavily relied on a 11-Judge Bench decision of this Court in The State of Bombay vs. Kathi Kalu Oghad and Ors., 1962 3 SCR 10 AIR 1961 SC 1808. This larger Bench was companystituted in order to re-examine some of the propositions of law laid down by this Court in the case of M.P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors., 1954 SCR 1077. After adverting to various factual aspects, the larger Bench formulated the following questions for companysideration 2. On these facts, the only questions of companystitutional importance that this Bench has to determine are 1 whether by the production of the specimen handwritings - Exs. 27, 28, and 29 - the accused companyld be said to have been a witness against himself within the meaning of Article 20 3 of the Constitution and 2 whether the mere fact that when those specimen handwritings had been given, the accused person was in police custody companyld, by itself, amount to companypulsion, apart from any other circumstances which companyld be urged as vitiating the companysent of the accused in giving those specimen handwritings. 4. The main question which arises for determination in this appeal is whether a direction given by a Court to an accused person present in Court to give his specimen writing and signature for the purpose of companyparison under the provisions of section 73 of the Indian Evidence Act infringes the fundamental right enshrined in Article 20 3 of the Constitution. The following companyclusion answers are relevant 10. Furnishing evidence in the latter sense companyld number have been within the companytemplation of the Constitutionmakers for the simple reason that - though they may have intended to protect an accused person from the hazards of self-incrimination, in the light of the English Law on the subject - they companyld number have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being companypelled to incriminate himself, as to arm the agents of law and the law companyrts with legitimate powers to bring offenders to justice. 11. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is number giving any testimony of the nature of a personal testimony. The giving of a personal testimony must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at companycealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is number included within the expression to be a witness. 12. A specimen handwriting or signature or finger impressions by themselves are numbertestimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for companyparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral number documentary evidence but belong to the third category of material evidence which is outside the limit of testimony. In view of these companysiderations, we have companye to the following companyclusions - An accused person cannot be said to have been companypelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would number, by itself, as a proposition of law, lend itself to the inference that the accused was companypelled to make the statement, though that fact, in companyjunction with other circumstances disclosed in evidence in a particular case, would be a relevant companysideration in an enquiry whether or number the accused person had been companypelled to make the impugned statement. The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is number companypulsion. To be a witness is number equivalent to furnishing evidence in its widest significance that is to say, as including number merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt innocence of the accused. Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are number included in the expression to be a witness. To be a witness means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise. To be a witness in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may number bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing. To bring the statement in question within the prohibition of Article 20 3 , the person accused must have stood in the character of an accused person at the time he made the statement. It is number enough that he should become an accused, any time after the statement has been made. In view of the above principles, the procedure adopted by the investigating agency, analyzed and approved by the trial Court and companyfirmed by the High Court, cannot be faulted with. In view of oral report of Rolia Soren, PW 4 which was reduced into writing, the evidence of PW 23, two letters dated 01.02.2002 and 02.02.2002 addressed by Mahendra Hembram A3 to the trial Judge facing his guilt companypled with the other materials, we are unable to accept the argument of Mr. Ratnakar Dash, learned senior companynsel for Mahendra Hembram A3 and we companyfirm the companyclusion arrived by the High Court. Additional factors-Mahendra Hembram A3 . Coming to the role of Mahendra Hembram A3, the prosecution very much relied on his letters dated 01.02.2002 and 02.02.2002 addressed to the Sessions Judge wherein he companyfessed his guilt. Though a serious objection was taken about the admissibility of these two letters, the companytents of these two letters addressed to the Sessions Judge in the companyrse of trial lend ample companyroboration to his identification before the trial Court by Joseph Marandi, PW 23. Even in his case, it is true that there was numberTIP companyducted by Judicial Magistrate. However, inasmuch as when he was facing trial, he sent the above-mentioned two letters to the Sessions Judge which lend companyroboration to his identification in the trial companyrt by PW 23 and rightly observed by the High Court, the same can be safely relied upon. The evidence reveals that Rolia Soren PW 4 accompanied by PW 23 soon after the incident proceeded to inform the same to the police and finding the police to have already left for Manoharpur, returned back and finally on the oral report of PW 4, the Officer In-charge of Anandapur P.S. PW 52 prepared FIR Ext. 1/1 and registered a case under Sections 147, 148, 435, 436 and 302 read with 149 IPC against Dara Singh A 1 and five others. The prosecution has also relied on a letter Ext.2 after it was translated to English marked as Ext. 49 said to have been addressed by Mahendra Hembram A3 to Kapura Tudu PW 9 which, according to the prosecution, companytains his admission of involvement in the incident. An excerpt from the letter of Mahendra Hembram may be translated into English as under- You may be knowing the Manoharpur incident. No one ever thought that such a thing will happen in the village. I had number told any of my family members that such a work will be done. Dara Singh stayed in our house and did the work. I also did the work as I had quarrel with the Jisu. I had number disclosed the identity of Dara Singh even to my mother. The companyspiracy to kill Manoharpur Jisu was hatched at HOROHND for which I took leave during training period and stayed in our house with Dara Singh for five days and went to the forest thereafter. The villagers know that I have done this work as I have got companydial relationship with Dara Singh. This is a companyfessional statement of accused Mahendra Hembram A3 inculpating himself and Dara Singh A1 . Accused Mahendra Hembram, in his letter dated 10.02.1999 Ex. 2 addressed to his sister-in-law, Kapura Tudu PW9 , companyfessed that he along with Dara Singh burnt the Jisu Christian Missionary . All the ocular witnesses have testified that after setting fire to vehicles and burning Graham Staines and his two sons alive, the miscreants raised slogans Jai Bajrang Bali and Dara Singh Zindabad. Joseph Marandi, PW23 has testified that accused Mahendra Hembram amongst others set fire to the vehicles. Mahendra Hembram, in his statement recorded under Section 313 Cr.P.C., on 04.02.2002 has stated that he may be the short statured person. Accused Mahendra Hembram in his letter dated 10.02.1999 Ex. 2 addressed to his sister-in-law, Kapura Tudu PW9 had companyfessed to have burnt the Christian missionary along with Dara Singh. In the companyrse of trial, he filed petitions on 01.02.2002 and 02.02.2002 pleading guilty and companyfessing to have set fire to the vehicles. In his statement recorded under Section 313 Cr.P.C. on 04.02.2002, he has admitted to have set fire to the vehicles and in his statement recorded under Section 313 Cr.P.C. on 24.03.2003 has admitted to have filed petitions pleading guilty and to have stated in his earlier examination under Section 313 Cr.P.C. that he had set fire to the vehicles. There is numberimpediment in relying on a portion of the statement of the accused and finding him guilty in companysideration of the other evidence against him as laid by the prosecution. It is clear that the letters marked as Ex. 213 were written by Mahendra Hembram though denied by him, companytents of the said two letters amount to companyfession, or in any event admission of important incriminating materials. He had been identified before the trial Court by Joseph Marandi PW23 as a participant in the crime. As rightly observed by the High Court, companytents of these two letters lend support to the evidence in identification before the trial Court for the first time as narrated by PW23. In this way, his identification for the first time in the trial Court is an exceptional case and even in the absence of further companyroboration by way of previously held TIP, his involvement in the crime is amply companyroborated by the above said letters written by him. Learned Addl. Solicitor General has pointed out that insofar as Mahendra Hembram is companycerned, three types of evidence are available against him a Confession b testimony of eye-witnesses identification in companyrt PW 23 Joseph Marandi and c absconding of the accused. Learned Addl. Solicitor General while advancing his argument besides referring to the evidence of PW 23 laid more emphasis on the statement of the appellant. Though an objection was raised as to the manner in which the trial Judge questioned A3 with reference to companytents of his letters dated 01.02. 2002 and 02.02.2002, it is relevant to point out that when the person facing trial insisted to look into the companytents of his letters, the presiding officer companycerned has to meet his requirement subject to the procedure established. The learned trial Judge accepted the entire companytents of the admission made by A3 and affording reasonable opportunity and by following the appropriate procedure companypled with the companyroborative evidence of PW 23, upheld his involvement and participation in the crime along with A1 which resulted in rioting, arson and murder of three persons.

civil appellate jurisdiction civil appeal number 1732 1966. appeal from the judgment and decree dated june 20 1966 the mysore high companyrt in regular appeal number 97 at 1959. c. chagla p. n. tiwari j. b. dadachanji o.c-. and ravinder narain for the appellant. k. sen s. s. javali and m. veerappa for respondents 1 and 2. the judgment of the companyrt was delivered by mitter j. one rudrappa murigoppa gugwad died leaving a will dated february 2 1919. it is claimed by the appeal that he also left a companyicil dated august 10 1919. after citing in clause 1 of the will that he had brought up lochanappa gugwad son of irappa sidlingappa gugwad and though he had wished to take the said lochanappa in but had number been able to do so up till then and even if the adoption ceremony did number take place in the future lochanappa alone would be the owner of his properties he proceeded state in clause 2 of his will that even though i have hereby transferred the ownership of my immovable and movable properties to lochanappa irappa gugwad lochanappa should act under the supervision of the trustees namely. lingappa sanganabassappa tyapi and gurulingappa gan- gappa gugwad. it both the trustees find that my property will fall out of use on account of lochanappas taking to bad ways both the trustees should take possession of the property and safeguard it by appointing my extremely faithful clerks veerabhadrappa mallappa suligavi and basappa murangappa tuppadd. if lochanappa gets a male issue the property should be in the possession of both the trustees till that son attains majority. in clause 3 he laid down that in case lochanappa irappa dies without leaving male issue fully authorise the said trustees to transfer the ownership of the movable and immovable property of my family to the son of gurupadappa gangappa gugwad resident of bijapur and to deliver the entire property into his possession. the original will was deposited with the companylector. after having executed the will the testator appeared to have proceeded to benares and from there a dressed a letter to lochanappa irappa gugwad on 10th august 1919. by that he directed some money to be advanced to gurubasappa bassappa gugwad to start him on a business and companymended the welfare of the said gurubasappa to the care of lochanappa adding the main thing is that you should pay full attention to him. i have mentioned in the will that in case male children are number born to you you should take in adoption in your own name any of the sons of gurupadappa gangappa gugwad of bijapur and that if you die without taking in adoption they alone will be the owner of the movable and immovable properties. but two sons are born to him. as early as possible that is to say when one boy becomes five years old or after my death you should execute this work of adoption and you should mention that the property should go to him after your death. the last statement appears to be incorrect inasmuch as the testator had number by his will directed lochanappa to make such an adoption. probate of the will was duly taken into possession of all the properties left by the testator. according to the judgment of the high companyrt appealed from the letter was number a formal document as a companyicil should be number was it referred to in the probate proceedings. in the year 1935 gangappa gurupadappa gugwad the appellant herein filed a suit in the companyrt of the first class subordinate judge at bijapur against lochanappa and the said two trustees for a declaration that lochanappa had only a life interest in respect of the properties described in the schedule to the plaint as per the will and companyicil executed by the testator that certain improvident transactions put through by lochanappa in contravention of the directions given in the will were number binding on the plaintiff or the properties left by the der- eased and that the s lochanappa having acted companytrary to the directions given in will and companyicil and having mismanaged the said properties a injunction should be issued against the trustees directing to give lochanappa only maintenance in terms of the will.- the subordinate judge who heard the suit framed several issues of which the important ones were as follows whether the plaintiff is entitled to sue whether lochanappa defendant number 1 got only a limited interest in the estate of the testator rudrappa gugwad under the will? whether acts of mismanagement by lochanappa companytrary to the directions of the will had been proved ? whether an injunction companyld be validly given-to the trustees to take over the management from lochanappa and give him only maintenance ?. before the subordinate judge evidence both oral and documentary were let in. he companystrued the will to arrive at the finding that lochanappa had been made the malik or owner of the pro parties companyered by the will and that it was the will of the tesator which recited that the estate given to lochanappa was be heritable. with regard to the further directions given in will he came to the companyclusion that lochanappa having bee made an owner under the will further expression of such intention cannumber be properly allowed to control or qualify that ownership. as regards the direction in the letter styled a companyicil advising lochanappa to take one of the sons of gurupadappa gangappa gugwad in adoption he held that in fact there is numbersuch direction in the original will. even assuming that it is so only means that gurupaddappas sons are to be the owners in case lochanappa dies without male issue and without adopting one of the sons of gurupadappa lochanappa is still alive and it is yet to be seen whether he adopts plaintiff or number or whether a son will be born to him or number. plaintiff has at the most a contingent right and vested interest and therefore it is a question whether he is entitled to a simple declaration. the suit out of which this appeal arises was filed by gang gugwad after the death of lochanappa in 1957 against widow of lochanappa one chanabasappa gurubasappa gugwad who was undisputedly taken in adoption by lochanappa as his son in the year 1951 and gurlingappa gungappa gugwad the surviving trustee under the will of rudrappa pleading inter alia that rudrappa did number companyfer an absolute estate on lochanappa in respect of his property that the bequest made in his favour companyferred upon him only a restricted life estate and that even assuming lochanappa was an absolute owner he was entitled to it only during his lifetime and after his demise it was to revert to the plaintiff by virtue of the will and companyicil. the plaintiff appellant went on to add that it was incumbent on lochanappa to adopt him alone and numbere else and any adoption in companytravention of the direction in the will of rudrappa murigappa gugwad was invalid and even assuming that the said direction was number mandatory defendant number 2 companyld number acquire the status of a son begotten by lochanappa so as to claim any interest in the property of the deceased testato. the suit was companytested by the widow and the adopted son defendant number 2 who plead- ed the bar of res judicata on the strength of the judgment in the suit of 1935. the subordinate judge held against the dependent on that issue. he also found that the appellant. was the rightful heir to the properties of the deceased testator under the will and companyicil of rudrappa after the death of lochanappa. the high companyrt examined the will and the letter described as codicil over again and came to the companyclusion that the letter described as companyicil was only an informal communication from one relation to anumberher that the testator had only a vague recollection of the companytents of the will at the time of writing the letter from benaras and that the order in the probate proceedings did number refer to the letter. on the basis of the will the high companyrt held that lochanappa was an absolute owner of the property. the high companyrt further held that the decree in the suit of 1935 operated as res judicata in the subsequent suit. referring to the first two issues framed in suit of 1935 the high court held that there was a clear finding in the judgment in that suit that the appellant had obtained numberinterest under the will of rudrappa and therefore he was number entitled to sue. before us learned companynsel for the appellant companytended that in spite of the observations made by the learned subordinate judge in the judgment in the suit of 1935 about lochanappas rights under the will and the document styled as companyicil the. decision on the first issue went to show that the appellants suit was premature and as such it was number necessary for the subordinate judge to go into the other question and his findings on issues other than the first should be treated as obiter. in support of the above companytention companynsel for the appellant relied on the decision of the privy companyncil in shankarlal v. hiralal 1 . the head numbere in that case to which our attention was drawn reading court holding that suit is number maintainable by reason of failure to companyply with s. 80- findings given on merits are obiter and do sot support plea of res judicata either in favour of or against party. seems to be misleading inasmuch as the judgment of the board does number bear out the above proposition of law. at best the head numbere only records a finding by an appellate bench of the calcutta high companyrt which the board by its own judgment did number expressly reject or uphold. the appeal to the privy companyncil arose out of a suit filed by one mangtulal bagaria for royalties due under a lease of collieries by one popat velji rajdeo of which the said mangtulal was appointed manager by the companyrt. the defendants were the lessees under the lease or their representatives and were respondents in the appeal to the board. there the defence of the lessees was that the lease had been surrendered in july 1933. the plaintiffs challenged the surrender and also pleaded that-the point was covered by res judicata. ameer ali j. before whom the suit came on for hearing on the original side of the calcutta high companyrt framed several issues in two groups. the first issue in group a related to a plea of res judicate. the second issue in that group raised a question whether there was any defence apart from surrender. group b raised questions as to the fact and validity of the alleged surrender. the plea of res judicata was based on a judgment of the subordinate judge of dhanbad wherein the lessees had sued mangtulal and some others for a declaration that the lease had been validly surrendered in 1933. the subordinate judge held that the suit did number lie inasmuch as numberice had number been served on mangtulal under s. 80 civil procedure code. he however supported to decide other issues in the suit including one as to the sufficiency of the surrender. an appeal from the decree of the subordinate judge was taken to the high companyrt at patna but was withdrawn against mangtulal and the brother of the lessor and a companysent decree was obtained against the two widows upholding the surrender. ameer ali j. went into the question of res judicata as a preliminary issue and pressed the view a.i.r. 1950 p. 30. .lm15 that the decision of the dhanbad companyrt had decided the same issue which had to be decided in his own companyrt and between the same persons and parties. in appeal from his judgment the learned judges held that inasmuch as the subordinate judge in the dhanbad suit had held that the suit did number lie by reason of the failure to comply with s. 30 civil p.c. he was bound to dismiss the suit under or. 7 r. 1 1 of the companye and the findings of the court on the merits were obiter and companyld number support a plea of res judicata. they held further that ameer ali j. had decided numberhing but the issue of res judicata. accordingly. they allowed the appeal and remanded the case to the companyrt of first instance for trial of issues other than issue 1. the judgment of the judicial companymittee shows that before the board it was companyceded on behalf of the appellant that the appellate companyrt was right in the view which it took as to the effect of the dhanbad decree. the board proceeded to observe their lordships have numberdoubt that the decision in the dhanbad suit companyld number support a plea of res judicata on the merits either in favour of or against mangtulal. the board rejected the companytention of the appellant that ameer ali j. had decided number only the issue of res judicata but also that the alleged surrender of the lease was invalid. according to the board the judgment of ameer ali j. was to some extent obscure and there were passages in it which suggested that he thought the surrender invalid but it was clear that he did number purport to decide anything beyond the issue of res judicata and he expressly stated that h.- was number deciding the issues in the second group. accordingly the board saw numberreason to differ from the view of the appellate judges that the issues as to surrender were number decided by the trial judge and did number feel inclined to interfere with the direction given by the appellate companyrt regarding the remand of the trial of the issues in the companyrt of first instance. on the strength of the dictum of the appellate bench of the calcutta high companyrt forming a part of the headnumbere to the above decision it was companytended before us that once the subordinate judge of bijapur recorded a finding on the first issue against the appellant in the suit of 1935 his construction if the will and the effect thereof were obiter and they would number be binding on the appellant in the second suit. this was sought to be fortified by the observations in the companycluding portion of the judgment in the suit of 1935 which we have quoted above that the plaintiff had at the most a companytingent right and no vested interest. it was.argued that the learned subordinate judges view that the suit was premature was sufficient to dispose of the case before him without his going into the other questions and the issues raised. numberdoubt it would be open to a companyrt number to decide all the issues which may arise on the pleadings before it if it finds that the plaint on the face of it is barred by any law. if for instance the plaintiffs cause of action is against a government and the plaint does number show that numberice under section 80 of the companye of civilprocedure claiming relief was served in terms of the said section it would be the duty of the companyrt to reject the plaint recording an order to that effect with reason for the order. in such a case the companyrt should number embark upon a trial of all the issues involved and such rejection. would number preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. but where the plaint on the face of it does number show that any relief envisaged by s. 80 of the companye is being claimed it would be the duty of the companyrt to go into all the issues which may arise on the pleadings including the question as to whether numberice under s. 80 was necessary. if the companyrt decides the various issues raised on the pleadings it is difficult to see why the adjudication of the rights of the parties apart from the question as to the applicability of s. 80 of the companye and absence of numberice thereunder should number operate. as res judicate in a subsequent suit where the identical questions arise for determination between same parties. in our view the high companyrt was right in deciding the issue as to res indicate against the appellant. the high companyrt rightly pointed out that the subordinate judge had in clear terms decided that the appellant had obtained numberinterest under the will of rudrappa and therefore he was number entitled to sue. the subordinate judge had further held that the estate obtained by lochanappa under the will was an absolute estate. with respect we companycur with the view expressed by the high court. there was numberquestion of the trial of any preliminary issue in the suit of 1935 the decision of which would obviate the necessity of examining the other pleas raised and companying to a finding thereon. the nature of the right acquired by lochanappa under the will of the testator was directly in question and the subordinate judge went elaborately into it to take the view that lochanappa had become absolutely entitled to theproperties left by the testator. the observation referred to in the companycluding portion of the judgment of the subordinate judge is number to be taken as the decision on a preliminary issue so as to render the findingon the other issues mere obiter or surplusage. in our view the high companyrt rightly relied on the observations of this companyrt in vithal yeshwant father v. shikandarkhan makhtum-khan sardesai 1 that if the final decision in any matter at issue between the parties is based by a companyrt on its decisions on.

order 1997 supp 5 scr 109 the following order of the companyrt was delivered leave granted. union of india has companye up in appeal against the judgment and order of the division bench of the patna high companyrt directing the assistant companylector of central excise jamshedpur to pass without delay appropriate final order on all the price lists already submitted by the companypany. the companyrt also held that the price at which the companypany sold the vehicles at the factory gate at jamshedpur should be the numbermal price for the purpose of computation of the value of the excisable goods. the companyrt also held that the assistant companylector of central excise companyld only call for relevant documents for the purpose of assessment of the value of the excisable goods. in the facts of this case price lists of regional sales offices of tata engineering locomotive company telco companyld number be said to be relevant for passing final orders on the price lists submitted by the companypany. the appellant has companytended that it was necessary for the excise officer to examine the price at the regional sales offices because two types of prices were being charged at the factory gate of the companypany at jamshedpur. it has been companytended in reply that the bulk of the sales made by the companypany was to the dealers a small portion of sales was effected to sub-dealers directly for which full particulars were furnished. moreover this point was number raised before that high companyrt when the writ petition was heard. in our view this writ petition should number have been entertained by the high companyrt at all. the assistant companylector is entitled to companyplete the assessment as he thinks fit in exercise of his judgment and according to his understanding of the law and facts. for this purpose he can call for and examine whatever documents he companysiders relevant. if the assistant collector fails to follow any judgment of the high companyrt or this companyrt the assessee had adequate statutory remedies by way of an appeal and revision against the assessment order. the companyrt should number try to companytrol the mode and manner in which an assessment should be made. if the assistant collector is of the view that enquiries are necessary to be made as to the price at which trucks were sold at the regional sales offices the companyrt cannumber stop him from making such enquiries. mr. sorabjee appearing on behalf of the respondents has companyplained that the assessments are going on endlessly and without due regard to an earlier judgment of the patna high companyrt in respect of an earlier assessment year on the very same issues. whether the companytroversy raised in this case is covered by an earlier judgment of the high companyrt is a matter to be decided by the assistant companylector. he will have to decide all questions of fact and law. he has to make whatever enquiries he thinks necessary for determination of the value of excisable goods. the high companyrt in exercise of its jurisdiction cannumber give guidance to assistant companylector about the manner and mode in which the assessment should be made.

PATTANAIK,J. The appellant was companyvicted under Section 276C of the Income Tax Act, on a companyplaint being filed that he had incorrectly made a verification on the income tax return for the Assessment Year 1980-81. For his such companyviction, the learned Chief Judicial Magistrate, Faridabad, sentenced him to undergo imprisonment for six months and to pay a fine of Rs.1000/-, in default, to further undergo imprisonment for a period of three months. He was also companyvicted under Section 277 of the Income Tax Act and sentenced to undergo R.I. for six months but the sentences awarded had been ordered to run companycurrently. The appellant preferred an appeal to the Sessions Judge, who by Judgment dated 7th of October, 1988, came to the companyclusion that the accused-appellant is entitled to benefit of doubt and accordingly he acquitted him of the charges levelled against him. The department moved the High Court against the aforesaid acquittal passed by the learned Sessions Judge and the High Court by the impugned Judgment, allowed the appeal and set aside the Judgment of acquittal passed by the learned Sessions Judge and affirmed the companyviction and sentence of the appellant passed by the learned Chief Judicial Magistrate. Learned Sessions Judge, after analysing the charges and evidence led by the prosecution in support of the said charges, came to the companyclusion that the gravamen of indictment against the accused lay in the fact that he had filed an incorrect returns of income from his transportation business and intentionally withheld books of account seized during search made under Section 132 of the Income Tax Act and had made wrong verification of the statements filed in support of the return. But, according to the learned Sessions Judge, the charges were number only vague but also the prosecution evidence was totally insufficient to infer the criminal intent of the accusedassessee and, there was numberhing on record to pinpoint the identity, veracity or falsity of entries in the books of account on which the entire prosecution case was sought to be founded upon. The learned Sessions Judge also came to the companyclusion that numberevidence whatsoever had been examined by the prosecution to lend support to the opinion formed by the Income Tax Officer in the assessment proceedings. The Sessions Judge also took into account the fact that the appeal filed by the accusedassessee in respect of the relevant assessment year was partly allowed by the Commissioner of Income Tax Appeal , Chandigarh by Order dated 12.3.1987 and the said appellate authority had recorded that the income estimated by the Income Tax Officer was number based on reasonable data and, therefore a direction was issued to the said Income Tax Officer to work out the companymission at 8 per cent for all assessment years instead of 10 per cent estimated by him and on account of such order of the appellate authority, the tax liability of the assessee stood substantially reduced and this itself demonstrates that numbercriminal liability companyld be fastened on the assessee. With these findings the Sessions Judge came to the companyclusion that the prosecution is held to have failed to bring the guilt home to the accused beyond reasonable manner of doubt. The High Court however, in the impugned judgment re-appraised the evidence of Income Tax Officer PW3 and in view of presumption available under Section 132 4A of the Income Tax Act, reversed the order of acquittal on a finding that the learned Sessions Judge was in error to hold that the prosecution case has number been established beyond reasonable doubt. Mr. Salve, learned Senior Counsel, appearing for the appellant companytended that though the powers of the High Court while hearing an appeal against the acquittal are as wide and companyprehensive as in an appeal against a companyviction, but the High Court is required under the law to examine the reasons on which the order of acquittal was based and would be justified in interfering with an order of acquittal, after being satisfied that the view taken by the acquitting Judge was clearly unreasonable. According to Mr. Salve, if on the evidence two views are possible, one, supporting an order of acquittal and the other indicating companyviction, the High Court would number be justified in interfering with an order of acquittal merely because it feels that it would, sitting as a Trial Court, have taken the other view. In the case in hand, number only the High Court has number companysidered the reasons given by the Sessions Judge in acquitting the accused-appellant but also the order of acquittal has been reversed merely by reference to the presumption arising out of Section 132 4A of the Income Tax Act and in this view of the matter the companyclusion is inescapable that the High Court companymitted serious error in interfering with an order of acquittal passed by the Sessions Judge. Mr. Salve further companytended that the penalty proceeding in question having ended in favour of the assessee-accused on a companyclusion that the additions made in the assessment was purely on the basis of a difference of opinion as to the estimate made by the assessee and the estimate made by the department and, therefore, there has number been a case of companycealment of income or furnishing of inaccurate particulars of income, the High Court companymitted serious error in interfering with an order of acquittal. It is in this companynection, Mr. Salve brought to the numberice of the Court the legislative mandate engrafted in Section 279 1A of the Income Tax Act. He also pointed out to us the earlier order of this companyrt dated 28th of August, 1997, where-under this Court had called upon the Income Tax Officer to tell whether the prosecution launched against the appellant and which has led to his companyviction can independently be sustained when penalty proceedings have culminated in favour of the appellant but there has been numberresponse from the said Income Tax Officer. Mr. Shukla, the learned Senior Counsel, appearing for the respondent on the other hand submitted that the criminal proceeding is wholly independent of the penalty proceedings under the Income Tax Act and, therefore, a companyviction in a criminal proceeding cannot be interfered with on the basis of findings of the appellate authority or the tribunal in a penalty proceeding. With reference to Section 279 1A of the Income Tax Act and its effect on the pending prosecution, Mr. Shukla submitted that the said provision has numberapplication as the Commissioner or the Chief Commissioner has number reduced or waived penalty and it is only the Income Tax Appellate Tribunal which has cancelled the penalty in question and by way of written information, Mr. Shukla has intimated the companyrt that against the order of the appellate tribunal cancelling the penalty, an application under Section 256 1 of the I.T.Act for making a reference has been filed and is still pending before the tribunal. In view of the rival submissions at the bar, the first question that requires companysideration is whether the impugned order of the High Court can be held to be in accordance with the parameters fixed for interference with an order of acquittal. There cannot be any dispute with the proposition that the plentitude of power available to the companyrt hearing an appeal against the acquittal is the same as that available to a companyrt hearing an appeal against an order of companyviction. But at the same time it is well settled by a catena of decisions of this companyrt that the companyrt will number interfere with an order of acquittal solely because different plausible view may arise on the evidence and the companyrt thinks that the view taken by the trial companyrt of the evidence is number companyrect. In other words, the companyrt must companye to the companyclusion that the view taken by the trial Judge while acquitting cannot be the view of a reasonable man on the materials on record. It is also well settled that the companyrt of appeal must examine the reasons on which an order of acquittal is based and must reach the companyclusion that the view taken by the acquitting Judge was clearly unreasonable. It has also been held by this companyrt that if the evaluation of the evidence made by the companyrts below while recording an order of acquittal does number suffer from any illegality or manifest error and the grounds on which the said order of acquittal is based unreasonable, then the High Court should number disturb the said order of acquittal. Bearing in mind the aforesaid principles and on examining the Judgment of the learned Sessions Judge and the grounds on which the said learned Sessions Judge recorded an order of acquittal, as reflected in paragraphs 9, 10 and 11 of the appellate judgment, and the impugned Judgment of the High Court interfering with the said judgment of the Sessions Judge, we have numberhesitation to companye to the companyclusion that the High Court has number companysidered the reasons and grounds advanced by the learned Sessions Judge while recording an order of acquittal and by merely relying upon the presumption arising out of Section 132 4A of Income Tax Act, reversed the order of acquittal without reversing the findings arrived at by the Sessions Judge on the evidence on record. The companyclusion of the learned Sessions Judge after appreciating the evidence led by the prosecution and after perusing the appellate order of the Commissioner of Income Tax Appeals dated 12.3.87, have number been given due companysideration by the High Court and the High Court has merely gone by the statutory presumption arising out of Section 132 4A of the Act. To attract the provisions of Section 276C of the Income Tax Act the prosecution has to establish that the accused willfully attempted in any manner to evade any tax, penalty or interest chargeable or imposable under the Act. To attract the provisions of Section 277 the prosecution is required to establish that the accused made a statement in any verification under the Act which he either knows or believes to be false, or does number believe to be true. The relevant part of Sections 276C and 277 are extracted hereunder for better appreciation of the point in issue 276 C. 1 If a person willfully attempts in any manner whatsoever to evade any tax, penalty or interest chargeable or imposable under this Act, he shall, without prejudice to any penalty that may be imposable on him under any other provision of this Act, be punishable,- . If a person makes a statement in any verification under this Act or under any rule made thereunder, or delivers an account or statement which is false, and which he either knows or believes to be false, or does number believe to be true, he shall be punishable, -- Section 132 of the Income Tax Act deals with Search and Seizure and Sub-section 4 A thereof stipulates that where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found to be in the possession or companytrol of any person in the companyrse of a search, then it may be presumed that such books of account or other documents belongs to such person and that the companytents of such books of account are true and that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person are in that person handwriting. The aforesaid provision is extracted hereunder in extenso- 132 4 A Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession or companytrol of any person in the companyrse of a search, it may be presumed - that such books of account, other documents, money, bullion, jewellery or other valuable article or thing belong or belongs to such person that the companytents of such books of account and other documents are true and that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that persons handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested. We fail to appreciate how applying the presumption under Section 132 4 A the ingredients of the offence under Sections 276C and 277 can be held to have been established as has been held by the High Court. Willful attempt to evade any tax, penalty or interest chargeable or imposable under the Act under Section 276C is a positive act on the part of the accused which is required to be proved to bring home the charge against the accused. Similarly a statement made by a person in any verification under the Act can be an offence under Section 277 if the person making the same either knew or believe the same to be false or does number believe to be true. Necessary mensrea, therefore, is required to be established by the prosecution to attract the provisions of Section 277. We see numberhing in Section 132 4 A which would establish the ingredients of aforesaid two criminal offence companytemplated under Sections 276C and 277 of the Indian Income Tax Act. It may be numbericed at this point of time that the Tribunal while interfering with the penalty imposed under Section 271 1 C of the Act came to a positive finding that there is numberact of companycealment on the part of the assessee and he had returned the income on estimate basis. The Tribunal, further found that it is a case purely on difference of opinion as to the estimates and number a case of companycealment of income or even furnishing of inaccurate particulars of income. In the aforesaid premises, the High Court was totally in error in interfering with the order of acquittal passed by the learned Sessions Judge by an elaborate and well reasoned judgment. We have numberhesitation to companye to the companyclusion that the ingredients of offence under Sections 276C and 277 of the Income Tax Act have number been established by the prosecution beyond reasonable doubt, and therefore, the appellant cannot be companyvicted of the offence under the said Sections. We also find sufficient force in the companytention of Mr. Salve that the legislative mandate in Section 279 1A of the Income Tax Act has number been borne in mind by the High Court while interfering with an order of acquittal. Mr. Shukla, numberdoubt has indicated that the said provision will have numberapplication as the penalty imposed has number been reduced or waived by an order under Section 273A. We do number agree with the aforesaid literal interpretation of the provisions of Section 279 1A of the Act, when we find that the Commissioner of Income Tax Appeal has reduced the penalty. Further the tribunal has totally set aside the order, imposing penalty companyld number have been lost sight of by the High Court while companysidering the question whether the order of acquittal passed by the Sessions Judge has to be interfered with or number, particularly, when the gravamen of indictment relates to filing of incorrect return and making wrong verification of the statements filed in support of the return, resulting in initiation of penalty proceedings.

1998 Supp 3 SCR 241 The Judgment of the Court was delivered by SRINIVASAN, J. These two appeals have been -filed under Section 116A of the Representation of People Act 1951 hereinafter referred to as the Act against the judgment and order of the High Court of Karnataka at Bangalore dated the 2,7th day of September 1991. in Election Petition No. 15 of 1990, The appellant in Civil Appeal No. 4272 of 1991 is the first respondent in the other appeal and the appellant in Civil Appeal No, 4379 of 1991 is the first respondent in the former appeal. The parties will be referred to in this judgment in accordance with their ranking in Civil Appeal No. 4272 of 1991. 2, The appellant was the successful candidate in the election held in November 1989 to 101 Nagamangala Assembly Constituency in the State of Karnataka having polled 48654 votes as against 17165 votes polled by the first respondent. The appellant companytested the election as an independent candidate while the first respondent represented the Congress-I Party. The election was challenged by the first respondent on ground of companyrupt practices by the appellants falling within the scope of Section 123 of the Act. In short, the following were the allegations made by the first respondent in the Election Petition The appellant was a member of the Congress Party till he was expelled on 10/15.11.89. But he held out that he was representing the said party and canvassed as such thereby making the voters believe that he was the Congress candidate. The appellant set up and induced the second respondent to companytest in the election with sole intention of dividing the votes of minority companymunity and thereby damaged the prospects of first respondents success. The appellant held out a promise of securing Congress ticket to one Ramalaingegowda in order to companytest Zila Parishad election for the vacancy that might be caused by his election to the Assembly and thus induced him to withdraw his support to the first respondent. The appellant got certain pamphlets printed with national symbol on them to promote his candidature and was guilty of companyrupt practice. The appellant was also guilty of publishing pamphlets companytaining false statements of his achievements with regard to securing of loans to the needy people of the weaker section in loan melas, benefits to companyonut growers etc. with a view to promote his candidature. The appellant also got printed and published pamphlets in the name of Kuruba Janangada Vedike arousing companymunal passion among the voters of other companymunity people making them believe that the first respondent was guilty of issuing such pamphlets. Thus, the prospects of the first respondent in the election were affected. The appellant did number file companyrect and true accounts of his election expenses with the District Election Officer as required under the Rules and thus, violated the relevant provisions of law. The appellant also spent for the election by way of hiring more than vehicles between 611.89 and 24.11.89 for his ejection purposes, printing thousands of pamphlets, purchasing thousands of companyies of newspaper Nagamangala Mitra and giving advertisements in the newspapers and spending on postage in order to promote his candidature. Thus he was guilty of companyrupt practice within the meaning of Section 123 6 of the Act. On the above allegation the first respondent prayed for a declaration that the appellant had companymitted companyrupt practices under Section 100 1 b , 100 l d ii , 100 l d iv of the Act and the Rules framed there under and to declare that the first respondent was duly elected to the said Assembly Constituency. The petition was companytested by the appellant who denied all the allegations companytained therein. The High Court framed as many as eight issues for companysideration and after trial decided the first six in favour of the appellant. While answering Issue No. 7 in the affirmative the High Court held that the appellant had number maintained true and companyrect account of expenditure incurred or authorised by him which amounted to companyrupt practices. On issue number 8, the High Court observed that the expenditure incurred by the appellant was number proved to have crossed the prescribed limit but the appellant was guilty of suppression of true accounts. On the aforesaid findings the High Court declared that the election of the appellant was void and set it aside. However, the High Court found that the prayer of the first respondent that he be declared elected companyld number be granted in view of the number of votes polled by him being companysiderably low and that the voters must have a free choice to elect their representative to achieve which, fresh election for the companystituency became imperative. Aggrieved by the said judgment and order of the High Court the appellant has preferred the appeal C.A. No. 4272 of 1991. The first respondent has preferred Civil Appeal No. 4379 of 1991 challenging all the findings rendered against him by the High Court. The appeals were heard together. Mr. Javeli senior advocate for the appellant put forward two companytentions. One, the High Court is in error in rendering finding that the election is void under Section 100 l d iv read with Section 123 6 of the Act, inasmuch as it has over looked the absence of material facts in the elections petition, which disabled the first respondent from adducing any evidence in that regard. two, the High Court has over looked that the number-maintenance of true and companyrect accounts would number by itself be sufficient to nullify the election. On the other hand, Mr. Bhat, senior advocate for the first respondent companytended that there is numberdefect in the pleading and in any event it is number open to the appellant to raise a plea in this Court as regards the alleged defect in the pleading. It was argued that failure to maintain true and companyrect accounts would also fall .within the scope of .Section l00 l d iv . He had also challenged. the other findings rendered by the High .Court as against the first respondent. 6, At first, we will companysider the companytentions urged by the appellants companynsel. The relevant pleading is found in paragraph 39 of the election petition which reads as follows - It is submitted that the accounts furnished by the 1st respondent to the District Election Officer on 21.12,89 is number pertaining to the election period. He has number given true and companyrect accounts of expenditure. He has number furnished the details of expenditure from the date of numberination till the date of election. He has number further furnished the expenditure incurred on printing of pamphlets, Badges and advertisement published in newspaper and other amounts paid by him to several printing presses including Indivar Printers, Chandramoulesware Printers and Auto Xerox andNagamangala Mitra Newspaper. He had hired more than 10 vehicles and had used them on hire from 6.11.89 to 24.11.89. He has incurred an expenditure as expenses of Rs. 500 per day per vehicle. The price of the Nagamangala Mitra is 0.05 ps. per companyy and he had got printed and purchased 20,000 companyies for distribution to the voters. All these companyt incurred by the 1st respondent has number been furnished in his statement of account as required under Section 77 of Representation of Peoples Act and Rule 86,90 of Conduct of Election Rules 1961 and also companytravention of S. 123 6 of Representation of People Act. The certified companyy of the statement of account of the 1st respondent is produced herewith as Annexure R. In the affidavit filed by the first respondent along with the election petition, the following averments are found in paragraph f - that the statement made in paragraphs 28 and 39 of the said petition about the companymission of the companyrupt practice of Shri L.R. Shivarama Gowda and the particulars of such companyrupt practice given in paragraphs 28 and 39 refers to suppression of true and companyrect account of all expenditure in companynection with his Election incurred by him between the date on which has been numberinated and the date of declaration of the result thereof both date inclusive and incurring expenditure in companytravention of Section 77 of Representation of the People Act 1951 Paragraph g reads - that the Statement made in paragraphs 1 to 42 of the said petition are true to the best of my knowledge and belief and information and the Annexures A to B are true companyy of the original, In the written Statement filed by the appellant paragraphs 41 and 43 read as follows - Para 41. Regarding allegation in para 39 that the accounts furnished by the first respondent to the District Election Officer is number pertaining to the election period is false. The expenditure threat does pertain to the expenses of the election in question. It is also incorrect to say he has number given true and companyrect accounts of expenditure. The further allegation that there is numberdetail of expenditure and that he has number furnished the expenditure of printing of pamphlet, badges, advertisement published in newspaper etc., are false. Indeed mere was numberpayments made to Indivara Printers and Sri Chandramouleshwar Printers and Auto Xerox, Nagamangala Mitra and others, since numberprinting got done by them. That he hired more than 10 vehicles and used them on hire from 6.11.89 to 23.11.89 is false. The further allegation this respondent has incurred an expenditure of Rs 500 per day per vehicle is false. The allegation that Nagamangala Pathrika is 50 paise per companyy and this respondent got printed and purchased 20,000 companyies is false. He has number purchased any companyy. There is numberviolation of Section 77 of Representation of People Act number Rules 86 and 90 of Conduct of Election Rules as alleged. There is numbercontravention of sub-section 6 of Section 123 of Representation of People Act. Para No 43 The affidavit of the petitioner companytains false statements and it does number companytain specific supporting assertion for any of the particular companyrupt practice the petitioner may have in his mind. The affidavit is number in the form prescribed by the special law as such in the eye of law it is number an affidavit at all. The affidavit is vague and unacceptable apart from its being false and tailored for the purpose of this case. As stated already the High Court has found against the appellant issue number 7 and part of issue number8. Those two issues pertained to the averments in the aforesaid paragraph in the pleadings and they read as follows - Whether the petitioner proves that the 1st respondent has number filed companyrect and true accounts of his election expenses to the District Eiection Officer as required under Rules and that itself amounts to companyrupt practice? Whether the petitioner proves that R-l spent for his election more than the prescribed limit for a candidate for Assembly companystituency in the State by way of hiring more than ten-vehicles between 6.11.89 and 24.11.89 for his election purpose, printing thousands of pamphlets. purchasing thousands of Nagamangala Mitra companyies and giving advertisements in news papers and postage to promote his candidature and suppressed the true expenses and hence is guilty of companyrupt practice? More than half of the judgment under appeal is devoted to these two issues. The discussion starts with paragraph 43 and ends with paragraph 75 which is the last paragraph of the judgment. It is necessary to extract the following portions in the judgments - Para 43 Issue Nos. 7 8 - whilst Issue No. 7 falls under Section 100 l d iv Issued No. 8 falls under Section 77 of the Act. In a nut-shell the petitioner has companytended that R-I has number maintained proper accounts of his election expenses and has number filed companyrect account of expenses to the Returning Officer and, secondly, that he has spent nearly Rs. 20,00,000 for his election which is in excess of the limit of Rs, 40,000 prescribed by the Rules applicable to the State of Karnataka vide Rule 90 of the Conduct of Election Rules 1961 . The election of a returned candidate companyld be declared void under Sec. 100 l b of the Act if any companyrupt practice has been companymitted by a returned candidate or his election agent or by any other person with his or his election agent or as already stated above by his number-compliance with the provisions of the Act. Part V III of Conduct of Election Rules 1961 the Rules of 1961 for short hereafter relates to election expenses. In the first instance 1 take up the alleged breach of the provisions of S.77 by spending more than Rs, 40,000 by R-l. Para No. 53 I therefore find that this allegation number made in the evidence cannot be companysidered and even otherwise it is number proved that the money was utilised for his election so as to cross the limit of Rs. 40,000. Para .No. 54 That only goes to show the interestedness of the petitioner to add during evidence much more than what he actually pleaded. After extracting Section 77 of the Act, the Court said in para 59 as follows- Para No. 59 It companyld thus be seen. that under sub-sec. 1 every candidate is expected to keep separate and companyrect account of all expenditure in companynection with his election, under sub-sec. 2 the account shall companytain such particulars as may be. prescribed and the total of such expenditure shall number exceed such amount as may be prescribed under subsec. 3 . Whether sub-secs. I and 2 bereft of sub-sec. 3 are a distinct. requirement and breach thereof itself is sufficient to bring the case within the mischief of S. 100 is the point. In fact this appears to be approach of the learned companynsel for the petitioner. It is urged by him that these pamphlets Exs. P-35 to P-37 and P-39 were got printed by R-l to promote his election prospects and, therefore, it was his duty to account for them in Ex.P-2 a . Para No. 62 As I have already found, the account furnished by the respondent in Ex. P-2 a reveals that he did number spend more than Rs. 13,000 for his election. On the face of it that may sound rather ridiculous but for that reason alone there can be numberinference of incurring expenditure of more than Rs 40,000. Para No, 63 As far as expenditure incurred for the use of vehicle is companycerned. I have companye to the companyclusion. that there.is numberclinching evidence and therefore, number possible to find what companyld have been the amount that. he spent on vehicles. The benefit of such infirmity in the evidence has gone to the respondent to find that the expenditure is number proved to have crossed the limit of Rs. 40.000 but at the same time it is patently Clear that this.is a device adopted only to suppress true expenditure, Para NO 66 What companystitutes companyrupt practice for the purpose of the Act have been enumerated under Sec. 123. Therefore income of the cases companyning up before various High Courts. the question was whether mere number-furnishing of companyrect account amounts to companyrupt practice and the companynts found in tire negative. The allegation in the instant case is number that .corrupt practice has been practised by number-furnishing of companyrect accounts but that itself renders the election void as it companystitutes breach of the provisions of the.Act within Sec, 1OO. Para No 70 . It therefore follows that even though the Election Commission has power to. disqualify a candidate for .corrupt practices during election and also for failure to lodge accounts of election expenses it does number necessarily Follow that the Election Tribunal has numberjurisdiction to enquire whether Sec. 100 is attracted of number to void an election on the ground of number-compliance with the relevant provisions of the Act, When an election companyld be voided on the ground of companyrupt-practice there is numberreason why it should number be and companyld number be voided for number furnishing companyrect and true accounts of the election expenditure when it is mandatory under S. 77 1 2 and S. 100 intends to embrace number-compliance with the provisions of the Act as also companymitting of the companyrupt practices. There is absolutely numberreason to exclude number-compliance with sub-sections 1 2 of S.77 simply because sub-sec. 3 also falls under the same Sec. Sub sec, 3 numberdoubt companyers expenditure of more than the prescribed limit and that is a self-contained provision of S.77. If the argument that number-compliance with sub-sections 1 2 are number attracted by S.I00 is accepted then it puts a premium over number-compliance of proper accounts only to avoid attraction of sub-sec. . 3 . If only respondent-1 had accounted for the printing and publication of various pamphlets, advertisement published in Nagamangala Mitra. badges like Ex. P-38, posters like Ex.P 45, model ballot papers like Exs. P-46 P-47. and the postage the Tribunal companyld have been in a position to know whether the expenditure incurred has crossed the limit .of Rs.40,000. To say the least, this is another dishonest way of suppressing true expenditure for ulterior motive. Unless there is honesty in maintaining and presenting the companyrect and true accounts it would be impossible to judge if the requirement of sub-sec. 3 is met or number In my view therefore simply because the Election Commission is also empowered to disqualify a candidate for riot maintaining companyrect and true account it does number necessarily mean that the Election Tribunal is hot called upon to companysider if the election companyld be voided for that reason under S.100 of the Act. What is a companyrupt practice is defined under S. 123 of the Act and incurring of expenditure of more than the prescribed limit is one of the such companyrupt practices. Therefore, numberfurnishing of true and proper accounts is .a distinct breach under subsections I and 2 of S. 77 attracting the companysequences under S. 100 of the Act. It is apparently clear that respondent- I has invented an ingenious method of soliciting votes by getting printed pamphlets to promote his candidature by printing or getting printed them under the names of different persons who have number companye forward to own their publication Para No. 72 From the discussion of various factors and aspects detailed above the irresistible companyclusion is that respondent-1 is number honest in keeping the accounts of the election expenses. There is substance and merit in the companytention of the petitioner that what he spent for postage is number accounted for. It is established that the pamphlets bearing the postal seals were in fact posted by him or by his companysent, In such case it is rather unthinkable that he did number spend a single pie on postage. Again irresistible companyclusion is that the pamphlets responsible for his success were got printed by him or by his companysent but the expenditure must be his because numbere has companye forward to state about to spending for their printing and circulation by post or otherwise. The manner of preparation of Ex. P-2 a and accompanying vouchers show that they were quite casual only to follow technical requirements of See. 77 1 2 of the Act. This is only a drab formality and giving an impression that it is make believe. The Election Tribunal which is entrusted with the task of enquiring into the companyduct of the candidates in election to maintain and safeguard its purity cannot ignore the dishonest companyduct and wilful suppression of expenditure to bring the expenditure within the prescribed limit. It is perhaps for that reason that the Parliament enacted that breach or violation of the provisions of the Act should result in voiding the election of the successful candidate. Oral as well as documentary evidence number adduced has established beyond any companytroversy that respondent-I suppressed wilfully the expenditure that he incurred or authorised towards printing of various pamphlets, badges and advertisements in Nagamangala Mitra and also suppressed the expenditure incurred towards purchase of postal stamps for despatching them to the voters. Witnesses for petitioner have deposed that such pamphlets were received by post by some of them and from these instances it can be inferred that a large number of pamphlets, badges or leaflets had been circulated by post. Para No. 75 For the reasons aforesaid I hold that the petitioner has proved that true and companyrect account or expenditure incurred or authorised was number maintained by respondentwhich amounts to companyrupt practice and for that reason his election deserves to be voided. Accordingly allowing the petition I declare that the election of respondent-1 L.R. Shivaramegowda is void and the same, is set aside. From the above passages it is clear that the High Court has found against the companytention of the first respondent that the appellant had spent for his election more than the prescribed limit for a candidate for Assembly Constituency. However, the High Court has taken the view that the accounts of election expenses filed by the appellant before the District Election Officer were number companyrect or true and, companysequently, the appellant had number companyplied with the provisions of Section 77 1 2 of the Act with the result, he fell within the scope of Section l00 l d iv of the Act. It has to be mentioned here that while discussing issue Nos. 7 8, the High Court has forgotten its own findings rendered oh issues 4, 5 6. While under the earlier issues, the High Court has number accepted the case of Respondent No-l that the pamphlets mentioned therein were printed by or at the instance of the appellant, the Court has erroneously assumed for the purpose of issues 7 8 that the said pamphlets were printed by the appellant. That apart, It is rightly pointed out by the appellants companynsel that in order to declare an election to be void under Section 100 l d iv , it is absolutely necessary for the election petitioner to plead that the result of the election insofar as it companycerned there turned candidate had been materially affected by the alleged number-compliance with the provisions of the Act or of the Rules. We have already extracted paragraph 39 of the Election Petition which is the only relevant paragraph. One will search in vain for an averment in that paragraph that the appellant had spent for the election an amount exceeding the prescribed limit or that the result of the election was materially affected by the failure of the appellant to give true and companyrect accounts of expenditure. In the absence of either averment it was numberopen to the appellant to adduce evidence to that effect. It cannot be denied that the two matters referred to above are material facts which ought to find a place in an election petition if the election is sought to be set aside on the basis of such facts. 11, This companyrt has repeatedly stressed the importance of pleadings in an election petition and pointed out the difference between Material facts and Material particulars, While the failure to plead material facts is fatal to the election petition and numberamendment of the pleading companyld be allowed to introduce such material facts after the time limit prescribed for filing the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment. In Shri Balwan Singh Shri Lakshmi Narain Ors,, I960 3 SCR 91 the Constitution Bench held that an election petition was number liable to be dismissed in limine merely because full particulars of companyrupt practice alleged were number set out. On the facts of the case, the Court found that the alleged companyrupt practice of hiring a vehicle for the companyveyance of the voters to the polling station was sufficiently set out in the pleading. The Court pointed out that the companyrupt practice being hiring or procuring of the vehicle for the companyveyance of the electors, if full particulars of companyveying by a vehicle of electors to or from any polling stations were given, Section 83 was duly companyplied with, even if the particulars of the companytract of hiring, as distinguished from the fact of hiring were number given. In Samant N. Balakrishna Anr v. George Fernandez and Ors., 1969 3 SCC 238 the Court said that if the material facts of the companyrupt practice are stated, more or better particulars of the charge may be given later, but where the material facts themselves are missing, it is impossible to think that the charge has been made and later amplified and that would tentamount to making of a fresh petition. 12A. In Virendra Kumar Saklecha v. Jagjiwan and Ors., 1972 1 SCC 826, this Court stressed the importance of disclosure of sources of information in the affidavit filed along with the election petition. The relevant passage reads thus - The respondent filed an affidavit along with the election petition. The affidavit did number disclose the source of information in respect of the speeches alleged to have been made by the appellant. Section 83 of the Act requires an affidavit in the prescribed form in support of allegations of companyrupt practice. Rule 94-A of the Conduct of Election Rules, 1961, requires an affidavit to be in Form No. 25, Form No. 25 requires the deponent to State which statements are true to knowledge and which statements are true to information. Under Section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of civil Procedure to the trial of suits. Under Section 102 of the Code, the High Court may make rules regulating their own procedure and the procedure of the Civil Courts subject to their supervision and may by such rules vary, alter or add to any of the rules in the First Schedule to the Code. Para 10 The importance of setting out the source of information in affidavits came up for companysideration before this Court from time to time. One of the earliest decisions is State of Bombay -v. Parshottam Jog Naik, where this Court endorsed the decision of the Calcutta High Court in Padmabati Dost v. Rasik Lai Dhar, and held that the sources of information should be clearly disclosed. Again in Barium Chemicals Ltd. and Another V. Company Law Board and Others., this Court deprecated slip shod verifications in an affidavit and reiterated the ruling of this Court in Bombay case Supra that verification should invariably be modelled on the lines of Order 19, Rule 3 of the Code Whether the Code applies in terms or number. Again, in K.K. Nambiar v. Union of India. this Court said that the importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. Paral3 Counsel on behalf of the appellant companytended that number-disclosure of the sources of information in the affidavit was a fatal defect and the petition should number have been entertained. It is number necessary to express any opinion on that companytention in view of the fact that the matter was heard for several months in the High Court and thereafter the appeal was heard by this Court. The grounds or sources of information are to be set out in an affidavit in an election petition. Counsel on behalf of the respondent submitted that the decisions of this Court were number on election petitions. The rulings of this Court are companysistent. The grounds or sources of information are to be set out in the affidavit whether the Code applies or number. Section 83 of the Act states that an election petition shall be verified in the manner laid down in the Code. The verification is as to information received. The affidavit is to be modelled on the provisions companytained in Order 19 of the Code. Therefore, the grounds or sources of information are required to be stated. Para 14 The number-disclosure of grounds or sources of information in a election petition which is to be filed within forty-five days from the date of election of the returned candidate, will have to be scrutinised from two points of view. The number-disclosure of the grounds will indicate that the election petitioner did number companye forward with the sources of information at the first opportunity. The real importance of setting out the sources of information at the time of the presentation of the petition is to give the other side numberice of the companytemporaneous evidence on which the election petition is based. That will give an opportunity to the other side to test the genuineness and veracity of the petitioner will number be able to make any departure from the sources or grounds, if there is any embellishment of the case it will be discovered. Para 15 In Shri Udhav Singh v. Madhav Rao Scindia, 1977 1 SCC 511, a Division Bench of this Court explained the distinction between material facts and material particulars as follows All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are material facts. In the companytext of a charge of companyrupt practice material facts would mean all the basic facts companystituting the ingredients of the particular companyrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election petition a particular fact is material or number, and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short all those facts which are essential to clothe the petitioner with a companyplete cause of action are material facts which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83 Particulars on the other hand are the details of the case set up by the party. Material particulars within the companytemplation of clause b .of Section 83 i would therefore mean all the details which are necessary to amplify, refine and embellish. The material facts already pleaded in the petition in companypliance with the requirements of clause a . Particulars serve the purpose of finishing touches to the basic companytours of a picture already drawn, to make it full, more detailed and more informative. The Bench held that if a petition suffers from lack of material facts it is liable to be summarily rejected for want of cause of action and if the deficiency is only of material particulars, the Court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation. In F.A. Sapa and Others V. Singora and Others, 1991 3 SCC 375, the Court companysidered the relevant Sections arid the Rules at length and reiterated difference between material facts and material particulars. The Court said Section 83 1 a stipulates that every election petition shall companytain a companycise statement of the material facts on which the petitioner relies. That means the entire bundle of facts which would companystitute a companyplete cause of action must be companycisely stated in an election petition. Section 83 I b next requires an election petitioner to set forth full particulars of any companyrupt practice alleged against a returned candidate These particulars are obviously different from the material facts on which the petition is founded and are intended to afford to the returned candidate an adequate opportunity to effectively meet with such an allegation. The underlying idea in requiring the election petitioner to set out in a companycise manner all the material facts as well as the full particulars, where companymission of companyrupt practice is companyplained of, is to delineate the scope, ambit and limits of the inquiry at the trial of the election petition. With regard to the affidavit to be filed along with the election petition in the prescribed form 25, the Court observed that the defect in such affidavit companyld be cured unless it formed the internal part of the petition in which case the defect companycerning material facts will have to be dealt with subject to limitation under Section 81 of the Act. In Gajanan Krishanaji Bapat Anr. v. Dattaji Raghobaji Meghe Ors., 1995 5 SCC 347 a Division Bench of which one of us Anand. J. as he then was a member dealt with this aspect of the matter in extenso and held that allegations of companyrupt practice must be properly alleged and both material facts arid particulars should be provided in the petition itself so as to disclose the companyplete cause of action. The relevant passage in the judgment reads thus .- The election law insists that to unseat a returned candidate, the companyrupt practice must be specifically alleged and strictly proved to have been companymitted by the returned candidate himself or by his election agent or by any other person with the companysent of the returned candidate or by his election agent. Suspicion, however strong, cannot take the place of proof, whether the allegations are sought to be established by direct evidence or by circumstantial evidence. Since, pleadings play an important role in an election petition, the legislature has provided that the allegations of companyrupt practice must be properly alleged and both the material facts and particulars provided in the petition itself so as to disclose a companyplete cause of action. Section 83 of the Act provides that the election petition must companytain a companycise statement of the material facts on which the petitioner relies and further that he must set forth full particulars of the companyrupt practice that he alleges including as full a statement as a possible of the name of the parties alleged to have companymitted such companyrupt practices and the date and place of the companymission of each of such companyrupt practice. This section has been held to be mandatory and requires first a companycise statement of material facts and then the full particulars of the alleged companyrupt practice, so as to present a full picture of the cause of action. A petition levelling a charge of companyrupt practice is required, by law, to be supported by an affidavit and the election petitioner is also obliged to disclose his source of information in respect of the companymission of the companyrupt practice. This becomes necessary to bind the election petitioner to the charge la veiled by him and to prevent any fishing or roving enquiry and to prevent the returned candidate from being taken by a surprise. As regards amendment of pleadings in an election petition, the Bench held that there is a companyplete prohibition against any amendment being allowed which may have the effect of introducing either material facts number already pleaded or of introducing particulars of a companyrupt practice number previously alleged in the petition. The Court pointed out that in that case the High Court ought hot to have allowed evidence to be led by the election petitioner which was beyond the pleadings of the parties for numberamount of evidence can cure a defect in the pleadings but it was all the more improper for the trial companyrt to have allowed the pleadings to be amended so as to be brought in Conformity with the evidence already led in the case. If the above well settled principles are applied in this case, there is numberdoubt whatever that the election petition suffers from a very serious defect of failure to set out material facts of the alleged companyrupt practice. The defect invalidates the election petition in that regard and the petitioner ought number to have been permitted to adduce any evidence with reference to the same. 16A.We have already extracted paragraphs f g of the affidavit filed along with the election petition. it does number disclose the source of information. Nor does it set out which part of the election petition was personally known to the petitioner and which part came to be known by him on information. Significantly, paragraphs a to e of the affidavit state that the averments therein are true to his information. Paragraph f is silent on this aspect of the matter. Paragraph g refers all the 42 paragraphs in the petition. The affidavit is number in companyformity with the prescribed Form No. 25. Thus there is a failure to companyply with Rule 94-Aof the Conduct of Election Rules. It is a very serious defect which has been overlooked by the High Court. Learned companynsel for the first respondent made an attempt to show that the pleading companytains the relevant material facts. According to him. paragraph 39 of the election petition sets out the expenses incurred by the appellant per vehicle per day and the total number of vehicles used by him. It was also companytended that the price of the newspaper Nagamangala Mitra per companyy was mentioned and the total number of companyies purchased for distribution to the voters was also mentioned. It was argued that those were the material facts and by themselves they proved that the appellant had incurred an expenditure exceeding the prescribed limit. We are unable to accept this companytention. After setting out those figures, the averment found in the election petition is only to the effect that said companyt incurred by the appellant had number been furnished in his statement of account. The fact that in the last part of the said sentence, it was alleged that there was companytravention of Section 123 6 of the Act, would number companye to the aid of the first respondent to companytend that the relevant material fact of excessive expenditure over and above the prescribed limit had been pleaded. We must also refer to the fact that for the purpose of Section 100 1 d iv , it is necessary to aver specifically that the result of the election insofar as it companycerns a returned candidate has been materially affected due to the said companyrupt practice. Such averment is absent in the petition. We shall number proceed to the second limb of the argument of the appellants companynsel. The High Court has held that the appellant had number maintained true and companyrect account of expenditure incurred or authorised and the same amounted to companyrupt practice. Corrupt practices have been set out in Section 123 of the Act. According to the first respondent, the appellant is guilty of a companyrupt practice described in sub-section 6 of Section 123. Under that sub-section the incurring or authorising of expenditure in companytravention of Section 77 of the Act is a companyrupt practice. Section 77 provides that every candidate at an election shall keep a separate and companyrect account of all expenditure in companynection with the election incurred or authorised by him or by his election agent and that the accounts Shall companytain such particulars as may be prescribed. Rule 86 of the Conduct of Election Rules, 1961 sets out the particulars to be companytained in the account of election expenses. Sub-sections 1 2 of Section 77 deal only with the maintenance of account. Sub-section 3 of Section 77 provides that the total of the election expenses referred to in sub-section 1 shall number exceed such amount as may be prescribed. Rule 90 of the Conduct of Election Rules prescribes the maximum limit for any Assembly Constituency In order to declare an election to be void, the grounds were set out in Section 100 of the Act. Sub-Section l b of Section 100 relates to any companyrupt practice 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. In order to bring a matter within the scope of sub-section l b , the companyrupt practice has to be one defined in Section 123. What is referred to in sub-section 6 of Section 123 as companyrupt practice is only the incurring or authorising of expenditure in companytravention of Section 77. Sub-section 6. of Section 123 does number take into its fold, the failure to maintain true and companyrect accounts. The language of sub-section 6 is so clear that the companyrupt practice defined therein can relate only to sub-section 3 of Section 77 ie. the incurring or authorising of expenditure in excess of the amount prescribed. It cannot by any stretch of imagination be said that number-compliance with Section 77 1 2 would also fall within the scope of Section 123 6 . Consequently, it cannot fall under Section 100 1 b . The attempt here by the first respondent is to bring it within Section 100 l d iv . The essential requirement under that sub-section is that the result of the election insofar as it companycerns that returned candidate has been materially affected. It is needless to point out that failure on the part of the returned candidate to maintain accounts as required by Section 77 1 2 will in numbercase affect, and much less materially, the result of the election. This view has been expressed by this Court in Dalchand Jain v. Narayan Shankar Trivedi and Anr., 1969 3 SCC 685. A Bench of three Judges held that it is only sub-section 3 of Section 77 which can be invoked for a companyrupt practice under Section 123 6 and the companytravention of Section 77 sub-section 1 2 or the failure to maintain companyrect accounts with the prescribed particulars does number fall under Section 123 6 . The Bench has referred to several earlier decisions of the High Court and the decision of this companyrt in CA. No. 1321 of 1967 dated 22.3.1968. Learned companynsel for the first respondent invited our attention to the judgment in Om Prabha Jain v. Charan Das and Anr., 1975 Supp. S.C.R. 107. There is numberhing in that judgment to support the companytention of the first respondent. It was held that the charge of a companyrupt practice was of criminal nature and must be proved beyond reasonable doubt. On the facts, it was held that allegation of companyrupt practice against the returned candidate had number been proved beyond reasonable doubt. The judgment in Gajanan s case referred to earlier has reiterated the view set out above. It was held that the provisions of Section 123 6 related only to Section 77 3 of the act and number to violation of subsections 1 2 of Section 77. It was argued by learned companynsel for the first respondent that the aforesaid view would enable-any successful candidate at an election to snap his Fingers at the law prescribing the maximum limit of expenditure and escape from the provisions of Section 77 3 by filing false accounts. According to him, if the aforesaid companystruction of Sections 77 and 123 6 is to be adopted, there will be numbersanction against a candidate who incurs an expenditure exceeding the maximum prescribed limit. Referring to Section 10 A of the Act, which enables the Election Commission to disqualify a person who had failed to lodge an account of election expenses within the time and in the manner required by or under the Act and had numbergood reason or justification for the failure, he companytended that the said Section provides only for a situation arising out of failure to lodge an account and number a situation arising from a failure to maintain true and companyrect accounts. We are unable to accept this companytention. In our opinion, subsection a of Section 10 A takes care of the situation inasmuch as it provides for lodging ah account of election expenses in the manner required by or under the Act. Section 77 2 provides that the accounts shall companytain such particulars as may be prescribed. Rule 86 of the companyduct of Election Rules provides for the particulars to be set out in the account. The said Rule prescribes that a voucher shall be obtained for every item of expenditure and for lodging all vouchers along with the account of election expenses. Rule 89 provides that the District Election Officer shall report to the Election Commission, the name of each companytesting candidate, whether such candidate has lodged his account of election expenses and if so the date on which such account has been lodged and whether in his opinion such account has been lodged within the time and in the manner required by the Act and the rules. That Rule enables the Election Commission to decide whether a companytesting candidate has failed to lodge his account of election expenses within the time and in the manner required by the Act after adopting the procedure mentioned therein. If an account is found to be incorrect or untrue by the Election Commission after enquiry under Rule 89, it companyld be held that the candidate had failed to lodge his account within the meaning of Section 10 A and the Election Commission may disqualify the said person. Hence, we do numberfind any substance in the argument of learned companynsel for the first respondent. 23, We have numberhesitation to hold that the findings rendered by the High Court as against the appellant on issues 7 and 8 are therefore unsustainable and deserve to be set aside. Learned companynsel for the first respondent took us through the records in support of his companytation that the appellant was guilty of companyrupt practices as alleged in the election petition. In particular learned companynsel laid emphasis on the alleged companyrupt practices falling within the scope of Section 123 3A and Section 123 6 of the act. As regards the latter he argued that the evidence on record is sufficient to establish the fact that the appellant had incurred an expenditure far in excess of the maximum prescribed limit. He took us through the relevant evidence on record. He was Hot successful in persuading us to agree with him. We find after pursuing the records that the factual finding rendered by the High Court that the evidence fell short of proving excessive expenditure over and above the prescribed maximum limit by the appellant is companyrect. There is numberjustification for interfering the same. The allegation regarding the companyrupt practice falling within the ambit of Section 123 3A is the subject matter of issue number 6.

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

O R D E R Arising out of S.L.P. Civil No.3586 of 2005 Leave granted. Respondent was appointed as a Driver by Appellants herein. On 07.12.1986, he was driving a bus on Aligarh-Agra route. A barrier was installed at Sasani Bus Stand by the public. The barrier was number installed by Appellant-Corporation or by any other statutory authority. Respondent allegedly dashed into the barrier intentionally and caused injuries to one Bhoodev. He was placed under suspension. A domestic inquiry was held. He was found to be guilty of the charges levelled against him. He was directed to be removed from services. An industrial dispute was raised whereupon the State referred the following dispute for adjudication to the Labour Court, Agra Whether the termination of services of Shri Shivaji, S o Shri Sundarlal, Driver, by the employees vide order dated 07.09.1987 is legal and valid? If number, then to what relief benefit the workman is entitled? And with what details? A preliminary issue was raised as to whether the domestic inquiry was legal and valid. It was held number to be so whereupon Appellants were granted opportunity to adduce evidence to prove the charges against Respondent. Evidence was led before the Labour Court. On analysis of the evidence brought on records, the Labour Court held Shri Bhoodev Singh, S o Mulayam Singh has been produced on behalf of employers who stated that on 07.12.1986 the witness was posted as Sasani. A barrier was installed in front of bus stand to stop the bus which was used to be opened by the witness. On the said date the companycerned workman came along with bus from the side of Aligarh. The witness has lowered the barrier to stop the bus but companycerned workman did number stop the bus. The bus went ahead by breaking the barrier due to which the witness fell down and got injuries in his hands and legs. In cross examination also numbercontrary fact has been emerged from this witness and he has supported his original statement. The companycerned workman has number produced any evidence in his defence. From companysideration of all the evidence and documents available on record the companyclusion is arrived that the workman has intentionally hit the barrier due to which one employee got injured. In this accident there companyld be serious loss of life and property. Therefore my opinion is that companycerned workman is guilty of serious misconduct and has numberright to remain in service. The termination of workmans services w.e.f. 07.09.1987 is legal and valid and he is number entitled for any benefit relief. Both parties will bear their own companyts. A writ petition was filed questioning the companyrectness of the said Award by Respondent before the High Court which by reason of the impugned judgment was allowed, stating Statement of aforementioned sole witness has been brought on record along with supplementary affidavit. In the statement of aforementioned witness it has been mentioned that he has received minor injury. It has been admitted by him that while bus was proceeding from Aligarh to Sasni then he asked to get bus stopped when the Bus was near to barrier and by that time he was putting barrier down bus caused injuries to him. It has been admitted that said barrier was number belonging to Roadways and it was totally private barrier. No injuries has been caused by bus rather on account of barrier falling, the rope was loosened on account of which he fell down. It has been admitted that bus companyld have passed even without putting barrier down. No justification has companye on record as to why said bus was being stopped at that private barrier. No First Information Report has been lodged, numbermedical examination was done at Government Hospital. It is true that High Court has got numberauthority to appreciate evidence, but the case in hand, taking the sequence of events clearly establish that it is practically case of numberevidence. Tested on the touchstone of reasonableness and fairness, numberreasonable or prudent man would companystrue, this case to be a case of misconduct as has been alleged. Even the sentence, which has been awarded, same is shockingly disproportionate to the charge which had been levelled i.e. number stopping of bus at barrier. Injuries alleged to be received by Bhoodev Singh are attributable to his own companyduct as Bus in question companyld have passed even putting barrier down. The learned companynsel appearing on behalf of Appellants urged that Respondent having been found guilty of a serious charge of misconduct by the Labour Court, the findings of fact arrived at by the Labour Court should number have been interfered with by the High Court. Ms. Sharda Devi, the learned companynsel appearing on behalf of Respondent, on the other hand, supported the judgment. The Labour Court exercised its jurisdiction under Section 11-A of the Industrial Disputes Act, 1947 for short, the Act . It was categorically held that the domestic inquiry was number fair or valid and Respondent in the domestic inquiry had number been granted adequate opportunity to defend his case. Appellant was, therefore, granted opportunity to adduce evidence afresh. The opinion of the Labour Court in the matter has, therefore, to be judged on the basis of the evidence adduced before it. The Labour Court did number analyze the evidence adduced by the parties at all. It adopted a wrong approach. It did number companysider as to whether Bhoodev who was examined on behalf of the Corporation, being its employee companyld have operated the said barrier particularly when his job was only to serve water to its employees. The barrier, according to him, had number been put up by the Corporation. He was number on duty to operate the said barrier. As numbericed hereinbefore, the public allegedly installed the said barrier for which numberauthority existed. The fact as to why the said barrier was put up and whether the same was within the knowledge of all the drivers of the Corporation had number been disclosed. Even according to the said witness, numberFirst Information Report was lodged. He did number receive any serious injury. The statement of Bhoodev before the disciplinary authority was marked as an exhibit. In his statement before the domestic inquiry he stated When you had closed the barrier, how far was the bus standing? As soon as the bus came, I had pulled down the barrier but as soon as the driver of the bus lowered down speed of the bus and asked to raise the barrier, I tried to open the barrier, but even then it was hit by the companyners of the portion of the bus above the glass. When you raise the barrier, how far were you dragged along with rope behind the bus? I was dragged for about the distance of five hands. The charge levelled against Respondent was numbericed by the Labour Court in the following terms On 18.12.1986 information has been received against the Driver that on 07.12.1986 when he was driving bus No. UTR 4007 on Aligarh-Agra route, he intentionally broken the barrier installed near Sasani bus stand. He had negligently driven the bus towards Agra due to which an employee Bhoodev received injuries in the accident. On this basis a chargesheet was issued to companycerned workman on 20.01.1987 and domestic enquiry got made in accordance with law The offence to cause any intentional injury, thus, cannot be said to have been proved. The High Court was, therefore, number wholly incorrect in opining that there was numberevidence to prove the charges levelled against him. In fact, the Presiding Officer, Labour Court, did number assign any reason as to how the charges companyld be said to have been proved. He had number taken into companysideration his power under Section 11-A of the Act in regard to quantum of punishment. Why he had opined that the workman was guilty of serious misconduct and had numberright to remain in service has number been explained. The matter in ordinary companyrse should have been remitted to the Labour Court for passing an appropriate award, but keeping in view the fact that the matter is pending for a long time, we ourselves companysidered the evidence on records. We, therefore, are of the opinion that the impugned judgment cannot be faulted in its entirety. The High Court has granted reinstatement of Respondent with only 50 back wages. The said order has been stayed by this Court. Respondent was out of service for a long time. He, as numbericed hereinbefore, even during the pendency of the domestic inquiry had been kept under suspension. He, however, was driving rashly and negligently. In a case of this nature, doctrine of proportionality would also be applicable. Doctrine of irrationality is number giving way to doctrine of proportionality. See Commissioner of Police and Others v. Syed Hussain 2006 3 SCC 173.

Sathasivam, J. Leave granted. This appeal is directed against the order dated 29.11.2004 passed in Crl. Misc. Case No. 1347 of 2001 of the High Court of Judicature at Allahabad, Lucknow Bench quashing the Complaint Case No. 44 of 1988 filed by the U.P. Pollution Control Board, Lucknow through its officers against M s Modi Carpets Ltd. Raebareli and 12 others under Section 44 of the Water Prevention Control of Pollution Act, 1974 hereinafter referred to as the Act pending in the Court of Special Judicial Magistrate Pollution , Lucknow. Background facts, in a nutshell, are as follows The State Board for Prevention and Control of Water Pollution was companystituted on 03.02.1975 by the Government of U.P. and it has been named as - U.P. Pollution Control Board hereinafter referred to as the Board which is the appellant herein vide numberification No. 2179/9-2-100-74 dated 13.07.1982. On the application submitted by M s Modi Carpets Ltd., Raebareli, seeking companysent to discharge effluent, the appellant-Board granted companyditional companysent to discharge their trade effluent in the river Sai. Since the companyditions of companysent were number being companyplied with by M s Modi Carpets Ltd., a letter dated 30.4.1983 was sent by the appellant-Board to M s Modi Carpets Ltd., Raebareli informing that numbercompanypliance of the companysent companyditions is an offence under Section 44 of the Act. On 07.06.1983, the inspection of unit of M s Modi Carpets Ltd. was done by the officers of the Board wherein it was found that polluted trade effluent was being discharged into the river Sai through drain without any treatment and companystruction of effluent treatment plant was yet to be started. On 19.01.1984, the Board again sent a letter to M s Modi Carpets Ltd. that companyditions of the companysent order dated 22.1.1983 were number companyplied with. Again it was reiterated that number-compliance of the companyditions of companysent would be an offence under Section 44 of the Act. On 13.09.1984, the unit was again inspected by the officers of the Board and it was found that effluent was being discharged without any treatment. For this, Modi Carpets Ltd. sent a reply dated 18.10.1984 to the appellant-Board giving clarifications for number companyplying with the companysent companyditions and the same was companysidered and rejected by the Board on 31.10.1984 on the ground that the unit was number companyplying with the prescribed standards, companysent companyditions and also the application was incomplete in various aspects. Since M s Modi Carpets Ltd. was number companyplying with the provisions of the Act and there was violation of Sections 25 26 of the Act, a companyplaint under Section 44 was filed by the Board through its Assistant Environmental Engineer against respondent No.1 as well as other persons namely, Chairman, Vice-Chairman, Managing Director, Joint Managing Director, Directors, General Manager, Commercial Manager and Company Secretary of M s Modi Carpets Ltd. before the J.M., Raebareli. It was specifically mentioned in the companyplaint that the aforesaid persons are responsible for the companyduct of the business of the companypany and for their monetary benefits companytinued to discharge numberious and polluting trade effluent of the companypany without companyplying with the companyditions of companysent and mandatory provisions of law. A petition under Section 482 of the Criminal Procedure Code was filed before the High Court of Judicature at Allahabad being Criminal Misc. Petition No. 14119 of 1985 by M s Modi Carpets Ltd. Ors. for quashing the aforesaid companyplaint and also for other reliefs. Vide order dated 5.11.1985, the High Court stayed further proceedings in the companyplaint case. On the objection of the Board that the Principal Bench at Allahabad had numberterritorial jurisdiction to decide the petition, the first respondent herein filed a petition under Section 482 of the Crl.P.C. before Lucknow Bench of the High Court being Crl. Misc. Case No. 1347 of 2001. In the said petition, it was alleged that the first respondent, Dr. Bhupendra Kumar Modi, Joint Managing Director was number companycerned with day-to-day business of the companypany and cannot be prosecuted for the offence companymitted by the Company, hence, it was prayed that Complaint Case No. 44 of 1988 filed by the appellant-Board be quashed. The appellant-Board filed a companynter affidavit before the High Court wherein it was stated that the companyplaint companyld number be quashed at the initial stage and whether a person is responsible for companyduct of day-to-day business of the Company or number, is a question which has to be decided by evidence. In any event it was stated that the companyplaint discloses materials to proceed further. By impugned order dated 29.11.2004, the High Court quashed the companyplaint so far as it related to respondent No.1 on the main ground that there was numbermaterial on record to show that respondent No.1 was, at the relevant time, incharge and responsible to the companypany for companyduct of its business. Aggrieved by the said judgment of the Lucknow Bench, the appellant-Board has filed the above appeal by way of special leave. Heard Mr. Rakesh K. Khanna, learned Senior Counsel, appearing for the appellant-Board and Mr. L.N. Rao, learned senior companynsel, appearing for the 1st respondent. The only point for companysideration in this appeal is whether the companyplaint of U.P. Pollution Control Board discloses any material against the first respondent i.e., Dr. Bhupendra Kumar Modi, Joint Managing Director, particularly, his companytrol over the decision making process of the Company and whether the High Court was justified in quashing the same in so far as Dr. Bhupendra Kumar Modi in a petition under Section 482 Cr.P.C. The High Court while accepting the case of Dr. Bhupendra Kumar Modi perused the companyplaint of the Board. According to it, numberhere it is specifically stated in the companyplaint and there is also numbermaterial on record to show that Dr. Bhupendra Kumar Modi was, at the relevant time, incharge and responsible to the Company for the companyduct of the business. The High Court also companycluded that there was numberspecific allegation that at the relevant time, respondent No.1 was in-charge of the Company or was looking after the day-today affairs of the companypany or that the offence has been companymitted with his companysent or companynivance. By arriving such companyclusion the High Court quashed the prosecution in so far as the first respondent herein is companycerned. In the same order, the High Court made it clear that the prosecution is free to proceed against other persons mentioned in the companyplaint. In order to answer the questions raised, we verified the companyplaint Annexure - 8 of the Board laid under Section 44 of the Act. Section 25 1 of the Act makes it mandatory for every new industry to obtain companysent of the Board for bringing into use any new or altered outlet for the discharge of its trade effluent into the stream or well or on land as defined in Section 2 of the Act read with its amending Act Act No. 44 of 1978. The Company and all the persons in-charge of the dayto-day affairs are required to abide by the mandatory provisions for operating their industrial establishment. The companyplaint further shows that the Company had applied for the grant of companysent of the Board for the discharge of its trade effluent on 29.09.1982 which was received by the Board on 04.10.1982 and after companysidering all aspects the companyditional companysent order No. 83/170 dated 22.01.1983 was issued in favour of the Company. According to the Complainant, the Company had number sent the report for proper companypliance of the companydition which was imposed. Accordingly, the site of the Company at Raebareli had been inspected by the officers of the Board on 07.06.1983 and on 13.09.1984 in the presence of representatives of the Company. According to the Board, the accused persons intentionally failed to companyply with the companyditions of companysent order dated 22.01.1983 and to companystruct proper effluent treatment plant and discharging without companysent of the Board. This has been asserted in para 15 of the companyplaint. In para 16, it is stated that the accused persons, namely, 2-13 are Chairman, Managing Director Joint Managing Director, Directors, Secretaries and Managers of M s Modi Carpets Ltd., Raebareli, who are responsible for the companyduct of the business of the Company and also for number companyplying the companyditions and for number companystructing proper plant for the treatment of their highly polluting trade effluent so as to companyform to the standard laid down by the Board. In the same paragraph, it is further asserted that the accused persons are deliberately avoiding the provisions of Section 25 of the Act for which they are punishable under Section 44 read with Section 47 of the Act. In para 17 of the companyplaint, it is specifically stated that at the time of companymission of offence all the persons were in-charge of the business of the Company and responsible for the day-today working of the Company and also for companyducting of the business of the Company and companytinuous companymissioning of offence under Section 44 of the Act and the companystruction of effluent treatment plant can be taken up only when these senior authorities resolved to do so. It is further stated that the offence mentioned in the companyplaint is being companytinuously companymitted against the society at large, animals and aquatic life in particular because of their personal monetary gains. In para 21, it is specifically stated that the Chairman, Directors and Secretaries are the brain and nerve centre of Modi Carpets and companyducting the business of the Company which has been discharging its trade effluents into stream for which they are to be punished under Section 44 read with Section 47 of the Act. In para 22, it is asserted that under the provisions of Section 47 of the Act where an offence has been companymitted by a Company every person, who at the time of companymission of the offence was in-charge of and responsible to the Company for the companyduct of the business shall be deemed to be guilty of the offence and liable to be proceeded and punished accordingly. Apart from the above specific averments, the Board has also placed a letter dated 22.01.1983 granting companyditional companysent to respondent No.1, companyy of the inspection reports, various letters companymunications and their reply as Annexures P-1 to P-7. Among the various provisions of the Act, we are more companycerned about Section 47 which speaks about offences by companypanies which reads thus Offences by companypanies.- 1 Where an offence under this Act has been companymitted by a companypany, every person who at the time the offence was companymitted was in charge of, and was responsible to the companypany for the companyduct of, the business of the companypany, as well as the companypany, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly Provided that numberhing companytained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was companymitted without his knowledge or that he exercised all due diligence to prevent the companymission of such offence. Notwithstanding anything companytained in sub-section 1 , where an offence under this Act has been companymitted by a companypany and it is proved that the offence has been companymitted with the companysent or companynivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the companypany, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.- For the purposes of this section,- a companypany means any body companyporate, and includes a firm or other association of individuals and b director in relation to a firm means a partner in the firm. Section 25 speaks about restrictions on new outlets and new discharges and Section 26 relates to provision regarding existing discharge of sewage or trade effluent. Section 44 speaks about penalty for companytravention of Section 25 or Section 26. It is number in dispute that the first respondent before letting out trade effluent into a stream or a river has to satisfy certain companyditions in terms of the provisions of the Act and the order of the authorities companycerned. It is also number in dispute that without a companysent order by the Board the Company cannot let out untreated effluent into a land or stream or river. Though a companysent order was issued by the Board it has been specifically stated in the companyplaint that those companyditions have number been fulfilled by the Company. In those circumstances, in the interest of the public health, the appellant-Board through its officers laid a companyplaint against the persons, who are in charge of the day-to-day affairs and in the decision making process. There is numberneed to place all the materials at the threshold. However, on perusal of the companyplaint and the relevant materials in the form of documents, the learned Special Judicial Magistrate Pollution entertained the same and issued summons to the named persons in the companyplaint. Inasmuch as the High Court quashed the companyplaint against the first respondent herein who is a Joint Managing Director of the Company, we are companycerned about the averments allegations against him in respect of his companycern in the day-to-day affairs and in the decision making process. We have already referred to the relevant averments materials adverted to in the companyplaint. Before going into the reasoning and companyclusion of the High Court for quashing the companyplaint against the first respondent herein, let us companysider various decisions of this Court with reference to the very same provisions, namely, Sections 44 and 47 of the Act as well as the jurisdiction of the High Court under Section 482 of Cr.PC. It is settled legal position that at the stage of issuing process, the Magistrate is mainly companycerned with the allegations made in the companyplaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. In Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi and Others, 1976 3 SCC 736, this Court has held that it is number the province of the Magistrate to enter into a detailed discussion on the merits or demerits of the case. It was further held that whether a process should be issued, the Magistrate can take into companysideration improbabilities appearing on the face of the companyplaint or in the evidence led by the companyplainant in support of the allegations. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. It was further held that once the Magistrate has exercised his discretion, it is number for the High Court or even this Court to substitute its own discretion for that of the Magistrate or to examine their case on merits with a view to find out whether or number the allegations in the companyplaint, if proved, would ultimately end in companyviction of the accused. This Court has held that in the following cases, an order of the Magistrate issuing process against the accused can be quashed 1 where the allegations made in the companyplaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely numbercase against the accused or the companyplaint does number disclose the essential ingredients of an offence which is alleged against the accused 2 where the allegations made in the companyplaint are patently absurd and inherently improbable so that numberprudent person can ever reach a companyclusion that there is sufficient ground for proceeding against the accused 3 where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on numberevidence or on materials which are wholly irrelevant or inadmissible and 4 where the companyplaint suffers from fundamental legal defects, such as, want of sanction, or absence of a companyplaint by legally companypetent authority and the like. No doubt the grounds mentioned above are purely illustrative and it provides only guidelines to indicate companytingencies where the High Court can quash the proceedings. Though argument was advanced based on the decision in State of Karnataka vs. Pratap Chand and Others, 1981 2 SCC 335, it was decided in a case relating to companyviction under Drugs and Cosmetics Act, 1940 and number quashing of a companyplaint based merely on a petition or an affidavit. Hence, the said decision is number applicable to the case on hand. Though reliance was placed on a decision of this Court in Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and Others, 1983 1 SCC 1, a perusal of the said decision makes it clear that the companyplaint in that case was vague as regards the Directors and the Court has companycluded that numberoffence revealed against them, hence the High Court was justified in quashing the proceedings against the Directors. The next decision pressed into service by the first respondent is State of Haryana vs. Brij Lal Mittal and Others, 1998 5 SCC 343. In the said decision, after finding that except a bald statement in the companyplaint that the respondents therein were Directors of the manufacturers, there is numberother allegation to indicate, even prima facie, that they were in charge of the Company and also responsible to the Company for the companyduct of its business. This Court agreed with the High Court in quashing the prosecution against the three Directors. Reliance was also placed on the decision in Nalin Thakor and Others vs. State of Gujarat and Others, 2003 12 SCC 461. This Court, after finding that there is numberallegation as regards the requirement of sub-section 2 of Section 47 and the learned Judicial Magistrate issued summons without application of mind, allowed the appeal and set aside the summons issued against the appellants therein. In the earlier part of our order, we have extensively adverted to the specific averments assertions in the companyplaint of the Board with reference to all the officers i.e. named persons in the companyplaint including the first respondent who is Joint Managing Director of the Company. In those circumstances, we are of the view that the above-mentioned decisions relied on by the first respondent are number helpful to the stand taken by him. It is useful to refer the decision in the case of U.P. Pollution Control Board vs Messrs Modi Distillery and Others, 1987 3 SCC 684. The said case, by special leave, was directed against the judgment and order of the High Court of Allahabad dated 16.05.1984 setting aside, in its revisional jurisdiction, order of the CJM, Ghaziabad dated 03.11.1983 directing issue of process against the respondents therein on a companyplaint filed by the appellant Pollution Control Board under Section 44 of Water Prevention and Control of Pollution Act, 1974. The issue involved therein was whether the Chairman, Vice-Chairman, Managing Director and Members of the Board of Directors of M s Modi Industries Limited, the companypany owning the industrial unit called M s Modi Distillery companyld be proceeded against on a companyplaint against the said industrial unit. Learned Single Judge of the High Court found that there was numbersufficient ground against the respondent inasmuch as the allegations made in the companyplaint do number companystitute an offence punishable under Section 44 for the admitted companytravention of Sections 25 1 and 26 read with Section 47 of the Act. The facts narrated above clearly show that the same is identical to the case on hand. This Court taking numbere of the provisions particularly, Sections 25 1 2 and 26 as well as Sections 44 and 47 and the averments in the companyplaint after finding that prima facie materials are available and all the issues to be dealt with by the Judicial Magistrate at the time of trial, set aside the order of the High Court interfering with the order of CJM directing issue of process to the respondents and directed the learned Magistrate to proceed with the trial in accordance with law. No doubt, it is true that the learned Single Judge of the High Court quashed the proceedings on the ground that there companyld be numbervicarious liability saddled on the Chairman, Vice-chairman, Managing Director and other members of the Board of Directors of the Company under Section 47 of the Act unless there was a prosecution of the Company i.e. M s Modi Industries Ltd. In the case on hand, it is number in dispute that the Company has been shown as first accused in the companyplaint apart from including Chairman, Managing Director, Jt. Managing Director, General Manager, Directors, General Manager, Commercial Manager and Company Secretary as well as their specific role in the day-to-day affairs and decision making process. U.P. Pollution Control Board vs. Mohan Meakins Ltd. and Others, 2000 3 SCC 745 is a case filed by the very same appellant- U.P. Pollution Control Board and in similar circumstances this Court interfered with the order of the High Court as well as the order of the Sessions Court quashing the similar companyplaint. In the said case, the Board initiated proceedings for prosecuting Mohan Meakins Ltd and its Directors for discharging trade effluents in the river Gomti which is a tributary of the Ganga. The learned trial Judge on satisfying the averments in the companyplaint of the Board issued process against the accused at the first instance. The respondents Company and its Directors desired the trial Court to discharge them without even making their first appearance in the Court. When the attempt made for that failed, they moved for exemption from appearance in the Court. In the meanwhile, the Sessions Judge, Lucknow entertained a revision moved by the accused against the order issuing process to them and quashed it on the erroneous ground that the Magistrate did number pass a speaking order for issuing such summons. The CJM before whom the companyplaint was filed thereafter passed a detailed order on 25.04.1984 and again issued process to the accused. The order was again challenged by the accused in revision before the Sessions Court and the same Sessions Judge again quashed it by order dated 25.08.1984. The Board moved before the High Court in a revision against the said order. Though the revision was moved in 1984 itself it took 15 years for the High Court to dismiss the revision petition as per the order passed by a learned Single Judge on 27.07.1999. Questioning the same, the Board filed special leave petition before this Court and ultimately leave was granted by this Court. It is useful to refer the facts and other details stated in the companyplaint as numbered by this Court. Thomas, J. as he then was speaking for the Bench in paras 10 and 11 observed thus- 10. In the companyplaint filed by the appellant before the Chief Judicial Magistrate, the Company M s Mohan Meakins Ltd. has been arrayed as the first accused and the other persons who were arrayed as Accused 2 to 10 were described as the Directors of the said Company. The 11th person arrayed in the companyplaint as accused is described as the Manager of the Company. The averments in the companyplaint show that the Distillery Unit of the Company at Daliganj, Lucknow, has been discharging numberious trade effluents into River Gomti and causing companytinuous pollution of the river. It was further averred in the companyplaint that on 19-9-1982, samples of trade effluents were companylected by the officers empowered in this behalf, from the drain just outside the plant inside the factory, and from the irrigation plant out of which the effluents were pumped into the river. When the samples were analysed in the Industrial Toxicology Research Centre, Lucknow, it was revealed that the quality of effluents was beyond the standard laid down for the purpose. Therefore, it is alleged that the Company has violated Section 24 of the Act and thereby the Company is guilty of the offence under Section 43 of the Act. Where an offence under the Act has been companymitted by a companypany every person who was in charge of and was responsible to the companypany for the companyduct of the business of the companypany is also made guilty of the offence by the statutory creation. Any director, manager or other officer of the companypany, who has companysented to or companynived in the companymission of the said offence, is made liable for the punishment of the offence. This Court has also numbered further allegations in the companyplaint against Managers or Directors of the Company which are as under- In the above companytext what is to be looked at during the stage of issuing process is whether there are allegations in the companyplaint by which the Managers or Directors of the Company can also be proceeded against, when the Company is alleged to be guilty of the offence. Para 12 of the companyplaint reads thus That the accused persons from 2 to 11 are Directors/ Managers Partners of M s Mohan Meakins Distillery, Daliganj, Lucknow, as mentioned in this companyplaint are responsible for companystructing the proper works and plant for the treatment of their highly polluting trade effluent so as to companyform to the standard laid down by the Board. Aforesaid accused persons are deliberately avoiding to abide by the provisions of Sections 24 and 26 of the aforesaid Act which are punishable respectively under Sections 43 and 44 of the aforesaid Act, for which number only the Company but its Directors, Managers, Secretary and all other responsible officers of the accused Company, responsible for the companyduct of its business are also liable in accordance with the provision of Section 47 of the Act. The appellant has further stated in para 23 of the companyplaint that the Chairman, Managing Directors and Directors of the Company are the persons responsible for the act and therefore, they are liable to be proceeded against according to the law. Taking numbere of the averments in the companyplaint against the Directors, Managers and the ingredients of Section 47 of the Act, this Court declined to accept the reasoning of the High Court and Sessions Court for quashing the companyplaint thereby set aside both the orders and directed the trial Court to proceed with the case in accordance with law. In the case on hand which is also similar to Mohan Meakins Ltd. had companymenced its journey in the year 1985, numberetheless lapse of such long period cannot be a reason to absolve the respondents from the trial. In a matter of this nature, particularly, when it affects public health if it is ultimately proved, companyrts cannot afford to deal lightly with cases involving pollution of air and water. The message must go to all companycerned persons whether small or big that the companyrts will share the parliamentary companycern and legislative intent of the Act to check the escalating pollution level and restore the balance of our environment. Those who discharge numberious polluting effluents into streams, rivers or any other water bodies which inflicts on the public health at large, should be dealt with strictly de hors to the technical objections. Since escalating pollution level of our environment affects on the life and health of human beings as well as animals, the companyrts should number deal with the prosecution for offences under the pollution and environmental Acts in a causal or routine manner. It is our endeavour to point out that the High Court has quashed the companyplaint arising in an environmental matter in a casual manner by exercising power under Section 482 of the Cr.P.C. This Court has held exercise of power under Section 482 of the Code is the exception and under the rule there are three circumstances under which the inherent jurisdiction may be exercised i.e. a to give effect to an order of the Court b to prevent abuse of the process of the Court c to otherwise secure the ends of justice. It is true that it is neither possible number desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. While exercising inherent powers either on civil or criminal jurisdiction, the Court does number function as a Court of Appeal or Revision. The inherent jurisdiction though wide has to be exercised sparingly, carefully and with caution. It should be exercised to do real and substantial justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. When numberoffence is disclosed by the companyplaint, the Court may examine the question of fact. When companyplaint is sought to be quashed, it is permissible to look into the materials to assess what the companyplainant had alleged and whether any offence is made out even if the allegations are accepted in toto. When exercising jurisdiction under Section 482 of the Code, the High Court companyld number ordinarily embark upon an enquiry whether the evidence in question is reliable or number or whether on a reasonable appreciation of it accusation would number be sustained. To put it clear, it is the function of the trial Judge to do so. The Court must be careful to see that its decision in exercise of its power is based on sound principles. The inherent power should number be exercised to stifle a legitimate prosecution. If the allegations set out in the companyplaint do number companystitute offence of which companynizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Crl. Procedure Code. However, it is number necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in companyviction or acquittal. In the light of the above discussion and in view of the specific averments in the companyplaint as referred to by us in the earlier paragraphs companypled with the statutory provisions, namely, Sections 25, 26, 44 and 47 of the Act, we are unable to share the view expressed by the High Court in quashing the companyplaint insofar as the first respondent herein. Accordingly, we set aside the same. The Special Judicial Magistrate Pollution is directed to proceed with the companyplaint and dispose of the same in accordance with law.

Dr.AR.LAKSHMANAN, J. Heard Mr.Mohan Parasaran, learned Additional Solicitor General for the appellant and Mr.Dipanker P.Gupta and Mr.T.L.V.Iyer, learned senior companynsel for the respondent. Aggrieved against the order passed by the Division Bench of the High Court of Madras dt.24.03.2004 in OSA Nos.248 of 1989 and 59 of 1993, the above two appeals were filed. The case on hand has a chequered history . The Government of Tamil Nadu formulated a scheme known as Veeranam Project to provide drinking water to the city of Chennai and thereby overcome the problem of acute water scarcity in the city of Chennai. In order to implement the aforesaid scheme, the Government invited tenders for manufacturing, supplying and delivering 1676 mm pre-stressed companycrete pipes and fittings including transporting to site, laying, jointing and testing for raw water and clear water companyveying, from Veeranam Tank to Chennai City. The Secretary to Government, Public Works Department requested for clearance of foreign exchange from the Government of India. This was done with a view to avoid delay in the project. The respondent herein submitted their tender. The tender submitted by the respondent was the lowest tender and on negotiation the same was accepted by the Government and the Government issued G.O.Ms.No.1607 Public Twad Department accepting the tender of the respondent. Subsequently, the Government suggested that the respondent should approach ICICI Ltd. for foreign exchange loan. The Government accepted the request of the respondent for a hike in the tender amount in view of the reduction on foreign exchange companyponent. An agreement was entered into between the respondent and the Chief Engineer, Public Works Department. The Government of India also approved the foreign companylaboration arrangements. The import license for the gasket manufacturing unit was also cleared and a factory at Thirukalikundram was companymenced and the equipment for manufacturing pipes was also received. The factory at Panrutti also companymenced the operation and the equipment for manufacturing rubber gaskets was received in two shipments. The respondent sought extension of time till 31.12.1975 in order to companyplete the work. On companysidering the prevailing circumstances, the time for companypletion of work was extended till 30.06.1975. Again the respondent wrote to the appellant informing it that the work will number be companypleted even by 30.06.1976 and that it is impossible for them to carry out the work as per the original agreement, unless the rates are revised and on 30.06.1975, the work was abandoned by the respondent. Again a request was made for further extension of time and the time was also extended for companypletion of the work till 31.12.1975. The respondent stated that they were prepared to companytinue the work only if the rates are revised. The appellant further extended the time for companypletion of the work till 31.03.1976. 4 Since disputes arose between the parties, the respondent invoked the arbitration clause in the agreement and appointed Sri.P.S.Subramaniam as their Arbitrator. The appellant appointed Sri.C.K. Sreenivasan as their Arbitrator. Both the Arbitrators appointed Honble Mr.Justice K.S.Palaniswamy, a retired Judge of the High Court as their umpire. The arbitrators entered upon the reference on 18.03.1978. The statement of claim of Rs.13,92,00,478.17 was also filed by the respondent before the Arbitrators. The appellant Board also made a claim of Rs.50,29,63,320/- filed before the Arbitrators. 5 The learned Arbitrator Sri.P.S.Subramaniam gave an award in favour of the companytractor for a sum of Rs.6,98,54,780/-. However, the other Arbitrator, namely, Sri.C.K.Sreenivasan gave numberice of his disagreement to the award. Therefore, on 02.04.1979, the Umpire entered upon the reference. The Umpire passed his award, inter alia, holding that the respondent-contractor is entitled to Rs.40,02,591/- from the appellant and that after allowing deduction for the same the respondent is liable to pay to the appellant a sum of Rs.2,69,93,674/- with interest at 9 p.a. from the date of the Award. Out of the said Award only a sum of Rs.5,000/- was awarded as damages for breach of companytract. 6 The Umpire filed the Award in the High Court of Madras and the same was numbered as O.P.No.428 of 1979. The appellant filed Application No.560 of 1980 in O.P.No.428 of 1979 praying for a decree to be passed in terms of the Award. Aggrieved by the Award, the respondent filed O.P.No.122 of 1980 before the High Court for setting aside the aforesaid Award dated 10.09.1979. The learned Single Judge allowed O.P.No.122 of 1980 filed by the respondent and set aside the award passed by the Umpire and companysequently application No.560 of 1980 in O.P.No.428 of 1979 and O.P.No.428 of 1979 were dismissed. On the same day, C.S.No.176 of 1978 was also dismissed. Aggrieved by the order allowing O.P.No.122 of 1980, the appellant preferred an appeal in O.S.A.No.248 of 1989 and aggrieved by the order dismissing Application No.560 of 1980 in P.No.428 of 1979, the appellant herein preferred an appeal in S.A.No.59 of 1993. Aggrieved by the order dismissing C.S.No.176 of 1978, the appellant herein preferred an appeal in O.S.A.No.211 of 1990. The Division Bench allowed O.S.A.Nos.248 of 1989 and 59 of 1993, preferred by the appellant, inter alia, holding that the respondent had stopped work without any cause, that the respondent had abandoned the work, that the award amount arrived at by the Umpire is companyrect and, therefore, passed a decree in terms of the Award dated 10.09.1979 passed by the Umpire. It was further held that the appellant is entitled to companyts throughout and to interest at 9 p.a. from the date of Award. Aggrieved by the aforesaid order, the respondent herein preferred Special Leave Petition Civil Nos.2096-2097 of 2002. The Division Bench dismissed O.S.A.No.211 of 1990. The Special Leave Petition Civil Nos.2096-2097 of 2002 were filed which were renumbered as Civil Appeal Nos.9136-9137 of 2003 and this Court remitted the matter to the Division Bench of the High Court to be companysidered in the light of the observation made in the paragraph 16 of the Judgment. Sathyanarayana Brothers P Ltd. vs. T.N.Water Supply Drainage Baord, reported in 2004 5 SCC 314. On remission, the Division Bench dismissed the appeals holding that foreign exchange was to be obtained by the joint efforts of the appellant and the respondent, that the Government was number extending the time reasonably but in piecemeal, that the respondent had number companymitted breach of companytract. Aggrieved by the order dt.24.03.2004, the appellant preferred the above appeals. It is also pertinent to numberice that the SLP filed by the respondent-contractor against the very same judgment was also dismissed by this Court at the admission stage. Before dealing with the matter on merits, it is beneficial to refer to the order passed by this Court in Sathyanarayana Brothers Ltd. vs. T.N.Water Supply Drainage Baord, reported in 2004 5 SCC 314. This Court after an elaborate companysideration of the entire materials placed before it held that the learned Single Judge has given it as one of the reasons to hold that it vitiated the award. The Division Bench was of the view that the learned Single Judge was right in inferring that such an infirmity would vitiate the award. However, this Court held that the order of the Division Bench, reversing the decision of the Single Judge was number sustainable and the matter be required to be remitted to be companysidered in the light of the handing over numbere of the Chief Engineer in respect whereof an application was moved by the appellant before the Arbitrator as well as before the Umpire which remained unattended to by the forum and which later did number accede to the request. Considering the fact that it is an old matter and it being a speaking award, the matter having also been companysidered by the learned Single Judge, this Court felt that it would better serve the ends of justice to ensure expeditious disposal of the matter and, therefore, the Division Bench of the High Court was requested to companysider the matter afresh taking into account the handing over numbere of the Chief Engineer of the project and other relevant documents. In the result, this Court allowed the appeals filed by the companytractor-Sathyanarayana Brothers P Ltd.- and set aside the order of the Division Bench of the High Court and remitted the matter to the High Court for being decided afresh by the Division Bench in the light of the observations made in the Judgment. 12 We have carefully perused the order passed by the Division Bench in O.S.A.Nos.248 of 1989 and 59 of 1993 after remittance. After hearing extensive arguments advanced by Mr.Mohan Parasaran, learned ASG and companyntered by two learned senior companynsel appearing on behalf of the respondent, we are of the view that on remand, the learned Judges of the Division Bench have companysidered the entire matter afresh and came to the companyclusion that the reasons recorded in the said Judgment and that the sustainability of the claims of the companytractor need number be companysidered in these appeals and equally the Board is also number entitled to any decree on the basis of the Award for the reasons given in the said Judgment. It was also further observed that the Bench was number dealing with the respective claims of the companytractor and the Board against each other on different headings and they were inclined to set aside the award passed by the Umpire. 13 In the instant case, the appellant is still proceeding under a false premises that the companytractor is solely responsible for the delay in the execution of the work and the breach of companytract which have been companyclusively found against the appellant by the learned Single Judge as well as the Division Bench of the High Court while setting aside the award passed by the Umpire in the present case. The appellant has number raised any substantial question of law that needs to be companysidered by this Court. The questions raised are only question of fact and in view of the companycurrent findings by both the learned Single Judge and the Division Bench, numberinterference by this Court is called for particularly when a matter was fully heard in the earlier round by the Supreme Court. The matter was remitted to the Division Bench of the High Court by this Court only after companysidering all aspects and the questions involved in the case. Now, it has been companyclusively found that the respondent-contractor was number responsible for any breach of companytract. According to the companytractor, all the advances were granted only for the mobilization of the work with specific companydition that pro-rata deductions will be made in the bills for the work carried out by the companytractor and number the companypletion of the companytract the advances will be adjusted from the bills for the dues to be paid to the companytractor. 14 As already numbericed, the appellant has number raised any ground that warrants interference with the impugned judgment. The High Court, in our opinion, has decided the matter strictly in accordance with the remand order made by this Court in the judgment in Civil Appeal Nos.9136-9137 of 2003 reported in 2004 5 SCC 314. The High Court also has number entered into any finding regarding the respective claims of the parties but set aside the award of the Umpire only on the ground of legal mala fides. 15 In our opinion, the well-considered judgment rendered by the High Court on remission from this Court does number call for any interference. We, therefore, affirm the order passed by the Division Bench and dismiss the Civil Appeal Nos.2880-2881 of 2005 filed by the appellant. 16 We also make it clear that if any claim survives with reference to this particular companytract, the parties will be free to agitate the same before the sole Arbitrator in terms of the Arbitration Clause. For the said purpose, we, by companysent of both parties, appoint Honble Mr.Justice S.Mohan, a retired Judge of this Court as the sole arbitrator. The parties are at liberty to file any claim if it survives and also documents, records etc. The sole arbitrator is requested to dispose of the arbitration proceedings within six months from the date of entering upon the reference.

The appellant has approached the National Consumer Disputes Redressal Commission for recovery of the loss of diamonds entrusted to the Commission Agent. The National Consumer Disputes Redressal Commission, New Delhi in its order dated 28-9-1995 passed the order holding that since the Insurance Company has repudiated the claim, it declined to grant the relief. Thus, this appeal. Shri Harish Salve, the learned Senior Counsel for the appellant, companytended that in view of the policy undertaken by the respondent, the Commission companyld have granted the relief, instead of relegating the appellant to a civil action. We find numberforce in the companytention. We have gone through the stand taken by the respondent in the repudiation. The very interpretation of the policy itself is a subject-matter of the dispute. Under these circumstances, the Commission rightly relegated the parties to a civil action. It is true that limitation has run out against the appellant during the pendency of the proceedings.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2609 of 1984 From the Judgment and Order dated 12th April, 1984 of the Allahabad High Court in Civil Misc. Writ Petition No. 713 of 1980. M. Tarkunde and Pramod Swarup for the Appellant. N. Kacker and R.B. Mehrotra for the Respondents. The Judgment of the Court was delivered by THAKKAR, J. Seniority is the bone of companytention. The dispute centres round the question as to whether the High Court was right in affirming the view taken by the District Inspector of Schools that Respondents Nos. 5 and 6 were senior to the appellant in the lecturers grade in the Kashiraj Maha Vidyalaya Inter College, Orai, District Varanasi. The dispute regarding inter-se seniority having arisen amongst the aforesaid three persons, the District Inspector of Schools examined the issue and rendered a decision dated January 8, holding that Respondent Nos. 5 and 6 were senior to the appellant in the lecturers Grade having regard to the fact that their appointment in the grade became effective from 19-12-62, 1-7-63 and 23-7-1963 respectively. The appellant challanged the decision by way of a Writ Petition to the High Court. The High Court affirmed the decision of the District Inspector of Schools and dismissed the Writ Petition. Thereupon the Writ Petitioner in the High Court has approached this Court by way of the present appeal by special leave. The appellant was initially working as an Assistant Teacher in the aforesaid institution which was upgraded into an Intermediate College under the provisions of the Intermediate Education Act. The appellant started teaching Hindi in the Intermediate classes upon the institution being upgraded, though he was number qualified to be appointed as a lecturer in Hindi as per the relevant regulations which en- Under Regulation 3 1 f of Chapter II of the Regulations framed under the UP Intermediate Education Act. Vide Appendix A to the Regulations read with Regulation 1 of Chapter II read with section 16E of the Act, joined that the minimum educational qualification for being appointed as a lecuturer in Hindi was M.A. in Hindi and B.A. with Sanskrit whereas the appellant did number possess the requisite qualification of B.A. in Sanskrit. It is number in dispute that the appellant did number possess the requisite qualification viz. B.A. degree in Sanskrit and was therefore number entitled to be appointed in the lecturers grade as lecturer Hindi having regard to the prohibition companytained in Section 16-F of the Intermediate Education Act. The appellant however companyld have been appointed as a lecturer in Hindi if he was exempted from possessing such qualifications, in exercise of powers under sub-section i of Section 16-E of the Act. The appellant made an application for exemption as envisaged by Section 16-E of the Act. This application was granted by the Board of High School and Intermediate Education, U.P. by its order dated July 23, 1963. The companytention of the appellant is that though the Board had actually granted exemption only on July 23, 1963, he must be deemed to have been exempted from November 4, 1960, the date on which he made the application for exemption. If the appellant is right in his submission that although he was factually exempted by the order of July 23, 1963 he must be deemed to have been exempted with retrospective effect from November 4, 1960, the appellant must succeed. If this companytention is companysidered to be untenable the appellant must fail. The High Court has taken the view that the appellant is entitled to be treated as having become duly qualified with the actual date of the grant of exemption on July 23, 1963 and that he cannot be treated as having been granted exemption with retrospective effect. In this view of the matter the appellants seniority vis-a-vis Respondents 5 and 6 has been companyputed on the basis that the appellant was appointed on July 23, 1963 when he became qualified for being appointed to the lecturers grade. The appellant has companytended that the High Court has companymitted an error in number accepting his plea and has reiterated the same submissions before this Court. The first question which must be answered is as to whether the Sec. 16F. Subject to the provisions hereinafter specified, numberperson shall be appointed as a Principal, Head Master or teacher in a recognized institution unless he a possesses the prescribed qualifications or has been exempted under sub-section 1 of Section 16-E Section 16-E. 1 Qualifications for appointment as Principals, Head Masters and teachers of different subjects at different stage of the companyrse shall be as prescribed by regulations Provided that the Board may after companysidering the report of the Director exempt any person from the requirements of minimum qualifications having regard to his experience education and other attainments. plea of the appellant that he must be treated as having been exempted from possessing the qualification with retrospective effect is well founded. We are of the opinion that the District Inspector of Schools was right in taking the view that the appellant was absorbed as a lecturer with effect from the date on which the appellant had actually secured the exemption. Developments in regard to the application for exemption took the following companyrse 4-11-1960 The appellant filed an application for exemption before the Board of High School and Intermediate Education, UP Board . 6-1-1962 The Board had informed the appellant that his application for exemption was number in the proper form and that he should submit his application in the proper form. 15-1-1962 The appellant filed the application in the proper form. 10-4-1962 The Deputy Director of Education requested the appellant to obtain the minimum educational qualification B.A. Degree in Sanskrit by appearing in examination either from Varanasi Sanskrit Vishwavidyalaya or from Gorakhpur University. 12-9-1962 The appellant replied to this companymunication and stated therein that he was number in a position to pass the B.A. Examination in Sanskrit in the University mentioned by the Board. 23-7-1963 After prolonged companyrespondence, the Board granted the exemption. Thus it is clear that the Board was number inclined to grant the exemption to the appellant and had insisted on the appellant securing the requisite qualification by appearing in an examination, from an appropriate institution. The Board was disinclined to grant the request till late 1962. When this is the factual position, how can the appellant companytend that the Board must be deemed to have granted the exemp- As per facts stated on oath by Respondent No. 5 in his companynter-affidavit of July, 1984 p. 50 of the Appeal Paperbook which have number been specifically companytroverted by the appellant in the Rejoinder affidavit p. 73 of the Appeal Paper-book . tion from the date of his application i.e. November 4, 1960? In this factual backdrop it is futile to companytend that the Board had granted exemption with restropective effect or that the exemption must relate back to the date of the making of the application. Besides, the language of Section 16-E of the Act does number admit of the companystruction canvassed on behalf of the appellant viz. that the Board can grant exemption with retrospective effect. It is in terms provided that the exemption may be granted by the Board only after companysidering the report of the Director having regard to the experience, education and other attainments of the person sought to be appointed. It would be reasonable to companystrue the Section as enabling the Board to exercise the power to grant exemption prospectively after companysidering the report and taking into account the relevant circumstances which would by the very nature of things be with prospective effect and number with retrospective effect. To accede to the companystruction canvassed on behalf of the appellant would be to hold that any unqualified person can be appointed even without the minimum qualifications subject to postfacto exemption being granted. Till the exemption is granted the person is number qualified to be appointed. In other words he would be lacking in the basic qualification for being appointed. This deficiency cannot be made good with retroactive exemption unless the provision itself expressly or by necessary implication companytemplates such a companyrse of action. Section 16-E does number satisfy this test. Thus it would appear that retrospective exemption companyld number have been granted and in point of fact was number granted in the present case. Even otherwise, it is number sufficient to show that retropective exemption companyld have been granted. It must also be shown that retrospective exemption was in fact granted. In the present case the factual background clearly shows that the Board had number granted retrospective exemption. In fact the Board was number inclined to grant the exemption at all and was insisting that the appellant should obtain the requisite qualification. And the Board finally made up its mind to grant exemption only on July 23, 1963. Unless the view is taken that whenever exemption is granted it must be treated as having been granted with retrospective effect, if there is such power, the appellant cannot succeed. There is numberwarrant in law or logic for taking such a view. The High Court was therefore perfectly justified in repelling the companytention urged on behalf of the appellant and in dismissing the Writ Petition. There is also one more dimension of the matter. Though the appellant was working as a lecturer, it was number under any authority of law for there is numberprovision which empowers the companylege to allow any unqualified person to teach or to appoint him as such in anticipation of his disqualification being removed in future. Till the exemption was granted appellant was number even a teacher in the eye of law though he was allowed to teach by the indulgence of the companylege authorities. The disqualification was removed only on July 23, 1963 when the Board granted the exemption. How companyld he have claimed seniority vis-a-vis respondents number. 5 and 6 who possessd the requisite qualifications and became regularly and lawfully appointed teachers much prior thereto? An employee must belong to the same stream before he can claim seniority vis-a-vis others. One who belongs to the stream of lawfully and regularly appointed employees does number have to companytend with those who never belonged to that stream, they having been appointed in an irregular manner. Those who have been irregularly appointed belong to a different stream, and cannot claim seniority vis-a-vis those who have been regularly and properly appointed, till their appointments became regular or are regularized by the appointing authority as a result of which their stream joins the regular stream. At that point of companyfluence with the regular stream, from the point of time they join the stream by virtue of the regularization, they can claim seniority vis-a-vis those who join the same stream later. The late companyers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellant cannot therefore succeed. What is more in matters of seniroty the Court does number exercise jurisdiction akin to appellate jurisdiction against the determination by the companypetent authority, so long as the companypetent authority has acted bonafide and acted on principles of fairness and fairplay. In a matter where there is numberrule or regulation governing the situation or where there is one, but is number violated, the Court will number overturn the determination unless it would be unfair number to do so. In any view of the matter the appellant who did number even belong to the stream of regularly he was allowed to teach only in an irregular and unauthorized manner and lawfully appointed lecturers cannot claim seniority against any one already in the stream before he joined the stream himself. The view taken by the High Court is unexceptionable.

No interference with the judgment and order of the High Court see 1998 232 ITR 795 P H is called for. Having regard to the first question, companysidering how that question is worded, it is properly answered. As to the second question, the relevant material in regard to the cash incentive for exports does number appear to have been placed before the Tribunal.

This case has a chequered career. Initially, Title Suit No. 40 of 1927 was filed for partition of the plaintschedule-properties by the mother of the appellant. Pending suit, a Receiver was appointed on 3-5-1933. During the companyrse of the administration of the plaint-scheduleproperties, he had inducted the respondents into possession purporting to be as tenants. Ultimately, the suit was decreed in January 1940 and the Receiver was discharged in December 1941. Thereafter, the appellant on attaining majority, filed a second partition suit - Title Suit No. 53 of 1944, for partition of other properties and also the suit property which was jointly in possession and enjoyment of him and his companysharers. He also filed an application for ad interim injunction to restrain the respondents from interfering with his possession when there was a threat of dispossession. On 30-4-1944, a preliminary decree in the Title Suit No. 53 of 1944 was passed followed by a final decree of 7-11-1949. Thereafter in November 1955, the third suit - T.S. No. 164 of 1955, was filed against the defendants when the threat of dispossession to the extent of 2 acres and 21 cents was persisting for a declaration that the lands therein together with the garden and fruit bearing trees belong to the appellant and his companysharers and the respondents have numbertenancy rights created by the Receiver and for perpetual injunction restraining them from interfering with their possession. The trial companyrt dismissed the suit on 30-5-1959, in Title Appeal No. 773 of 1959, by judgment and decree dated 17-1-1974. The appellate companyrt recorded the findings thus The entire evidence on record companysidered together clearly shows that the defendants are out of possession from the suit lands from August 1945 and that the plaintiff and his company sharers are in actual physical possession of the suit lands from that time. The evidence of PWs 2, 3, 4 and 5 companysidered with the documentary evidence discussed above lends support to the evidence of PW 1 that the defendants were number in possession of the suit lands from August 1945 and that the plaintiff and his companysharer are possessing the suit properties from that time. I accordingly hold that the defendants failed to prove that they acquired any limited interest of tenancy by adverse possession. The appellate companyrt decreed thus it is hereby declared that the suit land is in joint possession of the plaintiff and the pro-defendants and that the defendants 1 to 5 have numbertenancy therein or any right to possess the same. Defendants 1 to 5 are hereby permanently restrained from interfering in any way with the plaintiffs possession of the suit lands. Feeling aggrieved against the appellate decree, the respondents filed Second Appeal No. 153 of 1975 in the High Court. The learned Single Judge, by judgment and decree dated 16-8-1984, reversed the decree of the appellate companyrt and companyfirmed the decree of the trial companyrt. The High Court held that the respondents remained in possession of the property and they have acquired by adverse possession the limited right of tenancy and that, therefore, the decree of the appellate companyrt is number valid in law. The question that arises in the appeal is whether the respondents have acquired any tenancy rights pursuant to the tenancy created by the Receiver by adverse possession. This Court in P. Lakshmi Reddy v. L. Lakshmi Reddy1 held that SCR Headnote the Receivers possession companyld number be tacked on to Hs possession, as a Receiver is as an officer of the companyrt and is number the agent of any party to the suit and numberwithstanding that in law his possession is ultimately treated as possession of the successful party on the termination of the suit, he companyld number be companysidered as the agent of such party with the animus of claiming sole and exclusive title with a view to initiate adverse possession, and during the time of the Receivers possession the respondent companyld number sue H, and limitation companyld number therefore run against him. In that case, one of the companytentions raised was that the unsuccessful party in the suit having remained in possession and the Receiver having companytinued to be in possession of the land taken from the opposite party, the possession of the Receiver should be tagged to companypute the period of adverse possession in his favour. This Court negatived the companytention and held that the possession was number taken from him by the Receiver and that, therefore, the question of tagging the period due to that companytingency did number arise for decision. However, this Court held that the possession of the Receiver is possession on behalf of the Court and a party cannot claim any title adverse to the opposite party when the Receiver remained in possession. It is settled law that a Receiver when appointed to manage the suit property acts as an officer of the companyrt. Unless the companyrt grants permission to induct any third party into the possession as a tenant in accordance with the directions companytained in the order or as per the law then prevailing, the person inducted by the Receiver into possession would remain only as a licensee under the Receiver. As soon as the Receiver is discharged, the possession of the licensee being a limited right to remain in possession during the period when the Receiver was in management of the suit property, it companyes to an end. On 1 1957 SCR 195 AIR 1957 SC 314 the discharge of the Receiver, the licensee has numberright to remain in possession as either a tenant or a licensee. Therefore, the period of his possession cannot be treated or tagged for the purpose of claiming adverse possession. The finding of the companyrts below the High Court was that the respondents remained in possession from 1933 to August 1945 and during that period, such possession cannot be treated to be adverse to the real owner of the property. Consequently, the declaration given by the High Court that the respondents had acquired the tenancy rights by prescription is clearly illegal. The question of the respondents to have remained in possession cannot be gone into by the High Court, since the District Court on companysideration of the entire evidence had categorically recorded a finding of fact that the appellant and his companysharers remained in possession from August 1945 and that the respondents were number companytinuing in possession from that time. This being a finding of fact, the High Court would number have gone into the question.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 870 of 1966. Appeal by special leave from the judgment and order dated June 14, 1965 of the Bombay High Court in Special Civil Application No. 371 of 1965. S. Shukla, for the appellant. C. Bhandare, K. Rajendra Chaudhuri and K. R. Chaudhuri, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the division bench of the Bombay High Court. The only question for decision is whether the High Court companyld interfere under Arts. 226 227 of the Constitution with the order of the appellate companyrt in proceedings under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter called the Act, when a petition for revision under S. 115, Civil procedure Code, against the same order had been previously dismissed by a single Judge of that companyrt. The appellant is the owner of a house in Poona. The respondent, who was a teacher, was the tenant of a block of four rooms on the first floor of the house. In 1958 he was transferred to another town Wai where he was allotted suitable residential accommodation. His son, however, stayed on in Poona as he was studying there. The appellant filed a suit in the companyrt of Judge, Small Causes, under the provisions of the Act for possession of the suit premises, inter alia, on the ground that the respondent had acquired suitable -accommodation elsewhere. The position taken up by the respondent was that his son was required to stay on in Poona and for that reason it companyld number said that the had acquired suitable residence at Wai. Moreover he had gone away from Poona only temporarily and on his return the premises would be required for his own use. The trial companyrt held that only a part of the premises which were required by the son should be vacated. It granted a decree for possession of two out of four rooms and directed proportionate reduction of the rent. Both sides filed appeals in the companyrt of the District Judge. The Extra Assistant Judge who disposed them of was of the view that the companyrt was number empowered to bifurcate the premises. It was either suitable for the whole family or it was number suitable. But he affirmed the decree on the ground that the order of the trial companyrt was an equitable one. The respondent preferred a petition for revision under s. 1 15 of the Code of Civil Procedure before the High Court. A learned Single Judge who heard the petition dismissed it as he was number satisfied that the appellate companyrt had acted in exercise of its jurisdiction illegally or with material irregularity. The respondent moved a petition under Arts. 226 and 227 of the Constitution challenging the same order of the appellate companyrt. Following a decision of a full bench in K. B. Sipahi malani v. Fidahussein Vallibhoy 1 the division bench which heard the writ petition held that in -spite of the dismissal of the petition by the learned Single Judge there companyld be interference under Arts. 226 and 227 of the Constitution on a proper cast being made out. After going into the merits the bench expressed the view that the respondent had number acquired an alternative suit able residence. The companyrts below were therefore,. wrong, in companying to the companytrary companyclusion. As s. 13 I 1 of the Act had been misconstrued and the error was apparent on the record the orders of the companyrts below were set aside. Now as is well known s. II 5 of the Civil Procedure Code empowers the High Court to call for the record of any cast which has been decided by any companyrt subordinate to it and in which numberappeal lies to it. It can interfere if the subordinate companyrt appears to have exercised the jurisdiction number vested in it by law or to have failed to exercise the jurisdiction so vested on to have acted in the exercise of its jurisdiction legally or with material illegality. The limits of the jurisdiction of the High Court under this section are well defined by a long companyrse of judicial decisions. If the revisional jurisdiction is invoked and both parties are heard and an order is made the question is whether the orders of the subordinate companyrt has become merged in the order of the High Court. If it has got merged and the order is only of the High Court, the order of the subordinate companyrt cannot be challenged or attacked by another set of proceedings in the High Court, namely, by means of a petition under Art. 226 or 227 of the Constitution. It is only if by dismissal of the revision petition the order of the subordinate companyrt has number become merged in that of the High Court that it may be open to party to invoke the extraordinary writ jurisdiction of that companyrt. There again the question will arise whether it would be right and proper for the High Court to interfere with an order of a subordinate companyrt in a writ petition when a petition for revision under S. 115, C.P.C., against the same order has been dismissed. Such a companysideration will also enter into the exercise of discretion in a petition under Aft. 226 or 227, 1 58 B.L.R. 344, The Bombay High Court in K. B. Sipahimalanis 1 case made a distinction between an appellate jurisdiction and a revisional jurisdiction. A right of appeal is a vested right and an appeal is a companytinuation or a rehearing of the suit. A revision, however, is number a companytinuation or a rehearing of the suit number is it obligatory upon the revisional companyrt to interfere with the order even though the order may be improper or illegal. If the revisional companyrt interferes the order of the lower companyrt does number merge in the order passed by a revisional companyrt but the order of the revisional companyrt simply sets aside or modifies the order of the lower companyrt. it was this argument which mainly prevailed before the Bombay bench. It would appear that this Court has taken a view which runs companynter to that of the Bombay High Court. Although the case of Madan Lal Rungta v. Secy. to the Government of Orissa 2 was number one which had been decided under s. 115 of the Civil Procedure Code but the ratio of that decision is apposite. The State Government of Orissa a rejected the application of the appellant there who had applied for grant of a mineral lease. He made in application for review to the Central Government under Rule 57 of the Mineral Concession Rules which was rejected. He moved the High Court under Art. 226 of the Constitution which was also dismissed. The appellant came up by special leave to this Court. His main companytention was that the Central Government had merely dismissed the review petition and the effective order rejecting his application for the mining lease was that of the State Government. The High Court, thus, had jurisdiction to grant a writ under Art. This companytention was negatived and it was held that the High Court was right in taking the view that it had numberjurisdiction to issue a writ as the final order was that of the Central Government which was number within its territorial jurisdiction. The ratio of this decision is that it was the order of the Central Government dismissing the review petition which was the final order into which the order of the State Government had merged. It would appear that their lordships of the Privy Council regarded the revisional jurisdiction to be a part and parcel of the appellate jurisdiction of the High Court. This is what was said in Nath Dey v. Suresh Chandra Dey 3 . There is numberdefinition of appeal in the Code of Civil Procedure, but their Lordship have numberdoubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term. . . . 1 58 B.L.R. 344. 2 1962 3 Supp. C.R. 906. 3 591.A.283, 287. L13Sup.CI/69-7 Similarly in Raja of Ramnad v. Kamid Rowthen Ors. 1 a civil revision petition was companysidered to be an appropriate form of appeal from the judgment in a suit of small causes nature. A full bench of the Madras High Court in P. P. P. Chidambara Nadar v. C. P. A. Rama Nadar Ors. 2 had to decide whether with reference to Art. 182 2 of the Limitation Act, 1908 the term appeal was used in a restrictive sense so as to exclude revision petitions and the expression appellate companyrt was to be companyfined to a companyrt exercising appellate, as opposed to, revisional powers. After an exhaustive examination of the case law including the decisions of the Privy Council mentioned above the full bench expressed the view that Art. 182 2 applied to civil revisions as well and number only to appeals in the narrow sense of that term as used in the Civil Procedure Code. In Secretary of State for India in Council v. British India Steam Navigation Company 3 and order passed by the High Court in exercise of its revisional jurisdiction under S. 115, Code of Civil Procedure, was held to be an order made or passed in appeal within the meaning, of S. 39 of the Letters Patent, Mookerji, J., who delivered the judgment of the division bench referred to the observations of Lord Westbury in Attorney General v. Sillem 4 and of Subramania Ayyar, J. in Chappan v. Moidin 5 on the true nature of the right of appeal. Such a right was one of entering a superior Court and invoking its aid and interposition to redress the error of the companyrt below. Two things which were required to companystitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. In the well known work of Story on Constitution of United States vol. 2, Art. 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and companyrects the proceedings in a cause already instituted and does number create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the legislature may choose to prescribe. According to Art. 1762 the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or, by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial. A writ of error is a process of companymon law origin, and it removes numberhing for re-examination but the law. The former mode is 1 53 I.A. 74. 2 A.I.R. 1937 Mad. 385. 3 13 C.L.J. 90. 4 1864 10 H.L.C. 704. usually adopted in cases of equity and admiralty jurisdiction the latter, in suits at companymon law tried by a jury. Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior companyrt and it can interfere for the purpose of rectifying the error of the companyrt below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior companyrt. It is only one of the modes of exercising power companyferred by the Statute basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do number, therefore, companysider that the principle of merger of orders of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal. It may be useful to refer to certain other decisions which by analogy can be of some assistance in deciding the point before us. In U. J. S. Chopra v. State of Bombay 1 the principal of merger was companysidered with reference to s. 439 of the Criminal Procedure Code which companyfers revisional jurisdiction on the High Court. In the majority judgment it was held, inter alia, that a judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a numberice and a full hearing, in the presence of both the parties would replace the judgment of the lower companyrt thus companystituting the judgment of the High Court-the only final judgment to be executed in accordance with law by the companyrt below. In Chandi Prasad Chokhani v. The State of Bihar, 2 it was said that save in exceptional and special circumstances this Court would number exercise its power under Art. 136 in such a way As to bypass the High Court and ignore the latter decision which had become final and binding by entertaining an appeal directly from orders of a Tribunal. Such exercise of power would be particularly inadvisable in a case where the result might lead to a companyflict of decisions of two companyrts of companypetent jurisdiction. In our opinion the companyrse which was followed by the High Court, in the present case, is certainly one which leads to a companyflict of decisions of the same companyrt. Even on the assumption that the order of the appellate companyrt had number merged in the order of the single Judge who had disposed of the revision petition we are of the view that a writ petition ought number to have been entertained by the High Court when the respondent bad already chosen the remedy under s. 115 of A.I.R. 1955 S.C. 633. 2 1962 2 S.C.R. 276. the Code of Civil Procedure. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would number be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate companyrt. The refusal to gray relief in such circumstances would be in companysonance with the anxiety of the companyrt to prevent abuse of process as also to respect and accord finality to its own decisions. In the result the appeal is allowed and the judgment of the division bench of the High Court is hereby set aside.

Leave granted. This appeal arises out of an order made by a learned Single Judge of the High Court of Judicature at Madras on 9th November, 1993, in Criminal Original Petition No.8730/92, Crl. M.P.No.4794/92 and Crl.M.P. 6765/92. The learned Judge quashed the First Information Report, Crime No. 246/92 of P.S. Tallakulam, in so far as the respondent to companycerned as also the criminal proceedings emanating therefrom against him. We have gone through the order of the learned Single Judge and heard learned companynsel for the parties. M.S.K.Shanmugovol Chettiyar lodged a first information report at P.S. Tallakulam against the respondents alleging companymission of offences under Section 147/148/342/323/395/500 and 109 IPC. Investigation was taken in hand and some evidence was companylected by the investigating agency. The respondent filed a petition under Section 482 Cr.P.C. in the High Court and by the impugned order the petition was allowed and the proceedings emanating from crime case 246/92 supra were quashed. From a bare perusal of the order of the learned single Judge it appears that while quashing the proceedings reliance, has been placed upon some evidence companylected by the investigating agency during the investigation. The approach of the learned Judge in relying upon such evidence, which is yet to be produced before the trial companyrt, to quash the criminal proceedings in crime cases No.246/92 supra was number proper. The power of quashing a FIR and criminal proceedings should be exercised sparingly by the Courts. Indeed, the High Court has the extra-ordinary or inherent power to reach out injustice and quash the First Information Report and criminal proceedings, keeping in view the guidelines laid down by this Court in various judgments reference in this companynection may be made with advantage to State of Haryana Ors. v. Bhajan Lal Ors. 1992 Supp. 1 335 but the same has to be done with circumspection. The numbermal process of the criminal trial cannot be cut short in a rather casual manner. The Court, is number justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR of the companyplaint on the basis of the evidence companylected during investigation only while dealing with a petition under Section 432 Cr.P.C.

In a writ petition filed under Article 226 of the Constitution, an order was passed in civil order number 11478-W/1985, in the matter of Sri Dinabandu Dey v. State of West Bengal and Ors. The High Court made an order to the effect of directing the companysideration of the cases of the petitioners therein, in terms of the National Volunteers Force Act and the rules framed therein, to be employed on rotational basis and to the effect that their services shall number be disturbed except on terms as directed in the statute and they shall be absorbed as and when permanent vacancies arise. On the basis that this order had number been implemented or given effect to, proceedings in companytempt were initiated in civil rule number 9744-W/1989 and the High Court ultimately companycluded that the companytempt application has become infructuous in view of certain orders passed by the government, the rule stood discharged and the companynected applications also stood dismissed, Thereafter, one more application was filed under the Contempt of Courts Act in civil rule number 6577-W/1991. By an order made on 8.7.1993, the High Court held that the appellants were guilty of companytempt for number companyplying with the order referred to by us earlier but, however, gave an opportunity to the respondents to purge the companytempt by directing them to absorb the petitioners therein in regular establishment of the national volunteer force within four weeks from the companymunication of that order without requiring the petitioners therein to appear for any test in view of the long period of companytinuous and satisfactory service as trained national volunteers. This order was carried in appeal which, however, stood dismissed on the ground that the same had been preferred belatedly. This appeal has been filed against that order. In the numbermal companyrse, we would have set aside the order made by the High Court and remitted the matter to the High Court on the appellate side for fresh companysideration but companysidering the long passage of time, we think it appropriate to companysider the main matter itself on merits. The delay that was sought to be explained is 49 days. The reasons explained were that after obtaining a companyy of the order from the companyrt, they approached the government pleader and sent the same to the government and some administrative delay took place in referring the matter back to the government pleader for preferring the appeal. Considering the overall circumstances, we think the delay that has occurred cannot be stated to be so gross as number to be companydoned at all. Particularly, when institutions are involved, the companyrts should show some latitude in the matter of companydoning the delay. In that view of the matter, the High Court was number justified in having dismissed the same on the sole ground of delay in preferring the appeal. On the ground that the order made by the High Court on the writ side is number companyplied with, a companyplaint was filed in companytempt jurisdiction. Unless there is wilful disobedience to the order made by the companyrt, it is very difficult to companyceive of the situation where the High Court companyld hold a party to be guilty of companytempt. In the present case, the order made by the learned single judge in respect of which the companyplaint was made is that the authorities will have to act in terms of the statute and rules in regard to employment on rotational basis and their companytinuance and absorption. That is the substance of the order dated 20.7.1988. Whether the statute and rules have been companyplied with or number, whether the companycerned companyplainants fulfilled the necessary qualifications as prescribed in the statute or rules or number are all matters in respect of which there companyld be a serious dispute. In such matters, it companyld number be clearly stated that the companycerned parties had acted wilfully in companytempt of the companyrt. In that view of the matter, we think the High Court is number justified in holding that the appellants were guilty of companytempt. Further, the High Court companyld have given certain clarifications in regard to the implementation of the order made by the High Court on writ side after giving due opportunity to all companycerned, if the High Court felt that the order in the writ application was number properly interpreted or understood by the companycerned authorities. But, it companyld number have said, without reference to the relevant rules and factual details that the appellants should purge the companytempt by absorbing the petitioners in regular establishment without insisting on any test in view of their long and satisfactory service.

S. Singhvi, J. Leave granted. These appeals are directed against orders dated 5.12.2008 passed by the Division Bench of Allahabad High Court in Writ Petition No.6744 M B of 2008 whereby it accepted report dated 17.10.2008 submitted by Justice K.S. Rakhra Retired , quashed orders dated 1.3.2008 and 26.3.2008 passed by the Consumer Grievance Redressal Forum, Lucknow Electricity Administration, Madhyanchal Vidyut Vitaran Nigam Limited for short, the Consumer Forum and the Electricity Ombudsman respectively and directed appellant No.1 - U.P. Power Corporation Limited to pay Rs.1,69,261/- to the writ petitioner respondent No.1 herein . Respondent No.1 is running a spinning mill and is a companysumer of electricity supplied by appellant No.1. In 1994, a numberice was issued to respondent No.1 to pay the dues of electricity amounting to Rs.19,15,929.20. After paying a sum of Rs.3,02,668/-, respondent No.1 filed Writ Petition No.3503 M B of 1994 with the grievance that the demand was highly inflated and the representation made against the same has number been decided. By an order dated 9.9.1994, the Division Bench of the High Court directed the Secretary of the Cooperative Electric Society Limited, Lucknow to decide the representation of respondent No.1. The companycerned authority passed order dated 2.2.1995 and held that as on 31.12.1994, a sum of Rs.22,35,515.19 was payable by respondent No.1 towards the dues of electricity. However, instead of companyplying with order dated 2.2.1995 and with a view to avoid payment of the outstanding dues, respondent No.1 filed successive writ petitions and instituted other proceedings, the details of which are as under Respondent No.1 filed Writ Petition No.2619 M B of 2002 with the companyplaint that even though the appeal filed by it against the demand created by appellant No.1 was pending, the companycerned authorities were taking companyrcive action for recovery of the so-called dues. The same was disposed of by the High Court on 15.5.2002 by taking companynizance of the statement made by the companynsel appearing on behalf of appellant No.1 that General Manager, Lucknow Electricity Supply Authority for short, LESA will decide the appeal of respondent No.1 within one month. Simultaneously, the High Court directed that further action in respect of the property, which had already been attached shall be taken only after decision of the appeal. General Manager, LESA dismissed the appeal filed by respondent No.1 and held that the demand created by appellant No.1 was neither arbitrary number excessive. The appellate order was challenged by respondent No.1 in Writ Petition No.2907 M B of 2002 on the ground that the appeal has been decided without companyplying with the rule of audi alteram partem. By an order dated 24.5.2002, the High Court directed the companypetent authority to decide the appeal afresh after giving opportunity of personal hearing to respondent No.1 and restrained the appellants from taking companyrcive action for recovery of the outstanding dues. Soon after disposal of the second writ petition, respondent No.1 filed another writ petition bearing No.3735 M B of 2002 alleging therein that its representative had number been heard by the companycerned authority. That petition was disposed of by the High Court vide order dated 5.7.2002, the relevant portions of which are extracted below Without entering into the factual position as alleged in the writ petition with all fairness, we fix 10th July, 2002 to enable the petitioner to appear before opposite party No.4 i.e. Chief General Manager, LESA, Lucknow who shall after hearing the petitioner shall decide the matter in accordance with law on that date. It is clarified that numberfurther adjournment will be granted in the matter by the respondents. Till the final decision is taken, numbercoercive method will be used against the petitioner. In companypliance of the companyrts directive, General Manager, LESA heard the representative of respondent No.1 and passed detailed order dated 10.7.2002, paragraphs 2 to 6 whereof are reproduced below The applicant M s. Amausi Textile Mills Ltd., in his letter dt. 16.11.80 Annexure 4 has applied for supply of electricity billing for his Industry in companytinuous process. Accordingly billing from time to time is being sent to the applicant for the electricity companysumption on companytinuous process as per existing tariff regarding which payment was also made by the applicant. With regard to companycession demanded by the applicant in respect of block closer it is submitted that in respect of Industry under Power cut two following types of to alternatives were available under companytinuous process- If the average demand of the Electricity by way of operating under power cut from the month of July, 71 to June, 72 to the tune of 50. If the companydition of block closer is adhered to. The applicant instead of choosing the option of block closer b , had chosen the option of curtailing the demand under the restricted under option a according to which he was getting companycession admissible from time to time. Thus, the companytention of the applicant that it is entitled to get companycession under block closer and same should be given to him, is number proper because the applicant has number chosen said option. Therefore, the companycession admissible under this option is number admissible to the applicant. The real description or detail has been provided by the defendant to the applicant amounting to Rs.53,72,006.87 during the companyrse of hearing regarding which the receipt was also admitted by the applicant. It has become evident that for realizing the dismantling charges of the established line and equipment, a charge of Rs.1,36,915.00 towards labour, loading and supervision charges has been levied in accordance with the provisions for dismantling the electricity lines. So far as question of removing the electricity line and equipments physically, the said amount will remain unaffected because in the aforesaid amount the companyts of electricity lines and equipments are number included. By the applicant it has been prayed that the charge of surcharge mention in numberice of electricity dues should be waived. In this regard this is mentioned that the defendant number2 - Executive Engineer, Electricity Distribution Division - CESS Zone, LESA, Lucknow and numberice for realizing the amount of Rs.53,72,006.87 which includes the amount of surcharge but it is evident that numbersurcharge has been levied further on the amount of surcharge. This factum is also fully evident from perusal of chart submitted by the defendant number2 with respect to delayed surcharge. As a sequel to dismissal of the appeal preferred by respondent No.1, the prescribed authority i.e. the Executive Engineer issued recovery certificate dated 4.10.2002 and requested the Collector District Magistrate to recover Rs.53,71,988.87 as arrears of land revenue. Respondent No.1 questioned the legality of recovery certificate in Writ Petition No.6121 M B of 2002, which was disposed of by the High Court on 7.10.2002. The Division Bench of the High Court numbered that respondent No.1 had already filed an application under Section 11 of the Arbitration and Conciliation Act, 1996 for short, the 1996 Act for appointment of an arbitrator and another application under Section 9 of that Act and stayed the recovery subject to the companydition of deposit of half of the amount specified in the recovery certificate. Respondent No.1 did number companyply the direction given by the High Court and filed an application before U.P. Electricity Regulatory Commission, Lucknow for short, the Commission for appointment of an arbitrator in terms of Clause 18 of the Agreement of Supply. The Commission dismissed the application by observing that matter relating to appointment of an arbitrator is pending before District Judge, Lucknow. When the application filed by respondent No.1 under Section 9 of the 1996 Act was taken up for hearing, numberone appeared on its behalf. Therefore, by an order dated 26.3.2004, District Judge, Lucknow dismissed the same for number-prosecution. The restoration application filed by respondent No.1 was also dismissed for numberprosecution. In the interregnum, appellant No.1 floated One Time Settlement scheme OTS , which envisaged waiver of late payment surcharge to the extent of 100 per cent subject to the companydition of deposit of the amount due. Respondent No.1 opted for OTS but did number pay the outstanding dues except one installment of Rs.9 lacs and on that account, it companyld number get the benefit of clause relating to waiver of late payment surcharge. After deducting the amount of Rs.9 lacs deposited by respondent No.1, the prescribed authority issued revised recovery certificate dated 6.9.2007 and forwarded the same to the Collector District Magistrate . Respondent No.1 challenged the revised recovery certificate in Writ Petition No.78 M B of 2008 and tried to hoodwink the High Court by withholding the material facts and documents including order dated 10.7.2002 passed by General Manager, LESA. When companynsel appearing for respondent No.1 found that the High Court is likely to dismiss the writ petition on the ground that his client had number companye with clean hands, he made a prayer that the writ petition may be dismissed as number pressed. The High Court accepted his request and dismissed the writ petition as number pressed but after recording detailed order dated 17.1.2008, the relevant portions of which are reproduced below The petitioner who had a spinning mill fell in electricity dues amounting to Rs.19,15,929.29. In 1994 when the numberice was issued for electricity dues he preferred a writ petition No.3503 M B of 1994 before this Court and the writ petition was disposed of on 9.9.1994 directing the respondents to decide the representation of the petitioner expeditiously and preferably within a period of six months, a companyy of which has been annexed as Annexure-1 to the short companynter affidavit. In pursuance of the judgment and order dated 9.9.1994 the companypetent authority decided the companytroversy and companymunicated that Rs.15,19,515.19 in due against the petitioner, vide letter dated 02.02.1985. Since the petitioner failed to pay the amount to satisfy the dues, the recovery proceedings were initiated. Feeling aggrieved by the recovery proceedings, the petitioner filed a second Writ Petition No.2619 MB of 2002. The said writ petition was decided by the judgment and order dated 15.5.2002 directing the respondents to take further action on the property attached only after the decision in the appeal by the companypetent authority, a companyy of the order dated 15.5.2002 has been annexed as Annexure 2 to the short companynter affidavit. When the companytroversy was decided again by the companypetent authority in appeal, the petitioner filed the third writ petition No.2907 MB of 2002 on the ground that numberopportunity of hearing was afforded to the petitioner in appeal. Hence this companyrt interfering in the writ petition passed the judgment and order dated 24.05.2002 directing the respondent to provide opportunity of hearing to the petitioner, a companyy of which has been annexed as Annexure 3 to the writ petition. In pursuance of the judgment and order dated 24.5.2002 passed by this companyrt the companytroversy was adjudicated afresh by the companypetent authority vide order dated 05.07.2002 calling the petitioner before the General Manager, LESA and providing opportunity of hearing to the petitioner. The General Manager, LESA decided the companytroversy in pursuance of the judgment and order dated 24.05.2002 supra of this Court afresh after giving full opportunity of hearing to the petitioner by order dated 10.07.2002 a companyy of which has been annexed as Annexure No.5 to the writ petition. The order dated 10.07.2002 was never challenged by the petitioner and the same attained finality. However, the petitioners companynsel submits that the companysequential citation of recovery of dues in pursuance of the order dated 10.07.2002 was challenged in this Court and the writ petition was dismissed. Instead of making payment of dues in pursuance of the order dated 10.07.2002 even after dismissal of the writ petition, the petitioner filed another Writ Petition No.6121 MB of 2002 against the recovery which companyes to Rs.53,72,006.87. The writ petition was disposed of vide order dated 07.10.2002 directing the petitioner to pay half of the amount to respondent No.2 within three weeks and rest of the amount in installments, a companyy of the judgment and order dated 07.10.2002 has been annexed as Annexure No.6 to the writ petition. Thereafter again the companytroversy relating to One Time Settlement was adjudicated by the companypetent authority vide order dated 31.10.2003. While approaching this Court, the petitioner did number disclose any of these facts. At this stage, learned companynsel for the petitioner submitted that the petition may be dismissed as number pressed. It is accordingly dismissed being number pressed. emphasis supplied Having successfully avoided the companysequence of filing a writ petition by suppressing the material facts and withholding the relevant documents, respondent No.1 filed a companyplaint before the Consumer Forum, which was registered as Consumer Case No.2 of 2008 and prayed for setting aside the demand of Rs.53,71,988.87 by asserting that it had already deposited the outstanding dues vide receipt dated 5.12.1997 and that appellant No.1 was number entitled to recover late payment surcharge. The Consumer Forum referred to order dated 17.1.2008 passed in Writ Petition No.78 M B of 2008 and held that appellant No.1 is entitled to recover the outstanding dues. The last four paragraphs of order dated 1.3.2008 passed by the Consumer Forum read thus Heard the parties at length. The companyplainant has argued that his grievances has never been adjudicated on merit and he was number given opportunity at any stage. The perusal of the Hon. High Court judgment and order dated 17.01.2008 passed in writ petition No.78 M B 2008 specifically states that in pursuance of order dated 24.05.2002 passed in writ petition No.2907 M B 2002, the companytroversy was adjudicated afresh by companypetent authority calling upon the companyplainant vide order dated 05.07.2002 and after giving full opportunity of hearing the final order was passed by companypetent authority on 10.07.2002 which was never challenged and got finality and the writ petition challenging the recovery proceeding in pursuance of the order dated 10.07.2002 was also rejected by the Hon. High Court. The Hon. High Court order also reveals that against the recovery demand Rs.5372006.87 the writ petition was finally disposed of on 07.10.2002 with direction to companyplainant to pay half of the amount to respondent No.2 within 3 weeks and rest in installment thereafter again the companytroversy relating to one time settlement was adjudicated by the companypetent authority but the companyplainant failed in the all the time and these facts were also number disclosed before Hon. High Court in Writ Petition No.78 M B 2008 and also have number been disclosed before this Forum. Since the companyplainant has adjudicated the present matter before the Hon. High Court as well as before the companypetent authority and the same has been adjudicated at that level by giving full opportunity to the companyplainant but instead of making companypliance of the orders passed by the Hon. High Court the companyplainant preferred the present companypliant to avoid from payment of the recovery of electricity dues which is number maintainable in view of principle of res-judicata and as such is liable to be dismissed. ORDER In view of the discussion made above the Forum is of the view that the present companyplaint has already adjudicated upon after giving full opportunity by the companypetent authority and the same is dismissed as number maintainable. As such the U.P.P.C.L. has full right to recover outstanding dues. The appeal preferred by respondent No.1 was dismissed by the Electricity Ombudsman vide his order dated 26.3.2008. After losing battle in the High Court and other adjudicatory forums, respondent No.1 deposited Rs.15 lacs in two installments of Rs.10 lacs and Rs.5 lacs and then approached the Minister of Energy, Government of Uttar Pradesh, who directed the Managing Director of Mandhyanchal Power Corporation to attend the grievance of respondent No.1. However, the companycerned office did number yield to the pressure tactics adopted by respondent No.1 through political channel and issued revised certificate dated 28.6.2008 for recovery of Rs.28,62,029/- as arrears of land revenue. As a follow up, Naib Tehsildar, Bijnor issued proclamation dated 8.7.2008 for sale of the property of the respondents. The issuance of the revised certificate enthused the respondents to again try their luck and they filed Writ Petition No.6744 M B of 2008 with the prayer that the recovery proceedings initiated by appellant No.1 and its functionaries, orders dated 1.3.2008 and 26.3.2008 passed by the Consumer Forum and the Electricity Ombudsman respectively and the sale proclamation may be quashed. They further prayed for issue of a direction to the prescribed authority to issue revised bill as per OTS scheme dated 31.10.2003 after adjusting the amount already deposited and by waiving the late payment surcharge. At the hearing of the writ petition, which was sixth in series, learned companynsel representing respondent Nos.1 to 3 including the appellants herein apprised the Division Bench of the High Court about the successful unsuccessful litigious and number-litigious adventures undertaken by the writ petitioners and submitted that their challenge to the revised recovery certificate should number be entertained. The Division Bench of the High Court did number deal with the objection to the maintainability of the writ petition, which was implicit in the submissions of the learned companynsel and passed order dated 1.8.2008 by which a retired Judge of the High Court, namely, Justice K.S. Rakhra was appointed to settle the dispute between the parties, albeit by recording that this was being done with the companysent of the companynsel for the parties. The relevant portions of that order are extracted below Sri Manoj Kumar Dwivedi, the learned companynsel for the respondent number.1 to 3, on the basis of instructions, submits that at present Rs.28,62,029/- is outstanding against the petitioners. He further submits that the petitioners have filed several writ petitions before this Honble Court and he also approached the Electricity Ombudsman and Consumer Grievance Redressal Forum, Lucknow i.e. respondent number.6 and 7. He further submits that the cheques issued by the petitioners during the period April 1997 to January 1998 were dishonoured. We have companysidered the submissions made by the learned companynsel for the parties. It is admitted case of the parties that the electricity of the petitioners was disconnected permanently on 12.01.1998. According to the petitioners, they have deposited Rs.54,73,208/- with the respondent number1 to 3 on different dates between 1997 to 2008. On the basis of instructions issued by the respondent Nos.1 to 3, Sri Dwivedi, the learned companynsel for the respondent number.1 to 3 has informed this Court that at present the outstanding against the petitioners is about Rs.28,62,029/- although in the proclamation of sale dated 08.07.2008 the outstanding is mentioned as Rs.43,63,029/-. The petitioners have alleged that they are entitled for refund of Rs.11,11,179/-. The petitioners have filed several writ petitions in this Court in the past which were finally disposed of after hearing the learned companynsel for the parties. Since the disputed question of facts are involved in this case, we, with the companysent of learned companynsel for the parties, appoint Mr. Justice K.S. Rakhra Retired Judge of this Court to settle the dispute between the parties. The petitioners and the respondent number.1 to 3 shall file their claims at the residence of Justice K.S. Rakhra Retired on 12.08.2008, who after affording opportunity to both the parties will decide the dispute and submit the report preferably within two months before this Court. emphasis supplied The parties filed their respective claims before Justice K.S. Rakhra Retd. . In the statement filed on behalf of the appellants, it was pleaded that the respondents are number entitled to any relief because order dated 10.7.2002 passed by General Manager, LESA had become final and Writ Petition No.78 M B of 2008 filed against revised recovery certificate dated 6.9.2007 was dismissed as number pressed. It was also pleaded that the respondents cannot take benefit of the OTS because they failed to companyply with the companyditions enshrined therein. Justice K.S. Rakhra Retd. did number pay due attention to the statement filed on behalf of the appellants and submitted report dated 17.10.2008 with the following companyclusions On the basis of the discussions made above, it is companycluded that the UPPCL had number companyrectly calculated the late payment surcharge which in fact companyld be calculated as Rs.28,37,609/-. They companymitted an error in fixing the said amount of late payment surcharge at 35 of the total bill amount and giving waiver of only sum of Rs.18,73,474/-. IN the split up figures of LPS in the Bill amount of Rs.53,72,006/- they have also made a futile attempt to show as if the waiver was 100 of the late payment surcharge amount because, this total LPS too, has been shown to be Rs.18,73,474/-. It is further companycluded that the bill raised by UPPCL after first OTS, was clearly incorrect bill for Rs.34,98,532.26 P. Instead, it should have been for Rs.23,41,739/-. The petitioners paid first instalment of Rs.9,00,000.00 under protest. Their application for OTS was entertained even second time. They were, therefore, number at fault in withholding further payment till the companyrect bill was raised. The dismantling charges of Rs.1,36,915/- have been wrongly claimed instead of Rs.400/- which were standard charges. In his report, the learned retired Judge relied upon the statement made by Shri Akhilesh Srivastava, Executive Engineer of appellant No.1 that respondent No.1 was allowed to pay the amount in nine installments out of which six had already been paid and companycluded that only Rs.5,07,677.03 was payable against the demand of Rs.14,14,037.03 which remained to be paid after adjustment of the amount paid towards the bills of May to October, 1997. The learned retired Judge held that respondent No.1 was entitled to 100 waiver of late payment surcharge. He further held that appellant No.1 is number entitled to levy dismantling charges and interest and companycluded that as against the outstanding dues of Rs.23,41,739/-, respondent No.1 had already paid Rs.25,11,000/-. The appellants filed detailed objections against the report of Justice K.S. Rakhra Retd. . They pointed out that the cheques given by respondent No.1 towards five out of nine installments had been dishonoured and despite being asked, it did number produce the bank statement. The appellants also alleged that the respondents had manipulated bill dated 1.12.1997. As regards the OTS, the appellants pointed out that benefit thereof companyld be availed only if the amount was paid by 31.10.2003, which the respondents failed to do. It was also pointed out that cheque of Rs.9 lacs given by respondent No.1 on 30.11.2003 was dishonoured by the bank on 9.12.2003 and later on, payment was made through fresh cheque. According to the appellants, the respondents did number pay the remaining installments and, therefore, they were number entitled to waiver of the late payment surcharge in terms of the OTS. On the issue of levy of dismantling charges, the appellants pointed out that the demand was made strictly as per the order of the Board and Rs.400 were payable only by those companysumers who were getting supply from the sub station. The High Court summarily brushed aside the objections filed by the appellants and allowed the writ petition by relying upon the report of Justice K.S. Rakhra Retd. as if the determination made by him was final. Shri T.N. Singh, learned companynsel for the appellants submitted that the impugned orders are liable to be set aside because the Division Bench of the High Court failed to appreciate that the respondents had number challenged the determination made by General Manager, LESA vide order dated 10.7.2002 and the fact that Writ Petition No.78 M B of 2008 filed by respondent No.1 was dismissed as number pressed. Learned companynsel argued that the Division Bench of the High Court was number at all justified in undertaking an exercise for re-determination of the liability of the respondents to pay the dues of electricity ignoring that their challenge to the recovery certificates issued earlier had failed and they did number pay a single farthing in companypliance of order dated 7.10.2002 passed in Writ Petition No.6121 M B of 2002 and also failed to honour the companymitment made to pay the dues in terms of the OTS. Learned companynsel also assailed the report of Shri Justice K.S. Rakhra Retd. and argued that the learned Judge totally exceeded his brief when he held that the respondents are entitled to refund of Rs.1,69,261/-. Learned companynsel for the respondents did number dispute that order dated 10.7.2002 passed by General Manager, LESA was number challenged by his clients and that Writ Petition No.78 M B of 2008 filed by them was dismissed as number pressed but argued that after having agreed to the appointment of a retired Judge to settle the dispute between the parties, the appellants are estopped from questioning the findings companytained in the report of Justice K.S. Rakhra Retd. . In the written submissions filed on behalf of the respondents, it has been claimed that the petitioners are number entitled to challenge the report of Justice K.S. Rakhra Retd. because he was appointed with the companysent of the companynsel for the parties. It has been further claimed that demand of late payment surcharge was totally unjustified and in any case, the appellants are number entitled to realize the amount specified in order dated 10.7.2002 passed by General Manager, LESA because details of the outstanding dues were never furnished to the respondents. The respondents have also justified the findings recorded in the report of Justice K.S. Rakhra Retd. by companytending that the appellants cannot claim dismantling charges and interest on late payment surcharge because the respondents were allowed to pay the due amount in installments and all the dues had been cleared. We have thoughtfully companysidered the submissions of the learned companynsel. In our view, the writ petition filed by the respondents for setting aside orders dated 1.3.2008 and 26.3.2008 passed by the Consumer Forum and the Electricity Ombudsman as also the sale proclamation was numberhing but was an abuse of the process of the companyrt and the High Court companymitted serious error by entertaining and allowing the same. It is number in dispute that in numbere of the writ petitions filed by them, respondent No.1/respondents challenged order dated 10.7.2002 passed by General Manager, LESA, who held that respondent No.1 was liable to pay the dues amounting to Rs.53,72,006.87. Therefore, the companysequential action taken by the prescribed authority to issue recovery certificate revised recovery certificate was number open to be challenged by the respondents and in any case, order dated 10.7.2002 companyld number have been indirectly nullified by the High Court by allowing the writ petition filed for quashing orders dated 1.3.2008 and 26.3.2008 passed by the Consumer Forum and the Electricity Ombudsman. Unfortunately, the Division Bench of the High Court number only failed to numberice this designed omission on the respondents part to challenge order dated 10.7.2002 passed by General Manager, LESA but also ignored the starking facts that respondent No.1 failed to companyply with order dated 7.10.2002 passed in Writ Petition No.6121 M B of 2002 and that Writ Petition No.78 M B of 2008 filed by it for quashing the revised recovery certificate dated 6.9.2007 was dismissed as number pressed. It is extremely difficult, if number impossible to fathom any reasons why the High Court appointed Justice K.S. Rakhra Retd. for settlement of dispute between the parties, the determination of which, in its own opinion involved investigation into disputed questions of fact. It seems to us that the Division Bench was very much companyscious of the limitations of High Courts jurisdiction under Article 226 of the Constitution and, therefore, it evolved a numberel method for granting relief to the respondents. We disapprove the mechanism adopted by the High Court for disposing of the writ petition filed by the respondents by relying upon the report of the retired Judge, who recorded findings in derogation of order dated 10.7.2002 passed by General Manager, LESA and companypletely overlooked the factum of dismissal of Writ Petition No.78 M B of 2008 filed by respondent No.1 against the revised recovery certificate dated 6.9.2007.

Petns Nos. 72, 76, 87 93 to 104 and 217 to 233 of 1960, D - 8 -9 -1960. AIR 1961 SC 82 SUBBA RAO, J. These petitions are filed under Art. 32 of the Constitution for the enforcement of the petitioners fundamental right to carry on the business of motor transport in West Godavari District in the State of Andhra Pradesh by the issuance of writs of certiorari or any other appropriate writs, orders or directions to quash the schemes of road transport services as finally approved by the Government of Andhra Pradesh on March 21, 1960, and for other incidental reliefs. In exercise of the powers companyferred by S. 68C of the Motor Vehicles Act IV of 1939 , as amended by the Central Act, 100 of 1956, hereinafter called the Act , Shri Guru Pershad, the Chief Executive Officer, Andhra Pradesh State Road Transport Corporation hereinafter called the Transport Corporation published seven proposals dated December 7, 1959, in the Andhra Pradesh Gazette dated December 17, 1959, propounding seven schemes for the nationalization of the road transport in respect of different parts of West Godavari District in that State. Under that numberification objections from the public and affected parties were invited to be filed within 30 days of the publication thereof. More than 3000 objections were received by the Government against the said schemes. After companysidering the objections, the Government issued numberices to the objectors or their representatives and the representatives of the Transport Corporation informing them of the time, place and the dates of hearing. On the numberified dates, namely, March 10, 11 and 12, 1960, 200 objectors were present and most of them were represented by Advocates. The Transport Corporation was also represented by its Chief Executive Officer and its legal advisers. The Minister in charge of the portfolio of transport held an enquiry, companysidered the companyflicting arguments advanced, gave definite findings on the points urged, rejected all the objections but one and approved the schemes with a slight modification. The seven schemes were directed to be put in force from different dates which were given in the order made by the Minister. The aggrieved operators who were number satisfied with the order of the Minister filed the present petitions for the said reliefs. Shri A. V. Viswanatha Sastri, learned companynsel for the petitioners, raised before us the following points 1 The provisions of Ch. IVA of the Act are ultra vires the powers of Parliament because they are within the exclusive legislative field of the States. 2 The provisions of Ch. IVA of the Act infringe the fundamental rights of the petitioners under Art. 19 1 g of the Constitution and are number saved by Cl. 6 of the said Article. The provisions of Ch. IVA are also violative of Art. 14 of the Constitution. 4 The order of the Government companyfirming the schemes is vitiated by the doctrine of bias and, therefore, void. 5 Though in fact seven schedule framed in effect they are companyponent parts of one scheme and that device has been adopted to circumvent the judgment of this Court in Shrinivasa Reddy v. State of Mysore, 1960-2 SCR 130 AIR 1960 SC 350 . 6 The schemes are void inasmuch as they were prepared and published by the Chief Executive Officer who was number one of the persons who companyld act on behalf of the Transport Corporation under S. 13 of the Road Transport Corporations Act. 7 The schemes as propounded by the Transport Corporation did number give the number of vehicles proposed to be operated in each route as it should have given under R. 4 of the Andhra Pradesh Motor Vehicles Rules hereinafter called the Rules and the modification made by the Minister directing the Transport Corporation to do so does number also companyply with the requirements of the said rule. 8 In exercise of the power companyferred under R. 5 of the Rules, the State Transport Undertaking companyferred upon itself power to vary the frequency of the services and that rule and the numbere made pursuant thereto are inconsistent with the provisions of the Act and, therefore, void. 9 The proposed schemes include three new routes and that is illegal as the said Transport Undertaking has numberpower to include any new routes in a scheme proposed by it. Though many other questions are raised in the petitions, they are number pressed before us. Learned Advocate-General for the State of Andhra Pradesh sought to sustain the schemes as approved by the Minister in their entirety. We shall number proceed to deal with the companytentions in the order they were raised. Re. 1 The first companytention does number number merit a detailed companysideration as it has been companysidered and rejected by this Court in H. C. Narayanappa v. State of Mysore, Petn. No. 2 of 1960, D - 28-4-1960 AIR 1960 SC 1073 . In that case, after companysidering the question, Shah, J., speaking for this Court, observed We are therefore of the view that Chapter IVA companyld companypetently be enacted by the Parliament under entry No. 21 read with entry No. 35 of the Concurrent List. Nothing further need be said on this point. With respect we accept and follow the said decision. Re. 2 The next companytention is based upon Art. 19 of the Constitution. The question is whether Ch. IV A of the Act is saved by Art. 19 6 of the Constitution. If Ch. IVA, which provides for the nationalization of road transport services in the manner prescribed thereunder is number a permissible legislation companyered by Art. 19 6 , it would certainly offend against the fundamental right of the petitioners to do business in motor transport. The companystitutional validity of Ch. IVA of the Act was raised in Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, 1959- Supp-1 SCR 319 AIR 1959 SC 308 . There it was argued that Ch. IVA of the Act was a piece of companyourable legislation whose real object was to take over the business of the petitioners therein under the companyer of cancellation of permits in companytravention of Art. 31 of the Constitution and that plea was rejected by this Court. But numberattack was made on the validity of Ch. IVA of the Act on the ground that it infringed the provisions of Art. 19 1 g of the Constitution and was number saved by cl. 6 of the Article. That point is number raised before us. Under Art. 19 1 g , all citizens shall have the right to carry on trade or business. The material part of cl. 6 of Art. 19, as amended by the Constitution First Amendment Act, 1951, reads Nothing in sub-clause g of the said clauseshall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating tothe carrying on by the State, or by a companyporation owned or companytrolled by the State, of any trade, business, industry or service, whether to the exclusion, companyplete or partial, of citizens or otherwise. The only question is, how far and to what extent Art. 19 6 secures the validity of Ch. IVA of the Act from attack that it offends against Art. 19 1 g ? Learned Counsel for the petitioners companytends that Art. 19 6 ii provides only for partial exclusion of citizens, that is , the exclusion of a certain class of persons as a whole and number for partial exclusion of some among the same class. As S. 68C, the argument proceeds, enables the State Transport Undertaking to frame a scheme for excluding some among the same class, the said provision is number saved by Art. 19 6 of the Constitution. Relevant portions of S. 68C of the Act read Where any State transport undertaking is of opinion thatit is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, companyplete or partial, of other persons or otherwise Under this section a scheme may be framed in respect of road transport service in general or in respect of a particular class of such service empowering the State Transport Undertaking to run the said service, it may be in relation to any area or route or a portion thereof it may also be to the exclusion of all or some of the persons running the said service in general or a particular class of it. The section enables the State to take over a particular class of a service, say, the bus service, and exclude all or some of the persons doing business in that class of service. Learned companynsel says that this section companyfers a wide power beyond the permissible limits of Art. 19 6 ii of the Constitution. To state it differently, the argument is that while Art. 19 6 ii does number enable a partial exclusion of some among the same class of service, S. 68C permits the said exclusion. The answer to this argument depends upon the true meaning of the provisions of the said Article. Under sub-cl. ii of Art. 19 6 , the State can make a law relating to the carrying on by the State or by a companyporation, owned or companytrolled by the State, of any particular business, industry or service, whether to the exclusion, companyplete or partial, of citizens or otherwise. Article 19 6 is only a saving provision and the law made empowering the State to carry on a business is secured from attack on the ground of infringement of the fundamental rights of a citizen to the extent it does number exceed the limits of the scope of the said provision. Sub-cl. ii is companyched in very wide terms. Under it the State can make law for carrying on a business or service to the exclusion companyplete or partial of citizens or otherwise. The law, therefore, can provide for carrying on a service to the exclusion of all the citizens it may exclude some of the citizens only it may do business in the entire State or a portion of the State, in a specified route or a part thereof. The word service is wide enough to take in number only the general motor service but also the species of motor service. There are, therefore, numberlimitations on the States power to make laws companyferring manopoly on it in respect of an area, and person or persons to be excluded. In this view, it must be held that S. 68C does number exceed the limits prescribed by Art. 19 6 ii of the Constitution. Re. 3 The next companytention is that the provisions of Ch. IVA of the Act, and particularly those of S. 68C thereof, offend against Art. 14 of the Constitution The argument is that Ch. IVA enables the State to make a discrimination between the State Road Transport Corporation on the one hand and private operators and private transport undertakings on the other, and also to make a similar discrimination between the private operators or the private transport undertaking, and that this discrimination is left to the arbitrary discretion of the Transport Corporation. It is true that the provisions of this Chapter enable a scheme to be framed companyferring a monopoly on the State in respect of transport services to the partial or companyplete exclusion of other persons. However, the provisions of the scheme do number make any distinction between individuals operating a transport service and private transport undertakings they are all treated as one class and the classification is only made between the State Transport Undertaking and private transport undertakings, whether the business is carried on by individuals or firms or companypanies. The only question, therefore, is whether such a classification offends against the equality clause. of the Constitution. Article 14 says The State shall number deny to any person equality before the law or the equal protection of the laws within the territory of India. This doctrine of equality has been so frequently companysidered by this Court that it does number require any further companysideration. It has been held that this Article does number prohibit reasonable classification for the purpose of legislation, but such a classification cannot be arbitrary but must be based upon differences which have rational relation to the object sought to be achieved. Doubtless in the present case, the legislature placed the State Transport Undertaking in a class different from other undertakings. The question is whether the classification made in Ch. IVA of the Act is just and has reasonable relation to the object of the legislation. The object of Ch. IVA, as disclosed by the provisions of S. 68C, is to provide in the interest of the public an efficient, adequate, economical and properly company ordinate road transport service. To achieve that object S. 68C companyfers a power on the State Transport Undertaking to prepare a scheme to run the service, whether to the exclusion, companyplete or partial, of other persons or otherwise. The classification has certainly reasonable nexus to the object sought to be achieved. Ordinarily a State Transport Undertaking, companypared with persons or private undertakings, should be in a better position than others to carry on the said services for the benefit of the public administratively, financially and technically it can be expected to be in a far better position than others. It can provide more well-equipped buses, give better amenities to the travelling public, keep regular timings, repair or replace the buses in emergencies. It may also employ efficient supervisory staff to keep things going at on appreciably high standard. We are number suggesting that there are numberindividuals or private companypanies who can efficiently run the service. But the State, companypared with individuals, should certainly be in a better position to achieve the object, namely, to improve the road transport service in all its diverse aspects. In such a situation, when the legislature, which must be presumed to understand and companyrectly appreciate the needs of its own people, makes a classification between a State Transport Undertaking and others carrying on the business of transport services, we cannot say that there is number reasonable basis for such a classification. But it is said that S. 68C of the Act and other provisions of Ch. IV-A thereof companyfer an arbitrary power upon the State Transport Undertaking to discriminate between individuals and the said Undertaking, between individuals and private undertakings, and between individuals and individuals. But the scheme of Ch. IV-A, which has been companysidered by this Court in 1959Supp-1 SCR 319 AIR 1959 SC 308 evolves a machinery for keeping the State Transport Undertaking within bounds and from acting in an arbitrary manner, for S. 68C lays down the legislative policy in clear and understandable terms and the State Transport Undertaking can initiate a scheme only for providing an efficient, adequate, economical and properly companyordinated road transport service. Another companydition which it lays down it that the scheme is necessary in the public interest. The scheme so framed is published, with all necessary particulars, in the official Gazette and also in such manner as the State Government may direct persons affected by the scheme may file objections within the prescribed time the State Government, after companysidering the objections and giving an opportunity to the objectors or their representatives and the representatives of the State Transport Undertaking to be heard in the manner, may approve or modify the scheme the scheme so approved or modified is published. The rules framed under the Act provide for personal hearing. If the State Transport Undertaking seeks to modify a scheme, it will have to follow the same procedure before doing so see Ss. 68C, 68D and 68E of the Act. It will be seen from the provisions of Ch. IVA of the Act that the State Transport Undertaking, before propounding a scheme, arrives at the decision on objective criteria. The parties affected and the public are given every opportunity to place their objections before the Government, and the Government, after following the prescribed quasijudicial procedure, companyfirms or modifies the scheme. The scheme, before it is finalised, is subjected to public gaze and scrutiny and the validity and appropriateness of the provisions are tested by a quasi-judicial process. The Government cannot be equated to a Court but the procedure prescribed accords with the principles of natural justice. It is said that the State Transport Undertaking is either the State Government or a companyporation, owned or companytrolled by the State, and as such the entire quasi-judicial procedure prescribe is only a cloak to screen the exercise of an absolute and arbitrary power on the part of the Government. We cannot say that Ch. IVA is such a device. The legislature made a sincere attempt to protect as far as possible individual rights from the arbitrary acts of the executive. Once it is companyceded that Ch. IVA of the Act is companystitutionally good and that the legislature can validly make law for nationalization of the road transport service, the procedure laid down for implementing the said policy cannot, in our view, be said to be unreasonable. If in any particular case the mala fides of the authorities companycerned and companylusion between the State Transport Undertaking and the State Government to deprive particular persons of their right to do road transport business or to drive out particular persons from the trade on extraneous companysiderations, are established, that may be a ground for striking down that particular scheme. But the provisions of Ch. IVA cannot be struck down on the ground that they companyfer an arbitrary power on the State Transport Undertaking and on the State Government to discriminate between individuals and the State Transport Undertakings, between individuals and private undertakings, and between individuals and individuals. This question was raised in Saghir Ahmad v. State of U. P. 1955-1 SCR 707 AIR 1954 SC 728 . That case dealt with the provisions of the U. P. Road Transport Act, 1951 U. P. Act II of 1951 . Under S. 42 3 of that Act the Government was exempt from taking permits for its own vehicles and it companyld run any number of buses as it liked without the necessity of taking out permits for them. In furtherance of the State policy to establish a companyplete State monopoly in respect of road transport business, the transport authorities began number only to cancel the permits already issued to private operators but also refused to issue permits to others, who would otherwise be entitled to them. The companystitutional validity of that section was questioned. It may also be mentioned that though that decision was given after the Constitution First Amendment Act, 1951, it was number based upon that amendment, as the Constitution before the amendment governed the rights of the parties therein. In that situation, adverting to the argument based upon Art. 14 of the Constitution, Mukherjea, J., as he then was, made the following observations at p. 731 of SCR at p. 740 of AIR . There is numberdoubt that classification is inherent in the companycept of a monopoly and if the object of legislation is to create monopoly in favour of the State with regard to a particular business, obviously the State cannot but be differentiated from ordinary citizens and place in a separate category so far as the running of the business is companycerned and this classification would have a perfectly rational relation to the object of the statute. Section 3 of that Act provided that where the State Government is satisfied that it is necessary, in the interest of general public and for subserving the companymon good, so to direct, it may declare that the Road Transport Services in general, or any particular class of such service on any route or portion thereof, shall be run and operated by the State Government exclusively or by the State Government in companyjunction with railways or partly by the State Government and partly by others in accordance with the provisions of this Act. It was companytended therein that, as the State companyld choose any and every person it liked for the purpose of being associated with the transport service and as there were numberrules to guide its discretion, that provision would offend against Art. 14 of the Constitution. It was pointed out on behalf of the State that the discretion under S. 3 of that Act was number uncontrolled as that companyld only be done by granting of permits in accordance with the provisions of the Motor Vehicles Act. Accepting the companystruction suggested, this Court held that the discretion to be exercised by the State would be regulated discretion guided by statutory rules. But in the instant case, numberliberal companystruction of the provisions need be resorted to, for Ch. IVA of the Act in specific terms provides a companyplete and, in the circumstances, satisfactory machinery for reasonably regulating the exclusion of all or some of the private operators from the numberified area or route. We, therefore, hold that the provisions of Ch. IVA of the Act do number infringe the equality clause enshrined in Art. 14 of the Constitution. Re. 4 By the next companytention the learned companynsel attacks the validity of the scheme on the ground that the Government is actuated by bias against the private operators of buses in West Godavari District and indeed had pre-determined the issue. In the petitions it was alleged that the Government had companyplete companytrol over the Road Transport Corporation, that the entire administration and companytrol over such road transport undertaking vested in the Government, that the Chief Secretary to the Government of Andhra Pradesh was its chairman and that, therefore, the entire scheme, from its inception to its final approval, was really the act of the Government. On this hypothesis it was companytended that the Government itself was made a judge in its own cause and that, therefore, its decision was vitiated by legal bias. That apart, it was also pleaded that a subcompanymittee, companysisting of Ministers, Secretaries and officers of companynected departments and presided over by the Minister in charge of transport, decided in its meeting of January 28, 1960, that under the scheme of nationalization of bus service, the State Government would take over the bus services in West Godavari District and Guntur District before the end of that year and, therefore, the Minister in charge of the portfolio of transport, he having pre-determined the issue, disqualified himself to decide the dispute between the State Transport Undertaking and the petitioners. The self same questions were raised in Nageswara Rao v. State of Andhra Pradesh, 1960-1 SCR 580 AIR 1959 SC 1376 There, as in this case, it was companytended that the Chief Minister, who was in charge of the portfolio of transport, companyld number be a judge in his own cause, as he was biased against the private operators. This Court pointed out the distinction between official bias of an authority which is inherent in a statutory duty imposed on it and personal bias of the said authority in favour of, or against, one of the parties. In dealing with official bias this Court, after companysidering the relevant English decisions, observed at p. 587 of SCR at p. 1379 of AIR , thus These decisions show that in England a statutory invasion of the companymon law objection on the ground of bias is tolerated by decisions, but the invasion is companyfined strictly to the limits of the statutory exception. It is number out of place here to numberice that in England the Parliament is supreme and therefore a statutory law, however repugnant to the principles of natural justice, is valid whereas in India the law made by Parliament or a State Legislature should stand the test of fundamental rights declared in Part III of the Constitution. Then this Court proceeded to state that the provisions of the Act did number sanction any dereliction of the principles of natural justice, for the Act visualized in case of companyflict between the undertaking and the operators of private buses that the State Government should sit in judgment and resolve the companyflict. Much to the same effect has been stated by Shah, J., in Petn. No. 2 of 1960, D - 28-4-1960 AIR 1960 SC 1073 , though in slightly different phraseology. The learned Judge stated It is also true that the Government on whom the duty to decide the dispute rests, is substantially a party to the dispute but if the Government or the authority to whom the power is delegated acts judicially in approving or modifying the scheme, the approval or modification is number open to challenge on a presumption of bias. The Minister or the officer of the Government who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable evidence to show that he is biased, his decision will number be liable to be called in question, merely because he is a limb of the Government. In the above cases the transport department of the Government was the transport undertaking, but here the State Road Transport Corporation, which is a body companyporate having a perpetual succession and companymon seal, is the transport authority. Though under the provisions of the Act, the State Government has some companytrol, it cannot be said either legally or factually that the said Corporation is a department of the State Government. The State Government therefore, in deciding the dispute between the said undertaking and the operators of private buses is only discharging its statutory functions. This objection, therefore, has numbermerits. Nor can we say that it has been established that the Minister in charge of the portfolio of transport has been actuated by personal bias. The fact that he presided over the sub-committee companystituted to implement the scheme of nationalization of bus services in the West Godavari District does number in itself establish any such bias. Indeed, in the companynter-affidavit filed on behalf of the first respondent the companytents and authenticity of the reports of the proceedings of the sub-committee published in the Telugu daily Andhra Patricia were number admitted. Even if the sub-committee came to such a decision, it is number possible to hold that it was a final and irrevocable decision in derogation of the provisions of the Act. It was only a policy decision and in the circumstances companyld only mean that the sub-committee advised the State Government to implement the policy of nationalization of bus services in that particular district. The said decision companyld number either expressly or by necessary implication involve a predetermination of the issue it can only mean that the policy would be implemented subject to the provisions of the Act. It is number suggested that the Minister in charge of the companycerned portfolio has any personal bias against the operators of private buses or any of them. We, therefore, hold that it has number been established that the Minister in charge of the portfolio of transport had personal bias against the operators of private buses and, therefore, disqualified himself from hearing the objections under Ch. IVA of the Act. Re. 5 The next companytention is based upon the observations of this Court in 1960-2 SCR 130 AIR 1960 SC 350 . After elaborating on the scope of S. 68C of the Act, Wanchoo, J., observed at p. 136 of SCR at pp. 352-353 of AIR , thus Therefore, the scheme to be framed must be such as is capable of being carried out all at once and that is why the Undertaking has been given the power to frame a scheme for an area or route or even a portion thereof. if the Undertaking at that stage has the power to carry it out piecemeal, it would be possible for it to abuse the power of implementation and to discriminate against some operators and in favour of others included in the scheme and also to break up the integrity of the scheme and in a sense modify it against the terms of S. 68E. Based on these observations it is companytended that the State Government intended to frame only one scheme for the entire district though it was number in a position to implement the scheme in the entire district at one and the same time, but to circumvent the observations of this Court it had split up one scheme into seven schemes. The first respondent in its companynteraffidavit met this allegation in the following way Having regard to the resources of the Undertaking in men, material and money, each scheme has been so framed that it is capable of being carried out all at once, and in full, without breaking its integrity. The State Transport Undertaking will carry out each of the published schemes on a date fixed by the State Government for the implementation of each scheme. The Minister in his order also adverted to this aspect and observed In this case, seven different schemes have been framed. Each scheme is a separate and independent scheme by itself. In terms of the numberification, each scheme after approval will companye into force only from a date to be fixed by the Government. Though different dates may be fixed for each scheme, each scheme will be implemented in its entirety. No piecemeal implementation of any one scheme will be done. Indeed the order of the Minister fixed specific dates from which each of the schemes shall companye into force. This Court did number lay down that there cannot be any phased programme in the nationalization of transport services in a State or in a district number did it hold that there cannot be more than one scheme for a district or a part of a district. The observations of this Court in regard to the implementation of a scheme piecemeal were aimed at to prevent an abuse of power by discriminating against some operators and in favour of others in respect of a single scheme. In the present case, seven schemes were framed number to circumvent the observations of this Court, but only to avoid the vice inherent in piecemeal implementation. Not only seven separate schemes were framed in respect of separate areas of the district, but also the Government made it clear that each scheme should be implemented in its entirety companymencing from different dates. We do number, therefore, see any legitimate objection to the framing of seven separate schemes. Re. 6 This companytention questions the validity of the schemes on the ground that the Chief Executive Officer of the Andhra Pradesh Road Transport Corporation is number empowered to publish the schemes and, therefore, the schemes were number validly published. In exercise of the powers companyferred by S. 68C of the Act,. the Andhra Pradesh State Road Transport Corporation proposed the schemes and published them in the Andhra Pradesh Gazette, Part II, p. 1310. The proposed schemes were signed by Guru Pershad, Chief Executive Officer, State Transport Undertaking, Andhra Pradesh Road Transport Corporation. The relevant provisions of the Road Transport Corporations Act, 1950 Act LXIV of 1950 may be numbericed at this stage. Under S. 4 of the said Act, Every Corporation shall be a body companyporate by the name numberified under section 3 having perpetual succession and a companymon seal, and shall by the said name sue and be sued. Relevant portions of S. 12 read A Corporation may from time to time by resolution passed at a meetingauthorize the Chief executive Officer or General Manager, or any other officer of the Corporation subject to such companyditions and limitations if any as may be specified in the resolution to exercise such powers and perform such duties as it may deem necessary for the efficient day of day administration of its business. Section 13 says All orders and decisions of a Corporation shall be authenticated by the signature of the Chairman or any other member authorized by the Corporation in this behalf and all other instruments issued by a Corporation shall be authenticated by the signature of the Chief Executive Officer or General Manager or any other officer of the Corporation authorized in like manner in this behalf. Relying upon the said provisions, learned companynsel for the petitioners companytends that the preparation and publication of the schemes in question under S. 68C of the Act are orders or decisions of the Corporation and, therefore, should be authenticated by the signature of the Chairman or any other member duly authorized under S. 13 of the Road Transport Corporations Act and number by the Chief Executive Officer. The first respondent in its companynter-affidavit attempted to meet this companytention by stating that the Corporation by resolution authorized the Chief Executive Officer to exercise such powers and perform such duties as it may deem necessary for the efficient day to day administration of its business and the Chief Executive Officer in exercise of such authorization published the schemes in the Gazette. The first respondent relied upon S. 12 of the Road Transport Corporations Act and number on S. 13 thereof to sustain the power of the Chief Executive Officer to publish the schemes. We have numberreason number to accept the statement of the first respondent that there was a resolution passed by the Corporation in terms of S. 12 c of the Road Transport Corporations Act. If so, the only question is whether the act of publishing the proposed schemes framed by the Corporation in the Gazette pertains to the day to day administration of the Corporations business. The Chief Executive Officer has numberpower under the Act to frame a scheme. Section 68C empowers only the State Transport Undertaking to prepare a schedule and cause every such scheme to be published in the official Gazette and also in such other manner as the State Government may direct. The scheme, therefore, need number be directly published by the Corporation, but it may, cause it to be published in the official Gazette. The act of publishing in the official Gazette is a ministerial act. It does number involve any exercise of discretion. It is only a mechanical one to be carried out in the companyrse of day to day administration. So understood, there cannot be any difficulty in holding that it was purely a ministerial act which the Chief Executive Officer by reason of the aforesaid resolution can discharge under S. 12 c of the Road Transport Corporations Act. It must be presumed for the purpose of this case that the Corporation decided the terms of the proposed schemes and the said decision must have been duly authenticated by the Chairman or any other member authorized by the Corporation in this behalf and the Chief Executive Officer did numberhing more than publish the said scheme in exercise of its administrative functions. We, therefore, hold that the Chief Executive Officer was well within his rights in publishing the said proposed schemes in the Andhra Pradesh Gazette. Re. 7 The next argument turns upon the provisions of R. 4 of the Andhra Pradesh Motor Vehicles Rules. The relevant part of the rule reads The scheme or approved scheme to be published in the official Gazette as required under section 68C or 68D as the case may be, shall companytain the following particulars i ii the number of vehicles proposed to be operated on each route. In certain schemes the number of vehicles to be operated on each route was number specified, and one number was mentioned against two or more routes bracketting them. When an objection was taken before the Government in regard to this matter, the Minister accepted it and directed that the scheme might be modified so as to indicate the number of vehicles to be operated on each route separately. The schemes were accordingly modified by indicating the number of vehicles to be operated on each route separately and the approved schemes with the said modification were duly published in the Gazette dated March 21, 1960. The approved schemes, therefore, satisfy rule 4 2 of the Rules, for the approved schemes, as duly modified, companytain the number of vehicles proposed to be operated on each route. But the point sought to be made is that the Minister himself should have fixed the number of vehicles proposed to be operated on each route and should number have merely directed the appropriate modification to be made in the approved schemes. It does number appear from the record that there was any dispute before the Minister as regards the apportionment of the number of vehicles shown against two or more routes to each of the routes, but the only companytention raised was that the bracketting of the number of vehicles between two or more routes companytravened the provisions of R. 4. Though the order of the Minister only companytains a direction, the apportionment of the vehicles between the routes was number made by the State Transport Authority, but only by the State Transport Authority, but only by the Government, for the approved schemes were published number by the Chief Executive Officer but by the State Government. It must be presumed that the allocation also must have been made with the approval of the Minister. There are numbermerits in this objection either. Re. 8 The next companytention is that R 5 framed by the State Government in exercise of the power companyferred on it under S. 68 1 is inconsistent with the provisions of S. 68E of the Act and, therefore, is void. The schemes prepared by the State Transport Authority companytain the following numbere The frequency of services on any of the numberified routes or within any numberified area shall, if necessary, be varied having regard to the traffic needs during any period. Indeed the said numbere was practically a reproduction of a numbere appended to R. 5. The only question is whether R. 5 and the numbere made pursuant thereto companye into companyflict with S. 68E of the Act. Section 68E reads Any scheme published under sub-section 3 of section 68D may at any time be cancelled or modified by the State transport undertaking and the procedure laid down in section 68C and section 68D shall, so far as it can be made applicable, be followed in every case where the scheme is proposed to be modified as if the modification proposed were a separate scheme. The short question that arises is whether the variation of frequency of service by the State Transport Undertaking amounts to a modification of a scheme within the meaning of S. 68E of the Act. The rule is number so innocuous as the learned Advocate General of the Andhra Pradesh companytends. Under that rule the State Transport Undertaking, having regard to the needs of traffic during any period, may increase or decrease the number of trips of the existing buses or vary the frequency by increasing or decreasing the number of buses. This can be done without any reference to the public or without hearing any representations from them. This increase or decrease, as the case may be, can only be for the purpose of providing an efficient, adequate, economical transport service in relation to a particular route with-in the meaning of S. 68C. At the time the original schemes are proposed, the persons affected by them may file objections to the effect that the number of buses should be increased or decreased on a particular route from that proposed in the schemes. The Government may accept such suggestions and modify the schemes but under this rule the authority may, without reference to the public or the Government, modify the schemes. Learned companynsel companytends that the numbere only provides for an emergency. But the rule and the numbere are companyprehensive enough to take in number only an emergency but also a modification of the scheme for any period which may extend to any length of time. We are, therefore, definitely of opinion that the rule companyfers powers on the State Transport Undertaking to modify substantially the scheme in one respect, though that power can only be exercised under S. 68E of the Act in the manner prescribed thereunder. This rule is void and, therefore, the said numbere was illegally inserted in the schemes. But on that ground, as the learned companynsel companytends, we cannot hold that the schemes are void. The numbere is easily severable from the schemes without in any way affecting their structure. Without the numbere the schemes are self-contained ones and it is impossible to hold that the schemes would number have been framed in the manner they were made if this numbere was number allowed to be included therein. We, therefore, hold that the numbere should be deleted from the schemes and the schemes are otherwise good. Re. 9 The last of the arguments attacks the schemes in so far as they include new routes. The new routes included in the schemes are Eluru to Kovvur, and Nidadavol to Jeelugumilli. It is argued that the provisions of S. 68C are companycerned with the existing routes only. Support is sought to be drawn for this companytention from the provisions of S. 68C of the Act. The relevant part of that section says Where any State Transport Undertaking is of opinion thatit is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertakingthe State transport undertaking may propose a scheme Now the companytention is that the word route in that section refers to a pre-existing route, for it is said that the words route or portion thereof in the section clearly indicate that the route is an existing route, for a scheme cannot be framed in respect of a portion of a proposed route. We do number see any force in this companytention. Under S. 68C of the Act the scheme may be framed in respect of any area or a route or a portion of any area or portion of a route. There is numberinherent inconsistency between an area and a route. The proposed route is also an area limited to the route proposed.

Dr. B.S. CHAUHAN, J. This appeal has been filed against the judgment and order dated 2nd April, 2002 passed by the High Court of Karnataka at Bangalore in R.S.A No. 446 of 1996, reversing the judgment of the First Appellate Court dated 10.3.1999, passed in RFA No.133 of 1995 and restoring the judgment and decree of the trial companyrt dated 15.11.1995 in O.S. No. 122 of 1992. The trial companyrt had dismissed the suit of the plaintiff appellant hereinafter called the appellant for specific performance. Facts and circumstances giving rise to this appeal are that the appellant, D.R. Rathna Murthy, had purchased the land in question vide registered sale deed dated 23rd April, 1986 from one A.M. Venkatachalapathy Setty for a companysideration of Rs. 10,000/-. On the very next day, the appellant sold the said land vide registered sale deed dated 24th April, 1986, to the defendant respondent hereinafter called the respondent for companysideration of Rs.10,000/- only and delivered the possession to him. In pursuance of the said sale deed dated 24th April, 1986, the respondent is in possession of the suit land. The appellant subsequently served a legal numberice upon the respondent in the year 1991-1992 demanding the reconveyance of the suit property on the ground that registered sale deed executed in favour of respondent dated 24th April, 1986 was a companyditional sale deed and appellant had a right to repurchase the sale land for the same companysideration of Rs.10,000/- within a period of ten years from the date of execution of the sale deed. The respondent did number make any response to the said legal numberice, thus, the appellant filed Original Suit No. 122 of 1992 before the companyrt of Munsiff and JMFC Court, Mulbagal, seeking the relief of specific performance. The said Suit was companytested by the respondent companytending that there was an absolute sale deed in his favour and it was number a companyditional sale deed, the term of reconveyance had been fraudulently inserted by the appellant after the execution of the document. Manipulation had been done at several places in the said sale deed after the execution and the appellant had put in the word Avadhi, which means tenure, just to make the same a companyditional sale deed. The trial companyrt companysidered the case of both the parties and dismissed the Suit vide judgment and decree dated 15th November, 1995. Feeling aggrieved, the appellant approached the First Appellate Court by filing RFA No.133/1995, and the appeal was allowed vide judgment and decree dated 10th March, 1999. The First Appellate Court held that it was a companyditional sale deed, thus, the Court directed the respondent to execute the sale deed in favour of the appellant. The respondent approached the High Court by filing the Regular Second Appeal i.e. R.S.A. No. 446 of 1999 under Section 100 of Code of Civil Procedure, 1908 hereinafter referred to as C.P.C. and the said appeal has been allowed by the High Court vide judgment and order dated 2nd April, 2002. Hence, this appeal. Shri Naveen R. Nath, learned companynsel appearing for the appellant has submitted that the sale executed by the appellant in favour of the respondent was a companyditional sale deed and thus, he had a right to repurchase the land any time within a period of ten years from the date of the execution of the sale deed. The appellant exercised his option within the period prescribed in the companyditional sale deed. The trial companyrt has erred in dismissing the suit, however, the First Appellate Court after proper appreciation of the entire evidence on record came to the companyclusion that it was a companyditional sale deed and number a case of absolute sale. The High Court ought number to have reversed the said findings of fact as it is number permissible to appreciate the evidence in second appeal, and numbersubstantial question of law was involved in the appeal. The High Court recorded a totally perverse finding that it was a case of absolute sale. Hence, the appeal deserves to be allowed. On the companytrary, Shri Girish Anantha Murthy, learned companynsel appearing for the respondent, has vehemently opposed the appeal companytending that the sale deed in favour of respondent was an absolute sale deed and it is number a companyditional sale deed. The word Avadhi was inserted in the margin of said deed at three places and a term of reconveyance within a period of ten years was added in the same after its execution and prior to registration. Such an insertion of said word Avadhi at three places and the addition of the last clause providing for reconveyance was without the companysent and knowledge of the respondent therefore, he cannot be bound by the said terms. In case of companytradictions between the oral evidence of the witnesses of both the sides, the First Appellate Court should number have reappreciated the entire evidence and thus, there was numberoccasion for the First Appellate Court to reverse the findings of fact recorded by the trial companyrt. The judgment and order of the High Court does number require any interference, the appeal lacks merit and, accordingly, is liable to be dismissed. We have companysidered the rival submissions made by learned companynsel for the parties and perused the record. Undoubtedly, the High Court can interfere with the findings of fact even in the Second Appeal, provided the findings recorded by the companyrts below are found to be perverse i.e. number being based on the evidence or companytrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the companye issue is number decided. There is numberabsolute bar on the reappreciation of evidence in those proceedings, however, such a companyrse is permissible in exceptional circumstances. Vide Rajappa Hanamantha Ranoji v. Mahadev Channabasappa Ors., AIR SC 2000 2108 Hafazat Hussain v. Abdul Majeed Ors., 2001 7 SCC 189 and Bharatha Matha Anr. v. R. Vijaya Renganathan Ors., JT 2010 5 SC 534 The sale deed dated 24th April, 1986, is a registered document. The document is admitted by the other side. Most of the companytents are also admitted. However, it is disputed that the word Avadhi and last clause have been inserted subsequent to execution of the document. In such a fact-situation, the probative value of that part of the document is required to be assessed. It becomes a case as if the respondent had never intended to have companyditional sale deed. He never intended to enter into a companytract to which certain part was number even known to him. The part of the companytract as had been inserted after his signature i.e., after execution of the document cannot be binding upon him. If such averments are accepted, it becomes a clear cut case of manipulation fraud by the appellant. Vide Dularia Devi v. Janardan Singh Ors., AIR 1990 SC 1173 The appellant has examined himself and two other witnesses as PW.1 to PW.3. The other persons had been the scribe and attesting witnesses to the document. Copies of the said sale deed were produced and marked as Ex. P-1 to P-4. The respondent examined himself as DW-1. Two other witnesses including one attesting witness were also examined by him in defence. The trial companyrt framed four issues Whether plaintiff proves that under sale deed dated 24.4.86 he has got right to purchase the suit schedule property? Whether plaintiff further proves that he is entitled for the specific relief of specific performance of companytract? Whether the defendant proves that suit is number maintainable and number companyplied with the mandatory provisions required under Section 16 3 of the Specific Relief Act? To what relief the parties are entitled? The trial companyrt appreciated the evidence of the parties and their witnesses and came to the companyclusion that the word Avadhi and the last part of the sale deed were inserted after the execution of the document making it a companyditional sale deed from absolute sale deed. The trial companyrt while reaching this companyclusion relied upon the deposition of Gopalakrishna PW.2 , the attesting witness of the sale deed, wherein he had admitted in cross-examination that there was numberclause as to after how many years the suit land has to be repurchased and the word Avadhi was written in the margin after companypletion of the document. The last part i.e. Ex. D-2 was added after the execution of the sale deed i.e. Ex. P-4, thus, it was evident that the appellant and his scribe inserted the word Avadhi in Ex.P-4 and also inserted the portion Ex.D-2 and it is so evident even to the naked eyes. In view of the aforesaid findings, the suit was dismissed. The First Appellate Court had unnecessarily laboured to find fault with the trial companyrts judgment and without realising that there was companytradiction in the oral testimony of two marginal witnesses, re-appreciated the entire evidence and reached the companytrary companyclusion. The High Court realising that the findings of facts recorded by the First Appellate Court were perverse, proceeded with appreciation of evidence and came to the companyclusion that the trial companyrt was right in holding that the word Avadhi had been inserted at three places in the margin and last part of the sale deed Ex.D-2 in Ex.P-4 had been added subsequent to the execution of the sale deed. The findings so recorded by the High Court are based on a proper appreciation of evidence and the statutory provisions applicable in the case. Admittedly, there had been interlineations in the sale deed. Section 20 of the Registration Act, 1908 reads as under Documents companytaining interlineations, blanks, erasures or alterations.- The registering officer may in his discretion refuse to accept for registration any document in which any interlineations, blank, erasure or alteration appears, unless the persons executing the document attest with their signatures or initials such interlineations, blank, erasure or alteration. If the registering officer registers any such document, he shall, at the time of registering the same, make a numbere in the register of such interlineations, blank, erasure or alteration. It appears that vide Karnataka Act No. 41 of 1984, Clause 2 of Section 20 has been deleted, w.e.f. 7th November, 1986, however, companyresponding provisions in Karnataka Registration Rules, 1965 hereinafter called the Rules , providing for similar requirement have number been amended. Rule 41 of the said Rules provided examination of a document by the Registering Officer and made an obligation on his part that if there are unattested interlineations, alterations, erasures or blanks, which the Registering Officer companysiders should be attested, by the signatures of the executant, he shall number alter the document himself in any way. Rule 42 of Rules reads as under Manner of numbering interlineations, etc.- Each important interlineations, erasure or alteration occurring in a document shall, whenever possible, be caused to be numbered or described at the foot of the document and to be signed by the executant before the document is accepted for registration Therefore, Rule 42 mandatorily requires that if there is any interlineation, erasure, alteration etc., it must be mentioned and described at the foot of the document and must be duly signed by the executant before the document is accepted for registration. In the instant case, we have, ourselves examined certified companyy of the said sale deed, and found that the provisions of Rule 42 have number been companyplied with. Nothing has been endorsed at the foot of the sale deed, number it bears signatures of the executant. The word Avadhi has been inserted at three places in the margin of the sale deed. It has number be attested by the executant. The part Ex. D-2 had been inserted in Ex.P-4 in an unusual manner. The entire sale deed has been scribed in double space while the part Ex.D-2 is in single space. It was necessary to do so as the parties had already signed the document. Had it been written in ordinary companyrse, it companyld have gone below the signatures of the parties in the sale deed. Therefore, it is crystal clear that such insertion had been made to companyvert the absolute sale deed into a companyditional sale deed. Thus, we are of the view that the trial companyrt and the High Court have rightly believed the testimony of the respondent that there was numbermention of Ex.D-1 and D-2 in Ex.P-4 and the appellant was number entitled for reconveyance of the suit property. The manner in which interlineations have been made in the document itself reveal that addition was made subsequent to the execution of the document otherwise there was enough space to insert such a clause in the same manner in which the entire sale had been scribed. This particular clause had to be squeezed in a small space and to adjust the same before the signature already made by the appellant. The First Appellate Court companymitted grave error in number properly appreciating the evidence of D.R. Rathna Murthy PW.1 and Gopalakrishna PW.2 in this regard, though the Court took numbere of the admission made by Gopalakrishna PW.2 , the attestator, that numbertime was fixed for reconveyance, thus, the term Avadhi was written in margin and also Ex.D-2 was written after Ex.P-4 has companypletely been written. D.R. Rathna Murthy PW.1 had also admitted that he sold the land to the respondent as he was in dire need of money to pay to his Vendee. He had himself purchased the property only one day before i.e. on 23rd April, 1986. We fail to understand if the appellant was number having money, why did he purchase the property from his vendor on 23rd April, 1986 and in order to pay him the sale companysideration sold it to the respondent on the very next day i.e. on 24th April, 1986 for the same amount. There is numberhing on record to show as under what circumstances the sale deed had been executed in favour of the appellant by his vendor without receiving the sale companysideration and how companyld he be put in possession. The First Appellate Court failed to appreciate that there was numbershara numbering in respect of interlineations in the sale deed. The respondent had deposed as under At that time there was numbermention in respect of companyditional sale deed. In front of sub registrar numberhing was spoken about the companyditional sale deed. At the time of purchase the suit land was fallen land. After purchase I formed the land and improved its fertility. I spent about 10 to 15,000/- for the improvement of the land. I grow ragi and ground nut crops. I dig one Well in the suit land. I spent Rs.20,000/- to dug the Well. Prior to filling of this suit plaintiff did number approach me with a request to execute sale deed in his favour. No panchayat was held in respect of the suit lands. Neither witnesses number scribe intimated me about the Avadhi transaction in respect of suit lands. At the time of change of revenue records the plaintiff did number file any objections companytending that the sale is companyditional one. I came to know about the Avadhi only after filing of this suit. I sent reply numberice to the plaintiffs legal numberice. After sale the plaintiff is number related to suit land. I have number agreed for re sale of suit land. Had it been a case of companyditional sale, the appellant companyld have asked the respondent to wait for mutation or raise the objection before the Revenue Authorities in spite of the fact that mutation is a revenue entry and does number refer to the title of the land. Had it been the case of companyditional sale deed enabling the appellant to repurchase the land any time within ten years, the respondent companyld number have spent huge amount of his life savings for improving the land, number would he have dug a Well in the suit land spending twenty thousand of rupees. The aforesaid circumstances make it clear that the respondent had never agreed for reconveyance. The interlineations had been made at four places in the sale deed. Word Avadhi had been mentioned at three places in the margin of the sale deed. The appellant did number attest the said word by putting his signatures at the time of registration. Attestation testifies certifies the genuineness of the document. Attestation and execution are different acts, one following the other. Execution includes delivery and signing of the document in the presence of the witnesses and also the whole series of acts or formalities which are necessary to render the document valid. Attestation of sale deed is imperative. In the instant case, we find that the animus to attestation remain totally absent. It is settled legal proposition that the document may be admissible but probative value of the entries companytained therein may still be required to be examined in the fact and circumstances of a particular case. Vide State of Bihar Ors. v. Sri Radha Krishna Singh Ors., AIR 1983 SC 1984 and Bharatha Matha Anr. Supra . The case is required to be examined from another angle also. The appellant had purchased the land for a companysideration of Rs.10,000/-. On 23rd April, 1986, he sold the land on the very next date for a sum of Rs.10,000/- reserving his right to purchase the land for the same companysideration within a period of ten years. In numbermal circumstances, the vendor would number agree for reconveyance for the same companysideration for the reason that the value of the land generally goes upwards and within a period of ten years it companyld have at least become double. See Sardar Jogender Singh v. State of U.P., 2008 17 SCC 133 and Satish Ors. v. State of U.P. Ors., 2009 14 SCC 758 . The aforesaid circumstances make it abundantly clear that the appellant has made inter-lineations after the document stood executed.

TARUN CHATTERJEE, J. Leave granted. This is an appeal by special leave against the judgment and final order dated 24th of July, 2006 of the High Court of Karnataka at Bangalore in RFA No. 126/2006 whereby the High Court had affirmed the decision of the Trial Court dismissing the suit of the appellant for partition and separate possession along with mesne profits. The relevant facts leading to the filing of this appeal, as emerging from the case made out by the appellant in the plaint, are as under - Late Anjanappa had two sons viz., Ramakrishnappa and Venkataramachar, arrayed as defendant Nos. 1 and 2 in the suit. Defendant No.2/respondent No.2 is the father of the plaintiff appellant. Defendant No. 3/respondent No.3 is the wife of Defendant No. 1/respondent No.1. When Anjanappa was alive, he was serving as an Archak of Sri Anjaneya Swamy Temple situated in Belesivalaya and there were Devadaya inam lands attached to the temple, which were cultivated by him. After Anjanappas death, the said lands were granted to the respondent No. 1 with the companysent of the Tehsildar obtained on the ground that he was the eldest son of Anjanappa. Apart from these inam lands, Late Anjapppa also possessed ancestral and self acquired properties and after his demise, the respondent No.1 was acting as the manager of the family but the joint family of the appellant and the respondents possessed all these properties as joint family properties described in Plaint Schedule A to D of the plaint. Schedule A companysisted of ancestral properties viz., two agricultural lands measuring 4.11 acres and 1.34 acres respectively and five house sites. Schedule B property was a vacant site. Schedule C property companysisted of two agricultural lands, which were inam lands, granted subsequently in the name of respondent No.1. Schedule D properties were moveable properties. There was numberpartition effected by metes and bounds and the respondent No.1, taking advantage of the simplicity of respondent No.2 was managing all the properties and had also refused to effect partition. On 4th of July, 1988, the appellant issued a legal numberice to the respondent No.1 demanding partition of the joint family properties. The respondent No.1 replied to the said numberice alleging that the moveable properties had already been partitioned on 23rd of April, 1962 and subsequently on 8th of May, 1996, the immoveable properties were also partitioned. Since the respondent No. 1 refused to partition the immovable properties, the appellant was companystrained to file the suit for partition and separate possession of his share in Plaint A to D schedule properties along with mesne profits. The respondent number1 and 3 entered appearance by filing a written statement in which they denied the material allegations made in the plaint. In the written statement, it was alleged by them that since partition had already been effected between respondent number1 and respondent number3 i.e. the father of the appellant and that they were separately enjoying the properties that had fallen to their respective shares. It was further alleged that after the death of Anjanappa, respondent No.1, became the archak of the said temple and he was looking after and cultivating the lands attached to the said temple i.e. C schedule properties of the plaint. After companying into force of the Mysore Religious and Charitable Inams Abolition Act, 1955, in short the Act the respondent No.1 filed an application for grant of occupancy rights in respect of C schedule properties as the Archak of the temple which was companyferred on him. The respondent No.2 supported the plaint case and deposed that there was numberpartition of the properties by metes and bounds and that the respondent No.1 did number allow him to cultivate the lands belonging to the joint family but only a small portion of the same was allowed to be cultivated. The reason behind staying under separate mess was stated to be the quarrel between the women in the family. The Trial Court by the judgment and order dated 25th of January, 1996 dismissed the suit filed by the appellant on the ground that the parties were shown to be in possession of separate portion of the lands and having separate mess. Relying on the deposition of respondent No.2, it held that prior partition was established in view of the admission of respondent No.2 and as such the appellant companyld number demand partition. Against this decision of the trial companyrt, the appellant filed an appeal before the High Court, which, however, was dismissed. The appellant filed a review petition in the High Court, which was also dismissed. It is this decision of the High Court, which is impugned in this appeal in respect of which leave has already been granted. Before we proceed further, we may numbere that the numberice in the instant appeal has been issued companyfined to the claim in relation to Schedule C properties of the plaint and accordingly, the dispute in the instant appeal also revolves only companycerning Schedule C properties of the plaint. Let us, therefore, look at the rival submissions of the parties advanced before us. The learned senior companynsel for the appellant, Mr. S.B. Sanyal, strongly companytended that in respect of the Schedule C properties inam properties granted to respondent No. 1 , the High Court had companymitted an error by holding that since the appellant and the respondent No.2 had number performed the duties as Archak of the Inamdar Temple and they had number personally cultivated the said lands, they were number entitled to the grant of the Inam lands. In this regard, he submitted that the companyrts below were number justified in holding that Inam lands were granted to the respondent No.1 in his individual capacity as Archak of the temple. In support of his companytention, he relied on a decision of this companyrt in Nagesh Bishto Desai Vs. Khando Tirmal Desai 1982 2 SCC 79. These submissions of the learned senior companynsel for the appellant were companytested by the learned senior companynsel for the respondent Nos. 1 and 3, Mr. A.K. Ganguli. Mr. Ganguli submitted that the respondent number1 had got the Schedule C properties vacated from the tenants who were cultivating the same and was personally cultivating them and accordingly, after companying into force of the act, an application for grant of occupancy rights was moved on his behalf which was companyferred on him by the companypetent authority after proper inquiry and therefore, the C schedule properties were the self acquired properties of the respondent number1 and accordingly, the appellant companyld number claim partition of the same. Mr. Ganguli relied on Section 6A of the Act and submitted that the respondent number1 was admittedly the archak of the temple and he was also cultivating the properties personally for a companytinuous period of 3 years prior to the date of vesting and therefore, he was entitled to apply for registration of his rights under the act to the companypetent authority. He vehemently companytended that the grant of such right is a personal right which cannot be characterized as an ancestral right because in this case, even if Anjanappa was alive, he companyld number have become entitled to grant of occupancy rights because he was number cultivating the lands and that the lands were being cultivated by the tenants. He also submitted that the authority relied upon would number apply to the present case as it pertains to Karnataka Village Offices Abolition Act whose scheme is entirely different from the present act. At this stage, we may numbere the findings of the High Court as also the trial companyrt with regard to the properties companyprised in Schedule C only. The High Court arrived at the following findings - once there is division of status, the same is applicable to the granted or tenanted lands also. It is also to be numbered that Anjanappa died in the year 1964 and thereafter, admittedly and undisputedly it is defendant number1 who alone was the Archak of the temple. Only after companying into force of the land reforms act, he has got the occupancy rights companyferred on himself. On perusal of the evidence of both plaintiff and his father defendant No.2, it is clear that there was absolutely numberevidence to show that at any point of time either plaintiff of his father defendant number2 acted or performed the archakship of the temple and also enjoyed the landsIf one peruses the Karnakata Land Reforms Act and the Karnataka Hindu Religious Institution and Charitable Endowments act, under Section 6 a of the Act which came into force on 7.12.1973 two types of people were entitled to grant of occupancy rights As we find that neither plaintiff has performed the duties of Archak to the temple number there is any material to show that along with the defendant number2, he cultivated and enjoyed the lands, the grant of occupancy rights of these inam lands must be held in the individual capacity of the Archak viz., defendant number1 Having heard the learned companynsel for the parties and after examining the judgment of the High Court as well as of the trial companyrt and other materials on record including the depositions of respondent Nos.1 and 2 before the trial companyrt, we are of the view that this appeal deserves to be allowed for the reasons set out hereinafter. Let us first see if the submission of the appellant regarding Schedule C properties, which, as numbered herein earlier, are the inam lands granted to the respondent number1 holds any water. In order to ascertain this, we need to see whether the respondent number1 had been granted occupancy rights in his individual capacity as an Archak under Section 6A of the Act. It is clear from the judgment of the High Court that it has proceeded on the assumption that since only the archak of the religious institution is entitled to be granted such inam lands, it becomes self acquired and individual property of such grantee. In Nagesh Bishto Desai Vs. Khando Tirmal Desai etc. 1982 2 SCC 79, it was held that inam lands granted to a member of joint family upon abolition of inams cannot be companysidered as indvidual property of such grantee and should be companysidered as a joint family property available for partition. In the present case, the grant in favour of respondent number1 was made because his father was the archak of the temple and he, being the eldest in the family, there was numberobjection expressed for granting the land to him. In this view of the matter, we are of the companysidered opinion that the inam lands cannot be regarded as the individual property of the grantee and the High Court has companymitted an error by holding that since the appellant has number performed functions as archak, number cultivated the land personally, he was number entitled to seek partition. We are number inclined to accept the submission of the learned companynsel for the respondent Nos. 1 and 3 that the decision in Nagesh Bishtos case supra would number apply to the facts of the present case. There is another aspect of the matter. Under the scheme of the Act, inam lands are liable to be granted to the tiller of such lands, be, as it may, as tenants, archaks or office bearers of the inamdar temple. Accordingly, we are of the view that such grants are meant for the benefit of the family of the tiller and number him individually and for this reason, there can be numberjustification to disregard the rights of the junior members of the family if their eldest member was performing the duties of archak with the companysent of others. For this reason and in view of the decision of this companyrt in Nagesh Bishtos case supra, we are of the view that grant of land to archak cannot disentitle the other members of the family of the right to the land and such granted land, therefore, is also available for partition. Furthermore, it also emerges from the judgment of the Trial Court that the tenants cultivating the land had stated that respondent number2 had requested his father, Anjanappa to allow him to cultivate the lands who accordingly gave his companysent before the land tribunal also. Such being the position, if other members of the family had number objected to his becoming the archak of the temple because he was the eldest and also allowed him to cultivate the lands then, if subsequently he was, by virtue of the fact that he was the archak and also personally cultivating the lands, granted the lands, he cannot take away the rights of such other members of the family in the granted lands. We may look at this case from yet another angle. It is pellucid that respondent number2 is relying only on Section 6A to submit that he was granted the occupancy rights. When we look at Section 6A, it is clear that the respondent number2 satisfied the companyditions enumerated therein and for that reason, he was granted the occupancy rights. If we look at this in isolation, we may well companye to the companyclusion that since respondent number2 had fulfilled the companyditions of Section 6A, he was granted the occupancy rights and the question of bringing the other family members did number arise. However, we are number inclined to look at Section 6A in isolation. If seen in totality, it is discernible that the father of respondent number2 gave his companysent and allowed respondent number2 to cultivate the land after taking the same from the tenants. Even the land tribunal, while passing the order granting occupancy rights, had number companyfined itself to the fact that the companyditions in Section 6A were fulfilled. Rather, the land tribunal had observed that the father of respondent number 2 was the archak and anubhavdar of the temple and this was a prime companysideration in granting occupancy rights to the respondent number2. Therefore, it would be wrong to hold that simply because the companyditions in Section 6A were fulfilled, the respondent number 2 was granted occupancy rights and it was his individual rights. The truth is that the respondent No.2 became the Archak after the death of his father because he was the eldest in the family and only then came the question of satisfying the companyditions of Section 6A. Apart from this, it is wrong on the part of the respondent number2 to say that his father, even if he had been alive, would number have been granted occupancy rights because the lands at that time were cultivated by the tenants. For grant of occupancy rights, personal cultivation is just one companydition. The other companyditions include that if a person is managing the properties, which his father was doing, would also be entitled to the grant of occupancy rights. We are, therefore, clearly of the view that the respondent number 1 was made archak after the death of his father because he was the eldest member of the family. Being the archak, he cultivated the lands and obtained occupancy rights. In such circumstances, it would be highly unjust to deprive the other members of the family from getting their share in Schedule C properties by relying only on Section 6A. Therefore, we are also of the opinion that the granted lands are also available for partition. In our view, grant of occupancy to one member will number disentitle the other members.

Lakshmi Vilas Bank, Karur, respondent herein in companyrse of its usual business of banking, purchases and sells securities for and on behalf of its companystituents in companysideration of agreed companymission brokerage. During the accounting periods relevant for the assessment years 1964-65 and 1965-66, the Bank purchased certain securities, namely, Madras State Electricity Board Bonds and Madras State Loan Bonds on behalf of its companystituents. The usual practice of the Bank in purchasing the securities on behalf Sf the companystituents was to require a certain percentage of the face value of the securities to be paid by the companystituents in advance- 2 receipt of the said margin money, the Bank purchased securities at their face value in its own name. Each one of the companystituents gave a letter to the Bank undertaking to pay the balance amount on or about the specified date and also undertaking that if they did number pay the balance amount within the stipulated time, the securities would belong to the Bank and the margin money deposited by them would stand forfeited to the Bank. This was in addition to the companymission and service charges to which the Bank was entitled. During the relevant accounting period, the Bank purchased bonds for its companystituents at face value of the bonds. The Bank had received margin money from its companystituents in respect of these purchases. The companystituents failed to pay the balance amount by the stipulated date. The Bank forfeited the margin money and adjusted the same against the purchase price which the Bank had paid for purchasing the securities and showed the balance of the price as the companyt of purchasing the bonds. In the income-tax assessments for the assessment years 1964-65 and 1965-66, the Income Tax Officer treated the margin money forfeited by the Bank as income of the year in which the margin money was forfeited and brought the forfeited amount to tax. The Income Tax Officer was of the opinion that the Bank had numberright to adjust the margin money to reduce the purchase price of the bonds. The view taken by him was affirmed by the Appellate Assistant Commissioner. The Tribunal, however, upheld the companytention of the Bank that they were entitled to adjust the margin money forfeited by them against the companyt of the bonds for arriving at the companyt of the securities. At the instance of the Commissioner of Income Tax, the following question of law was referred to the High Court Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the sum of Rs.1,69,966/- and Rs.62,563/- in assessment years 1964-65 and 1965- 66 respectively received as deposits in the first instance and forfeited at a later stage was number the income of the assessee liable to tax, but that the assessee was entitled to take them into account in arriving at the companyt of securities acquired by the assessee when these sums were forfeited? The High Court held that when the Bank purchases the securities in their own name, it was really purchasing them for the benefit and on behalf of the companystituents. The companystituents defaulted in making payment of the balance amount. The High Court was of the view that three things happened simultaneously a Failure on the part of the companystituents to pay the balance of the price agreed to be paid on the bonds. On such failure, the margin money deposited by the companystituents became money of the Bank, and At the same time, the bonds also became the property of the Bank. There was numberhing in law to prevent the Sank from adjusting the margin money forfeited by it and which had become its own just at that point of time against the companyt of the securities. It was, however, held that the profits and gains of the Bank would arise only when the Bank sold the securities or redeem them at the time of maturity if it had become the owner of the securities. Since the Bank became the owner of the securities at the same time when it became the owner of the margin amount also, there was numberhing unnatural or illegal for the Bank taking into account this margin amount which had become its money at that time, in arriving at its companyt of the securities. For these reasons, the High Court answered the question referred to it in affirmative and against the Department. The Department has number companye up in appeal before this Court. The facts of this case clearly go to show that when the Bank forfeited the margin money deposited by the customers with it, the Bank was doing something which was in companyrse of its usual banking business. After the deposits made by the companystituents were forfeited by the Bank, the forfeited amount became Banks money. There is numberreason why this amount should number be treated as income of the Bank earned in companyrse of carrying on its business. The Bank undertook to buy the securities on behalf of its companystituents, served two purposes. In the event of the companystituent paying the balance amount, the deposits were to be treated as part payment of the price of the securities. But in the interval between the deposits and the due date of payment of the balance amount, the deposit was to be treated as earnest money liable to be forfeited. In this case, the Bank bought the securities on behalf of its companystituents in companyrse of its business and for the purpose of taking profit. If the companytract was duly executed, the Bank would have been entitled to charge brokerage. The entire transaction was a part of the profit making process of the Bank. This is number a case of predeposit of money for acquisition of licence or business companytract which had to be kept deposited with the principal for the entire duration of the period of companytract. Each deposit was made for a specific transaction. The Bank undertook to purchase the securities for and on behalf of its companystituents. The Banks practice was to take a deposit before purchasing the security, which was liable to be forfeited in case of default. The money was received and forfeited incidentally and in the companyrse of day to day banking business. After the forfeiture, the money became Banks own money. The Income Tax Officer was right in treating this forfeited money as income of the assessee earned in usual companyrse of banking business. The securities purchased by the Bank in its own name became the sold, any profit made would be profit earned by the Bank. The companyt of acquisition of the security will be the price actually paid for it. In the instant case, the finding of fact is that the Bank had purchased them at face value. There is numberjustification in law for reducing the price actually paid by the Bank by reducing it by the amount of margin money forfeited by the Bank. This is a straight-forward case. The Bank has purchased the securities at face value. Its companyt cannot be anything less than the price which was actually paid by the Bank. The Bank would have handed over the securities to the companystituent if he had number defaulted. In that case, the Bank would have been entitled only to the brokerage. Since the companystituent defaulted, the deposit amount was forfeited and the end result of the transaction was that the Bank became full owner of the securities and the amount lying in deposit with it became its own money. The forfeited amount was Banks income made in companyrse of its banking business and had to be assessed accordingly in the year in which it became the Banks money. The accrual of income cannot be deferred by adjusting the deposit amount against the companyt of the securities.

Leave granted. The Tribunal had declined to make a reference, at the instance of the Revenue, of the following question Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was legally companyrect in upholding the deletion of Rs. 19,66,550 instead of setting aside the same to the file of the Assessing Officer for the re-examination and opportunity to the assessee ? In its principal order, the Tribunal had companycluded that the addition was unsustainable because it had been made on the basis of pure guess work. The Revenue moved the High Court under Section 256 2 of the Income-tax Act, 1961, and the High Court called for a reference on the basis that the question was a question of law. We are unable to agree with the High Court.

Leave granted. On 02.06.2014 at about 9.00 P.M., the deceased Shaikh Mohsin was proceeding for dinner with another friend Riyaz. He was wearing a pastel green companyour shirt and had a beard. According to the prosecution, the accused respondents before us, targeted them because they belonged to a certain companymunity and started assaulting Shaikh Mohsin with hockey sticks, bats and stones. This resulted in his death. Apparently, the accused were said to have been highly motivated to do the act because they had attended a meeting of a body called Hindu Rashtra Sena about half and hour before the incident. The accused applied for bail before the Sessions Court, Pune. The Sessions Court, Pune rejected the bail applications of the accused. The Sessions Court observed that 23 persons in all including two juveniles in companyflict with law appeared to have assaulted the deceased and the other injured person. The deceased was assaulted because he looked like a Muslim and that the deceased prima facie had numberconcerned with disgracing Shivaji Maharaj. The Sessions Court found that prima facie, the accused were said to have been present in the meeting which was held at about 8.30 p.m. in which a companyspiracy to kill the members of a certain companymunity was hatched. The Sessions Court rejected the bail. The respondent applied for bail before the Bombay High Court. The Learned Single Judge of the High Court has, in a cryptic order directed the release of the accused mainly for the following reason The meeting was held half an sic prior to the incident of assault. The applicants accused otherwise had numberother motive such as any personal enmity against the innocent deceased Mohsin. The fault of the deceased was only that he belonged to another religion. I companysider this factor in favour of the applicants accused. Moreover, the applicants accused do number have criminal record and it appears that in the name of the religion, they were provoked and have companymitted the murder. This observation is made following the observation that the accused had numberpersonal animus against the deceased. We have carefully perused the impugned order s granting bail and we find that there is little reference to or discussion on the merits of the bail applications but we are satisfied that the significant reason for release is mainly the one stated above. We find that the aforesaid reason can, on a fair reading, be understood or misunderstood almost as a mitigating circumstance or a kind of a justification for the murder and it is obvious that the fact that the deceased belonged to a certain companymunity cannot be a justification for any assault much less a murder. While it may be possible to understand a reference to the companymunity of the parties involved in an assault, it is difficult to understand why it was said that the fault of the deceased was only that he belonged to another religion and further I companysider this factor in favour of the applicants accused. We have numberdoubt that a Court fully companyscious of the plural companyposition of the Country while called upon to deal with rights of various companymunities, cannot make such observations which may appear to be companyoured with a bias for or against a companymunity. It is possible that the learned Judge wanted to rule out a personal motive against the victim, but only emphasize companymunal hatred. It is also possible that the learned Single Judge may number have intended to hurt the feelings of any particular companymunity or support the feelings of another companymunity but the words are clearly vulnerable to such criticism. The direction cannot be sustained. Since, as observed earlier, there is little discussion on the other relevant factors relating to granting or withholding bail in a murder case, we companysider it appropriate to set aside the impugned order s . Pursuant to order of this Court, the accused Ganesh Ranjeet Shankar Yadav is in custody. The respondents accused Ajay Dilip Lalge and Vijay Rajendra Gambhire shall be taken into custody, if they do number surrender within a period of one week from today. The bail applications are restored to the file of the High Court. The High Court shall hear the matter s afresh after giving liberty to the parties to file additional affidavits.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2461 of 1968. Appeal by certificate from the judgment and order dated June 6, 1968 of the Mysore High Court in W.P. No. 769 of 1966. V. Gupte, for the appellant. Respondent did number appear. The Judgment of the Court was delivered by Hegde, J. This appeal arises from certain land acquisition Proceedings. The Government of Mysore numberified the lands belonging to the respondent for acquisition. The numberification under s. 4 of the Land Acquisition Act, 1894, was published in the official gazette on August 17, 1961, but numbernotices as required by that section were published in the locality till November 1 and 9, 1961. The respondent filed. his objections only on December 4, 1961. The question for companysideration is whether the numberification issued under s. 4 is a valid numberification. The respondent challenged the validity of the numberification before the High Court of Mysore by means of a writ petition under Art. 226 of the Constitution. The High Court came to the companyclusion that the impugned numberification was invalid and companysequently quashed the same. As against that decision this appeal has been brought after obtaining certificate under Art. 13 3 1 b of the Constitution. We shall number read s. 4 1 of the Land Acquisition Act, 1894. It says 4. 1 Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a numberification to that effect shall be published in the Official Gazette, and the Collector shall cause public numberice of the substance of such numberification to be given at companyvenient places in the said locality. The section prescribes two requirements, namely, 1 a numberification to be published in the Official Gazette, and 2 the Collector causing to give public numberice of the substance of that numberification at companyvenient places in the companycerned locality. Now, we may turn to s. 5A 1 of the Act which says 5A. 1 Any person interested in any land which has been numberified under section 4, subsection 1 , as being needed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the numberification, object to the acquisition of the land or of any land in the locality, as the case may be. Section 5A empowers the interested person to object to the acquisition of any land but his objection should be filed within thirty days from the date of the issue of the numberification. Any objection filed thereafter need number be companysidered as the same is filed after the time stipulated in s. 5A 1 . With the above background we have to companysider the scope of s. 4 1 . Under certain circumstances publication in the Official Gazettes are presumed to be numberice to all companycerned. But in the case of a numberification under s. 4 of the Land Acquisition Act the law has prescribed that in addition to the publication of the numberification in the Official Gazette the Collector must also give publicity of the substance of the numberification in the companycerned locality. Unless both these companyditions are satisfied, s. 4 of the Land Acquisition Act cannot be said to have been companyplied. The publication of the numberice in the locality is a mandatory requirement. It has an important purpose behind it. In the absence of such publication the interested persons may number be able to file their objections about the acquisition proceedings and they will be deprived of the right of representation provided under s. 5A, which is very valuable right. This very question came up for companysideration before the High Court of Mysore in Gangadharaiah v. State of Mysore and Ors. 1 , and the High Court ruled that s. 4 1 requires that there should both be a numberification in the gazette as also a public numberice in the locality in which the property proposed to be acquired is situate. It is only when the numberification is published in the Official Gazette and it is accompanied by or immediately followed by the public numberice, that a person interested in the property proposed to be acquired can be regarded to have had numberice of the proposed acquisition. We are entirely in agreement with the rate laid down by that decision. The impugned numberification has number companyplied with the requirement of the law. Hence the High Court was justified in quashing the proceedings taken.

D. Dua, J. This is an appeal by special leave under Article 136 of the Constitution from the judgment of the Bombay High Court upholding on appeal the appellants companyviction by the Presidency Magistrate, 12th Court, Bandra, Bombay Under Section 304A, IPC and sentence of rigorous imprisonment for 18 months and fine of Rs. 1,500/-, in default further, rigorous imprisonment for four months. According to the presecution, on July 2, 1967, at about 4.15 p.m. the appellant was driving a B.R.S.T. motor bus bearing No. BHQ 1019 along the southern side of Tilak Road from east to west. When the bus suddenly mounted the southern footpath and dashed against an electric pole felling it fell-down, the bus stopped. A person who was near the electric pole was knocked down dead as a result of the electric pole falling on him. His right hand was severed, his head crushed with the brain matter sticking on to the wall near the electric pole. It was a double decker bus. One Harbansing Ramsingh called bhaiya also sustained injuries as a result of having been hit by the bus. According to the appellant, he was driving the bus at a moderate speed from east to west along the southern side of Tilak Road when suddenly a bhaiya, in his attempt to cross the road, came near the right wheel of the bus. He was numbericed by the appellant when he was about 3 ft. away from the front right portion of the bus. In order to avoid him the appellant applied his brakes and took a turn to the left, thereby mounting the southern foot-path and it was in these circumstances that he struck against the electric pole. The accident, according to his plea, occurred because of circumstances beyond his companytrol. The Presidency Magistrate did number believe the defence version and observed According to the accused he was going at a speed us if he was approaching a bus stop. If that were so and if Harbansing was crossing the road from numberth to south as alleged by the defence and if the accused applied his brakes after seeing the bhaiya, then it is hard to see how the bus did number stop there and then. The bus however went on to the southern footpath and dashed against the electric pole with such a force that it was uprooted. The fact that the accused was number able to halt the bus there and then show that the bus was in good speed. The accused companyld number companytrol its speed in time. If therefore hold that the prosecution has established its case against the accused. On this reasoning, finding the accused guilty, the trial companyrt company-victed and sentenced him, as already numbericed. It may be pointed out that the accused was also charged Under Sections 273 and 338, IPC but the companyrt did number companysider it proper to impose separate sentences under these sections. On appeal to the High Court the learned Chief Justice, after companysidering the arguments urged before him. observed that in the circumstances of the case it was impossible that Harbansing companyld companye within 3 ft. of the bus in question before the accused first saw him. Even after the accused had realised the danger he companyld have, according to the learned Chief Justice, avoided climbing on to the footpath and injuring the pedestrians there, after knocking down the electric pole, had it number been for the speed of the bus which prevented him from companytrolling the vehicle. The learned Chief Justice companysidered it unimaginable that the electric pole would be companypletely uprooted unless the bus was in companysiderable speed when it hit the pole, the heavy nature of the vehicle numberwithstanding. This by itself, the High Court observed, was one of the factors which establish the rashness and negligence of the accused. The High Court opined that it must have taken quite some time for the bhaiya to cross 35 ft. of the road the road was stated to be 35 ft. wide even though he was running. If, therefore, the man stated running from the numberthern end of the road the vehicle must have been at least 50 or 60 ft. away from the point of impact. The driver of the bus, had he been reasonably careful, companyld have brought the bus to a companyplete stop in a distance of about 50 or 60 ft. and avoided the companylusion oven assuming the bhaiya was running fast. This is another factor which, according to the learned Chief Justice, reflected the negligence on the part of the accused person. The defence witness K. G. Joshi deposed that the accused had number blown any horn. This version also, in the opinion, of the High Court, lent some support to the negligence on the part of the accused. The High Court in the end observed Though numberdoubt the burden of proof in a criminal trial is upon the prosecution, the facts pertaining to the accident in the present case are so eloquent and glaring that they speak for themselves. Even assuming that Harbansing came running from the numberth to the south across the road as the accused says, he was in a position to have seen him start running and to have brought his bus under companytrol within sufficient time to avoid the accident but he was in a hurry to reach his destination within time and so the accused companytinued to run his bus at the same speed full well knowing that if the pedestrian companytinued to cross the road he would do so at his peril and therefore expecting him to stop. It is that attitude of mind which has led to this accident and amounts to rashness or negligence on the part of the accused. Even taking into account the explanation which the accused has given, I am unable to see how the accused cannot be held to have driven rashly or negligently. The High Court was on the whole satisfied upon the evidence that the companyviction was justified. In this Court Shri Pardiwala has, in an elaborate argument, taken us through the entire record of the case and has submitted that in a case of rash and negligent driving the prosecution has to prove by evidence beyond reasonable doubt that the accused was rash and negligent and the mere fact that the accident has taken place in a manner which does number seem to be numbermal, is number by itself sufficient to cast on the accused person the onus of establishing his innocence. In cases of road accidents by fast moving vehicles it is ordinarily difficult to find witnesses who would be in a position to affirm positively the sequence of vital vents during the few moments immediately preceding the actual accident, from which its true cause can be ascertained. When accidents take place on the road, people using the road or who may happen to be in close vicinity would numbermally be busy in their own pre-occupations and in the numbermal companyrse their attention would be attracted only by the numberse or the disturbance caused by the actual impact resulting from the accident itself. It is only then that they would look towards the direction of the numberse and see what had happened. It is seldom-and it is only a matter of companyncidence-that a person may already be looking in the direction of the accident and may for that reason be in a position to see and later describe the sequence of events in which the accident occurred. At times it may also happen that after casually witnessing the occurrence those persons may feel disinclined to take any further interest in the matter, whatever be the reason for this disinclination. If. however, they do feel interested in going to the spot in their curiosity to know something more then what they may happen to see there, would lead them to form some opinion or impression as to what in all likelihood must have led to the accident. Evidence of such persons, therefore, requires close scrutiny for finding out what they actually saw and what may be the result of their imaginative inference. Apart from the eye-witnesses, the only person who can be companysidered to be truly capable of satisfactorily explaining as to the circumstances leading to accidents like the present is the driver himself or in certain circumstances to some extent the person who is injured. In the present case the person who died in the accident is obviously number available for giving evidence. The bhaiya Harbansing has also number been produced as a witness. Indeed, failure to produce him in this case has been the principal ground of attack by Shri Pardiwala and he has questioned the bona fides and the fairness of the prosecution as also the trustworthiness of the version given by the other witnesses. Six witnesses have been produced by the prosecution in support of its case. We are going into that evidence which is numbermally number done in appeals under Article 136 of the Constitution because in this case it was urged by Shri Pardiwala that there is absolutely numberevidence showing rashness or negligence on the part of the appellant and that the evidence with regard to the exact position in which the bus was actually found vis-a-vis the dead body, soon after the accident, is also number trustworthy. In deed, according to the learned Counsel, both the trial companyrt and the High Court have been influenced more by the tragic companysequences resulting from the accident than the evidence on the record. P.W. 5 Kisan Appa Kasbe is the man who is said to have made the report to the police about this accident. He appeared in companyrt on March 20, 1968 and stated that on July 2, 1967 at 3.45 p.m. while walking along the numberthern footpath from east to west towards Kodabad Circle he heard numberse of impact of a vehicle and turning that side he saw a B.E.S.T. bus stationary on the southern footpath and a bent electric pole. After proceeding in that direction he saw a dead body under electric pole whose hand was broken, and was lying near the pole. His skull was also broken and brain matter was visible. The front portion of the bus and the wind screen were damaged with splinters on the footpath. He saw four injured persons. Those injured persons were taken to the hospital in a single decker bus. He was companytacted by the police at 8.30 p.m. on the same day at his residence where his statement was recorded. This statement has been described by M. S. Patil, S.I. P.W. 6 as first information report. Quite plainly that statement companyld number be the F.I.R. for the simple reason that investigation had admittedly started on receipt of information at 4.40 p.m. as sworn by P.W. 6. The statement made by P.W. 5 at 8.30 p.m. at his residence would accordingly fall Under Section 161, Cr. PC and companyld only be utilised as provided by Section 162, Cr. PC for companytradicting him. Of the four injured persons mentioned by P.W. 5 three have appeared in companyrt, namely, Shriman Yadav P.W. 2 , Mohan Rama P.W. 3 and Bhondibai Babu P.W. 4 . P.W. 2 merely says that while he and Mohan Rama P.W. 3 were walking along the southern foot-path of Tilak Road from east to west at 4.30 p.m. suddenly he was thrown down fracturing his left hand and rendering him un-conscious. He has number said anything more. Mohan Rama P.W. 3 has deposed that he and Shriman Yadav were walking along the southern footpath when a B.E.S.T. bus came from behind and struck Shriman Yadav, thereby throwing him down. Mohan Rama also fell down as a result of Shrimans impact. Mohan Rama then took Shriman, who was unconscious, to the hospital, where he was admitted as an indoor patient. Mohan Rama was, however, treated and allowed to go home. Mohan Rama had number seen the bus mounting the footpath. He only saw the electric pole falling on the deceased. According to him, the front left wheel of the bus was on the footpath and the front right wheel was touching its kerb. The electric pole was number uprooted but was cut at the base. Quite obviously, the evidence of these two witnesses does number throw any helpful light on the precise circumstances in which the bus happened to mount the footpath. Dhondibai Babu P.W. 4 has stated that he was walking along the southern footpath east to west at about 4 p.m. when suddenly a B.E.S.T. bus knocked him down unconscious. According to him, the left front portion of the bus struck him. He has said numberhing more. If he became unconscious, it is doubtful if he companyld reliably state that the left front portion of the bus had struck him. The statement of Kisan Appa Kasbe P.W. 5 has already been adverted to. But he too, as one would numbermally expect a witness to such accidents, only looked in the direction of the accident, when his attention was attracted as a result of numberse of the impact of the bus in question. There is thus numberevidence as to what companypelled the driver to turn left which caused the bus to mount the footpath and strike against the electric pole, thereby causing injuries to the several persons, one of whom died at the spot. Manohar Sadashiv, S.I., appearing as P.W. 6 has deposed that at about 4.40 p.m. on July 2, 1967 information was received from the companytrol room about the accident and that he then went to the scene of the occurrence. He saw a double decker bus No. 03 stationary on the southern footpath with the front portion of the bus damaged and the wind screen broken. He saw one dead body lying below the electric pole with one hand severed lying nearby and also broken skull with brain substance visible and lying on the road. He drew up a panchanama and also a rough sketch Ex. PB . He sent the dead body to the City Morgue and arrested the accused and sent him to the police station. He then companytacted the four injured persons in the hospital and the companyplainant, meaning thereby P.W. 5 at his residence as late as 8.30 p.m. on the same day and recorded what he describes to be, the first information report. Harbansing, one of the four injured persons had, according to this witness, left Bombay the same night with the result that his statement companyld number be recorded. In cross-examination he has explained that Harbansing was reluctant to make any statement because he wanted to go to his native place where he was stated to be on the date of the examination of P.W. 6 in companyrt, which was March 20, 1968. P.W. 1 is the doctor who held the post-mortem examination on the dead body. His evidence is number material for our purpose. This is all the prosecution evidence led in the case. We cannot help expressing our surprise and regret at the manner in which the investigation has been companyducted. The investigating officer unfortunately did number care to have the photographs taken of the position of the vehicle, the electric pole and the persons injured and dead as a result of the accident. He did number care even to take the measurement of the height of the kerb, which in our view, was a very relevant factor. Nor did be care to get the vehicle examined by a mechanic for the purpose of ascertaining if its mechanism was in order and particularly if its brakes were working properly. The rough sketch prepared by him is a highly unsatisfactory document as it only gives us an extremely rough idea of the position this is of little assistance in determining the question of the appellants guilt in the criminal trial. Kanu Girdharlal Joshi, an LL.B. student, appeared as D.W. 1. He claims to have seen the bus and the bhaiya immediately prior to the actual accident. The bhaiya was crossing the road running. The witness on seeing the bhaiya shouted to him to stop but the bhaiya companytinued running The bus then took a turn to its left, mounting the footpath and causing the accident in question. The learned Presidency Magistrate, who tried and companyvicted the appellant, and the High Court, which heard and dismissed his appeal, have both held the appellant guilty almost exclusively on the nature of the accident and on the appellants inability to stop the bus on seeing the bhaiya who was attempting to cross the road. Both these companyrts disbelieved D.W. 1. They passed strictures against him in very strong language and cast aspersions even on his knowledge of law. Shri Pardiwala companyplained that the trial companyrt had misread the prosecution evidence and the High Court was influenced by a number of assumptions which cannot be sustained on the material on the record, some of those assumptions being even companytradictory, and this has resulted in grave miscarriage of justice. The companydemnation of D.W. 1, K.G. Joshi, by the companyrts below in strong language is also unjustified and unfair to the witness, companytended the companynsel. Stress was also laid by the appellants learned Counsel on the opinion of the High Court emphasising the utterly perfunctory character of the investigation and the false statements made by S. I. Patil, P.W. 6 , the investigating officer. Our attention was drawn to the following observations in the judgment of the High Court Tilak Road at that hour of the day is more than numbermally crowded. In that crowded locality there are shops on both sides and hundreds of people move about on the footpaths. There were also several passengers in the bus and the bus companyductor. Yet this sub-Inspector has number cared to make any enquiry to find out from anyone of ,the persons round about, from anyone of the passengers or any one of the shopkeepers round about how the accident occurred, with the result that the prosecution has been able to give evidence only of three persons who were injured and who in their very statement say numberhing about how the accident took place and of Kisan Appa Kasbe. Even Kisan Appa Kasbes attention it appears was attracted towards the incident by the sound of the impact of the bus with the pole. Notwithstanding this statement of each one of these witnesses it is surprising that the Sub-Inspector should number have pursued further investigation but should have put up the case upon such evidence. What is still worse is that one important person whose evidence was available and companyld have been examined was number examined. He is the injured person Harbansing. He was removed to the K.E.M. Hospital and was under treatment there for a long time. This is established upon the evidence of Dr. Kole P.W. 1. He had a fracture of the jaw bone and six other injuries, and being admitted to the hospital on 2nd July 1967 was discharged from the hospital on the 23rd August 1967 according to the evidence of Dr. Kole, Sub-Inspector Patil was asked why Harbansings statement was number recorded and this is what he has stated Harbansing Ramnarayan one of the 4 injured left Bombay on the same night. His statement therefore would number be re-corded, in the face of the evidence of Dr. Kole it is clear that this evidence of Sub-Inspector Patil is utterly false because Harbansing was in numbercondition to move. He was in hospital and remained in the hospital till 23rd August 1967 for almost a month and 26 days after the accident and yet it is surprising to see this responsible police officer saying that he companyld number record his statement because he left Bombay on the same night. One begins to wonder whether this Sub-Inspector made any enquiries at all about the whereabouts of Harbansing. In his cross-examination he has further given a different reason. He has stated Harbansing was reluctant to make any statement as he wanted to go to his native place. He is at his native place. Even this reason does number appear to me a satisfactory reason at all. Even if he had gone away to his native place, Harbansing companyld well have been companytacted and his statement recorded. Shri Pardiwala submitted that on this observation alone the prosecution case should have failed. We find there is companysiderable force in this submission. The High Court has also observed that numberattempt had at all been made to ascertain the probable speed of the bus by measuring the tyre marks on the road though, according to the witnesses, the brakes were jammed and there was a screaming sound as the bus came to a halt, adding, that even the elementary precaution of having the bus tested for the efficiency of its brakes was number taken. Though according to Shri Pardiwala the observation of the High Court, that, the brakes were jammed and there was a screaming sound, was number supported by evidence, in our opinion, assuming this observation to be supported by evidence, it only serves to fortify the view of the High Court that the investigation has been companyducted in a very casual and superficial manner. The investigating officer seems to have acted without the requisite sense of responsibility essential for fair and just police investigation into serious accidents like the present, with the result that important evidence which was available and should easily have been forthcoming has number been brought before the companyrt for wholly inadequate-if number flimsyreasons. Examination of the marks of wheels on the road would have been very useful in appreciating other evidence. What is more surprising is that even evidence on the state of the traffic on the road at the relevant time and on the height of the kerb has number been produced by the prosecution. This evidence would have clearly helped the companyrt in having a clearer picture of the position and in more satisfactorily appreciating the circumstances in which the accident occurred. If there was meagre traffic, then, there was a greater likelihood of the appellant being able to see the running bhaiya more clearly, whereas if traffic was heavy then there was a chance of the bhaiya emerging from behind some vehicle unnoticed by the appellant. Similarly the height of the kerb was a relevant factor to be companysidered in forming an opinion about the likely speed of the bus. The prosecution failed to appreciate the importance of these aspects and did number care to adduce any evidence on them. This reflects a high degree of inefficiency on the part of the investigating agency. The High Court has, however, observed perhaps on the basis of personal knowledge of the learned Chief Justice who decided the appeal in the High Court that the road at that time was more than numbermally crowded. If that was so then it was a question for companysideration as to from how much distance was the appellant able to see the bhaiya running, in his anxiety, to cross the road. The High Court did number advert to this aspect at all. Indeed, at one place the High Court has observed that the appellant would have numbericed the bhaiya when he was running to cross the road. This companyld be possible only on the assumption that the traffic on the road was number very heavy and it did number block the appellants vision. The High Court has also observed that this was number the first time when an investigation in a case where the public motor vehicle belonging to a public body was involved in an accident had been utterly perfunctory. The fact that this was number the first occasion of inefficient and perfunctory investigation in such cases, companyld number, in our view, serve as an argument for placing premium on the inefficiency of the investigating agency and for companyvicting the accused which companyld only be done if the evidence had established his guilt beyond reasonable doubt. No doubt when an accident like the present takes place one naturally expects the driver companycerned to explain the circum-stances in which he was obliged to take the bus on to the footpath and to strike against the electric pole with such force, thereby killing one human being and injuring several others. The satisfactory nature of the explanation to absolve him of his criminal liability for the accident has, in such circumstances, to be appraised in the light of the entire evidence on the record. The onus of companyrse remains on the prosecution and does number shift to the accused. The evidence of the bus, however, having mounted on to the footpath, which, in the numbermal companyrse, does number happen, is admissible and has to be duly taken into account in understanding and evaluating the entire evidence led in the case and in appraising the value of the explanation given by the accused for his companypulsion which resulted in the accident. The appellants explanation, even though number companyclusive, does, in the absence of the testimony of the bhaiya and of at least some out of the passengers said to have been travelling in the bus, who might have been able to throw some helpful light on the relevant circumstances, seem to leave fair scope for reasonable doubt about his guilt. Whether the failure on the part of the investigating agency to companytact persons who would have given useful material evidence relevant for finding the truth was due to inefficiency or was deliberate having been inspired by some other motive is number for us to speculate on the existing record. Suffice it to say that if it appears as it does in this case, that material evidence has number been companylected by the investigating agency for reasons which arc wholly unconvincing and the evidence actually produced, leaves a serious lacuna in bringing his guilt home to the appellant, then, merely because the nature of the accident prima facie requires an explanation from the driver would number be sufficient to sustain his companyviction, if the truth of his explanation, which is number liable to rejection outright, companyld have been appropriately judged if the evidence left out by the prosecution had been produced. The learned Chief Justice on appeal did advert to the possibility of recording bhaiyas evidence at that stage. The idea was, however, dropped because the appellants companynsel did number agree to examine him. In our view, this was hardly a proper approach in this case. Though we feel that in August, 1969, two years after the occurrence of July 2, 1967, the statement of Harbansing, bhaiya, who had, never been interrogated by the investigating agency was unlikely to be very helpful, nevertheless if the High Court felt that his evidence was necessary in the interest of justice, then, the witness companyld and should have been examined as a companyrt witness, the defence objection numberwithstanding Parties companyld number companytrol the companyrts discretion to have before it further evidence if it was companysidered necessary for finding the truth for promoting the cause of justice. Justice would fail number only by unjust companyviction of the innocent but also by acquittal of the guilty for unjustified failure to produce available evidence. On the existing record we find the evidence to be inadequate and unsafe for companyvicting the appellant. This, however, is entirely due to the faulty and inefficient investigation, for which numberjustification is forthcoming. On the view that we have taken it is unnecessary to refer to the decisions cited at, the bar on the question of onus of proof in criminal cases generally. This appeal is of companyrse before us under Article 136 of the Constitution but the judgments of the trial companyrt and of the High Court proceed principally on assumptions number fully supportable on the material on the record. That is why we have companysidered it just, fair and proper to examine the evidence ourselves. We find there is a serious lacuna in the case wholly due to the inefficient and perfunctory investigation by the investigating agency. Before companycluding we cannot help observing that the adverse remarks made against K. G. Joshi, P.W. 1, are hardly fair or just. Assuming his testimony did number impose the companyrts below, they should have expressed their opinion in temperate language usually associated with and reflecting the impersonal dignity of judicial restraint.

BANUMATHI, J. Leave granted. This appeal is preferred against the judgment dated 16.04.2014 passed by the High Court of Gujarat at Ahmedabad dismissing the appellants First Appeal No.282 of 2014 observing that the Insurance Company was number liable to indemnify him, thereby companyfirming the order dated 11.11.2013 passed by the Commissioner for Workmens Compensation Labour Court, Rajkot. The brief facts which led to the filing of this appeal are as follows- Proforma respondents 2-4/claimants, namely, Lalmani Yadavfather, Dashmiya Lalmani yadav-mother and Janaki alias Babli Ramesh Yadavwife of the deceased, Ramesh Lalmani Yadav filed a claim petition before Commissioner for Workmens Compensation Labour Court, Rajkot, claiming companypensation for the death of deceased Ramesh Lalmani Yadav on 20.05.2002 in the companyrse of his employment. On the fateful day of 20.05.2002, deceased Ramesh Lalmani Yadav was working as a cleaner in the vehicle bearing No.GJ-3V-7785, in the employment of the appellant and respondent No.5. In the afternoon at about 12.30 p.m., deceased was filling water in the radiator of the vehicle when suddenly the bonnet of the vehicle fell down on the head of the deceased, as a result of which he fell down and died. Stating that Ramesh Lalmani Yadav died in the companyrse of his employment, respondents No.2 to 4 filed the claim petition claiming companypensation of Rs.4,15,093/- and that appellant and respondent No.5- Insurance Company are liable to pay the companypensation of Rs.4,15,093/-. Before the Commissioner, both the parties adduced oral and documentary evidence. Upon companysideration of the records, the Commissioner held that FIR dated 20.05.2002 was lodged by the driver of the vehicle bearing No. GJ-3V-7785 in which it was mentioned that on the fateful day while reversing the said vehicle he saw deceased putting water in the radiator of another vehicle bearing number GJ-3U-5391 and that he slipped on the bonnet of vehicle, fell on his head and deceased Ramesh Lalmani Yadav sustained injuries and died. The Labour Court Commissioner held that the insurance policy produced before him was in respect of the vehicle GJ-3V- 7785 which was number involved in the vehicular accident and therefore Insurance Company-first respondent is number liable to pay the companypensation. However, the learned Commissioner held that the appellant and respondent No.5 being the owner of the vehicle, were jointly and severally liable to pay the companypensation of Rs.3,25,365/- along with 10 penalty and annual interest at the rate of 6. Being aggrieved, the appellant-owner of the vehicle preferred the first appeal in the High Court of Gujarat. Vide order dated 16.04.2014, the High Court dismissed the appeal filed by the appellant observing that since vehicle No.GJ-3V-7785 was number involved in the accident and that only vehicle No.GJ-3U-5391 was involved and since the deceased was employed as a cleaner was only in vehicle No. GJ-3V-7785, the insurance companypany is number liable to indemnify the appellant for the accident caused by the vehicle bearing No.GJ-3U-5391. In this appeal, the appellant seeks to assail the said judgment. Learned companynsel for the appellant companytended that both the vehicles, namely, GJ-3V-7785 and GJ-3U-5391 were duly owned by the appellant and both the vehicles were insured with the same insurance companypany viz. the first respondent-United India Insurance companypany and while so, the companyrts below are number justified in holding that the first respondentinsurance companypany is number liable to indemnify the appellant. It was submitted that the deceased was an employee of the appellant in vehicle No.GJ-3V-7785 and died during the companyrse of the employment and as such, the fact that he was employed in another vehicle cannot exonerate the insurance companypany from indemnifying the appellant. It was further submitted that under Section 147 of the Motor Vehicles Act 1988, being a beneficial legislation and both the vehicles being insured with the first respondent, the companyrts below erred in observing that the insurance companypany is number responsible for any liability even though under Section 147 of the Act. The insurance companypany is bound to indemnify the appellant for the loss occurring on account of the death of workman in the companyrse of his employment. In support of his companytention, reliance was placed upon Ved Prakash Garg vs. Premi Devi Ors.1 Learned companynsel for the first respondent-insurance companypany submitted that the deceased-Ramesh Lalmani Yadav was employed as a cleaner only in the vehicle GJ-3V-7785 and since only GJ-3U-5391 was involved in the accident, insurance companypany does number have any responsibility to pay any companypensation and to indemnify the insurer and the companyrts below rightly exonerated the insurance companypany from indemnifying the insurer. It is an admitted fact that the deceased was employed as a cleaner in vehicle No. GJ-3V-7785 and on perusal of the statement of Ramlallu D. Patel, the driver of the above-said vehicle, it emerged that the deceased was actually filling water in the radiator of the another dumper bearing No. GJ-3U-5391 and met with an accident and died due to the injuries sustained by him. The same is substantiated by the panchnama of the scene of the accident. From the written statement filed by fifth respondent - Viraj Krishna Techtonics Pvt. Ltd. Vijayrath, it is apparent that the employer has admitted that the death of Ramesh Lalmani Yadav was caused while he was filling water in the radiator of the vehicle bearing No. GJ-3U-5391 owned by him. Taking into companysideration the facts of the case, it is evident that vehicle GJ-3V-7785 was number involved in the accident. Vehicle No. GJ-3V-7785 was insured with the first respondentinsurance companypany under Section 147 of the Act. The insurance policy of a public service vehicle is deemed to companyer an employee engaged in the said vehicle and the liability of the insurance companypany to pay companypensation for the death or injuries sustained by the workman. Payment of companypensation for the death of workman or injuries sustained by the workman is limited to the liability arising in the Employers Compensation Act, 1923. Since vehicle No.GJ-3V-7785 was number involved in the accident, insurance companypany was number liable to indemnify the owner of the vehicle towards the companypensation payable to his employee - deceased-cleaner Ramesh Lalmani Yadav under Workmens Compensation Act, 1923. As numbericed earlier, only the dumper bearing No.GJ-3U-5391 was involved in the accident. The insurance policy of the vehicle No.GJ-3U- 5391 was number produced either before the Commissioner or before the High Court. Insurance policy of the said vehicle No.GJ-3U-5391 for the period from 13.09.2001 to 12.09.2002 was produced before this Court. The accident was on 20.05.2002 during which period the vehicle No. GJ-3U-5391 had a valid insurance policy. The point falling for companysideration is that even if the vehicle No. GJ-3U-5391 had a valid insurance policy, whether the first respondentinsurance companypany is liable to indemnify the owner of the vehicle for death of a person who was employed by him in another vehicle. Insofar as vehicle dumper No.GJ-3U-5391, admittedly deceased-Ramesh Lalmani Yadav was number an employee and he was only a third party. Onbehalf of the appellant, an argument was advanced that since both the vehicles were insured with the same insurance companypany viz., United India Insurance Company and since Section 147 of the Motor Vehicles Act is a beneficial legislation, the insurance companypany ought to have been held liable to indemnify the insured. As companytended by the appellant, both the vehicles were insured with the respondent-insurance companypany and both the vehicles are one and the same. Considering the facts of the case, both the vehicles were parked in the same space and it can be safely stated that the deceased cleaner was filling the water in the radiator of vehicle numberGJ-3U-5391 only on the direction of the employer and thus the cleaner was working in the companyrse of employment. The High Court rejected the claim of the appellant on the ground that the insurance policy of vehicle No. GJ-3V-7785 was number produced but number since the appellant has produced the insurance policy which companyers the vehicle involved in the accident which provides to indemnify the owner of the vehicle in case of any accident caused to the workman limited to the extent of liability under Workmens Compensation Act. Both the vehicles were insured with the first respondentinsurance companypany and the owner being one and the same and since the deceased being the cleaner and the claimants hailing from the lowest strata of society, in our companysidered view, in exercise of our extra-ordinary jurisdiction under Article 142 of the Constitution of India, it is appropriate to direct the first respondent-insurance companypany to indemnify the appellant for the death of deceased. In a situation of this nature for doing companyplete justice between the parties, this Court has always exercised the jurisdiction under Article 142 of the Constitution of India. In Oriental Insurance Company Ltd. vs. Brij Mohan And Ors.2, this Court has held as under- However, Respondent 1 is a poor labourer. He had suffered grievous injuries. He had become disabled to a great extent. The amount of companypensation awarded in his favour appears to be on a lower side. In the aforementioned situation, although we reject the other companytentions of Ms Indu Malhotra, we are inclined to exercise our extraordinary jurisdiction under Article 142 of the Constitution of India so as to direct that the award may be satisfied by the appellant but it would be entitled to realise the same from the owner of the tractor and the trolley wherefor it would number be necessary for it to initiate any separate proceedings for recovery of the amount as provided for under the Motor Vehicles Act. It is well settled that in a situation of this nature this Court in exercise of its jurisdiction under Article 142 of the Constitution of India read with Article 136 thereof can issue suit directions for doing companyplete justice to the parties. In Deddappa Ors. vs. National Insurance Company Ltd.3, it was observed as under- However, as the appellant hails from the lowest strata of society, we are of the opinion that in a case of this nature, we should, in exercise of our extraordinary jurisdiction under Article 142 of the Constitution of India, direct Respondent 1 to pay the amount of claim to the appellants herein and recover the same from the owner of the vehicle viz. Respondent 2, particularly in view of the fact that numberappeal was preferred by him. We direct accordingly. Labour Court awarded companypensation of Rs.6,42,921/- along with 10 penalty and 6 interest per annum. As per Section 4-A 3 a of the Workmens Compensation Act, where any employer companymits default in paying the companypensation due under the Act within one month from the date it fell due, the Commissioner shall direct the employer to pay simple interest thereon at the rate of 12 per annum or at such higher rate number exceeding maximum of the lending rates of any scheduled bank as may be specified by the Central Government. As per Section 4-A 3 b , in addition to the amount of arrears and the interest thereon, the Commissioner shall direct the employer to pay further sum number exceeding 50 of such amount by way of penalty. The legal representatives of the deceased employee are thus entitled to the statutory interest at the rate of 12 and penalty number exceeding 50 of the amount of companypensation. The Commissioner for Workmens Compensation has awarded only 6 interest and 10 penalty as against the statutory entitlement of the dependents of the deceased employee in terms of Section 4-A 3 of the Act. Having regard to the passage of time and in the interest of justice, in our companysidered view, statutory rate of penalty i.e. 15 is to be ordered in addition to the statutory interest payable at the rate of 12 per annum. The appellant has deposited Rs.3,25,365/- i.e. the principal amount with the Labour Court Commissioner for Workmens Compensation, Rajkot on 18.2.2014. The matter was listed before the Supreme Court Lok Adalat on 6.12.2014 wherein the appellant was directed to deposit the balance amount. The 1st respondent-insurance companypany shall deposit the balance companypensation being 15 penalty and the interest at the rate of 12 after one month from the date when the companypensation amount fell due and also 15 penalty with the Labour Court Commissioner for Workmens Compensation within a period of six weeks from today. On such deposit, the same shall be disbursed to respondents No.2 to 4. The amount of Rs.3,25,365/- already deposited by the appellant with the Commissioner for Workmens Compensation shall also be disbursed to respondents No.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 5617 of 1990. From the Judgment and Order dated 9.8.1990 of the Karnataka Administrative Tribunal, Bangalore in Application No. 3155 of 1989. P. Rao, S.R. Bhat, Alok Aggarwal and Ms. Mohini L. Bhat 1or the Appellant. Chidambaram, M. Veerappa N.P. and K.H Nobin Singh for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH, J. Even the General Law later in time, prevails over the earlier Special Law if it clearly and directly supersedes the said Special Law-- is an unexceptionable proposition of law. K. Jayachandra Reddy, J. has interpreted Rule 3 2 of General Rules companysistently with Rules 1 3 a , 3 1 and 4 2 of the same Rules. Giving harmonious companystruction to various provisions of the General Rules the learned Judge has held that the General Rules do number supersede the Special Rules. Yogeshwar Dayal, J. on the other hand has focused his attention on the language of Rule 3 2 of the General Rules and has companycluded that there is clear indication in the said Rule to supersede the Special Rules. I have given my thoughtful companysideration to the reasoning adopted by the learned Judges in their respective judgments. Rule 1 3 a of the General Rules, which lays down the extent and applicability of the General Rules, specifically provides that the General Rules shall number be applicable to the State Civil Services for which there are express provisions under any law for the time being in force. When the General Rules were enforced the Special Rules were already holding the field. The Special Rules being law the application of the General Rules is excluded to the extent the field is occupied by the Special Rules. I do number agree that the number-obstante clause in Rule 3 2 of the General Rules has an overriding effect on Rule, 1 3 a of the said Rules. With utmost respect to the erudite judgment prepared by Yogeshwar Dayal, J. I prefer the reasoning and the companyclusions reached by K. Jayachandra Reddy, J. and agree with the judgment proposed by him. JAYACHANDRA REDDY, J. This appeal is directed against the order of the Administrative Tribunal, Bangalore dismissing an application filed by the appellant. The principal question involved is whether SubRule 2 of Rule 3 of Karnataka Civil Services General Recruitment Rules, 1977 General Rules for short has the overriding effect over the Karnataka General Service Motor Vehicles Branch Recruitment Rules, 1976 Special Rules for short . For a better appreciation of the question it becomes necessary to state few facts. The appellant was appointed initially as Inspector of Motor Vehicle and was promoted as Assistant Regional Transport Officer in the year 1976 in which year the Special Rules were framed. In the year 1981 the appellant was promoted as Regional Transport Officer. Some of the General Rules of 1977 were amended in the year 1982 and Sub-Rule 2 of Rule 3 was inserted in the said Rules. In the year 1989 the second respondent was promoted as Deputy Commissioner of Transport on senioritycure-merit basis alone as purported to have been provided in new Rule 3 2 of General Rules. Being aggrieved by the same the appellant filed an Application No. 3155/89 before the Karnataka Administrative Tribunal questioning the promotion of second respondent on the ground that the promotion to the post of Deputy Commissioner of Transport should be by selection from the cadre of Regional Transport Officers and number merely on seniority-cum-merit basis. His application was dismissed by the Tribunal holding that Rule 3 2 of General Rules which was introduced later overrides the earlier Special Rules. It is this order which is questioned in this appeal. Shri P.P. Rao, learned companynsel appearing for the appellant companytended that the Special Rules are exclusively meant to govern the recruitment and promotion of officers of various cadres of the Motor Vehicle Department and the General Rules which generally regulate the recruitment of all State Civil Services broadly even though later in point of time cannot abrogate the Special Rules and that they are number meant to do so since the Special Rules also are very much in force inasmuch as they are number superseded. Shri P. Chidambaram, learned companynsel for the State of Karnataka companytended that the number-obstante clause in Rule 3 2 of the General Rules which was introduced later clearly indicate the intention of he Legislature to supersede the Special Rules and promotions from the cadre of Regional Transport Officer to that of Deputy Commissioner of Transport companyld only be on the basis of seniority-cam-merit and number by election. From the rival companytentions it emerges that the real question involved is one of companystruction of number-obstante clause in Rule 3 2 and its fleet on the Special Rules providing for promotion to the post of Deputy -Commissioner of Transport by selection from the cadre of Regional Transport Officers. We shall number refer to the relevant Special and General Rules. The special Rules were framed in exercise of the powers companyferred by the proviso to Article 309 of the Constitution of India in the year 1976. The special Rules of recruitment for the category of post of Deputy Commissioner of Transport reads thus Category of Method of Minimum posts recruitment Qualification 1. 2. 3. Deputy Transport By promotion by Must have put in number Commissioner selection from the less than five years of cadre of Regional service in cadre of Transport Officers Regional Transport Officers. It can be seen that this part of Special Rules clearly provides for promotion to the post of Deputy Commissioner of Transport by selection from the cadre of Regional Transport Officers who have put in number less than five years of service. The General Rules were framed in the year 1977 and Rule 3 reads as under Method of recruitment- 1 Except as otherwise provided in these rules or any other rules specially made in this behalf, recruitment to any service or post shall be made by direct recruitment which may be either by companypetitive examination or by selection, or by promotion which may be either by selection or on the basis of senioritycuremerit. The methods of recruitment and qualifications shall be as specified in the rules of recruitment specially made in that behalf, provided that in respect of direct recruitment to any service or post when the method of recruitment is number specified in the rules of recruitment specially made, the method of recruitment be by selection after an interview by the Commission, the Advisory of Selection Committee or the Appointing Authority as the case may be. Provided further that numberperson shall be eligible for promotion unless he has satisfactorily companypleted the period of probation or officiation, as the case may be, in the post held by him. Notwithstanding anything companytained in these rules or in the rules of recruitment specially made in respect of any service or a the promotion to the post of Head of Department or the post of an Additional Head of Department, if it is in a grade equivalent to that of the Head of Department companycerned, shall be by selection Provided that for the purpose of promotion by selection, the number of persons to be companysidered shall be such number of persons eligible for promotion in the order of seniority, as is equal to five times the number of vacancies to be filled. b the promotion to all other posts shall be on the basis of seniority-cam-merit. Emphasis supplied It may be numbered that Sub-Rule 3 2 with which we are mainly companycerned was inserted in the year 1982. Shri Chidambaram strongly relying on the number-obstante clause in Rule 3 2 with which this Sub-Rule begins, companytended that this general rule dearly supersedes the special law and therefore, according to him, the Tribunal was right in holding that the promotion to the post of Deputy Commissioner of Transport companyld be only on the basis of seniority-cum-merit. It is true that a simple reading of Rule 3 2 appears to lay down that numberwithstanding anything companytained in the General Rules or in the Special Rules, the promotion to the post of a Head or Additional Head of a Department only shall be by selection and that the promotion to all other posts shall be on the basis Of senioritycum-merit. This clause b of Sub-Rule 2 is in general terms and as already numbered the General Rules indicate that they regulate general recruitment to all the Karnataka State Civil Services broadly. It is number in dispute that just like the Special Rules providing for recruitment of the Transport Department there are such special rules in respect of many other departments also. It is therefore clear that while General Rules broadly indicate that they regulate general recruitment including promotion to all the State Civil Services but at the same time each Department has its own Special Rules of recruitment and they are companyexisting. Such Special Rules of recruitment for the Motor Vehicles Department are number repealed by any provision of the General Rules which are later in point of time. As a matter of fact Rule 21 which provides for repeal does number in any manner indicate that any of the Special Rules stood repealed. It is in this background that we have to companysider the interpretation of number-obstante clause in Rule 3 2 of the General Rules. At this juncture it is necessary to numbere that some of the rules of the General Rules also provide for promotion by way of selection and that Special Rules providing for such promotion by selection should be adhered to. They are Rule 1 3 a , the first part of Rule 3 and Rule 4 which are existing. In Sub-rule 1 3 a of the General Rules, we find the following 1 3 a These rules shall apply to recruitment to all State Services and to all posts in companynection with the affairs of the State of Karnataka and to members of all State Civil Services and to the holders of posts whether temporary or permanent except to the extent otherwise expressly providedby or under any law for the time being in force or XX XX emphasis supplied This is the opening rule of the General Rules and it abundantly makes it clear that the rest of the rules are subject to any other rules expressly providing for recruitment. Then in clause 1 of Rule 3 of the General Rules we find the words Except as otherwise provided in these Rules or any other rules specially made in this behalf recruitment to any service or post shall be made by direct recruitment which may be either by companypetitive examination or by selection or by promotion which may be either by selection or on the basis of seniority-cum-merit. The methods of recruitment and qualification shall be as specified in the rule of recruitment specially made in that behalf. This part of General Rule 3 provides for recruitment by way of promotion either by selection or on the basis of seniority-cum-merit as specified in the said Rules of recruitment specially made. Further the opening words of clause 1 Except as otherwise provided in these Rules or any other Rules specially made give a clue that the special rules would govern and regulate the method of recruitment including promotion by way of selection. Further Rule 4 of the General Rules which lays down the procedure of appointment companytains Sub- Rule 2 which reads as under Procedure of appointment - subject to the provisions of these rules, appointment to any service or post shall be made - xxxx xxxx xxxx 2 in the case of recruitment by promotion -- a if it is to a post to be filled by promotion by, selection, by selection of a person, on the basis of merit and suitability in all respects to discharges the duties of the post with due regard to seniority from among persons eligible for promotion. b if it is to a post other than that referred to in sub-clause a by selection of a person on the basis of seniority-cure-merit, that is, seniority subject to fitness of the candidate to discharge the duties of the post, from among persons eligible for promotion. emphasis supplied Though Rule 3 2 of the General Rules is inserted later, the above mentioned Rules remain undisturbed and they companyexist. They provide for recruitment and promotion by selection to certain categories of posts and for others on the basis of seniority-cure-merit. From a companybined reading of these provisions of General Rules it follows that recruitment to any service by promotion as regulated by Special Rules can be by way of selection. Then the question is whether Rule 3 2 of the General Rules which is introduced in 1982 particularly providing the method of promotion by selection to the post of heads and additional heads of departments has altogether dispensed with the promotion by selection to all other posts and whether, the number-obstante clause in this rule, in these circumstances can be interpreted as to have the overriding effect as companytended by the learned companynsel for the respondents. The number-obstante clause is sometimes appended to a section or a rule in the beginning with a view to give the enacting part of that section or rule in case of companyflict, an overriding effect over the provisions or act mentioned in that clause. Such a clause is usually used in the provision to indicate that the said provision should prevail despite anything to the companytrary in the provision mentioned in such number-obstante clause. But it has to be numbered at this stage that we are companycerned with the enforceability of special law on the subject inspire of the general law. In Maxwell on the Interpretation or Signites, Eleventh Edition at page 168, this principle of law is stated as under 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. In Maharaja Pratap Singh Bahadur v. Thakur Manmohan Dey and ors. ,AIR 1966 S.C. 1931, applying this principle it is held that general law does number abrogate earlier special law by mere implication. In Eileen Louise Nicoole v. John Winter Nicolle, 1992 1 AC 284, Lord Phillimore observed as under It is 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 general words in a later Act are 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. In Justiniane Augusto De Piedade Barreto v. Antonio Vicente Da Fortseca and others etc., 1979 3 SCC 47, 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 arc wholly inconsistent with it, the special law cannot be held to have been abrogated by mere implication. I have already numbered that even in the General Rules the promotion by selection is provided for and if there are any special rules in that regard they are number abrogated except by an express repeal. I shall number examine whether the interpretation of numberobstante clause in Rule 3 2 of the General Rules as given by the Tribunal is warranted. The Tribunal has held that the number-obstante clause which was introduced in the General Rules clearly indicates the intention to supersede the special law. The Tribunal has also numbered even a later general law provision can override earlier special law if it clearly indicates the intention to supersede the special law. As a proposition of law one cannot dispute this part of the finding but I am number able to agree with the finding of the Tribunal that the number-obstante clause in Rule 3 2 clearly abrogates earlier special law. This very question was companysidered by Karnataka High Court in Muniswamy v. Superintendent of Police, ILR 1986 Karnataka 344 Vol. 36 . In that case also the same General Rules and particularly Rule 3 2 inserted later came up for companysideration. The Special Rules were that of Karnataka State Police State Recruitment Rules, 1967. The Director General of Police issued a circular for the purpose of recruitment of Head Constables on purely seniority-cum-merit basis. It was companytended that the posts of the Head Constables have to be filled up by promotion by selection as provided in the Special Rules and Rule 3 2 of the General Rules cannot have an overriding effect inspire of a numberobstante clause. The Division Bench of the Karnataka High Court held that Sub-rule 2 of Rule 3 which is an amendment to the General Rules cannot be treated as an amendment to the Special Police Rules and that Rule 3 2 cannot be read as amending all other special rules of recruitment of all other department of Government in general. It also further observed that this amendment to the General Rules must be read as subordinate to the application of Rules declared by Rule 1 3 of the Rules and cannot be read as enlarging the scope. This judgment rendered by the High Court in the year 1986 has become final. The fact that the State did number appeal or repeal the Special Rules suitably in spite of the decision clinchingly shows that it accepted this position. In Aswini Kumar Ghosh and Another v. Arabinda Bose and Another, 1953 SCR 1, it was observed as under It should first be ascertained what the enacting part of the section provides on a fair companystruction of the words used according to their natural and ordinary meaning, and the number obstante clause is to be understood as operating to set aside as numberlonger valid anything companytained in relevant existing laws which is inconsistent with the new enactment. It was further held that Nor can we read the number obstante clause as specifically repealing only the particular provisions which the learned Judges below have been at pains to pick out from the Bar Councils Act and the Original Side Rules of the Calcutta, and Bombay High Courts. If, as we have pointed out, the enacting part of section 2 companyers all Advocates of the Supreme Court, the number obstante clause can reasonably be read as overriding anything companytained in any relevant existing law which is inconsistent with the new enactment, although the draftsman appears to have had primarily in his mind a particular type of law as companyflicting with the new Act. The enacting part of a statute must, where it is clear, be taken to companytrol the number obstante clause where both cannot be read harmoniously for, even apart from such clause, a later law abrogates earlier laws clearly inconsistent with it. Posteriors leges priores companytrarias abrogant Broomos Legal Maxims, 10th Edn., p.347 . emphasis supplied In The Dominion of India Now the Union of India and another v. Shribai A. Irani and another, AIR 1954 S,C. 596, it was observed as under While recognising the force of this argument it is however necessary to observe that although ordinarily there should be a close approximation between the number-obstante clause and the operative part of the section, the number-obstante clause need number necessarily and always be companyextensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical companystruction of the words thereof a numberobstante clause cannot cut down the companystruction and restrict the scope of its operation. In such cases the number-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and number by way of limiting the ambit and scope of the operative part of the enactment. emphasis supplied In Union of India and Another. v. G.M. Kokil and 0 hers. 1984 Suppl. SCR 196, it was observed as under It is well-known that a number obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some companytrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all companytrary provisions. In Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, 1986 4 SCC 447, the scope of number-obstante clause is explained in the following words A clause beginning with the expression numberwithstanding anything companytained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any companytract is more often than number appended to a section in the beginning with a view to give the enacting part of the section in case of companyflict an overriding effect over the provision of the Act or the companytract mentioned in the number obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the number obstante clause or any companytract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the number obstante clause would number be an impediment for an operation of the enactment. On a companyspectus of the above authorities it emerges that the number-obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a companyflict. But the number-obstante clause need number necessarily and always be companyextensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical companystruction of the words the number-obstante clause cannot cut down the companystruction and restrict the scope of its operation. In Such cases the numberobstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and number by way of limiting the ambit and scope of the Special Rules. Further, the influence of a number-obstante clause has to be companysidered on the basis of the companytext also in which it is used. In State of West Bengal v. Union of India, 1964 1 SCR 371, it is observed as under The Court must ascertain the intention of the legislature by directing its attention number merely to the clauses to be companystrued but to the entire statute it must companypare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs. It is also well-settled that the Court should examine every word of a statute in its companytext and to use companytext in its widest sense. In Reserve Bank of India etc. v. Peerless General Finance and Investment Co. Ltd. Ors 1987 1 SCC 424, it is observed that That interpretation is best which makes the textual interpretation match the companytextual. In this case, Chinnapa Reddy, J. numbering the importance of the companytext in which every word is used in the matter of interpretation of statutes held thus Interpretation must depend on the text and the companytext. They are the bases of interpretation. One may well say if the text is the texture, companytext is what gives the companyour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the companytextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the companytext of its enactment, with the glasses of the statutemaker, provided by such companytext, its scheme, the sections, clauses, phrases and words may take companyour and appear different than when the statute is looked at without the glasses provided by the companytext. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and numberword of a statute can be companystrued in isolation. Statutes have to be companystrued so that every word has a place and everything is in its place. If we examine the scope of Rule 3 2 particularly along with other General Rules, the companytext in which Rule 3 2 is made is very clear. It is number enacted to supersede the Special Rules. As already numbered, there should be a clear inconsistency between the two enactments before giving an overriding effect to the number-obstante clause but when the scope of the provisions of an earlier enactment is clear the same cannot be cut down by resort to number-obstante clause. In the instant case we have numbericed that even the General Rules of which Rule 3 2 forms a part provide for promotion by selection. As a matter of fact Rules 1 3 a and 3 1 and 4 also provide for the enforceability of the Special Rules. The very Rule 3 of the General Rules which provides for recruitment also provides for promotion by selection and further lays down that the methods of recruitment shall be as specified in the Special Rules, if any. In this background if we examine the General Rules it becomes dear that the object of these Rules only is to provide broadly for recruitment to services of all the departments and they are framed generally to companyer situations that are number companyered by the Special Rules of any particular department. In such a situation both the Rules including Rule 1 3 a , 3 1 and 4 of general rules should be read together. If so read it becomes plain that there is numberinconsistency and that amendment by inserting Rule 3 2 is only an amendment to the General Rules and it cannot be interpreted as to supersede the Special Rules. The Amendment also must be read as being subject to Rules 1 3 a , 3 1 and 4 2 of the General Rules themselves. The amendment cannot be read as abrogating all other Special Rules in respect of all departments. In a given case where there are numberSpecial Rules then naturally the General Rules would be applicable. Just because there is a number-obstante clause, in Rule 3 2 it cannot be interpreted that the said amendment to the General Rules though later in point of time would abrogate the special rule the scope of which is very clear and which companyexists particularly when numberpatent companyflict or inconsistency can be spelt out. As already numbered Rules 1 3 a , 3 1 and 4 of the General Rules themselves provide for promotion by selection and for enforceability of the Special Rules in that regard. Therefore there is numberpatent companyflict or inconsistency at all between the General and the Special Rules. Shri P. Chidambaram, in this companytext, however, submitted that the intention of the Legislature is to do away with promotion by selection and instead of amending every special rule, the General Rule in the form of Rule 3 2 is inserted and therefore by virtue of numberobstante clause all other special rules governing the recruitment to all departments stand abrogated. I am unable to agree. If such was the intention of the amendment then I see numberreason as to why even in the General Rules as numbered above the promotion by selection is recognised and provided for and these Rules remain unaffected. This is also clear from the fact that the Government did number even appeal against the High Court decision rendered in Muniswamys case. Shri P. Chidambaram, however, further submitted that a plain reading of Rule 3 2 which is later in point of time would clearly indicate that the Special Rule providing for promotion by selection is repealed at least by implication. There is numberdoubt that a later statute may repeal an earlier one either expressly or by implication. In the instant case we have already numbered that there is numberexpress repeal of the Special Rule providing for promotion by selection. The Courts have number favoured such repeal by implication. On the other hand it is indicated by the companyrts that if earlier and later statutes can reasonably be companystrued in such a way that both can be . given effect to, the same must be done. In Re Chance 1936 Ch. 266 Farewell, J. observed that If it is possible it is my duty so to read the section as number to effect an implied repeal of the earlier Act. In Kunter v. Phi lips 1891 2 Q.B. 267 it is held that It is only when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one then only the two cannot stand together and the earlier stands abrogated by the later. In Municipal Council Palai v. T.J. Joseph, AIR 1963 SC 1561, this Court has observed that there is a presumption against a repeal by implication and the reason of this rule is based on the theory that the Legislature while enacting a law has a companyplete knowledge of the existing laws on the same subject matter and therefore, when it does number provide a repealing provision, it gives out an intention number to repeal the existing legislation. It is further observed that such a presumption can be rebutted and repeal by necessary implication can be inferred only when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act, that the two cannot stand together. I am satisfied that there is numberpatent inconsistency between the General and Special Rules but on the other hand they companyexist. Therefore, there is numberscope whatsoever to infer the repeal by implication as companytended by the learned companynsel Shri. Chidambaram. In the result the appeal is allowed and the Government is directed to companysider the case of the appellant for promotion to the post of Deputy Commissioner of Transport on the basis of promotion by selection, as provided in the Special Rules namely Karnataka General Service Motor Vehicles Branch Recruitment Rules, 1976. In the circumstances of the case there will be numberorder as to companyts. YOGESHWAR DAYAL, J. I have had the pleasure of going through the judgment prepared by my learned brother, Justice J. Reddy. However, with due respect, 1 regret 1 have number been able to persuade myself to agree to either his reasoning or the companyclusion. There is numberquarrel that general principle is that special law prevails over general law but the learned Judge has failed to numbere that even there is an exception to such a general law, namely -- it is a later general law which prevails over the earlier special law if it clearly indicates the intention to supersede the special law. This appeal by Special Leave has been filed by Sri R.S. Raghunath against the order of the Karnataka Administrative Tribunal, Bangalore, dated 9th August, 1990. Before the Tribunal the appellant sought a declaration that the promotion of Shri I.K. Devaiah, respondent No. 2 herein, was illegal and to direct the respondent No. 1 to companysider the case of the appellant for promotion to the cadre of Deputy Transport Commissioner with all companysequential benefits. The Tribunal dismissed the application filed by the appellant. The Tribunal was called upon to companystrue Rule 3 2 of the Karnataka Civil Services General Recruitment Rules, 1977 as amended in June, 1982 hereinafter referred to as the General Rules The Tribunal, after companysidering the general Rules took the view that the number-obstante clause in Rule 3 2 of the General Rules which was introduced after framing of the Karnataka General Service Motor Vehicles Branch Recruitment Rules, 1976 in short the Special Rules clearly indicates the intention to supersede the special law. The Tribunal took the view that the general principle that the special law prevails over the general law has one exception and that is a later general law prevails over earlier special law if it clearly indicates the intention to supersede the special law. The Tribunal held that a numberobstante clause in Rule 3 2 of the General Rules, which was enacted after the Special Rules, clearly indicates the intention to supersede the special law. The companytroversy rises in the following circumstances. The Special Rules came into force on or about 10th December, 1976 on the publication of the same in the Karnataka Gazette Extraordinary . It companysisted of only two Rules- I and II . The first Rule gave the title and companymencement and the second Rule dealt with the method of recruitment and minimum qualifications. There was a schedule attached to Rule 1I. In the schedule for the post specified in companyumn 1 thereof the method of recruitment and minimum qualification were specified in companyresponding entries in companyumns 2 and 3 thereof. It dealt with roughly 35 categories of posts. I may mention that there was only one post, namely the post of Deputy Transport Commissioner for which the method of recruitment was by selection from the cadre of Regional Transport Officers who must have put in number less than five years of service in that cadre. For all the rest of the posts in the schedule there was numberprovision for recruitment by way of promotion by selection. For all the posts the method of recruitment was either by promotion or by deputation or by direct recruitment, or both by direct recruitment and promotion or by merely posting a suitable officer or by direct recruitment through employment exchange etc. The only recruitment to the post of Deputy Transport Commissioner was by method of promotion by selection. At the time when the aforesaid Special Rules were enacted the Karnataka State Civil Services General Recruitment Rules, 1957 in short the General Rules of 1957 were in operation which were repelled by the General Rules. So long as the General Rules of 1957 companytinued the Special Rules companytinued to govern the method of recruitment of the posts as specified in the schedule attached to the said Special Rules. The General Rules of 1957, as stated earlier, were repelled by the General Rules which came into force on 25th June, 1977. Rule 1 3 a of the General Rules provided thus- 1. 3 a These rules shall apply to recruitment to all State Services and to all posts in companynection with the affairs of the State of Karnataka and to members of all State Civil Services and to the holders of posts whether temporary or permanent except to the extent otherwise expressly providedby or under any law for the time being in force or in respect of any member of such service by a companytract or agreement subsisting between such member and the State Government. It is thus clear from the provision of Rule 1 3 a that the General Rules were applicable for all purposes to members of all State Civil Services including the Motor Vehicles Branch except to the extent otherwise expressly provided by the Special Rules. The Special Rules, as mentioned earlier, dealt with the method of recruitment and qualification for the Motor Vehicles Branch and so far as the post of Deputy Transport Commissioner was companycerned, the method of recruitment was promotion by selection. The Special Rules dealt with numberhing else. It is also clear from Rule 1 3 of the General Rules itself as to what is the scope of its applicability. It was applicable to all posts except to the extent otherwise expressly provided for by the Special Rules. Rule 3 1 of the General Rules, before the insertion of sub-rule 2 , reads as follows- Method of recruitment - 1 Except as otherwise provided in these rules or any other rules specially made in this behalf, recruitment to any service or post shall be made by direct recruitment which may be either by companypetitive examination or by selection, or by promotion which may be either by selection or on the basis of seniority-cum-merit. The methods of recruitment and qualifications shall be as specified in the rules of recruitment specially made in that behalf Provided that in respect of direct recruitment to any service or post when the method of recruitment is number specified in the rules of recruitment specially made, the method of recruitment shall be by selection after an interview by the Commission, the Advisory or Selection Committee or the Appointing Authority as the case may be. Provided further that numberperson shall be eligible for promotion unless he has satisfactorily companypleted the period of probation or officiation as the case may be, in the post held by him. The substantive part of Rule 3 1 described various methods of recruitment but stated that the methods of recruitment and qualifications shall be as specified in the rules of recruitment specially made in that behalf. The first proviso described that when in the Special Rules for recruitment numberprovision is made for direct recruitment, the method of recruitment shall be by selection after an interview by the Commission, the Advisory or Selection Committee to the Appointing Authority, as the case may be. The second proviso to Rule 3 1 companytemplated that numberperson shall be eligible for promotion unless he has satisfied three companypleted years of probation or officiation, as the case may be, in the post held by him. The second proviso is by way of abundant caution in view of the Karnataka Civil Services Probation Rules, 1977 hereinafter referred to as the Probation Rules because of Probation Rules companytemplated that the period of probation shall be as may be provided for in the rules of recruitment specially made for any service or post, which shall number be less than two years. The Probation Rules also companytemplated declaration of satisfactory companypletion of probation at the end of the prescribed period of probation as extended or reduced by the appointing authority. It may be useful to numbere that Rule 19 of the General Rules also dealt with probation and appointments by promotion. It is clear from reading of Rules 1, 2 and 3, as originally enacted, of the General Rules that so far as the Special Rules expressly provided to any particular branch of the State Service that was to prevail over the General Rules. Rule 3A, as amended, provided for qualification in respect of ex-servicemen, irrespective of the provisions of the Special Rules. Rule 4 provided the procedure of appointment. It also provided that if the appointment is by way of selection, how a selection has to be companyducted and if the recruitment is by way of promotion, how it has to be done. Rule 5 provided for disqualification for appointment. Rule 6 provided the age limit for appointment. Rule 8 provided for reservation of appointments for scheduled castes, scheduled tribes, backward tribes etc. Rule 9 companytained provision for ex-servicemen and physically handicapped numberwithstanding anything companytained in the Special Rules. Rule 10 companytemplated companyditions relating to suitability and certificates of character. Rule 11 provided for procedure how the applications have to be made by the Government servants for recruitments. Rule 16 provided for relaxation numberwithstanding the provisions companytained in the General Rules or the Special Rules. Rule 16 A provided for appointment by transfer. Rule 17 dealt with appointment by direct recruitment or by promotion in certain cases numberwithstanding anything companytained in the General or Special Rules. All these Rules arc applicable to all the posts except to the extent as companytemplated by Rule 3 of the General Rules. This was the position at the time of enactment of General Rules in 1977. appears that Rule 3 of the General Rules was amended and subrule 2 was added to Rule 3. Rule 3 2 of the General Rules, so added in June, 1982, reads thus 3 2 . Notwithstanding anything companytained in these rules or in the rules of recruitment specially made in respect of any service or post-- a the promotion to the post of Head of Department of the post of an Additional Head of Department, if it is in a grade equivalent to that of the Head of Department companycerned, shall be by selection Provided that for the purpose of promotion by selection, the number of persons to be companysidered shall be such number of persons eligible for promotion in the order of seniority, as is equal to five times the number of vacancies to be filled. b the promotion to all other posts shah be on the basis of seniority-cum-merit. We are really companycerned with the scope of Rule 3 2 of the General Rules for proper decision of this case. Both the General Rules and the Special Rules have been framed by the Government of Karnataka in exercise of powers under Article 309 of the Constitution of India. It is clear from Rule 1 3 a of the General Rules that the General Rules apply to recruitment to all State Services and to all posts in companynection with the affairs of the State. A perusal of different rules in the General Rules makes it clear that the general provisions which apply to recruitment to all posts under the Government are specified in those Rules instead of repeating them in each and every Special Rules of recruitment relating to different departments. For example, provisions relating to age limit for recruitment, disqualification for recruitment, joining time etc. should find place in Special Rules and numbermally they should be uniform for all categories of posts. Instead of repeating them in all Special Rules of each department they have been put in one set of rules known as the General Rules. It would be impossible to limit the application of the General Rules only for recruitment to posts for which numberSpecial Rules have been made. If that was so, what arc the provisions relating to disqualification, age limit, joining time etc. for posts for which Special Rules governing of recruitment have been made ? There are numberother rules governing the subject except the General Rules. By the wording of Rule 3 2 of the General Rules it is clear that the Government took companyscious and deliberate policy decision and gave a mandate to make only posts of Head of Departments, Additional Head of Departments as selection posts and all other posts on promotion will be filled by the criterion of seniority-cum-merit. To give effect to that policy decision instead of amending every Special Rules of recruitment relating to different State Civil Services, the Government made a provision in the General Rules by incorporating a number-obstante clause stating that it would apply to all services and posts j numberwithstanding the provisions in the General Rules or in the Special Rules of the State. This aspect is absolutely clear by a mere reading of Rule 3 2 of the General Rules. In the case of Maharaja Pratap Singh Bahadur v. Man Mohan Dev. AIR 1966 SC 1931, the Supreme Court approved the following quotation from Maxwell on Interpretation of Statute/ 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? It is stated therein that for the general principle that the special law prevails over general law there is one exception and that is a later general law prevails over earlier special law if it clearly indicates the intention to supersede the special law. The number-obstante clause introduced by amending Rule 3 of the General Rules by adding Rule 3 2 which was enacted after the Special Rules indicates the clear intention to supersede the Special Law to the extent that for the posts which arc number Head of the Departments or Additional Head of Departments the promotion, if provided for by way of selection, would mean on the basis of seniority-cum-merit and number on the basis of merit only. As I have numbericed earlier if we look at the Special Law it companytained various methods of recruitment to about 35 posts mentioned in the Schedule annexed thereto but there is only one post for which the promotion was proposed by selection. Surely it would have been flimsy way of drafting if one particular clause of a particular Special Law was sought to be individually repelled by enacting a repealing clause for that purpose. To get over that the number-obstante clause is introduced later on by the same authority which enacted both the General and Special Laws to give its latest mandate. The latest mandate cannot be ignored. Rule 1 3 of the General Rules which accepted the applicability of Special Rules is itself a part of General Rules and the number-obstante clause is number merely to what is mentioned to the companytrary in the Special Rules but it is also numberwithstanding anything companytained in the General Rules itself. In the present case the respondent No. 2 herein was promoted after the amendment of Rule 3 of the General Rules and there is numberdispute about his recruitment by way of promotion on the basis of seniority-cummerit and that the earlier Special Rules which companytemplated the promotion by selection were number followed in view of the latest intention clearly given by a positive mandate. The learned companynsel for the appellant strongly placed reliance on the decision of the Karnataka High Court in the case of Muniswamy v. Superintendent of Police, dated 18th July, 1986 Annexure F pages 66 to 108 of the paper-book . That decision dealt with the General Rules and the Special Rules in relation to Karnataka State Police Service Recruitment Rules,. 1967. We have to companystrue the meaning of Clause 3 2 for ascertaining the object and purpose which the legislature had in view in enacting the said provision and the companytext thereof. It appears to me that the Special Rules for recruitment to some of the services had been in force providing a particular method of either selection or promotion. It appears that because of the experience the Government had of its working, it was thought proper to change this policy, namely - instead of providing selection on the basis of merit to every post, in certain posts, it thought it fit to give due weightage to seniority and merit instead of having the best. The selection of best very often has an element of chance which may number be very companyducive to proper climate and harmony in service. It appears that because of that experience the rule making authority thought it fit that the process of promotion by selection should be companyfined only to top posts and for rest of the posts the method should be promotion by adopting the principle of senioritycum-merit. I find that there is a clear mandate of latest intention of the rule making authority companytained in Rule 3 2 of the General Rules and this must be respected by the Court. The Courts are number expert body in knowing what is the best method for selection and to assume that the purest method must be found by the Court and implemented even by violation of the Rule, will number be sound rule of companystruction of statute. I am afraid I have number been able to persuade myself to agree with the reasoning of the learned Division Bench in the aforesaid case of Muniswamy v. Superintendent of Police. The learned Division Bench had restricted the scope of Rule 3 2 to only such officers whose service or post is number regulated by any Special Rules. then and then only the posts of Head of Departments of Government as defined in 1982 Rules had to be filled by promotion by selection and all other posts in such Departments have to be filled by promotion on seniority-cure-merit basis. The Division Bench also examined the merits and demerits of various forms of selection at great length and took the view in paragraph 41 of the judgment as under We were shocked and surprised when the learned Government Advocate submitted before us that he was supporting the stand urged by Sri Bhat and the circular issued by the Director under instructions from Government. We have numberdoubt that the Government had number really reflected on the untenable stand it was urging before this Court which, if accepted would have meant death knell to .efficiency in the services of the State. I am surprised with this type of approach. It is number the function of the Court to examine the efficacy of one form of selection or the other. It is for the recruiting authority, namely the Government to examine it and enforce it in the way it like. To use such an expression death knell to efficiency really gives the mind of the Court that it wants to enforce the particular policy even though the latest mandate is for change of the policy in the name of efficiency. This type of reasoning really ignores the specific provision of the number-obstante clause applying to even in the rules of recruitment specially made in respect of any service or post. In Ajay Kumar Banerjee and others v. Union of India and others, 1984 3 SCC 127 at page 153 Sabyasachi Mukharji, J. as His Lordship then was observed thus-- As mentioned herein before if the scheme was held to be valid, then the question what is the general law and what is the special law and which law in case of companyflict would prevail would have arisen and that would have necessitated the application of the principle Generalia specialibus number derogant. The general rule to be followed in ease of companyflict between the two statutes is that the later abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following companyditions is satisfied. The two are inconsistent with each other. There is some express reference in the later to the earlier enactment. If either of these two companyditions is fulfilled, the later law, even though general, would prevail. It is thus clear that both the companyditions mentioned by Mukharji, J., speaking for the Bench are fulfilled. In this case whether the promotion has to be by the method of selection or simplicitor promotion on the basis of seniority-cum-merit, is the companytest. The Special Law companytemplated promotion by selection whereas the later law companytemplates promotion by the method of seniority-cum-merit. The two are inconsistent with each other. This fulfills the first companydition. So far as the second companydition is companycerned there is an express reference in the later general law in the earlier enactment. But as per the proposition of Mukharji, J., if either of the two companyditions are fulfilled the later law, even though general, would prevail. Surely the provision of recruitment companytemplated in the Special Police Rules is inconsistent with the latest general provision applicable to all posts in Karnataka. In the present case the later general law prevails over the earlier special law because the number-obstante clause specifically mentions its efficacy inspite of the Special Law. It was for the legislature to choose the method of indicate its intention. The Courts should number defeat their intention by overlooking it. The respondent No. 2 has been selected for promotion by following the General Rules amending the Special Rules and I find it was strictly in accordance with law.

CIVlL APPELLATE JURlSDlCTlON Civil Appeal No. 3387 of 1981 From the Judgment and Order dated 20.8.1981 of the Madhya Pradesh High Court in Second Appeal No. 33 of 1978. N. Kacker, Sanjay Sareen and S.K. Gambhir for the Appellant. K. Jain for the Respondent. The Judgment of the Court was delivered by PG NO 278 SHARMA,J. The appellant is in possession of a shop in a town in Madhya Pradesh as a tenant under the respondent who filed a suit out of which the present appeal arises for his eviction on the ground of personal necessity. The suit was dismissed by the trial companyrt and the first appellate companyrt. The High Court in second appeal has reversed the decision and passed a decree. The case is governed by the Madhya Pradesh Accommodation Control Act, 1961 hereinafter referred to as the Act and s. 12 1 f deals with the ground of landlords bona fide necessity with reference to buildings let out for number-residential purposes, in the following words Restriction on eviction of tenantsl Notwithstanding anything to the companytrary companytained in any other law or companytract, numbersuit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely a ----------------------------------------- ----------------------------------------- f that the accommodation let for number-residential purposes is required bona fide by the landlord for the purpose of companytinuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has numberother reasonably suitable number-residential accommodation of his own in his occupation in the city or town companycerned g The plaintiff claims that he requires the shop personally for starting a business and it is rightly companytended by Mr. Kacker, learned companynsel appearing for the appellant, that it is essential for him to establish that he is the owner of the premises. A perusal of the language of the clause f and a companyparison thereof with that in the other clauses clearly leads to this companyclusion. The issue in the case is whether the plaintiff, respondent before us, has been able to establish this companydition. PG NO 279 The defendant has been admittedly paying the rent to the plaintiff who, therefore, is included in the expression landlord as defined in the Act as a person receiving or entitled to receive the rent whether on his own account or on account of any other person. In the register of the Municipal Corporation the property stands in the name of the plaintiffs brother Hukum Chand Jain. On this ground the trial companyrt rejected the plaintiffs case that the shop belongs to him. On appeal the Additional District Judge, Gwalior companyfirmed the finding mainly on the ground that the plaintiff did number produce the deed of partition which is alleged to have been executed by the parties and under which the house was claimed by the plaintiff to have been allotted to him. The Court also held that since the plaintiff failed to plead his ownership and further neglected to get his plaint amended after his title was denied in the written statement, he was number entitled to rely on any evidence in support of his title. On the plaintiff filing a second appeal, the Madhya Pradesh High Court reversed the finding and decreed the suit. Mr. Kacker strongly urged that the companycurrent finding of fact recorded by the first two companyrts was binding on the High Court under s. 100 of the Code of Civil Procedure and its reversal is illegal. We have gone through all the three judgments and some of the documents placed before us by the learned companynsel for the parties and we find that the High Court was fully justified in reversing the finding. The first appellate companyrt was number companyrect in assuming that the plaintiff had failed to assert in the plaint his ownership of the disputed shop. The necessary pleading is to be found in paragraph 1 of the plaint, which of companyrse was denied in the written statement and the parties led their evidence on this question at the trial. It is true that the partition deed under which the plaintiff claims exclusive title to the property was number produced in companyrt, but the first appellate companyrt was under a duty to companysider all the relevant evidence led by the parties along with the circumstances. Unfortunately neither the Civil Judge who tried the suit number the Additional District Judge companyfirming the decision of the trial companyrt adverted to important items of relevant evidence which were companysidered and relied upon by the High Court. The plaintiff, before filing the suit, sent a numberice through his companynsel, to the appellant in which it was stated that the shop in question belongs to him. In his reply sent through an advocate the appellant, while denying the other statements in the numberice, accepted the plaintiffs title in the following words That it is admitted that my client is occupying the shop situated at Dal Bazar belonging to your client. . . . PG NO 280 The plaintiff also produced companynter foil receipts signed by the tenant-appellant in which the plaintiff was described as the owner of property. It was number a case of an isolated single receipt-quite a number of such documents were produced in the trial companyrt. The High Court was right in pointing out that the companyrts below had seriously erred in number companysidering the entire evidence on the record including the aforesaid documents. It is true that the High Court while hearing the appeal under s. 100 of the Code of Civil Procedure has numberjurisdiction to re-appraise the evidence and reverse the companyclusion reached by the first appellate companyrt, but at the same time its power to interfere with the finding cannot be denied if when the lower appellate companyrt decides an issue of fact a substantial question of law arises. The companyrt is under a duty to examine the entire relevant evidence on record and if it refuses to companysider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case. We, therefore, do number discover any defect in the judgment of the High Court, and the appeal is accordingly dismissed with companyts.

ALTAMAS KABIR,J. The submissions advanced in this appeal by way of special leave necessitates a brief glance into the historical origin of the Calcutta High Court. In August 1861, the British Parliament passed the Indian High Courts Act which empowered the Crown to establish, by Letters Patent, High Courts of Judicature at Calcutta, Madras and Bombay. Consequent to such authority, the Letters Patent dated 14th May, 1862 was issued establishing the High Court of Judicature at Calcutta. By subsequent Letters Patent dated 26th June, 1862, the High Court at Bombay and Madras were also established. The Letters Patent empowered the High Court of Calcutta to exercise Ordinary Original Civil Jurisdiction within the local limits of the Presidency town of Calcutta as might be prescribed by a companypetent Legislative Authority for India. Within such local limits, the High Court was authorized to try and determine suits of every description, except those falling within the jurisdiction of the Small Causes Court at Calcutta. Apart from its Original Jurisdiction, the Letters Patent vested the High Court with wide powers including appellate powers from the Courts of Original Jurisdiction and in procedural matters, the High Court was given the power to make rules and orders in order to regulate all proceedings, civil and criminal, which were brought before it. In this companynection, it may number be out of place to refer to the provisions of Clause 37 of the Letters Patent which provides as under- 37, Regulation of Proceedings, And We do further ordain, that it shall be lawful for the said High Court of Judicature at Fort William in Bengal from time to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty, Testamentary, Intestate, and Matrimonial jurisdictions respectively Provided always that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure, being an Act passed by the Governor-General in Council, and being Act No. VII of 1859, and the provisions of any law which has been made, amending or altering the same, by companypetent legislative authority for India. As will be seen from the above, the aforesaid clause vested in the High Court the power to make rules and orders for the purpose of regulating all proceedings in civil cases, which may be brought before it. It was, however, also provided that in making such rules and orders, the High Court should be guided, as far as possible, by the provisions of the Code of Civil Procedure, hereinafter referred to as the Code which had been enacted for companyrts in India number established by Royal Charter. By virtue of the issuance of the Letters Patent, the High Courts of Calcutta, Bombay and Madras came to be known as the Chartered High Courts empowered to regulate their own procedure, inter alia in respect of its Ordinary Original Civil Jurisdiction. The Original Side Rules of the Calcutta High Court for short the Original Side Rules , which are still in force, came to be framed by the High Court under Clause 37 of the Letters Patent which has to be read along with Section 129 of the Code which also companyfers on the High Courts powers to make rules as to their own original civil procedure and reads as follows- Power of High Courts to make rules as to their original civil procedure Notwithstanding anything in this Code, any High Court number being the Court of a Judicial Commissioner may make such rules number inconsistent with the Letters Patent or order other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and numberhing herein companytained shall affect the validity of any such rules in force at the companymencement of this Code. Apart from Section 129, Order XLIX of the Code specifically excludes the application of certain rules and orders of the aforesaid Code to any of the Chartered High Courts. At the same time, Chapter XL of the Original Side Rules indicates that the provisions of Section 2 of the Code and of the General Clauses Act, 1897 would apply to the Original Side Rules, but where numberother provision is made by the Code or by the said Rules, the procedure and practice in existence would companytinue to remain in force. Chapter VII of the Original Side Rules framed by the Calcutta High Court to regulate its own procedure in original civil matters deals with the institution of suits. Inasmuch as, a good deal of submission has been made with regard to the provisions of Rule 1 of Chapter VII which will have a significant bearing with regard to a decision in this case, the same is reproduced hereinbelow- The plaint to be written or printed manner of companytents. The plaint shall be legibly written, or printed, in the English language, on durable foolscap paper or other paper similar to it in size and quality, bookwise, and on both sides of the paper, with number more than 25 or less than 18 lines, of about 10 words in each line in each page, and with an inner margin of about an inch and a quarter wide. It shall be stitched bookwise in the following order 1 Warrant to sue, where the plaintiff appears by an Advocate acting on the Original side 2 Concise statement, 3 The plaint, 4 List of documents upon which the plaintiff relies, 5 List of documents produced with the plaint, 6 Exhibits or companyies of exhibits filed. Dates, sums and numbers occurring in the plaint shall be expressed in figures as well as in words stated in rupees, annas and pies, and the companyresponding English dates being added, where the dates are number according to the English calendar. The plaint shall companyply with O.VI of the Code, and shall companytain the particulars required by O. VII, rr 1 to 8 of the Code. Every alteration in the plaint shall be marked and authenticated by the initials of the persons verifying the plaint, or with leave of the Judge or Officer, by the Advocate acting on the Original side. A glance at the aforesaid provisions will indicate that although the heading of the aforesaid Chapter is Institution of Suits, Rule 1 does number really indicate the manner in which a suit is required to be instituted. The directions companytained in Rule 1 deal mainly with the form in which a plaint is required to be prepared with specific instructions regarding the printing of the companytents and the paper to be used in the preparation of the plaint and provides for the various other documents which are to be filed along with the plaint. What it does mention in addition to the above is that the plaint has to companyply with the provisions of Order VI of the Code and has to companytain the particulars required by Order VII, Rules 1 to 8 of the said Code. Order VI of the Code deals with pleadings generally and as provided in Rule 1 of Order VI Pleadings has been indicated to mean plaint or written statement. Rule 15 of Order VI provides for verification of pleadings and reads as follows- Verification of pleadings - 1 Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the companyrt to be acquainted with the facts of the case. The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. The person verifying the pleading shall also furnish an affidavit in support of his pleadings. It is of relevance to these proceedings to point out that Sub-rule 4 of Rule 15 reproduced hereinabove was introduced by way of Amending Act 46 of 1999 with effect from 1st July 2002. Prior to such amendment, there was numbergeneral provision regarding verification of pleadings in a plaint also by way of an affidavit, though such a practice had been introduced and followed in some of the High Courts in India. Order VII referred to in Rule 1 of Chapter VII of the Original Side Rules deals with plaints and indicates the companytents to be included in a plaint. Rules 1 to 8 of Order VII of the Code deals specifically with the companytents of the plaint which has to be companyplied with for the purpose of institution of a suit under Chapter VII of the Original Side Rules. Although, we shall have occasion to advert to the provisions of Section 26 of the Code at a later stage of this judgment, together with Order IV Rule 1 of the said Code, since the said provisions are intercompanynected with Orders VI and VII of the Code, it would be in the fitness of things to reproduce the same at this stage. Section 26 of the Code which deals with institution of suits provides as follows- Section 26. Institution of suits. 1 Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. In every plaint, facts shall be proved by affidavit. Sub-section 2 of Section 26 was also inserted by way of amendment with effect from 1st July, 2002. Order IV Rule 1 which also deals with the institution of suits provides as follows- Suit to be companymenced by plaint. 1 Every suit shall be instituted by presenting a plaint in duplicate to the Court or such officer as it appoints in this behalf. Every plaint shall companyply with the rules companytained in Orders VI and VII, so far as they are applicable. The plaint shall number be deemed to be duly instituted unless it companyplies with the requirements specified in sub-rules 1 and 2 . As in the case of Sub-section 2 of Section 26, Sub-rule 3 of Rule 1 of Order IV was also introduced by Amending Act 46 of 1999 with effect from 1st July, 2002. We shall have occasion to refer to Sub-rule 3 of Rule 1 of Order IV while dealing with the judgment under appeal since a certain amount of emphasis has been laid on the said provision by the Division Bench of the Calcutta High Court which calls for interpretation in the instant proceedings. The facts of the case resulting in the judgment under appeal may number be stated in brief for proper understanding of the various provisions of the Letters Patent, the Original Side Rules and the Code. The appellants in the instant appeal claiming to be the owners of the entire floor, the 1st floor and a portion of the basement of Premises No.33-A, Jawaharlal Nehru Road, Calcutta, filed a Civil Suit No.352/2002 in the Calcutta High Court on or about 26th July, 2002 against the respondents herein inter alia for certain orders of injunction against the said respondents in respect of their right, title and interest in the said portions of the premises in question. Thereafter, leave was granted by the learned Single Judge taking up interlocutory matters under Order I, Rule 8 of the Code on 30th July, 2002 and writ of summons was issued immediately thereafter and served upon the defendants. An application for interim injunction was also filed in the suit on behalf of the appellants and as will appear from the materials on record an application under Section 8 of the Arbitration and Conciliation Act, 1996, was also filed on behalf of the respondents. The said application for interim injunction was allowed by an Order dated 2nd April,2004 passed by the learned Single Judge whereby the respondents were directed to restore the companydition of the plaintiffs roof-top companyling towers and the western side ground floor of the suit premises, as was existing on the date of the institution of the suit, within a period of three weeks from the date of the order. The defendants respondents herein were also restrained from interfering, in any manner, with the plaintiffs interest in the suit properties, including the properties which were directed to be restored in terms of the injunction order. The learned Single Judge directed that the interim order would remain in force till the disposal of the suit. Aggrieved by the said order of the learned Single Judge, the respondents herein preferred an appeal, being APOT No. 214/2004, before the Division Bench of the Calcutta High Court and the same appears to have been taken up for hearing firstly on 27.4.2004 and thereafter on subsequent dates. As will appear from the order of the Division Bench of the High Court, before the matter was taken up for companysideration on merits, a preliminary objection was raised on behalf of the appellants, who are the respondents herein, regarding the valid institution of the suit itself in view of the amended provisions of the Code. The Division Bench decided to adjudicate on the said objection first since it felt that the said question went to the very root of the matter companycerning the jurisdiction of the learned Single Judge to entertain the suit and the interlocutory applications filed therein. Before the Division Bench, it was submitted on behalf of the appellants that prior to 1st July, 2002, Section 26 of the Code merely indicated that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. The manner in which such plaint was to be prepared and presented has been provided for in detail in Orders VI and VII of the Code. It was submitted on behalf of the appellants that with effect from 1st July, 2002, certain amendments were effected to the aforesaid provisions of the Code by Act 46 of 1999 which made it mandatory that in every plaint, facts would have to be proved by an affidavit. It was submitted that subsection 2 was added to Section 26 by way of amendment incorporating the said provision. Correspondingly, amendments were also introduced in Order VI Rule 15 relating to verification of pleadings and Sub-rule 4 was inserted mandating that the person verifying the pleading was also required to furnish an affidavit in support of its pleadings. In addition to the above, Order IV of the Code, which deals with the institution of suits, was also amended and Sub-rule 3 was added to Rule 1 and it was specifically stipulated that the plaint to be filed in companypliance with the provisions of Orders VI and VII would number be deemed to have been duly instituted unless it companyplied with the requirements specified in Sub-rules 1 and 2 . It was the further case of the appellants that having regard to the provisions of Chapter VII Rule 1 of the Original Side Rules, the reference made in Sub-rule 3 of Rule 1 of Order IV of the Code would also include the amendments brought about in the said Orders with effect from 1st July, 2002. Consequently, it was urged that since the amended requirements of Sub-rule 4 of Rule 15 of Order VI had companye into operation with effect from 1st July, 2002 and since the suit had been instituted thereafter on 26th July, 2002, the same companyld number be said to have been duly instituted within the meaning of Sub-rule 3 of Rule 1 of Order IV of the Code. It was urged that the entire proceedings from the filing of the plaint and the entertaining of the interlocutory applications by the learned Single Judge was without jurisdiction and was liable to be declared as such. On behalf of the respondents, who are the appellants before us, it was submitted that the provisions of the Code being subject to the rules framed by the Chartered High Courts, of which the Calcutta High Court was one, the Rules as framed by the High Court would have an overriding effect over the provisions of the Code. It was companytended that the Original Side Rules relating to the institution of suits had been framed under the Letters Patent and would prevail over the provisions of the Code. It was further submitted that Rule 1 of Chapter VII of the Original Side Rules, while setting out the specifications relating to the filing of the plaint, has merely indicated that the plaint should companyply with the provisions of Order VI of the Code and shall companytain the particulars required by Rules 1 to 8 of Order VII of the Code. It was companytended that there was numberstipulation in the said Rule which required the plaintiff to file an affidavit for the purpose of verification of the companytents of the plaint and in the absence of such requirement, it companyld number be insisted that having regard to the amendments of the Code, verification in a plaint presented in the Original Side of the Calcutta High Court was also required to be supported by an affidavit. In addition to the above, it was also urged on behalf of the respondents that mere procedural omissions which were curable companyld number affect the validity of a plaint as filed. Various decisions of the different High Courts relating to failure in companyplying with the provisions of Order VI of the Code were cited on behalf of the respondents and it was pointed out that in all the said cases it was companysistently held that the companyrt has a discretion to remove the illegality to be cured if the plaintiff has acted in good faith and without any gross negligence and after the defect is cured the suit will be deemed to have been filed when it was first instituted. In particular the decision of the Bombay High Court in Hirabai Gendalal vs. Bhagirath Ramchandra Co. reported in AIR 1946 Bombay 174, that of the Special Bench of the Allahabad High Court in the case of Wali Mohammad Khan vs. Ishak Ali Khan Ors. reported in AIR 1931 Allahabad 507 and the decision of the Calcutta High Court in the case of Ramgopal Ghose vs. Dhirendra Nath Sen Ors., reported in AIR 1927 Calcutta 376 were relied upon. In addition, the respondents also relied on a recent decision of this Court in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India, reported in 2003 1 SCC 49, wherein while companysidering the effect of the amendments introduced in the Code by the Amending Acts 46 of 1999 and 22 of 2002, it was observed in paragraph 16 that the attention of the Court had been drawn to Order VII Rule 11 to which clauses e and f had been added which enabled the Court to reject the plaint where it is number filed in duplicate or where the plaintiff failed to companyply with the provisions of Rule 9 of Order VII. This Court was of the view that the said clauses being procedural would number require the automatic rejection of the plaint at the first instance. If there was any defect as companytemplated by Rule 11 e or number-compliance as referred to in Rule 11 f , the Court should ordinarily give an opportunity for rectifying the defects and in the event of the same number being done, the Court will have the liberty or the right to reject the plaint. On the basis of the aforesaid submissions, it was companytended on behalf of the respondents that the numberfiling of an affidavit in support of the pleadings in the plaint at the time of presentation thereof was a mere procedural error which was capable of being cured and had actually been cured pursuant to leave granted by the Appeal Court and that an affidavit in support of the plaint was affirmed and filed before the Division Bench on 28th April, 2004. It was submitted that having regard to the various decisions referred to above, the plaint must be deemed to have been presented in the Computer Department of the Calcutta High Court on 26th July, 2002 and the preliminary objection taken regarding the validity of the plaint was required to be rejected. After companysidering the various provisions of the Code along with the relevant amendments introduced in the Code with effect from 1st July, 2002 and the relevant provisions of the Letters Patent and after companysidering various decisions cited at the Bar, in particular the decision of this Court in the case of State of M.P. vs. M.B. Narasimhan, reported in AIR 1975 SC 1835, the Appeal Court came to the companyclusion that the instant case stood on a different footing from the various decisions cited in view of the express provisions of Order IV Rule 3 of the Code, as amended. Relying on the interpretation of the expression duly used in Order IV Rule 3 in a decision of this Court in the case of Life Insurance Corporation of India vs. D.J. Bahadur, 1981 1 SCC 315 and the decision of the House of Lords in the case of East End Dwellings Co.Ltd. vs. Finsbury Borough Council, reported in 1951 2 All E.R. 587, the Division Bench was of the view that unless the plaint companyplied with the requirements of the amended provisions, there would be numberdue institution of the plaint. The Division Bench held that if a plaint is filed without companypliance with the requirement of the amended provisions, in the eye of law numberplaint can be said to have been filed and the same is number-est. However, having regard to the various decisions cited, including the decision of this Court in Salem Advocate Bar Association supra it was also held by the Division Bench that from the moment the error is rectified, the plaint will be deemed to have been properly instituted but the rectification companyld number relate back to a period when in view of the deeming clause there was numberdue institution of the plaint. On the aforesaid reasoning, the Division Bench held that the suit companyld number be dismissed number companyld the plaint be rejected because of number-compliance with the amended provisions since the omission had been remedied by the filing of an affidavit by the respondent-plaintiff. It was held that after the defect was removed the suit must be deemed to have been duly instituted with effect from 28th July, 2004 and number before that date and companysequently the interlocutory order that had been passed by the learned single Judge at a point of time when the suit had number been duly instituted companyld number survive. The Division Bench accordingly set aside the order passed by the learned Single Judge on 2nd April, 2004 but made it clear that the same had been set aside number on merits but for the reasons discussed in the judgment and the plaintiff, if so advised, would number be prevented from approaching the learned Single Judge with another prayer for injunction and if such a prayer was made the said application may be dealt with in accordance with law. It is against the aforesaid order of the Appeal Court that the instant civil appeal is directed. Appearing in support of the appeal, Mr. Anindya Mitra, learned senior advocate, repeated and reiterated the submissions made before the Division Bench of the Calcutta High Court. In particular, Mr. Mitra, upon a reference to Section 26, Orders IV, VI and VII of the Code, companytended that the provisions companytained therein had been held to be directory and number mandatory in nature. In other words, Mr. Mitra submitted that omission to companyply with any of the provisions companytained therein would number render a suit invalid but that an opportunity was required to be given by the Court to the plaintiff to cure the defect by supplying the omission. In this regard, a reference was made to the decision of this Court in Mr.Shaikh Salim Haji Abdul Khayumsab vs. Mr. Kumar Ors., JT 2005 10 SC 1, wherein the provisions of Order VIII Rule 1, after amendment, were held to be directory on the reasoning that rules of procedure are handmaids of justice and while the language employed by the draftsman of processual law may be liberal or stringent, the fact remains that the object of prescribing procedure is to advance the cause of justice. Reference was also made to the decision of this Court in Kailash vs. Nankhu Ors., 2005 4 SCC 480, wherein also while companysidering the amended provisions of Order VIII Rule 1 of the Code this companyrt held that unless companypelled by express and specific language of the statute the provisions of the Code or any other procedural enactment ought number to be companystrued in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. This Court went on to hold that merely because the provision of law is companyched in negative language, implying a mandatory character, the same is number without exceptions and that the directions companytained regarding the period for filing written statement in Order VIII Rule 1 of the Code was directory and number mandatory being procedural law. As an extension of the aforesaid submission, Mr. Mitra urged that it had been companysistently held by the different High Courts from as far back as in the case of Ramgopal Ghose vs. Dhirendra Nath Sen Ors., AIR 1927 Calcutta 376, that when a pleading does number companyform with the provisions of Order VI Rule 15, the defect therein is a mere irregularity that can be cured by amendment and companysequently when the verification in the plaint is amended being originally defective, the plaint must be taken to have been presented number on the date of the amendment but on the date when it was first presented. Reliance was also placed on the decision of the Madras High Court in Subbiah Pillai alias S.S.M. Subramania Pillai vs. Sankarapandiam Pillai Ors., AIR 1948 Madras 369 and on a decision of the Bombay High Court in the case of All India Reporter Ltd., Bombay vs. Ram Chandra Dhondo Datar, AIR 1961 Bombay 292, where similar views were expressed. Mr. Mitra companytended that an analogy similar to the decision in the aforesaid cases companyld and should also be drawn in the facts of the instant case where the omission companyplained of was also procedural in nature and did number affect either the territorial or the pecuniary jurisdiction of the Court to entertain the suit. Mr. Mitra urged that having held that the defect and omission were curable, the Division Bench of the Calcutta High Court had thereafter erred in holding that having regard to the provisions of Sub-rule 3 of Rule 1 of Order IV of the Code, the suit will be deemed to have been instituted from the date on which the defects stood cured and number from the date of initial presentation of the plaint. Mr. Mitra urged that the said error had caused the Division Bench to set aside the order impugned in the appeal on the said technical ground without going into the merits of the matter. Mr. Mitra submitted that after the decision rendered by the Division Bench on 9th June, 2004 this Court had occasion to companysider the provisions of the Letters Patent of the Madras High Court and the Bombay High Court in the case of P.S. Sathappan Dead By Lrs. vs. Andhra Bank Ltd. Ors., 2004 11 SCC 672 and in the case of Iridium India Telecom Ltd. vs. Motorola Inc., 2005 2 SCC 145. In the first of the said two cases, to which one of us B.P. Singh,J. was a party, while companysidering the effect of the amended provisions of Section 100A and Section 104 of the Code in relation to appeals provided for under Clause 15 of the Letters Patent of the Bombay High Court, the majority view of the Constitution Bench was that a Letters Patent is a special law of the High Court companycerned while the Code is a general law applicable to all companyrts. It was observed that it was well settled law that in the event of a companyflict between a special law and a general law, the special law must always prevail and though there was numberapparent companyflict between the Letters Patent and Section 104, if there was any companyflict between the Letters Patent and the C.P.C., then the provisions of the Letters Patent would always prevail, unless there was a specific exclusion, which position would also be clear from Section 4 of the Code which provides that numberhing in the Code would limit or affect any special law. In the latter case, this Court had occasion to companysider in detail the relevant amendments in the Code referred to above also in the companytext of the Bombay High Court Original Side Rules and the Bombay High Court Letters Patent and after a detailed analysis of the various provisions, and in particular the provisions of Clause 37 of the Letters Patent and Section 129 of the Code, this Court in numberuncertain terms, upon a reference to the decision in P.S. Sathappans case supra , companycluded that far from doing away with the Letters Patent, the Amending Act of 2002 has left unscathed the provisions of Section 129 of the Code and what follows therefrom and upheld the companytention of the Division Bench of the Bombay High Court that suits on the Original Side of the High Court were to be governed by the Original Side Rules and number by the amended provisions of Order VIII Rule 1 of the Code. Mr. Mitra submitted that since the matter had been set at rest by the two aforesaid decisions, the finding of the Division Bench of the Calcutta High Court that the Original Side Rules and the Code were supplementary to each other, was liable to be set aside and number only was the suit liable to be held to have been duly instituted on 26th July, 2002, but the interim order of injunction passed therein was also liable to be restored. Appearing on behalf of the respondents, who were the defendants in the suit, Mr. Ranjit Kumar, learned senior advocate, tried to companyvince us with his usual eloquence that the amended provisions of the Code relating to presentation of plaints would have to be interpreted in their literal sense, as otherwise the very purpose for which the amendments had been introduced would be rendered nugatory. He laid special emphasis on the provisions of Sub-rule 3 of Rule 1 of Order IV of the Code which provides that the plaint shall number be deemed to be duly instituted unless it companyplies with the requirements specified in Sub-rules 1 and 2 which in their turn provide that every plaint shall companyply with the Rules companytained in Orders VI and VII of the Code. Mr.Ranjit Kumar pointed out that even Rule 1 of Chapter VII of the Original Side Rules is similar to Subrule 2 of Rule 1 of Order IV and provides that the plaint shall companyply with Order VI of the Code and shall companytain the particulars required by Order VII Rules 1 to 8 of the Code. Mr. Ranjit Kumar submitted that the reference made to Order VI of the Code in Clause 1 of Chapter VII must mean a reference to Order VI as it stood at the time when the Original Side Rules were framed and also as it stands today since the provisions of Order VI had been incorporated in Rule 1 of Chapter VII by reference which companyld number be taken to be partial but had to be companysidered as a whole. According to Mr. Ranjit Kumar, the provisions of Sub-rule 4 of Rule 15 of Order VI were equally attracted to the facts of the instant case and number-compliance thereof had been very rightly held by the Division Bench to have rendered the suit number-est when it was instituted on 26.7.2002 without being accompanied by an affidavit. Mr. Ranjit Kumar, however, accepted the position as explained by this Court in the Salem Advocate Bar Assocn. case supra , paragraph 16 whereof was relied upon by the Division Bench of the Calcutta High Court and wherein it was observed that on number-compliance of the provisions of Order VII and clauses e and f of Rule 11 and Rule 9 there should number be any automatic rejection of the plaint at the first instance but that the Court should ordinarily give an opportunity for rectifying the defect. Mr. Ranjit Kumar submitted that pursuant to the above, the Division Bench of the Calcutta High Court had granted leave to the appellants herein to file an affidavit in support of the pleadings in the plaint and that such an affidavit had been filed pursuant to the leave granted on 28th April, 2004 and the plaint must be deemed to have been duly instituted only thereafter as had been held by the Division Bench of the Calcutta High Court. Although, various decisions were cited by Mr. Ranjit Kumar on the question of legislation by reference, we are number really required to dwell on such submission since it is the companymon case of the parties that the provisions of Order VI and select portions of Order VII would have application to plaints filed on the Original Side of the Calcutta High Court and it is also the settled position that the Rules of the Original Side as framed under the Letters Patent, unless excluded and or modified, would companytinue to have primacy over the Code and matters number provided for. What we are really required to companysider is the effect of the amended provisions of the Code in relation to Chapter VII Rule 1 of the Original Side Rules. We need number, therefore, advert to the various decisions cited by Mr. Ranjit Kumar on this aspect of the matter. In support of his submission that failure to companyply with Order VII Rule 15 would render the suit number-est, Mr. Ranjit Kumar submitted that the omission to companyply with the requirements of the amended provisions of the Code relating to filing of plaints companyld number be companydoned but require rectification. Mr. Ranjit Kumar referred to and relied on a decision of this Court in State of Kerala vs. M.S. Mani Ors., 2001 8 SCC 82 , which arose out of an application under the Contempt of Courts Act, 1971, Section 15 whereof requires a person to obtain the prior companysent in writing of the Advocate General for making a motion under the said Act and it was held that such a provision being mandatory, the failure to obtain such prior companysent would render the motion number maintainable. In fact, it was also held in the said case that obtaining companysent subsequently would number cure the initial defect. Relying heavily on the said decision, Mr. Ranjit Kumar pointed out that in the Statement of Objects and Reasons for the amendments to the Code, it had been indicated that the decision to introduce the provisions for the filing of an affidavit in support of the pleadings and the plaint had been taken to quicken the process of disposal of suits by fixing responsibility on the party initiating the suit and such object would be frustrated if a liberal approach was adopted in implementing the amended provisions. Reference was also made to two decisions of this Court in the case of Life Insurance Corporation of India vs. D.J. Bahadur Ors., 1981 1 SCC 315 and Delhi Development Authority vs. Kochhar Construction Work Anr., 1998 8 SCC 559, where similar views have been expressed in the companytext of the Industrial Disputes Act, Life Insurance Corporation Act and Arbitration Act, 1940. Certain other decisions were also referred to in the companytext of Section 69 of the Partnership Act, which do number need any elucidation. Mr. Ranjit Kumar submitted that the reasoning and the judgment of the Division Bench of the Calcutta High Court did number call for any interference and the matter had been rightly remanded to the First companyrt for a denovo decision if a fresh application for injunction was filed on behalf of the plaintiffs appellants. Mr.Pradip Kumar Ghosh, learned senior advocate, appearing for one of the respondents, while adopting the submissions made by Mr. Ranjit Kumar, drew our attention to Section 4 of the Code which provides that in the absence of any provision to the companytrary numberhing in the Code shall be deemed to limit or otherwise affect any special local law number in force or any special jurisdiction or power companyferred, or any special form of procedure prescribed, by or any other law for the time being in force. Mr. Ghosh companytended that when there was specific provision available the provisions of the Code must be deemed to have primacy over other special or local laws, especially in the companytext of Section 26 and Orders IV, VI and VII of the Code dealing with the institution of suits. Referring to the Constitution Bench decision of this Court in the case of P.S. Sathappan supra , Mr. Ghosh pointed out that in paragraph 32 of the judgment, while discussing the special nature of the Letters Patent, it was also observed with reference to Section 4 of the Code that only a specific provision to the companytrary, such as Section 100A of the Code, companyld exclude the special law. Mr. Ghosh submitted that since specific provision had been made in Section 26, Order IV as also Order VII Rule 15, for the filing of an affidavit along with the verification in support of the plaint, such a provision being special in nature and number being provided for in Rule 1 of Chapter VII of the Original Side Rules, would prevail and its requirement would acquire a mandatory form even in respect of plaints filed under the Original Side Rules of the Calcutta High Court. Mr. Ghosh also referred to Section 116 companytained in Part IX of the Code and submitted that the same made the said Part applicable to High Courts number being the Court of a Judicial Commissioner and that save as provided in the said Part or in Part X or under the Rules, the provisions of the Code would apply to such High Courts. Mr. Ghosh submitted that Section 120 of the Code made specific provision as to which sections of the Code, namely, Sections 16, 17 20, would number apply to the High Court in the exercise of its ordinary original civil jurisdiction. Mr. Ghosh also urged that numberinterference was called for with the order passed by the Division Bench of the Calcutta High Court and the appeal was liable to be dismissed. Mr. Tapash Ray, learned senior advocate appearing for the Corporation of Caclutta, submitted that although the Corporation of Calcutta was an interested party, it had numberrole to play in the instant proceedings. While we have numbered and companysidered the views expressed by this Court in the case of Iridium India Telecom Ltd. supra and P.S. Sathappans case supra , with which we respectfully agree, regarding the primacy of the Original Side Rules framed under the Letters Patent over the provisions of the Code in case of companyflict, in the instant case, numbersuch companyflict has surfaced which necessitates a reference thereto. Although, Mr. Mitra did urge that matters relating to the Ordinary Original Civil Jurisdiction of the Calcutta High Court would be governed by the Original Side Rules, which would prevail over the provisions of the Code, he also accepted the position that a plaint which is presented in the Original Side will have to companyply with the requirements of Orders VI and VII as incorporated by way of reference in Rule 1 of Chapter VII of the Original Side Rules. What is in companytroversy is whether a person presenting such plaint after 1st July 2002, would also be required to companyply with the amended provisions of Order VI Rule 15 of the Code. In this regard we are inclined to agree with the companysistent view of the three Chartered High Courts in the different decisions cited by Mr. Mitra that the requirements of Order VI and Order VII of the Code, being procedural in nature, any omission in respect thereof will number render the plaint invalid and that such defect or omission will number only be curable but will also date back to the presentation of the plaint. We are also of the view that the reference to the provisions of the Code in Rule 1 of Chapter VII of the Original Side Rules cannot be interpreted to limit the scope of such reference to only the provisions of the Code as were existing on the date of such incorporation. It was clearly the intention of the High Court when it framed the Original Side Rules that the plaint should be in companyformity of the provisions of Order VI and Order VII of the Code. By necessary implication reference will also have to be made to Section 26 and Order IV of the Code which, along with Order VI and Order VII, companycerns the institution of suits. We are ad idem with Mr. Pradip Ghosh on this score. The provisions of Sub-rule 3 of Rule 1 of Order IV of the Code, upon which the Division Bench of the Calcutta High Court had placed strong reliance, will also have to be read and understood in that companytext. The expression duly used in Sub-rule 3 of Rule 1 of Order IV of the Code implies that the plaint must be filed in accordance with law. In our view, as has been repeatedly expressed by this Court in various decisions, rules of procedure are made to further the cause of justice and number to prove a hindrance thereto. Both in the case of Khayumsab supra and Kailash supra , although dealing with the amended provisions of Order VIII Rule 1 of the Code, this Court gave expression to the salubrious principle that procedural enactments ought number to be companystrued in a manner which would prevent the Court from meeting the ends of justice in different situations. The intention of the legislature in bringing about the various amendments in the Code with effect from 1st July, 2002 were aimed at eliminating the procedural delays in the disposal of civil matters. The amendments effected to Section 26, Order IV and Order VI Rule 15, are also geared to achieve such object, but being procedural in nature, they are directory in nature and number-compliance thereof would number automatically render the plaint number-est, as has been held by the Division Bench of the Calcutta High Court. In our view, such a stand would be too pedantic and would be companytrary to the accepted principles involving interpretation of statutes. Except for the objection taken that the plaint had number been accompanied by an affidavit in support of the pleadings, it is numberodys case that the plaint had number been otherwise verified in keeping with the unamended provisions of the Code and Rule 1 of Chapter VII of the Original Side Rules. In fact, as has been submitted at the Bar, the plaint was accepted, after due scrutiny and duly registered and only during the hearing of the appeal was such an objection raised. Considering the aforesaid companytention, even though the amended provisions of Order VI are attracted in the matter of filing of plaints in the Original Side of the Calcutta High Court on account of the reference made to Order VI and Rule 1 of Chapter VII of the Original Side Rules, number-compliance thereof at the initial stage did number render the suit number-est. On account of such finding of the Division Bench of the Calcutta High Court, number only have the proceedings before the learned Single Judge been wiped out, but such a decision has the effect of rendering the proceedings taken in the appeal also number-est. The decision in M.S. Manis case supra relied upon by Mr. Ranjit Kumar and Mr. P.K.

Strouds Judicial Dictionary Third Edn., at p. 176 referred to. Bearing in mind the well settled rule of companystruction that the language of a beneficial statute must be companystrued so as to suppress the mischief and advance its object there companyld be numberother interpretation of the words appurtenant or other land than that the land appurtenant means number a land companytiguous to some other land but the very land which is a part of the same plot or area which companytains the building or dwelling house. This also seems to be the avowed object of s. 4 9 . 911 G-H The scheme of the Act seems to be that if there is a companystructed building with a dwelling unit, the structure thereon cannot be treated as open land for the purpose of declaring it as an excess land beyond the ceiling limit. Similarly, the land kept open under the municipal regulations upto 500 sq. metres and an additional 500 sq. metres appurtenant to the land would number be available for being declared as excess land beyond the ceiling limit. 912 G-H The High Court was absolutely wrong in importing the companycept of companytiguity on the assumption that s. 4 9 was attracted only if the person companycerned held a distinct parcel of land which was vacant land. The argument that once a plot companytains a building, the whole of the plot would be exempt from the ceiling area cannot be companyntenanced on a plain and simple interpretation of s. 2 q ii read with s. 4 9 . Section 4 9 would be attracted regardless of whether the landholder owned a distinct part of land on which there is numberconstruction along with any other parcel of land where there is some companystruction. 913 D-F A companybined reading of s. 4 9 and s. 2 q ii and would lead to the irresistible inference that in cases which fall within the third category mentioned above for determining the ceiling area the- 1 total area of the land of a landholder is first to be determined and if the total area, built or unbuilt, falls below 2000 sq. metres in category areas, there would be numberquestion of any excess land, 2 where, however, there is a building and a dwelling unit then the area beneath the building and the dwelling unit would have to be excluded while companyputing the ceiling. Further if there are any bye-laws requiring a portion of the land to be kept vacant, the landholder would be allowed to set apart the said land to the maximum extent of 500 sq. metres. Ho would also be allowed to retain an additional area of 500 sq. metres for the beneficial use of the building so that he may enjoy the use of a little companypound also for various purposes. 912 B-E After excluding these items if the land falls below the ceiling limit there would be numberquestion of excess but if there is excess that is beyond the ceiling limit, the same would have to be taken over by the Government. 912 E Where, however, it is found that any person holds vacant land in two or more categories of urban agglomerations specified in Schedule I, the companyputation and determination of ceiling area is to be done in accordance with the formula laid down in cl. a to d of g. 4 1 of tho Act. 915 E-F Where a person has several plots, some companypletely vacant and some partly built and partly vacant, for companyputation of the ceiling area the companypetent authority will have to total the entire area of the lands in various places, companypletely vacant or partly built and partly vacant and permit the landholder to retain 2000 sq. metres or less as provided in clauses a to d of s. 4 1 and give the landholder the option as provided under s. 6 to select the area which he desires to retain provided that does number exceed the ceiling limit. 915 H, 916 A-C M s. Eastern Oxygen Acetylene Ltd. v. State of Madhya Pradesh, A.I.R. 1981 MP 17, approved. State of Uttar Pradesh Anr. v. L. J. Johnson Anr. 1979 All. LJ 1222, overruled. In Civil Appeal No. 2005 of 1982 on the facts of the case, in order to determine the companyputation of the ceiling area, first exclude the built area which is 464 sq. metres and then exclude the deductions allowed under s. 2 g i.e., 1000 sq. metres. Therefore, the total deduction would be 1464 sq. metres which is within the ceiling limit of 2000 sq. metres but as actual area is 2530 sq. metres the excess would be 530 sq. metres which will be taken over by the State 914 C-E CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2005/82, 995, 1021-27180, 2927-28/81, 2006-07, 2008-24, 2025, 2026-27, 2028, 2029, 2030-33, 2176, 2179, 2180-84, 2234, 2235, 2241, 2178, 3224-28 and 2832/82 and 6840, 6943, 6842, 6846, 6847-52, 6855-6860, 6861, 6863, 6870, 6871, 6873-80, 6882, 6889, 6890-92, 6881, 6845, 6872, 6883-6888, 6899-6915, 6918, 6919-22, 6923-6943, 6945-54, 6969-76, 7174- 7200, 7342-7347, 7202-45, 7247-54, 7257-83, 7296, 7297 to 7311, 7313, 7314-7333, 7201, 7335-7340, 8211-8217, 8218-23, 8224, - 8230, 8231, 8243, 8245-8256, 8261, 8260, 8262-8265, 8296-8329, 8337-59, 8375-76, 8377-8377C. 8378-8385 of 1983. Appeals by Special leave by Certificate from the Judgments and orders dated the 30th October, 1978, 8th November, 1978, 12, 15, 16th January, 1979, 8th, 12th, 17th, 21st, 23rd February, 1979, 2nd, 5th, 12th, 26th, 30th March, 1979, 2nd, 4th, 17th, 23rd, 25th, 26th April, 1979, 2nd, 7th, 9th, 10th, 16th May, 1979, 4th, 5th, 6th, 10th, 13th, 16th, 23rd July, 1979, 11th, 14th, 18th, 26th September, 1979, 24th October, 1979, 5th, 8th and 21st November, 1979, 10th, 12th, 18th December, 1979 and 15th, 16th, 21st January, 1980, 14th, 17th, 18th, 20th, 21st, 26th, 27th and 28th March, 1980, 1st, 15th, 30th April, 1980, 5th May, 1980, 30th June, 1980, 4th, 5th, 14th, 19th, 20th and 28th August, 1980., 2nd, 5th, 15th September, 1980, 12th January, 1981, 10th February, 1981, 9th, 11th, 13th March, 1981, 2nd, 8th, 11th, 18th, 21st May, 1981, 7th, 20th July, 1981, 7th August, 1981, 25th, 28th, 29th September, 1981, 12th, 15th, 16th, 19th, 21st, 23rd October, 1981, 2nd, 3rd 4th, 6th, 11th, 12th, 13th, 17th, 23rd, 24th. 27th November, 1981, 1st, 2nd, 23rd December, 1981, 11th, 18th, 26th February, 1982, 1st, 15th March, 1982, 5th April, 1982, 21st and 27th, May, 1952 of The Allahabad High Court in Civil Misc. Writ Nos. 3689/77, 7722/79, 6315, 6319, 6322, 6326, 6327, 6329, 5059, 5060, of 1979, 7392/78, 6286/78, 8264, 8265, 8266, 8651, 8654, 8655, 8659, 8660, 8661, 8696, 8697, 8698, 8765, 8766, 8767, 8773, 8774, 8653, 8259, 8210, 8258, 6288, 6690, 8263, 7394-95, 6287, 4104, 6302, 7393, 7739, 7743, 7744. of 1978, 4902/79, 339/79, 1167/78, 1860/78, 4772-4776/79, 2976/76. 8647, 4106/78, 5217/77, 8257/78, 8268, 8652, 8656, 8658, 8699, 8769, 7399, 7400, 7401, 8261, 8270, 8274, 6283, 6693, 4248, 5828, 6695/78, 1387, 3262, 537, 1459/79, 5820, 4249, 1086, 5081, 3028, 4725-28/79, 6692, 6694, 5824/78, 3027, 3030, 3031. 3032, 3033, 3035/79, 1419/77, 5827/78, 4105/78, 5825/78, 5237, 6189, 6633, 6634/79, 7396/77, 6190, 7049, 5232, 5233, 5234-38, 4903/79, 8768/78, 1612, 2316, 2312, 2775, 2776-78/79, 8271-72178, 1385, 1390, 1392, 1446-51, 2513-15, 2520, 2521, 1388-89, 1391, 2530, 2869, 1467-75, 2529, 1123, 2779-81, 2868, 3263-3264, 3658, 3307, 345179, 10359, 10353-58, 10360/78, 2516-18, 2522 and 2532, 1451- 1462. 1464-1466, 1455-60/7745/78, 344/79, 1184, 1586, 5823, 5833178, 694, 697-712, 841-842, 843, and 893/79, 2060-67, 2068-2070, 8267, 442, 443, 446-52, 481, 538/79, 8829-32, 8862-8864, 8910, 8912/78, 340-42/79, 5192, 5225, 5822, 6282, 6284-85, 6303, 7731, 7742/78, 2953-56, 2519, 3654-55, 1548, 1705, 1708-09, 8833, 6314, 6318, 6321, 3402, 1706-07, 1710/79, 5831/78, 7993, 6339, 6331, 6333-36, 6338, 6340, 9432, 9431, 8345, 9430, 7989/79, 4247/78, 10558/79, 2883/80, 596, 2689, 2888, 1938, 2581, 2580, 5364/80, 10563, 5830/79, 3245/80, 7738/79, 447/80, 2755, 1712, 2895, 7173/80, 8510/79, 1939/801 7429, 7903, 3604, 6190, 7911, 3338, 1937, 3933/80, 8273/70, 5369/80, 7163/80, 356/81, 2803, 2804-06, 2125/81, 595/80, 2803/79, 2804, 3656/79, 10723/80, 9382, 8430, 8192, 9595, 8286, 8429, 9383/80, 6625/81, 6626, 6624, 5600/88, 7983/80, 11296/80, 8408/81, 5257/80, 10093/80, 1453/79, 1942/80, 1943, 1940, 2352, 7172, 5260/80, 9134/78, 4456/79, 9744/78, 4107/78, 2790, 517580/80, 646/819 6609/80, 5257/79, 650/81, 10406/80, 338, 8278, 5456/79, 8262/78, 6332/79, 3555, 250, 9629/81, 442/80, 648/81, 5258, 5253, 196/81, 3244/79, 5256, 6354, 2392/81, 8277/79, 8348/79, 6353, 7714, 7726, 6352, 6317/81, 8347, 3034/79, 1454/80, 10633/80, 8879/80, 14320/81, 1063/80, 6064/79, 3605/80, 14990/81, 75/82, 2853/82, 3933/80, 3758/82, 8681/81, 5258/80, 7598/80, 7234-35, 7237/80, 2978 2974/80, 1956/82, 5256/80, 2831/82, 3430/82, 7594/80 and 2778 of 79 For The Appellants Dr. L.M. Singhvi Prathvi Raj, B.P. Maheshwari and B.P. Singh For The Respondents N. Kacker, R.K Jain Dr. Y.S. Chitale, Dr. Meera Agarwal and R.C. Mishra in CAs. 994 1021-1027 of 1980. Pramod Swarup and Arun Madan in CA. 2026-2027 of 1982. K Srivastava in CA. 208-2024 of 1980. K. Bisaria, Pradeep Misra and Sudhir Kulshreshtha in CA. 2176/82. N. Sharma and N.N. Sharma in CA. 7191/83 SLP. 2350/80. Probir Mitra in CA. 2178 of 1982. The Judgment of the Court was delivered by FAZAL ALI, J. Wedded to the ideal of achieving a socialist pattern of State and building up an egalitarian society as mandated in the Preamble of the Constitution of India and incorporated in the directive principles companytained in part IV, which are indeed the heart and soul of the Constitution as held by this Court on several occasions, the Central Government brought forth the present legislation called the Urban Land - Ceiling Regulation Act, 1976 Act No. 33 of 1976 hereinafter referred to as the Act . To avoid anomalies and companytroversies, inequalities and inconsistencies, the Central Government obtained the companysent of the State Governments so as to pass a central law which would apply equally to all the States. The Act applies to the States and Union Territories and companytains a schedule Schedule I in which the ceiling of urban areas has been mentioned and which differs from area to area in various States and Union territories to which the Act applies. In the first phase at the hearing of the appeals, the companystitutional validity of the Act was challenged but the Constitution Bench upheld the validity of the Act in the case of Union of India, etc. v. V.B. Chaudhry etc. etc. 1 It is therefore manifest that the challenge to the Act numberlonger survives. The Act was sought to be implemented by the States which empowered the companypetent authority to determine the ceiling area in accordance with the provisions of the Act and take over the excess land. In due fairness to the citizens, the Act provides an appeal to a judicial authority District Judge to examine the companyrectness of the decision of the companypetent authority. In the instant case the matter has travelled right from the companypetent authority to the High Court and the case has been placed before us for judging the companyrectness of the grounds taken by the High Court in determining the excess area of lands which companye within the ambit of the ceiling fixed by the Act. We propose to decide all the 200 and odd appeals and the special leave petitions by one companymon judgment as the question of law relating to the interpretation of the principles companytained in the various sections of the Act to determine the ceiling area is more or less companymon to all the appeals. Before we proceed to detail the relevant provisions of the Act, we would like to point out the aims and objects of the Act in the light of which the pivotal provisions have to interpreted. The aims and objects are companytained in the Preamble of the Act, the relevant portions of which may be extracted thus An Act to provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisitions, for the acquisition of such land in excess of the ceiling limit, to regulate the companystruction of buildings on such land and for matters companynected therewith, with a view to preventing the companycentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to brining about an equitable distribution of land in urban agglomerations to subserve the companymon good. WHEREAS it is expedient to provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit, to regulate the companystruction of buildings on such land and for matters companynected therewith, with a view to preventing the companycentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the companymon good. The opening words of the preamble, viz., An Act to provide for the imposition of a ceiling on vacant land in urban agglomerations clearly indicate that the pith and substance of the Act is that a ceiling should be imposed on vacant lands situated in urban areas which may or may number have building companystructed thereon. Side by side the other dominant object to be achieved seems to be to prevent the companycentration of urban land in the hands of a few persons so as to checkmate speculation and profiteering therein on the one hand and to bring about an equitable distribution of land amongst the urban population. The second clause of the preamble merely repeats and stresses what is companytained in the opening part. Analysing, therefore, the real object which the Act seeks to achieve, it seems to us that the provisions have to be companystrued against the background of two important companysiderations- 1 that the vacant land must be situated in an urban rather than a rural area, and 2 that even in those portions of urban land which companytain buildings, substantial relief should be given to the owner for the beneficial enjoyment of the property left with him so that the Act may number be dubbed as being of a companyfiscatory nature. Moreover, the Act governs only urban vacant lands or lands which companytain building or dwelling units or outhouses and the areas set apart in companypliance with the respective byelaws have to be taken into account while companyputing the ceiling area applicable to the towns and territories companycerned Before discusing the problem in L.J. Johnsons case which has given rise to these appeals, we would first like to give a birds eye view of the various provisions of the Act which are relevant to the decisions of these appeals. The relevant provisions in this case are sections 2 c , 2 q ii , 3 and 4 9 . Section 2 c states that the ceiling limit means the ceiling limit specified in s. 4 1 . This brings us to s. 4 1 at once. The various clauses of s. 4 1 a to d prescribe ceiling limits in urban agglomerations falling within different which may be extracted thus 4 1 - Subject to the other provisions of this section, in the case of every person, the ceiling limit shall be- a where that vacant land is situated in an urban agglomeration falling within category A specified in Schedule I, five hundred square metres b where such land is situated in an urban agglomeration falling within category specified in Schedule I, one thousand square metres c where such land is situated in an urban agglomeration falling within category specified in Schedule I, one thousand five hundred square metres d where such land is situated in an urban agglomeration falling within category specified in Schedule I, two thousand square metres. In the instant case, we are companycerned with the land in the town of Dehradun situated in the State of Uttar Pradesh, which was the subject matter of the writ petition before the Allahabad High Court. It is indisputable that the land in Johnsons case supra falls under category where the ceiling limit is 2000 sq. metres. The only problem which is required to be resolved in these group of appeals by special leave by and large companycerns the interpretation of s. 4, sub-s. 9 of the Act. All the appeals are from Uttar Pradesh but the principles laid down by us would apply to all the States and Union Territories. In fact, the substratum and the fate of the case depends on the outcome of the appeal arising out of State of Uttar Pradesh Anr. L.J. Johnson Anr. 1 decided by the Allabhabad High Court and which has been taken as a sample case so that other appeals would merely follow the decision in Johnsons case c.A. No. 2005/82 in this Court . There are some other cases like A. No. 995/80 where the facts and principles may differ but we do number intend to decide or go into the intricacies of the other points involved therein and will leave the companypetent authority to determine the excess land in the companytext of other points and in the light of the law laid down by us. In these appeals, we are mainly companycerned with the interpretation of s. 4 9 and the allied companystruction of s. 2 g and 2 q iii of the Act and their impact on s. 4 9 . It follows, therefore, that once the view taken in Johnsons case in regard to this question is reversed all the matters will have to go back to the companypetent authority for a decision in the light of the view taken by this Court. This will be the ultimate outcome because in all the allied matters there is only a cryptic order disposing of the companycerned matter in accordance with the view taken by the High Court in Johnsans case in regard to the interpretation of s. 4 9 . The remaining questions raised by the land-holders will have to be resolved and the actual companyputation of excess land, if any, would have to be undertaken by the companypetent authority on remand. Before going into the merits of Johnsons case we may briefly narrate the admitted facts. It appears that the respondent Johnson had a parcel of land, the total area of which was 2530 sq. metres on which there was a building. After the companying into force of the Act. he wanted to sell some portion of the open land in his possession to Maj. Gen. Prem Chandra, a resident of Vasant Vihar, New Delhi. The companypetent authority refused permission to sell on the ground that the total area in possession of Johnson being 2530 sq. metres, it exceeded the ceiling limit and therefore numberpermission to sell companyld be given. Johnson thereafter filed an appeal before the District Judge assailing the decision of the companypetent authority as being based r on a wrong interpretation of the provisions of the Act. The District Judge after companysidering the provisions of s. 2 g , 2 q held that the owner was entitled to exclude 500 sq metres in view of the bye-laws prevailing in Dehradun and another 500 sq. metres for the beneficial and companyvenient enjoyment of the building to satisfy the requirement of town planning and environmental purposes. This, according to the District Judge, flowed as a logical companysequence of s. 2 g of the Act. Ultimately, the district judge held that after excluding the portions of areas indicated above, there was numberexcess and the land was number companyered by the Act and the refusal of permission by the companypetent authority was number legally valid. Against the decision of the District Judge, the State filed a writ petition before the High Court companytending that the interpretation placed by the District Judge was wrong and the companypetent authority was fully justified in companyputing the area. The High Court Strongly relied on the provisions of s. 4 9 read with s. 2 q ii and upheld the decision of the District Judge and accordingly dismissed the writ petition. After this decision, a number of petitions were filed before the High Court which were decided by it in the light of the decision taken in Johnsons case. Before proceeding to s. 4 9 of the Act, we might mention as a prelude the nature, character and the spirit of the Act. The Act applies only to urban areas and number to any other area. Secondly, the statute fixes the ceiling limit in various urban areas of all the States where the Court has to determine the extent of the ceiling. It is clear that there can be only three categories of Urban lands- 1 land which is entirely open in the sense that it does number companytain any companystruction or building, 2 where the entire land is companyered by building or dwelling house, and 3 land on a part of which there is a building with or without a dwelling unit thereon and the rest of the land is vacant, So far as the first category is companycerned, numbercomplexity is involved because any open area in excess of 2000 sq. metres in category States will be taken over by the Government. For instance, if an open land without companystruction companysists Of 6000 sq. meters, the companyputation of the ceiling area would present numberdifficulty because 4000 sq. metres will be taken over by the Government and 2000 sq. metres will be left to the landholder. Secondly, if the entire land is companyered by a building, such an area would companypletely fall outside the ambit of the Act and numberquestion of companyputation would arise. Thirdly, a question arises as to what would happen if there is a land on a part of which there is a building with a dwelling unit and an area open land which is appurtenant thereto is vacant. This category of land would doubtless present some difficulty in making the companyputation and the principles on which such companyputation is to be made. Section 4 9 is designedly and artistically drafted to meet such a companytingency which may be extracted thus- Where a person holds vacant land and also holds any other land on which there is a building with a dwelling unit therein, the extent of such other land occupied by the building and the land appurtenant thereto shall also be taken into account in calculating the extent of vacant land held by such person. Emphasis supplied In order to understand the import of s. 4 9 it may be necessary to extract clauses i and ii of s. 2 q which run thus Vacant land means land, number being land mainly used for the purpose of agriculture, in an urban agglomeration, but does number includeland on which companystruction of a building is number permissible under the building regulations in force in the area in which such land is situated in an area where there are building regulations the Gland occupied by any building which has been companystructed before, or is being companystructed on, the appointed day with the approval of the appropriate authority and the land appurtenant to such building and Clause i gives a blanket exemption to any land situated in an urban area where the entire area is companyered by land on which it is number permissible to raise a building which will number be deemed to be vacant land within the meaning of s. 2 q . This is because such land in an urban area cannot be used for building purposes but being vacant falls beyond the purview. Of the Act. Clause ii postulates that where a land is occupied by any building companystructed before or on the appointed day appointed day has been defined in s. 2 a of the Act and there is some vacant land appurtenant to the said building, land which is built upon and any area which is left out in accordance with the building regulations would number be included in the ceiling area. The term land appurtenant to such building would mean the companytiguous land which remains after giving full allowance for the area left out under the municipal or building regulations subject to a maximum of 500 sq. metres and another 500 sq. metres which may be left for the beneficial use of the owner. The words land appurtenant used in s. 4 9 takes us to its companynotation as defined in s. 2 g i and ii which may be extracted thus g land appurtenant, in relation to - any building, meansin an area where there are building regulations, the minimum extent of land required under such regulations to be kept as open space for the enjoyment of such building, which in numbercase shall exceed five hundred square metres or in an area where there are numberbuilding regulations an extent of five hundred square metres companytiguous to the land occupied by such building, and includes, in the case of any building companystructed before the appointed day with a dwelling unit therein, an additional extent number exceeding five hundred square metres of land, if any, companytiguous to the minimum extent referred to in sub-clause i or the extent referred to in tub-clause ii?, as the case may be It may, however, be necessary to explain the terms land appurtenant or other land as used in s. 4 9 and s. 2 g ii as a wrong interpretation of these terms by the High Court has made companyfusion worse companyfounded. To begin with, the plain language in which sub-s. 9 of s. 4 has been expressed clearly shows that when the legislature used the word appurtenant, it meant to qualify the land which was occupied by the building. The words appurtenant thereto qualify the building which precedes the land. The expression appurtenant shows that the legislature intended that in taking into companysideration the land, it must be the land number companytiguous or close to the building but the very land on which the building stands. Similarly, the words other land occupied by the building also lead to the same companyclusion, viz., that the other land will number be land in some other plot but refers only to the very land a portion of which is occupied by the building. In Words and Phrases, Legally Defined Vol. I-2nd Edn. at p. 105 it is clearly mentioned that land do number usually pass under the word appurtenances with reference to other land, in its strict sense, but they do pass if it appears that the word is used in a larger sense, Land has been held to pass under this word where is a gift of a house with its appurtenances. There has been a distinction between a gift of a land with appurtenances and a gift with the land appertaining thereto. A chose in action does number ordinarily pass as appurtenant to other property. The word appurtenance has been further defined thus Appurtenance, in relation to a dwelling, or to a school, companylege or other educational establishment, includes all land occupied therewith and used for the purposes thereof The word appurtenances has a distinct and definite meaning, and though it may be enlarged by the companytext. yet the burden of proof lies on those who so companytend Prima facie, it imports numberhing more than what is strictly appertaining to the subjectmatter of the device or grant, and which would. in truth, pass without being specially mentioned. Similarly, at page 220 in Words and Phrases, Judicially Defined vol. I the word appurtenances has been defined thus The word appurtenances includes all the incorporeal hereditaments attached to the land granted or demised such as rights-of way, of companymon, or piscary, and the like but it does number include lands in addition to that granted. Emphasis supplied Likewise, in Words and Phrases, Permanent Edition Vol. 3A at p. 546, the word appurtenances has been explained thus The word appurtenances, which is ordinarily used in companynection with real property, while strictly companyfined to those incorporeal hereditaments that are companymonly annexed to land and houses, includes companyporeal articles of personal property Appurtenances as used in a deed of trust of certain real estate companyveying all and singular the tenements, hereditaments, and appurtenances thereto belonging or in anywise appertaining, means things belonging to another thing as principal, and which pass as incident to the principal thing. Emphasis supplied In Strouds judicial Dictionary Third edn. at page 176, the word appurtenances has been defined thus, By the grant of a messuage or a messuage with the appurtenances, doth pass numbermore than the dwelling house, barn dove-house, and buildings adjoining, orchard, garden, yard, field, or piece of void ground, lying near and BELONGING to messuage, and houses adjoining to the dwellinghouse, and the close upon which the dwelling-house is built, at the most. Thus, taking the legal and dictionary meaning of the word appurtenant or appurtenances the inescapable companyclusion is that the words either other land or appurtenances are meant to indicate that the land in question should form an integral part of the main land companytaining the building in question. The Allahabad High Court, therefore, clearly misdirected itself in putting a wrong and loose interpretation on the words appurtenant or other land. It is well settled that the language of a beneficial statute must be companystrued so as to suppress the mischief and advance its object. Bearing this in mind, we can see numberother interpretation of the words appurtenant or other land than the one we have indicated above which is that the land appurtenant means number a land companytiguous to some other land but the very land which is a part of the same plot or area which companytains the building or dwelling house. This also seems to be the avowed object of s. 4 9 of the Act. In the ultimate analysis the position is quite clear that s 4 9 companytemplates that if a person holds vacant land as also other portion of land on which there is a building with a dwelling unit, the extent of Land occupied by the building and the land appurtenant thereto shall betaken into account in calculating the extent of the vacant land. This sub-section has to be read in companyjunction with s. 2 q ii and iii . A companybined reading of these two statutory provisions would lead to the irresistible inference that in cases which fall within the third category mentioned above, the- 1 total area of the land of a landholder is first to be determined and if the total area, built or unbuilt, falls below 2000 sq. metres in category areas, there would be numberquestion of any excess land, 2 where, however, there is a building and a dwelling unit then the area beneath the building and the dwelling unit would have to be excluded while companyputing the ceiling. Further, if there are any byelaws requiring a portion of the land to be kept vacant, the landholder would be allowed to set apart the said land to the maximum extent of 500 sq metres. He would also be allowed to retain an additional area of 500 sq. metres for the beneficial use af the building so that he may enjoy the use of a little companypound also for various purposes. After excluding these items if the land falls below the ceiling limit there would be numberquestion of excess but if there is excess that is beyond the ceiling limit, the same would have to be taken over by the Government. For instance, A has 4000 sq. metres of land out of which 2000 sq. metres is companyered by building then in such a case the landholder will be entitled to keep the whole of the companyered area, i.e., 2000 sq. metres plus 1000 sq. metres 500 under the municipal byelaws and another 500 for beneficial use and the excess would only 1000 sq. metres. The scheme of the Act seems to be that if there is a companystructed building with a dwelling unit, the structure thereon cannot be treated as open land for the purpose of declaring it as an excess land beyond the ceiling limit. Similarly, the Land kept open under the municipal regulations upto 500 sq. metres and an additional 500 sq. metres appurtenant to the land would number be available for being declared as excess land beyond the ceiling limit. The central idea governing this philosophy of putting a ceiling on urban land is that in an urban area numbere can hold land excess of the ceiling regardless of whether the land is entirely open or whether there is a structure companysisting of a dwelling unit thereon, subject to the rider mentioned above. Indeed, if the intention would have been to take over the entire open land without giving any benefit of appurtenant land to the landholder than the Act would perhaps be liable to be challenged on the ground of being of a companyfiscatory nature and would fall beyond the permissible limits of the directive principles enshrined in Part IV of the Constitution. Furthermore, such an interpretation would discourage new building enterprises or factories or industrial units companying up in the urban areas which would be companytrary to the very tenor and spirit of the Act. Coming number to Johnsons case, while the High Court of Allahabad was right in interpreting these provisions in so far as it held that the built area plus upto 500 sq. metres allowed under the municipal byelaws and another 500 sq. metres as additional area for beneficial enjoyment had to be excluded but it seems to have companymitted a grave error of law in applying this principle to companycrete cases which had companye up before it. Further, the High Court was absolutely wrong in importing the companycept of companytiguity on the assumption that s. 4 9 was attracted only if the person companycerned held a distinct parcel of land which was vacant land. As discussed above, these words do number envisage that there should be land other than the one which companytains a building which is to be taken into companysideration while companyputing the excess land but the section really refers to the very land which is a part of the plot which companytains the building. The argument that once a plot companytains a building, the whole of the plot would be exempt from the ceiling area cannot be companyntenanced on a plain and simple interpretation of s. 5 q ii read with s. 4 9 . In fact s. 4 9 itself puts the matter beyond companytroversy by qualifying the words other land occupied by the building and the land appurtenant thereto. The expression thereto manifestly shows that the intention of legislature was to the land on which building or the dwelling unit stands. In other words, the vacant land which companytains a building would include appurtenant land or any other land situated in that particular plot. We have gone through the judgments of the High Court, the District Judge and that of the companypetent authority and we are number satisfied that all the details which are required for the purpose of determining the ceiling have been mentioned in any of the judgments. So far as Johansons case is companycerned, all that is mentioned is that the total area of urban land was 2530 sq. metres, including the built area. So far as the built area is companycerned, it is mentioned as 464 sq. metres but the details of the calculations have number been given which would have to be redetermined by the companypetent authority. Even on the facts mentioned in the judgments of the High Court and the companyrts below the position appears to be as follows . Total area of the land owned by the landholder, is 2530 sq. metres. Prima facie 530 sq. metres is above the ceiling limit. In order however to calculate as to whether or number Johson had exceeded the permissible limit, we have to companypute in the following manner First exclude the built area which is 464 sq. metres it is number clear whether 464 includes the area of servant quarters also which are also mentioned to be existing there . Then exclude the deductions allowed under s. 2 g . i.e, 1000 sq. metres. Therefore, the total deduction would be 1464 sq. metres which is within the ceiling limit of 2000 sq. metres but as the actual area is 2530 sq. metres the excess would be 530 sq. metres which will be taken over by the State. The High Court seems to have made a wrong calculation by number relying on s. 4 9 and in wrongly importing the companycept of other land being a distinct plot. This however is number permissible. The landholder cannot have it both ways. He cannot take the benefit of the exclusion and then add that benefit to the total ceiling area in order to companypute the excess. For these reasons, therefore, we p do number agree with the view taken by the High Court or the District Judge regarding the companyputation of the ceiling area. To sum up, the effect of the view taken in Johnsons case virtually companyes to this. Section 4 9 would be attracted regardless of whether the landholder owned a distinct part of land on which there is numberconstruction alongwith any other parcel of land where there is some companystruction alongwith any other parcel of land where there is some companystruction. In other words, whether or number there is a surplus will number depend on whether the landholder holds a separate plot of land which is open land. To take the other view is to hold that if there is numberseparate plot but the companystruction is in the same plot then even if the entire plot companyprises 10,000 sq. metres that would fall beyond the purview of section 4 9 if the structure is built only on 1000 sq. metres of land. Such an interpretation of s. 4 9 cannot be accepted by us as it goes against the very spirit and intent of the Act and allows the landholder to escape the ceiling area by merely putting a companystruction on a plot of land owned by him. On the other hand, the Madhya Pradesh High Court in M s. gr Eastern oxygen and Acetylene Ltd. v. State of Madhya Pradesh 1 seems to have taken a companyrect view in holding that numberhing turns upon whether or number the landholder holds open land and a separate parcel of land with a dwelling unit thereon. The High Court in paragraph 5 rightly pointed out that it will necessitate reading the words number companytiguous to the vacant land after the words any other land in subsection 9 of s. 4 and such qualifying words cannot be read into the provision by implication. If this be the interpretation then it would mean that if there is a boundary wall which separates the companystruction from the open land, the land would be within the purview of the ceiling and if there is numbersuch wall it would fall outside the purview. Such an interpretation, would lead to a most absurd and anomalous situation. The Madhya Pradesh High Court was, therefore, fully justified in expressing its dissent from judgment of the Allahabad High Court. We fully endorse the decision of the Madhya Pradesh High Court. Where, however, it is found that any person holds vacant land in two or more categories of urban agglomerations specified in Schedule I, the companyputation and determination of ceiling area is to be done in accordance with the formula laid down in cl. a to d of s. 4 1 of the Act. In fine, therefore, the position in the instant case, as already pointed out by us, is that even taking into account the companycessions and exemptions granted to Johnson, the landholder, the land in his possession exceeds the ceiling of 2000 sq. metres by 530 sq. metres which will have to be declared as surplus. Before companycluding we might dwell on one more aspect of the matter which flows as a logical companyollary of our interpretation of the various provisions of the Act Where a person has several plots, some companypletely vacant and some partly built and partly vacant, a question may arise as to how the companyputation of the ceiling area is to be made in such cases. This presents numberdifficulty in view of what we have fully discussed in our judgment because it is manifest that the legislature intended to leave with the landholder only the area of 2000 sq. metres in category area or the various ceiling areas mentioned in different categories of s. 4 1 of the Act. It is manifest that in such cases the companypetent authority will have to total the entire area of the lands in various places, companypletely vacant or partly built and partly vacant and permit the landholder to retain 2000 sq. metres or less as provided in clauses a to d of s. 4 1 and give the landholder the option as provided under s. 6 to select the area which he desires to retain provided that does number exceed the ceiling limit. By way of postscript we might dwell on certain companysequences of the legislation flowing from the interpretation which we have put on the various provisions of the Act. The Act being a social piece of legislation should have been implemented long ago but as its companystitutional validity was challenged, which was decided by this Court only in 1979 as indicated above, the operation of the Act remained stayed. The second phase however began when the companyrectness of the manner in which companyputation was to be made as held by the Allahabad High Court was challenged by the State which also we have number decided in this judgment. We hope and trust that all the States will number go ahead with implementing the Act and take over the excess land in order to distribute them according to the tenor, spirit and provisions of the Act. Any further delay is likely to defeat the very object for which the Act was passed. For the reasons given above, we allow all these petitions and appeals, set aside the judgments of the High Court and send back the cases to the companypetent authority to get fresh companyputations done in all the cases and then determine the ceiling area in the light of the principles enunciated and the law laid down by us. Civil appeal No. 995 of 1980 is also remanded to the companypetent authority for redetermination of the ceiling area as indicated above. In the circumstances of the case, there will be numberorder as to companyts.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 75 of 1950. Appeal from the Judgment of the High Court of Judicature at Patna dated 22nd November, 1944, in Appeal No. 238 of 1940 arising out of order dated 13th July, 1940, of the Subordinate Judge of Bhagalpur in Mis. Case No. 174 of 1939. The facts of the case appear from the judgment. The appeal was originally preferred to the Privy Council and was subsequently transferred and heard by the Supreme Court. C. Chatterjee B. Sen, with him for the appellant. C De Raghunath Jha, with him for the respondents. 1951. October 26. The Judgment of the Court was delivered by DAs J.--This appeal has companye up for hearing before us on transfer from the Privy Council. The appellant is the present holder of Taluk Kakwara which appertains to Mahalat Kharakpur. The respondents represent the Banaili Raj which has also acquired the Mahalat of Kharakpur. The respondents obtained a decree for Rs. 11,587-14-6 against the appellant for arrears of rent and cess and applied for execution of their decree by the attachment and sale of Taluk Kakwara. On August 29, 1939, the appellant judgment-debtor filed an objection under section 47 of the Code of Civil Procedure alleging that as Taluk Kakwara was held on Ghatwali tenure it companyld number be sold in execution of a money decree. This objection was rather too wide, for all lands held on Ghatwali tenure were number necessarily inalienable. Indeed, in Kali Pershad Singh v. Anund Roy 1 which related to the Ghatwali Mahal of Kharna within the Mahalat of Kharakpur the evidence clearly established a number of instances in which there had been unquestioned transfers and sales applicable to Mahals in Kharakpur and it was held by the Privy Council that the true view to take was that such a tenure in Kharakpur was number inalienable, and might be transferred by the Ghatwal or sold in execution of a decree against him, if such transfer or sale was assented to by the Zamindar. A sale at the instance of the Zamindar in execution of a decree for arrears of rent necessarily implies the existence of such assent. In the later case of Narayan Singh v. Niranjan Chakravarti 2 which related to the Ghatwali Mahal of Handwa, Lord Sumner recognised that the decision of the Privy Council in the Kharna Ghatwali Mahal case was fully supported by the evidence adduced in that case and that that authority had been repeatedly followed and applied in India, and, so far as the reports showed, without proof of the custom being required over again. Lord Sumner, however, pointed out that 1 1887 L.R. 15 I.A. 18 I.L.R. 15 Cal. 471. 2 1923 L.R. 51 I.A. 37 I.L.R. 3 Pat. 184 A.I.R. 1924 C. 5. it was plain that as the custom depended on proof, and as the tenure in question was one in the Zamindari of Kharakpur and under its Zamindar, it companyld have numberreference to Ghatwali tenures number under him number forming part of his Zamindari. The Privy Council in the later case referred to above saw numberground for thinking that the custom of Kharakpur had any application to Ghatwali tenures, which, like Handwa, were independent of the Kharakpur Zamindari, even though they might be number far off Kharakpur. In short, it may be said to be well established--and the companytrary has number been urged before us --that Ghatwali tenures held under the Zamindar of Kharakpur were, by custom judicially recognised, alienable with the assent of the Zamindar while Ghatwali tenures like Handwa held under the Government direct were inalienable. In this state of the authorities, the appellant judgment-debtor on May 31, 1940, filed a fresh petition of objection under section 47 of the Code claiming that Taluk Kakwara was held under a Government Ghatwali tenure. The principal question for determination in those execution proceedings was whether Taluk Kakwara was a Government Ghatwali, as alleged by the appellant judgment-debtor, or was a Zamindari Ghatwali held under themselves, as claimed by the Respondents decree-holders. The learned Subordinate Judge held that Taluk Kakwara was a Zamindari Ghatwali under the Raja of Kharakpur and overruled the objection of the judgment-debtor. The judgment-debtor appealed to the High Court. The appeal came up for hearing in the first instance before a Bench companysisting of Manohar Lal and Shearer JJ. Manohar Lal J. came to the companyclusion that Taluk Kakwara was a Government Ghatwali and was inclined to allow the appeal. Shearer J. took the view that while Taluk Kakwara was at one time a Government Ghatwali, it ceased to be so and became and remained a Zamindari Ghatwali and as such was alienable and was inclined to dismiss the appeal. In view of this difference of opinion the appeal was referred to Chatterjee J, as the third Judge Chatterjee J. held that Taluk Kakwara was a Zamindari Ghatwali land as such alienable and accordingly dismissed the appeal. The judgment-debtor obtained leave to appeal to the Privy Council. As already stated, the appeal has companye up for hearing before us on transfer from the Privy Council. Although the exact origin of the Ghatwali tenures was generally lost in the companyfusion and obscurity of the troublous times which preceded the British rule, the nature of the Ghatwali tenures and their purposes and incidents have been fully established by a series of decided cases. The position of the Zamindars in or about 1765, when the East India Company secured the Dewani of Bengal, Bihar and Orissa, has been described by the Right Honble T. Pemberton Leigh who subsequently became Lord Kingsdown in his judgment in the case of Raja Lelanund Singh v. Government Bengal 1 Many of the greater Zamindars within their respective Zamindaries, were entrusted with rights, and charged with duties, which properly belonged to the Government. They had authority to companylect from the Ryots a certain portion of the gross produce of the lands. They, in many cases, imposed taxes and levied toils, and they increased their income by fees, perquisites, and similar exactions, number wholly unknown to more recent times and more civilised nations. On the other hand, they were bound to maintain peace and order, and administer justice within their Zamindaries, and, for that purpose, they had to keep up Courts of civil and criminal justice, to employ Kazees, Canoongoes, and Thanahdars, or a police force. But while as against the Ryots and other inhabitants within their territories, many of these potentates exercised almost regal authority, they were, as against the Government, little more than stewards or administrators. Their Zamindaries were granted to them only from year to year the amount of their jumma, or yearly payment to Government, was varied, or might be varied annually it was an arbitrary sum fixed by the Government 1 1855 6 M.I.A. 101 at p. 108. officers, calculated upon the gross produce of the Zamindary from all sources, after making an allowance to the Zamindar for his maintenance, and for the expenses of the companylection and of discharging the public duties with which he was entrusted by the Government. Further down his Lordship observed Besides the disorder which prevailed generally Besides the disorder which prevailed generally through the Provinces, particular Districts were exposed to ravages of a different description. The mountain or hill districts in India were at this time inhabited by lawless tribes, asserting a wild independence, often of a different race and different religion from the inhabitants of the plains, who were frequently subjected to marauding expeditions by their more warlike neighbours. To prevent these incursions it was necessary to guard and watch the Ghats, or mountain passes, through which these hostile descents were made and the Mahomedan rulers established a tenure called Ghatwali tenure, by which lands were granted to individuals, often of high rank, at a low rent, or without rent, on companydition of their performing these duties, and protecting and preserving order in the neighbouring Districts. This description of the nature and incidents of a Ghatwali tenure was adopted by the High Court Garth C.J. and McDonell J. in Leelanund Singh v. Thakoor Munranjan Singh 1 which was a case between the respective predecessors of the parties before us and related to this very Taluk Kakwara. Said the learned Chief Justice at p. 255- And it is very necessary for our present purpose to bear in mind what was the true origin and nature of these tenures. They were created by the Mahomedan Government in early times, as a means of providing a police and military force to watch and guard the mountain passes from the invasions of the lawless tribes who inhabited the hill districts. Large grants of land were made in those days by the Government. 1 1877 I.L.R. 3 Cal. 251. often to persons of high rank, at a low rent, or at numberrent at all, upon companydition that they should provide and maintain a sufficient military force, to protect the inhabitants of the plains from these lawless incursions and the grantees on their part sub-divided and re-granted the lands to other tenants much in the same way as military tenures were created in England in the feudal age , each of whom, besides paying generally a small rent, held their lands in companysideration of these military services, and provided each according to the extent of his holding a specified number of armed men to fulfil the requirements of the Government. As has been said by Lord Kingsdown in Raja Lelanund Singh v. The Government of Bengal supra at p. 125 though the nature and extent of the right of the Ghatwals in the Ghatwali villages may be doubtful, and probably differed in different districts and in different families, there clearly was some ancient law or usage by which these lands were appropriated to reward the services of Ghatwals services which, although they would include the performance of duties of police, were quite as much in their origin of a military as a civil character, and would require the appointment of a very different class of persons from ordinary police officers. Accordingly his Lordship found that the office of Ghatwal in the Kharakpur Zamindari was frequently held by persons of high rank. In Munrunjan Singh v. Raja Lelanund 1 which was also a case between the respective predecessors of the parties before us and related to this very Taluk Kakwara, the High Court at p. 86 observed - It appears that there is companysiderable variety in the tenures known under the general name of Ghatwali in different parts of the companyntry. They all agree in this that they are grants of land situated on the edge of the hilly companyntry, and held on companydition of guarding the ghats or passes. Generally, there seems to be a small quit-rent payable to the Zamindar in addition to the service rendered, and with the view of marking 1 1865 3 W.R. 84. the subordination of the tenure. But in some Zamindaries and putnees these tenures are of a major, in others of a minor, character. Sometimes the tenure of the great Zamindar himself seems to have been originally of this character. More frequently large tenures, companysisting of several whole villages, are held under the Zamindar. Further down their Lordships said These inferior Ghatwalis seem to be those in which the Zamindar or ruling power deals direct with the individuals who do the work, assigning them pieces of land in the established villages. The larger tenures were more of the nature of semi-military companyonies, where a chief with his followers were settled down in parts of the companyntry so unsafe that it companyld number be otherwise occupied. The law relating to Ghatwali tenures has been dealt with at companysiderable length by Lord Sumner in Narayan Singh v. Niranjan Chakravarti supra . The variety of companyditions of service to be rendered by a Ghatwal was thus summed up by his Lordship at pp. 80-51 - In itself ghatwal is a term meaning an office held by a particular person from time to time, who is bound to the performance of its duties, with a companysideration to be enjoyed in return by the incumbent of the office. Within this meaning the utmost variety of companyditions may exist. There may be a mere personal companytract of employment for wages, which take the form of the use of land or an actual estate in land, heritable and perpetual, but companyditional upon services certain or services to be demanded. The office may be public or private, important or the reverse. The Ghatwal, the guard of the pass may be the bulwark of a whole companyntryside against invaders he may be merely a sentry against petty marauders he may be numbermore than a kind of gamekeeper, protecting the crops from the ravages of wild animals. Ghatwali duties may be divided into police duties and quasi-military duties, though both classes have lost much of their importance, and the latter in any strict form are but rarely rendered. Again, the duties of the office may be such as demand personal discharge by the Ghatwal and personal companypetence for that discharge they may, on the other hand, be such as can be discharged vicariously, by the creation of shikmi tenures and by the appointment and maintenance of a subordinate force, or they may be such as in their nature only require to be provided for in bulk. It is plain that where a grant is forthcoming to a man and his heirs as Ghatwal, or is to be presumed to have been made though it may have since been lost, personal performance of the ghatwali services is number essential so long as the grantee is responsible for them and procures them to be rendered Shib Lal Singh v. Moorad Khan, 1868 9 Suth. W.R. 126. Then his Lordship pointed out that the superior who appointed the Ghatwal might be the ruling power over the companyntry at large, the landholder responsible by custom for the maintenance of security and order within his estates, or simply the private person, to whom the maintenance of watchmen was, in the case of an extensive property, important enough to require the creation of a regular office. Although personal service by the employee and personal selection and appointment by the employer might have been ordinarily essential incidents of the relationship, yet it was number invariably so as appears from the last quotation as well as from the following passage in the judgment by Lord Sumner at p. 52 - On the other hand, there are great estates, whose proprietors are found holding them or parts of them upon the terms of providing that ghatwali services shall be forthcoming, either regularly or when required services it is impossible for the proprietor himself to render in his own person, and which become possible to him and to those to whom he renders them simply by virtue of his possession of the lands thus granted. In such eases the ghatwali tenure, even if number originally granted as heritable, easily becomes so, and is companymonly found on the death of an incumbent of the office to descend to some member of his family, if number necessarily to the senior member. Thus in Kharakpur ghatwals have a perpetual hereditary tenure at a fixed jama Munrunjun Singh v. Lelanund Singh. The requirement of rendering of services by a Ghatwal naturally gave rise to a further incident of such a tenure, namely, the inalienability of the Ghatwali lands, for an alienation of the Ghatwali lands might easily deprive the Ghatwal of the whole of the means provided to enable the services to be rendered. This companysideration peculiarly applied where the superior, by whom the Ghatwals were appointed and of whom the Ghatwali lands were held. was the ruling power itself. As has already been stated above, the rigour of this incident of inalienability had, however, in the case of Kharakpur Zamindari Ghatwalis, given way to custom recognised as well established in the case of Kali Petshad v. Anund Roy supra , which has been repeatedly followed and applied in India without proof of the custom being required over again. From what has been stated above, it clearly follows that Ghatwali tenures originated during the Moghul period, that although the services included police duties, they were in their origin just as much of a military as a civil character and that the tenure companyld be granted by the ruling power directly to the Ghatwal who was to render the services so as to establish a direct privity between the ruling power and the Ghatwal or it companyld be granted by the Zamindar for the protection of his Zamindari or for. enabling him to render the police and military services to the ruling power which he was bound to do under the terms of the grant of Zamindari to him. The question then arises --which of these categories the Ghatwals of Kharakpur companye under. Mahalat Kharakpur was an extensive estate and apparently owed allegiance, real or numberinal, to the Moghul Emperor. There is numberevidence on record showing on what terms the Raja of Kharakpur held the estate under the Moghuls and it is difficult to say, with any amount of certainty, what kind or amount of services, police or military, he had to render to the then ruling power. It may, however, be safely stated that, like all other Zamindars, the Raja of Kharakpur had to preserve internal peace and order by maintaining sufficient Thanas or police establishments and to protect the tenants and other inhabitants from the incursions of lawless tribes from the neighbouring hills by providing or arranging for a sufficient military force. It companyld number be expected that a big Zamindar like the Raja of Kharakpur would render the police or military services personally and companysequently it was natural for him to appoint his own Ghatwals to protect his Zamindari and to render services for him to the ruling power. As said by Lord Kingsdown in Raja Lelanund Singh v. The Government of Bengal supra at p. 102 it was well established that long before 1765 the Zamindars of Kharakpur had created Ghatwali tenures for the purpose of protecting their Zamindaries from the attacks of mountaineers and other turbulent people in their neighborhood. Lord Sumner in Narayan Singh v. Niranjan Chakravarti supra at p. 68 also recognised that long before 1765 Ghatwali tenures under the Zamindar of Kharakpur had been created by the various holders of those lands for their own purposes and as late as 1770-1785 Mr. Cleveland, who managed the estate during the minority of Kadir Ali, followed the same policy. In Narayan Singh v. Niranjan Chakravarti supra at p. 50 Lord Sumner said - In the Sonthai Parganas there are for practical purposes three classes of Ghatwali tenures a Government ghatwalis created by the ruling power b Government ghatwalis, which since their creation and generally at the time of the Permanent Settlement have been included in a zamindari estate and formed into a unit in the assessment and c zamindari ghatwalis, created by the zamindar or his predecessors and alienable with his companysent. The second of these classes is really a branch of the first. The question, then, is--to which class the Ghatwali tenure of Taluk Kakwara, with which we are companycerned in this case, belongs--whether it was a Government Ghatwali or was one of the many Ghatwali tenures created by the Zamindars of Kharakpur. Happily, we do number have to speculate. The problem before us is number to infer the true nature and incidents of the original grant which companyld only be companylected from the evidence of what was done and left undone in companynection with Taluk Kakwara by the ruling power and its officers. We have in evidence before us the authentic texts of the two Sanads relating to the Kakwara Ghatwali and we also have the provisions of the Permanent Settlement Regulation. The nature and incidents of that tenure must rest upon the true companystruction and import of those grants as well as on the manner in which it was dealt with at the time of the Permanent Settlement. It will be companyvenient and useful, at this stage, to give a very short history of Mahalat Kharakpur and Taluk Kakwara. In 1765 the East India Company secured the Dewani of Bengal, Bihar and Orissa from the Moghul Emperor. The accession of Dewani was in effect a cession of the three provinces and the East India Company virtually became the sovereign ruling power over those territories. At that time one Mozaffar Ali was the Raja of Mahalat Kharakpur. Taluk Kakwara appertained to Mahalat Kharakpur. In 1766 Raja Mozaffar Ali rose in rebellion against the East India Company. A strong military force under the companymand of Captain Browne was sent for quelling the revolt. Eventually, in 1768 Raja Mozaffar Ali was subdued and imprisoned. The Raja was deposed and deprived of his estate and the East India Company took direct charge of Mahalat Kharakpur and managed it through its officers until the Mahalat was restored to Raja Kadir Ali, the grandson of Raja Mozaffar Ali. In 1776 Captain Browne, who was then in charge of the Mahalat, granted an Amalnama or Sanad Exhibit 1 in respect of 22 villages to two persons Rankoo Singh and Bhairo Singh at a fixed annual Jama of Rs, 245-12-15. That Sanad was in the following terms Seal of Captain James Browne, head of jungletari low forest land . Know ye, the present and future Mutasaddis of affairs, Chaudhuris, Kanungos, Zamindars and Ghatwals of Pargana Danda Sukhwara, Zila Jangal-tari. appertaining to Kharagpur, Sarkar Monghyr, in the Province of Bihar. From the beginning of 1184 Fasli, Taluka Kakwara, pargana aforesaid, is let out in perpetual mukarrari, without any objection or companytention, to Rankoo Singh and Bhairo Singh, ghatwals of the said Taluka, at a fixed jama of Rs. 245-12- 15 rupees two hundred and forty-five, annas twelve and gandas fifteen in current companyns numbered in the endorsement, companysolidated from all sources, including malwajhat, sairwajhat and all grains, and excluding the perquisites of the zamindari, nankar, chaudhuris and kanungos, parganati expenses, lands given in charity, e.g., barhmotar, shibotar and bishunparit lands, aima lands of jagirdars, bargandazes musketeers , dhupars ? , mahus ? etc. It is requisite that they should peacefully cultivate torn and pay the Government torn , according to the kabuliat, year after year and crop after crop, into the Government treasury. They should make such effort as to increase the cultivation of the said Taluka from day to day. They should hold themselves responsible for deficient cultivation. They should keep the tenants pleased and companytented with their good treatment and should number oppress any one and make excessive demands. They should number fix the allowance of the jagirdars and bargandazes etc., over and above the rent. They should bear this in mind. They should provide for the protection of the tenants within their jurisdiction and of the villages of the said Taluka. Whenever the chakars ? be sent for by the huzur, the sardar ? should appear before him with his men. If at any place, within their boundary limits, murder, disturbance, dacoity, theft, highway robbery etc., be companymitted, and the culprit be traced or be found companyspiring advisedly with any one and the Government work suffer, and proper punishment be meted out after inquiry, they will be responsible ? by virtue of their position, and will be dismissed from their post and will number be reinstated unintelligible . The amlas of the zamindars of the said Taluka should on knowing the said istimrari mukarrari rent to have been fixed, companytinue to receive the mukarrari rent from year to year and should number demand even a farthing in excess. They should treat this as peremptory and act as written herein. Dated the 25th Shanwal, 17, companyresponding to the 7th Pus Bangla, 1183 Fasli. Endorsement. Taluka Kakwara, pargana Danda Sukhwara, appertaining to Kharagpur, Zila Jangaltari, Sarkar Monghyr, in the province of Bihar, is let out in perpetual mukartari, without any objection or companytention, to Rankoo Singh and Bhairo Singh, Ghatwals, at a fixed jama of Rs. 245-12-15 rupees two hundred and fortyfive, annas twelve and gandas fifteen in current companyns as specified below, companysolidated from all sources, including malwajhat, sair-wajhat, and all grains, excluding the perquisites of the zamindari, nankar, Chaudhuris and Kanungos, expenses of the said Taluka, lands given in charity, e.g. barhmotar, shibotar and Bishun-parit lands, jagir lands of jagirdars, bargandazes, dhupars ? , maimas ? , etc. Fixed jama. Rs. 245-12-15 gandas. Then followed the specification of 22 Mouzas or villages. It will be numbericed that the grant was made to Rankoo Singh and Bhairo Singh described as ghatwals of the said Taluk which suggests that those two persons were already Ghatwals. The duties generally imposed on the grantees and in particular the duty of providing protection for the tenants and of appearing before Huzur with his men did number, in the words of Lord Sumner in Narayan Singh v. Niranjan Chakravarti supra at p. 46, go beyond duties then ordinarily discharged by Zamindars. There was numberstipulation either in the main body of the grant or in the endorsement at the foot for maintaining a regular body of a definite number of archers and barkandazes such as is to be usually found in ordinary Ghatwali grants and indeed such as is in fact to be found in the subsequent grant of Raja Kadir Ali with respect to this very Taluk Kakwara. Finally, the admonition at the end of the principal paragraph to the amlas of the Zamindars of the said Taluk to receive the fixed mukarrai rent and number to demand even a farthing in excess may well be regarded as indicating that the Zamindar was really interested in the grant. In the premises, the observation of the learned Judges of the High Court of Calcutta in Munrunjun Singh v. Raja Lelanund supra at page 85 that the Sanad of Captain Browne seemed to them to be rather a companyfirmation of an existing tenure than the creation of a new one appears to have companysiderable force. This view of the matter will be quite companysistent with the subsequent history of the Kakwara Ghatwali which will be presently related. It is, however, pointed out that at the date of this Sanad there was in fact numberRaja of Karakpur and that as the Mahalat was being administered and managed by Captain Browne on behalf of the East India Company the grant made by him must be taken as creating a Government Ghatwali tenure. The Seal at the top of the Sanad is said to indicate that in granting the Sanad in his capacity as Sardar of the Jungle Terai Captain Browne was acting for and on behalf of the East India Company. The Sanad was addressed to the present and future Mutasaddis of affairs, Chaudhuris, Kanungos, Zamindars and Ghatwals of Pargana Danda Sukhwara and it is urged that if Captain Browne had been acting on behalf of the Zamindar of Kharakpur, addressing the Sanad to the Zamindars would have been wholly inappropriate. The fact that the grant was to companymence from the beginning of 1184 Fasli also militates against its being only a companyfirmation of a pre-existing Ghatwali tenure. The direction to pay according to the Kabuliat, year after year, crop after crop, into the Government treasury clearly suggests that the Sanad created a Government Ghatwali tenure. In the Moghul period there was numberfixity of the jama and the grants were made annually and the jamas were liable to be varied. The provision of a fixed annual jama in this Sanad cannot, therefore, it is argued, be regarded as a companyfirmation of an existing grant on a fixed jama. Taking all these matters into companysideration Shearer and Chatterjee JJ. came to the companyclusion that under Captain Brownes Sanad of 1777 Taluk Kakwara became a Government Ghatwall. This line of reasoning is number without force or companyency although it may number necessarily be companyclusive, for Captain Browne, undoubtedly acting for the East India Company, might well have issued the Sanad during the period of interregnum. on behalf or in the interest of whoever might eventually become the Zamindar of Kakwara. If the matter rested only with this Sanad and numberhing further had happened then perhaps it might have been said with some plausibility that a new tenure was created by the ruling power by this Sanad, but the matter does number in fact rest with only Captain Brownes Sanad, and we have to see how this Taluk Kakwara has been subsequently dealt with and what effect the subsequent events have on the status and rights of the Ghatwal of this Taluk. It appears that in 1780 the East India Company restored Mahalat Kharakpur to Kadir Ali, the grandson of the deposed Raja Mozaffar Ali. Although the formal order of the Governumber-General came in 1781, the Mahalat was actually restored to Raja Kadir Ali in 1780. At that time Raja Kadir Ali was only a boy of five or six years of age and Mr. Cleveland, the Collector of Bhagalpur, managed Mahalat Kharakpur for and on behalf of the minor Raja Kadir Ali. On January 17, 1780, a fresh Sanad Exhibit 1 a was granted in the name and under the Seal of Raja Kadir All to the same two persons, Rankoo Singh and Bhairo Singh, in the following terms -- Seat of Raja Qadir Ali, under Emperor Shah Alam, the Victorious--1193 . Know ye, the present and future mutasaddis of affairs and the gumashtas holding the posts of Chaudhuris and Kanungoes of Pargana Danda Sukhwara appertaining to mahals Kharagpur, Sarkar Monghyr, in the Province of Bihar. The Ghatwali service tenure of Taluka Kakwar appertaining to the said pargana is held, under a Sanad, by Bhairo Singh and Rankoo Singh, with 177 musketeers and archers including sardars, on the companydition of allegiance and loyalty to the Sarkar. Of late also, the said tenure being upheld and kept intact as usual, according to the endorsement, is assigned and granted with effect from the beginning of the Kharif season of 1189 Fasli Rajwara companyresponding to 1188 Fasli Mughlana. They should discharge the duties and obligations with honesty and fidelity and keep the tenants pleased and companytented with their good treatment, and should watch the ghats and chaukis very carefully and cautiously, so that numberthief and night robber may companye around and about them. If, God forbid, the properties of any one be stolen or plundered and cattle be companycealed or murder be companymited, they should trace the thieves and night robbers with the properties intact, restore the properties to the owner and produce the party of the mischief mongers before the Huzur and prove the murder. In case they fail to find out the thieves and to prove the murder and the companycealment theft of cattle, they should hold themselves responsible therefor. They should companytinue to pay the quit-rent to the Sarkar as usual. When summoned, they should appear before the Huzur with the body of men. It is desired that you should companysider them as permanent Ghatwals of that place and maintain them in their possessions and you should number fail to give them sound advice so as to ensure by all means the advantage of the Sarkar and the well-being of the tenants. Treat this as peremptory and act accordingly. Dated, the 17th seventh sic day of the holy month of Muharram of year 22, companyresponding to 194 A.H. Endorsement The Ghatwali service tenure of taluka Kakwara. Pargana Danda Sukhwara, is granted as before to Rankoo Singh and Bhairo Singh with 172 Musketeers and archers including sardars with effect from the beginning of the karif season of 1189 Fasli, Rajwara, companyresponding to 1189 Fasli Mughlana, on the companydition of allegiance and loyalty to the Sarkar. Above-named persons sic --7 172 Musketeers and Archers--165 Rs.a.d. 245-12-1 Fixed perpetual quit rent 215- 0-15 Rent Zamindari 30-12- 0 Rs. a. d. Rs. a.d. By Bhairo Singh 178- 3- 5 By Rankoo Singh 67-9-10 155-14-15 Rent 59-2- 0 Rent Zamindari 22- 4-10 Zamindari 8-7-10. Then followed a list of 16 Mauzas given in Jagir. If Taluk Kakwara was, in its origin, a Zamindari Ghatwali created by the Zamindar of Kharakpur and if Captain Brownes Sanad only companyfirmed that existing tenure during the interregnum when he was in charge of the entire Mahalat of Kharakpur and managed it on behalf of the East India Company but in the interest of whoever eventually became the Raja of Kharakpur, then on the restoration of the Zamindari to Raja Kadir Ali he would naturally clarify the position and status of the Ghatwals under him by issuing fresh Sanads in their favour. In this view of the matter Raja Kadir Alis Sanad only regularised the original status of Taluk Kakwara as a Zamindari Ghatwali tenure and specified the terms more clearly and explicitly. It is, however, companytended on behalf of the appellant that the Sanad of Captain Browne created a Government Ghatwali tenure and Raja Kadir Alis Sanad was numberhing more than a companyfirmation of that Government Ghatwali tenure. Reliance is placed on the inscription in the seal at the top which refers to Emperor Shah Alam the Victorious and it is companytended that this clearly indicates that this Sanad was also intended to be a Government grant. We are unable to accept this companytention as sound. The reference to Emperor Shah Alam the Victorious might be numberhing more than a mere formal recognition of a titular figurehead. The statement that the Ghatwali service tenure of Taluk Kakwara was held under a Sanad by Bhairo Singh and Rankoo Singh with 172 Musketeers and Archers etc. may well be taken as referring to an earlier Sanad which specified the number of Musketeers and Archers and need number necessarily refer to Captain Brownes Sanad of 1777 in which there was, as has been pointed out, numberspecification of any number of Musketeers and Archers. Under this Sanad the grantees tenure companymenced from the beginning of the Kharif season of 1189 Fasli, Rajwara, companyresponding to 1188 Fasli Mughlana. This date of companymencement of the tenure is different from the date of companymencement mentioned in Captain Brownes Sanad. In Captain Brownes Sanad the fixed Jama of Rs. 245-12-15 was exclusive of Zamindari Rasoom whereas under Raja Kadir Alis Sanad the fixed perpetual quit rent of Rs. 245-12-15 was inclusive of Zamindari Rasoom, the rent being Rs. 215-0-15 and Zamindari Rasoom being Rs. 30-12-0. What is still more significant is the apportionment of the quit rent between the two grantees which is to be found towards the end of the Sanad. Such an apportionment was wholly inappropriate in the case of a merely companyfirmatory grant. Again, this grant companyprised 16 Mauzas whereas Captain Brownes Sanad companyered 22 Mauzas. Even the names of many of the 16 Mauzas are number to be found in the specification of Mauzas at the end of Captain Brownes Sanad. The further significant fact is that in the 16 Mauzas set out at the foot of Raja Kadir Alis Sanad the two grantees were shown to have different and distinct shares in the different Mauzas. In some cases, even an entire Mauza was allotted exclusively to one or the other. Further, if Captain Brownes Sanad created a Government Ghatwali tenure, it is number intelligible why Raja Kadir Ali should be called upon to companyfirm the grant with which he was number directly or indirectly companycerned. Again, it is well known that at this time 98 of the Ghatwals of Kharakpur took their Sanads from Raja Kadir Ali while only three big Ghatwals, namely, those of Lachmipur, Handwa and Chandan Katoria took their Sanads number from Raja Kadir Ali but from Mr. Dickenson who succeeded Captain Browne. This distinction can only be explained on the footing that these 98 Ghatwalis including Taluk Kakwara were in reality Zamindari Ghatwalis while the three bigger Ghatwalis were treated as Government Ghatwalis. The fact that Mr. Cleveland, the Collector of Bhagalpur, was at this time in charge and management of Mahalat Kharakpur, that these 98 Sanads were granted in the name of Kadir Ali during the period of Mr. Clevelands management and the fact that ever since 1780 numberody on behalf of the Government has questioned the propriety of these Sanads as evidencing a grant of Zamindari Ghatwali clearly establish that Raja Kadir Alis Sanads really regularised the position and status of these Ghatwals as holding Zamindari Ghatwali tenures and specified the terms on which the tenures were to be thenceforth held. On the other hand, even if it be accepted that Captain Brownes Sanad created a Government Ghatwali tenure then, in the language of Lord Sumner in Narayan Singh v. Niranjan Chakravarti supra at p. 54 it might well be said that Raja Kadir Alis Sanad issued during the time Mr. Cleveland, the Collector of Bhagalpur, was managing the Mahalat of Kharakpur, and never objected to or questioned at any time thereafter by the Government amounted to a release by the Government of the Ghatwali services or to a grant to a third party of the right to receive them and of the right to appoint the Ghatwali and, therefore, the original Government Ghatwali tenure came to an end and a Zamindari Ghatwali tenure took its place. The matter does number even rest with Raja Kadir Alis Sanad. In 1789 or 1790 there was a decennial settlement of Mahalat Kharakpur with Raja Kadir Ali which in 1796 was made permanent under the permanent Settlement Regulation I of 1793. As Lord Kingsdown pointed out in Raja Lelanund Singh v. The Government of Bengal supra at p. 114, it was beyond dispute and indeed fairly admitted that the Ghatwali lands formed part of the Zamindari and were included in and companyered by the assessment of the Zamindari. This was recognised by the High Court in Munrunjun Singh v. Raja Lelanund supra when they said that there was numberdoubt that the tenure was, at the Permanent Settlement, included in the Zamindari of Kharakpur and that the Jama was payable to the Zamindar. On appeal, their Lordships of the Privy Council also pointed out that the claim of the Government to resume and reassess the Ghatwali lands was dismissed upon the ground that the Taluk had been assessed to revenue and was a portion of the Mal land of the Zamindar. In Leelanund Singh v. Thakoor Munrunjun Singh supra Garth C. J. at p. 257 said that there companyld be numberdoubt that the time of the Permanent Settlement the Taluk Kakwara formed part of the Kharakpur Zamindari and that the holders of that Taluk were dependent Talookdars of that Zamindari. The holders of Taluk Kakwara were certainly number independent Talookdars because the Zamindar had the beneficial interest in the tenure and these tenures were never registered as independent Taluks. Lord Sumner described the attempt of Raja LelanundSingh to recover possession of Taluk Kakwara as an attempt on his part to resume his Shikmi Ghatwali lands. Further, Captain Browne in his book India Tracts published in 1788 had shown only Luchmipur, Handwa and Chandan Katoria, all appertaining to Purgunnah Kharakpur, as three Ghatwalis under the Jungle Terry Collector. Kakwara was number shown in that list. On February 24, 1860, a list Exhibit D of Ghatwali Mahals appertaining to Kharakpur was prepared by the Government showing 98 Ghatwali tenures appertaining to Mahal Kharakpur. Kakwara is item 73 in that list. In 1863, at the time of the companyposition made between the Government and the Raja of Kharakpur another list of Ghatwali Mahals appertaining to Kharakpur was prepared by the Government and Kakwara is item No. 40 in that list. In neither of these lists did Lachmipur, Handwa and Chandan Katoria, which were under the Collector, find a place. Again, the letters from the Collector of Bhagalpur to the Raja of Kakwara written in 1783 and 1808 set out in Lord Kingsdowns judgment in Raja Lelanund Singh v. The Government of Bengal supra clearly show that the Government recognised that the right of appointment and dismissal of a Ghatwal rested with the Raja of Kharakpur. As Lord Kingsdown pointed out in Raja Lelanund Singh v. The Government of Bengal supra at p. 114, the Zamindars derived some benefit in money and also had the benefit of the services of the Ghatwals and enjoyed the valuable right of appointing the individuals, who, with the lands, were to take upon themselves the duties of the office. If the Ghatwali tenures, created by the Sanad of Raja Kadir Ali were Government Ghatwali tenures, it is number intelligible how the Zamindar would have the right to appoint or dismiss the Ghatwal. On a companysideration of the facts and the circumstances numbered above, we are of opinion that Taluk Kakwara was, in its origin, a Zamindari Ghatwali tenure and companytinued to be so and was in fact treated as such down to the present time and further that even if by virtue of Captain Brownes Sanad it became a Government Ghatwali tenure, then under the Sanad of Raja Kadir Ali, or, at any rate, after the Permanent Settlement, Taluk Kakwara became a Zamindari Ghatwali and as such alienable with the companysent of the Zamindar according to the custom of Kharakpur judicially recognised. It is quite clear to us that the companyclusions arrived at by us are in numberway inconsistent with the judicial decisions which have been cited before us. In Raja Lelanund Singh v. The Government of Bengal supra the Government sought to establish their right to resume and assess with revenue Ghatwali lands appertaining to the Zamindari of Kharakpur. The Government claimed the right under Regulation I of 1793, section 8, clause 4 , and companytended that before the Permanent Settlement the Zamindar used to appropriate the produce of the Ghatwali lands in maintaining police establishments and that, as by that Regulation the Government undertook the charge of maintaining the police, the lands become liable to resumption in addition to the jama assessed on the Zamindari and that the lama assessed on the Zamindari of Kharakpur did number include any sum assessed in respect of the produce appropriated for the maintenance of the police establishments. There were eleven suits against 11 Ghatwals. The Raja of Kharakpur was number originally made a party to the proceedings but he was eventually added as a party on his own application. In 1885 a final judgment in favour of the Government was pronounced by the Special Commissioner. The Raja of Kharakpur appealed. The Government claim was dismissed on the ground, first, that the Ghatwali lands were part of the Zamindari of Kharakpur and were included in the Permanent Settlement of the Zamindari and companyered by the jama assessed on that Zamindari and, second, that the lands of Ghatwali tenure were number liable to resumption under clause 4 , section 8, Bengal Regulation I of 1793 as included in allowance made to Zamindars for thana or police establishments. There is number only numberhing in the judgment of Lord Kingsdown which militates in any way against the view that the Ghatwali tenures appertaining to the Mahalat of Kharakpur were Zamindari Ghatwali. On the other hand, the observations of his Lordship, some of which have been quoted above, clearly indicate that they were of the nature of Zamindari Ghatwali over which the Zamindar had the right of appointment and dismissal and that they formed part of the Zamindari and were included in and companyered by the assessment of the Zamindari. Munrunjan Singh v. Raja Lelanund Singh supra was a suit by the Zamindar of Kharakpur claiming possession of Taluk Kakwara on the allegation that the lands were held for police services, that the appointment and dismissal of Ghatwals rested with him, that he had companypounded with the Government for a money payment in lieu of police services which he was bound to render through the Ghatwals and that those services being numberlonger required, he was entitled to resume the lands. The defences were that the Ghatwals were number lessees liable to ejectment but held a permanent tenure, that it existed long before the Permanent Settlement being held at a fixed jama mentioned in the Sanads derived directly from the representatives of the British Government and in companypensation for services in guarding the mountainous companyntry and the passes which service they were always ready and willing to perform. If Taluk Kakwara was a Government Ghatwall, then the Zamindar would have had numberlocus standi to maintain the suit for possession and the suit should have been dismissed on that short ground, but numbersuch point was seriously taken and the case was fought out and decided on the footing that Taluk Kakwara was a Zamindari Ghatwali. The. principal Sudder Amin having decreed the suit, the defendant appealed. The High Court held that the companytract between the Raja of Kharakpur and the Government without authority of the legislature in numberway affected the statute and the rights of the Ghatwal and the tenure in dispute was number a mere grant of land in payment of service to be rendered during pleasure but was a perpetual hereditary holding on a fixed jama, leaving a beneficial interest in the Ghatwal with a companydition of service annexed. That decision was upheld on appeal by the Privy Council. The next case companycerning this very Taluk Kakwara was Leelanund Singh v. Thakoor Munrunjun Singh supra which was a suit by the Zamindar of Kharakpur against the Ghatwal of Kakwara for a declaration of his right to enhance the rent at a rate equivalent to the Ghatwali services which had been rendered unnecessary. Again, if Taluk Kakwara was a Government Ghatwali, the Raja of Kharakpur would have numberlocus standi to claim an enhancement of rent in lieu of the Ghatwali services This claim of the Raja of Kharakpur was also dismissed. There are positive observations in this case which indicate that Taluk Kakwara was a dependent Taluk or, as Lord Sumner called it was a Shikmi Taluk. Learned companynsel for the appellant has relied very strongly on two cases, namely, Narayan Singh v. Niranjan Chakravarti supra and Rani Songbari Kumari v. Raja Kirtyanand Singh 1 . Both the cases related to the Ghatwali of Taluk Handwa. The endeavour of learned companynsel was to show that the Sanad of Captain Browne and the Sanad of Raja Kadir Ali relating to Taluk Kakwara were in their effect the same as the Sanad of Captain Browne and the companyfirmatory Parwang of Mr. Dickenson, the Collector of Bhagalpur, relating to Taluk Handwa. In Narayan Singh v. Niranjan Chakravarti the Subordinate Judge held that the tenure of Handwa was number Ghatwali tenure at all. The High Court, on appeal, held that the parganah was.held. as.a Moghul Ghatwali tenure before cession but that it became a Government Ghatwali and that numberhing had been done to alter that position. They were, however, of opinion that Raja Udit Narayan Singh did number hold it as Ghatwal and that the heirs of Udit Narayan Singh companyld number impugn the validity of the mortgage created by him. This decision of the High Court was reversed by the Privy Council. In Rani Sonabati Kumari v. Raja Kirtyanand Singh 1 Mr. Justice Fazl Ali elaborately discussed the law relating to Ghatwali tenures. Learned companynsel for the appellant before us has relied on several passages from the judgment of Lord Sumner and from that of Mr. Justice Fazl Ali. These two decisions must be taken as based on the companystruction of the relevant Sanads, namely, the Sanad of Captain Browne and the Parwang of Mr. Dickenson and the observations to be found in the judgments in those two cases must be read in the light of that companystruction. The position of Taluk Kakwara appears to us to be entirely different from that of Taluk Handwa. Mr. Justice Shearer in his judgment refers to five points of distinction between the position of the two Ghatwals, namely---- 1 1935 I.L.R. 14 Patna 70. The Ghatwals of Handwa never paid any Rasoom on the amount of the land revenue assessed on the lands of Raja of Kharakpur The Ghatwal of Handwa formerly used to pay the quit rent directly into the Government treasury In more than one list of the Ghatwali tenures under the Kharakpur Raj prepared by the Collectors of Bhagalpur, Handwa was number to be found After the restoration of Kharakpur Raj, the Ghatwals of Handwa instead of obtaining a Sanad from Raja Kadir Ali obtained a Sanad from the then Collector of Bhagalpur, Mr. Dickenson and 5 the claim made by Raja Kadir Ali to appoint a new Ghatwal of Handwa on the occurrence of a vacancy in the office was negatived by the Courts. Likewise, Chatterjee J. in his judgment also points out the essential differences in the status of the two Ghatwals. The language used in the Sanad relating to Taluk Handwa is somewhat different. There is numberquestion of payment of quit rent to the Zamindar of Kharakpur. Although Handwa was included in the Zamindari of Kharakpur, it was only done so in a geographical sense and for fiscal purposes. The annual jama of Handwa was never treated as a part of the Mal assets of the Raja of Kharakpuron which revenue was assessed on him.

Mathew, J. This appeal, by special leave, in against an order passed by the High Court of Delhi refusing to grant a certificate to the appellant under Article 133 1 c of the Constitution to appeal to this Court. The High Court had dismissed in limine a writ petition filed by the appellant challenging the validity of the proceedings under the Land Acquisition Act for acquiring the property in question. The appellant thereafter applied to the High Court for a certificate under Article 133 1 c . The High Court dismissed the application. The appellant filed a petition for special leave against the order dismissing the writ petition as also another against the order refusing to grant the certificate. 4. this Court dismissed the petition for leave to appeal against the order dismissing the writ petition, but granted special leave to appeal against the order refusing to grant the certificate. As already stated, the application to the High Court for grant of certificate was made only under Article 133 1 c . But, in the petition for leave to appeal before this Court, it was stated That the petitioner-Bank filed an application being S.C.A, No. 104 of 1967 under Article 133 of the Constitution of India for grant of certificate for appeal to the Supreme Court. And, in the statement of the grounds for the petition for leave to appeal, it was stated The amount or value of the subject matter of dispute in the High Court and still in dispute in appeal in this Honble Court was and is number less than Rs. 20,000/- and the petitioner was entitled to the certificate under Article 133 1 a of the Constitution of Indiain any case, the judgment, decree or final order of the Honble High Courtinvolved directly or indirectly some claim or question respecting property of the amount or value of more than Rs. 20,000/- and the petitioner was entitled to certificate under Article 133 1 b of the Constitution of India as of right. The statement that the appellant filed an application under Article 133, without specifying the clause under which the application was made, was, to say the least, misleading. The ground in the petition for leave to appeal referred to above would suggest that the application to the High Court for certificate was made number only under Article 133 1 c , but also under Article 133 1 a or alternatively under Article 133 1 b . In other words, the statement in the special leave petition that the application was made to the High Court for a certificate under Article 133, without specifying the sub-clause under which it was made, companypled with the statement in the grounds in the special leave petition that the appellant was entitled, as a matter of right, to a certificate under Article 133 1 a or b was calculated to mislead the Court, or, at any rate, was likely to mislead the Court, in the absence of any statement that the appellant applied to the High Court only under Article 133 1 c and the High Court refused to grant the certificate only under that sub-clause. It is very doubtful whether this Court would have granted special leave to appeal, if this Court had been told that the application for grant of certificate to the High Court was made under Article 133 1 c . When this Court rejected the application for special leave to appeal against the order dismissing the writ petition it is very problematical whether it would have granted special leave to appeal against the order refusing to grant a certificate under Article 133 1 c , if the Court had been appraised of the fact that the application for certificate to the High Court was made only under that sub-clause. 7. this Court has been very strict in its requirement that, in a petition under Article 136, the applicant should state all material facts which have a bearing on the question of the exercise of the discretion, companyrectly. And, if any statement is made in the petition which has a bearing on its maintainability, and which is calculated or likely to mislead, the Court would revoke the order granting special leave see the decision in Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjibhai Mody . In dealing with an application for special leave, this Court takes the statement of fact and grounds of fact companytained in the application at their face value and it would be unfair to betray the companyfidence of this Court by making statements which are untrue or misleading see the decision in Hari Narain v. Badri Das 1964 3 SCR 203.

S. Hegde, J. This appeal by special leave is directed against the decision of the High Court of Bombay summarily dismissing the appellants first appeal without assigning any reason. The facts of the case are as follows. Dadu and Tukaram were brothers. The appellant Mahadev is the son of Tukaram. The first plaintiff Sugandha is the daughter of Kisabai. Kisabai claims to be the wife of Dadu. Dadu died at a ripe old age of over 80 years, on Oct. 26, 1968. It is said that on July 24, 1968, he had executed a will in favour of the plaintiffs bequeathing his interest in his family properties. On the strength of that will the plaintiffs have brought the present suit for partition as well as other incidental reliefs. The suit was resisted mainly by the first defendant on the ground that the will put forward is number a genuine will and the deceased Dadus mental companydition on the date he is said to have executed the will was such that he companyld number have been in a sound disposing state of mind. Further plea of the first defendant was that Kisabai was number the wife of Dadu and Sugandha was number his daughter. The trial companyrt rejected the companytention of the first defendant. It first examined the genuineness of the will. It came to the companyclusion that the will in question was a genuine will and thereafter partly relying on the recitals in the will and partly on other evidence came to the companyclusion that Kisabai was the wife of Dadu and Sugandha was his daughter. Aggrieved by the decision of the trial companyrt the first defendant went up in appeal to the High Court of Bombay. The High Court summarily dismissed the appeal with one word dismissed. The question for decision is whether the appeal raised any triable issue. If the appeal did raise any triable issue then the High Court was number justified in summarily dismissing the appeal. We have heard arguments from the companynsel for the parties. In our opinion the appeal did raise triable issues. It may be numbered that Dadu was literate but the will does number bear his signature. It purports to bear only his thumb impression. The reason given for number signing the will was that Dadu on the date he executed the will was quite old and therefore his hands were shaking and companysequently he companyld number sign the document. As Dadu is number proved to have put his thumb impression for any other document it was difficult for the first defendant to prove that the thumb impression in question was number his thumb impression. On the date the will was executed Dadu was admittedly more than 80 years old. Six witnesses are said to have attested the will. Out of them only two have been examined. One of the witnesses is Dr. Vaze. We have gone through his evidence. After going through his evidence, as well as examining the other circumstances of the case we think this is a case which the High Court should number have dismissed summarily. We will number be justified in deciding any of the companytentions urged at the bar at this stage.

ORIGINAL JURISDICTION Writ Petition No. 379 of 1972. Petition Under Article 32 of the Constitution. Sachin Choudhury, U. P. Singh, Sukumar Mitter and S. N. Choudhry, for the Petitioner. K. Nandy, for respondent No. 1. N. Sinha, Solicitor General of India, P. P. Rao and Girish Chandra for respondent No. 2. N. Mukherjee and G. S. Chatterjee, for respondent Nos. 3, 4, 8, 9, 11, 12, 15, 19, 22, 26, 31 32. The Judgment of the Court was delivered by- KRISHNA IYER, J.-A senior civil servant of the Indian Administrative Service, brought in by promotion and borne on the cadre of the Assam State number of the joint cadre of Assam Meghalaya , seeks, in this petition under Art. 32, redress of alleged infraction of his fundamental right to equality under Art. 16, vis a vis certain direct recruits. We will proceed to scan the case to see if, on the merits, this public servant has suffered a big illegal blow by disminishing his length of service, that being the companye of the companytroversy. For this reason, we are number disposed to rebuff the petitioner in limine on the preliminary objection urged by the learned Solicitor General To bar the processual doors of justice like harsh judicial janitors-if one has a right to relief-is the reluctant refuge of a Court-and that at the instance of the State, at the final stage. Stripped of details and in simple, terms, the gravamen of the petitioners grievance is that while he is eligible to be placed above serial number 34 in the I.A.S. Gradation List Annxure F , he has been illegally pitch-forked into serial number 65. His real length of service has been lopped off by denial of a companysiderable period pent in posts equivalent in status responsibility to I.A.S. cadre posts and in violation of Rule 3 3 of the I.A.S. Regulation of Seniority Rules, 1954. We will amplify this case and examine the alleged infraction of his right. The story of the Indian Administrative Service, its genesis, the sources of recruitment and kindred matters have been delienated in some detail in a case where rule 3 3 b aforesaid fell for companysideration. That is R. P. Khanna v. S., A. F. Abbas 1 . We need number go over the ground once again since the necessary rules and regulations have been fully set out in that judgment so that we will companytinue ourselves to the specific provision that needs a close look. The 1954 Cadre Rules defined cadre post to meaN any of the posts specified in item 1 of the Schedule to the Indian Administrative Service Fixation of Cadre Strength Regulations. Another term which crops up in the various rules is senior post which means. according to the Regulation of Seniority Rules, 1954, a post included and specified under item 1 of the Cadre of each State in the Schedule to the Fixation of Cadre Strength Regulations, 1955. The question of seniority as between promotees and direct recruits is companyered by r. 3 3 b of the Indian Administrative Service Regulation of Seniority Rules, 1954. The crucial rule that is decisive may be extracted to facilitate further discussion Rule 3 3 -The year of allotment of an Officer appointed to the service after the companymencement of these rules shall be Where the officer is appointed to the service by promotion in accordance with subrule 1 of Rule 8 of the Recruitment Rules, the year of allotment of the junior most among the officers recruited to the service in accordance with rule 7 of these rules, who officiated companytinuously in a Senior Post from a date earlier than the date of companymencement of such officiation by the former. Provided that the year of allotment of an officer appointed to the service in accordance with sub-rule 1 of Rule 8 of the recruitment rules who started officiating companytinuously in a senior post from a date earlier than the date on which any of the Officers recruited to the service in accordance with rule 7 of these rules, so started officiating shall be determined ad hoc by the Central Government in companysultation with the State Government companycerned. Provided further that an officer appointed to the service after the companymencement of these rules in accordance with sub-rule 1 of rule 8 of the recruitment rules shall be deemed to have been officiating companytinuously in a senior post prior to the date of inclusion of his name in the Select List prepared in accordance with the requirements of the Indian Administrative Service Appointment by Promotion regulations framed under sub-rule of rule 8 of the recruitment Rules, if the period of such officiation prior to that date is approved by the Central Government in companysultation with the Commission. 1 1972 3 S.C.R. 548. Explanation 1.-The officer shall be deemed to have officiated companytinuously in a Senior Post from a certain date if during the period from that date to the date of his companyfirmation in the Senior Grade he companytinues to hold without any break or reversion, a Senior post otherwise than as a purely temporary or local arrangement. emphasis, ours The four-fold companyponents of the year of allotment formula emerging from the cumbrous rule are a the year of allotment of the, juniormost among the officers recruited to the service by the direct method b the year from when the claimant officer officiated companytinuously in a senior post from a date earlier than the date of companymencement of like officiation by the juniormost direct recruit of the year c the promotee shall be deemed to have been officiating companytinuously in a senior post even prior to his inclusion in the select list if the period of such officiation is approved by the Central Government in companysultation with the Union Public Service Commission and d the deemed companytinuous officiation in a senior post shall have its genesis on that date from which he companytinues to hold without arty break or reversion a senior post otherwise than as a purely temporary or local arrangement. The applicant has thus four hurdles to surmount before he can WA his prior officiating service and ante-date his baptism into the IAS category. Back to the facts. The petitioner came into the Assam Civil Service, Class I, in 1949, was companyfirmed as such in 1957 and since than spiralled his way up to MI a set of responsible positions. By the end of 1961 he was included in the Select List prepared under the provisions of the I.A.S. Appointment by Promotion Regulation. 1955. Although this officer was admittedly functioning in senior positions equivalent to cadre posts reserved for IAS personnel, his actual induction into this companyeted Indian Administrative Service took place only on February 1, 1967 and his companyfirmation therein, in the Senior Scale, only a year later. The dispute centres round the claim of the petitioner to credit for alleged companytinuous officiation in his offices, equivalent to cadre posts, while fixing his date of birth into this privileged AU India Service. His official horoscope and even post-retirement prospects will very much depend on the year of entry into this close IAS preserve. The impressive set of posts occupied by the petitioner do credit to his claim. They begin with June 2, 1960 and run on without a break upto when he was regularly promoted into the IAS except for a weeks gap early in March 1966. The companytra-temps is that while rank-wise these offices are cadre posts when the petitioner filled them, numberdeclaration as demanded by the relevant rule 3 3 b had been made. This legal omission is being pressed into service by the Solicitor General to deny what in morality belongs to the petitioner. The bone of companytention is that these posts were, number formally declared equivalent to cadre posts with the Union Governments approval and service therein was insufficient to back the right set up. Moreover, there was an interregnum of a week when, on his Own showing, he was number officiating in a cadre post. A miss is as good as a mile and companytinuity means companytinuity. The short hiatus destroys the credential for seniority accumulated by long officiation. We will deal with these submissions in opposition in the background of the relevant law. The capacities in which the petitioner served Government since 1960 are catalogued by him and asserted to be factually equivalent to the post of Additional District Magistrate and in fact superior to that post. The Additional District Magistrates post is a cadre post reserved for IAS personnel. The short issue here is whether legally these various posts were declared cadre posts. They were number. We have numberdoubt that the petitioner has occupied responsible positions vis-a-vis cadre posts. Even so, the formal requirements of the rule just quoted are basic to his claim for adding special antecedent merit to pre-date his entry into the IAS. We may safely proceed on the facts affirmed in the companynter-affidavit of the Union of India since numberexception can ordinarily be, or has been, taken to that companyrse. Paragraph 3.1 of that affidavit states on a careful scrutiny of the relevant records, however, it is seen that the petitioner, Shri Anil Kumar Choudhary, was actually officiating in the number-cadre post of Additional Deputy Commissioner, United Mikar and North Cachar Hills and held the current charge of the post of Deputy Commissioner, United Mikar and North Cachar Hills. When the proposal for the appointment of Shri Anil Kumar Choudhary and the determination of his seniority was sent for the first time by the Government of Assam, under their No. AAI/56/64 dated 1st June, 1966, the Government of Assam had indicated that Shri Anil Kumar Choudhary was holding the number-cadre post of Additional District Magistrate, United Mikar and North Cachar Hills with effect from 9-12-1964 to 3-3-1966. A companyy of the proposal sent by them is given as Annexure S-II to this Supplementary Counter Affidavit. Subsequently, the Government of Assam issued orders on 19th August 1966 appointing Shri Anil Kumar Choudhary retrospectively appointing the petitioner to officiate as Deputy Commissioner, United Mikar and North Cachar Hills, with effect from the 10th December, 1964 to the 2nd March, 1966. A companyy of the said order of the Government of Assam is exhibited as Annexure S-II to this Supplementary Counter Affidavit. The plain companysequence of this denial is disastrous because the posts he had occupied in the intervening years anterior to his appointment as IAS officer are number-cadre posts and cannot, therefore, possess the sanctity which officiation in cadre-posts may have. Secondly, the rule requires, as a companydition precedent, officiation in a particular post declared as cadre post by the State Government plus approval thereof, by the Central Government. The affidavit on behalf of the Central Government has categorically stated thus From the 9th March, 1966, till the date of his appointment to the service that is 1st Feb. 1967, he held number-cadre post of Chairman, Gauhati Development Authority and Liaison Officer, Industries. His officiation in the cadre post was number approved and his officiation in the ex cadre post was number companynted for the purposes of his seniority because the ex cadre post of Chairman, Gauhati Development Authority and Liaison Officer, Industries was number declared equivalent to a Cadre post by the State Government. Hence, the date of his appointment to the Service was the relevant date for the fixation of his seniority. emphasis. ours We have already pointed out with reference to the rule in question that the declaration of equivalence has to be made by the State Government. Counsel for the petitioner rightly argues that such declaration can be made ex-post facto and there is authority of this Court for that proposition vide P. Khannas Case, supra . However, Shri Sachin Choudhary is number able to put his finger on any specific declaration of equivalence made by the State Government except to state that in the companynter affidavit by the State Government there is a statement admitting the post of Additional District Magistrate and those higher in rank claimed to have been occupied by the petitioner to be factually companyrect. Super-added is the States averment which goes in substantiation of the petitioners companytention and may well be extracted The posts mentioned in sub-paras i to v are equivalent to cadre posts of Additional District Magistrate Deputy Secretary or Settlement Officer. The post mentioned in sub-para vi is a cadre post and the posts mentioned in sub-para vii were regarded in rank, status, and responsibility as above the cadre posts of Additional District Magistrate and Deputy Secretary. These posts are equivalent to the cadre post of Deputy Commissioners or Heads of Departments post like Commissioner of Taxes and Registrar of Cooperative Societies of the I.A.S. Cadre. Could there be a declaration without a formal numberification to that effect? We think number. Governments speak and act formally and in solemn writing, number informally. In the present case numberformal declaration is found but the State Government is prepared to go to the extent of helping the petitioner with the Statement Formal declarations under Rule 9 of the A.S. Pay Rules, 1954, are number necessary when number cadre officers bold such ex cadre equivalent posts. Shri Sachin Choudhary uses this averment to companytend that the State Governments affidavit may be treated as a formal declaration of equivalence but the difficulty is that there has been an amendment of the Rules in April 1967 whereby the power of the State Government to make retroactive declarations is deleted. Moreover, as the Solicitor General points out such declaration as is found to have been made by the State has reference to the Pay Rules and number the Seniority Rules bear upon the present dispute. Another impediment companyfronting the unfortunate petitioner is that the proviso to Rule 3 3 b requires number merely the State Governments declaration regarding the posts being equal to cadre post but such officiation must be with the approval of the Central Government numbere such is forthcoming. And, indeed, the absence of such approval is the stand of the Central Government. The Solicitor General number companytent with these vital flaws points out two more shortcomings. In his submission, some of the posts occupied by the petitioner were purely temporary and this is testified by the record. And so such shortterm ad hoc officiation is insufficient. Moreover, there is a break in the officiating service of the petitioner between March 3, 1966 and March, 9, 1966. Continuity once disrupted, the claim breaks down. Service for long years companyes to numberght merely because of a weeks discontinuity. In law a short gap may prove a companytly failure. The plea that this little interval was bridged by the Joining time taken by the official may be good as an explanation for number taking charge immediately, but cannot companyer up the legal ingredient of companytinuity in service. True, on account of certain formal number-conformance with the strictness of the rules, the petitioner loses the battle, but we hope the State will have companypassionate regard to the substantial fulfillment of the qualifications for pre-dating his seniority in the IAS the rules predicate. The long but unavailing officiating experience of the petitioner may judiciously be taken into account by the State when ,promotional prospects arise, is number because the petitioner has a right but because his past should number altogether be lost. The writ petition is dismissed.

civil appeal jurisdiction civil miscellaneous petition no 641 of 1954 application for review of the judgment of this companyrt in civil appeal number 152 of 1954. c. chatterjee g. c. mathur with him for the petitioner. veda vyas s. k. kapoor and naunit lal with him for the respondent. 1954. october 18. the judgment of the companyrt was delivered by venkatarama ayyar j.-this is an application for review of the judgment of this companyrt in civil appeal number 52 of 1954. that was an appeal against an order of the election tribunal himachal pradesh simla dismissing a petition to set aside the election of the respondent to the legislative assembly himachal pradesh from the rohru companystituency. two points were raised at the hearing of the appeal before us one was that the respondent was disqualified for election to the assembly under section 17 of act number xlix of 1951 read with section 7 d of act number xliii of 195 1 by reason of the fact that he was interested in companytracts for the supply of ayurvedic medicines to the himachal pradesh government and the other that he had appointed government servants as polling agents and had thereby companytravened section 123 8 of act number xliii of 1951. on the first question we held that on a true companystruction of section 17 what would be a disqualification for election to either house of parliament under article 102 would under that section be disqualification for election to the legislatures of part c states and that the disqualification under section 7 d of act number xliii of 1951 would accordingly be a disqualification under section 17 of act number xlix of 195 1. a further companytention was then raised on behalf of the respondent that even if section 7 d were to be imported into section 17 that would number disqualify him because under that section the disqualification must be to being elected to either house of parliament and that under sections 7 and 9 of act number xliii of 1951 a companytract to operate as a disqualification to the election to either house of parliament must be with the central government whereas the companytracts of the respondent were with the government of himachal pradesh. the answer of the petitioner to this contention was that under article 239 the administration of part c states was vested in the president acting through the chief companymissioner or the lieutenant-governumber and that the contracts of the respondent with the chief companymissioner himachal pradesh must be held to be companytracts with the central government. we however disagreed with this company- tention and held that article 239 had number the effect of merging states with the central government and companyverting contracts with the states into those with the central government. in this application mr. chatterjee appearing for the petitioner invites our attention to the definition of central government in section 3 8 b ii of the general clauses act. it is as follows central governmnet shall in relation to anything done or to be done after the companymencement of the companystitution mean the president and shall include in relation to the administration of a part c state the chief companymissioner or lieutenant-governumber or government of a neighbouring state or other authority acting within the scope of the authority given to him or it under article 239 or article 243 of the constitution as the case may be. he argues that by force of this definition companytracts with the chief companymissioner of himachal pradesh must be treated as companytracts with the central government and that in consequence the respondent was disqualified for election under section 17 of act number xlix of 1951 read along with section 7 d of act number xliii of 1951. as against this mr. veda vyas for the respondent relies on the definition of state in section 3 60 b of the general clauses act which runs as follows state government as respects anything done or to be done after the companymencement of the companystitution shall mean in a part a state the governumber in a part b state the rajpramukh and in a part c state the central government. his companytention is that there being in the companystitution a fundamental distinction between the government of the union and government of the states section 3 8 of the general clauses act should be so companystrued as number to destroy that distinction and that having regard to the definition of state in section 3 60 it must be held that to the extent the central government administers part c states under article 239 its character is that of the state governments. we are unable to agree that section 3 8 has the effect of putting an end to the status of part c -states as independent units distinct from the union government under the companystitution. it merely recognies that those states are centrally administered through the president under article 239 and enacts that the expression central government should include the chief companymissioner administering a part c state under the authority given to him under article 239. section 3 8 does number affect the status of part c states as distinct entities having their own legislature and judiciary as provided in articles 239 and 240. its true scope will be clear if adapting it we substitute for the words central government in section 9 of act number xliii of 195 1 the words the chief companymissioner acting within the scope of the authority given to him under article 239. a contract with the chief companymissioner would therefore under section 9 read with section 3 8 of the general clauses act be a companytract with the central government and would operate as a disqualification for election to either house of parliament under sections 7 d and 9 of act number xliii of 1951 and it would be a disqualification under section 17 of act number xlix of 1951 for election to the legislative assembly of the state. it is argued for the respondent that this companystruction would lead to this anumberaly that whereas in the states in part a or part b a companytract with the state would operate as disqualification only for election to the state legislatures such a companytract would in part c states operate as a disqualification to be chosen both to the state legislature and to either house of parliament. that anumberaly is undoubtedly there. but the companytrary companyclusion also involves the anumberaly already pointed out that in part c states a contract with the state government is number a disqualification for election even to the state legislature as it is in parts a and b states. whatever the anumberaly in our view the proper companyrse is to give effect to the plain language of the statute. we must accordingly hold that in view of section 3 8 of the general clauses act a companytract with the chief companymissioner in a part c state is a companytract with the central government and that would be a disqualification for election to the legislative assembly under section 17 of act number xlix of 1951 read with section 7 8 of act number xliii of 1951. this companyclusion however can result in numberadvantage to the petitioner as the further finding of the election tribunal is that numbercontracts of the respondent with the himachal pradesh government were proved to have been subsisting at the material period. that finding is for the reasons already given number open to attack in this appeal and is sufficient answer to the objection that the respondent was disqualified under section 17. the second point that was argued before us in appeal was that the respondent had appointed certain government servants to act as polling agents and had thereby companymitted a major companyrupt practice under section 123 8 of act number xliii of 1951. in rejecting this companytention we observed that as an abstract proposition of law the mere appointment of a government servant as a polling agent in itself and without more is number an infringement of section 123 8 . the companyrectness of this companyclusion is number challenged by mr. chatterjee. his companytention is that having regard to the nature of the duties of a polling agent as laid down by the rules and furtfier elucidated by the instructions companytained in the election manual issued by the government the polling agent must be held to be interested in the candidate for whom he acts as polling agent and that his employment would therefore be hit by section 123 8 . examining closely the duties of a polling agent under the rules and under the election manual they can be grouped under three categories. the first category relates to the period of time antecedent to the recording of votes. the duties of the polling agent at this stage are to see that the ballot boxes are to start with empty that the names of the candidates and their symbols are companyrectly set out thereon that the slits in the boxes are in an open position that the knumbers of the slits are properly secured and that the boxes are properly bolted and sealed. these are duties which are cast on the presiding officer and the polling officers as well and as these are matters to be attended to before any recording or votes begins it is difficult to see how they -can be said to assist in the furtherance of the election prospects of any one candidate more than of any other. the second stage is when the polling is actually in progress. the duty of the polling agent at this stage is to identify the voters. rule 27 provides that when there is a doubt as to the identity of a voter the presiding officer may interrogate the voter and that be should do so if so required by a polling agent. under rule 30 it is open to the polling agent to challenge any voter on the ground that he is number the person whose name is entered in the voters list and when such objection is taken it is the duty of the presiding officer to hold an enquiry and pass an order. the object of these rules is to prevent personation and that is a matter in which the duty is cast equally on the presiding officer. rule 24 provides that the presiding officer may employ at the polling station such persons as he thinks fit to assist him-or any polling officer in identifying the electors. the work of the polling agent under rules 27 and 30 is of the same character and it cannumber in itself be said to further the election prospects of any particular candidate. the third stage is reached after the polling is over. then the boxes are to be examined with. a view to find out whether the slits are open and the seals intact the object of these provisions being to ensure that the ballot boxes had number been tampered with during the time of actual polling. then the unused ballot papers the tendered ballot papers and other material documents-are required to be put in separate packages and the polling agents have the right to seal all of them. it cannumber be said that in carrying out these duties the polling agent advances the election prospects of the candidate as they admittedly relate to a stage after the companypletion of the polling. indeed the work of the polling agent both in the first stage and in the last stage is similar in character and neither can be said to contravene section 123 8 . as regards the second stage as already stated in our judgment the duty of polling agent is merely to identify a voter and that companyld number by itself and without more be said to further the election prospects of the candidate. reliance was placed by mr. chatterjee on the following passage in parkers election agent and returning officer fifth edition at page 20- the polling agents appointed for the same candidate to attend the several polling stations at any election are engaged on the same duty and in the same interest and it is generally very desirable that they should meet under the presidency of the candidate or his election agent before the opening of the poll for the purpose of mutual discussion and companyoperation. what that passage means is that as the duty to be performed by the polling agents at the several booths is of the same character it would be desirable that they should all be assembled and their duties explained to them. this has no bearing on the question whether those duties are such as must inherently promote the election prospects of the candidate. a passage which is more in point is the one at page 18 mentioning who companyld be appointed as polling agents. it is as follows any companypetent person whether an elector or number may be appointed as polling agent provided he be number the returning officer the acting or deputy acting returning officer or an officer or clerk appointed under p.e.r. r. 27 or a partner or clerk of any of them. in this companynection it must be numbered that while section 41 of act number xliii of 1951 companytains a prohibition against the appointment of certain persons as election agents there is numbere such with reference to the appointment of polling agents under section 46 of the act.

Santosh Hegde, J. Andaman Nicobar Administration is in appeal before us against the judgment of the High Court of Calcutta dated 19.6.1995 whereby the High Court allowed the appeal filed by the respondent herein and set aside the judgment and companyviction of the Sessions Judge, Andaman Nicobar Islands in Sessions Case No. 22 of 1991 by which judgment the learned Trial Judge companyvicted the respondent for offences punishable under sections 363 and 376 2 b of the IPC, and sentenced him to undergo RI for 10 years with a fine of Rs. 2,000 for the principal offence. Brief facts necessary for the disposal of this appeal are as follows The prosecution alleges that on 21.1.1989 at about 7.30 p.m the respondent companymitted rape on PW-19 who at that time was aged about 3 1/2 years. It is the case of the prosecution that on 21.1.1989 in the evening parents of the victim i.e PW-3 and PW-9 had left the child in the custody of PW-1 while they had gone to their place of work. During the said time PW-1 with other members of family left the child in her own house and went to the house of PW-9 to watch a television programme and it is during their absence it is alleged that the respondent companymitted the offence on the child. Though according to the prosecution the child who was examined during the trial as PW-19 had immediately after the incident in question narrated the incident to PWs- 1, 4 and 9, when she was examined in the companyrt she was unable to recollect what actually transpired at the time of the incident in question. But accepting the prosecution case on circumstantial evidence the trial companyrt companyvicted the respondent herein for the offence as stated above. An appeal filed by the respondent before the High Court came to be allowed, setting aside the companyviction imposed on the respondent. The High Court came to the companyclusion that the case being one based on circumstantial evidence, the prosecution had number established all the material circumstances based on which the companyviction can be imposed on the respondent. It also numbericed the fact that the evidence of PW-1 if scrutinised carefully would indicate that she was trying to protect her brother who companyld also have been a suspect. In such circumstances, the High Court was of the opinion that it is number sale to base the companyviction in the absence of any evidence from the victim herself. In this appeal Mr. S. Wasim A. Quadri, learned companynsel appearing for the appellant, companytended that the High Court companyld number have re-appreciated the evidence which was accepted by the trial companyrt and substituted the same by its own subjective opinion. He companytended that from the medical evidence as well as from the evidence of PWs-1, 3 and 4, it is quite clear that it is the respondent who companymitted rape on the victim. He also pointed out from the evidence on record that the respondent was a resident of the same locality and he had access to this child at the relevant point of time when there was numberody else around. He also pointed out that at the relevant point of time the respondent was seen around the place of incident therefore, these circumstances companypled with the injury on the respondent were sufficient to base the companyviction which the High Court has erroneously reversed by the impugned judgment. Shri P.K. Ghosh, learned Sr. Counsel appearing for the respondent companytended that the High Court was justified in reversing the finding of the trial companyrt because a companyplete link in the chain of circumstances has number been established by the prosecution. He submitted that the judgment of the trial companyrt was based more on suspicion than on proved facts. He also companytended that the tact that respondent was found near about the house of the victim cannot be treated as a circumstance against his guilt because he is a resident of that locality like most of the prosecution witnesses and his presence in the said locality even if it is true was numberhing unusual or inculpating. He also companytended merely because there was some injury on respondent that by itself would number companyclusively prove that the respondent was responsible for the rape on the victim. Having heard the learned companynsel for the parties and perusing the records we think that the High Court was justified in companying to the companyclusion that the prosecution has number established beyond all reasonable doubt that it is the respondent who bad companymitted the rape on the victim. As companytended by the learned companynsel for the respondent that the alleged offence against the respondent has number been established by the prosecution in this case. The evidence of PWs-1, 4 and 9 by themselves would number be sufficient to companye to the companyclusion that it is the respondent who is responsible for the rape on the victim. As urged by the learned companynsel for the respondent that the judgment of the trial companyrt proceeds more on the basis of suspicion than on proved facts. As a matter of facts the respondent has pleaded an alibi which was supported by the evidence of defence witnesses examined by him which was number taken into companysideration by the trial companyrt.

Arising out of S.L.P. Crl. No. 3978 of 2006 B. Sinha, J. Leave granted. This appeal is directed against a judgment and order dated 18.4.2006 passed by the High Court of Judicature at Patna in Criminal Miscellaneous No.10432 of 2003, whereby and whereunder a companypromise between the parties was number accepted as the appellants were said to be involved in companymission of an offence under Section 384 of the Indian Penal Code, 1860. The basic fact of the matter is number in dispute. A written report was lodged on 6.9.2000 by the 2nd respondent herein alleging that on 31.8.2000 at about 5.00 p.m. some unknown persons had companye to his room No.207 at Jagat Trade Centre at Fraser Road, Patna and informed him that as a sum of Rs.1500/- was due to him, he should make the payment thereof. Allegedly, on his reply that he would make the payment only of the amount due from him as per settled accounts abusive language was used and he was slapped by one Gautam Dubey. A sum of Rs.1580/- was said to have been taken away from his upper pocket. A First Information Report was lodged on the basis of the said report after six days from the alleged date of companymission of the offence. The parties, however, arrived at an amicable settlement of their dispute. A charge-sheet was filed on companypletion of investigation on 2.2.2001 against the appellant herein purported to be for an offence under Sections 323, 384, 504 read with Section 34 of the Indian Penal Code. An application for discharge was filed by the appellant under Section 239 of the Code of Criminal Procedure, 1973, inter alia, on the premise that the disputes between the parties had been settled. The said application was rejected by the learned Judicial Magistrate on the ground that Section 384 of the Indian Penal Code being number-compoundable, the said application was number sustainable. An application filed by the appellant before the High Court under Section 482 of the Code of Criminal Procedure was dismissed by reason of the impugned judgment, relying on or on the basis of a decision of this Court in Bankat Anr. vs. State of Maharashtra 2005 1 SCC 343. Submission of Mr. Kumar Parimal, learned companynsel appearing on behalf of the appellant herein was that the High Court companymitted a manifest error in arriving at the said finding inasmuch as the First Information Report, even if given face value and taken to be companyrect in its entirety, does number disclose any offence under Section 384 of the Indian Penal Code. Section 384 provides for punishment for extortion. What would be an extortion is provided under Section 383 of the Indian Penal Code in the following terms Extortion- Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be companyverted into a valuable security, companymits extortion. A bare perusal of the aforementioned provision would demonstrate that the following ingredients would companystitute the offence The accused must put any person in fear of injury to that person or any other person. The putting of a person in such fear must be intentional. The accused must thereby induce the person so put in fear to deliver to any person any property, valuable security or anything signed or sealed which may be companyverted into a valuable security. Such inducement must be done dishonestly. A First Information Report as is well known, must be read in its entirety. It is number in dispute that the parties entered into transactions relating to supply of bags. The fact that some amount was due to the appellant from the First Informant, is number in dispute. The First Information Report itself disclosed that accounts were settled a year prior to the date of incident and the appellant owed a sum of about Rs.400-500 from Gautam Dubey. According to the said Gautam Dubey, however, a sum of Rs.1500/- only was due to him. It is in the aforementioned premise the allegations that Gautam Dubey and the appellant slapped the First Informant and took out Rs.1580/- from his upper pocket must be viewed. No allegation was made that the money was paid by the informant having been put in fear of injury or putting him in such fear by the appellant was intentional. The First Informant, admittedly, has also number delivered any property or valuable security to the appellant. A distinction between theft and extortion is well known. Whereas offence of extortion is carried out by over-powering the will of the owner in companymission of an offence of theft the offenders intention is always to take without that persons companysent. We, therefore, are of the opinion that having regard to the facts and circumstances of the case, numbercase under Section 384 of the Indian Penal Code was made out in the First Information Report. It is true that having regard to the decision of this Court in Bankat supra that the Courts would have numberpower to allow companypromise of a prosecution when the same is number permissible in terms of Section 320 of Code of Criminal Procedure. Therein it was held In our view, the submission of the learned companynsel for the respondent requires to be accepted. For companypounding of the offences punishable under IPC, a companyplete scheme is provided under Section 320 of the Code. Sub-section 1 of Section 320 provides that the offences mentioned in the table provided thereunder can be companypounded by the persons mentioned in companyumn 3 of the said table. Further, sub-section 2 provides that the offences mentioned in the table companyld be companypounded by the victim with the permission of the companyrt. As against this, sub-section 9 specifically provides that numberoffence shall be companypounded except as provided by this section. In view of the aforesaid legislative mandate, only the offences which are companyered by Table 1 or Table 2 as stated above can be companypounded and the rest of the offences punishable under IPC companyld number be companypounded. We may, however, numberice that in Badrilal vs. State of M.P. 2005 7 SCC 55 a Division Bench of this Court held as under A joint petition of companypromise has been filed on behalf of the parties in which prayer has been made for recording the companypromise. The offence under Section 307 IPC is number a companypoundable one, therefore, companypromise cannot be recorded, but at the same time it is well settled that while awarding sentence the effect of companypromise can be taken into companysideration. It has been stated that the appellant has remained in custody for a period of about 14 months and there is numberallegation that he assaulted the deceased. In the facts and circumstances of the case, we are of the view that ends of justice should be met in case the sentence of imprisonment awarded against the appellant by the trial companyrt and reduced by the High Court is further reduced to the period already undergone. We need number, having regard to the facts and circumstances, go into the aforementioned companytentious issue in the instant case, as we are of the view that numbercase has been made out for proceeding against the appellant under Section 384 of the Indian Penal Code.

Chelameswar, J. Messer Griesham GmbH, a German Company hereinafter referred to as MGG entered into a Share Purchase and Cooperation Agreement hereinafter referred to as AGREEMENT-1 with the shareholders of an Indian companypany called Goyal Gases Ltd. hereinafter referred to as GGL on 12.5.1995. By virtue of the said agreement, MGG purchased 30 of equity shares of GGL. Subsequently, MGG increased its shareholding in GGL to 49. Clause 9 of the AGREEMENT-1 reads NON-COMPETITION CLAUSE GGL and all Goyal Group companypanies will companyperate in the Indian market with right to first refusal basis with MGG and will number for the duration of this companyperation support in any way directly or indirectly - the activities of MGGs companypetitors with regard to gas business. MGG will give written information to GGL about every business opportunity it plans to take in the Indian market in regard to industrial gases and related business and GGL may decide if it wants to participate in it right of first refusal . In case GGL does number within a period of two months after receiving MGGs numberice declare in writing that it is willing and able to participate in the planned business, MGG is free to proceed with this business on its own. However, MGG will give due companysideration to the interest of GGL being its group companypany. Such new business which MGG undertakes should be business of gas supply of few major dedicated customers only and number to general market supply. In a companypany known as BOMBAY OXYGEN CORPORATION LIMITED hereinafter referred to as the BOCL majority shares were companylectively held by a group of persons known as RUIAS we understand that they belong to one family . On 23.6.1997, MGG entered into another Share Purchase Agreement hereinafter referred to as AGREEMENT -II with RUIAS. By the said agreement MGG agreed i to purchase 45001 shares of BOCL from RUIAS, and also to acquire another 30000 shares of BOCL from the open market which would make MGG the majority shareholder of BOCL creating a companytrolling interest . Clause 6.1 of AGREEMENT-II reads 6.1 Right of First Refusal With effect from the date this Agreement becomes effective, neither party shall sell any shares in the Company held or acquired by it without first, offering the Shares to the other party. The offer shall be in writing and shall set out in the price and other terms and companyditions. If the offeree does number agree to purchase the Shares so offered the offerer shall be free to sell the Shares to any person other than a companypetitor of the offeree , but at the same price and on the same terms as offered to the offeree. This right of first refusal does number apply to any sale of shares by the purchaser to a companypany of the Hoechst Group. In a companypany directly or indirectly companytrolled by or under direct or indirect companymon companytrol with the Hoechst Group. For the purposes of this definition companytrol means ownership, directly or indirectly or more than 50 percent of the issued and outstanding voting stock or ownership interest of the Company. Pursuant to the AGREEMENT-II, MGG made a public announcement on 27.6.1997 disclosing its intention to acquire 30000 shares of BOCL from public as required under Chapter-III of the Securities and Exchange Board of India Substantial Acquisition of Shares and Takeovers Regulations, 1997 hereinafter referred to as the REGULATIONS 1997 framed in exercise of the powers companyferred by Section 30 of the Securities and Exchange Board of India Act, 1992 hereinafter referred to as the SEBI Act GGL protested in writing against the attempt of MGG to independently acquire shares of BOCL saying that it would amount to breach of Clause 9 of the AGREEMENT-I. Some companyrespondence took place between both the Companies in this regard. Eventually, both the Companies entered into AGREEMENT-III on 8.11.1997 whereunder it was agreed that out of 75001 shares of BOCL to be acquired by MGG under AGREEMENT-II, 50000 shares will be acquired in the name of GGL and only 25001 will be acquired in the name of MGG. RUIAS came to know of the AGREEMENT-III. By their letter dated 5.5.1998 they informed MGG that they were number agreeable for the proposal of MGG and GGL jointly purchasing the shares of the BOCL. In view of the said development, MGG informed GGL on 7.5.1998 that MGG was terminating AGREEMENT-III. Thereafter, MGG proceeded to acquire 75001 shares of the BOCL on its own and paid an amount of Rs.13.5 crores to the RUIAS towards the value of 45001 shares. SUIT-I IN THE HIGH COURT OF DELHI by GGL etc. On 26.8.1998, GGL filed a Civil Suit No.1810/98 hereinafter referred to as SUIT-I in the High Court of Delhi against MGG for the enforcement of Clause 9.1 of AGREEMENT-I and for other reliefs Cancel the letter of offer dated 6.8.1998 made by the defendant for 20 equity shares of Bombay Oxygen Corporation Ltd. and or Cancel the share purchase agreement dated 23.6.1997 whereby the defendant has sought to purchase 30 1 equity shares of Bombay Oxygen Corporation Ltd. and or A decree of permanent injunction restraining the defendant from taking any steps in pursuance of the letter of offer dated 6.8.1998 for 20 equity shares of Bombay Oxygen Corporation Ltd. and the share purchase agreement dated 23.6.1997 for purchase of 301 equity shares of Bombay Oxygen Corporation Ltd. in violation of the number-competition clause of the agreement dated 12.5.1995 and or A decree of permanent injunction restraining the defendant from acquiring any shares in Bombay Oxygen Corporation Ltd. on its own and without the participation of plaintiff. On 14.9.1998, GGL filed two applications seeking certain interim orders. A. No.7248 of 1998 in the SUIT-I invoking Order 39 Rule 12 of the Code of Civil Procedure, 1908 hereinafter referred to as CPC and OMP No. 205 of 1998 invoking Section 9 of the Arbitration Conciliation Act, 1996 hereinafter referred to as AC Act . Interestingly the relief sought in both the applications is substantially the same i.e., interim order restraining the MGG from acquiring the shares of BOCL on its own. The learned trial Judge dismissed both the applications by two separate orders dated 22.9.1998. GGL carried the matter in intra companyrt appeals. By the appellate order dated 23.10.1998, a Division Bench of the Delhi High Court restrained1 MGG from acquiring the shares of the BOCL. Aggrieved by the same, MGG moved this Court in Civil Appeal Nos. 728 and 729 of 1999. This Court by an interim order dated 18.12.1998 ordered as follows- Meanwhile, it will be open to the Petitioner M s Griesheim GMBH to make payment for purchasing 10,000 sic 30,000 shares from the public and also to take delivery of these shares but they shall number take further steps for the purpose of getting their names registered as shareholders in respect of these shares. Respondent No. 1 Goyal MG Gases Ltd is directed to numberinate its Arbitrator within a period of two weeks from today and take appropriate steps to pay the full fees and it shall also file its claims statement within one week thereafter. By a final order dated 8.2.1999, the said appeals were disposed- Earlier by our order dated 18.12.98, we had permitted the appellant to make payment to the shareholders. The payment having been made number custody of those shares is with the appellant. Bombay oxygen wants to borrow money from a bank and the appellant wants to be a guarantor on the strength of those shares and for that reason it wants an order of this companyrt permitting it to do so. We are told that two Arbitrators have already been appointed and the third Arbitrator will be appointed within a short time. After companysidering the rival submissions, we think it proper to pass the following order It will be open to Messer Griesheim Gmbh the appellant to part with those shares and keep them in custody of the companycerned bank for the purpose of entering into such a financial arrangement. It is, however, made clear that so far as the question of registration and ownership of shares is companycerned that will have to be decided by the Arbitrators. It will be open to the parties to approach the Arbitrators for obtaining interim relief in that behalf. Since the erstwhile owners of the shares have been paid their dues, they have ceased to be owners of those shares and the beneficial interest in them number vests in Messer Griesheim Gmbh or in Messer Griecheim Gmbh and Goyal HG gases Limited jointly if the Arbitrators so decide. We direct that all the disputes between the parties including the right to represent on the board of Bombay Oxygen will number have to be decided by the Arbitrators. If any necessity arises to approach this companyrt, it will be open to the parties to do so. Till any order to the companytrary is passed by the Arbitrators, our order dated 22.1.99 will companytinue to operate. The appeals are disposed of accordingly. The petitioner hereinafter referred to as MHL in SLP C Nos.33429- 33434 of 2010 on hand is a companypany incorporated in British Virgin Islands on 20.01.2000 by MGG and another companypany known as Morgan Trade and Commerce which is a 100 owned subsidiary of GGL. The authorised share capital of MHL is 10,000,000 DM currency of Federal Republic of Germany divided into 10,000,000 shares. It has two Directors, one representing MGG and the other Morgan Trade and Commerce. Interesting feature of MHL is that the shares of this companypany are bearer shares. It is an admitted case of all the parties that the law of British Virgin Islands permits it. MGG and GGL entered into a settlement2 of their dispute evidenced by two documents dated 17.02.2000 and 13.3.2000 pursuant to which MGG filed two applications I.A.s 17 18 of 2000 in Civil Appeals No.728-729 of 1999, which had already been disposed of on 8.2.1999, praying that a permit the said 75001 shares to be transferred and registered in the name of Messer Holdings Ltd. and permit companyplete rights attached to these shares to be enjoyed by Messer Holdings Ltd. pending registration of transfer of shares and permit numberinees to be appointed as Directors on the Board of Bombay Oxygen Corporation Ltd. in accordance with law b direct that period from 23rd October, 1998 to date of order passed in this application will be excluded in companyputing the period prescribed under Section 108 1A of the Companies Act, 1956 for the validity of the transfer deeds. Pass such further order orders as this Honble Court may deem fit and proper in the facts and circumstances of the present case. However, when the said I.As were taken up by this Court on 20th April, 2000, this Court ordered Learned companynsel for the applicant and respondent Nos.1 and 2 state that dispute which was sought to be referred to the Arbitrator has been settled between them. In view of this they want to move appropriate application to withdraw from the arbitration proceedings. They seek time for the purpose. List the matter on 5.5.2000. The only inference we can draw is that the prayers in I.As 17 18 of 2000 were number pressed3. Interestingly, after seeking this Courts permission to withdraw from the arbitration proceedings initiated earlier, MGG and GGL filed a joint application before the arbitral tribunal on 9.8.2000 requesting the arbitral tribunal to pass a companysent award. On such an application, the ICC Arbitral Tribunal passed a companysent award on 21.9.2000, the operative portion of which reads as follows NOW THEREFORE the tribunal hereby makes the following award by companysent of the parties in terms of the Joint Application set out in Annexure I hereto, which shall form part of this Award 1 a The 75001 shares of Bombay Oxygen Corporation Limited BOCL purchased by the Respondent at a price of Rs.22.5 crores shall be held and registered in the name of Messer Holdings Ltd. MHL however, for technical and procedural reasons the shares will first be registered in the name of the respondent and immediately thereafter the said shares will be registered in the name of MHL as mentioned in para 2 of the Joint Application. Complete rights attached to the 75001 shares of BOCL qua the BOCL as well as transferos transfer sic of the shares to the Respondent even pending registration in the name of the Respondent and or in the name of MHL will be henceforth exercised by the Respondent through MHL who will act for and on behalf of the Respondent. MHL will be authorised by Messer Griesheim Gmbh MCG to delegate all or any of its powers mentioned above, including the rights but number limited to attending general meetings of share holders of BOCL and to vote therein and deciding and appointing numberinees to be appointed as directors on the board of BOCL. Pursuant to the companysent award, sometime in the month of May 2000 MGG handed over the shares certificate of 75001 shares of BOCL to MHL alongwith duly filled transfer forms4 and a power of attorney. We are given to understand that the SUIT-I is eventually withdrawn by GGL. It is necessary to mention here that by that time RUIAS had already filed on 28.4.1999 a suit inter alia against both MGG and GGL in the High Court of Bombay. SUIT- II IN THE HIGH COURT OF BOMBAY BY RUIAS ETC. On 28.4.1999, RUIAS filed a Suit No.2499/1999 before Bombay High Court hereinafter referred to as SUIT-II in substance seeking enforcement of clause 6.1 of the AGREEMENT-II. a 1 i that it be declared that the negative companyenant companytained in Clause 6.1 of the agreement dated 23rd June 1997 being Ex. B hereto is binding on the Defendants a 1 ii b that the Defendants by themselves their agents and servants be restrained by a perpetual order and injunction of this Honble Court from companymitting breach of clause 6.1 of the Agreement dated 23rd June, 1997 being Ex. B hereto transferring or selling or alienating the legal and or beneficial interest in the shares of Defendant No. 2 including those mentioned in Ex. A hereto without first offering the same to the Plaintiffs in terms of Clause 6.1 of the Share Purchase Agreement dated 23rd June 1997, being Ex. B hereto. obtaining any award, decree order from any forum or companyrt in violation of clause 6.1 of the Share Purchase Agreement dated 23rd June 1997 being Ex. B hereto. making any claim before the Arbitrators or any companyrt which if granted will amount to a breach or violation of the provisions of Clause 6.1 of the said Share Purchase Agreement dated 23rd June 1997, being Ex. B hereto procuring any breach of the provisions of clause 6.1 of the said Share Purchase Agreement dated 23rd June, 1997 being Ex. B hereto In the said Suit, RUIAS filed an application Notice of Motion No.1804 of 1999 praying that MGG and GGL be restrained from companymitting breach of Clause 6.1 of AGREEMENT-II. By an interim order dated 6.5.1999, MGG and GGL were injuncted from companymitting breach of Clause 6.1 of AGREEMENT-II. MGG filed an affidavit in the said application undertaking that it would number breach Clause 6.1 of AGREEMENT-II. By an order dated 29.2.2000, Bombay High Court disposed of the said application recording the undertaking filed by MGG with a further direction that MGG and GGL number to implement or enforce any award made by the arbitrators without obtaining the leave of Bombay High Court- The parties have agreed that for disposing of this motion in the following terms, numberreasons are necessary to be recorded. Defendant No.1 stated that defendant No.1 is willing to and shall abide by clause 6.1 of the agreement dated 23rd June 1997. Statement accepted. In view of the statement made by defendant No.1, the following interim order is passed against defendant No.1. Interim Order in terms of prayer a i .5 Defendant No.1 and 3 shall number act pursuant to implement or enforce any award made by the arbitrators without first obtaining the leave of the companyrt and the companyrt will companysider the agreement between the plaintiffs and defendant No.1. The aforesaid order is made without prejudice to the rights, claims and companytentions of the parties. The Notice of Motion is accordingly disposed off. It is clarified that the parties are at liberty to adopt appropriate proceedings to enforce their respective rights. Parties to number numbere - sic on a companyy of this order duly authenticated by the associate of the Court. By a letter dated 31st May 2000, RUIAS intimated MGG and reiterated on 1st June 2000, that AGREEMENT-II was terminated. Because according to RUIAS establishment of MHL and the transfer of 75001 shares of BOCL to MHL tantamounted to breach of clause 6.1 of AGREEMENT-II. After obtaining the companysent award on 21.9.2000, MGG filed an application Notice of Motion No.2933/2000 before the Bombay High Court in SUIT-II seeking leave of the Court to implement and enforce the companysent award. SUIT- III IN THE HIGH COURT OF BOMBAY On 5.2.2001, RUIAS filed second Suit bearing No.509 of 2001 hereinafter referred to as SUIT- III before the Bombay High Court praying a for a declaration that the Share Purchase Agreement dated 23rd June 1997 is liable to be rescinded b for an order of this Honble Court directing the said Share Purchase Agreement dated 23rd June 1997 be rescinded c that in the alternative to prayers a and b above, for a declaration that the Share Purchase Agreement dated 23rd June 1997 was voidable and has been validly avoided by the Plaintiffs d that in the alternative to prayers a , b and c above, for a declaration that the Share Purchase Agreement dated 23rd June 1997 was terminable by the Plaintiffs and has been validly terminated by the Plaintiffs. e that in the alternative to prayers a , b , c and d above, for a mandatory order and direction by this Honble Court directing the 1st Defendant to offer the said 75,001 shares to the Plaintiffs in accordance with the procedure prescribed in Clause 6.1 of the Share Purchase Agreement dated 23rd June 1997. f for a declaration that the acquisition of the said 30,000 shares pursuant to the Public offer is illegal, unlawful, null and void and of numberlegal effect whatsoever g for a declaration that the said Agreement dated 17th February 2000 and the said Consent Award dated 21st September 2000 are number binding on the Plaintiffs and or Defendant No.2 and or that the same are illegal, null and void. h for a permanent injunction restraining the defendant No.1,3 and 4 from acting in pursuance of the Share Purchase Agreement dated 23rd June 1997 exercising any rights in respect of the said 75,001 shares in particular voting rights in companynection therewith and or from receiving any dividends, rights in respect of the same exercising any rights including its beneficial ownership in, to, upon or in respect of the said 75,001 shares. i that the Defendants be restrained by permanent order and injunction of this Honble Court from transferring and or registering and or taking any steps to transfer and or register the said 75,001 shares in the name of any person or persons, firm or body companyporate including 1st and or 3rd and or 4th Defendants without the companysent of the Plaintiffs j that the 1st defendant be ordered and decreed to deliver return to the respective plaintiffs the said 45,001 shares together with all accretions thereto from 23rd June 1997 on such terms as this Honble Court directs k for the purpose aforesaid the 1st defendant be ordered and decreed to do and perform all acts, deeds, matters and things and to execute all documents, deeds and writings in furtherance thereof. In the said suit, RUIAS filed an application Notice of Motion No. 392 of 2001 in substance seeking an injunction against MGG and GGL along with MHL either from transferring the 75001 shares of BOCL in favour of MHL or from exercising rights as beneficial owners of the said shares. In the said suit, MHL filed an application Notice of Motion No.534 of 2002 on 21.2.2002 seeking appointment of an administrator and receiver for the administration of the assets of BOCL on the ground that RUIAS are causing substantial damage to the assets of BOCL. SUIT-II was amended from time to time on three occasions pursuant to the orders of the Bombay High Court dated 22.02.2000, 04.10.2002 and 08.06.2011. The prayer in SUIT-II after such Amendments Rider-I a a i For a declaration that the acquisition of the said 30,000 shares pursuant to the public offer is illegal, null and void ab-initio and of numberlegal effect whatsoever. For a permanent order and injunction restraining the defendants from exercising any rights in respect of the said 30,000 shares including and in particular voting rights. b i for a declaration that the said agreement dated 23rd June, 1997 Exhibit B hereto stands validly terminated and or avoided. Rider-N Prayer b ii a b ii a that it be declared that Defendant Nos. 3 to 5 have numberright, title or interest of any nature whatsoever in respect of the 75001 shares of Defendant No. 2 Rider O prayer b ii b b ii b , that in the alternative to prayer b ii this Honble Court be pleased to order and direct the Defendant Nos. 1 and 3 to 5 to deliver to the respective Plaintiffs 45001 shares of Defendant No. 2 as also to return to the respective members of the public the 35000 shares that the 1st defendant Nos. 1, 3, 4 and 5 be ordered and decreed to deliver return to the respective plaintiffs the said 45,001 75,001 shares together with all accretions thereto from 23rd June, 1997 on such terms as this Honble Court directs. for the purpose aforesaid the Ist defendant Nos. 1, 3, 4 and 5 be ordered and decreed to do and perform all acts, deeds, matters and things and to execute all documents, deeds and writings in furtherance thereof. Rider-P prayer b iii a b iii a , that in the event of the Defendant Nos. 1 and 3 to 5 failing to deliver to the Plaintiffs the said 75001 shares of Defendant No. 2 the same be cancelled and Defendant No. 2 be ordered and directed to issue duplicate shares in the name of the Plaintiffs for a permanent order and injunction restraining the defendants from transferring and or registering and or taking any steps to transfer and or register the said 75,001 shares in the name of any person or persons, firm or body companyporate including the 1st and or 3rd and or 4th defendants without the companysent of the plaintiffs. for a permanent order and injunction restraining defendant number. 1, 3 and or 4 and 5 from exercising any rights, including as beneficial owner, in, to, upon, or in respect of the said 75,001 shares. a 1 i In the alternative and in the event of prayer b number being granted that it be declared that the negative companyenant companytained in Clause 6.1 of the agreement dated 23rd June 1977 being Ex. B hereto is binding on the Defendants a 1 ii b that the Defendants by themselves their agents and servants be restrained by a perpetual order and injunction of this Honble Court from. companymitting breach of clause 6.1 of the Agreement dated 23rd June, 1977 being Exh. B hereto transferring or selling or alienating the legal and or beneficial interest in the shares of Defendant No. 2 including those mentioned in Ex. A hereto without first offering the same to the Plaintiffs in terms of Clause 6.1 of the Share Purchase Agreement dated 23rd June 1997, being Exh. B hereto. obtaining any award, decree order from any forum or companyrt in violation of clause 6.1 of the Share Purchase Agreement dated 23rd June, 1997 being Ex. B hereto. making any claim before the Arbitrators or any companyrt which if granted will amount to a breach or violation of the provisions of Clause 6.1. of the said Share Purchase Agreement dated 23rd June 1997, being Ex. B hereto procuring any breach of the provisions of clause 6.1 of the said share Purchase Agreement dated 23rd June, 1977 being Ex. B hereto Rider-C b1 a In the alternative and in the event of prayer b number being granted and In the event of it being held that the said agreement is void defendant Nos. 1, 4 and 5 be ordered and decreed to deliver return to the respective Plaintiffs the said 45001 shares together with all accretions thereto from 23rd June 1977 on such terms of this Honble Court may direct. For the purpose aforesaid defendant Nos. 1, 4 and 5 be ordered and decreed to do and perform all acts, deeds, matters and things and to execute all documents, deeds and writings in furtherance thereof. It appears that on 5.12.2002, RUIAS and MGG entered into a settlement evidenced by an agreement in writing of the disputes between them by allegedly rescinding the AGREEMENT-II. According to MHL, the terms of settlement were number made known to either MHL or GGL for a long time. The information regarding the agreement dated 5.12.2002 initially came to the knowledge of MHL allegedly from the website of Security Exchange Commission of United States. The relevant portion of the settlement reads as under- In the circumstances, MGG and the Ruias have agreed to fully and finally settle all their disputes and differences by rescinding the Ruia Agreement on the terms and companyditions set forth in this Agreement. However, MGG is number in a position to return to the Ruias the share certificates and other relevant documents for the 45,001 shares of BOCL which is the subject matter of the Ruia Agreement as they are number in MGGs possession. MGG has numberknowledge of the current whereabouts of the said share certificates and other documents pertaining to the 45,001 shares and is number in a position to secure return delivery of the same. As MGG is numberlonger interested in acquiring any shares in BOCL, as a further part of the settlement, it is hereby agreed that MGG hereby sell reverts transfers divests in favour of the Ruias all its right, title and interest in the remaining 30,000 shares in BOCL which MGG had acquired from the public, but which has also number been registered in the name of MGG in the records of BOCL. However, MGG has numberknowledge of the current whereabouts of the share certificates and other documents / pertaining to the 30,000 shares and is number in a position to secure return delivery of the same. In companysideration for the foregoing, Ruias agree to pay MGG a sum of US 154,642 in respect of the 75,001 shares of BOCL, without any other or further obligation whatsoever on the part of MGG to the Ruias except as provided in this Agreement. The Ruias shall also number have any further obligation to MGG except as provided in this Agreement. The parties agree that MGG do hereby fully and irrevocably revert sell, transfer and assign all its beneficial right, title and interest in or in relation to the said 75001 shares in favour of Ruias and shall, at the companyt and expense of Ruias, execute and companytinue to execute such instruments, documents, authorities etc., as may be necessary or expedient in companynection therewith and shall refrain from doing anything inconsistent with the foregoing or the rights reverted assigned transferred as above on and from the date of execution hereof. To this end and purpose, an irrevocable Power of Attorney duly executed as per draft enclosed herewith as Annexure I shall be put in escrow with Ms. Lira Goswami, Advocate. Ms. Lira Goswami shall hand over the Power of Attorney to the Ruias in accordance with written escrow instructions agreed to by Ruias and MGG. 11 a The parties companyfirm and acknowledge that as the foregoing 45,001 shares of BOCL have number been registered in the name of MGG in the records of BOCL, the said shares companytinue to be registered in the names of the Ruias. Consequently, the rescission of the Ruia Agreement does number involve any transfer from MGG to the Ruias in the books of BOCL as the Ruias companytinue to be the registered shareholders. Nevertheless, if any permission, approval or numberification is required under Indian law for implementing this Agreement, including without limitation, the permission of the RBI for making the payment of US 154,642, the Ruias shall be solely responsible and liable for obtaining all such necessary approvals or permissions or for making the necessary filings numberifications, at the sole companyt and expense of the Ruias. Similarly, the parties companyfirm and acknowledge that the foregoing 30,000 shares of BOCL have also number been registered in the name of MGG and companytinue to be in the name of the Indian public shareholders. Consequently, Ruias will be solely responsible for doing all acts, deeds and things that may be necessary for effecting the transfer of these shares from the currently registered shareholders to the Ruias at the sole companyt and expense of the Ruias. On execution of this Agreement, Ruias agree a number to prosecute the following proceedings pending in the Bombay High Court and in Supreme Court of India against MGG or its affiliates or its directors, officers or employees excluding MHL and Goyal MG Gases Ltd. but including directors numberinated by MGG on the Board of MHL and or Goyal MG Gases Ltd. Civil Suit No. 2499 of 1999 titled Shyam Madan Mohan Ruia Ors. Vs. Messer Griesheim GmbH Ors. Civil Suit No. 509 of 2001 titled Shyam Madan Mohan Ruia Ors. Vs. Messer Griesheim GmbH Ors. In spite of the said agreement, the existence of which is number in dispute number . RUIAS number only companytinued with SUITS II and III, but also amended the Suit-II on 08.06.2011. On 4.2.2008, BOCL executed a Development Agreement in favour of another companypany known as HDIL granting development rights in respect of three pieces of immovable properties admeasuring 15317.77 sq. mtrs., 3513.70 sq. mtrs. and 47762.20 sq. mtrs. of land situated at Kurla Taluk of Maharashtra allegedly owned by BOCL. The next day BOCL informed the Bombay Stock Exchange about the abovementioned development agreement. On 26.3.2008, HDIL mortgaged the abovementioned property in favour of the Union Bank of India for securing a term loan of 230 crores. On 8.4.2008 MHL filed a Notice of Motion No. 1418 of 2008 in Appeal No. 855 of 20036 seeking an injunction against the parties to the abovementioned Development Agreement along with various other reliefs the details of which are number necessary for the present . By an order dated 30th April, 2008, a Division Bench of the Bombay High Court while adjourning the hearing of the said Notice of Motion recorded the undertakings on behalf of the HDIL that it will number claim any equity whatsoever in the event of MHLs success in the above-mentioned Notice of Motion and demolish the companystruction, if any, made during the pendency of the proceeding by the HDIL. It was also stated by them that the property which was the subject matter of the Development Agreement had already been mortgaged in favour of the Union Bank of India, however, undertook number to create any 3rd party rights in the said property. Aggrieved by the said order, MHL filed SLP No. 12734 of 2008 in this Court on 8.5.2008. By an Order dated 16.5.2008, this Court, while issuing numberice on the said SLP granted an order of status quo regarding the nature, title, etc. of the property in dispute. By an Order dated 23.6.2008, the said SLP was disposed of directing that the status quo order granted earlier on 16.5.2008 shall companytinue during the pendency of the Notice of Motions and appeals before the High Court of Bombay. SUIT-IV On 23.4.2008, MHL filed Suit No.2410 of 2008 hereinafter SUIT-IV against BOCL, RUIAS, HDIL etc. seeking various reliefs including a declaration of ownership of 75001 shares of BOCL etc. That this Honble Court be pleased to declare that the Plaintiff is the beneficial owner of the suit shares being 75001 shares in the 1st Defendant companypany, more particularly described in the schedule annexed as Exhibit A hereto and is entitled to legal ownership thereof That the Defendant Nos.1 to 10 be directed by a mandatory order and injunction of this Honble Court to carry out all acts, deeds and things and extend all companyperation necessary to secure registration of the suit shares aggregating to 75001 shares in the 1st Defendant Company, more particularly described in Exhibit A hereto in the name of the Plaintiff That this Honble Court be pleased to declare that the purported reversion transfer of the suit shares being 75001 shares in the 1st Defendant Company, more particularly described in the schedule annexed as Exhibit A hereto by Defendant No.10 to Defendant number.2 to 9 under the purported Agreement dated 5th December, 2002 is illegal, null and void and of numberlegal effect That this Honble Court may be pleased to direct Defendant Nos.2 to 9 and 10 to deliver up the that the said Agreement dated 05.12.2002 at Ex CC for cancellation and this Honble Court be pleased to cancel the same That this Honble Court be pleased to issue an Order and injunction restraining Defendant Nos.2 to 10 from exercising any rights whatsoever in respect of the 75001 suit shares more particularly described in the schedule annexed as Exhibit A hereto as also from representing to the public at large that they are owners of the suit shares or have any beneficial interest therein That this Honble Court be pleased to declare that the purported Development Agreement dated 4.2.2008 Exhibit MM hereto and both the powers of attorney dated 05.02.2008 Exhibit NN OO thereto and any other documents or acts in pursuance thereof are illegal, null and void and of numberlegal effect That this Honble Court be pleased to direct the Defendants Nos.1 to 10 and 12 to deliver up the Development Agreement dated 04.02.2008 Exhibit MM hereto along with the powers of attorney dated 05.02.2008 Exhibit NN OO hereto are illegal, null and void and of numberlegal effect for cancellation and this Honble Court be pleased to cancel the same That this Honble Court be pleased to declare that the purported mortgage Deed dated 23.3.2008 at Exhibit XX hereto said to have been created by Defendant No.12 in favour of Defendant No.13 is illegal, null and void and of numberlegal effect That this Honble Court be pleased to direct Defendant Nos.1 to 10, 12 and 13 to deliver up the said deed of mortgage dated 23.3.2008 at Exhibit XX hereto or cancellation and this Honble Court be pleased to cancel the same That this Honble Court be pleased to Order and decree Defendant number.2 to 10 to jointly and severally pay to the Plaintiff, damages companypensation in the sum of Rs.500 crores as per the Particulars of Claim annexed herewith as Exhibit ZZ along with interest thereon at the rate of 18 per annum from the date of the suit till payment and or realisation We understand that numbere of the defendants have filed their written statements and numberissues are framed so far. It is in the background of the above-mentioned litigation these SLPs are to be examined. SLP C Nos. 33429-33434 of 2010 is filed by MHL with prayers Grant special leave to appeal under Article 136 of the Constitution of India against the impugned Final Judgment and Order dated 1.9.2010 passed by the Honble High Court of Judicature at Bombay in Appeal No. 855 of 2003 in Notice of Motion No. 534 of 2002 in Suit No. 509 of 2001 with Notice of Motion No. 1308 of 2005, Notice of Motion No. 3956 of 2005, Notice of Motion No .4118 of 2007, Notice of Motion No. 1973 of 2008, Notice of Motion No. 1418 of 2008 and Pass such other order or orders as this Honble Court may deem just and proper in the facts and circumstances of the case. SLP C Nos.23088-23090 of 2012 is filed by GGL with prayers a grant Special Leave to Appeal against the impugned order dated 01.09.2010 passed by the Honble High Court of Bombay in Appeal Nos. 840 of 2003, 841 of 2003 and 857 of 2003, whereby the Honble High Court was pleased to dismiss the appeals filed by the Petitioner Company and uphold the order dated 26.03.2003 passed by the Ld. Single Judge in Notice of Motion Nos. 3230 of 2000, 1231 of 2003 in Suit No. 2499 of 1999 and 392 of 2001 in Suit No. 509 of 2001 and pass such other and further orders as this Honble Court may deem just and proper in the facts and circumstances of the present case. Both the sets of SLPs are filed aggrieved by the companymon order of a Division Bench of Bombay High Court dated 01.09.2010 in Civil Appeals No. 855/2003, 840/2003, 841/2003 and 857/2003. Civil Appeal 855/2003 was filed by MHL and the other three appeals were filed by GGL. All the four appeals alongwith the various Notice of Motions were dismissed with companyts7. The subject matter of appeal No.855/203 is the order of the Single Judge in Notice of Motion 534/2002 in SUIT-III. In the said Appeal, five Notice of Motions were filed. They are 1308/2005, 3956/2005, 4118/2007, 1973/2008 and 1418/2008 seeking various reliefs. The subject matter of appeals number840, 841 and 857 of 2003 is order dated 26.03.2003 of the Single Judge in Notice of Motion Nos.3230/2000 1231/2003 in SUIT-II and Notice of Motion No.392/2001 in Suit III. Both the abovementioned Suits were filed by RUIAS. SUIT-I is admittedly withdrawn, therefore, any order passed during the pendency of the said suit by any companyrt including this Court in any proceeding arising out of the said suit automatically lapses with the withdrawal of the suit. A logical companysequence flowing from such lapsing of the orders is that any act or omission of any party to the said suit, either in pursuance of or in obedience to such interlocutory orders would be without any legal efficacy. SUITS II and III filed by the RUIAS are pending as of today. The substance8 of SUIT-II is that RUIAS do number want MGG to transfer any of the shares of BOCL acquired by MGG pursuant to AGREMEENT-II in favour of either GGL or MHL or any other person without first offering them to RUIAS. Such a transfer in the opinion of RUIAS would be in violation of Clause 6.1 of the AGREEMENT-II. Coming to SUIT-III, RUIAS want to wriggle out of the AGREEMENT-II and therefore, the various alternative prayers in substance seeking to nullify the acquisition of 75001 shares by MGG under AGREEMENT-II9. They also rely upon the events subsequent to 23.06.1997 - transactions between GGL and MGG etc. and seek various prayers which are already numbericed10. Having filed SUIT-III, RUIAS once again amended the SUIT-II enlarging the scope of the Suit. Whether such amendments are legally tenable or number is a question to be examined from the point of view of the principles governing the law on the question of joinder of causes of action etc. Apart from that the companytinuance of the SUIT-II and SUIT-III simultaneously raises too many questions regarding their maintainability. However, in our view, such questions need number be examined because RUIAS and MGG entered into an agreement dated 05.12.2002 the gist of which is numbericed earlier at para 20 supra . By the said agreement, RUIAS also agreed number to prosecute SUITS-II and III insofar as the suits pertain to MGG or its affiliates. etc. a number to prosecute the following proceedings pending in the Bombay High Court and in Supreme Court of India against MGG or its affiliates or its directors, officers or employees excluding MHL and Goyal MG Gases Ltd. but including directors numberinated by MGG on the Board of MHL and or Goyal MG Gases Ltd. Civil Suit No.2499 of 1999 titled Shyam Madan Mohan Ruia Ors. v. Messer Griesheim GmbH Ors. Civil Suit No.509 of 2001 titled Shyam Madan Mohan Ruia Ors. v. Messer Griesheim GmbH Ors. As a matter of fact, during the companyrse of hearing of these SLPs also, both RUIAS and MGG supported the case of each other in opposing these SLPs filed by MHL and GGL. As a companysequence of the settlement dated 5.12.2002, RUIAS claim title in 75001 shares of BOCL through MGG. We have already numbericed, the said 75001 shares were initially acquired by MGG from RUIAS and the public under AGREEMENT-II. But, so far the names of RUIAS are number entered in the registers of BOCL as the holders of the share because of the various interim orders mentioned earlier. However, GGL and MHL dispute the title of MGG to the said 75001 shares. According to GGL and MHL, by the settlement dated 5.12.2002 MGG had itself lost its title over the said shares as it had already transferred its title in the said shares in favour of MHL pursuant to the companysent award dated 21.9.2000. The existence of title in MGG in the said 75001 shares cannot be disputed by either GGL or MHL, at least, till the date of the companysent award, i.e. 21.9.2000 because GGL and MHLs claim for title over the said shares flows from MGGs prior title and the subsequent alleged transfer pursuant to the companysent award. In such a case, because of MGGs purported transfer of the title in the 75001 shares to RUIAS under the settlement dated 5.12.2002, RUIAS should numbermally be entitled to have their names entered into the records of BOCL as holders of the said shares by following appropriate procedure. If either GGL or MHL is objecting to the right of MGG to effect the said transfer in favour of RUIAS, they must establish a superior title to MGG in the said shares. It goes without saying that it can be done only in some legal action initiated by either GGL or MHL or both jointly. But they cannot seek a declaration of their title in the SUITS-II and III filed by the RUIAS. In a bid to establish their title MHL filed SUIT-IV11. The right of MHL, if any, will have to be decided in the said Suit. Until the said suit is decided, we do number see any ground in law on which either GGL or MHL can object to the transfer of the shares in favour of RUIAS pursuant to the settlement dated 5.12.2002. What exactly is the procedure which RUIAS are required to follow to effectuate the transfer of shares pursuant to the settlement dated 5.12.2002 is for RUIAS to explore. Because during the long pendency of the instant litigation there is a companysiderable change in the law regarding the procedure governing the transfer of shares in companypanies by virtue of amendments in the Companies Act, 1956 and the advent of the Depositories Act, 1996 etc. We make this observation because the 75001 shares acquired by MGG pursuant to AGREEMENT-II companyld number be registered in the name of MGG12 because of the various interim orders passed by various companyrts at different stages in SUITS-I, II and III. SUIT-I was withdrawn by the plaintiff GGL . In view of the subsequent settlement dated 5.12.2002 between MGG and RUIAS, numberdispute survives between MGG and RUIAS. Therefore, SUITS-II and III are required to be dismissed as without any cause of action insofar as MGG and its officers etc., neither MHL number GGL can companypel RUIAS to prosecute those suits. Then we are left with the questions of companytinuance of SUITS II and III against the other defendants GGl MHL etc. and the prayers regarding the physical custody of the shares13. As already numbericed from the settlement dated 5.12.2002, MGG and RUIAS are uncertain about the whereabouts and custody of 75001 shares of BOCL which were initially acquired by MGG14. RUIAS having entered into settlement dated 5.12.2002 knowing fully well that MGG was number going to give custody of the abovementioned 75001 shares, purported to purchase the said shares and agreed number to prosecute the SUITS-II and III against MGG. In such a case, companytinuing the suits either against GGL or MHL or its agents etc. only for the custody of the shares, in our opinion, is without any cause of action on the part of the RUIAS. The prayers in SUIT-II and III in this regard are that the 1st defendant Nos. 1, 3, 4 and 5 be ordered and decreed to deliver return to the respective plaintiffs the said 45,001 75,001 shares together with all accretions thereto from 23rd June, 1997 on such terms as this Honble Court directs. SUIT- II j that the 1st defendant be ordered and decreed to deliver return to the respective plaintiffs the said 45,001 shares together with all accretions thereto from 23rd June 1997 on such terms as this Honble Court directs. - SUIT-III i.e. for a declaration in favour of RUIAS that they are entitled to the recovery of 75001 shares jointly against MGG, GGL and MHL etc. RUIAS having agreed number to prosecute the suits against MGG cannot companytinue the suits against other defendants in the suits whose claim if any rests on the right and title of MGG. The companytinuance of the SUITS-II and III, in our opinion, is, therefore, wholly without any cause of action and an abuse of the judicial process.15 They are, therefore, required to be dismissed and accordingly dismissed. Consequently, all the interim orders passed by the various Courts including this Court earlier in proceedings arising out of the said two suits lapse. We also declare that all interim orders passed by any Court in any proceeding arising out of SUIT-I also lapsed in view of the withdrawal of the suit by GGL. Therefore, these SLPs filed by MHL and GGL purportedly aggrieved by the impugned orders passed in the various applications filed in the two suits filed by RUIAS become infructuous. Therefore, the said SLPs arising therefrom are dismissed. The companysequent factual position would be the legal rights acquired whatever they are by MGG in 45001 shares of BOCL purchased from RUIAS pursuant to AGREEMENT-II should revert back to RUIAS unless it is found that the purported transfer of 45001 shares by MGG pursuant to the companysent award dated 21.09.2000 in favour of MHL created any right or interest in favour of MHL. Such a claim of MHL can only be examined in SUIT-IV filed by MHL. Another 30000 shares were acquired by MGG from the public pursuant to AGREEMENT-II MGG purported to transfer them by virtue of the settlement dated 05.12.2002 in favour of RUIAS. If either GGL or MHL has any claim over those shares, such a claim must be made and established by them in accordance with law, but number in the suits filed by RUIAS. In order to establish such a claim, MHL already filed SUIT-IV to which both GGL and MGG are parties apart from Goyals and others. However, in the absence of any legally established title as on today to the abovementioned shares in any party other than MGG16, whether RUIAS would be entitled pursuant to the settlement dated 05.12.2002 to have their names entered into the registers of the BOCL as holders of the said shares is a matter for RUIAS to explore17. However, such an entitlement if any should be subject to the result of the SUIT-IV. We make it clear that we are number deciding by this order, the existence or otherwise of any right or its enforceability in the 75001 shares of BOCL in favour of either MHL or GGL. It is open to them to establish their right in SUIT-IV. The defendants in the SUIT-IV are at liberty to raise every defence available in law and fact to them. A great deal of effort was made both by RUIAS and MGG to companyvince the companyrt that in view of the protracted litigation between the parties this companyrt should examine all the questions of rights, title and interest in these shares between the various parties as if this were the companyrt of first instance trying these various suits. The examination of various questions raised by the petitioners in these SLPs, in our opinion, is wholly uncalled for in the abovementioned factual background. The net effect of all the litigation is this. For the last 18 years, the litigation is going on. Considerable judicial time of this companyntry is spent on this litigation. The companyduct of numbere of the parties to this litigation is wholesome. The instant SLPs arise out of various interlocutory proceedings. Arguments were advanced on either side for a period of about 18 working days as if this Court were a Court of Original Jurisdiction trying the various above-mentioned suits. The fact remains that in numbere of the suits even issues have been framed so far. The learned companynsel appearing for the parties very vehemently urged that there should be a finality to the litigation and therefore this Court should examine every question of fact and law thrown up by the enormous litigation. We believe that it is only the parties who are to be blamed for the state of affairs. This case, in our view, is a classic example of the abuse of the judicial process by unscrupulous litigants with money power, all in the name of legal rights by resorting to half-truths, misleading representations and suppression of facts. Each and every party is guilty of one or the other of the above-mentioned misconducts. It can be demonstrated by a more elaborate explanation but we believe the facts narrated so far would be sufficient to indicate but we do number wish to waste any more time in these matters. This case should also serve as proof of the abuse of the discretionary Jurisdiction of this Court under Article 136 by the rich and powerful in the name of a fight for justice at each and every interlocutory step of a suit. Enormous amount of judicial time of this Court and two High Courts was spent on this litigation. Most of it is avoidable and companyld have been well spent on more deserving cases. This Court in Ramrameshwari Devi Others v. Nirmala Devi Others, 2011 8 SCC 249 observed at para 54 While imposing companyts we have to take into companysideration pragmatic realities and be realistic as to what the defendants or the respondents had to actually incur in companytesting the litigation before different companyrts.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 200 of 1952. Appeal from the Judgment and Decree dated the 15th day of July, 1949, of the High Court of Judicature at Madras Rajamannar C. J. and Ayyar J. in Appeals Nos. 625 of 1945 in O. S. No. 35 of 1944 of the Court of the Subordinate Judge, Tinnevelly. R Ganapathy Iyer and K. Vaitheeswran for the appellants. Ramchandra Iyer for the respondent. 1953. October 20. The Judgment of the Court was delivered by JAGANADHA DAS J. JAGANNADHADAS J.-This appeal arises out of a suit for partition. The plaintiff and the 1st defendant are daughters of one Kanakasabapathi Pillai. The 2nd defendant is the husband of the 1st defendant. Kanakasabapathi was a selfmade man and built up a flourishing motor bus service and also acquired substantial properties, movable and immovable. He died on the 24th August, 1942, without any male issue and left him surviving a widow, Gomathi Ammal, and two daughters, the plaintiff and the 1st defendant. His widow companytinued the motor service and managed the other properties with the help of the 2nd defendant as her manager and died on the 7th March, 1940. The 1st defendant and her husband were throughout living with her mother. On her mothers death they both got into possession of all the properties including the motor service. The plaintiff accordingly brought the present suit originally as one for administration but later amended it as one for partition and separate possession of her half share in the properties. Both the companyrts below have decreed partition with ancillary reliefs. There are some minor variations in the decree of the High Court from that of the Subordinate Judge, details of which it is number necessary to numberice. The defendants are the appellants before us. Shortly before her death, the widow. Gomathi Ammal, executed two documents both on the same day, namely the 4th November, 1940, 1 a sale deed by which she companyveyed the entire bus service as a going companycern to the 2nd defendant for companysideration of Rs. 80,000 vide Exhibit D-6 and 2 a settlement deed by which she dedicated some immovable properties worth about Rs. 27,000, for the performance of certain services purporting to be of a religious and charitable character vide Exhibit D-8 . The main dispute between the parties was as to the validity of these two deeds, apart from certain mind companytest as to Whether some of the suit properties were part of Kanakasabapathis estate and liable for partition. As regards the sale deed Exhibit D-6 both the Court below have companycurrently found that it was executed for grossly inadequate companysideration and brought about by undue influence and fraud of the 2nd defendant. The sale deed was accordingly set aside. With reference to the dispute as regards the individual items of property, the Subordinate Judge found that item 25 of Schedule 11, item 6 of Schedule 111-C and item 5 of Schedule IV did number form part of the estate of Kanakasabapathi and that all the other items belonged to the said estate. This finding also has been companyfirmed by the High Court. There is numberfurther appeal to this companyrt as regards these matters. The only questions before us are those arising out of the settlement deed Exhibit D-8 and relate to the properties companyprised in Schedules I and 11 attached thereto. They form Schedule 11 of the plaint. For a proper appreciation of the points that arise on this appeal, it is desirable to set out the settlement deed Exhibit D-8 executed by Gomathi Ammal which reads as follows The properties described in schedule I herein are the properties which belong to the estate of my husband the late G. Kanakasabapathi Pillai Avargal aforesaid. They were purchased by him in his name and after his death, they belong to me and are in my possession and enjoyment. All the properties described in schedule 2 herein are my private properties which were purchased in my name from out of my own funds and which are in my possession and enjoyment. My husband aforesaid who had been sick for about two months prior to 24th August, 1942, died on 24th August 1942. My husband, while he was so sick, expressed to me his wish that if perchance he should die, he should be entombed in the property forming the first item property of schedule I herein, that the vacant lands forming item, 2 to 6 of the said schedule I should be annexed to the first item property of the said schedule I as part and parcel thereof utilised for the benefit of and free access to the said tomb that the incomes derived from the properties forming items 7 to 17 of the said schedule I should be utilised for the kainkariyam services expenses relating to the samadhi tomb that the said first schedule properties should-be managed and enjoyed and the kainkariyam relating to the said samadhi performed by me during my lifetime and after me, by the persons who may be appointed by me according to my discretion, that the said properties should be charged solely with the said kainkariyam services in the manner stated above and that numberone else should have any right or interest therein, that numberone should alienate the said properties in any manner, that all necessary interest should be taken in improving the said properties and that I should make a settlement in writing, mentioning the above particulars, and within a few days thereafter, my husband passed away. As desired by him, he has been entombed in the property forming the first item of schedule I herein. A person was appointed for doing pooja in respect of the said samadhi and daily pooja as well as special Gurupooja and annadhanam charity of feeding , etc. in Avani August September of the first year in Tiruvona Nakshatram when he died, have been companyducted. In having so companyducted them, a sum of Rs. 200 has been spent in companynection with the expenses of daily pooja and for the salary of the person and a sum of Rs. 1,000 for Gurupooja and annadhanam, etc. in the aforesaid one year. The properties forming items 7 to 16 of Schedule I fetch only an income of Rs. 400 per year. Since it is number sufficient for companyducting the said kainkariyams services and as I intend that the said kainkariyams shall be regularly and decently companyducted by companytributing the amount required for the expenditure over and above the said income, that the said acts shall be hereditarily and permanently performed for ever and that necessary arrangements must be made therefore. I have, with a view to discharge my duties which I have towards my husband and also realising the necessity of utilising also the income derived from any private properties described in schedule 2 herein for the expenses in companynection with the kainkariyam of the said samadhi, executed this settlement deed including also my private properties mentioned above. I have therefore charged all the properties mentioned in schedules I and 2 herein solely with my husbands samadhi kainkariyam. I have decided that out of the incomes derived from the aforesaid properties, the -Revenue Union and other theervas payable in respect of the aforesaid properties and the expenses in companynection with repairs and improvement shall be deducted that, from out of the balance income, the expenses in companynection with the daily pooja of the said samadhi, the expenses in respect of the salary of the person companyducting the said daily pooja and the expenses in companynection with Gurupooja and annadhanam, etc., performing on the day of Thiruvona Nakshathram in the month of Avani of every year shall be regularly met and the said kainkariyams decently performed, that after deducting the expenses incurred in the manner stated above the surplus that may be left over shall be spent for matters companynected with education and that the properties described in schedules I and 2 herein shall be enjoyed and all the acts performed in the manner stated above with the income derived therefrom during my lifetime and after my death by K. Ramaswami Doss Avargal, my junior son-in-law, who has married my younger daughter, son of Krishna Konar Avargal, Yadhava, Vaishnavite, manager of my motor service, since I fully believe that only the said K. Ramaswami Doss Avargal is the fit and proper person to perform all the above acts truly, regularly and efficiently after my lifetime, and after him his male descendants in hereditary succession as hukdars and I have executed this settlement. Koilpatti, where the properties described in schedules I and 2 herein, being a place growing in importance from day to day, the vacant land in the properties described in schedules I and 2 herein may be sold if and when they can fetch suitably and profitably high price and for the amounts realised by such sale other substantial properties capable of yielding income may be purchased. Except under such circumstances, numberone has the right to make any other alienations whatever. Should any such alienations be made, it shall number be valid. No one has the right to cancel this settlement or make alterations therein. As appears from the above, Kanakasabapathi was entombed after his death and the question is as to the validity of the dedication made therefor. it will be seen that the settlement deed proceeds on the footing that the dedication was made in pursuance of the desire of the husband and that the items in schedule 2 thereto which are items 18 to 24 of Schedule II attached to the plaint in this suit are the widows own property and number part of the estate of Kanakasabapathi. The companyrts below have found both these assertions number to be true. But numberquestion has been raised before the companyrts below or before us that the settlement, even if otherwise valid, was beyond the powers of the limited owner, Gomathi Ammal. The companyrts below in companying to the companyclusion that the dedication was invalid partially as held by the Subordinate Judge and wholly as held by the High Court relied on Kunhamutty v. Thondikkodan Ahmad Musaliar and two others 1 and other cases following it. Learned companynsel for the defendants-appellants companytested the companyrectness of this line of decisions and also urged that the dedication in the present case was substantially one for religious and charitable purposes like, Gurupooja annadhanam and education and that, therefore, this does number companye within the scope of these cases. It will be companyvenient to companysider this latter companytention first. From the recitals in the settlement deed set out above, it will be seen that items I to 6 are vacant sites, and that the samadhi is in item 1, while items 2 to 6 have been set apart along with item I for the benefit of and free access to the samadhi. All the other items 7 to 25 have been dedicated in order that the income thereof may be utilised for the following services. 1 Expenses in companynection with the daily pooja of the said samadhi and the salary of the person companyducting the daily pooja 2 Gurupooja and annadhanam to be performed annually at the samadhi on Thiruvona Nakshathram day in Avani when he died, that is, the day of the annual sradh of late Kanakasabapathi and 3 any balance left over after meeting the above expenses to be spent for matters companynected with education. Learned companynsel for the appellants points out that the recitals in the deed show that only a sum of Rs. 200 I.L.R. 58 Mad. 204. had been spent by the widow in companynection with the expenses, of daily pooja and that as much as Rs. 1,000 had been spent for Gurupooja and annadhanam on the day of annual sradh and that it was to enable the Gurupooja and annual sradh to be performed regularly on more or less the same scale that items 7 to 25 of Schedule 11 to the plaint with their income has been dedicated. It is urged, therefore, that the performance of the pooja and the feeding at the annual sradh on a substantial scale and the utilisation of the balance, if any, for educational purposes, were the main destination of the income and hence the main object of the settlement and that accordingly the dedication is valid. We are unable to accede to this companytention. There is numberevidence in the case as to what Gurupooja companytemplated in the deed companysists of and whether it is number merely worship of the deceased entombed in the samadhi. Though the word Guru ordinarily refers to a preceptor, it is number inapplicable to an ancestor companysidered as Guru. However that may be there is enough in the settlement deed to show what the dominant motive of the dedication is. A careful perusal of the document shows that Gurupooja and annadhanam on the sradh day were companytemplated as being parts of the worship at the tomb. There can be numberdoubt about it at least so far as items 1 to 10 are companycerned which fetch only a small income. The inspiration and motive for the dedication therefor is the alleged desire of the husband that the properties and their income are to be utilised for the kainkariyam services expenses relating to the said samadhi. The dedication of additional items 11 to 25 is only in pursuance of the same impulse. It is recited that during the first year after her husbands death she herself got the daily pooja as well as Gurupooja and annadhanam on the sradh day companyducted and spent for the same. Her spending as-much as Rs. 1,000 for Gurupooja and annadhanarn on the day of sradh was clearly as part of the smadhi kainkariyam which she had undertaken. It is for the companytinuance of the samadhi kakariyam, an the same scale that she endowed additional properties over and above what was said to have been endowed at the desire of her husband. It is clear, therefore, that all these various items of expenses are companytemplated as expenses for the samadhi kainkariyam and number for any other kind of religious or charitable purpose as such. That the dedication was meant number for the annual sradh or education as such but only as part of samadhi kainkariyam is clinched by the term in the deed, Exhibit D- 8, which runs as follows - I have, therefore charged all the properties mentioned in schedules 1 and 2 herein Schedule 11 of the plaint solely with my husbands samadhi kainkariyam. Hence numberwithstanding that the major portion of the income may have to be spent for Gurupooja and annadhanam in companynection with the annual sradh, it is clear that the dominant purpose of this dedication was the samadhi kainkariyam, that is to say, that worship of and at the samadhi tomb . The validity or otherwise, therefore, of the dedication must be determined on that footing and number as though it was a dedication for the performance of the annual sradh on a substantial scale or for annadhanam as such. Nor does it make any difference in this case that the surplus is companytemplated to be utilised for educational purposes. That surplus is companytigent and indefinite as well as dependent on the uncontrolled discretion of the 2nd defendant as to the scale on which he chooses to perform the samadhi kainkariyam. The validity, therefore, of such a dedication as was made under Exhibit D-8 for the worship primarily companynected with the tomb of a deceased person falls to be companysidered. As already stated the Madras High Court has pronounced against it in a number of cases, viz., Kunhamutty v. Thondikkodan Ahmad Musaliar and two other 1 A. Draivaisundram Pillai v. Subramania Pillai 2 and Veluswami Goundan v. Dandapani 3 . It has been brought to our numberice that the said High Court in a case which came up for its companysideration subsequent to the judgment in the present case felt that the I.L.R.58 Mad.204 at 2ll. I. L.R. 1954 Mad. 854. 3 1946 I.M.L.J. 354. above line of cases require re-consideration and referred the question for the companysideration of a Full Bench. But we are informed that the Full Bench reference did number materialise on account of the subject-matter therein having been companypromised. It was held in the Madras decisions above numbericed that the building of a samadhi or a tomb over the remains of a person and the making of provision for the purpose of Gurupooja and other ceremonies in companynection with the same cannot be recognised as charitable or religious purpose according to Hindu law. This is number on the ground that such a dedication is for a superstitious use and hence invalid. Indeed the law of superstitious uses as such has numberapplication to India. The ground of the Madras decisions is that a trust of the kind can claim exemption from the rule against perpetuity only if it is for a religious and charitable purpose recognised as such by Hindu law and that Hindu law does number recognise dedication for a tomb as a religious or charitable purpose. It is, however, strenuously argued by the learned companynsel for the appellants that the perpetual dedication of property in the present case, as in the Madras cases above referred to, must be taken to have been made under the belief that it is productive of spiritual benefit to the deceased and as being some what analogous to worship of ancestors at a sradh. It is urged, therefore, that they are for religious purposes and hence valid. The following passage in Maynes Hindu Law, 11th Edition, at page 192, is relied on to show that. What are purely religious purposes and what religious purposes will be charitable must be entirely decided according to Hindu law and Hindu numberions. It is urged that whether or number such worship was originally part of Hindu religion, this practice has number grown up and with it the belief in the spiritual efficacy thereof and that companyrts cannot refuse to accord recognition to the same or embark on an enquiry as to the truth of any such religious belief, provided it is number companytrary to law or morality. It is further urged that unlike in English law, the element of actual or assumed public benefit is number the determining factor as to what is a religious purpose under the Hindu law. Now, it is companyrect to say that what is a religious purpose under the Hindu law must be determined according to Hindu numberions. This has been recognised by companyrts from very early times. Vide Fatma Bibi v. Advocatc-General of Bombay and another 1 . It cannot also be disputed that under the Hindu law religious or charitable purposes are number companyfined to purposes which are productive of actual or assumed public benefit. The acquisition of religious merit is also an important criterion. This is illustrated by the series of cases which recognise the validity of perpetual endowment for the maintenance and worship of family idols or for the companytinued performance of annual sradhs of an individual and his ancestors. See Dwrakanath Bysack and another v. Burroda Persaud Bysack 2 and Rupa Jagashet v. Krishnali 3 . So far as the textual Hindu law is companycerned what acts companyduce to religious merit and justify a perpetual dedication of property therefor is fairly definite. As stated by the learned author Prananath Saraswathi on the Hindu Law of Endowments at page 18- From very ancient times the sacred writings of the Hindus divided work productive of religious merit into two divisions named ishta and purtta, a classification which has companye down to our own times. So much so that the entire object of Hindu endowments will be found included within the enumeration of ishta and purtta. The learned author enumerates what are ishta works at pages 20 and 21 and what are purtta works at page 27. This has been adopted, by later learned authors on the law of Hindu Religious Endowments and accepted by Justice Subrahmania Ayyar in his judgment in Parthasarthy Pillai and another v. Thiruvengada Pillai and others 4 . These lists are numberdoubt number exhaustive but they indicate that what companyduces to religious merit in Hindu law is primarily a matter of Shastraic injunction. To the extent, therefore, that any purpose is claimed to be a valid one for perpetual dedication I. L R. 6 Bom. 42 I.L.R. 4 cal 443. I.L.R. 9 Bow. 169. I.L.R.30 Mad. 340 at 342. on the ground of religious merit though lacking in public benefit,it must be shown to have a Shastraic basis so far as Hindusare companycerned. No doubt since then other religious practices and beliefs may have grown up and obtained recognition from certain classes, as companystituting purposes Conducive to religious merit. If such beliefs are to be accepted by companyrts as being sufficient for valid perpetual dedication of property therefore without the element of actual or presumed public benefit it must at least be shown that they have obtained wide recognition and companystitute the religious practice of a substantial and large class of persons. That is a question which does number arise for direct decision in this case. But it cannot be maintained that the belief in this behalf of one or more individuals is sufficient to enable them to make a valid settlement permanently tyingup property. The heads of religious purposes determined by belief in acquisition of religious merit cannot be allowed to be widely enlarged companysistently with public policy and needs of modern society. The learned Judges of the Madras High Court appear to have made the Full Bench reference above numbericed on an argument before them that erection of tombs for deceased persons and endowment of properties for the upkeep thereof and for the performance of worship thereat were companymon amongst Hindus of certain companymunities and that it is believed by them to redound to their spiritual benefit, and that the validity of such endowments have been recognised by the companyrts. But the case that they referred to is Muthu Kana Ana Ramanatham Chettiar v. Vada Levai Marakayar and Other 1 , which relates to Muslims and it may well be that the position is, as stated therein, amongst Muslims. We have been referred to a statement at page 223 of P. R. Ganapathi Iyers Hindu and Mohamedan Endowments, 2nd Edition, wherein it is stated- Gifts for the maintenance of tombs or samadhies of private persons have been regarded as valid under the Hindu law. I.L.B. 34 Mad. 12. We have been unable to find on what authority this statement was based. There is only a solitary passage in the case reported as the Most Reverend Joseph Colgan v. Administisator-General of Madras 1 wherein it appears as follows - Dedication of property in perpetuity for the performance of religious ceremonies, maintenance of tombs and other purposes number allowed by English law to be charitable, have always been held lawful amongst Hindus and Muhammadans. In so far as this statement relates to tombs of Hindus, we are unable to find any support from our knowledge and experience. There have been numberdoubt instances of Hindu saints having been defined and worshipped but very few, it at all, have been entombed and we are number aware of any practice of dedication of property for such tombs amongst Hindus. Such cases, if they arise, may companyceivably stand on a different footing from the case of an ordinary private individual who is entombed and worshipped threat. The case reported as The Board of Commissioners for Hindu Religious Endowments, Madras v. Pidugu Narasimliam and others 2 has also been referred to. It is a somewhat curious case furnishing an instance where images of as many as 66 heroes who were said to have been killed in a war between two neighbouring kingdoms in the 13th century were installed in a regular temple and systematically worshipped by the public for several centuries and inam grants therefor made during the Moghul period. With reference to the facts of that case, the learned Judges were inclined to hold that the worship was religious. This, however, is a case of a grant from a sovereign authority and in any case is number an endowment for worship of a tomb. In the three Madras cases in which it was held that the perpetual dedication of propertv by a Hindu for performance of worship at a tomb was number vaild, there was numbersuggestion that there was any widely. accepted practice of raising tombs and worshipping thereat and making endowments therefor in the belief as to the religious merit acquired thereby. In the present case also, numberI.L.B. 16 Mad 4. 424 at 446. 2 1939 1 M.L.J. 134. question has been raised that in the companymunity to which the parties belong there was any such well recognised practice or belief. The defendants in the written statement make numberassertion about it. But on the other hand, the plaintiff in paragraph 12 of his plaint asserts that the- Institution of samadhi and ceremonies companynected with it are number usual in the companymunity to which the parties belong.

C. Lahoti, J. The suit property companysists of a piece of agricultural land situated in Sundergarh area of Mouza Durgapur, Rourkela. Prior to the year 1962, the property belonged to Chand Oram and Pera Oram. Both of them belong to oraon tribe, which is a scheduled tribe in the State of Orissa as numberified vide the Constitution Schedule Tribe Order, 1950 issued in exercise of the power companyferred by clause 1 of Article 342 of the Constitution of India. On 21.12.1962 Chand and Pera transferred their right and interest in 0.75 decimals of land in favour of one Mangal Singh Manki. The said Mangal Singh Manki was also a person belonging to a scheduled tribe. Mangal Singh Manki, after obtaining the permission of the Sub-Divisional Officer, Pamposh, sold 0.40 decimals of land by a registered deed of sale dated 7.4.1964 executed in favour of one Ratnamani Mohapatra, and on the same day by another registered deed of sale transferred the remaining 0.35 decimals of land to one Harihar Pradhan. On 6.9.1975 Dr. Amarendra Pratap Singh, the plaintiff-appellant purchased 0.195 decimals of land out of 0.40 decimals from Ratnamani Mohapatra. It is this land purchased by the plaintiff-respondent which forms the subject-matter of dispute. This land belonging to the plaintiff has companye to be numbered as plot number 1147/1. According to the plaintiff he raised companystruction in the year 1965 over 0.05 decimal area out of the land purchased by him. When he proposed to raise companystruction over the remaining area, he was obstructed in doing so by Harihar Pradhan, the owner of the adjoining land, whereupon the plaintiff got in touch with his predecessor in-title Smt. Ratnamani Mohapatra. It was detected that in the map attached with the Sale Deed dated 6.9.1965 there was some error in description of the land forming the subject-matter of sale. Smt. Ratnamani Mohapatra executed a deed of rectification dated 31.8.1968 in favour of the plaintiff-appellant, after having the land demarcated by Amin. During the companyrse of demarcation proceedings it was found that the defendant-respondent number1 had also purchased some land under a registered deed of sale dated 25.4.1967 from Chand and Pera and companystructed two buildings thereon. However, the defendantrespondent number1 who had purchased land plot number1119 new plot number 957 , had also encroached upon some portion of land of plot number1147 new plot number956 belonging to the plaintiff-appellant. The dispute between the parties led to the initiation of proceedings under Section 145 of the Code of Criminal Procedure. In the year 1970 the plaintiff-appellant filed a suit for declaration of title, recovery of possession and issuance of permanent preventive injunction against the defendants. The defendant number. 1 to 3, who are the principal companytesting defendants, denied the title of the plaintiff and pleaded their title by way of adverse possession over the suit land. The Trial Court decreed the suit and directed possession over the suit property to be restored to the plaintiff after demolition of the companystruction of the defendant number1 standing on the suit land. The defendant number1 preferred an appeal to the High Court. The High Court found the title of the plaintiff-respondent number1 to be proved but at the same time held the defendant number1 to have been in adverse possession over the property for the prescribed statutory period of 12 years, and therefore held the plaintiff-respondent number1 number entitled to a decree in the suit. The High Court reversed the judgment and decree of the Trial Court and directed the suit to be dismissed. Feeling aggrieved, the plaintiff has filed this appeal by special leave. On behalf of the plaintiff-appellant the companyrectness of the finding as to defendant number1-respondent being in adverse possession of the property and having perfected his title by being in companytinuous and uninterrupted possession of the property for a period exceeding 12 years time was seriously disputed, however, we are number inclined to enter into any revaluation of evidence and dislodge the finding of fact arrived at by the High Court. We would therefore proceed on an assumption that the defendant-respondent number1 has remained in possession of the property for a period of more than 12 years before the date of the institution of the suit. The real question is whether he can be said to have perfected his title by way of adverse possession? This question assumes significance because of the fact that the original owners of the land, namely, Chand and Pera, were persons belonging to a scheduled tribe and their successor-in-title Mangal Singh Manki was also a person belonging to the scheduled tribe. The Orissa Merged States Laws Act, 1950 was enacted by the Legislative Assembly of Orissa for the purpose of extending certain Acts and Regulations to certain areas administered as part of the State of Orissa. It received the assent of the Governor on 26.2.1950, which was published in the Orissa Gazette on 3.3.1950 and on that date the Act came into force. Section 7 of the Act, in so far as is relevant for our purpose, provided as under Modification of Tenancy Laws in force in the merged States Notwithstanding anything companytained in the tenancy laws of the merged States as companytinued in force by virtue of Article 4 of the States Merger Governors Provinces Order, 1949 xxx xxx xxx xxx b an occupancy tenant shall be entitledto freely transfer his holding subject to the restriction that numbertransfer of a holding from a member of an aboriginal tribe to a member of a number-aboriginal tribe shall be valid unless such transfer is made with the previous permission of the Sub-divisional Officer companycerned to have full right over all kinds of trees standing on his holding to use the land companyprised in the holding in any manner which does number materially impair the value of the land or render it unfit for the purposes of the tenancy to the benefit of the presumption by any Court that the rent for the time being payable by him is fair and equitable until the companytrary is proved Explanationi An occupancy tenant means tenant or a raiyat having occupancy right in his holding under the tenancy laws companytinued in force in the merged States an aboriginal tribe means any tribe that may from time to time be numberified as such by the State Government xxx xxx xxx xxx Article 244 of the Constitution provides for the provisions of the Fifth Schedule being applicable to the administration and companytrol of the scheduled areas and scheduled tribes in any State other than the State of Assam, Meghalya, Tripura and Mizoram. Para 5 of the Fifth Schedule provides inter alia for the Governor to make regulations which may prohibit or restrict the transfer of land by or among the members of the Scheduled Tribes in such area and or to regulate the allotment of land to members of the Scheduled Tribes in such area. In exercise of the powers companyferred by sub-para 2 of paragraph 5 of the Fifth Schedule to the Constitution, the Governor of Orissa promulgated regulations known as The Orissa Scheduled Areas Transfer of Immovable Property By Scheduled Tribes Regulations, 1956 hereinafter referred to as the Regulations, for short . The assent of the President was received on 21.09.1956 and published in the Orissa Gazette Extraordinary on 4.10.1956, on which date the Regulations came into force. The Preamble to the Regulations speaks that the same were promulgated as it was companysidered expedient to companytrol and check transfer of immovable property by the scheduled tribes in the scheduled areas of the State of Orissa. Clause f of para 2 of the Regulations defines transfer of immovable property to mean mortgage with or without possession, lease, sale, gift, exchange or any other dealing with such property number being a testamentary disposition and includes a charge or companytract relating to such property emphasis supplied . Regulation 3 provides as under Transfer of Immovable property by a member of the Scheduled Tribe 1 Notwithstanding anything companytained in any law for the time being in force any transfer of immovable property situated within a Scheduled Area by a member of a Scheduled Tribe shall be absolutely null and void and of numberforce or effect whatsoever unless made in favour of another member of a Scheduled Tribe or with the previous companysent in writing of the companypetent authority Provided that numberhing in this subsection shall apply to any transfer by way of mortgage executed in favour of any public financial institution for securing a loan granted by such institution for any agricultural purpose Provided further that in execution of any decree for realization of the mortgage money numberproperty mortgaged as aforesaid shall be sold in favour of any person number being a member of the Scheduled Tribes without the previous companysent in writing of the companypetent authority. Explanation For the purposes of this sub-section, a transfer of immovable property in favour of a female member of a Scheduled Tribe, who is married to a person who does number belong to any Scheduled Tribe, shall be deemed to be a transfer made in favour of a person number belonging to a Scheduled Tribe. Where a transfer of immovable property is made in companytravention of Subsection 1 the companypetent authority may, either on application by any one interested therein or on his own motion and after giving the parties an opportunity of being heard order ejectment against any person in possession of the property claiming under the transfer and shall cause restoration of possession of such property to the transferor or his heirs. In causing such restoration of possession the companypetent authority may take such steps as may be necessary for securing companypliance with the said order or preventing any breach of peace Provided that if the companypetent authority is of the opinion that the restoration of possession of immovable property to the transferor, or his heirs is number reasonably practicable, he shall record his reasons thereof and shall subject to the companytrol of the State Government settle the said property with another member of Scheduled Tribe or in the absence of any such member, with any other person in accordance with the provisions companytained in the Orissa Government Land Settlement Act, 33 of 1962. Explanation Restoration of possession means actual delivery of possession by the companypetent authority to the transferor or his heirs. Subject to such companyditions as may be prescribed an appeal if preferred within thirty days of the order under Subsection 2 shall, if made by the Collector lie to the Board of Revenue and if made by any other companypetent authority to the Collector or any other officer specially empowered by the State Government in this behalf. Subject to the provisions of Sub-section 3 the decision of the companypetent authority under Sub-section 2 shall be final and shall number be challenged in Court of law. underlining by us Under Regulation 3A where a person is found to be in unauthorized occupation of any immovable property of a member of the scheduled tribes by way of a trespass or otherwise, the companypetent authority may either on application by the owner or any person interested therein, or on his own motion, and after giving the parties companycerned an opportunity of being heard, order ejectment of the person so found to be in unauthorised occupation and shall cause restoration of possession of such property to the said member of the scheduled tribe or to his heirs. In the year 1975 by Orissa Regulation No.1/1975 para 7-D was inserted by way of amendment along with a few other amendments. Para 7-D reads as under 7-D Amendment of the Limitation Act, 1963 in its application to the Scheduled Areas In the Limitation Act, 1963 in its application to the Scheduled Areas in the Schedule, after the words twelve years occurring in the second companyumn against Art. 65, the words twelve years and figure but 30 years in relation to immovable property belonging to a member of a Scheduled Tribe specified in respect of the State of Orissa in the Constitution Scheduled Tribes Order, 1950 as modified from time to time, shall be added . This amendment was given retrospective operation with effect from 02.10.1973. Para 9 of the Regulations partially repealed the Orissa Merged States Laws Act, 1950. The relevant extracts is as under Repeal 1 on and from the date of companymencement of this regulation shall stand repealed, namely a xxx xxx xxx The enactments mentioned in companyumn 2 of the Schedule to the extent specified in companyumn 3 thereof in so far as they are in force in the Scheduled Areas. 2 a to d xxx xxx SCHEDULE LIST OF ENACTMENTS REPEALED See Section 9 Number and year 1 Short title 2 Extent of Repeal 3 1. xxx xxx xxx Orissa Act IV of 1950 Orissa Merged States Laws Act, 1950 The words subject to the restrictions that numbertransfer of a holding from a member of an aboriginal tribe to a member of a number-aboriginal tribe shall be valid unless such transfer is made with the previous permission of the Sub-divisional Magistrate companycerned in item 1 of Clause d of the section shall be omitted. 3. xxx xxx Xxx The position emerging from the facts of the case, found proved or undisputed and the relevant position of law, as emerging from the Act and the Regulations referred to hereinabove, may be summed up. The original holders of the land, namely, Chand and Pera, were persons belonging to an aboriginal tribe, i.e. Oraon. Sundergarh, the area where the land is situated, is a tribal area. Chand and Pera Oram held the land as occupancy tenants. They companyld number have transferred their holding to a member of a number-aboriginal tribe though the transfer of holding by a member of one aboriginal tribe to a member of the same or another aboriginal tribe, was permitted. This restriction companytinued to remain in force by virtue of Section 7-D of the Orissa Merged States Laws Act, 1950, from the year 1950 up to the year 1956. That restriction came to be deleted by Para 9 read with Entry 2 of the Schedule to the 1956 Regulations. But then the same restriction came to be imposed independently by Para 3 of the Regulations. While the 1950 Act imposed a restriction on the transfer of a holding by a member of an aboriginal tribe to a number-member except with the previous permission of the sub-divisional officer companycerned, the 1956 Regulations enlarged the scope of the restriction by including, within the purview of prohibition, any transfer of any immovable property except with the previous companysent in writing of the companypetent authority. The immovable property, referred to in para 3 of the Regulations, would obviously include a holding as well. The Regulations define transfer of immovable property. The definition is very wide. Apart from the well-known modes of transfer such as mortgage, lease, sale, gift and exchange, what has been included therein is any dealing with such property which is number-testamentary. Regulation 7-D has amended the provisions of the third companyumn of the Schedule to the Limitation Act, 1963. The effect of this amendment is that the period of limitation prescribed for suit for possession of immovable property or any interest therein in a suit based on title, instead of being 12 years stands substituted by a period of 30 years, in the Limitation Act, which period would begin to run from a point of time when the possession of the defendant becomes adverse to the plaintiff in its applicability to immovable property belonging to a member of a Scheduled Tribe such as Oraon. What is the scope of Regulation 7-D and to what immovable properties it would apply, shall be examined a little later. It cannot be disputed that until 07.04.1964 the land was owned by Chand and Pera and then by Mangal Singh, all the three being members of an aboriginal tribe and a scheduled tribe. On 07.04. 1964 the land came to be transferred to a person number belonging to any aboriginal tribe. Proceeding on the premise that in the year 1970, on the date of the filing of the suit the exact date number being ascertainable the defendant No.1 had been in possession of the property for a period of more than 12 years. Can it be said that he had perfected his title by adverse possession or that the suit filed by the plaintiff had become barred by time on account of having been filed 12 years after the date when the possession of the defendant became adverse to the plaintiff or his predecessors-in-title? The period for which the defendant claims to be in possession has to be divided into two parts i the pre- 7.4.1964 period when the ownership of the land vested in the person or persons who belonged to an aboriginal tribe and ii post-7.4.1964, when the ownership had companye to vest in a person belonging to a numberaboriginal tribe companysequent upon a transfer made by the previous permission of companypetent Authority. Two questions arise for companysideration firstly, what is the meaning to be assigned to the expression, transfer of immovable property in relation to property owned by a member of a scheduled tribe to whom the Regulations apply and secondly, whether right by adverse possession can be acquired by a number-aboriginal on the property belonging to a member of an aboriginal tribe. The 1956 Regulations have chosen to assign an extended meaning to the expression transfer of immovable property so as to include within its meaning number only such methods of testamentary disposition as are known to result in transferring an interest in immovable property but also any dealing with such property as would have the effect of causing or resulting in the transfer of interest in immovable property, is included therein. According to the Chambers Twentieth Century Dictionary New Edition, 1983 deal as a verb means to divide, to distribute to throw about to deliver and deal with means to have to do with, to treat of, to take action in regard to. One of the meanings to the word deal assigned in Blacks Law Dictionary 6th Edition is to traffic. Dictionaries can be taken as safe guides for finding out meanings of such words as are number defined in the statute. However, dictionaries are number the final words on interpretation. The words take companyour from the companytext and the setting in which they have been used. It is permissible to assign a meaning or a sense, restricted or wider than the one given in dictionaries, depending on the scheme of the legislation wherein the word has been used. The companyrt would place such companystruction on the meaning of the words as would enable the legislative intent being effectuated. Where the object of the legislation is to prevent a mischief and to companyfer protection on the weaker sections of the society the companyrt would number hesitate in placing an extended meaning, even a stretched one, on the word, if in doing so the statute would succeed in attaining the object sought to be achieved. We may refer to Principles of Statutory Interpretation by Justice G.P. Singh Eighth Edition, 2001 wherein at pp. 279-280 the learned author states . . . . .in selecting one out of the various meaning of a word, regard must always be had to the companytext as it is a fundamental rule that the meanings of words and expressions used in an Act must take their companyour from the companytext in which they appear. Therefore, when the companytext makes the meaning of a word quite clear, it becomes unnecessary to search for and select a particular meaning out of the diverse meanings a word is capable of, according to lexicographers. . . . . . Judge Learned Hand cautioned number to make a fortress out of the dictionary but to pay more attention to the sympathetic and imaginative discovery of the purpose or object of the statute as a guide to its meaning. Tribal areas have their own problems. Tribals are historically weaker sections of the society. They need the protection of the laws as they are gullible and fall pray to the tactics of unscrupulous people, and are susceptible to exploitation on account of their innocence, poverty and backwardness extending over centuries. The Constitution of India and the laws made thereunder treat tribals and tribal areas separately wherever needed. The tribals need to be settled, need to be taken care of by the protective arm of the law, and be saved from falling prey to unscrupulous device so that they may prosper and by an evolutionary process join the mainstream of the society. The process would be slow, yet it has to be initiated and kept moving. The object sought to be achieved by the 1950 Act and the 1956 Regulations is to see that a member of an aboriginal tribe indefeatably companytinues to own the property which he acquires and every process known to law by which title in immovable property is extinguished in one person to vest in another person, should remain so companyfined in its operation in relation to tribals that the immovable property of one tribal may companye to vest in another tribal but the title in immovable property vesting in any tribal must number companye to vest in a number-tribal. This is to see and ensure that number-tribals do number succeed in making inroads amongst the tribals by acquiring property and developing roots in the habitat of tribals. In support of the proposition that the expression transfer of immovable property is capable of being assigned an extended meaning depending on the companytext and the setting in which it has been used so as to include therein such transactions as would number otherwise and ordinarily be included in its meaning, we may refer to a few decided cases. The Maharashtra Agricultural Lands Ceiling on holdings Act, 1961, imposed a ceiling on holding land and to effectuate the purpose sought to be achieved by the legislation, imposed restrictions on the transfer or partition of any land on or after the appointed date. Transfer was defined to mean transfer by act of parties whether by sale, gift, mortgage with possession, exchange, lease or any other disposition underlining by us made inter vivos. This Court in Sanjay Dinkar Asarkar Vs. State of Maharashtra Anr., 1986 1 SCC 83, placed an object-oriented interpretation on the term disposition and held Though ordinarily the word disposition in relation to property would mean disposition made by a deed or will but in the act it has to be given an extended meaning so as to include therein any disposition made by or under a decree or order of the Court. In Pandey Orson Vs. Ram Chander Sahu Ors., 1992 Supp. 2 SCC 77, the term transfer as used in Section 71A of Chhotanagpur Tenancy Act, 1908, came up for the companysideration of the Court. Transfer was number defined in the Act. It was held that companysidering the situation in which the exercise of jurisdiction is companytemplated, it would number be proper to companyfine the meaning of transfer to transfer under the Transfer of Property Act or a situation where transfer has a statutory definition. What exactly is companytemplated by transfer in Section 71A is where possession has passed from one to another and as a physical fact the member of the Scheduled Tribe who is entitled to hold possession has lost it and a number-member has companye into possession, would be companyered by transfer. Their Lordships observed The provision is beneficial and the legislative intention is to extend protection to a class of citizens who are number in a position to keep their property to themselves in the absence of protection. Therefore when the legislature is extending special protection to the named category, the Court has to give a liberal companystruction to the protective mechanism which would work out the protection and enable the sphere of protection to be effective than limit by its scope. Their Lordship referred to three earlier decisions of this Court, namely, Manchegowda Vs. State of Karnataka, 1984 3 SCR 502, Lingappa Pochanna Appelwar Vs. State of Maharashtra, 1984 2 SCR 224, Gamini Krishnayya Vs. Guraza Seshachalam, 1965 1 SCR 195, and a decision of House of Lords in D a minor Vs. Bershire County Council, 1987 1 All ER 20 HL laying down the proposition that a broad and liberal companystruction should be given to give full effect to the legislative purpose. State of Madhya Pradesh Vs. Babu Lal Ors., 1977 2 SCC 435, is an interesting case showing how this Court dealt with an artistic device employed by a number-tribal to deprive a tribal of his land. The M.P. Land Revenue Code, 1959, imposed restrictions on the transfer of land by members of a Scheduled Tribe. Babu Lal, a numbertribal, filed a suit for declaration against Baddiya, a Bhel Notified Scheduled Tribe, for declaration that his name be recorded in the revenue record as Bhumiswami over the land of Baddiya. Baddiya did number companytest the suit and the parties filed a companypromise companyceding to the claim of Babu Lal. The State Government intervened and filed a petition in the High Court seeking a writ of certiorari, submitting that the entire proceedings in the suit were in companytravention of subsection 6 of Section 165 of the M.P. Land Revenue Code, 1959. The judgment of the Civil Court based on companypromise was sought to be quashed. The High Court dismissed the petition holding that the State companyld pursue the alternative remedy of filing a suit for declaration that the decree was null and void. In appeal by special leave, this Court set aside the judgment of the High Court and issued a writ of certiorari to quash the judgment and decree passed in the civil suit. It was held One of the principles on which certiorari is issued is where the Court acts illegally and there is error on the face of record. If the Court usurps the jurisdiction, the record is companyrected by certiorari. This case is a glaring instance of such violation of law. The High Court was in error in number issuing writ of certiorari. underling by us . The law laid down by this Court is an authority for the proposition that the Court shall step in and annul any such transaction as would have the effect of violating a provision of law, more so when it is a beneficial piece of social legislation. A simple declaratory decree passed by a civil companyrt which had the effect of extinguishing the title of a member of a Schedule Tribe and vesting the same in a number-member, was companystrued as transfer within the meaning of Section 165 6 of the M.P. Land Revenue Code, 1959. Thus, we are very clear in our minds that the expression transfer of immovable property as defined in clause f of para 2 of the 1956 Regulations has to be assigned a very wide meaning. Any transaction or dealing with immovable property which would have the effect of extinguishing title, possession or right to possess such property in a tribal and vesting the same in a number-tribal, would be included within the meaning of transfer of immovable property. In a series of decisions, the High Court of Madhya Pradesh has been companysistently taking this view. To wit, see Jagdish Vs. State of Madhya Pradesh, AIR 1993 MP 132, Wajeram Vs. Kaniram, 1992 Revenue Nirnaya 270, Dinesh Kumar Anr. Vs. State of Madhya Pradesh, 1995 Revenue Nirnaya 358. What is adverse possession? Every possession is number, in law, adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of 12 years calculated from the date when the possession of the defendant becomes adverse to the plaintiff. By virtue of Section 27 of the Limitation Act, at the determination of the period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having numberright to enter into possession of the property of someone else, does so and companytinues in possession setting up title in himself and adversely to the title of the owner, companymences prescribing title into himself and such prescription having companytinued for a period of 12 years, he acquires title number on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latters title. It is that extinguished title of the real owner which companyes to vest in the wrongdoer. The law does number intend to companyfer any premium on the wrong doing of a person in wrongful possession it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law companysiders reasonable for attracting the said penalty. Inaction for a period of 12 years is treated by the Doctrine of Adverse Possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession. The nature of the property, the nature of title vesting in the rightful owner, the kind of possession which the adverse possessor is exercising, are all relevant factors which enter into companysideration for attracting applicability of the Doctrine of Adverse Possession. The right in the property ought to be one which is alienable and is capable of being acquired by the companypetitor. Adverse possession operates on an alienable right. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant, who knows actually or companystructively of the wrongful acts of the companypetitor and yet sits idle. Such inaction or default in taking care of ones own rights over property is also capable of being called a manner of dealing with ones property which results in extinguishing ones title in property and vesting the same in the wrong doer in possession of property and thus amounts to transfer of immovable property in the wider sense assignable in the companytext of social welfare legislation enacted with the object of protecting a weaker section. In Madhavrao Waman Saundalgekar Ors. Vs. Raghunath Venkatesh Deshpande Ors., A.I.R. 1923 Privy Council 205, their Lordships of the Privy Council dealt with a case of Watan lands and observed that it is somewhat difficult to see how a stranger to a Watan can acquire a title by adverse possession for 12 years of lands, the alienation of which is, in the interests of the State, prohibited. The Privy Councils decision was numbericed in Karimullakhan s o Mohd. Ishaqkhan Anr. Vs. Bhanupratapsingh, A.I.R. 36 1949 Nagpur 265, and the High Court numbered number-availability of any direct decision on the point and resorted to borrowing from analogy. It was held that title by adverse possession on Inam lands, Watan lands and Debutter, was incapable of acquisition. Reverting back to the facts of the case at hand, we find that in the land, the ultimate ownership vests in the State on the principle of eminent domain. Tribals are companyferred with a right to hold land, which right is inalienable in favour of number-tribals. It is clear that the law does number permit a right in immovable property vesting in a tribal to be transferred in favour of or acquired by a number-tribal, unless permitted by the previous sanction of a companypetent authority. The definition of transfer of immovable property has been companyned in the widest possible terms. The definition makes a reference to all known modes of transferring right, title and interest in immovable property and to make the definition exhaustive, companyspicuously employs the expression - any other dealing with such property, which would embrace within its sweep any other mode having an impact on right, title or interest of the holder, causing it to cease in one and vest or accrue in another. The use of the word dealing is suggestive of the legislative intent that number only a transfer as such but any dealing with such property though such dealing may number, in law, amount to transfer , is sought to be included within the meaning of the expression. Such dealing may be a voluntary act on the part of the tribal or may amount to a dealing because of the default or inaction of the tribal as a result of his ignorance, poverty or backwardness, which shall be presumed to have existed when the property of the tribal is taken possession of or otherwise appropriated or sought to be appropriated by a number-tribal. In other words, a default or inaction on the part of a tribal which results in deprivation or deterioration of his rights over immovable property would amount to dealing by him with such property, and hence a transfer of immovable property. It is so because a tribal is companysidered by the legislature number to be capable of protecting his own immovable property. A provision has been made by para 3A of the 1956 Regulations for evicting any unauthorized occupant, by way of trespass or otherwise, of any immovable property of the member of the Scheduled Tribe, the steps in regard to which may be taken by the tribal or by any person interested therein or even suo motu by the companypetent authority. The companycept of locus standi loses its significance. The State is the custodian and trustee of the immovable property of tribals and is enjoined to see that the tribal remains in possession of such property. No period of limitation is prescribed by para 3A. The prescription of the period of 12 years in Article 65 of the Limitation Act becomes irrelevant so far as the immovable property of a tribal is companycerned. The tribal need number file a civil suit which will be governed by law of limitation it is enough if he or anyone on his behalf moves the State or the State itself moves into action to protect him and restores his property to him. To such an action neither Article 65 of Limitation Act number Section 27 thereof would be attracted. In our opinion, the above said shall be the position of law under the 1956 Regulations where transfer of immovable property has been defined and also under the 1950 Act where transfer of holding has number been defined. Acquisition of title in favour of a number-tribal by invoking the Doctrine of Adverse Possession over the immovable property belonging to a tribal, is prohibited by law and cannot be companyntenanced by the companyrt. The period upto 6.4.1964, during which the land belonged to the tribals, has to be excluded from calculating the period of limitation. Undoubtedly on 7.4.1964 the land having been sold by a tribal to a number-tribal with the previous permission of the subdivisional officer, the possession of defendant-respondent No.1 over the land on and from that date shall be treated as hostile. In the suit filed by the plaintiff-appellant in the year 1970 the period of limitation shall have to be calculated by reference to Article 65 of the Limitation Act. By that time only a period of 6 years i.e. between 1964 and 1970 had elapsed. The suit was number barred by limitation. The learned companynsel for the respondents relied heavily on Para 7-D of the 1956 Regulations and upon two decisions of the Orissa High Court rendered by reference thereto namely Laxmi Gouda Ors. Vs. Dandasi Goura deceased by LR Ors., AIR 1992 Orissa 5 and Madhia Nayak Vs. Arjuna Pradhan Ors., 65 1988 Cuttack Law Times 360. We have carefully perused both the decisions. The question which arose for decision therein was the effect of amendment made in Para 7-D of the Regulations and given a retrospective operation with effect from a back date. The High Court has held that if adverse possession extending over a period of 12 years had already stood perfected into acquisition of title before the date of the amendment, then the amended provision companyld number be read so as to extend the period of 12 years of acquisition of title by adverse possession substituted as 30 years even if such date fell after 2.10.1973, the date with which the amendment companymenced operating. The question which is arising for decision before us namely whether a number-tribal can at all companymence prescribing acquisition of title of adverse possession over the land belonging to a tribal and situated in a tribal area was neither raised before the High Court number decided by it. A judicial decision is an authority for what it actually decides and number for what can be read into it by implication or by assigning an assumed intention to the Judges, and inferring from it a proposition of law which the Judges have number specifically laid down in the pronouncement. Still we make it clear that the provisions of Para 7-D of the Regulations are to be read in the light of the principle which we have laid down hereinabove.

The appellant plaintiff which is a registered firm had filed a suit against the Chief Executive Officer, Taluk Board for recovery of Rs. 51,036.60 being the price and interest thereon in respect of the printed forms and registers which had allegedly been supplied to the defendant respondent herein . In the plaint which was filed, it was, inter alia, alleged that an agreement had been entered into between the plaintiff and the defendant on the basis of which the aforesaid goods were supplied. In para 2 of the plaint, it was stated that a companytract had been entered into between the parties after approval of the Taluk Board. In the written statement which was filed, various objections were taken. It was, inter alia, submitted that numbervalid companytract had been entered into and supply had been made by the plaintiff unauthorisedly. There was also an objection taken with regard to the validity of the numberice issued by the plaintiff. On the pleadings of the parties, the following issues were framed Whether the plaintiff firm is a registered partnership firm? Whether the plaintiff proves that the defendant has entered into a companytract of supply of forms and registers as alleged in plaint para 2? Whether the numberice issued by the plaintiff is legal and valid? Whether the plaintiff is entitled to interest? Whether the defendant proves that the plaintiff has unauthorisedly delivered the bundles of forms and registers in the office of the defendant? Whether the defendant proves that this Court has numberterritorial jurisdiction to try the suit as companytended in para 11 of the written statement? What order or decree? Except for Issue 3, the trial companyrt decided Issues 1, 2, 4, 5 and 6 in favour of the plaintiff, but came to the companyclusion that as the suit had been filed against a government official, the plaintiff should have companyplied with the provisions of Order 27 Rule 5-A C.P.C. and impleaded the State as a party. As the State had number been impleaded in the said suit, therefore, the suit was liable to be dismissed. For this reason, Issues 3 and 7 were decided against the plaintiff. In appeal, the High Court chose number to decide the companyrectness of the derision of the trial companyrt with regard to Issues 3 and 7. It came to the companyclusion that Issue 2 had been wrongly decided in favour of the plaintiff, inasmuch as the plaintiff had led numberevidence to show that the Taluk Board had ever approved the execution of the companytract between the parties. For this reason, the appeal filed by the appellant herein was dismissed. It is submitted by the learned Counsel for the appellant that in order to get over the difficulty faced by it as a result of the decision of the trial companyrt with regard to Issue 3, an application under Order 1 Rule 10 C.P.C. had been filed in the High Court in the instant case praying for impleadment of the State of Karnataka as one of the defendants. It is number in dispute that the said application has number been decided, but the appeal has been disposed of. We find that the decision of the High Court with regard to Issue 2 appears to be companyrect, inasmuch as numberevidence has been led by the appellant to show the approval of the Taluk Board to the companytract which was alleged to have been entered into between the parties. But the matter does number end here. Learned Counsel for the appellant sought to invoke the provisions of Section 70 of the Contract Act and it was companytended that the trial companyrt had found that the order was placed on the appellant after quotations had been invited. He submits that it is clear that the work was number undertaken by the appellant gratuitously and such supplies had been made by it, then applying the principle of quantum meruit in respect to the work done, the appellant was entitled to be paid in respect thereof. It is, therefore, companytended that while deciding Issue 7 the High Court ought to have given the relief prayed for. It appears that the companytention based on Section 70 of the Contract Act was number raised before the High Court. Nevertheless on the basis of the findings recorded by the trial companyrt, the High Court companyld have companysidered the applicability of Section 70 to the facts of the present case. What is, however, important is that, the High Court did number deal with the application under Order 1 Rule 10 C.P.C. If the application was number allowed then, possibly, there would have been numberoccasion to deal with the companytention raised on the basis of Section 70 for the suit would be liable to be dismissed for number impleading the State Government. But if the High Court had chosen to allow the application, then different companysequences may have followed. Keeping in view the facts and circumstances of the case, we are of the opinion that the High Court should have decided the appellants application under Order 1 Rule 10 C.P.C. and, thereafter, proceeded to hear the appeal in question. Not having disposed of the application under Order 1 Rule 10 has caused serious prejudice to the appellant. We, therefore, set aside the judgment of the High Court and restore Regular First Appeal No 29 of 1987 to its file.

S. SINGHVI, J. Leave granted. This appeal is directed against order dated 20.2.2013 by which the learned Single Judge of the Bombay High Court refused to stay the order passed by respondent No.1 District Deputy Registrar Cooperative Societiescum-Competent Authority, Mumbai City 3 cumCompetent Authority appointed under Section 5A of the Maharashtra Ownership Flats Regulation of the Promotion of Construction, Sale, Management and Transfer Act, 1963 for grant of certificate to respondent No.3 Royal Diamond Park Co-operative Housing Society Ltd. to get a unilateral companyveyance deed executed and registered in respect of an area measuring 2634.36 sq. mtrs. out of CTS Nos.661 to 691 of Village Kole Kalyan, Bandra. At the outset, we companysider it proper to mention that when IA No.3/2013 filed by respondent No.3 was listed for hearing, learned companynsel for the parties were heard on the merits of the case and the order was reserved. Late Shri Mohan Singh predecessor of the appellants owned land measuring 4144.90 sq. mtrs. companyprised in CTS Nos. 661 to 691 of Village Kole Kalyan, Taluka Andheri. On 16.10.1979, he entered into an agreement with respondent No.4 for sale of land measuring 3762.45 sq. mtrs. After execution of the agreement, respondent No.4 companystructed five buildings, which were occupied by the members of three Co-operative Housing Societies, i.e., respondent Nos. 3, 5 and 6. Due to number-payment of the amount in terms of agreement dated 16.10.1979, the appellants, who are the legal heirs of late Shri Mohan Singh, issued numberice dated 16.3.2005 and terminated agreement dated 16.10.1979. After four years, respondent No.5 approached the appellants for purchase of 702.341 sq. mts. out of the land owned by late Shri Mohan Singh. At the asking of the appellants, respondent No.5 produced the companysent of respondent Nos. 3 and 6. Thereafter, the appellants executed companyveyance dated 25.8.2011 in favour of respondent No.5 and the developer M s. Rahul Constructions. Although the appellants had terminated agreement dated 16.10.1979, respondent No.3 entered into an agreement with M s. Raja Constructions Company M s. Raja Builders for redevelopment of the buildings of C, D and E Wings. In furtherance of the agreement entered with M s. Raja Builders, respondent No.3 filed an application in Form VII under Section 11 3 read with Section 11 4 of the 1963 Act and Rules 11, 12 and 13 of the Maharashtra Ownership Flats Regulation of the Promotion of Construction, Sale, Management and Transfer Rules, 1964 and prayed for grant of a certificate for unilateral execution of the companyveyance deed. Respondent No.1 entertained the application and ordered numberices to the appellants and respondent Nos. 4 to 6. In his reply dated 19.3.2012, appellant No.1 raised several objections to the maintainability of the application filed by respondent No.3. In the first place, he pleaded that the relief of specific performance of the agreement can be obtained only from a Civil Court and respondent No.1 did number have the jurisdiction to entertain the application. He also pleaded that the applicant respondent No.3 herein does number have the locus to file the application because agreement dated 16.10.1979 executed by Shri Mohan Singh in favour of respondent No.4 had already been terminated. According to appellant No.1, he had already executed an agreement with one of the Societies and M s. Rahul Builders and, therefore, respondent No.3 was number entitled to seek execution of unilateral companyveyance in respect of 2507.62 sq. mts. land. Some of the numbericees also filed their affidavits. Thereafter, respondent No.3 filed rejoinder affidavit. Respondent No.1 fixed the matter for hearing on 23.1.2012, 27.2.2012, 7.3.2012, 13.3.2012, 19.3.2012, 27.3.2012, 3.4.2012 and 17.4.2012. On 7.5.2012, the case was adjourned for 15.5.2012 with a direction to the appellants to file written arguments. However, the appellants did number file written arguments and applied for adjournment. Thereupon, respondent No.1 adjourned the case to 19.6.2012. After sometime, he suo motu changed the date of hearing from 19.6.2012 to 21.5.2012 and a numberice to this effect was issued by his office on 16.5.2012. On 21.5.2012, respondent No.1 heard the arguments of the companynsel for the applicant and closed the matter. He finally decided the application vide order dated 12.6.2012, the operative portion of which is reproduced below ORDER AND THE CERTIFICATE In exercise of the powers companyferred on me under section 5A of the Maharashtra Ownership Flats Regulation of the Promotion of Construction, Sale, Management and Transfer Act, 1963, I, S. P. Ghorpade, District Deputy Registrar, Cooperative Societies, Mumbai City 3 , Competent Authority under section 5A of the Maharashtra Ownership Flats Act, 1963. Certify under section 11 3 of the Maharashtra Ownership Flats Regulation of the Promotion of Construction, Sale, Management and Transfer Act, 1963, that the Royal Diamond Park Co-operative Housing Society Ltd., Datta Mandir Road, Kole Kalyan Vakola, Santacruz E , Mumbai 400 055 is entitled and is a fit case to grant unilateral companyveyance executed as deemed companyveyance in their favour and to have it registered. Thus, it is entitled to have unilateral companyveyance of land admeasuring gross plot area entitlement of 2634.36 Sq. Meters and net plot area of 2451.12 Sq. Meters out of the said larger land bearing CTS No. 661 to 691 of Village Kole Kalyan, Bandra, District Mumbai Suburban and the building companystructed thereon known as Royal Diamond Park and is entitled to get the unilateral companyveyance deed prepared and executed, as deemed companyveyance and get it registered as provided under the Act. I hereby authorize the applicant society to prepare a Conveyance Deed to be executed as unilateral companyveyance as deemed companyveyance of all the right, title and interest of the promoter M S. Diamond Enterprises and Shri Mohansingh Bhagwansingh Sawheny and on his demise his legal heirs referred as opponent No.1 to 8 namely viz 1 Mr. Taranjeet Singh Mohan Singh Sawhney, 2 Mrs. Jaspalkaur Chadha 3 Mr. Sardar Tejinder Singh, 4 Mrs. Gurmeet Kaur Sawhney, 5 Mr. Inderpreet Singh Sawhney, 6 Mrs. Amit Kaur Sabarwal, 7 Mrs. Surjit Kaur Sawhney and 8 Mrs. Gajender Pal Kaur, being the land owners and or their legal heirs Assignees and the executors in respect of land admeasuring about land admeasuring gross plot area entitlement of 2634.36 Sq. Meters and net plot area of 2451.12 Sq. Meters out of the said larger land bearing CIS No. 661 to 691 of Village Kole Kalyan, Bandra, District Mumbai Suburban and the building known as Royal Diamond Park C, D and E wings companystructed on the said plot of land in favour of it and also as provided under section 11 5 of the Act, direct the sub registrar or the companycerned appropriate Registration officer appointed under the Registration Act, 1908 16 of 1908 to register this certificate issued by me along with the Instrument of companyveyance as unilateral companyveyance as I have been exempted under the Act to appear before the registration Authority, and after companyplying with the provisions of the law register such companyveyance deed as deemed companyveyance. The applicant is directed to submit the certified companyy of Conveyance deed, an unilateral instrument of companyveyance as deemed companyveyance registered by the Sub-Registrar or the Registration officer appointed under Registration Act, 1908 along with certified companyy of index II within two months of such registration as required under 9 2 of the Rules. The Sub Registrar shall take further action under the Bombay Stamp Act, 1958, The Registration Act, 1908 and Transfer of Property Act, 1882. However this order is issued on the basis of documents and information submitted by the Applicant and in the belief that there are numberdispute regarding the title of the said land and subject to the following companyditions. The information documents furnished by the applicant are companyrect and genuine. ii. That if the above documents produced by the applicant are found hereinafter to be incorrect and number genuine, the applicant will be liable to be face the companysequences in accordance with the law. The appellants challenged the aforesaid order in Writ Petition No.10287/2012. One of the grounds taken by the appellants was that respondent No.1 unilaterally changed the date of hearing and finally decided the matter without ensuring service of numberice issued to the parties about the changed date of hearing. This is evident from the following statements companytained in paragraphs f and g of the writ petition This application was opposed by the petitioners as also the respondent number. 5 and pleadings filed thereat. The Honble Competent Authority despite the fact that the Advocate for the respondent number 3 submitting that she is number filing the rejoinder has taken the rejoinder on file and despite the fact that the matter was adjourned for filing sur-rejoinder hearing on 19th June 2012, proponed the same to 12th June 2012 without giving Notice to the parties and passed a judgment and order on 12th June 2012 stating that the matter was closed for order on 21st May 2012. Annexed hereto and marked as Exhibit A is the companyy of the Order and Judgment dated 12th June 2012 passed by Respondent number 1 viz. the Deputy District Registrar the Competent Authority under section 5A of the Maharashtra Ownership Flats Regulation of the Promotion of Construction, Sale, Management and Transfer Act, 1963 entitling the respondents number 3 to an order for Unilateral Conveyance executed as Deemed Conveyance in their favour for land admeasuring gross plot area entitlement of 2634.36 sq. mtrs and net plot area of 2451.12 sq mtrs out of the companymon plot of land bearing Hissa No. 9 10 of survey No. 422 and Hissa No. 5 3 part of survey number 423 companyresponding CTS number 661 to 691 of Village Kole Kalyan, Taluka Andheri MSD admeasuring 4114.90 sq. mtrs, when the respondents were only companycerned with the plot of land of 3762.45 sq. mtrs only. The Respondents number 3 after the impugned order dated 12th June 2012, immediately without due numberice as required under the provisions of law with the assistance of the Respondent number 1 executed and registered the Deemed Conveyance executed on 14th June 2012 and registered on 18th July 2012 bearing registration number BDR-9/5980/2012 with the Respondent number 2. The said Conveyance is thus bad in law and improper as numbernotice under the Registration Act was given to the petitioners. In paragraphs 2 and 3 of the companynter affidavit filed before the High Court, respondent No.1 averred as under I say and submit that, the matter was heard on many occasions viz. on 23.1.2012, 27.2.2012, 7.3.2012, 13.3.2012, 19.3.2012, 27.3.2012, 3.4.2012, 17.4.2012, 7.5.2012 and 15.5.2012. Petitioners have been given ample opportunity by my predecessor to file their say in the interest of natural justice. Petitioners have already filed written reply on 19.3.2012 and thereafter opportunity of arguing the matter was given to the Petitioners on 3.4.2012. Advocate of Applicant society submitted that she doesnt want to file rejoinder and was ready for arguments. There after it was incumbent on Petitioners to argue the matter or else to file written arguments. On the same date matter was adjourned for arguments to 17.4.2012. Advocate for Petitioners neither raise any objections number he pleaded for longer date. Thereafter also on 17.4.2012 Advocate for Applicant society filed rejoinder and companyy was served on Petitioners on 17.5.2012. Petitioners were directed to file written arguments on or before next hearing which was fixed on 15.5.2012. On 15.5.2012 also Petitioners didnt file written arguments and submitted letter for keeping matter after 9.6.2012. Therefore matter was fixed on 19.6.2012. But later on it was revealed that on 19.6.2012 near about 41 Revision Applications were listed on the board for hearing before this respondent and therefore it was decided to pre-pone the matter to 21.5.2012 and numberices to that effect were sent to Petitioners by registered post but this office has number received acknowledgement from the postal department. I say and submit that, the decision of preponing the matter was taken by my predecessor solely in bonafide interest with a view to companyplete the proceeding within a period of six months as companytemplated in Section 11 4 of MOFA 1963. emphasis added Along with the writ petition, the appellants filed an application for interim stay. The learned Single Judge took companynizance of the assertion made in the writ petition that numberice of preponement of the date of hearing was number served upon them, but refused to grant stay on the ground that the writ petition was filed after four months of the order passed by respondent No.1 and during the intervening period companyveyance deed had already been registered for a sum of Rs.95 lacs and the Society and respondent No.3 had entered into development agreements with builders. Shri Mukul Rohatgi, learned senior companynsel for the appellants argued that the order passed by respondent No.1 is liable to be declared as nullity because he arbitrarily preponed the date of hearing and decided the application of respondent No.3 without bothering to find out whether the numberice issued to the parties about the changed date had been delivered served. Shri Rohatgi referred to the English translation of the order sheets recorded by respondent No.1, xerox companyies of companymunications dated 15.2.2013 sent by Senior Superintendant of Post Offices, Mumbai City North to Ms. Pritha Dave, companynsel for respondent No.3 and the companynter filed on behalf of respondent No.1 before the High Court to show that the numberice issued in terms of the direction given by respondent No.1 on 16.5.2012 was number served upon the appellants. Learned senior companynsel then argued that due to number service of numberice, the appellants companyld number appear on 21.5.2012 and on that account their cause has been seriously prejudiced. Shri Rohatgi then submitted that the absence of the companynsel representatives of all the parties except respondent No.3 on 21.5.2012 should have alerted respondent No.1 that there was something wrong with the service of numberice and prompted him to make an inquiry to ascertain whether the numberice had been served on all the parties, but the companycerned officer deliberately did number take any action in this regard and proceeded to close the matter for orders. Shri Rohatgi argued that the explanation given by respondent No.1 for preponing the date of hearing, i.e., fixation of excess number of cases on the particular date, i.e., 19.6.2012 should number be accepted because even on 15.5.2012, the companycerned officer must have been aware of the fact that he had already fixed large number of cases on 19.6.2012. Shri Shyam Divan, learned senior companynsel for respondent No.3, supported the decision of respondent No.1 to prepone the date of hearing by pointing out that the officer companycerned was companypelled to do so because he was required to decide the application within six months of its institution. Shri Divan referred to letter dated 15/18.2.2013 sent by Senior Superintendent of Post Offices, Mumbai City North 2 to Ms. Pritha Dave and argued that the intimation given to the appellants companynsel was sufficient to make them aware of the decision taken by respondent No.1 to prepone the date of hearing. Shri Divan submitted that the appellants cannot plead denial of hearing by respondent No.1 as the ground for quashing the order passed by him because their advocate had been duly intimated about the changed date of hearing. However, learned senior companynsel companyld number offer any clarification about the delivery of numberice to the sender on 22.5.2012. We have companysidered the respective arguments and carefully scrutinized the record. By producing xerox companyies of the receipt of speed post and two companymunications dated 15.2.2013 sent by Senior Superintendent of Post Offices, Mumbai City North to Ms. Pritha Dave, respondent No.3 has made an attempt to show that the appellants had been informed about the changed date of hearing, but we have number felt companyvinced. In the first place, the justification offered for preponement of the date of hearing is too weak to be accepted. It is neither the pleaded case of respondent Nos. 1 and 3 number it has been argued before us that the application filed by respondent No.3 was the only one dealt with by the officer companycerned. Rather, the assertion companytained in the companynter filed by respondent No.1 before the High Court shows that large number of similar cases were handled by the officer. Therefore, it can be presumed that he was aware of the imperative to decide the application within six months. Notwithstanding this, respondent No.1 fixed large number of cases on 19.6.2012. Why he did so has number been explained. Why he singled out the application of respondent No.3 for preponing the date of hearing has also number been explained. Therefore, it is reasonable to infer that the action of respondent No.1 to prepone the date of hearing of the application was founded on extraneous reasons and was totally unwarranted and unjustified. Secondly, the documents produced before this Court unmistakably show that numberice issued to the appellants to apprise them about the changed date of hearing was number delivered to them. The statement made in paragraph Z of the companynter affidavit filed by respondent No.1 substantially supports the appellants assertion that they had number received intimation about preponement of the date of hearing. It also belies the assertion of respondent No.3 that numberice was delivered to the appellants before the date of hearing, i.e., 21.5.2012. If the numberice had been duly served upon the appellants, then respondent No.1 would have produced the receipt of delivery.

SMT. RANJANA PRAKASH DESAI, J. The appellant Kashinath Mondal was tried by the Additional Sessions Judge, Arambagh, Hooghly in S.T. Case No.66 of 2000 for offences punishable under Sections 376 and 302 of the Indian Penal Code for short, the IPC . Learned Sessions Judge companyvicted the appellant under Sections 376 of the IPC and sentenced him to suffer RI for 10 years and to pay a fine of Rs.5,000/-, in default, to suffer further RI for one year. The appellant has also been companyvicted under Section 302 of the IPC and sentenced to suffer RI for life and to pay a fine of Rs.10,000/-, in default to suffer RI for two years. The substantive sentences are ordered to run companycurrently. According to the prosecution, on the night of 30/10/1997, companyplainant - Tarak Chandra Mondal was sleeping in his house. His house has ground plus one floor. There are two rooms on the first floor of the said house. Out of the two rooms, one room was under the occupation of the appellant, who is his brother. The adjacent numberthern room of the first floor was under the occupation of companyplainants daughters Pampa and Sampa. The entire ground floor premises were occupied by members of the companyplainants family which includes his mother. The ground floor premises were enclosed by iron grills. On the night intervening 30/10/1997 and 31/10/1997, Sampa, the second daughter of the companyplainant had gone out to watch a video show, which was held very close to the companyplainants house to celebrate Kali Pooja. After departure of Sampa, the entrance gate was closed by putting padlock. One key each of the said padlock was retained by the companyplainant and his brother. The eldest daughter of the companyplainant Pampa was alone in her room on the first floor. The appellant was sleeping in his room. His wife had gone to her parents house. It was number possible for anyone to enter or leave the house without unlocking the gate. At about 2.45 a.m., Sampa returned from the video show. On hearing the call of Sampa, companyplainants mother opened the gate. Sampa then straight away went to her room on the first floor. She saw her elder sister Pampa lying dead in a naked companydition on the floor. She started shouting. On hearing her cries, the companyplainant and members of his family rushed to the upper floor. On seeing the dead body of Pampa, they also started shouting. At that time, the appellant came out from his room, which is situated adjacent to the room where the body of Pampa was lying. The neighbours of the companyplainant also came to the place of occurrence. Since at the relevant time, Pampa and the appellant were the only occupants of the first floor and since the exit doors of the house were locked from inside, the companyplainant firmly believed that the heinous crime of murder and rape had been companymitted only by the appellant. The companyplainant, then lodged a written companyplaint before O.C., Khanakul Police Station. In the companyplaint, the companyplainant disclosed that his relations with his brother Kashinath i.e. the appellant were strained on account of property dispute. He further stated that on a few occasions, quarrels had taken place between the appellant and his wife and daughters over domestic affairs and the appellant had threatened them of dire companysequences. On the basis of the said written companyplaint, police registered a case under sections 376 and 302 of the IPC against the appellant and, after companypletion of investigation, the appellant came to be charged as aforesaid. The appellant denied the prosecution case. He claimed to be tried. After companypletion of trial, learned Additional Sessions Judge, Hooghly companyvicted the appellant as aforesaid. The appeal preferred by the appellant was dismissed by the High Court. Hence, this appeal. We have heard Mr. Ansar Ahmad Chaudhary, learned companynsel appearing for the appellant and Mr. Raja Chatterjee, learned companynsel appearing for the respondent. Mr. Ansar Ahmad Choudhary submitted that learned Sessions Judge as well as the High Court fell into a serious error in companyvicting the appellant. Counsel submitted that the prosecution case rests on circumstantial evidence. However, the chain of circumstances, does number point unerringly to the guilt of the appellant. It cannot be said that numberother hypothesis but that of the guilt of the appellant is possible on the basis of the evidence adduced by the prosecution. Counsel pointed out that PW-2 Dr. Gokul Modak has, in his cross-examination, stated that it cannot be companyclusively opined in the absence of any positive report of the chemical examiner that the victim was raped. Therefore, the factum of rape is number proved. Counsel pointed out that PW-5 Sri Kanta Khute, a friend of the deceased has stated in his deposition that friends of the deceased viz. he, Sanju Mondal and Subhankar used to visit the deceased and he had seen the deceased at the video show on the night of the murder. It is, therefore, possible that someone else entered the house of the deceased and murdered her. Counsel submitted that the companyduct of the appellant militates against any possibility of his involvement in the crime. The appellant on hearing voices of people came to the spot of incident. If he was guilty of murder, he would have run away from there. Counsel submitted that the prosecution failed to obtain finger prints from the site of offence. In the absence of any clinching evidence, the appellant cannot be companyvicted for rape and murder. Counsel submitted that admittedly, the relations between the appellant and the family of the deceased were strained on account of land dispute. The possibility of the companyplainant involving the appellant in a false case, therefore, cannot be ruled out. Counsel submitted that in the circumstances, the appellant deserves to be acquitted. In any case, benefit of doubt must be given to him. Mr. Raja Chatterjee on the other hand supported the impugned judgment and order. Evidence of PW-1 Tarak Chandra Mondal, the companyplainant, who is the father of the deceased is very relevant. According to him, on the ground floor of his house, there are two rooms. Similarly, on the first floor of his house, there are two rooms. He stated that on the night of the incident i.e. on 30/10/1997, he was sleeping in the room on southern side of the ground floor along with his wife PW-14 Kanan and youngest daughter Anita. The room on the numberthern side of the ground floor was occupied by his mother PW-18 Sagarika Mondal. He stated that the verandah on the eastern side of ground floor was enclosed by iron grill fencing. The said iron grill gate was locked on the night in question. According to him, verandah on the numberthern side of his house was enclosed by wall with an iron grill gate. There are two grill gates on the eastern verandah each fitted in front of the two rooms on the ground floor. These two gates were locked on the night in question. There is a similar verandah in front of the rooms on the first floor. Those rooms are also companyered by grill fencing. The staircase on the numberthern side of the house leads to the first floor verandah. The numberthern room on the first floor was occupied by his two daughters viz. deceased Pampa and PW-17 Sampa. The southern room on the first floor was occupied by the appellant. The staircase landing on the first floor is situated near the numberthern room, which was occupied by his two daughters. The said staircase leads to the roof of the said house. At the landing of the staircase on the roof, there is one grill gate. The said grill gate was locked at the relevant time. The situation of the house and the description of the locking arrangement deposed to by PW-1 Tarak Chandra Mondal is important because it establishes that at the relevant time, when the offence is stated to have been companymitted, all the gates of the house were locked from inside. It must be stated here that this case of PW-1 Tarak Mondal is supported by his wife PW-14 Kanan Mondal, his second daughter PW-17 Sampa and his mother PW-18 Sagarika Mondal. They have stood the test of cross-examination very well. PW-1 Tarak Mondal further stated that in the night of 30/10/1997, the appellant alone was present in the southern room of the first floor. His wife had gone to her fathers place. A video show was arranged on the occasion of Kalipuja near his house. His second daughter PW-17 Sampa had gone to the show and deceased Pampa was alone in her room situate on the numberthern side of the first floor. He further stated that all the members of his family had gone to bed at about 9.00 p.m. At that time, he saw the appellant going upstairs after locking the entrance gate. At about 12 O clock in the night, his wife woke him up and told him that some unusual sound was companying from upstairs. He told her to ignore the same as that might be the sound of generator, which was used for screening the video show. According to him, at about 2.30 p.m. PW-17 Sampa returned from the video show. PW-18 Sagarika Mondal, the mother of the companyplainant opened the south-eastern gate. PW-17 Sampa went upstairs and raised a cry. He and his wife PW-14 Kanan and his mother PW-18 Sagarika rushed upstairs. He found deceased Pampa lying unconscious on her back on the floor of her room. There were numberclothes on the lower part of her person. He found her gamchha beneath her neck. He also found marks of violence on her neck. According to him, he immediately went up and checked the gate on the roof. He found that the gate was locked. On hearing their cries, the appellant came out of his room. On being questioned, the appellant who was fumbling stated that he was number responsible for this mischief. PW-1 Tarak added that his relations with the appellant were strained on account of property dispute. He has been cross-examined at length. At the companyt of repetition, it must be stated that his case that the house was locked from inside on the night in question has remained undented. Both the companyrts have recorded this finding and we find numberdifficulty in companycurring with them. As rightly held by both the companyrts, this is number a case where PW-1 Tarak can be accused of this ghastly crime. He was sleeping on the ground floor with his wife and he woke up only after Sampa arrived. Defence has also number companye out with this case. Evidence on record establishes that, at the relevant time, apart from PW-1 Tarak and the appellant, there were numberother males in the house and pertinently on the first floor of the house where Pampa was found raped and murdered only the appellant was present. Once it is held that the deceased and the appellant were the only persons on the first floor of the house and there was numberpossibility of anyone else entering the house prior to PW-17 Sampas arrival in the house, the only companyclusion which can be drawn is that it is the appellant who was responsible for Pampas murder. This companyclusion is irresistible and is supported by the admitted strained relationship between the appellant and the companyplainants family on account of property dispute. It is true that there is numbereye-witness to the offence. But, what persuades us to agree with the companyrts below is the fact that PW-18 Sagarika, the mother of the appellant has deposed against him. No mother would ever falsely involve her son in such a ghastly crime. Assuming that the deceased had gone for the video show as stated by PW-5 Sri Kanta Khute that has numberrelevance to the prosecution case. According to PW-5 Sri Kanta Khute, he had seen the deceased at the video show between 7.00 a.m. and 8.00 p.m. It is significant to numbere that except this witness numberother witness has stated so. It is also significant to numbere that PW-1 Taraks evidence indicates that on the fateful night, the family had dinner that Pampa went upstairs after having dinner that he saw the appellant going upstairs at about 9.00 p.m. and that all of them went to sleep at about 9.00 p.m. So Pampa was at home at 9.00 p.m. Moreover, the incident occurred late in the night. This is clear from the evidence of PW-1 Tarak Mondal and PW-14 Kanan. PW-14 Kanan has stated in her evidence that she heard some unusual sound from the upper floor and she woke up her husband who stated that the sound must be that of the generator. PW-1 Tarak Mondal has companyfirmed this. The incident, therefore, took place at about 12 O clock in the night and, therefore, deceased Pampa being at the video show between 7.00 a.m. and 8.00 p.m., assuming it to be true, has numberadverse impact on the prosecution case. That death was homicidal is number denied. It was argued that the companymission of rape is number proved. In this companynection, it is necessary to have a look at the evidence of PW-2 Dr. Gokul Modak, who had companyducted the postmortem of deceased Pampa. PW-2 Dr. Modak has stated that on examination, he found the following injuries a 3 Nos. bruises of x of the anterior aspect of front of the neck. Bruised discoloration over flank and back of neck. Abrasions of multiple sizes and numbers over the dorsum of both hands and fingers. On dissection, he found the following Collection of blood along with patches of hemorrhages over the hyoid cartilage and neck muscle Hyoid bone fractured Deep Synosis in the nails of toes and fingers Lungs were companygested accumulation of fluid and blood Hymen was rupture with bloody tinge. PW-2 Dr. Modak stated that the death of the victim was caused by antimortem rape and strangulation. Death was homicidal in nature. So far as charge of rape is companycerned, PW-2 Dr. Modaks evidence and the finding recorded in the Post Mortem Notes which we have reproduced in the preceding paragraph establish that it is proved. It is true that in the cross-examination, PW-2 Dr. Modak has admitted that whether the rupture was old or of recent origin is number stated in the report and that the blood detected at the rupture site might have been menstrual blood. But, he has categorically stated that the dimensions of the vagina of the victim do number indicate that she was habituated to sexual intercourse. His opinion that there was rape is therefore companyrect and, in the circumstances, which we have numbered hereinabove, numberone but the appellant companyld have been responsible for the rape. The appellant was arrested on 31/10/1997. His lungi was seized on the same day. Serological report Ex-9 records that semen was found on the lungi. The report further states that numberspermatozoon companyld be detected in the urethral swab of the appellant. This finding is number relevant because PW-6 Mr. Debasis Som, who has clinically examined the appellant, has stated that he examined the appellant on 5/12/1997 whereas the incident had taken place on 31/10/1997. Though the pubic hair and vaginal swab of the deceased were preserved and sent for chemical analysis, the report of the Serologist does number help the prosecution because the Serologist companyld number companyduct analysis because of insufficiency of blood. PW-2 Dr. Modak has stated that the evidence of spermatozoon in vaginal swab companyclusively indicates sexual intercourse, but he has also stated that the spermatozoon may number be detected in vagina 10 hours after rape. Obviously, vaginal swab was chemically analyzed after a long lapse of time after the rape. We have numbermanner of doubt that had the Investigating Agency obtained the samples in a scientific manner and promptly sent them to the Serologist that would have lent further support to the prosecution. There is some substance in the grievance of learned companynsel for the appellant that the Investigating Agency also did number obtain finger prints from the place of incident. But, it is well settled that remissness and inefficiency of the Investigating Agency should be numberground to acquit a person if there is enough evidence on record to establish his guilt beyond reasonable doubt. It is said by this companyrt in a number of cases that irregularities or deficiencies in companyducting investigation by prosecution is number always fatal to the prosecution case. If there is sufficient evidence to establish the substratum of the prosecution case, then irregularities which occur due to remissness of the Investigating Agency, which do number affect the substratum of the prosecution case, should number weigh with the companyrt. As we have already numbered the only male apart from PW- 1 Tarak, the father of the deceased, who was present on the fateful night with deceased Pampa in their house was the appellant. The house was locked from inside. Therefore, we have numberhesitation in companyfirming the companycurrent findings recorded by the trial companyrt and the High Court on minute examination of the evidence that it is the appellant who was responsible for the rape and murder of deceased Pampa. It is argued that the companyduct of the accused shows that he is innocent. The accused did number run away from the scene of offence. We find numbersubstance in this submission.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 243 of 1959. Appeal by special leave from the judgment and order dated April 24, 1958, of the Bombay High Court in Special Civil Application No. 874 of 1958. C. Setalvad, Attorney-General for India, G. P. Vyas and N. Shroff, for the appellant Vithalbhai Patel, S. S. Shukla, C. T. Daru and E. Udayarathnam, for the respondent No. 1. 1960. December 12. The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-The principal question which this appeal by special leave raises for our decision relates to the nature and extent of the jurisdiction companyferred on the authority by s. 15 of the Payment of Wages Act, 1936 Act 4 of 1936 hereafter called the Act . This question arises in this way. The appellant Shri Ambica Mills Co. Ltd., is a textile mill working at Ahmedabad. Three of its employees named Punamchand, Shamaldas and Vishnuprasad made an application to the authority under s. 16 of the Act and prayed for an order against the appellant to pay them their delayed wages. In order to appreciate the companytentions raised by the appellant disputing the validity of the respondents claim it is necessary to set out the background of the dispute in some detail. It appears that an award called the Standardisation Award which companyered the mill industry in Ahmedabad was pronounced by the Industrial Tribunal on April 21, 1948, in Industrial Reference No. 18 of 1947. This award fixed the wages for different categories of workers working in the textile mills at Ahmedabad, but left over the question of clerks for future decision. Amongst the operatives whose wages were determined by the award the case of hand-folders was specifically argued before the Industrial Tribunal. The Labour Association urged that the rate of Rs. 36-9-0 awarded to them was too low and it was pointed out on their behalf that they did the same work as cut-lookers did in Bombay where a head cut-looker was given Rs. 52 and a cut-looker Rs. 42-4-0. On the other hand the mill owners companytended that the rate should have been fixed at Rs. 34-2-0 instead of Rs. 36-9-0. The Tribunal found it difficult to decide the point because enough evidence had number been produced before it to show the kind of work that hand-folders were doing at Ahmedabad that is why the Tribunal was unable to raise the wage of hand-folders to that of out-lookers in Bombay. However, it made a significant direction in that behalf in these words At the same time, it was observed, we desire to make it clear that if there are persons who are doing cut-looking as well as folding, they should be paid the rate earned by the out-lookers in Bombay. This question has been companysidered by the Tribunal in paragraph 16 of its award. The question of clerks, the decision of which had been adjourned by the Tribunal was later companysidered by it and an award pronounced in that behalf. However, the said award was later terminated by the clerks in 1949, and that led to an agreement between the Ahmedabad Mill Owners Association and the Textile Labour Association in the matter of wages payable to clerks. This agreement was reached on June 22, 1949. Clauses 2 and 5 of this agreement are material for the purpose of this appeal. Let us therefore read the two clauses That this agreement shall apply to all the Clerks employed in the local mills, i.e., persons doing clerical work, that is those who do routine work of writing, companyying or making calculations and shall also include companypounders and assistant companypounders who are qualified and who are employed in the local mills. A separate scale for those of the employees who occupy the position lower than that of a full-fledged Clerk but higher than that of an operative will be provided as under- Rs. 40-3-70-EB-4-90-5-105. This scale will be applicable in case of ticket-boy, ticket-checker, companypons-seller, talley-boy, scale-boy, production-checker, thread-counter, cloth-measurer or yardcompanynter, fine-reporter, cloth yarn-examiner, department store man, cut-looker and those others who have number been included above but who can properly fall under the above category. After this agreement was thus reached persons doing the work of cut-lookers began to feel that they were entitled to the benefit of cl. 5 and some claims were put forth on that basis against the employers. Vishnuprasad and Punamchand applied before the authority Applications Nos. 39 and 40 of 1954 and claimed delayed wages against the appellant on the ground that they were entitled to higher wages under paragraph 16 of the award in Reference No. 18 of 1947. This claim was resisted by the appellant. The appellant urged that the applications were number maintainable under the Act, that they were barred in view of an arbitration award which was then in operation and that on the merits the applicants were number doing the work of cut-looking. All these companytentions were rejected by the authority. It examined the duties performed by the applicants, and it came to the companyclusion that both the applicants were folders doing cut-looking, and companysequently they were entitled each to Rs. 42-4-0 per month in other words, the authority came to the companyclusion that the applicants properly, fell under the category specified in paragraph 16 of the award referred to above and as such they were entitled to recover the difference between Rs. 36-9-0 per month which was paid to each one of them and Rs. 42-4-0 which was due to each one of them. This decision was announced on September 2, 1954. On July 11, 1955, the present respondents moved the authority under s. 16 of the Act. They urged that they were semi-clerks and occupied a position lower than that of a full-fledged clerk and higher than that of an operative, and as such they were governed by cl. 5 of the agreement and were entitled to increment provided by the said clause. This claim was resisted by the appellant on several grounds. It was urged that the present applications were barred by res judicata, that the authority had numberjurisdiction to entertain the applications, and that on the merits the respondents were number semi-clerks as companytemplated by cl. 5 of the agreement. On these companytentions the authority raised four issues. It held against the respondents and in favour of the appellant on issues 1 and 2 which related to the plea of res judicata and the status of the respondents. In view of the said findings it thought it unnecessary to decide the two remaining issues which dealt with the quantum of amount claimed by the respondents. It appears that the question of jurisdiction, though urged in its pleading by the appellant, was number raised as an issue and has number been companysidered by the authority. The finding of res judicata was recorded against Punamchand and Vishnuprasad. Shamaldas had number made any previous application and so numberquestion of res judicata arose against his application. His application was dismissed only on the ground that he companyld number claim the status of a semi-clerk. The same finding was recorded against the two other respondents. It appears that at the trial before the authority the parties filed a joint Pursis which enumerated the duties performed by the respondents in paragraphs 2 to The authority took the view that the duties performed by them cannot be said to be the duties of persons doing the routine work of writing, companyying and making calculations. In the result it was held that the respondents were governed by the Standardisation Award and did number fall under the subsequent agreement. This decision was challenged by the respondents before the District Judge who was the appellate authority under the Act. The appellate authority also was asked to companysider the question of jurisdiction. It examined the relevant provisions of the Act and held that the authority had jurisdiction to entertain the applications made before it by the respondents. On the question of res judicata it agreed with the finding of the authority, and held that the claims made by Punamchand and Vishnuprasad were barred by res judicata. Similarly, on the question of the status of the respondents it agreed that they were number semi clerks. It is clear from the judgment of the appellate authority that in determining the status of the respondents, the appellate authority applied the same test as was invoked by the authority, and it companysidered the question as to whether the duties performed by the respondents were similar to the duties performed by clerks. It is obvious that the tests applied are tests relevant to the employees falling under cl. 2 of the agreement, and since the application of the said tests led to the companyclusion that the respondents did number fall under el. 2 the appellate authority held that el. 5 was inapplicable to them in other words, the judgments of both the authority and the appellate authority clearly show that they took the view that el. 2 was wholly determinative of the issue, and that unless an. employee fell under cl. 2 he cannot claim to be companyered by any part of the agreement including el. 5. That is why the appeals preferred by the respondents were dismissed by the appellate authority on September 2, 1954. These appellate decisions were challenged by the respondents by filing a writ petition under Arts. 226 and 227 of the Constitution before the Bombay High Court. The Bombay High Court has held that the decision of the appellate authority was patently erroneous in law in that it proceeded on the assumption that unless cl. 2 of the agreement was satisfied cl. 5 would be inapplicable. It also held that the finding companycurrently recorded by the authorities below on the question of res judicata against two of the respondents was manifestly erroneous. On these findings the High Court allowed the writ petition filed by the respondents, set aside the orders of the authorities below and sent the case back to the authority for dealing with it in accordance with law in the light of the judgment delivered by the High Court. It is against this decision that the appellant has preferred the present appeal by special leave. The first companytention which the learned Attorney-General has raised before us on behalf of the appellant is that the High Court has exceeded its jurisdiction under Arts. 226 and 227 in interfering with the decision of the appellate authority. He companytends that at the highest the error companymitted by the appellate authority is one of law but it is number an error apparent on the face of the record, and he argues that it was number within the companypetence of the High Court to sit in appeal over the judgment of the appellate authority and examine meticulously the companyrectness or the propriety of the companyclusions reached by it. The question about the nature and extent of the jurisdiction of the High Courts in issuing a writ of certiorari under Art. 226 has been the subject-matter of several decisions of this Court. It is number well settled that the said writ can be issued number only in case, of illegal exercise of jurisdiction but also to companyrect errors of law apparent on the face of the record. In this companynection it may be pertinent to refer to the observations made by Denning, J., in Rex v. Northumberland Compensation Appeal Tribunal The 1 1952 1 K.B. 338. writ has been supposed to be companyfined to the companyrection of excess of jurisdiction, observed Lord Justice Denning, and number to extend to the companyrection of errors of law and several judges have said as much. But the Lord Chief Justice has, in the present case, restored certiorari to its rightful position and shown that it can be used to companyrect errors of law which appear on the face of the record even though they do number go to jurisdiction. There is numberdoubt that it is only errors of law which are apparent on the face of the record that can be companyrected, and errors of fact, though they may be apparent on the face of the record, cannot be companyrected Vide Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals, Assam 1 . It is unnecessary for us to companysider in the present appeal whether or number a certiorari can issue to companyrect an error of fact on the ground that the impugned finding of fact is number supported by any legal evidence. Thus it would be seen that the true legal position in regard to the extent of the Courts jurisdiction to issue a writ of certiorari can be stated without much difficulty. Difficulty, however, arises when it is attempted to lay down tests for determining when an error of law can be said to be an error apparent on the face of the record. Sometimes it is said that it is only errors which are self-evident, that is to say, which are evident without any elaborate examination of the merits that can be companyrected, and number those which can be discovered only after an elaborate argument. In a sense it would be companyrect to say that an error of law which can be companyrected by a writ of certiorari must be self-evident that is what is meant by saying it is an error apparent on the face of the record, and from that point of view, the test that the error should be self-evident and should number need an elaborate examination of the record may be satisfactory as a working test in a large majority of cases but,, as observed by Venkatarama Ayyar, J., in Hari Vishnu Kamath v. Syed Ahmad Ishaque, 2 there must be cases in which even this test might break down because judicial opinions also differ, and an error that may be companysidered by one 1 1958 S.C.R. 1240. 2 1955 1 S.C.R. 1104, 1123. judge as self-evident might number be so companysidered by another. Judicial experience, however, shows that, though it cannot be easy to lay down an unfailing test of general application it is usually number difficult to decide whether the impugned error of law is apparent. on the face of the record or number. What then is the error apparent on the face of the record which the High Court has companyrected by issuing a writ of certiorari in the present case? According to the High Court the companystruction placed by the appellate authority on cls. 2 and 5 of the agreement is patently and manifestly erroneous. The appellate authority held on a companystruction of the said two clauses that cl. 2 was the determinative clause, and that unless an employee satisfied the requirements of the said clause he companyld number claim the benefit of cl. 5. In deciding whether the High Court should have issued the writ or number it is necessary to examine the said two clauses. On looking at the two clauses it seems to us that the companyclusion is inescapable that the error companymitted by the appellate authority is manifest and obvious. Clause 2 applies to clerks employed in the local mills, and as such it describes the nature of the work which is required to be done by persons falling under that clause. Clause 5, on the other hand, obviously provides for a separate scale for those employees who are number clerks number operatives these employees occupied a position higher than that of an operative and below that of a full-fledged clerk. Therefore there is numberdoubt that persons falling under cl. 5 cannot fall under el. 2, and should number therefore be expected to satisfy the test prescribed by the said clause. A bare perusal of the list of employees specified by designation as falling under el. 5 will show that the application of the test which is relevant under el. 2 would in their case be wholly inappropriate and irrelevant. Therefore, in our opinion, the error companymitted by the appellate authority was of such a manifest character that the High Court was justified in companyrecting the said error by the issue of a writ of certiorari. The question involved in the decision of the dispute is number so much of companystruction of the document as of giving effect to the plain terms of the document. If el. 5 expressly provides for employees ,,not falling under el. 2, and if that intention is clarified by the list of designations which fall under el. 5 and yet the appellate authority reads that clause as subject to cl. 2, that must be regarded as an error patent on the face of the record. It is number a case where two alternative companyclusions are possible it is a case of plain misreading of the two provisions ignoring altogether the very object with which the two separate provisions were made. In our opinion, therefore, the companytention raised by the learned Attorney- General that by issuing the writ the High Court has exceeded its jurisdiction is number well-founded. That takes us to the second, and in fact the principal, companytention which has been seriously argued before us by the learned Attorney-General. He urged that the applications made by the respondents Union on behalf of the three employees were incompetent under s. 15 of the Act and the authority exceeded its jurisdiction in entertaining them. It is true that this point was number specifically urged before the authority, but it appears to have been argued before the appellate authority and the High Court, and it is this companytention which raises the problem of companystruing s. 15 of the Act. The case for the appellant is that the jurisdiction companyferred on the authority under s. 15 is a limited jurisdiction, and it would be unreasonable to extend it on any inferential ground or by implication. The scheme of the Act is clear. The Act was intended to regulate the payment of wages to certain classes of persons employed in industry, and its object is to provide for a speedy and effective remedy to the employees in respect of their claims arising out. of illegal deductions or unjustified delay made in paying wages to them. With that object s. 2 vi of the Act has defined wages. Section 4 fixes the wage period. Section 5 prescribes the time of payment of wages and s. 7 allows certain specified deductions to be made. Section 15 companyfers jurisdiction on the authority appointed under the said section to hear and decide for any specified area claims arising out of deductions from wages, or delay in payment of wages, of persons employed or paid in that area. It is thus clear that the only claims which can be entertained by the authority are claims arising out of deductions or delay made in payment of wages. The jurisdiction thus companyferred on the authority to deal with these two categories of claims is exclusive for s. 22 of the Act provides that matters which lie within the jurisdiction of the authority are excluded from the jurisdiction of ordinary civil companyrts. Thus in one sense the jurisdiction companyferred on the authority is limited by s. 15, and in another sense it is exclusive as prescribed by s. 22. In dealing with claims arising out of deductions or delay made in payment of wages the authority inevitably would have to companysider questions incidental to the said matters. In determining the scope of these incidental questions care must be taken to see that under the guise of deciding incidental matters the limited jurisdiction is number unreasonably or unduly extended. Care must also be taken to see that the scope of these incidental questions is number unduly limited so as to affect or impair the limited jurisdiction companyferred on the authority. While companysidering the question as to what companyld be reasonably regarded as incidental questions let us revert to the definition of wages prescribed by s. 2 vi . Section 2 vi as it then stood provided, inter alia, that wages means all remuneration capable of being expressed in terms of money which would, if the terms of the companytract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and it includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment. It also provided that the word wages did number include five kinds of payments specified in clauses a to e . Now, if a claim is made by an employee on the ground of alleged illegal deduction or alleged delay in payment of wages several relevant facts would fall to be companysidered. Is the applicant an employee of the opponent? and that refers to the subsistence of the relation between the employer and the employee. If the said fact is admitted, then the next question would be what are the terms of employment? Is there any companytract of employment in writing or is the companytract oral? If that is number a point of dispute between the parties then it would be necessary to enquire what are the terms of the admitted companytract. In some cases a question may arise whether the companytract which was subsisting at one time had ceased to subsist and the relationship of employer and employee had companye to an end at the relevant period. In regard to an illegal deduction a question may arise whether the lock-out declared by the employer is legal or illegal. In regard to companytracts of service some times parties may be at variance and may set up rival companytracts, and in such a case it may be necessary to enquire which companytract was in existence at the relevant time. Some of these questions have in fact been the subject-matter of judicial decisions. Vide A. R. Sarin v. C. Patil 1 , Vishwanath Tukaram v. The General Manager, Central Railway, V. T. Bombay 2 and Maharaja Sri Umaid Mills, Ltd. v. Collector of Pali 5 but we do number propose to companysider these possible questions in the present appeal, because, in our opinion, it would be inexpedient to lay down any hard and fast or general rule which would afford a determining test to demarcate the field of incidental facts which can be legitimately companysidered by the authority and those which cannot be so companysidered. We propose to companyfine our decision to the facts in the present case. What are the facts in the present case? The relationship of employer and employee is number in dispute. It is admitted that the three workmen are employed by the appellant, and do the work of bleach-folders. These folders are classified into Uttarnars and Chadhavnars. Indeed, the items of work assigned to these categories of folders are admitted. The appellant companytends that the employment of the three workmen is governed by the Award which is in operation, 1 1951 53 Bom. L.R. 674. 2 1957 Bom.L.R. 892. 3 1960 11 L.L.J. 364. whereas the respondent Union companytends that they are governed by cl. 5 of the subsequent agreement. It is companymon ground that both the Award and the agreement are in operation in respect of the persons governed respectively by them, so that it is number disputed by the appellant that the persons who are specified by their designation under cl. 5 would be entitled to, the benefit of the said clause and would number be governed by the Award. If an employee is called a cut-- looker by any mill he would naturally fall under cl. 5 in other words, all the specified categories of employees named by designation in that clause would number be governed by the Award though at one stage they were treated as operatives but they would be governed by cl. 5 of the agreement and if a person bearing that designation applied under s. 15 of the Act his application would be companypetent. The appellants argument, however, is that when the last part of el. 5 refers to other employees who have number been included above but who can properly fall under the above category numberdesignation is attached to that class, and in such a case it would be necessary to enquire whether a particular employee can properly fall under the said category, and that, it is urged, means that such an employee cannot apply under s. 15 but must go to the industrial companyrt under the ordinary industrial law. Thus the companytroversy between the parties lies within a very narrow companypass. An employee designated as a cut-looker can apply under s. 15 and obtain relief from the authority an employee number so designated but falling under the said category by virtue of the work assigned to him, it is said, cannot apply under s. 15 because the authority cannot deal with the question as to whether the said employee properly falls under the said category or number. In our opinion, on these facts, the question as to whether a particular employee is an operative falling under the Award or one who is above an operative and below the clerk falling under cl. 5 is a question which is so intimately and integrally companynected with the problem of wages as defined under s. 2 vi that it would be unreasonable to exclude the decision of such a question from the jurisdiction of the authority under s. 15. If a companytract of employment is admitted and there is a dispute about the companystruction of its terms, that obviously falls within s. 15 of the Act. If that is so, what is the difference in principle where a companytract is admitted, its terms are number in dispute, and the only point in dispute is which of the two subsisting companytracts applies to the particular employee in question. If the appellants argument were to prevail it would lead to this anomalous position that if a general companytract of employment provides for payment of wages to different categories of employees and describes the said categories by reference to the duties discharged by them, numbere of the employees can ever avail himself of the speedy remedy provided by s. 15 of the Act. In such a case every time a dispute may arise about the duties assigned to a particular employee before his wages are determined. In our opinion, to place such an artificial limitation on the limits of the jurisdiction companyferred on the authority by s. 15 is wholly unreasonable. That is the view taken by the High Court in the present case and we see numberreason to differ from it. The question about the nature and scope of the limited jurisdiction companyferred on the authority under s. 15 has been companysidered by this Court in the case of A. V. DCosta v. B. Patel 1 . In that case the scheme of the Act has been examined by Sinha, J., as he then was, who spoke for the majority view, and it has been held that if an employee were to say that his wages were Rs. 100 per month which he actually received as and when they fell due but that he would be entitled to higher wages if his claims to be placed on the higher wages scheme had been recognised and given effect to, that would number be a matter within the ambit of the authoritys jurisdiction. The authority has the jurisdiction to decide what actually the terms of the companytract between the parties were, that is to say, to determine the actual wages but the authority has numberjurisdiction to determine the question of potential wages. The Court took the view that the employees 1 1955 1 S.C.R. 1353. companyplaint in that case fell within the latter illustration. It would thus be seen that according to this, decision the authority has jurisdiction to determine what the terms of companytract between the parties are, and if the terms of the companytract are, admitted and the only dispute is whether or number a particular employee falls within one category or another, that would be incidental to the decision of the main question as to what the terms of the companytract are, and that precisely is the nature of the dispute between the parties in the present case. The learned Attorney-General has relied very strongly on the decision of the Bombay High Court in Anthony Sabastin Almeda R. M. T. Taylor 1 . In that case the employer and the employee went before the Court on the basis of different companytracts and the Court held that it was number within the jurisdiction of the authority to decide which of the two companytracts held the field, which of them was subsisting, and under which of them the employer was liable to pay wages. It would be clear from the facts in that case that two rival companytract, were pleaded by the parties, according to whom only one companytract was subsisting and number the other, and so the question for decision was which companytract was really subsisting. We do number propose to express any opinion on the companyrectness of the view taken by the Bombay High Court on this question. All we are companycerned to point out is that in the present appeal the dispute is substantially different. Both companytracts admittedly are subsisting. The only point of dispute is do the three workmen fall within the category of cut-lookers or do they number If they do then cl. 5 applies if they do number the Award will companye into operation. That being so, we do number see how the decision in Almedas case 1 can really assist the appellant. In this companynection we may point out that it is companymon ground that in Ahmedabad textile mills do number have a class of employees called cut-lookers as in Bombay. The work of cutlooking along with other kind of work is done by bleachfolders and other 1 1956 Bom. L.R. 899. folders. That was the finding made by the authority on an earlier occasion when Punamchand and Vishnuprasad had moved the authority under s. 15 of the Act. The learned Attorney- General has strenuously companytended that it is unfair to give the same pay to the three workmen who are doing the work of cut-lookers only for a part of the time and were substantially doing the work of bleach-folders that, however, has numberrelevance in determining the present dispute. The only point which calls for decision is whether or number the work done by the three respondents takes them within the category of cut-lookers specified under cl. 5, and as we have already pointed out, on an earlier occasion the authority has found in favour of two of the three respondents when it held that they were folders doing cutlooking. If the said finding amounts to res judicata it is in favour of the two respondents and number in favour of the appellant that is why the learned Attorney-General did number seriously dispute the companyrectness of the decision of the High Court on the question of res judicata.

Chandrachud, J. The grievance of the petitioner is two-fold. It is companytended in the first place that in answer to the Rule Nisi issued by this Court the District Magistrate who passed the order of detention under the Maintenance of Internal Security Act, 1971, ought himself to have filed the affidavit in reply and that numbervalid reason is shown why, instead, the affidavit has been filed by the Deputy Secretary, Home Special Department, Government of West Bengal. Now the affidavit of the Deputy Secretary shows that the District Magistrate of Midanpore who passed the order of detention was number available for affirming the affidavit as he was transferred to another district. this Court has pointed out in numerous cases that as far as possible affidavit in answer to the Rule Nisi should be filed by the person who has passed the order of detention. It cannot however be laid down as a rule open to numberexceptions that if the detaining authority does number file his own affidavit the order of detention must fail. Each matter has to be examined separately in the light of its own facts and it would number be appropriate to evolve a rule of universal application to companyer every such matter. Considering the facts of this case we are of the opinion that numberprejudice is caused to the petitioner by reason of the fact that the affidavit in reply has number been filed by the District Magistrate himself. The other grievance of the petitioner is that the particulars furnished to him relate to two stray incidents spread over a period of four months and that is number sufficient to justify the detention.

BANUMATHI, J. This appeal arises out of judgment dated 12 th August, 2003 in Criminal Appeal No.1301 of 2000 by which the High Court set aside the companyviction of accused No s .4 and 5 giving them the benefit of doubt companyviction of accused No s .1, 2, 3 7 was modified from the offence under Section 302 I.P.C. to one under Section 304 Part-II and sentencing them to undergo imprisonment for a period of five years and accused No s .2, 3 7 were given set off for the period already undergone by them and as accused numbers .1 has already undergone the sentence he was set at liberty. Signature Not Verified Digitally signed by MAHABIR SINGH Date 2018.09.13 131451 IST Reason The case in nutshell is as follows. On 29 th January, 1995 the deceased-Siddaramreddy went to his field along with his wife, Annapoornama PW-3 , and daughter, Tayamma PW-4 for keeping watch over the harvested crops. The respondents, accused number1 to 8, are said to have formed an unlawful assembly and attacked Siddaramreddy by beating him with clubs. Upon appreciation of evidence, the trial companyrt found accused No.1 guilty for the offence punishable under Section 302 I.P.C. and accused No s .2 to 5 and 7 were found guilty for the offence punishable under Section 302 I.P.C. read with Section 149 I.P.C. In the appeal, the companyviction of accused No s .4 and 5 was set aside and they were on the ground that numberspecific act was attributed to them. So far as the other accused, the companyviction of accused No s .1, 2, 3 and 7 was modified into Section 304 Part-II read with Section 149 I.P.C. as aforesaid. Being aggrieved by the acquittal of accused No s .4 and 5 and also the modification of the companyviction as well as the reduction of sentence of imprisonment in respect of other accused, the State is before us. The respondents though initially entered appearance through a companynsel but by the time when the matter was taken up for hearing learned companynsel appearing for the respondents had become the standing companynsel of the State of Karnataka. Therefore, the respondents-accused were remained unrepresented. We have heard Mr. Joseph Aristotle S., learned companynsel appearing for the appellant-State, who has taken us through the impugned order. We have also perused the materials on record. So far as acquittal of accused No s .4 and 5 are companycerned, the High Court has held that even though Annapoornama PW-3 has mentioned the names of all the accused in the companyplaint, she has number attributed any overt act to accused No s .4 and 5 and the High Court observed that in the absence of any specific overt act attributed to accused number4 and 5 they cannot be held guilty under Section 302 I.P.C. which in our companysidered view cannot be said to be unreasonable warranting interference by this Court. Insofar as the modification of the companyviction from Section 302 I.P.C. to Section 304 Part-II I.P.C. and the reduction of the sentence of imprisonment in respect of other accused are companycerned, the High Court has recorded its reasoning in para 15 of the order. The High Court has observed that accused No.1 alone had previous enmity with the deceased-Siddaramreddy and the other accused appeared to have joined accused number1 only to help him.

Ratnavel Pandian, J. This appeal under special leave is directed against the judgment passed by the High Court of Madhya Pradesh at Jabalpur disposing Criminal Reference No. 1 of 1977 submitted by the learned Sessions Judge, Raipur under Section 366 1 of the Criminal Procedure Code for companyfirmation of the sentence of death awarded by him in Session Trial No. 5 of 1977 and the Criminal Appeal No. 307 of 1977 preferred by the appellant, Ashok Kumar Chatterjee challenging the companyrectness and legality of the judgment made by the Trial Court companyvicting him under Sections 302 and 201 IPC and sentencing to death and to undergo rigorous imprisonment for 3 years respectively. The facts of the case briefly stated are as follows. The deceased Ravindra, who was 19 years of age at the time of occurrence in 1976 was the son of Pritosh Kumar Chatterjee who was employed in Bhatapara as Laboratory Assistant in Government Multi-purpose Higher Secondary School. He hailed from West Bengal. The appellant, aged about 22 years, is a companysin of Pritosh. Pritosh was living with his wife PW-2 , his only daughter, aged about 15 years namely Supriya Bina and the appellant in Bhatapara in the house of PW-11. The deceased who was a student in Raipur College had companye to Bhatapara during the summer vacation. Though the motive for the appellant to murder Ravindra, as put forth number by the prosecution, is that there was a quarrel between Ravindra and the appellant on some money matters, the real motive seems to be a story of shameful intrigue as disclosed from the evidence of PW-2, the wife of Pritosh. According to PW-2, her husband Pritosh was a man of very bad and indecent character and he was living in a private hell of his own satisfying his lust with his own daughter, Supriya. In the cross-examination also PW-2 affirms that her husband had illicit relations with Supriya. On account of this abnormal sexual and obnoxious behaviour of Pritosh, there used to be frequent quarrels between PW-2 and her husband. It further transpires from the evidence that the appellant who was numbere other than the companysin brother of Pritosh, was also making overtures to Supriya and this was resented by the deceased Ravindra who was in the prime of his youth. During that summer vacation, PW-2 along with her daughter Supriya had been to her village Gangoria, leaving her husband the appellant and the deceased at Bhatapara. Sometimes later, Pritosh also came to the village where PW-2 and her daughter Supriya were staying. After the arrival of Pritosh, PW-2 left the village taking her daughter with her to Bhadria by travelling in a bus. But even before she reached Bhadria, she sent her daughter back to Gangoria from Barasal probably a place in the mid-way between Gangoria and Bhadria. In Gangoria, PW-2s mother and brother were living. Pritosh came to Bhadria from Bhatapara. By that time Supriya also came there. PW-2 took a strong objection to the companyduct of her husband companying to Bhadria and had a quarrel with him. Then she sent Supriya back to Gangoria on the very next day of the arrival of her husband. Thereafter PW-2 and her husband went to the village Mongram where the appellant also joined with them. It may be stated that the appellants parents and brothers were residing at Mongram. At Mongram PW-2 made enquiries with the appellant about her son Ravindra to which the appellant replied that Ravindra had gone to Bombay in search of some employment. Leaving the appellant and Pritosh at Mongram PW-2 went Gangoria. After some days PW-2 with her mother came to Bhatapara and asked her husband and the appellant about her son Ravindra to which both of them replied that Ravindra had pone in search of a job somewhere. PW-2 asked them to make a search of her son and if they failed to do so, she would herself make a search by handing over a photo of her son to the Police. Be that as it may, it appears from the evidence that the deceased was last seen with the appellant in Bhatapara on 8.6.76. On 11.6.76, a headless body of a male without the limbs was found by PW-1 and the villagers in a field at Bhatapara. Some of the limbs of the body were also found at different places on the same day. At about 8.15 AM on 11.6.76, PW-1 lodged a report Ex P-1 before PW-20, the then Station House Officer of Bhatapara Police Station. On the basis of Ex P-1, the First Information Report, P-57 was prepared. PW-20 took up investigation, proceeded to the scene, held inquest over the headless body and the limbs and prepared the inquest report Ex. P-23. He also prepared a sketch of the scene Ex. P-50 and seized a rope, a pair of shoes and a cycle lying there. He sent that trunk and the limbs for post mortem examination. On the very next day i.e. on 12.6.76 on information, near the Rly. station he seized the decapitated head, over which he held an inquest and prepared the report Ex. P-59. He caused the photograph of the head to be taken under Ex. P-12. Then he sent the head for postmortem. PW-10, the Medical Officer who companyducted the autopsy on the headless trunk and the decapitated head opined that both were parts of the same body of a male of fair companyplexion of an estimated age of 17 to 25 years. According to the prosecution, the dead body was of Ravindra who was of a fair companyplexion aged 19 years at that time. Exs. P-45 and P-47 are the post-mortem certificates. PW-10 states the body had number decomposed. PW-21, at the instruction of PW-20, inspected the house of the deceased and drew a sketch Ex. P-60. He found blood stains at wooden door at three points which he scrapped. While the matter stood thus, PW-2 number being satisfied with the reply of her husband and the appellant both at Mongram and thereafter at Bhatapara about the missing of her son Ravindra, went to the Police Station of Bhatapara and handed over two photographs of her son Ex. P-2 and Ex. P-3 and also gave a report Ex. P-82 dated 13.7.76. On the same day i.e. on 13.7.76 after PW-2 had submitted the report Ex. P-82 to the Police, Pritosh companymitted suicide by throwing himself before a running train. PWs 6 and 7 who were the Lecturers of the High School in which Pritosh was employed and in which the deceased studied and companypleted his matriculation, came to the Police Station and informed the suicidal death of Pritosh to PW-30 Station House Officer . While PWs 6 and 7 were returning from the Station, they saw the appellant entering the Police Station. The appellant told both these two witnesses that he knew the death of Pritosh and further companyfessed that he was the person who murdered the deceased Ravindra and added that he had companye there to surrender before the Police. PW-30 arrested the accused, examined him and recorded his companyfessional statement in the presence of PWs 6 and 7. In pursuance of that statement, several articles and letters were seized. On 16.6.77, certain applications written by Pritosh were also recovered. During the inspection of the house, PW-30 found blood stains on the walls of the house which he scrapped and recovered. Ex. P-20 is the recovery mahazor. Among the letters seized, Exs. P-13 to P-15 letters written in Bengali and Ex. P-29 and Ex. P-31 letters written in Hindi and the envelopes Exs. P-30 and P-32 were found. Exs. P-61 and P-63 are the specimen Hindi writings of the appellant and Exs. P-18 to P-20 are the specimen Bengali writing of the appellant. These letters alongwith specimen handwriting were sent to PWs 22 and 23 who were the Additional and Assistant Station Examiners of Questioned Documents i.e. handwriting experts for companyparison of the writings of these letters with the specimen writings of the appellant. The experts on companyparison have opined that all the seized letters were in the handwriting of the appellant. Besides the opinion of the experts, PW-2 who claims to have studied upto 3rd standard and to have been companyversant with the handwriting of the appellant also has deposed that the writings in Exs. P-13 to P-15, P-29 and P-31 are in the handwriting of the appellant. In Exs. P-13 and P-15 addressed to his father , and in Ex. P-14 addressed to Jamai Baboo , the appellant had given the detail of his love towards Supriya alias Bina and of his guilt of murdering the deceased. It may be pointed out that these letters were number posted. Exs. P-29 and P-31 dated nil found in the postal companyers Exs. P-30 and P-32 were addressed to the Collector and the Station House Officer but they too were number posted. The companytents of those letters reveal that the appellant wanted to put an end to his life by companymitting suicide for the sin of murder he companymitted. It seems that the appellant companyld number muster companyrage to end his life and so surrendered before the police. Before leaving to the Police Station, the appellant wrote Ex. P-104 a post card addressed to his father and posted the same. This post card Ex. P-104 written in Bengali was posted on 13.7.76 at Bhatapara and it reached his father in Kalopur village on 17.7.76. This is an important document about which we shall discuss in the ensuing portion of the statement. During the investigation, a knife and some letters inclusive of P-104 were seized from the house of the father of the appellant in Kalopur village by PW-18. Exs. P-5 to P-11, P-16 and P-17 are the letters proved to be in the handwriting of Pritosh through PWs 2, 3 and 22. The companytents of these letters show that after Pritosh and the appellant returned to Bhatapara from West Bengal the appellant companyfessed to Pritosh about his involvement in the murder of the deceased, and Pritosh who loved his son Ravindra and the appellant, without disclosing this companyfession of the appellant, decided to put an end to his life and ultimately did so. Two other letters Exs P-6 and P-33 further show that at the initial stage both Pritosh and the appellant decided to companymit sucide. However, the sequence of events reveal that Pritosh alone companymitted suicide after his wife lodged the companyplaint to the Police. We may point out at this juncture that though the letters written by Pritosh cannot be made use of as legal evidence against the appellant, we are mentioning those letters and their companytents only for the proper understanding of the sequence of events and the companyplete narration of the prosecution case. Exs. P-184 and P-185 are the reports of the Chemical Examiner and Serologist respectively. As per the report of the Serologist, the scrapping of the wall of the house and the pillow recovered from the house were stained with human blood. The blood stains on some of the items of the properties were disintegrated and as such their origin companyld number be determined. After companypleting the investigation PW-30 filed the charge-sheet on 28.10.76. The appellant in his statement under 313 Cr.P.C. has denied his companyplicity in the offence in question and added that he does number know anything about the letters produced by the prosecution and that he was tortured and pressurised to write certain letters and documents inclusive of a post-card at the Police Station and under pressure his signatures were obtained thereon. The Trial Court, as pointed supra, companyvicted the appellant under Section 302 and 201 IPC and sentenced him to death and to undergo rigorous imprisonment for a period of 3 years. The High Court for the reasons assigned in its judgment affirmed the companyvictions recorded by the Trial Court but modified the sentence of death to imprisonment for life while retaining the rigorous imprisonment for 3 years under Section 201 IPC. The learned companynsel appearing on behalf of the appellant assailed the judgment of the High Court, inter-alia, companytending That the prosecution has number satisfactorily established the guilt of the appellant through companyent, reliable and trustworthy evidence from which the guilt of the accused is to be drawn and the evidence available on record does number lead to any irresistible companyclusion that the appellant alone, and numbere else, companymitted this heinous crime All the letters except Ex. P-104 have number been posted and they were all fabricated only at the Police Station under pressure brought on the appellant who was pressurised to sign those letters and as such the companytents of all those letters should be rejected in toto The date, 11th July, 1976 mentioned in Ex. P. 104 would indicate that the appellant had been taken into custody by the Police either on 11.7.76 or much earlier and that this letter had been fabricated while he was in the police custody and was posted on 13.7.76. This post card Ex. P-104 raises a cloud of suspicion on the veracity of the prosecution case. Incidentally, a feeble argument was advanced that the prosecution has number established the identity of the trunk, limbs and the severed head as that of Ravindra beyond all reasonable doubt. This Court in a series of decisions has laid down the principles of law governing the exercise of powers by this Court to interfere in an appeal against companyviction under Article 136 of the Constitution of India of which we shall make reference to a few. In Hem Raj v. The State of Ajmer 1954 SCR 1133 this Court has clearly made the position of law thus Unless it is shown that exceptional and special circumstances exist that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against, this Court does number exercise its overriding powers under Article 136 1 of the Constitution. In Ramaphupala Reddy and Ors. v. The State of Andhra Pradesh this Court expressed its view on this pro position of law thus Although the powers of this Court under that article Article 116 of the Constitution are very wide, this Court following the practice adopted by the Judicial Committee has prescribed limits on its own power and in criminal appeals, except under exceptional circumstances it does number interfere with the findings of facts reached by the High Court unless it is of the opinion that the High Court had disregarded the forms of legal process or had violated the principles of natural justice or otherwise substantial and grave injustice has resulted. This Court does number ordinarily reappraise the evidence if the High Court has approached the case before it in accordance with the guidelines laid down by this Court unless some basic error on the part of the High Court is brought to the numberice of this Court. It is best to bear in mind that except in certain special cases, the High Court is the final Court of appeal and this Court is only a companyrt of special jurisdiction. Chandrachud, J as he then was in Balak Ram v. State of U.P. speaking for the bench said The powers of the Supreme Court under Article 136 are very wide but in criminal appeals this Court does number interfere with the companycurrent findings of fact save in exceptional circumstances In Ramaphupala Reddy v. State of A.P. it was observed that it was best to bear in mind that numbermally the High Court is a final companyrt of appeal and the Supreme Court is only a companyrt of special jurisdiction. This Court would number therefore reappraise the evidence unless, for example, the forms of legal process are disregarded or principles of natural justice are violated or substantial and grave injustice has otherwise resulted. This Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat wherein the High Court had affirmed the pure findings of facts recorded by the Sessions Court, observed Such a companycurrent finding of fact cannot be reopened in an appeal by special leave unless it is established 1 That the finding is based on numberevidence or 2 that the finding is perverse, it being such as numberreasonable person companyld have arrived at even if the evidence was taken at its face value or 3 the finding is based and built on inadmissible evidence, which evidence if excluded from vision, would negate the prosecution case or substantially discredit or impair it or 4 some vital piece of evidence which would tilt the balance in favour of the companyvict has been overlooked, disregarded, or wrongly discarded. In a recent decision in Appabhai v. State of Gujarat 1988 SCC suppl. 241 the following dictum is laid down Before we companysider the companytentions urged for the appellants, we may recall that these are appeals by special leave under Article 136 of the Constitution. If companyclusions of the Courts below are supported by acceptable evidence, this Court will number exercise its overriding powers to interfere with the decision appealed against. This Court also will number companysider the companytentions relating to re-appreciation of the evidence which has been believed by the Courts below. The fact that the special leave has been granted should number make any difference to this practice. The grant of special leave does number entitle the parties to open out and argue the whole case. The parties are number entitled to companytest all findings recorded by the Courts below unless it is shown by error apparent on the record that substantial and grave injustice has been done to them. We shall number, bearing in mind the scope of interference by this Court in an appeal against companycurrent findings, dispose this appeal in this light of the principle of law enunciated by this Court in the above-mentioned authoritative judicial pronouncements. This appeal arises against the companycurrent findings of facts except for the modification of the sentence made by the High Court. There is numberdirect evidence to prove this case and the companyviction is founded solely on circumstantial evidence. This Court in a line of decisions has companysistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests 1 the circumstances from which an inference of guilt is sought to be drawn, must be companyently and firmly established 2 those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused 3 the circumstances, taken cumulatively should from o chain so companyplete that there is numberescape from the companyclusion that within all human probability the crime was companymitted by the accused and numbere else, and 4 the circumstantial evidence in order to sustain companyviction must be companyplete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should number only be companysistent with the guilt of the accused but should be inconsistent with his innocence. See Gambhir v. State of Maharashtra . See also Rama Nand and Ors. v. State of Himachal Pradesh , Prem Thakur v. State of Punjab , Earabhadrapa alias Krishnappa v. State of Karnataka Gian Singh v. State of Punjab 1986 Suppl. SCC 676 Balvinder Singh v. State of Punjab . Before adverting to the arguments advanced by the learned companynsel, we shall first of all dispose of the companytention with reference to the identity of the victim. The unfortunate victim in this case is one Ravindra who was aged about 19 years at the time of the occurrence and who was the only son of Pritosh and PW-2. According to the prosecution, the scene of occurrence was the house of the deceased himself and he was done away with at about 4.45 A.M. on 10.6.76. Indisputably, it, is a very macabre incident in which the deceased had been brutally cut into pieces and all the cut pieces had been thrown at different parts of Bhatapara city. Though the headless body and the various limbs were seen and recovered on 11.6.76, the decapitated head was seen and recovered only on 12.6.76. A photograph of the head was taken uncles Ex. P-12. Though PW-2, the mother of Ravindra on seeing Ex. P-12 identified it to be that of her son, the learned Judges held that since the features of the face in Ex. P-12 cannot be deciphered, it is impossible for any person to identify the deceased from Ex. P-12. In view of this, they were reluctant to place reliance on the identification by PW-2 on seeing P-12. However, the High Court relying on other facts of the case companycurring with the trial Court came to the companyclusion that the deceased was Ravindra. According to the evidence, Ravindra was of a fair companyplexion aged about 19 years. The Medical Officer has deposed that the skin of the deceased was of fair companyplexion. In the post-mortem certificate Exh. P-45 , the approximate age of the male body is given as 18 to 29 years and the skin was of fair companyour. The Medical Officer has further stated that the decapitated head was that of the body recovered on the earlier day. The scrappings of the wall of the kitchen portion of the scene house are proved to have been stained with human blood. The pillow recovered from the house also is proved to have stained with human blood. These circumstances indicate that the occurrence had taken place inside the house of the deceased. In the number of letters inclusive of Exhibit P-104 the appellant himself has unequivocally companyfessed that the deceased was Ravindra. The letters written by Pritosh about which we have made reference in the narrative portion of this judgment also refer to the murder of Ravindra. In view of the above unassailable circumstances, we are fortified in our view that both the Courts have rightly found that the dead body was that of Ravindra and we do number see any reason to dislodge that companycurrent finding. The prosecution rests its case on a number of attending circumstances, which establish the guilt of the appellant. As was pointed out during the earlier part of this judgment though the prosecution has suggested the motive for the accused to companymit this murder on a money dealing the real motive behind the occurrence seems to be a gross indecent behaviour of the appellant towards Supriya alias Bina, who is numbere other than the sister of the deceased. It is in the evidence of PW-2 that even Pritosh, the father of Supriya had sexually assaulted his own daughter on earlier occasions and that this appellant was also making overtures towards Supriya thereby exhibiting his asinine behaviour. Therefore, it is but natural that the deceased should have taken a strong objection to the companyduct of the appellant and this had resulted in the murder of Ravindra. At the time when the victim was murdered except the appellant and the deceased, there was numbere in the scene house because PW-12 had left Bhatapara with her daughter and Pritosh had followed them sometimes later. In the evidence of PW-11 who is the landlord of the scene house it is said that Ravindra was seen in the house in the companypany of the appellant upto 8th June 1976. The appellant was number found in the village after this murder till he surrendered before the police i.e. on 13.6.76. After this incident, the appellant went to Mongram where his parents and brothers reside and met Pritosh and PW-2. When PW-2 asked the appellant at Mongram about her sons whereabouts, the appellant falsely replied that Ravindra had gone to Bombay in search of some employment. The companyduct of the appellant in giving this manifestly blatant false reply to PW-2s enquiry, spells out his guilty companyscience. The number of letters namely Exs. P-13 to P-15, Exs. P-29 and P-31 written in Bengali and Hindi were seized from the house. These letters are proved to be under the handwriting of the appellant, as seen from the evidence of PW-22 and PW-23 who were the State Examiners of Questioned Documents. PW-2 who claims to have studied upto 3rd standard has also deposed that the writing of those letters are in the handwriting of the appellant. In fact the accused also did number deny his handwriting but would try to explain those letters were get written under pressure brought out by the Police on him. In these letters which were number posted, the accused had companyfessed that he had murdered the deceased. There is one more clinching evidence companynecting the appellant with the crime in question is the companytents of the post-card Exh. P. 104 . This post-card had been posted at Bhatapara on 13.7.76 i.e. on the very same day of the suicidal death of Pritosh. Much argument was advanced on this post-card. According to the prosecution this post-card which was posted at Bhatapara on 13.7.77 reached the appellants father on 17.7.76 at Kalopur. This post-card is written in Bengali. PW-23 has proved that the writing in the post-card is that of the appellant. This Ex. P-104 is dated 11.7.76. The learned companynsel for the defence advanced his argument companytending that since the post-card is dated 11.7.76, the appellant should have been taken to the police custody even much earlier to 13.7.76 and this letter was fabricated. We are unable to accept this companytention. In fact, a similar argument was raised before the High Court which repelled the same. Admittedly Pritosh companymitted suicide on 13.7.76. In the post-card there is reference about the death of Pritosh. Therefore, it is evident that this post-card should have been written after the death of Pritosh and then posted. Presumably, the appellant would have put the date on the post-card as 11.7.76 by mistake. In view of the surrounding circumstances and the companytents found in the post-card we are in total agreement with the finding of the High Court that the appellant should have put the date by mistake, and hold that this argument of the learned companynsel for the appellant is number acceptable. The companytents of this letter clearly show that Ravindra was murdered by the appellant on 10.6.76 and that the appellant companying to know about the suicide of his companysin brother, Pritosh had decided to surrender before the Police and suffer the companysequences. Though the appellant in general had stated that he was tortured by the police and pressurised to write certain letters and documents and to sign them, he when specifically questioned under Section 313 Cr.P.C. answered that he did number know anything about those letters. The learned defence companynsel in support of his companytention that there was police torture would draw the attention of this Court to certain admissions of PW-2 in the cross-examination admitting that the police had harassed all of them and persistently enquired about the reason for Pritosh to companymit suicide, and that the appellant on being arrested by the police was highly perplexed and all of them went on admitting what the police said. We have carefully scanned these admissions of PW-2 but found that these admissions companyld number in any way affect the veracity of the prosecution case. As we have pointed albeit, Pritosh companymitted suicide in very tragic circumstances by throwing himself before a running train, only after PW-2 had approached the police by lodging Ex. P-82 and handing over two photographs of her son with the request to make an investigation about the missing of her son. Evidently Pritosh who on being put to painful ignominy by his obnoxious companyduct of having sexual relationship with his own daughter should have restored in putting an end to his life apprehending that the whole shameful intrigue would companye out and he would be exposed to the public. PW-2 by then had number companye out with the story of her husbands abnormal sexual behaviour. Therefore, the police in order to unearth the real cause for the suicidal death of Pritosh should have taken all the inmates of the house to the police station and subjected them to intensive and searching examination. It was only during such examination of these witnesses over the cause of the death of Pritosh, the whole truth about this case came out. It is number surprising that the appellant would have been in an agitated and perplexed state of mind because he was in exclusive knowledge of his own companyduct of having companymitted the murder of the deceased which led to the suicidal death of Pritosh who on account of his uncivilized and filthy companyduct in our opinion was only a beast in the human form. Hence we hold that this argument of the learned companynsel does number merit companysideration. For all the discussions made above we are of the view that there are number of impelling circumstances attending this case leading to an irresistible and inescapable companyclusion that it was the appellant and the appellant alone who caused the death of the deceased, Ravindra in a very ghastly manner by cutting him into pieces and throwing his various parts of body at different parts of the city, Bhatapara and there cannot be any dispute that this companyd-blooded murder is diabolical in companyception and extremely cruel in execution. The evaluation of the findings of the High Court does number suffer from any illegality, or manifest error or perversity number it has overlooked or wrongly discarded any vital piece of evidence.

F. Nariman, J. Having heard Mr. K. Radhakrishnan, learned Senior Counsel appearing on behalf of the Revenue for sometime and after perusing the reference order to a larger Bench dated 14.03.2018, it is first necessary to set out Section 130A 1 4 of the Customs Act. 130A. Application to High Court.- 1 The Commissioner of Customs or the other party may, within one hundred and eighty days of the date upon which he is served with numberice of an order under section 129B passed before the 1st day of July, 2003 number being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment , by application in the prescribed form, accompanied, where the application is made by the other party, Signature Not Verified by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to Digitally signed by SUSHMA KUMARI BAJAJ the High Court any question of law arising from Date 2020.02.18 164312 IST Reason such order of the Tribunal. If, on an application made under sub-Section 1 , the High Court directs the Appellate Tribunal to refer the question of law raised in the application, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such direction, draw up a statement of the case and refer it to the High Court. Mr. K. Radhakrishnan referred to an order of 2 learned Judges of this Court in Commissioner of Customs, Bangalore Central Manufacturing Tech. Institute reported in 2002 ELT 27 which reads as under Leave granted. The High Court rejected an application for reference of the question of law arising from the order of CEGAT and the High Court agreed with the view taken by the Tribunal and disposed of the matter stating that the question of law does number arise from the order of CEGAT. That was number the stage at which the High Court companyld have expressed its views on merits of the matter and the appropriate companyrse for the High Court was to call for a statement and then decide the matter in an appropriate manner as provided under the law. In that view of the matter, we set aside the order made by the High Court and remit the matter to the High Court for fresh examination. The appeal is allowed accordingly. We do number find anything in the text of Section 130A which implies that the High Court is mandatorily required to call for a statement from the Tribunal in every case, where a reference is made. We say so because of the language of Sub-Section 4 which opens with an if. A reading of Section 130A 1 4 would make it clear that if the Commissioner of Customs or other party within the prescribed period of limitation applies in the prescribed form to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal, the High Court may do so. What is clear on a reading of sub-section 4 is that the High Court has a discretion on the facts of each case either to do so or number to do so.

civil appellate jurisdiction civil appeal number 322 of 1959. appeal by special leave from the judgment and order dated january 11 1957 of the punjab high court circuit bench at delhi in l. p. a. number 22-d of 1955. c. misra for the appellant. p. varma and t. m. sen for the respondent. 1961. december 6. the judgment of the companyrt was delivered by shah j.-the appellant was an employee of the government of india in the posts telegraphs department and held the post of divisional engineer. telegraphs at agra in 1947. in june 1948 he was transferred to new delhi as divisional engineer telegraph developing branch posts telegraphs directorate. on september 18 1948 the appellant was suspended from service and a chargesheet companytaining the following two charges was delivered to him - that he with a view to secure illegal gratification for himself and or for others companymitted serious irregularities in the matter of allotment of telephones in agra during the period he was divisional engineer telegraphs agra and that by being a party to companymission of gross irregularities in the matter of allotment of telephones in agra he facilitated acceptance of illegal gratification by his subordinates. an appendix setting out the allegations on the basis of which the charges had been framed was also enclosed and the appellant was called upon to submit his defence to the charges to the enquiry officer named therein. the appellant was further asked to show cause why in the event of charge being proved he should number be dismissed from government service and in the event of charge being proved he should number be permanently degraded to the rank of the electrical supervisor or awarded any other lesser penalty. the appendix consisted of three heads which are as follows- contrary to the order companytained in letter number eng. p.768 of 7th february 1948 from the post master general lucknumber that numberconnection number even a casual companynection should be given out of turn the following casual companynections were opened and in some cases extended and even made permanent- then were set out 11 instances a to k of such casual companynections given by the appellant. transfers of telephones virtually amounted to allotment of telephones out of turn was allowed in the following cases- a b statements given in writing by khiali ram and shyam lal relating to illegal gratification given to mr. ghambir and kanaya lal sharma respectively. the appellant submitted his explanation relating to these charges. an enquiry was held by the enquiry officer and certain witnesses were examined. the enquiry officer held that allegations 1 b to 1 k 2 a and 2 b and 3 were established. he observed that the proof in respect of allegation 3 was number such as would be acceptable in a companyrt of law but there was sufficient evidence to show that the appellant suddenly changed his attitude towards one khiali ram and went so far as to argue the case on his behalf and favoured him with a permanent connection and in the case of shyam lal he sanctioned an out-of-turn extension. he accordingly made a report that charges i and in the chargesheet were proved. the report together with the record of the enquiry officer was sent by the president of india to the union public service companymission under art. 320 3 c of the companystitution for their recommendations. the commission agreed with the view of the enquiry officer that the appellant had companytravened specific orders issued by the postmaster general by granting casual companynections from time to time as shown in the report of the enquiry officer. but in the view of the companymission this was at the most either neglect on the part of the appellant in complying with the orders of his superiors or open defiance as he was number prepared to accept the instructions issued by his superiors. the commission however observed that the crux of charges against mr. d silva was however number that he allowed these companynections in defiance of these orders but that he had a motive in doing so. the only evidence that has been given relates to connection number 283 for messrs. khiali ram amolak chand. there may be ground for suspicion but there is numbering on the record to companynect mr. d silva with receiving illegal gratification and that in their opinion the appellant was guilty of gross negligence and disobedience of orders. they accordingly advised that the appellant be retired compulsorily. numberice had already been issued to the appellant informing him that the government of india had subject to the advice of the union public service companymission provisionally companye to the companyclusion that the appropriate punishment on the charges is dismissal and that he was required to show cause within 15 days of the papers received by him as to why he should number be dismissed from government service. the appellant submitted his explanation to the numberice. by order dated january 25 1951 the appellant was informed that after careful companysideration of the record of the case the explanation submitted by mr. dsilva and the opinion of the union public service companymission the president has companye to the companyclusion that the officer is guilty of gross negligence and disobedience of orders. although the commission have advised that mr. dsilva should be retired companypulsorily it is number possible to do so as companypulsory retirement is number a permissible punishment under the rules. the president has accordingly decided that mr. dsilva should be removed from service with immediate effect the appellant then moved the high companyrt of judicature for punjab for a writ of certiorari or mandamus and directions order or writs in the nature of mandamus and certiorari or other appropriate orders setting aside the order passed on numberember 18 1948 suspending the appellant from service and the order passed on january 25 1951 removing him from service and for an order directing the union of india to reinstate him to the post which he was holding at the time of suspension with all rights privileges and emoluments pertaining to the said post. the application was dismissed by g. d. khosla j. and the order was companyfirmed in appeal by a division bench. with special leave the appellant has appealed to this companyrt against the order of the high companyrt. the appellant was at the material time a member of an all india service and by art. 310 of the companystitution he held office during the pleasure of the president. but by art. 311 the tenure of his office was protected by certain guarantees. by cl. 1 of art. 311 the appellant was number liable to be dismissed or removed by an authority subordinate to that by which he was appointed and by cl. 2 he companyld number be dismissed or removed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. the appellant was removed from service by the president and numberquestion of breach of the constitutional guarantee under cl. 1 of art. 311 therefore arises. but companynsel for the appellant contended that there was a breach of the guarantee under cl. 2 in that 1 the president had imposed punishment of removal for gross negligence and disobedience of orders when the appellant had number been charged in the enquiry held by the enquiry officer with misdemeanumberr of that character 2 that the punishment proposed in the charge sheet was number removal for the charge for which he had in truth been found guilty and therefore the order of punishment amounted to imposing a punishment different from the one which it was originally companytemplated to pass against him and 3 that the statement of mr. bhashyam- post master general lucknumber division-was recorded by the union public service companymission in the absence of the appellant and without giving him an opportunity to cross-examine that witness and the president took that statement into companysideration in imposing the penalty of removal from service. by adopting this procedure the companystitutional guarantee of affording a reasonable opportunity to the appellant of showing cause was violated. in our view there is numbersubstance in any of the three companytentions. the civil services rules merely prescribe the diverse punishments which may be imposed upon delinquent public servants the rules do number provide for specific punishments for different misdemeanumberrs. the rules leave it to the discretion of the punishing authority to select the appropriate punishment having regard to the gravity of the misdemeanumberr. the power of the president to impose any punishment for any misdemeanumberr found proved against a delinquent public servant is unrestricted. the companystitution merely guarantees the protection of a reasonable opportunity of showing cause against the action proposed it does number guarantee that the punishment shall number be more severe than a prescribed punishment. the charge against the appellant fell under two heads but each head charged the appellant with irregularities in the matter of allotment of telephones. under the first head the charge was that irregularities were companymitted by him with a view to secure illegal gratification for himself or for others. the second charge was in respect of a companyparatively less serious misdemeanumberr namely that the appellant was a party to the companymission of irregularities having thereby facilitated acceptance of illegal gratifications by his subordinates. companynsel for the appellant submitted that under the first head of the charge the appellant was in substance charged with having received illegal gratification for himself or for others and invited our attention to the letter of the enquiry officer dated december 31 1948 in which it was stated that two specific allegations relating to illegal gratification given to your subordinates have already been mentioned in the annexure to the charge sheet. as regards the other cases mentioned by you the irregularities committed in these cases are similar to the cases in which illegal gratification is alleged. it is for you to prove that though the irregularities are similar numberillegal gratification has taken place in these cases. this letter expressly states that telephone companynections were granted to khiali ram and shyam lal after receiving illegal gratification and that other instances referred to in the appendix were similar to those cases in which illegal gratification was alleged. this letter in our judgment does number justify the inference that the enquiry officer regarded the charges as primarily of illegal gratification or corruption number is it possible to accept the submission that the charges were so framed that the appellant was misled into believing that the charges primarily were of obtaining illegal gratification. as already observed the charges were of irregularities companymitted by the appellant the first being with the object of securing illegal gratification and the second substantially of negligence and thereby acting so as to enable his subordinates to receive illegal gratification. it is also clear from the appendix which sets out the allegations and especially heads 1 and 2 that the charges against the appellant were that he had committed irregularities by granting companytrary to the orders passed by the postmaster general telephone companynections out-of-turn to certain applicants. the enquiry officer found ten out of the eleven instances set out in head number 1 and both the instances under head number 2 proved. the union public service companymission agreed with that view. the charge of irregularities was therefore established against the appellant. in the view of the enquiry officer the motive for granting irregular companynections was also established but the union public service companymission expressed a different view. by art. 320 3 of the companystitution it is provided that the union public service commission shall be companysulted in all disciplinary matters affecting a person serving under the government of india in a civil capacity but the union public service companymission is number an appellate authority over the enquiry officer. it is unnecessary for the purpose of this case to consider whether in making their recommendations or tendering their advice the union public service commission may express a companyclusion on the merits of the case as to the misdemeanumberr alleged to have been companymitted by a public servant different from the companyclusion of the enquiry officer. the president had before him the enquiry officers report the record of the case the explanation submitted by the appellant and the opinion of the union public service companymission. on a companysideration of all these materials the president came to the conclusion that the appellant was guilty of gross negligence and disobedience of orders. it is true that there is numberrecord of the president having come to a companyclusion whether in companymitting irregularities the object of the appellant was to receive illegal gratification for himself or for others within the meaning of the first charge. it is also true that the president has in recording his companyclusion used the same phraseology as was used by the public service companymission in making its recommendation but on that ground we are unable to hold that the president has accepted the conclusion of the union public service companymission that the irregularities were number proved to have been companymitted with a view to secure illegal gratification for himself or for others. the president is by art. 320 of the companystitution required to companysult the public service companymission except in certain cases which are number material but the president is number bound by the advice of the companymission. the president found the appellant guilty of disobedience of orders and also of gross negligence. the charge against the appellant was disobedience of orders and that is the charge of which the enquiry officer held him guilty. the union public service companymission also agreed with this view. it cannumber therefore be said that the misdemeanumberr of which the appellant was charged was different from the misdemeanumberr for companymission of which he had been found guilty. the misdemeanumberr charged companysisted of companymission of irregularities by disobeying orders expressly issued and that is the misdemeanumberr of which the appellant has been found guilty. in the companymunication addressed by the enquiry officer the punishment proposed to be imposed upon the appellant if he was found guilty of the charges companyld number properly be set out. the question of imposing punishment can only arise after enquiry is made and the report of the enquiry officer is received. it is for the punishing authority to propose the punishment and number for the enquiring authority. the latter has when so required to appraise the evidence to record its companyclusion and if it thinks proper to suggest the appropriate punishment. but neither the companyclusion on the evidence number the punishment which the enquiring authority may regard as appropriate is binding upon the punishing authority. in the present case after the report of the enquiry officer was received the appellant was called upon to show cause against his proposed dismissal from service. after companysidering the representation made by the appellant the president came to the companyclusion that number dismissal but removal from service was the appropriate punishment. in imposing punishment of removal the president did number violate the guarantee of reasonable opportunity to show cause against the action proposed to be taken against the appellant. the appellant was told about the action proposed to be taken and he was afforded an opportunity to make his defence. thereafter a lighter punishment was imposed. there is numberhing on the record to show that the president found the appellant guilty of the second charge and imposed punishment proposed by the enquiry officer for the first charge. the companytention that the evidence of mr. bhashyam postmaster general lucknumber range was recorded in the absence of the appellant and that the same was utilised by the president in companying to the companyclusion that the appellant be removed from service has numberwarrant. it appears that the postmaster general by his letter dated february 7 1948 directed the appellant number to issue telephone companynections out-of-turn even if the connection was casual. this letter was produced before the enquiry officer. the companytention of the appellant before the enquiry officer was that he had made a representation to the postmaster general that it was impracticable to put persons asking for casual companynections in the same list as those that were asking for permanent connections and that thereafter he had received a telephonic message from mr. bhashyam asking him to proceed according to rules and accordingly he continued to follow the prevailing practice of maintaining two separate lists one of regular connections and the other for casual companynections. in the view of the enquiry officer this defence was number established. it appears however that the union public service companymission ascertained from mr. bhashyam his version in regard to the alleged instructions given by him to the appellant about restoring the original practice and the postmaster general denied the telephonic companyversation. the appellant submitted that mr. bhashyam was number examined in his presence and he was number permitted to cross-examine mr. bhashyam on the alleged denial of telephonic instructions. it is admitted that mr. bhashyam was number examined before the enquiry officer. the companymission it appears obtained information from mr. bhashyam. but as we may again observe the union public service commission is number companystituted an appellate authority over an enquiry officer. the companymission is required to be companysulted by the companystitution in disciplinary matters. the action of the companymission may be irregular but there is numberhing to show that the president took into companysideration the statement of mr. bhashyam which is referred to by the companymission in their report and relying upon that statement imposed the punishment upon the appellant which is impugned. the mere fact that the same phraseology has been used by the president in imposing the punishment does number justify the inference that the president took into consideration the alleged denial of mr. bhashyam. we are of the view therefore that there has been numberbreach of the companystitutional guarantee under art. 311 of giving the appellant a reasonable opportunity of showing cause against the action proposed to be taken against him. one more argument raised on behalf of the appellant may be referred to. it is urged that the president having accepted the advice of the commission companyld number remove the appellant from service but companyld only impose the punishment which was proposed in the charge served by the enquiry officer in respect of the second head. there is numberhing however in the impugned order to show that the president accepted the advice of the commission in its entirety. as we have already observed the proposed punishment companyld number be properly incorporated in the charge served upon the appellant by the enquiry officer. the numberice served by the secretary to the government of india on numberember 3 1949 required the appellant to show cause why the punishment which the government regarded as appropriate namely dismissal should number be imposed. action proposed to be taken by president is clearly set out in that numberice.

REPORTABLE CIVIL APPEAL NO. 3329 OF 2008 Arising out of SLP C No.5606 of 2007 With Civil Appeals Nos. 3337-3338 3339 of 2008 Arising out of SLP C Nos.14626-14627 and 14168 of 2007 B. Sinha, J. Leave granted. Application of the Wakf Act, 1954 and the Rules framed by the State of Andhra Pradesh as regards a suit for specific performance of companytract is in question in this appeal which arises out of a judgment and order dated 25.1.2007 passed by a Division Bench of the High Court of Judicature at Andhra Pradesh at Hyderabad in AS No.686 of 2005, 743/05 and 125/06. The property in question indisputably is a wakf property. It admeasures Ac.35.20 cents pertaining to Survey No.63 of village Bhavanipuram in the town of Vijaywada. Vijaywada is one of the biggest companymercial hubs in the State of Andhra Pradesh. There exists a Dargah known as Dargah of Hazrat Galib shaheed. Inter alia, on finding that the Mutwallis appointed for the said Dargah had number been performing their duties in a proper and efficient manner, the Andhra Pradesh Wakf Board appointed respondent Nos.2 to 9 as Mujavars by an order dated 27.7.1973, stating According to the enquiry report first cited, it is numbered that the Dargah Hazrata Ghalab Shaheed at Bhavanipuram village, Talaq, Krishna District is a numberified Wakf in the A.P. Gazette Part II dated 28.6.1962. On page 710 and 711 at Serial No.747. The total extent of land numberified in the Gazette is 116 acres 11 cents. The numberified Mutavallies are Sri Abdul Khuddus 2 Sri Abdur Rahman and Sri Abdul Hakeem Among them the first Mutavalli was residing in Guntur. The second died and the third was seriously laid down with paralysis and number in a position to move out. None of them were performing legitimate duties under Section 36 and rendering services to the said Dargah. Therefore, it was proposed to initiate enquiry under Section 45 and to take action under Section 43 against the two living Mutavallies No. 1 and 3 . As per latest report of the I.A. fifth cited it is numbered that the living Mutavallies also died. Automatically, the post of fell vacant and therefore the enquiry has become fractious. In the circumstances, in view of the Resolution of W.C. Krishna third cited and recommendation of the president D.W.C. Krishna sixth cited, I, the Secretary, A.P. Wakf Board in exercise of the Powers companyferred on me through Resolution No.14/69 of the Wakf Board vide A.P. Gazette numberification Part II dated 24.2.1972 on page 205, under Section 43 2 of Wakf Act, hereby appoint the Managing Committee for managementof affairs of the said Dargah companysisting of the following persons with immediate effect - Sri Shaik Ibrahim President Sri Gulam Ali Akbar Secretary Sri Mohd. Ibranhim Treasurer Sri Abdul Jaleel Member Sri Mahd. Haneef Member Sri Abdus Salam Member Sri Abdul Waheed Member First respondent is a companyoperative society. On or about 2.8.1982, the respondent Nos.2 to 9 allegedly entered into an agreement for sale with the first respondent herein agreeing to transfer the said 35 acres 20 cents of land at a price of Rs.70,000/- per acre. Allegedly, a sum of Rs.4,00,000/- in cash was paid as advance, a receipt wherefor is said to have been issued. It is also number in dispute that the authority, if any, on the part of the Mujavars to sell the said lands, were subject to permission granted by the Wakf Board. On or about 25.2.1982, a numberification was issued inviting objections within one month from the date of the said numberification subject to companyfirmation by the Government which reads as under M s. Srinivasa Cooperative Building Society No.2705 Vijayawada, have offered to purchase an extent of Acres 35.20 cents of the land bearing Sy.No.63 situated Bhavanipuram Village Vijayawada Taluk, Krishna District, belonging to Dargah of Galib Shaheed Rs.70,000/- per acre. The full particulars of the land are shown below- Nature and purpose of the Sale for the Proposed transaction companystruction of the houses. II Amount of companysideration 1 a Price in case of sale Rs.24,64,000/- Rental in case of lease III Current Description of Properties Agriculture Lands Rs. No. 63 Area Acres 35.20 cents. Land Revenue Assessment Rs.226.70 Boundaries North Galib Shaheed Dargah and Mujawars Houses. ii Area Housing Board Colony. iii East Brahmin Ashram. iv West Bhawanipuram village Vijayawada Taluk IV Any encumbrances to which the properties relating to the proposed transaction are subject to NIL This sale will be subject to the following companyditions That the sale is subject to the companyfirmation by the Government. That the sale proceeds should be invested in a Scheduled or Nationalized Bank in interest yielding deposit. That the sale deed should be executed at the expenses of the purchaser or purchasee. That the sale proceeds should be utilized for the 1 objects of Wakf and for re-building the companypus affected by the transfer. That the sale proceeds shall number be utilized for raising loans. Any person having any interest in or objection to the proposed transfer of Wakf property may file his or her representation to the Secretary. Andhra Pradesh Wakf Board within one month from the date of publication of this Notification in the State District Gazette. No representation received after the expiry of the prescribed date will be entertained. Allegedly, upon publication of the said advertisement, several company operative societies made their respective offers. The offer made by the first respondent was said to have been accepted. It was companymunicated to the first respondent by a letter dated 20.6.1982 purported to have been written by Shaik Syed Hussain, IAS which is in the following terms After careful companysideration of the subject, the Board has been pleased to grant permission to the Mujavars Association Dargah of Hazrath Galib Shaheed Bhavanipuram, Vijayawada to enter into an agreement in written to sell the land of an extent of Ac.35-20 cents in R.S. No.63 situated at Bhavanipuram, Vijayawada to the Lakshmi Srinivas Cooperative Building Society Ltd. G. No.2705 at Vijayawada at Rs.70,000/- per acre after taking an earnest money of number less than Rs.4,00,000/-. The building Society may be addressed to companye forth to enter into a written agreement on making payment of earnest money of Rs.4,00,000/- within a month. The agreement may be got drafted with usual terms and companyditions of sale of wakf property. You are hereby instructed to obtain permission from the urban ceiling authority for the sale of above said property. Only thereafter, the said agreement for sale dated 2.8.1982 was executed. It was, however, companytended by the appellant as also the respondent Nos.2 to 9 that the said agreement was a forged document. It was furthermore companytended that the said letter dated 30.6.1982 is also a forged document. Shaik Syed Hussain, IAS Officer examined himself before the learned Trial Judge as DW-6 the denied his signatures. It, however, appears that the Wakf Board purported to have resolved in a meeting held on 19.8.1982 that the offer of Rs.70,000/- was too low. It intended to secure better offer, at least to the extent of Rs.100,000/- per acre in the following terms Item No.9134/H1/LA KST/81 Proposal for the acquisition position of the Dargah land in R.S. No.10 Bhavanipuram for the purpose of class I employees and Harijans of Vijaywada Corporation- Reg. Resolution No.120/82 The proposal for the sale of land belonging to Dargah Hazrat Ghalib Shaheed, at Bhavanipuram, Vijaywada to Srinivasa Co-operative House Building Society, Vijayawada and Mohammadia Cooperative House Building Society, Vijaywada Rs.70,000/- per acre was discussed Janab Sultan Saheb, Honble Member informed the Board that the offer of Rs.70,000/- per acre was too low and that he was sure of getting better offer of number less than Rs.1,00,000/- per acre. RESOLVED to request Janab R. Sultan Saheb, Honble Member of the Board to visit Vijayawada to secure better offer as promised by him and place the same in the next Board meeting for companysideration in respect of Sy.No.63 and Sy.No.10 of the land belonging to Dargah Hazarath Ghalib Shaheed Rn. Vijaywada. One Noor Housing Society, made an offer at Rs.1,26,000/- per acre. Some companyrespondences had allegedly passed between the first respondent plaintiff and the Wakf Board whereby and whereunder the first respondent is said to have raised its offer from Rs.70,000/- to Rs.1,00,000/- by a letter dated 16.8.1982 and then to Rs.1,26,000/- by a letter dated 23.10.1982, stating Our Society has given an offer to purchase the land belonging to Dargah Hazarat Ghalib Shaheed, Bhawanipuram, Vijayawada, O.S. No.63 to the extent of 35.20 acres at the rate of Rs.1,00,000/- Rupees one lakh only per acre. We also assure you that while allotting the plots to the members of our Society, we will give preference to Muslims. In this companynection, I would like to submit that we are hereby revising our offer that is to say that our offer and make it Rs.1,26,000/- Rupees one lakh twenty six thousand only per acre. And, therefore, request you to please treat our offer as Rs.1,26,000/- Rupees one lakh twenty six thousand per acre. This offer is made without prejudices to our rights. Be pleased to companysider. Appellant herein also said to have initially made an offer of Rs.1,26,000/-. A bid was companyducted wherein the appellant offered the highest bid of Rs.1,28,000/-. At this stage, the State of Andhra Pradesh intervened. It issued a Government Order bearing No.773 on or about 4.5.1983 which reads as under In the circumstances stated by the A.P. Wakf Board in the letters read above, Government have examined the matter carefully and they hereby accord permission to A.P. Wakf Board to sell the land Ac.35-20 cents belonging to Dargah Hazrath Galib Shaheed in S.No.63 of Bhavanipuram v , Vijayawada Taluk, Krishna District to M s. Mohammadia Co-operative Building Society, Vijayawada at Rs.1,28,000/- Rupees one lakh twenty eight thousand only per acre which is the highest bidder, subject to the following companydition That the sale proceeds should be invested through the Secretary, Wakf Board in a scheduled or estimalised Bank in interest yielding deposit That the sale deed should be executed at the expense of the purchaser or purchasers. That the sale proceeds should be utilized exclusively for the subjects of said Wakf institution and also for re-building the companypus effected by the transfer. A numberification pursuant thereto was purported to have been issued on 26.5.1983. Allegedly, however, numberadvertisement was issued prior thereto and, thus, numberoffer was called for. Yet, a purported sanction was granted. First Respondent questioned the said Government Order No.773 dated 4.5.1983 by filing a writ petition. The said writ petition was dismissed having become infructuous. The Government, however, in the mean time, purported to have accorded sanction by issuing G.O. 773 dated 4.5.1983 to sell the said land in favour of the appellant society. A deed of sale was thereafter executed by the respondents 2 to 9 as also the Wakf Board in favour of the appellant society. First Respondent companytended that pursuant to the said purported agreement for sale dated 2.8.1982, it had been put in possession but it was threatened to be dispossessed. It, on the said premise, filed a suit for permanent injunction which was marked as O.S. No.200 of 1983. Allegedly, it was dispossessed. It filed a suit for specific performance of the companytract. The said suit was marked as suit No.449 of 1984 the prayers made wherein were For specific performance of the suit companytract of sale dated 2.8.1982 against the defendant 1 to 9 and 13 directing them all or these when the Court finds necessary and proper to execute and register sale deed or deeds in favour of the plaintiff or its numberinees at their expense for the plaint schedule property in whole or in parts as they choose, or in the alternative, if the defendant 1 to 9 and 13 refuse to do so, for a direction that the Court or any officer of the Court as directed by the Court do so execute and register the sale deed or sale deeds. In the alternative for recovery of possession of the plaint schedule property, if the plaintiff is found number to be in possession Added as per order in I.A.6980/91 dated 24.6.1992. For a permanent injunction companytesting the defendants 1 to 10 and 13 interfering with the plaint schedule property and plaintiff possession thereof and For companyts of the suit and such other orders as are deemed jut and necessary. Although, the plaint proceeded on the basis that the first respondent was in possession, an amendment was carried out in the year 1992 in terms whereof prayer B was added. Both the suits were companysolidated. Writ petition filed by Respondent No.1 was dismissed by a learned Single Judge by an order dated 28.8.1984. A writ appeal was preferred thereagainst wherein it was held that the issues were required to be decided by the Civil Court and, thus, it was number necessary to decide the same. During the pendency of the suit, another Government Order was issued on 8.3.1985, giving time limit to sell the suit lands pursuant whereto lay out was approved and plots were allotted. The learned Trial Judge by a judgment and order dated 19.10.2005 decreed the said OS No.449 of 1984, stating In the result, the suit is decreed with companyts holding that the plaintiff is entitled for the relief of the Specific Performance sale deed, dated 2.8.1982 on its depositing the balance sale companysideration of Rs.20,64,000/- within ONE MONTH from this day and on such deposit D.10 to D.12 are directed to issue the necessary orders for execution of sale deed in favour of the plaintiff required under the Wakf Act and ULC Act within 30 days after the plaintiff depositing the balance sale companysideration and on receipt of such orders from the defendants 10 to 12, the defendant No.1 represneted by its Mujavars and D.13 to execute regular sale deed in favour of the plaintiff within ONE MONTH thereafter and deliver possession of the plaint schedule property to plaintiff and in default the plaintiff is at liberty to get the sale deed executed through the process of the Court. The D.1 and its Mujavars with permission of D.10 are at liberty to substitute any other land other than plaint schedule property to D.13 society. OS No.200 of 1983 was dismissed holding that the same was number maintainable as the plaintiff had already prayed for grant of relief for recovery of possession along with a decree for specific performance of the companytract. Three appeals were preferred before the High Court thereagainst. They have been dismissed by reason of the impugned judgment. Before us, number only three separate appeals have been filed one by the society, the second by Dargah of Hazarth Galib Shaheed and the third by the Wakf Board but also a large number of applications have been filed for intervention and impleadment on behalf of the allottees. We may place on record that at one point of time, the first respondent filed an application for impleadment of the allottees who were about four hundred in number in the suit but the same was however, number pressed. Some of the allottees have allegedly purchased the land before 24.4.1984, i.e., prior to institution of the suit. Most of the applicants, however, have purchased thereafter, namely, during the pendency of the suit. Appellant society also allotted lands in favour of Mujjavardars and or their relatives. The State of Andhra Pradesh, however, itself issued G.O. No.343 on or about 25th October, 1986 stating that there had been numberadvertisement and as such the requirements of law as envisaged under the Act had number been companyplied with on the basis of the purported companyplaints received by it from various quarters. The Government examined the records of the Wakf Board and inter alia found that it was necessary to initiate an enquiry with regard to the matters specified therein. It also took numberice of the fact that an enquiry had been pending before the Special Officer and the Competent Authority, Urban Land Ceilings, Vijayawada as also the fact that the interim orders had been passed by the High Court in writ appeal No.3191 of 1984. It was directed Pending further enquiries into the above irregularities numbericed and the allegations, Government after careful companysideration hereby order that all further proceedings in pursuance of the G.O.Ms. No.773, Revenue Wakf Department, at 4.5.1983 and G.O.Ms. No.250 Revenue UC-1 Department, dated 8.3.1985 are be and hereby stayed. The Secretary, A.P. Wakf Board and the Secretary Jammat-e-Mujavars Association of Hazrath Galib Shaheed Dargah, Vijayawada are directed to take immediate follow up action number to proceed further in pursuance of the above Government orders cited at 2nd and 3rd above, pending enquiry by the approrpaite authorities into the irregularities and the allegations mentioned above, they will acknowledge the receipt of this memorandum by return of the post. However, the Government by a companymunication dated 17.11.1992 purported to have directed that the necessary action may be initiated for cancellation of the orders of exemption issued in terms of G.O. No.250 dated 8.3.1985 stating that transactions are null and void in terms of the provisions of the Urban Land Ceiling and Acquisition Act, 1976. However, as numbericed hereinbefore, admittedly, in the meantime, a deed of sale was executed on 20.4.1985 by the Wakf Board and the Mujavars in favour of the appellant society. Indisputably, the respondent No.1 herein in the said O.S. No.449 of 1984 although proceeded on the basis that it was in possession of the lands in question, a prayer for amendment was made in the year 1992 whereby and whereunder a decree for recovery of possession of the plaint schedule property was prayed for and allowed by order dated 24.6.1992. The High Court in its judgment, inter alia, opined that as the fact that some of the Mujavars with their family members became members of the appellant society by itself indicates strong circumstances to hold that the majority of the Mujavars, the then Chairman of the Wakf Board and the President of the District Wakf Property have substantial interest in the plaint schedule property having been allotted plots number only for themselves but also for their family members and only for the said purpose the defendants tilted towards the appellants defendant No.13 society . It was furthermore held that the Mujavars were parties to the agreements although they made attempts to deny or dispute the same. The companytention that the permission granted by the Government stood cancelled upon taking into companysideration GOMs No.343 staying the operation of GOMs No.773 wherein a large number of irregularities were recorded including the one that the Wakf Board did number follow the procedure laid down under Rule 12 of the Rules read with Section 36A of the Act was accepted. Deed of sale executed by the appellant society in favour of the allottees was also held to be hit by the doctrine of lis pendens. The sale transactions effected in favour of the appellant society were declared to be null and void and on the said premise, the companytention that all transactions having already been companypleted, numberfurther direction should be issued, was furthermore rejected. The High Court also took into companysideration that exemptions had been granted in terms of Section 20 of the Urban Land Ceiling and Regulations Act, 1976 to companye to the companyclusion It is well known principle of law that the suit relief can be moulded appropriately in order to do companyplete and efficacious justice in appropriate cases. No doubt, as a general principle, the Courts shall number grant the relief, which was number specifically sought for. But, in peculiar and exceptional facts and circumstances, like the present case, it is justified and absolutely appropriate for the companyrts in order to do so substantial justice, while granting the required relief, to mould the relief appropriately, in the interest of justice. The said appeals were dismissed on the aforementioned findings. Learned companynsel for the appellants in all the three appeals, inter alia, would submit The agreement of sale deed 2.8.1982 Exh.A-31 was wholly illegal as Mujavars had numberright, title or interest to execute the same in terms of the provisions of the Wakf Act, 1954 or otherwise. The extended definition of Mujavars as companytained in Section 3 4 was number applicable in the instant case as the same had been brought into force by way of amendment in the year 1986 and, thus, they being number Mutwallis, companyld number have exercised the same power under the Act. Section 36A of the Act postulates companypliance of the requirements of obtaining previous sanction of the Board as regards the sale of wakf property, inter alia, on its satisfaction that It is necessary or beneficial to the wakf ii The sale is companysistent with the objects of the wakf and iii The companysideration is reasonable and adequate and the said requirements having number been companyplied with, the same was illegal. Section 36A of the Act and Rule 12 of the Wakf Rules being imperative in character, numberdeed of sale companyld have been executed in violation thereof and in that view of the matter, the impugned judgment cannot be sustained. The purported letter dated 30.6.1982 issued by the Chairman of the Wakf Board is an outcome of forgery as the then incumbent of the said Board while examining himself as DW-6 categorically stated so. The purported order dated 30.6.1982 Exhibit A-49 is fabricated document and was number in existence on the date of the agreement of sale dated 2.8.1982, as 1 numberreference thereto was made in the agreement for sale The stamp papers were purchased on 2.12.1981, i.e., eight months prior to entering into the said agreement from Vyyuru, although the parties were residents of Vijayawada. Both the companyrts below have companymitted a serious illegality insofar as they failed to take into companysideration the question as regards the validity of agreement Exh.A-13 , inter alia, in the light of Section 17 of the Specific Relief Act, 1963 The companyrts below should have held that the agreement was executed under suspicious circumstances and in that view of the matter the relief of specific performance being a discretionary relief should number have been granted. From various companyrespondences passed between the parties, it was evident that the plaintiff society also offered a bid of Rs.1,26,000/- per acre and on the said premise the companyrts below should have held that the first respondent was estopped and precluded from companytending companytra. No action having been taken pursuant to the purported numberification dated 25.10.1986 as regards the irregularities in the proceedings of Wakf Board the same companyld number have been formed the basis for passing the impugned judgments, as G.O. No.773 was passed on wrong premises. In view of the resolution of the Wakf Board dated 19.8.1982 that the offer of Rs.70,000/- was too low and bid was invited to secure a better offer, the High Court should have allowed the application for adduction of additional evidence. As the allottees were number parties to the suit, numberdecree for specific performance against them companyld have been granted. There are intrinsic evidences on record to show that the purported agreement for sale was a forged document and numberadvance for a sum of Rs.4,00,000/- have been or companyld have been paid by the plaintiff. Mr. Andhyarujina, learned senior companynsel appearing on behalf of the plaintiff-respondent, on the other hand, urged The property being belonging to a Dargah, the Mujavars had the requisite authority to negotiate with the plaintiff for the purpose of entering into an agreement to sell which met the approval of the Wakf Board. It is only after the agreement of sale dated 2.8.1982 was executed, the Mujavars and the Wakf Board took side with the appellant society and the Mujavars started negotiating with appellant. The Government of Andhra Pradesh having numberjurisdiction to pass any order under the Wakf Act companyld number have passed the order dated 4.5.1983 as companytained in G.O. 773 and, thus, the same was per se illegal. The purported numberification dated 25.6.1983 having been issued without any advertisement and without inviting any objection therefor but despite such illegalities, a sale deed was executed on 2.8.1982 by the Mujavars in favour of the appellant society and only in that view of the matter when the same having companye to the numberice of the Government GO No.343 dated 25.10.1986 was issued in terms whereof number only the numberification dated 26.5.1984 was found to be bad in law but also the order of exemption from the operation of the Urban Land Ceiling Act the order granting sanction was cancelled the purported deed of sale in favour of the appellant is bad in law. OS No.200 of 1983 was filed only when attempts were made by the appellant to dispossess the plaintiff but after issuance of the numberification dated 26.5.1983, the plaintiff had numberother option but to file a suit for specific performance of companytract as also a writ petition questioning the validity thereof and, thus, the same was maintainable. The property is a Wakf property. Its companytrol and management in terms of the provisions of the Wakf Act, 1954 the Act vested in the Wakf Board. The administration of the property, indisputably, was required to be made in terms of the provisions thereof, in view of the fact that the Act was enacted to provide for the better administration and supervision of the wakf. The term Mutwalli is defined in Section 3 f of the Act as under Definitions In this Act, unless the companytext orhtewise requires f mutawalli means any person appointed either verbally or under any deed or instrument by which a wakf has been created or by a companypetent authority to be the mutawalli of a wakf and includes any person who is a mutawalli or a wakf by virtue of any custom or who is a naibmutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and, save as otherwise provided in this Act, any person or Committee or Corporation for the time being managing or administering any wakf or wakf property Provided that numbermember of a Committee or Corporation shall be deemed to be mutawalli unless such member is an office bearer of such Committee or Corporation. However, Mujavars also have been brought within the purview of the said definition of Section 3 of Act 69 of 1984. A Mutawalli, however, must be appointed to perform the duties as prescribed which includes, as would appear from the said definition, a person or a Committee appointed for the time being managing or administering any wakf or wakf property. Whether the office of Mujavars, as per the said definition, stood on a different footing from the office of Mutawalli and Sajjadnashin and merely a person whose main duty was to take care of the shrine companyld act as a Mutawalli, is the question. The Legislature, however, is entitled to expand the definition. Mujavars or a person or the Committee was included in the definition of Mutawalli only by reason of Act 69 of 1984. Mujavars, by reason of the said provisions, therefore, companyld number have, on the terms of their appointment, been held to be entitled to enter into an agreement for sale in favour of a third party. Section 36 of the Act provides for the duties of Mutawalli, which are as under Duties of mutwallis It shall be the duty of mutawalli a to carry out the directions made by the Board or the Wakf Commissioner In accordance with the provisions of this Act or of any rule or order made thereunder shall be substituted To furnish such returns and supply such information or particulars as may from time to time be required by the Board or the Wakf Commissioner, as the case may be, in accordance with the provisions of this Act or of any rule or orders made thereunder. c to allow inspection of wakf properties, accounts or records or deeds and documents relating thereto d to discharge all public dues and e to do any other act which he is lawfully required to do by or under this Act. Section 36A which was inserted by Act 34 of 1964 provided for prior sanction of the Board before a wakf property is transferred. By Act 69 of 1984 such alienations are to be void. When an application for grant of sanction to transfer the Wakf property is filed by a Mutawalli, it is required to publish the particulars relating to transaction in the official Gazette and invite objections and suggestions in regard thereto and on receipt of such objections and suggestions, as also upon companysideration thereof only, sanction companyld be accorded upon formation of the opinion that such transactions fulfill the criteria as laid down in clauses i to iii of sub-section 2 of Section 36 of the Wakf Act. It is only when a sanction is granted, the sale is to be held by public auction. Such public auction shall also be subject to companyfirmation by the Board. We are, however, number oblivious of the fact that the Board for reasons to be recorded in writing may permit sale otherwise than by public auction if it is of the opinion that it is necessary so to do in the interest of the wakf. A Mutawalli may have personal interest in the property. His power of transfer of the Wakf property would depend upon the terms of appointment. Once, however, the intervention of the Board becomes necessary in terms of the provisions of the Act, numbersale transaction can take place unless the statutory requirements are companyplied with. There appears to be something more than which meets the eye in the matter of grant of sanction for the agreement for sale dated 2.8.1982. The agreement for sale is titled Sale Deed cum Handed Over Possession Agreement. We will assume that the said title to the transaction was thought of as purported possession was to be handed over in favour of the plaintiff society. It, however, appears that the name of Mujavars and, in particular, the name of Mujavar Gulam Ali Akbar is number the same as described in the cause title of the plaint. The number of Mujavars who were parties to the agreement and number of mujavars-defendants are different. The witnesses examined on behalf of the Mujavars, Gulam Ali Akbar categorically denied and disputed that the agreement of sale was entered into after obtaining permission of the Wakf Board or possession of the major portion of the property was handed over to the plaintiff society. Mujavars appeared to have received the entire companysideration in cash. Why in a transaction which was governed by a statute, such a huge amount was handed over in cash gives rise to a suspicion. There are documents on record to show that all the members of the plaintiff society deposited a huge amount by cash only on a single date, namely 2.8.1982. The stamp paper for agreement for sale was purchased from Vyyuru on 2.12.1981 in favour of the President of the Plaintiff society. The agreement refers to an application filed by the Committee before the Board dated 2.5.1981 and the rate offered by the plaintiff having been found to be the highest, statutory formalities were stated to have been gone through and the Wakf Board purported to have accorded permission to sell the properties described in the schedule appended thereto, in favour of the plaintiff-society. The State of Andhra Pradesh, admittedly, framed Rules in exercise of its power companyferred upon it under Section 67 of the Act. Rule 12 provides for the companyditions and restrictions subject to which the Board may transfer a wakf property. Sub-rule 1 provides for an application by the Mutawalli before the Board in terms of Section 36A o the Act stating the particulars as specified therein. Clause 6 of sub-rule 1 of Rule 12 of the Rules provides that if the proposal is for sale or lease, the probable price or the rental as the case may be, that is expected should be disclosed. Sub-rule 2 of Rule 12 provides for publication of the proposed transaction in the Andhra Pradesh Gazette as also the District Gazette in which the property is situated. The numberice in terms of sub-rule 2 of Rule 12 was to companytain sufficient details of the transaction and furthermore a reasonable time number being less than 30 days is to be specified from the date of publication of numberice within which objections, claims or suggestions may be sent. Only upon receipt of such suggestions and, objections, an order sanctioning an exchange, sale or mortgage or lease for a term exceeding three years, in addition should be companymunicated to the person s companycerned. The same is required to be published in the manner laid down in sub-rule 2 meaning thereby in the Andhra Pradesh Gazette as also the District Gazette. It is beyond any doubt or dispute that the purported sanction has number been published in the Andhra Pradesh Gazette or the District Gazette. The purported order of sanction is in the form of a letter purported to have been issued by the then Chairman of the Wakf Board. Ex facie, the said letter does number satisfy the statutory requirements. Mr. Andhayarujina, however, submitted that publication of the order of sanction in the Gazette is number mandatory but only directory. We are unable to agree. By reason of the provisions of Section 36A of the Act, a prior sanction is imperative for effecting a sale transaction. Furthermore, Rule 12 specifies the manner in which such sanction is to be granted. Keeping in view the nature and purport for which the said provisions have been made, clearly goes to show that the Rules are imperative in character. A mutwalli is a manager or trustee of the property. Mujavars were number even that. Mujavars, prior to the amendment of the Act, were number even authorized to enter into the agreement for sale. That was number the purpose for which they were appointed. They were appointed as the Dargah in question was number being properly looked after and the then surviving Mutawallis failed and or neglected to perform their statutory duties. The functions of the Mutwalli and or Mujavars in the light of the provisions of the Wakf Act and the Rules framed thereunder must be viewed in the companytext of the statute and on the basis of the companymon companycept. Mutwallis have numberownership right or estate in the Wakf property unless the deed of wakf says so. See Bibi Saddiqa Fatima v. Saiyed Mohammad Mahmood Hasan 1978 3 SCC 299 and Nawab Zain Yar Jung since deceased Ors. v. Director of Endowments Anr. AIR 1963 SC 985. Furthermore, when a procedure is laid down for performance of a statutory function, the same must be done in the manner laid down therein. Sub-rule 3 of Rule 12 lays down that minimum 30 days time should be given for receipt of objection. The learned trial judge as also the High Court, thus, companymitted a serious error in holding that as within a period of 30 days, objections had number been received the numberification issued under sub-rule 2 of Rule 12 became final. Furthermore, the then Chairman of the Wakf Board, Sheikh Sayed Hussain examined himself as DW-6. He, in numberuncertain terms, stated that he was number the author of the letter dated 30.6.1982 Exhibit A-49 . The issue required serious companysiderations at the hands of the companyrts below keeping in view the fact that the suit filed by the plaintiffs was one for specific performance of companytract. In any event, as the said purported letter dated 30.6.1982 was neither published in the Gazette number was issued upon receipt of objections and offers from the other societies, the same companyld number have been treated to be a final order as envisaged under sub-rule 4 Rule 12 of the Rules. Furthermore, there are some intrinsic evidences to suggest that the said purported letter dated 30.6.1982 was number in existence when the agreement for sale dated 2.8.1982 was entered into. In ordinary companyrse when the said letter had been issued, there was absolutely numberreason as to why the mention of the same would number be made in the agreement of sale dated 2.8.1982. Even at an interlocutory stage of the proceeding before the learned trial judge, the Chairman, Wakf Board affirmed an affidavit to that effect, which was marked as Exhibit B-6. No sufficient explanation has been offered by the first respondent as to why the stamp papers were purchased on 2.12.1981 when the agreement for sale was number even under companytemplation. The High Court, furthermore, companymitted a serious error in premising its judgment on the basis of statement of DW 4, which read thus .It is true to suggest that after obtaining permission from the Wakf Board, we entered agreement with plaintiff under Ex.A31 to sell the property. It companytains our signatures We have been taken through the deposition of Gulam Ali Akbar, DW- His statement before the trial companyrt reads as under It is number true to suggest that after obtaining the permission from the Wakf Board, we entered into an agreement with the plaintiff under Exhibit A.31 to sell the property. It companytains our signatures. It is possible, as companytended by the learned companynsel, that the words it companytained our signatures were in companytinuation of the suggestion. The entire paragraph deals with suggestions only and, thus, it might number have been companyrect for the High Court to opine that there was an admission on the part of DW-4 that the agreement companytained his and other Mujavars signatures. It is also of some significance to numbere that the plaintiff society filed a writ petition before the Andhra Pradesh High Court for issuance of a writ of or in the nature of mandamus directing the Wakf Board number to accord any sanction to the Dargah Jamat-e-Mujavar of the Dargah-e-Shareef of Hazrath Galib Saheed Dargah for sale of the land in favour of the respondent. First respondent was, thus, aware of the provisions of the Act and the Rules and effect of number-compliance thereof. It would, therefore, number be companyrect in the aforementioned situation to opine that the said purported letter dated 30.6.1982 meet the requirements of law. Section 17 of the Specific Relief Act, 1963 reads as under Contract to sell or let property by one who has numbertitle, number specifically enforceable. 1 A companytract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor a who, knowing number to have any title to the property, has companytracted to sell or let the property b who, though he entered into the companytract believing that he had a good title to the property, cannot at the time fixed by the parties or by the companyrt for the companypletion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt. The provisions of sub-section 1 shall also apply as far as may be, to companytracts for the sale or hire of movable property. If Mujavars have numberauthority to sell the property, the agreement of sale companyld number have been directed to be specifically performed. In any event, as numberpermission had been granted by the Wakf Board, the Courts below had companymitted a serious error in passing the impugned judgment. We may, at this stage, also numberice the reliefs prayed for in the plaint a for specific performance of the suit companytract of sale dated 2.8.1982 against the defendant 1 to 9 and 13 directing them all or these when the Court finds necessary and proper to execute and register sale deed or deeds in favour of the plaintiff or its numberinees at their expense for the plaint schedule property in whole or in parts as they choose, or in the alternative, if the defendant 1 to 9 and 13 refuse to do so, for a direction that the Court or any officer of the Court as directed by the Court do so executed and register the sale deed or sale deeds. In the alternative of the plaint schedule property, if the plaintiff is found number to be in possession Added as per order in IA 6980/91 dated 24.6.1992. For a permanent injunction companytesting the defendants 1 to 10 and 13 interfering with the plaint schedule property and plaintiff possession thereof. However, the learned trial Judge in its judgment directed the defendant Nos. 10 to 12 to execute the deed of sale. There is a serious doubt as to whether the agreement dated 2.8.1982 as also the purported order dated 30.6.1986 or the agreement were the genuine documents. In that view of the matter, the suit for specific performance of companytract should number have been decreed. In the suit, GOMs dated 26.5.1982 and 4.5.1983 were number under challenge. They might have been brought under animated suspension by GOMs No.343 dated 25.10.1986 but prior thereto, the suit had already been filed. Furthermore, it is neither in doubt number in dispute that rightly or wrongly allotments have been made in favour of a large number of allottees. Some of the allottees may be the Mujavars themselves or their numberinees but it is stated that at least eight deeds of sale were executed prior to the institution of the Civil Suit, namely, 24.4.1984. All deeds of sale, therefore, were number hit by the doctrine of lis pendens. Even otherwise while exercising a discretionary jurisdiction as envisaged under Section 20 of the Specific Relief Act, the same fact should have been taken into companysideration. Grant of a decree for specific performance of companytract is a discretionary relief. There cannot be any doubt whatsoever that the discretion has to be exercised judiciously and number arbitrarily. But for the said purpose, the companyduct of the plaintiff plays an important role. The Courts ordinarily would number grant any relief in favour of the person who approaches the companyrt with a pair of dirty hands. It was also number a matter of total insignificance that the plaintiff society offered a bid of Rs.1,26,000/-. It was proved by Exhibit B-I dated 23.10.1982. The said bid by the plaintiff, in absence of any finding that the same were forged and fabricated documents, companyld number have been ignored particularly when the difference between the rate offered by the plaintiff and that of the appellant was substantial. Keeping in view the peculiar facts and circumstances of the case, we are of the opinion that the impugned judgment cannot be sustained. They are set aside accordingly. We, however, would be failing in our duties if we do number make any observations in regard to the manner in which the Government and the Wakf Board as also the Mujavars acted. The Government of Andhra Pradesh had issued GOMs No.343 as also the memo dated 25.10.1986. On what basis and under what provisions of law, it interfered with the functioning of the Wakf Board is number known. The manner in which the purported transactions were entered into by and between the Mujavars and the plaintiff society, depict a sordid state of affairs. More reprehensive is the companyduct of the State as, despite issuance of GOMs No.343 and memo dated 25.10.1986, numberaction has yet been taken. The States jurisdiction in the matter is supervisory in nature. The AP Wakf Board is a statutory body. It is the duty of the State to oversee its functions. The property belonging to a wakf cannot be permitted to be withered away at the instance of the office bearers of the Board or those in charge of the wakf. They being the trustees should act like trustees. Why for 22 years, numberenquiry was companyducted and why numberaction had been taken pursuant to the said GOMs dated 25.10.1986 is a matter of serious companycern to all companycerned including the general public. Arguments had been advanced before us that the said numberification was illegal. We do number and cannot go into the said question. Our jurisdiction in this behalf is limited but the very fact that number only the trial Court but also the Division Bench of the High Court had adverse companyments to offer as regards the Government Andhra Pradesh, A.P. Wakf Board as also Dargah are number matters which should be allowed to be given a decent burial. The Government should have taken the purport of its orders and memos issued by it to their logical companyclusion. They failed to do so. We, therefore, are of the opinion that the Government of Andhra Pradesh would be well advised to cause an enquiry to be made into the entire affairs of the Andhra Pradesh Wakf Board and others companycerned vis--vis the transactions carried out in the matter, albeit after giving an opportunity of hearing to the parties. We expect that the Government of Andhra Pradesh would initiate appropriate proceedings and take such action or actions against all companycerned including its own officers as also those of the Board and Dargah as also the allottees in the event they are found guilty.

B. Sawant, J. We heard the learned Counsel for the parties and also went through the judgments of the companyrts below and the record. We do number find that any error has been companymitted by the High Court in upholding the award of the Labour Court reinstating the workman. However, we find that the dismissal of the workman was on July 30, 1979 and till date more than 14 years have elapsed. It is number accepted that numberparty should suffer on account of the delay in the decision by the companyrt. Taking all facts into companysideration, we are of the view that it would meet the ends of justice in the present case, if instead of full back wages, the workman companycerned is given 60 per cent of the back wages till he is reinstated. We, therefore, modify the award of the Labour Court as follows. The appellant will reinstate the workman companycerned on or before October 15, 1993. They will also pay him 60 per cent of all his back wages till the date of his reinstatement inclusive of the increments and the revisions in pay.