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K. JAIN, J. Challenge in these two appeals, by special leave, is to the orders dated 21st December, 2001 and 19th February, 2002 whereby the High Court of Delhi dismissed i the appeal filed by the appellant herein under Section 260-A of the Income Tax Act, 1961 for short the Act in I.T.A. No.202 of 2001, holding that the order of the Income Tax Appellate Tribunal, New Delhi for short the Tribunal did number give rise to any substantial question of law and ii the review petition preferred by the appellant against order dated 21st December, 2001, holding that the petition was number maintainable. Shorn of unnecessary details, the facts material for adjudication of the present appeals may be stated. These are The appellant hereinafter referred to as the assessee was a partner in a firm, named and styled as M s Des Raj Tilak Raj, having its business at Delhi, with a branch at Calcutta. The said partnership firm was dissolved w.e.f. 1st April 1982. As per the dissolution deed, the assessee took over the business of the Calcutta branch of the erstwhile firm. Thereafter, from 21st October, 1982, the assessee started a proprietary companycern by the name of M s Des Raj Vijay Kumar. On 27th May, 1983, a search took place at the assessees premises during which certain incriminating documents were recovered and seized. During the companyrse of assessment proceedings for the assessment year 1983-1984, for which the previous year ended on 31st March 1983, the assessing officer examined the seized record. One of the registers so examined, revealed cash receipts of 3,49,991/- in the name of 15 persons, most of which were purportedly received during the period of April, 1982 to October, 1982. When the assessing officer sought an explanation from the assessee with regard to the said cash credits in the register, the assessee merely stated that the cash receipts were in the nature of realisations from the past debtors of the erstwhile firm. In order to appreciate the said stand, the assessing officer called for the account books of the Calcutta branch of the erstwhile firm for the relevant period, but the assessee failed to produce them. The assessing officer also examined the assessees brother, a partner in the erstwhile firm, who also stated that the account books were number available. Having numbered that the outstanding realisations of the Calcutta branch in the preceding years varied from 25,000/- to 30,000/-, the assessing officer held that the assessees submission that cash receipts of 3,49,991/- related to earlier years was untenable. Therefore, vide order dated 20th February, 1986, the assessing officer added a sum of 3,49,991/- as assessees income under the head unexplained cash receipts. Aggrieved, the assessee appealed to the Commissioner of Income Tax, Appeals -XV, New Delhi, who vide his order dated 6th December 1989, dismissed the same and companyfirmed the addition made by the assessing officer. Being still aggrieved, the assessee carried the matter in appeal before the Tribunal. Vide order dated 27th September, 1994, the Tribunal, while partly allowing the appeal, remitted the matter back to the assessing officer for de-novo adjudication. The Tribunal observed that We find that some of the entries pertained to the period when the erstwhile firm was in existence whereas the assessee did number companyduct business at Calcutta in a proprietary capacity but was only a partner in the erstwhile firm. The A.O. himself observed in the assessment order that the cash receipts are from April 1982 to October, 1982 i.e. prior to the start of the assessees proprietary business in the name of M s Desraj Vijay Kumar. As against this, we find that some of the entries are dated prior to April, 1982 when the erstwhile firm was in existence. Then again, it is number known as to what happened to the income between the period 1.4.1982 to October, 1982 as the erstwhile firm is supposed to have been dissolved w.e.f 1.4.1982 and as per the assessees version the proprietary business was started from October 1982. There is numberinformation made available to us as to whether the Department initiated any action u s 148 to subject the cash receipts aggregating Rs. 3,49,991/- in the hands of the erstwhile firm In view of the aforesaid discussion, we although taking the view that the onus on the facts and circumstances of the case squarely lies on the assessee, hold that the material has to be recompanysidered in light of the afore-said observations Pursuant thereto, on 17th May, 1995, the assessing officer asked the assessee to file companyfirmations of the 15 parties, in whose names cash credit entries appeared in the register seized during the search. In his reply dated 22nd May, 1995, the assessee stated that the said cash receipts were realisations of the sales effected in the earlier years by the erstwhile firm. Subsequently, the assessee was given three more opportunities on 2nd June 1995, 16th June, 1995, and 3rd July, 1995 to produce fresh evidence, which were number availed of by him. Vide letter dated 28th July, 1995, the assessee was given a final opportunity to file companyfirmations of the 15 parties, with their companyplete addresses. In his reply, the assessee filed the companyfirmations of 7 parties, with the address of 6 other parties. The assessing officer companysidered the two remaining parties as number-existent. It is pertinent to numbere that all the seven companyfirmations filed by the assessee were identical, and did number companytain either a date or the GIR No. of the companyfirming party and merely stated that the companycerned party had dealings with the erstwhile firm, and it had made purchases from them in the year ending 31st March, 1982 and had made payments prior to October, 1982 and since the matter was really old, the books of accounts of the firm were number available. When the assessing officer sent letters to the six parties, whose addresses had been supplied, three did number respond, while two others denied any relationship with the firm, and remaining one letter was returned by the post office with remarks number known. Similarly, when letters were sent to parties who had filed companyfirmations, three of those letters were returned by the post office marked number known., and another one as numberclaims. One of the parties denied any relationship with the firm. In light of these circumstances, the assessing officer, vide order dated 19th March, 1996, companyfirmed the original assessment. The assessee preferred an appeal before the Commissioner of Income Tax, Appeals -III, which was dismissed vide order dated 16th December, 1998. The Commissioner observed that The companytention of the appellant is apparently unacceptable. Any business realisations of the partnership would have been shared by the erstwhile partners. The cash receipts of 3,49,991/- as per the seized material is, therefore, held to belong to the appellant and assessable as unexplained receipts in the hands of the appellant. The assessment of appellants income including the aforesaid receipt is, therefore, companyfirmed and the appeal is dismissed. Still number being satisfied, the assessee carried the matter in appeal before the Tribunal. The Tribunal, vide order dated 23rd October, 2000, while partly allowing the appeal, held that the addition of 3,49,991/- was companyrect. It observed that We are also of the opinion that the companyfirmations filed by the appellant are of numberuse because they have number been companyrelated with the transactions alleged to have been found entered in the register seized during the time of search if it represents the realization of outstanding amount on sales, this companyld have been proved with the cross reference to the entries in the register. We cannot ignore the fact that the enquiry letters sent by the A.O. remained unserved, unanswered and denial. On 22nd February, 2001, the assessee moved an application under Section 254 2 of the Act before the Tribunal for rectification of mistakes in the order of the Tribunal dated 23rd October, 2000. It was pleaded that the Tribunal had erred in observing that the assessees premises were raided due to heavy sales, and that cash amounting to 3,49,991/- was seized that the assessing officer had issued ITNS 150, which the assessee had filed before the Commissioner Appeals and that the Tribunal did number take into companysideration the arguments and various judgments relied on by the assessee. Vide order dated 25th September, 2001, the Tribunal rejected the rectification petition on the ground that- i the Tribunal had relied on the assessing officers order in relation to the factual position, and there was numberreason to interfere with the same ii while it was true that cash amounting to 3,49,991/- was number recovered, but the said amount was entered in the register which was recovered and therefore, this would number affect the findings of the Tribunal iii the remarks in relation to ITNS 150 were number made by the Tribunal, but by the departments representative and re-considering the judgments relied on, and the arguments made, would tantamount to a review, which power the Tribunal is number authorised to exercise under Section 254 2 of the Act. The assessee preferred an appeal before the High Court under Section 260-A of the Act. As already stated, the High Court, vide judgment dated 21st December 2001, dismissed the appeal of the assessee, observing that To us it appears that the findings recorded by the Commissioner of Income Tax as also the Income Tax Appellate Tribunal are pure findings of fact. Appreciation of evidence does number fall within the realm of this Courts jurisdiction under section 260-A of the Income Tax Act Having regard to the fact and circumstances of this case we are, therefore, of the opinion that numberquestion of law far less any substantial question of law arises for companysideration in this appeal. Thereafter, the assessee filed a review petition before the High Court, which was also dismissed vide order dated 19th February, 2002. Hence, the present appeals. Mr. K.R. Manjani, learned companynsel appearing on behalf of the assessee, assailed the impugned orders on the ground that since the Tribunal had taken into companysideration irrelevant materials, its findings were perverse and, therefore, the High Court has erred in holding that there was numbersubstantial question of law involved. Per companytra, Mr. R.P. Bhatt, learned senior companynsel appearing on behalf of the Revenue supported the view taken by the High Court and asserted that the impugned orders deserve to be affirmed. Before adverting to the rival submissions, it would be expedient to refer to Section 260-A of the Act. The provisions, relevant for our purpose, read thus An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal, if the High Court is satisfied that the case involves a substantial question of law Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 5 of 1908 , relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section. It is manifest from a bare reading of the Section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court companyes to the companyclusion that a substantial question of law arises from the said order, it is mandatory that such question s must be formulated. The expression substantial question of law is number defined in the Act. Nevertheless, it has acquired a definite companynotation through various judicial pronouncements. In Sir Chunilal Mehta Sons, Ltd. Vs. Century Spinning and Manufacturing Co. Ltd.1, a Constitution Bench of this Court, while explaining the import of the said expression, observed that The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is number finally settled by this Court or by the Privy Council or by the Federal Court or is number free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would number be a substantial question of law. Similarly, in Santosh Hazari Vs. Purushottam Tiwari28 a three judge Bench of this Court observed that A point of law which admits of numbertwo opinions may be a proposition of law but cannot be a substantial question of law. To be substantial a question of law must be debatable, number previously settled by law of the land or a binding precedent, AIR 1962 SC 1314 2001 3 SCC 179 and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are companycerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by companyrt of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is number a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or number the paramount overall companysideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. In Hero Vinoth Minor Vs. Seshammal3, this Court has observed that The general rule is that High Court will number interfere with the companycurrent findings of the companyrts below. But it is number an absolute rule. Some of the well-recognised exceptions are where i the companyrts below have ignored material evidence or acted on numberevidence ii the companyrts have drawn wrong inferences from proved facts by applying the law erroneously or iii the companyrts have wrongly cast the burden of proof. When we refer to decision based on numberevidence, it number only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is number reasonably capable of supporting the finding. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on numberevidence and or while arriving at the said finding, relevant admissible evidence has number been 2006 5 SCC 545 taken into companysideration or inadmissible evidence has been taken into companysideration or legal principles have number been applied in appreciating the evidence, or when the evidence has been misread. See Madan Lal Vs. Mst. Gopi Anr.4 Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi5 Commissioner of Customs Preventive Vs. Vijay Dasharath Patel6 Metroark Ltd. Vs. Commissioner of Central Excise, Calcutta7 West Bengal Electricity Regulatory Commission Vs. CESC Ltd.8 Examined on the touch-stone of the afore-noted legal principles, we are of the opinion that in the instant case the High Court has companyrectly companycluded that numbersubstantial question of law arises from the order of the Tribunal. All the authorities below, in particular the Tribunal, have observed in unison that the assessee did number produce any evidence to rebut the presumption drawn against him under Section 68 of the Act, by producing the parties in whose name the amounts in question had been credited by the assessee in his books of account. In the absence of any companyent evidence, a bald explanation furnished by the assessee about the source of the credits in question viz., realisation 1980 4 SCC 255 2009 3 SCC 287 2007 4 SCC 118 2004 12 SCC 505 2002 8 SCC 715 from the debtors of the erstwhile firm, in the opinion of the assessing officer, was number satisfactory. It is well settled that in view of Section 68 of the Act, where any sum is found credited in the books of the assessee for any previous year, the same may be charged to income tax as the income of the assessee of that previous year, if the explanation offered by the assessee about the nature and source thereof is, in the opinion of the assessing officer, number satisfactory.
The dispute in the present appeal has arisen as a result of Government Order No. 569 issued by the Government of Andhra Pradesh on 22-5-1986 in exercise of its power of relaxation under Rule 47 of the Andhra Pradesh State and Subordinate Services Rules, giving a numberional seniority to Veda Prakash, Respondent 3 in the appeal, in the cadre of Superintendents from 18-9-1981 instead of his actual date of promotion which was 17-5-1983. The appellant who was promoted as Superintendent on 2-5-1983 had been companysidered as senior to Veda Prakash in the cadre of Superintendents prior to this change of date. She was promoted as Deputy Commercial Tax Officer. But in view of this order she has became junior to Veda Prakash. By a companysequential order dated 2-7-1987 the appellant was reverted as Superintendent. The appellant challenged the order of 2-7-1987 by filing a petition which was ultimately heard by the Andhra Pradesh Administrative Tribunal. The Tribunal, by its impugned judgment and order has dismissed the petition of the appellant. The present appeal is from this judgment and order. It is an accepted position that before GO No. 569 was issued, neither numberice number hearing was given to the appellant who is directly affected by GO No. 569. In view of the decisions of this Court in Govt, of A.P. v. D. Janardhana Rao R.R. Verma v. Union of India and Amrik Singh v. Union of India , it is companyceded by the learned Counsel for Respondent 3 that the order of relaxation companyld number have been validly passed without giving numberice to all affected parties since that would be in violation of the principles of natural justice. The position in law is quite clear.
T.R. 353, referred to. CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 650 and 651 of 1964. Appeals by special leave from the judgment and order dated January 9, 1962 of the Kerala High Court in Writ Petitions Nos. 154 and 155 of 1961. Govinda Menon and V. A. Seyed Muhammad, for the appellants. C. Setalvad, O. P. Malhotra, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondent. The Judgment of the Court was delivered by Hidaytullah J. These two appeals by special leave arise from two petitions under Art. 226 of the Constitution in the High Court of Kerala questioning the assessment to Agricultural Income-tax of Bhavani Tea Produce Co., Ltd. respondent under the Madras Plantations Agricultural Income-tax Act, 1955 as extended to Kerala State for the assessment years 1955-56 and 1956-57 respectively. The High Court decided that certain receipts were number taxable in those assessment years and the State of Kerala is the appellant before us. The assessment year in each case ended on March 3 1, of the year and tax was leviable on the results of the previous year. For the first of the two assessment years, companyresponding to the previous year ended on March 31, 1955 the net agricultural income was assessed at Rs. 1,32,198/- and a tax of Rs. 45,443/1/ was demanded by the Department and in the succeeding assessment year, companyresponding to the previous year ended on March 31, 1956, the amounts of net agricultural income and the tax were respectively Rs. 1,24,339 and Rs. 42,810/5/The assessee Company claimed that Rs. 97,090/- in the first year and Rs. 10,09-51/- in the second year were number taxable although received by the companypany from the Coffee Board during the relevant accounting years. The Company companytended that these payments were in respect of companyfee delivered by the Company to the Coffee Board under s. 25 of the Coffee Market Expansion Act 1942, in the years 1952-53 and 1953-54, that is to say, prior to April 1, 1954 when the Madras Plantations Agricultural Income Tax Act came into force and were number assessable, as the accounts were maintained on the mercantile system and the amounts were shown in 1952-53 and 1953-54. This plea was number accepted by the Agricultural Income-tax Officer, Coimbatore. His assessment orders are dated May 18, 1956 and July 15, 1957 respectively. The Company appealed, but the Appellate Assistant Commissioner by orders passed on December 19, 1958 dismissed the appeals. The Company appealed further. By a companymon order dated January 25, 1966 the Agricultural Income Tax Appellate Tribunal dismissed the appeal in respect of the assessment year 1955-56. In the other appeal the companyclusion was the same but the case had to be remanded to ascertain some matters number companynected with the present companytroversy. In both the cases the Department had held that the income was derived in the relevant previous year and this opinion was upheld by the Appellate Tribunal. The Appellate Tribunal observed that amounts actually received in the previous year as the price of companyfee from the plantation should be regarded as income derived from the plantation in that year irrespective of the year to, which the crop belongs. The Company did number apply for revision under s. 54 of the Agricultural Income Tax Act, but instead filed petitions under Art. 226 of the Constitution against Agricultural Income-tax Officer, Coimbatore, Appellate Assistant Commissioner of Agricultural Income-tax, Kozhikode and Agricultural Income-tax Appellate Tribunal, Trivandrum. The petitions were heard by Mr. Justice Vaidialingam who accepted the companytention of the assessee companypany and canceling the assessment orders impugned before him directed the Agricultural Income-tax Officer to make a reassessment of the total income excluding the sums of Rs. 97,090/- in the first year and Rs. 10,095/- in the second year. The judgment was pronounced on August 18, 1961. The State of Kerala and the Agricultural Income-tax Officer appealed under. the Letters Patent. The appeal was sumarily dismissed on January 9, 1962. It is from this judgment that the present appeals have been filed. The only question is whether the two amounts were rightly excluded from the assessable Agricultural income for the two assessment years. The answer to this question depends on whether under the scheme of the Madras Plantations Agricultural Income Tax Act read with the scheme of the Coffee Act it can be said that the income was only received when the payment was received or when the produce was handed over to the Coffee Board and under the mercantile system of accounting it was entered in the books of account of the assessee companypany. If the answer is that income was received when the crop was handed over to the Coffee Board and the entry was made in the books of account under the mercantile system, the judgment under appeal must be companysidered to be right but if it is the other way, then the action of the Department was companyrect. We shall number companysider this question. Before we proceed we shall analyse the provisions of the two Acts with which we are companycerned. The Madras Plantations Agricultural Income Tax Act companysists of 65 sections. It is number necessary to give a full analysis of that Act. For our purpose it is sufficient to refer to some of the provisions only. Section 2 defines Agricultural income, inter alia, as any income derived from a plantation in the State and Explanation II says that Agricultural income derived from such plantation by the cultivation of companyfee means that portion of the income derived from the cultivation, manufacture and sale of companyfee as may be defined to be agricultural income for the purpose of the enactments relating to Indian Income-tax Act. Plantation in the Act means any land used for growing certain crops including companyfee. Section 3 lays charge of agricultural income-tax and for our purpose we need -read only the first subsection. It is Charge of agricultural income-tax. Agricultural income-tax at the rate or rates specified in Part 1 of the Schedule to this Act shall be charged for such financial year companymencing from the 1st April 1955 in accordance with and subject to the provisions of this Act, on the total agricultural income of the previous year of every person 2 Section 4 defines Total agricultural income as the total agricultural income-tax any previous year of any person from a plantation situate within the State. We are number companycerned with the other sections. Some deal with the companyputation of agricultural income, the expenses which may be deducted, the method of accounting, exemption from the tax under the Act and companyputation and carrying forward of loss, Some others establish Income-tax Authorities, Appellate Tribunal and provide generally how returns of assessment should be made and sundry matters which have numberrelevance here. It is thus clear that the income, which is sought to be taxed was the kind of income which is taxable under the Act. This income was derived from companyfee grown on a plantation situated within the State and the only question is in which year the income can be said to be received by the assessee companypany. To ascertain this we have to turn to the provisions of the Coffee Market Expansion Act of 1942 because the sale of companyfee was number made directly by the assessee but by a Board established under the Coffee Market Expansion Act. That Act replaced an Ordinance of the Governor-General Ordinance No. 30 of 1940 passed to assist the companyfee industry by regulating the export and sale of companyfee. As a result of the outbreak of the Second World War Indian companyfee had lost some of its important foreign markets and there arose a great slump in the price of companyfee. A Coffee Control Conference companyvened to companysider the situation, suggested steps that companyld be taken to save the companyfee industry in India. Its recommendationsled to the passing of the Ordinance of 1940. A second Coffee Control Conference was held in 1941 and after its recommendations were companysidered by the Standing Advisory Committee of the Legislature attached to the Commerce Department, the present Act was passed. This Act has been frequently amended and today it is called the Coffee Act after the amendment of its title in 1954. We have referred, and shall refer, to it by this name. The, Coffee Act companystituted a Board which was known as the Indian Coffee Market Expansion Board, number called the Coffee Board. The Coffee Board is a body companyporate having perpetual succession and a companymon seal with power to acquire and hold property, both movable and immovable and to companytract S. 5 . The Coffee Act imposes a duty of customs on all companyfee produced in India and exported from India s. 1 1 and a duty of excise on all companyfee which an estate registered under s. 14 is permitted, under a scheme of internal sale quota allotted to it, to sell in the Indian market, whether such companyfee is actually sold or number, and on all companyfee released for sale in India by the Coffee Board from its surplus pool S. 12 The proceeds of these duties though first credited to the Consolidated Fund of India may be paid to the Coffee Board and when so paid are credited to a General Fund s. 13 . All owners of companyfee estates of number less than 10 acres are required to register with a Registering Officer appointed in this behalf by the State Government and the registration once made companytinues till it is cancelled s. 14 . The Central Government fixes the price or prices at which companyfee may be sold wholesale or retail in the Indian Market and numberregistered owner or licensed curer or dealer can sell companyfee wholesale or retail in the Indian market at a price or prices higher than the price or prices fixed by the Central Government s. 16 . Section 17 next provides Sale of companyfee in excess of internal sale quota. No registered owner shall sell or companytract to sell in the Indian market companyfee from any registered estate if by such sale the internal sale quota allotted to that estate is exceeded number shall a registered owner sell or companytract to sell in the Indian market any companyfee produced on his estate in any year for which numberinternal sale quota is allotted to the estate. The internal sale quota is fixed by s. 22. Under that section the Coffee Board allots to each registered estate an internal sale quota for the year. Unless with the previous sanction of the Central Government the Coffee Board decides that numberinternal sale quota shall be allotted, the Board allots to each registered estate an internal sale quota for the year. The internal sale quota is a fixed percentage, companymon to all registered estates, of the probable total production of the estate in the year as estimated by the Board. For the purpose of fixing the quota the registered owner is required to furnish such returns as the Board may demand. The surplus pool to which we have referred means the stock of companyfee accumulated by the Board out of the amounts delivered to the Board under s. 25. That section is a long section of six sub-sections and they need to be carefully companysidered. It provides that all companyfee produced by a registered estate in excess of the amount specified in the internal sale quota allotted to that estate shall delivered to the Coffee Board by the owner of the estate for inclusion in the surplus pool. sub-s. 1 . Delivery of companyfee must be made to the Coffee Board in such places and at such times and in such manner as the Coffee Board may direct and the Coffee Board may give directions for partial delivery to the surplus pool at any time whether the internal sale quota has been exceeded or number and the Coffee Board may reject any defective companysignment sub-s. 2 . Coffee delivered to the Coffee Board for inclusion in the surplus pool must represent fairly in kind and quality the produce of the estate, and such companyfee remains under the companytrol of the Coffee Board and the Coffee Board is responsible for its storage, curing when necessary and marketing sub. s. 3 . The Coffee Board must prepare, from time to time, a differential sale for the valuation of such companyfee. In accordance with that scale the Coffee Board must classify each companysignment delivered for inclusion in the surplus pool and make an assessment of its value based on its quantity, kind and quality sub-s. 4 . Sub-section 5 is number material. Subsection 6 then provides as follows Surplus companyfee and surplus pool When companyfee has been delivered or is treated as having been delivered for inclusion in the surplus, pool, the registered owner whose companyfee has been so delivered or is treated as having been so delivered shall retain numberrights in respect of such companyfee except his right to receive the payments referred to in section 34. Section 34, which is here referred to, reads Payments to registered owners. The Board shall at such times as it thinks fit make to registered owners who have delivered companyfee for inclusion in the surplus pool such payments out of the pool fund as it may think proper. The sum of all payments made under subsection 1 to any one registered owner shall bear to the sum of the payments made to all registered owners the same proportion as the value of the companyfee delivered by him out of the years crop to the surplus pool bears to the value of all companyfee delivered to the surplus pool out of that years crop Provided that in calculating the sum of all payments made under sub-section 1 and the value of the companyfee delivered to the surplus pool out of the years crop, respectively, any payment accepted by a registered owner as final payment in immediate settlement for companyfee delivered by him for inclusion in the surplus pool and the value of any such companyfee shall be excluded. We may refer to one other section and that is section 33 which companyfers on the Board power to borrow on the security of the companyfee so delivered. It reads as follows Power to borrow. The Board may, subject to any prescribed companyditions borrow on the security of the general fund or the pool fund for any purposes for which it is authorised to expend money from such fund, or on the security of the companyfee delivered or treated as delivered for inclusion in the surplus pool for any purposes for which it is authorised to expend money from the pool fund. The failure to register, companytravention of s. 25, making of a false return, obstruction and companytravention of the other provisions of the Coffee Act, some of which we have number found necessary to mention here, are companystituted offences and there is provision for punishment and penalty. The Coffee Board is also given the power to seize companyfee withheld from inclusion in the surplus pool. In this way, the marketing of companyfee is made the duty of the Coffee Board and the right of a party who has made companytributions to the surplus pool is merely to receive payment for companyfee which is handed over. The quantum of payment is determined, at first according to the differential scale of valuation prepared by the Coffee Board. It must be remembered that under s. 34 2 the payment is in the proportion which the value of companyfee delivered by the owner bears to the value of all companyfee delivered to the surplus pool out of one years crop. But an owner need number wait and may accept an immediate settlement for his companyfee. It follows that companyfee delivered to the Coffee Board becomes the property of the Board numbersooner it is delivered. The Coffee Board can borrow money by pledging it and is number required to return any part of that companyfee to the producer. It only sells it and gives to the planter price proportionate to the value of all companyfee in the surplus pool for that year, unless the planter settles for an immediate payment. The appellant Company maintains its accounts on the mercantile system. When it handed over companyfee to the Coffee Board it entered the price of the companyfee according to the valuation of the Coffee Board in its books of account although it did number receive payment immediately because as has been shown above the payment is delayed unless immediate settlement is made. The payment for companyfee handed over before April 1, 1954 was received after that date. No doubt actual payment was received in the previous years relevant to the two assessment years, but companyfee was handed over to the Coffee Board in the earlier years for which numbertax companyld be demanded. Was there a sale to the Coffee Board ? The answer must be in the affirmative. The Coffee Board is neither a trustee number even an agent of the planter. It is number accountable to the owner, except as to payment for companyfee received and valued according to the differential prices. All companyfee which the Coffee Board obtains under the Coffee Act is put in a pool and gets mixed up with other companyfee. Coffee in the pool is disposed of on behalf of the Coffee Board. The Coffee Board only pays a proportionate price to the planter. Even though the planter does number actually sell companyfee to the Coffee Board there is in reality a sale by operation of law as a result of which the planter ceases to be the owner of companyfee the moment he has handed over his produce to the Coffee Board. He is then entitled to receive payment and is number companycerned any more with his companyfee. The unsold companyfee is number returned to him and he does number enjoy any rights of ownership in it. The Coffee Board can pledge it and sell it as and when it likes. In these circumstances it is plain that the handing over of companyfee by the planter amounts to a sale to the Coffee Board and the payment of the price is from the sale of all the companyfee in the surplus pool unless the planter settles for immediate payment. The system of account must make a difference. If it were a cash system income would be taxable when actually received but in the mercantile system it would be taxable in the year in which the relevant entry is made about the sale of companyfee to the Coffee Board. We were referred to some rulings of the Madras and the Kerala High Courts. In Puthuthottam Estates 1943 Limited Agricultural Income-Tax Officer, Coimbatore, 1 Rajagopalan J. held that there was numberhing in the Madras Plantations Agricultural Income-tax Act or the Rules thereunder, which exempted produce gathered earlier than 1st April, 1954 from taxation if payment was received in any previous year relevant to an assessment year under the Madras Plantations Agricultural Income-tax Act. The judgment of Rajgopalan J. was reversed on appeal in Puthuthottam Estates 1943 Ltd., v. Agricultural Income-Tax Officer 1 . Rajamannar C.J., and Jagadisan J. held that, if the sale took place after 1st April 1954, tax was payable numbermatter if the produce was of an earlier year but if the sale took place earlier than that date, tax would number be payable even if the price was realized later. In the Kerala High Court distinction was made between entries under cash and mercantile systems of bookkeeping. In Amalgamated Coffee Estates Ltd. v. State of Kerala 3 the assessee followed the mercantile system and payments entered in the accounting period April 1, 1953 to March 31, 1954 were held number taxable even though actually received after April 1, 1955. The reasoning in these two cases is the same as in this judgment. It is, therefore, number necessary to refer to them. The judgment under appeal follows the earlier decision of the same Court and the Divisional Bench decision of the Madras High Court, and in our opinion the High Court have taken the right view of the matter. 1 34 I. T. R. 764. 2 45 I. T. R. 87. 3 45 T. T. R. 353. The High Court was thus right in holding that there was numbersale in the years relevant to the assessment years for which the tax demanded. The sale had taken place in the earlier years over which the Agricultural Income-tax Act did number operate. The appeals will therefore be dismissed with companyts.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2431 of 1966. Appeal by special leave from the Award of the Industrial Tribunal, Gujarat in Reference IT NO. 88 of 1962. S. R. Chari, M. K. Ramamurthi, Shyamala Pappu, Vineet Kumar, P. S. Khera and Bindra Thakur, for the appellants. N. Shroff, for the respondent. The Judgment of the Court was delivered by Bhargava, J. This appeal, by special leave, is directed against an Award of the Industrial Tribunal, Gujarat, in an industrial dispute referred to it by the Government of Gujarat at the instance of the appellants who are 466 workmen of the Gujarat Electricity Board, Baroda hereinafter referred to as the Board represented by the Saurashtra Vidyut Kamdar Sangh hereinafter referred to as the Sangh . The dispute referred to related to two matters. One was the demand made in respect of rates of dearness allowance to be paid to the workmen. The second demand was that those of the workmen, to whom Contributory Provident Fund or Employees Provident Fund scheme was applicable, should be granted gratuity equal to 15 days wages for every year of service in addition to the provident fund benefits, while those workmen, who were entitled to pension according to the pensionary scheme in force, should have their pension calculated after adding 50 per cent of the dearness allowance to the basic pay. The facts needed to explain the second demand may first be stated. The supply of electricity in the State of Saurashtra, prior to the year 1954, was being carried out departmentally by the Government of Saurashtra and the workmen employed in the power houses were, companysequently, Government servants. On 1st July, 1954, a Saurashtra Electricity Board was companystituted to run the power houses and the employees of the Electricity Department of the Government were sent to work with the Saurashtra Electricity Board on deputation. On 1st November, 1956, Saurashtra became a part of the Bombay State, hereafter the Saurashtra Electricity Board was dissolved with effect from 1st April, 1957 and its assets, liabilities, and employees were taken over by the Bombay State Electricity Board. The employees, who were originally in the service of the Saurashtra State Government were entitled to the pensionary scheme of the Saurashtra Government, while the Bombay State Electricity Board had a Provident Fund Scheme. The Saurashtra State Government servants, on being taken over by the Bombay State Electricity Board, were given the option of either companytinuing in their pensionary scheme, or of joining the Provident Fund Scheme of the Bombay State Electricity Board in which case the gratuity already accrued to them and the equivalent of pensionary benefits were credited to their accounts. Some of the employees opted for the Provident Fund Scheme, while others companytinued under the pensionary scheme. Thereafter, on 1st May, 1960, the State of Bombay was bifurcated and a separate State of Gujarat was companystituted and, with effect from the same date, the Board came into existence. The Board took over all the electricity, power-houses ,and electricity schemes in the State of Gujarat from the Bombay State Electricity Board, including the workmen who are the appellants in this -appeal. The assets and liabilities of the Bombay State Electricity Board were divided between the Board, and the Maharashtra Electricity Board which was companystituted for the State of Maharashtra which came into existence on bifurcation of the Bombay State. The Board companytinued both the Pensionary Scheme as well as the Provident Fund Scheme for the employees in the manner they were in force when the employees were working under the Bombay State Electricity Board. The employees, who were originally servants of the State Government, had ceased to be government servants with effect from 1st April, 1957 and later on 1st May 1960, became the employees of the Board, so that they were numberlonger entitled to the rights which the State Government might subsequently grant in respect of pension under the rules applicable to the government servants. The result was that even improvements granted in the pensionary scheme by the State Government to its employees did number enure to the benefit of the appellants. In these circumstances, the Sangh put forward the claim that the pension of employees, who were governed by the pensionary scheme, should be calculated number on the basis of basic salary, but after adding 50 per cent of the dearness allowance to it. In respect of employees, who were governed by the Provident Fund Scheme, a second benefit of gratuity was claimed. The demand for dearness allowance was that it should be linked with the scale prescribed for the Ahmedabad Millowners Association. The workmen demanded that employees, drawing up to Rs. 50 as basic pay, should be given dearness allowance at the scale applicable to Ahmedabad Millowners Association, those drawing between Rs. 50 to Rs. 100, D.A. at that scale plus Rs. 5, and those drawing above Rs. 100, dearness allowance at that scale plus Rs. 10. This demand was put forward before the Board originally on behalf of all the 9,208 employees of Class III and Class TV and some employees of Class I and Class II whose salary was below Rs. 300 per mensem, who were working either in the Gujarat Region or the Saurashtra Region. These employees were represented by seven different Unions, one of which was the Sangh who represented about 3,000 employees working in the Saurashtra region. The six Unions representing the employees working in the Gujarat region amicably settled these disputes with the Board by entering into agreements. The 17 8 Board gave some increase in dearness allowance retrospectively with effect from 1st October, 1961, while the second demand relating to gratuity and calculation of pension after adding 50 per cent of the dearness allowance was given up. The Sangh declined to accept this settlement, whereupon the Board offered terms in accordance with the settlement to all the employees in the Saurashtra region individually. Out of the total of 3,042 in the Saurashtra region, 622 signed General Standing Order 56, under which the Board had made its offer to individual employees ,on the basis of the settlements arrived at before the reference to companyciliation. 1152 signed before the date of the failure report by the Conciliation Officer 2058 signed before the reference and 518 signed after the reference. Thus, the dispute, after the reference, became companyfined to the remaining 466 employees who did number, on individual basis, accept the offer made by the Board. The Tribunal companysidered this dispute relating to the dearness allowance raised by these employees through the Sangh as also the other demand relating to gratuity and calculation of pension, and, by the impugned Award, rejected these demands. Consequently, the workmen have companye up in this appeal through the Sangh. The main ground for rejecting these demands, on which the Award is based, is that the Board does number have the capacity to meet the additional expenditure that would have to be incurred if these demands are acceded to Before the Tribunal, this aspect of the case was sought to be met by the Sangh by urging that the total wage packet, including the dearness allowance claimed by them in the demand, would only satisfy the requirement of a minimum wage, so that the Boards capacity to pay was irrelevant but the award shows thatthe Sangh companypletely failed to provide any material to prove that the total wages, including the dearness allowance as offered by the Board on the basis of the settlements, are less than the minimum wage. This Court, in Hindustan Antibiotics Ltd. v. The Workmen Others 1 , recognised the three companycepts of minimum wage, fair wage, and living wage by quoting the following passage from the decision in The Hindustan Times Ltd. v. Their Workmen 2 , and stating that it briefly and neatly defined the three companycepts In trying to keep true to the two points of social philosophy and economic necessities which vie for companysideration, industrial adjudication has set to itself certain standards in the matter of wage fixation. At the bottom of the ladder, there is the minimum basic 1 1957 1 S.C.R. 652. 2 1964 1 S.C.R. 234. wage which the employer of any industrial labour must pay in order to be allowed to companytinue an industry. Above this is the fair wage, which may roughly be said to approximate to the need based minimum, in the sense of a wage which is adequate to companyer the numbermal needs of the average employee regarded as a human being in a civilised society. Above the fair wage is the living wage-a wage which will maintain the workman in the highest state of industrial efficiency, which will enable him to provide his family with all the material things which are needed for their health and physical well-being, enough to enable him to qualify to discharge his duties as a citizen. These decisions make it clear that, if the claim be for a minimum wage, the employer must pay that wage in order to be allowed to companytinue the industry and, in such a case, the capacity of the industry to pay is irrelevant. However, if the industry is already paying the minimum wage, and the claim is for fair wage or living wage, the capacity of the industry to pay is a very important factor, and the burden above the minimum wage can only be justifiably imposed if the industry is capable of meeting that extra burden. On this principle, in the present case, if the appellants had succeeded in showing that they were number receiving even the minimum wage on the basis of the offer made by the Board in line with the settlements arrived at with the other Unionsand individual workmen members of the Sangh, there would have been full justification for granting additional dearness allowance, ignoring the inability of the Board to meet that extra expenditure. The finding of the Tribunal, however, is that the demand of the workmen is number companyfined to minimum wage, but that, as a result of the demand, the wages will be above the minimum wage. Learned companynsel appearing for the appellants before us did number try to companytend that the wages which were being paid by the Board, were lower than the minimum wage, so that the claim for the additional dearness allowance cannot be companysidered without taking into account the capacity of the Board to meet the expenditure. So far as the question of capacity of the board to pay is companycerned, there is a clear finding by the Tribunal that the Board is running at heavy losses, so that it is number in a position to meet the extra expenditure of about Rs. 49 lakhs a year which will be involved if the dearness allowance is fixed as claimed by the Sangh. The Tribunal has found that the Board, when companystituted on 1st May, 1960, inherited an accumulated deficit of over Rs. 2 crores from the Bombay State Electricity Board. In its own working, the Board sustained a loss of over Rs. 29 lakhs between 1st May, 1960 and 31st March, 1961, and in the two succeeding years 1961-62 and 1962-63, the losses incurred were in the region of Rs. 39 lakhs and Rs. 41 lakhs. The Tribunal, thus, held that the total loss was to the tune of Rs. 31 millions and since the Board had undertaken a further liability of over Rs. 6.75 lakhs a year under the settlements and the offer to individual workmen, it companyld number possibly undertake the further burden of paying about Rs. 49 lakhs per year as increased dearness allowance. The Tribunal was also of the opinion that, companysidering this financial companydition of the Board, there was numberjustification for introducing a gratuity scheme for workmen governed by the Provident Fund Rules, number was there any justification for calculation of pension on the basis of adding 50 per cent of the dearness allowance to the basic pay. Mr. Chari, companynsel for the appellants, challenged this decision of the Tribunal on two grounds. The first ground was that the Tribunal was wrong in judging the capacity of the Board to pay after taking into account the deficit of over Rs. 2 crores which it had inherited from the Bombay State Electricity Board and the second ground was that the financial capacity of the Board should be judged only on the basis of its companymercial undertakings, excluding the activities of the Board which were in the nature of national duties. So far as the first point is companycerned, we think that there is some force in the submission made by learned companynsel. The deficit inherited by the Board from its predecessor cannot be treated as are venue loss which will have bearing on its paying capacity. Such inherited deficit should really have been treated as capital loss but even this loss cannot be companypletely ignored, because the paying capacity of an employer has to take into account even capital losses. However, even if this accumulated deficitof over Rs. 2 crores is ignored, it is clear that, during the three years after its formation, the Board itself incurred heavy losses which totaled to about Rs. 110 lakhs. Consequently, even if that accumulated deficit is number taken into account, it cannot be held that the Board will have the capacity of bearing the additional financial burden to the tune of Rs. 49 lakhs a year, if required to pay dearness allowance at the rates claimed by the Sangh. On the second point, we are unable to accept the submission made by learned companynsel. The Board was companystituted under the Electricity Supply Act No. 54 of 1948, and section 18 of that Act lays down the duties of the Board. By its very companystitution, the Board is charged with the general duty of promoting the companyrdinated development of the generation, supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas number for the time being served or adequately served by any licensee. In particular, the duty of the Board is to prepare and carry out schemes with the objects mentioned above to supply electricity to owners of companytrolled stations and to licensees whose stations are closed down under this Act and to supply electricity as soon as practicable to any other licensees or persons requiring such supply and whom the Board may be companypetent under this Act so to supply. When the Board was companystituted to carry out these duties, its capacity to bear the burden of paying wages to its employees has to be worked out after taking into account all the activities which the Statute requires it to carry on. The running of Power Houses is only one of the branch of those activities. The profit that the Board can be held to have earned can only be worked out after including in the accounts all the expenditure incurred by it on all its schemes for distribution of electricity to licensees or to companysumers, whether in urban areas or in rural areas. In fact, there is number even an assertion on behalf of the appellants-workmen that they were employed solely in companynection with a profitable undertaking of the Board and had numberhing to do at all with the other activities which the Board is actually carrying on. No doubt, learned companynsel is right in urging on the basis of the decision of this Court in Hindustan Antibiotics Ltd that the circumstance that the Board is an industry in the public sector does number exempt it from application of principles which apply to an industry in private sector, and the Board must also be made to pay wages on the same basis as Private sector employers. This, however, does number advance the case of the appellants, because, even in a private sector, additional burden over and above a minimum wage can only be justifiably imposed in industrial adjudication, if the employer has the capacity to meet that burden. In this case, the Tribunal has refused to grant the demand of the appellants number on the ground that the Board is an industry in public sector, but on the ground that it does number have the capacity to pay. That capacity has rightly been judged on the basis of all the undertakings being worked by the Board. The Tribunal, after holding that there was numberjustification for granting the demands of the workmen because the Board had numbercapacity to bear the additional burden, proceeded further to examine whether the Boards existing scheme of payment of dearness allowance was reasonable and took into account various factors for arriving at its finding that it companyld number be held that the terms offered by the Board were unreasonable. In this companynection, reliance was placed on behalf of the appellants on the fact that two Electric Supply Companies were paying wages which 1 19671 S.C.R.652. were much higher than the wages being paid by the Board, and there was numberjustification for refusing the demand for additional dearness allowance which would place the employees of the Board on par with the employees of those Electric Supply Companies. One of those Electric Supply Companies is the Ahmedabad Electricity Co. Ltd., Ahmedabad, in whose case wages were fixed by an Award published in 1956 Industrial Court Reporter at p. 746. The other is the Viramgam Electric Supply Co. Ltd., Viramgam, the Award relating to which is published in 1968 Industrial Court Reporter at p. 1010. The argument was that wages paid by the Board should number be lower than those paid by these two Electric Supply Companies which were engaged in the same line of business of production and supply of electricity. The Tribunal brushed aside these example by stating that they were number companyparable with the Board. In taking this view, we do number think that the Tribunal companymitted an error. In Williamsons India Private Ltd. v. Its Workmen 1 , this Court clearly laid down what criteria had been established for companysidering what are companyparable companycerns when dealing with a question of wage fixation. It was held - This Court has repeatedly observed that, in companysidering the question about companyparable companycerns, tribunals should bear in mind all the relevant facts in relation to the problem. The extent of the business carried by the companycerns, the capital invested by them, the profits made by them, the nature of the business carried on by them, their standing, the strength of their labour force, the presence or absence and the extent of reserves, the dividends declared by them and the prospects about the future of their businessthese and all other relevant facts have to be borne in mind. In the present case, it is clear that, if these various factors are taken into account, neither the Ahmedabad Electricity Co. Ltd., number the Viramgam Electric Supply Co., can be held to be a companycern companyparable with the Board. As we have indicated earlier, the activities carried on by the Board are number only production of electricity and direct distribution in some areas, but also include preparation of schemes for development of supply of electricity in areas number served so far and for supply of electricity to licensees. The two companycerns at Ahmedabad and Viramgam merely generate and supply electricity to companysumers in the cities or towns served by them. The Board, according to the Act companystituting it, has primarily to supply electricity to licensees, and number companyfine its supply to direct companysumers like these two companycerns. The 1 1962 1 L.L.J.302. supply to companysumers is only undertaken where there are numberlicensees to undertake the distribution of electricity generated by the Board, and this activity of direct supply to companysumers is primarily carried on in rural areas where the population is sparsely distributed as companypared to the cities or towns served by the other two companycerns. Then, there is the important factor that the Board is running at a huge loss every year. The workmen did number provide figures to show what was the profitability of the other two companycerns, though the Awards in their cases seem to indicate that both of them are running at a profit. In these circumstances, we cannot hold that the Tribunal companymitted any error in ignoring the wages being paid by these two companycerns, when dealing with the question of payment of dearness allowance by the Board. In this companynection, a request was made by learned companynsel that we may remand the case to the Tribunal in order to enable the Sangh to produce evidence to the satisfaction of the Tribunal that these two companycerns are companyparable, or to cite examples of other undertakings in the same industry in the Saurashtra region, or, it there be numbersuch undertakings available, of undertakings in other industries in the Saurashtra region so as to enable the Saingh to claim wages on parity with those undertakings. We do number think that there is any justification for remanding the case for such a purpose at this stage. It was open to the Sangh to produce material before the Tribunal when the dispute was first investigated by it, and numberreason is shown why the Sangh did number do so. Further, as we have indicated earlier, the very circumstance that the Board does number have the financial capacity to meet the additional burden of the demands made by the workmen justifies the order made by the Tribunal. The further request that the remand would enable the Sangh to show whether the losses brought to the numberice of the Tribunal by the Board were, in fact, net losses has also numberforce, because, when the losses were proved before the Tribunal by production of an affidavit on behalf of the Board and the deponent appeared in the witness-box, numberattempt was made on behalf of the Sangh to cross-examine the deponent in order to establish that the losses had number been companyrectly represented. We do number think that, in these circumstances, any remand of this case is called for. It does appear that the Tribunal in its award companymitted the error of companyparing the Board with the Maharashtra Electricity Board and similar Electricity Boards in other States and thus acted against the principle that wages should be companypared on industry-cumregion basis but that mistake does number justify any interference with the award which is otherwise companyrect and justified. The Tribunal was quite right in rejecting the demands made by the Sangh, particularly in the light of the further fact relied upon by the Tribunal that all the employees of the Board in the Gujarat Region as well as large majority of over 2500 employees even in the Saurashtra Region had accepted the existing rates based on the settlement and only 466 employees had companye forward with this demand without establishing that the demand wag restricted to bringing up their wages to the level of minimum wages. The appeal is dismissed, but we make numberorder as to companyts.
1994 Supp 3 SCR 357 and Civil Appeals 6289-90 of 1994 ORDER Leave granted. Application for intervention allowed. Heard Counsel for appellants and the respondents. The case has chequered history the facts of which have been traced by this Court in Rama Krishna Verma and Ors. v. State of U.P. AIR 1992 2 SC This Court in that judgment held that the draft scheme published on February 26, 1959 and the fresh draft scheme published pursuant to the directions by this Court on February 13, 1986 had number lapsed. The 50 operators to whom this Court in Jeevan Nath Wahals Case gave the right of hearing, by resorting to the abuse of the process of the Court, forfeited their right of hearing and they numbermore would be entitled to the hearing before the approving authority. It was also declared in Jeevan Nath Wahals case that this Court had already approved the Shaharanpur-Shahdra-Delhi scheme published under Section 68C except to the extent of hearing the objections of the 50 operatOrs. The hearing being only a procedural formality, the objections filed by the 50 operators outlived their purpose. Accordingly this Court gave direction as under The grant of permits to all the respondents private operators and respondents Nos. 7 to 285 in C.A. No. 1198/92 SLP No. 9701/90 under Section 80 of the Act or any others on the respective routes, parts or portions of the nationalised routes on February 13, 1986 draft scheme are quashed. The hearing authority shall lodge the objections of the 50 operators including the appellants herein. The companypetent authority shall approve the draft scheme of 1986 within a period of 30 days from the date of receipt of the judgment, and publish the approved scheme in the gazette. The permits granted to the 50 operators or any other shall stand cancelled from that date, if number having expired in the meanwhile. No permit shall be renewed. Appropriate action should be taken by respondent 3 to in C.S. No. 1198/92 SLP 9701/90 to see that all the permits granted to the 50 operators including the appellants are seized and cancelled. The U.P. State Transport Corporation shall obtain required additional permits, if need be, and put the stage carriages on the routes to provide transport service, to the travelling public immediately on publication of the approved draft scheme in the State gazette. The appeal arising out of SLP No. 2033/91 is allowed with companyts thought against respondent Nos. 4 to 13. The appeals arising out of SLP Nos. 6300/91, 9701/90 and 9702/90 are allowed without companyts. Thereafter the approved scheme was published by the Government on May 29, 1993. The appellants filed the Writ Petition in High Court number only questioning the companyrectness of the judgment of this Court but also the approved scheme published by the Government on May 29, 1993. In our view quite rightly High Court declined to accede to the companytention made by the appellants on the companyrectness of the Judgment of this Court. The directions issued by this Court under Section 142 1 are binding on all the parties including the 50 operators and were declared to be bound by the orders passed by this Court in Rama Krishna Vermas case. Therefore, they are bound by the order passed by this Court in the above judgment. The only companytention raised by Shri G. Ramaswami, the learned senior companynsel, is that by operation of Section 100 3 proviso of the Motor Vehicle Act, 1988 for short the Act , the prior approval of the Central Government relating to the scheme on the inter-state route is mandatory and this Court never intended to violate that mandatory requirement in proviso to Sub-section 3 of Section 100. It is also companytended that if the Scheme was number published under Sub-section 4 of Section 100 within a period of one year from the date of the publication of the proposed draft scheme under Sub-section 4 of Section 100, the draft scheme stood lapsed this Court did number intend to revive the lapsed draft scheme. We find numberforce in the companytentions. As regards prior approval of the Central Government under proviso to Sub-section 3 of Section 100 is companycerned the Central Government had approved the draft scheme dated February 26, 1959 which was upheld number only in Jeevan Nath Wahals case but also in Rama Krishna Vermas case. It is number in dispute that the Central Government had given its prior approval on September 9, 1959 and the scheme was approved, thereafter, by the State Government on September 29, 1959. Therefore, as regards the approval of the Central Government is companycerned under Act 4 of 1939, the mandatory requirement was companyplied with. What is required by the proviso to Subsection 3 of Section 100 is to a scheme proposed under the Act. The present one is number a scheme proposed under the Act and that, therefore, the prior approval of the Central Government under the Act is number necessary. It is also to be seen that Sub-section 4 of Section 100 is clearly inapplicable in the facts of this case. The scheme published by the State Government on February 13, 1986 was under the Act 4 of 1939. That draft scheme was pursuant to the directions issued by this Court, in companysequence to the closing of hearing directed by this Court in Jeevan Nath Wahals case became final.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1072 of 1966. Appeal by special leave from the judgment and order dated July 30, 1965 of the Mysore High Court in Writ Petition No. 141 ,of 1965. Jagunohan Reddy, J. M. Tarkunde and Naunit Lal,for the, appellants. B. Datar, for respondent No. 1. K. Dholakia and S. P. Nayar, for respondent No. 2. The Judgment of the Court was delivered by Jaganmohan Reddy, J. This Appeal is by Special Leave against the Judgment of the Mysore High Court dismissing the Writ Petition filed by the Appeallants and Respondent No. 3 against Respondents 1 and 2, the Market Committee Sirsi and the State of Mysore respectively, by which they challenged the Notification of the Govt. of Mysore No. DPC 203 CMD 64 i dated 5th January 1965. The Town of Sirsi in the North Canara which was once part of the Bombay State is one of the leading markets for Areca, Cardimom and Pepper. The Appellants have been carrying on business in these 3 companymodities on a large scale for many years in this town mainly in the localities companyprising Channapattan Galli, Basti Galli and Nadged Galli, while the Respondent 3 who is a dealer in the said companymodities was carrying on business in Nadged Galli. In the Channapattan Galli there are nearly 20 Commission Agents who own shops and godowns who also deal in these companymodities. It was stated that the three Gallis companystitute the main Market where wholesale business in the aforesaid companymodities is being carried on for more than a century. The Bombay Legislature had passed the Bombay Agricultural Produce Markets Act 1939 Act XXII of 1939 and thereafter made rules under the Act known as Bombay Agricultural Produce Market Rules hereinafter referred to as the Act and Rules respectively. In 1951 under the provisions of Section 4 1 of the Act the Govt. of Bombay declared the town of Sirsi and various surrounding villages, 59 in number as a market area in respect of Arerca Pepper and Cardimon and by Notification dated 24th April 1951 had also declared the 3 Gallis referred to above as the Market Yard under the Act. In 1954 the Act was amend by the addition of Section 4A to which a reference will be made presently. After the amendment of the said Act, on 31-8-1954 the Govt. of Bombay Notified the three Gallis of Channapattan, Basti and Nadged which previously had been declared as a Market Yard, as the Principal Market Yard of the said Market area under Section 4-A 2 proviso. After this, declaration it is said the Appellants invested large amounts in buildings which are worth ten lacs of Rupees and improved their trade. Similarly in the Nadged Galli the properties of Commission Agents are worth about Rs. 5 lacs and in the Basti Galli the business premises are worth about Rs. 2 lacs. It is alleged that Shri Hegde Kadve is a Congressman and as the Chairman of the Market Committee and also as the Chairman, of the Sirsi Totgars Cooperative Society and President of the Taluka Board had companysiderable personal influence over the Congress Ministry companysequently prevailed on the Government to grant to the Market Committee free of companyt land measuring about 10 acres and 37 gunthas for a market at a distance of more than a mile from the present market, which was divided into plots, on which he managed to get shops, godowns and offices companystructed with the money secured by the Society as a loan from the Government at a very low rate of interest. The Market Committee disposed of eleven sites to private parties and also allowed the Cooperative Society to companystruct premises for a Rice mill, but numberwithstanding these companystructions the new site for the Market has numberamenities. The impugned Notification had the effect of prohibiting persons from carrying on business in the said three main companymodities at the old market Yard, and has thus destroyed the business of traders including that of the Appellants. The new site it was said was only so declared with a view to companyfer on the Cooperative Society a monopoly in trade as it would number be possible for traders to invest money and companystruct new buildings and godowns for carrying on trade at the new market site. The Notification was thus challenged as being ultra vires of the provisions of the Act, illegal, arbitrary, capricious and discriminatory, violating Articles, 14, 19 1 g and 31 of the Constitution. The Respondents denied the several allegations made against them. Respondent 1 stated that the Market Committee having felt as early as 1958 that the area of the three Gallis was insufficient to companye with the expanding business and made efforts to acquire a more companyvenient and spacious area to house the market. In furtherance of this desire and with the object of providing better facilities to the Agriculturists, the Committee from time to time made representations to the Government, which ultimately granted in all 35 acres-29 gunthas of land. Thereafter steps were taken for the development of the said area by leasing out plots to Commission Agents and traders who were induced to build premises for. the purpose of sale and purchase of the Agricultural produce in the Market Yard. The Committee thereafter resolved on 13-7-1964 to request the Government to declare the new area as the Principal Market Yard while at the same time permitting the traders to companytinue their business in the existing place for a .period of one or two years. It was also pointed out that the Market Committee of which the Appellant No. 1 was a Member had never objected to the shifting of the Market Yard since 1958 but on the companytrary had applied for the grant of plots and was companyplaining that the Government was delaying the issue of the Jaganmohan Reddy, J. necessary Notification. Besides the Appellant there were 14 others, who had obtained leases of the plots and companystructed buildings on these plots. The allegation that there are numberRoads or well was incorrect. The new site was only about half a mile from the 3 Gallis and was centrally situated within the Municipal limits of Sirsi as is evident from the fact that the Totgars Society itself was transacting 30 of the entire business of Sirsi Market Committee in theregulated companymodities with an annual turnover of more than a crore of Rupees within that area. These allegations were companysidered by the High Court which held that it was open to the Government under Section 4 to alter the declaration regarding the Principal Market Yard. After setting out the history of the legislation it was of the view that the impugned Notification was issued in the public interest, and number with any ulterior purpose and companysequently rejected the Writ Petition.- The short point in this appeal is whether by reason of the impugned Notification the Appellants have been prevented from exercising their right to trade and whether it is discriminatory and affects in any manner his right to property. The Act under which the Notification is issued deals with the regulation of purchase and sale of agricultural produce in, the State of Bombay including the area which has number become part of Mysore State as a companysequence of the States Reorganisation Act 1956. An examination of the provisions of the Act would show that there is numberwarrant for holding that there is anything which affects the freedom to carry on trade or business number is there anything which can be said to be discriminatory. Section 2 of the Act is in so far as relevant defines Market, Market Area, Principal Market Yard, Sub-Market Yard. Section 3 provides for the companystitution of Markets and Market Committees and companyfers power on the Commissioner by Notification to declare his intention of regulating the purchase and sale of such agricultural produce and in such area as may be specified and inviting objections and suggest-ions within a month of the publication of the Notification. The Commissioner may after companysidering the objections and suggestions if any received by him during that period and after holding such enquiry, as may be necessary declare the area under Section 4-A to be Market area for the purposes of the Act. Section 4 2 provides that after the Market area is declared, numberplace in the said area shall. subject to the provisions of Section 5A be used for the purchase or sale of any agricultural produce specified in the Notification. Section 5 companyfers power on the State Government after the declaration of the Market area to establish a Market Committee for every Market area and under Section 5AA it becomes the duty of the Market Committee to enforce the provisions of the Act and also to establish a Market therein on being required to do so by the State Government. In as much as there may be a time lag between the declaration of a Market area and establishment of a Market the proviso to Sec. 4 2 lays down that pending the establishment of a market in a Market area the Commissioner may grant a licence to any person to use any place in the said area for the purpose of purchase and sale of any such agricultural produce and it is the duty of the Market Committee under Sec. 5AA to enforce the companyditions of the licence granted under Section 4 2 . Section 26 companyfers power on the State Government to frame rules for the purpose of carrying out the provisions of the Act, and Section 27 companyfers power on the Market Committee to frame bye-laws with the previous sanction of the Director or any other officer specially empowered in this behalf by the State Government under Sec. 26. The State Government has power under Sec. 29 to add to, amend or cancel any of the items of agricultural produce specified in the Schedule to the Act. The Act was amended in 1954 by the additionof Sec. 4A which under sub-s. 1 makes it necessary for each Market area to have one Principal Market Yard and one or more sub- Market Yards as may be necessary. Sub-s. 2 of the said Section empowers the Commissioner by Notification to declare any enclosure, building or locality in any market area to be a Principal Market Yard for the area and other enclosures, buildings or localities to be one or more sub-Market Yards for the area. The proviso requires that one of the enclosures, buildings or localities declared to be market yards before the companymencement of the amendment of that section, shall be declared to be the Principal Market Yard for the Market area and others, if any, to be one or more SubMarket Yards for the area, subject to such variation as may be necessary. The effect of these provisions is that a Market area is first declared under Sec. 4 1 after which a market yard may be companystituted for the market area as Principal Market Yard and sub-Market Yard or yards if any. The declaration of the Market area subject to Sec. 5A has the effect of prohibiting the purchase or sale of agricultural produce in any place in that area except in the area declared as a Principal Market Yard or sub-Market yard or yards, if any. This Court had earlier in Mohammed Hussain Gulam Mohammad Anr. v. The State of Bombay Anr. 1 held Section 4, 4A, 5, 5A and 5AA to be companystitutional and that numbere of the said provisions imposed unreasonable restrictions on the right to carry on trade in the agricultural produce 1 1962 2 S.C.R. 659. Jaganmohan Reddy, J. regulated under the Act and as such were number violative of Art. 19 1 g of the Constitution. . It is, however, companytended that the impugned Notification violative of Articles 19 1 g , 14 and 31 of the Constitution. The Notification as we have already stated was issued on 5-1-1965 under Section 4 A of the Act and is in the following terms In exercise of the powers companyferred by Sub-Section 2 of Section 4A of the Bombay Agricultural Produce Markets Act 1939 Bombay Act 22 of 1949 as in force in the Bombay area, and in supersession of Bombay Government numberification Development Department No. APM 4554, dated 31-8-1954, the Government of Mysore hereby declares the following locality in the market area of the Agricultural Produce Market Committee,. Sirsi of Sirsi Taluka of North Kanara District, to be a Principal market yard for the area with effect from the 15th January, 1965, namely- Locality An area measuring about 35 acres and 29 gunthas and 4 acres, of Sirsi Totagaras Cooperative Sales Society Ltd., Sirsi in S. No. 116, 117, 59 and 60 of Sirsi Taluka. On the North by -Sirsi-Yellapur Main Road R. S. No. 11 6 On the South by-R.S. Nos. 55, 57 and portion of R.S. No. On the East by -Portion of R.S. Nos. 299, 58, 129-A On the West by -R.S. Nos. 61, 64 and 68. It may be mentioned that the earlier Notification of 31-8- 1954 also made in exercise of the Powers companyferred by sub- Section 2 of Section 4-A of the Act had declared as the Principal Market Yard all godowns, storage places and open places lying within the limits of the Sirsi Municipality and approved by the Agricultural Produce Market Committee, Sirsi for storage and for the purpose of sale of companymodities under regulation including the area locally known as Channapattan Gali, Basti Galli and Nadger Galli which had earlier been declared by Notification of the Government in the Development Department dated 24-4-1951 to be a Market Yard. The affect of the supersession of this Notification by the impugned Notification is that as from 15-1-1965 the area of the 3 Gallis ceased to be the Principal Market Yard, and as such numberbusiness companyld be transacted therein on and after that date. This position companyld number be seriously companytroverted by the learned Advocate for the Respondents. In our view the prohibition implicit in the Notification was unreasonable and to that extent violated the fundamental rights of the Appellants and Respondent 3 to carry on their business because it companyld number have been postulated that they companyld immediately in 10 days shift their business to the Principal Market Yard declared by the impugned numberification. The learned Advocate for the Market Committee however pointed out that it was never their intention to prohibit at-once any business being companyducted in the Market Yard in the Gallis, but they had in fact in their proposals to the Government suggested the business in the Gallis should be allowed to be companytinued for a year or two. Whatever their proposals may have been we have numberdoubt that the effect of the Notification as long as it is in force is to prohibit the Appellants and Respondent 3 from carrying on business in the Market Yard of the Gallis. It is submitted by the learned Advocate for the Respondents that the Appellants and Respondent 3 had sufficient time till number to make arrangements to shift their business, as such they are number entitled to companyplain, but the companytention on behalf of the Appellants is that they were entitled to challenge the Notification and as they had invested large amounts in buildings etc. in the 3 Gallis they are justified in asking this Court to direct Respondents to have these areas declared as a sub-Market area. While the Government has the power to issue a Notification in public interest to declare the area specified in the impugned Notification as the Principal Market area, without necessarily declaring other areas simultaneously as sub-Market area, in our view sufficient time should have been given for the Appeallants, Respondent 3 and other persons doing business in the area of the 3 Gallis to shift their business. As long as the Notification prohibited them from doing business in those Gallis they had a right to challenge the validity of that Notification. No doubt the Govt. companyld have declared the 3 Gallis as sub-Market Yard but it is number for this Court to arrogate to itself the functions of the Govt. and direct them to do so merely because that would be one of the ways in which the impugned Notification can be rectified. The learned Advocate for the Market Committee, however, companysistent with the stand taken by the Market Committee in its companynter before the High Court that it had requested the Govt. to allow the business in the Gallis to be carried on for one or two years agrees to give one and a half years time for the Appellants and Respondents to enable them to shift during this period, to the Principal Market Yard declared under the impugned Notification and till then permit them to companytinue their business in the 3 Gallis. The period agreed to in our view is a reasonable period within which the Appellants and Respondents 3 can shift their business to the new Market Area and till then they should number be prohibited from Jaganmohan Reddy, J. doing business in the Market area of the 3 Gallis as heretofore. In view of this agreement except to give the above direction there is numberneed to strike down the Notification. The Appeal is accordingly allowed subject to the above directions. There will be numbercosts in this Appeal.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 156 of 1974. From the Judgment and Order dated 12th February, 1974 of the the Punjab Haryana High companyrt in Criminal Appeal No. 1055 of 1969. K. Garg, S. C. Agarwal and V J. Francis for the appellant. S. Marwah and R. N., Sachthey, for the respondent. The Judgment of the Court was delivered by Goswami, J. On July 30, 1968, Bimla, a hale and hearty young girt 19 , indeed, by her right, legitimate wife of the accused, Ravinder Singh 23 , accompanied on a rail journey her husband, who, after enjoying two months furlough at home, returned to his Air Force Station at Sirsa without her and without the least companycern. She was found next morning hearby a wayside distant railway station with acid burns on her face and on other parts of the body with multiple injuries, incapacitated by the shock and affliction, to tell her gruesome story to the few persons who came by her. The only unchallenged thing was that she was pronounced dead in a hospital on July 31 1968, at 8.45 P.M. Did the husband cause the murder of his wife is for a. final judicial solution before us. The accused husband being charged under section 302/24 I.P.C., along with son others obtained an acquittal from the Trial Judge. Governments companyscience was roused and the High Court on the States appeal entered his companyviction under section 302 I.P.C., Shrinking, however, from. administering the extreme penalty under the law. That is how the liter is before us in this appeal as a matter of right under section 2 of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act 1970. The entire story as given below is revealed by friend of the accused, approver jasbir Inder Singh 21 PW 5 , who was arrested along with teh accused on August 13, 1968. Accused Ravinder Singh and the approver were employed in the Air force department at Sirsa and were good friends. Bhau Parkesh Singh since acquitted is the companysin of the accused. Satinder Kumar 11 is the accuseds brother. During his stay at Sirsa, when his wife Bimla Kaur who was insisting on developed his stay at Sirsa, when his wife Bimla was number there, the accused marriage which, however , the accused posing to be a bachelor was putting off holding out hopes to her. Both the accused and the approver took two months leave, the former to companystruct his house at village Komri. The accused and the approver with Satinder Kumar reached Komri on June 3, 1968, when Bimla was in her parents house. On June 12 or 13 the accused and the approver went to bring her back from her fathers house, but on account-of a son being born to her, brothers wife. a few days earlier, the father-in-law said that he would send her after some days. This led to some exchange of hot Words. However after 7 or 8 days, Bimla returned to her husbands home with her father and brother, Lekh Raj Singh PW 18 The accused went in entry July to see Bhanu Parkesh Singh, his companysim, who was employed as Health Visitor at Arnod Dispensary and returned after 8 or 10 days. The approver was in the, accuseds house during the period. The accused asked his wife that she should agree to a divorce, but she would number The accused used to say that he would finish his wife one day. On July 29, 1968, Bhanu Parkash Singh came to the accuseds house. On the same day the approver also returned from Lucknow where he had gone 7 or 8 days back. On July 30, the accused told the approver in the presence of Bhanu Parkash Singh that he would kill his wife that day. Bhanu Parkash Singh replied that he had brought acid with him and it would help in expediting her death. On July 30, 1968, the accused, his wife Bimla, the approver, Bhanu Parkash Singh and Satinder- Kumar left for Sirsa by train from Sasni Railway Station which is at a distance of four or five miles from Komri. The father of the accused came to see them off at the Railway Station. The accused booked a cycle at Sasni Railway Station and purchased two tickets for his wife and Bhanu Parkash Singh, but did number purchase any ticket for Satinder Kumar. Both the accused and the approver had Military Railway Warrants for travel. After leaving Sasni at 12 Noon, they arrived at Delhi Railway Station at 6-30 P.M. and changed for Bhatinda Railway Station. They reached Rewari Railway Station at about 10.30 P.M. At Rewari their bogie was attached to the train bound for Sirsa-Bhatinda. When the train left Rewari at 2.15 A.M. on July 31, 1968, there was numberother passenger in the companypartment except the above five persons. The train stopped for some time at the next Railway Station. When it again started. the accused threw his wife Bimla on the floor of the companypartment by catching hold of her by the neck. When she fell down in the companypartment the approver caught hold of her by the feet and Bhanu Parkash Singh threw acid in her mouth. Satinder Kumar did number take any Part- The accused removed the pazebs from her feet and gold jhumkas from her ears. The accused threw Bimla from the running train in between the first and the second railway stations beyond Rewari. Some acid drops fell on the hands of the accused and Bhanu Parkash Singh and on their pants and on the accuseds shirt. When the train reached Bhiwani the accused got down for purchasing two tickets-for Bhanu Parkash Singh and Satinder Kumar, but the Ticket Collector, Raghbir Singh PW 29 detained him and he missed the train. Three of the aforesaid companypany reached Sirsa at 9.00 A.M. on July 31, 1968. When asked about the accused the approver told Bansi Lal PW 25 and Yudhishter Kumar PW 26 that the accused bad missed the train at Bbiwani and would be companying by the next train. The accused arrived at Sirsa at 1.30 M. on July 31. Bhanu Parkash Singh left for Aligarh in the evening of August 1. The accused and the approver resumed their duties at the Air Force Station on August 2, 1968. On August 3, 1968, the mother of the accused and her nephew, Malkhan Singh, came to Sirsa and she told that Bimla had been admitted in the Civil Hospital, Rewari, and suggested that they should register theirpresence in the Air Force Station at Sirsa in order to save themselves. On August 4, the accused and the approver went to the Medical Assistant at the Air Force Station and the accused showed the urns on his hands and the Medical Assistant PW 50 made a numbere a his register. They decided to leave their house at Now Mandi and again started living in the barracks of the Air Force from August 8. both of them were arrested from the Air Force barracks on August 13, 1968. This is as disclosed by the approver PW 5 . Let us number turn to. the fate of Bimla thrown from the running train. She was picked up, Semi companyscious, by Udmi PW 10 and another person from a railway track between Jatusana and Kosli Railway stations and taken to Railway Hospital, Rewari, where Doctor Miss K.Dass PW3 and Miss K. Sharma, Nurse PW 2 attended upon her. She companyld speak out a little before Miss Sharma, gave her name as Bimla, wife of the accused and daughter of Narain Singh, and indicated that she was traveling with her husband by train. She was later sent to the Civil Hospital, Rewari, where she was received by Dr Manocha PW 1 , She was number in a position to make a statement at the Civil Hospital and she expired at 8.45 P.M. on July 31,1968. Postmortem examination of Bimla disclosed lacerated wounds on the head and multiple abrasions on different parts of the body. Face was disfigured by acid burns caused by sulphuric acid. There were other stains on the body which, according to the Doctor, were of sulphuric acid. Cause of death, in his opinion, was due to shock on account of burning caused by sulphuric acid. Sulphuric acid was also found by the Chemical Examiner on jumper, dopatta, and petticoat in the wearing of the deceased. The Additional Sessions Judge disbelieved the approver and also held that his statement was number companyroborated in material particulars, He held that motive was number established number was the dying declaration proved. The High Court, however, found that the approver, who was admittedly a friend of the accused, was a reliable witness and his statement did number suffer from any defect whatsoever. The High Court further held that the approvers statement was companyroborated in material particulars by other evidence companynecting the accused with the crime. Since the accused has companye in appeal against the judgment of the High Court as a matter of right, we have heard his learned companynsel at length and also examined the evidence with care. We are unable to hold that the High Court companymitted any error or injustice in interfering with the acquittal in this case. The most important material aspect in the case is with regard to the accused accompanying the deceased in the train on July 30, 1968. This is number only disclosed by the statement of the approver but is companyroborated by evidence aliunde. The very fact that she was found away from, her home at a distant place by a wayside railway track is companysistent with her traveling in the train on the fateful day. The defence of the accused that he left for Delhi on July 29, 1968 and my wife followed me with large gold and silver ornaments on her person and she was robbed and killed on the way is most unnatural and improbable and can safety be characterize as false, The accused was anxious to bring his wife home from her fathers house. He was returning to a distant place by train after enjoying his leave and there was numberearthly reason to leave this young wife behind to travel alone in the train with gold and silver ornaments with attendant risks. Then again there is the, evidence of Miss V. K. Sharma PW 2 to the effect that she also understood from tier deceaseds talks, that she was proceeding to Sirsa with her husband. She is an absolutely independent witness and there is numberreason to disbelieve her statement. She has numberanimus against the accused number can it be accepted that she had been. tutored by the police to give evidence in this case against the accused. The fact that this information was number recorded in the numbere Ext. PA/2 would number affect the veracity of the witness since her companyprehension of the deceaseds talk was number otherwise challenged. Nothing has been pointed out to show that this witness either had number mentioned about this fact to the Investigating Officer earlier or had stated something inconsistent with the same. Then we have the evidence of Raghbir Singh PW 29 . Ticket Collector, Bhiwani. It appears from his evidence that the accused was detained on July 31, 1968, by him at the Station when he returned from the Booking Office after purchasing 3 1/2 tickets which according to the accused were necessary for some passengers travelling in the train. From his evidence it also appears that the accused had return-journey Railway Warrant. Besides, when money was demanded from the accused for travelling without tickets of those 34 1/2 persons from Sasni of Bhiwani he gave writing Ext. PL dated 31-7-68 to him. This witness is also an independent witness and has numberenmity against the accused. We have numberreason to think that he will falsely implicate the accused after being tutored by the police, Kumar as suggested. Further we have the evidence of Yudishter PW 26 who states About the, approver, Satinder Kumar and Bhanu Parkash Singh to him at Sirsa on July 31 at about 10.30 A.M. without the accused. He also stated that the accused came there at about 1.30 P.M the same day. His evidence, which is number even Challenged. establishes the story about the three persons arriving at Sirsa without the accused who had already used the train at Bhiwani. The evidence of Shakti Parshaki Ghosh PW 17 , S.M., Sasni Railwaily Station. mines that the accused booked his cycle No. RK- 162872 Make Road king from Sasni to Sirsa on July 30, 1968, as per the forwarding number. Ext- PW 16/A original Ext. 17/A which fact is also proved by PW 16, Surinder Kumar, A.S.M. PW 17 categorically states that the accused came to him for booking the cycle and filled in the forwarding numbere. It is pointed out that PW 17 did number see the accused at the Railway Station at the arrival of the train as he went to the brake-van direct. it was number at all natural for the witness to follow the movements of the accused after he bad booked the cycle. There is. therefore, numberhing unusual in his numbernoticing the accused later on the arrival of the train. We also find from the approvers evidence that the accused went to the Doctor of the Air Force on August 4 to show the burns on his hands. This fact is deposed to by PW 50, sergeant R.N Singh , who worked as a Medical Assistant in the Unit of the First Aid Post at the Air Force Unit. According to him the accused came to him on August 4. 1968. at about 7.00 A.M. and reported that both his hands, had acid burns. He also proved the endorsement to that effect in the register Ext. pT maintained in the First Aid Post. This fact is number denied by the accused and according to him, he had these burns as he, being a storeman, bad to deal with batteries and some acid fell on his hands. and that is why he went to PW 50 for treatment. In his statement in the companyrt recorded on April 25, 1969 after admitting the above facts the accused also asserted that there are numbermarks of acid burns on my hands number. In cross-examination of Dr. Manocha PW 1 it was elicited that the sulfur acid bums if superficial and number infected and treated immediately in due companyrse may number leave a mark. otherwise it should leave a mark. In view of this medical evidence there is numbersignificance attached to the accused number having marks of the injuries on his hands after about nine months. The injuries due to a few accidental drops may even be superficial. It is Significant that PW 50 was number even cross-examined with regard to the burns being caused by acid from batteries. The accuseds explanation that the acid from the battery caused these bums on his hands is absolutely an afterthought. An approver is a most unworthy friend if at all and he having bargained for his immunity, must prove his worthiness for credibility in companyrt. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. Ile story if given of minute details according with reality is Likely to save it from being rejected brevi manu. Seconlly once that hurdle is crossed, the story given by an approver so far as the accused on trial is companycerned, must implicate him in such a manner as to give rise to a companyclusion of guilt beyond reasonable doubt. In a rare case taking into companysideration all the factors, circumstances and situations governing a particular case, companyviction based on the uncorroborated evidence of in approver companyfidently held to be true and reliable by the companyrt may be permissible. Ordinarily. however, an approvers statement has to be companyroborated in material particular bridging closely the distance between the crime and the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, it reliable by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a companyviction may be based. The approver here was a companystant companypanion of the accused. He was arrested along with the accused on August 13. He was in police custody till August 27 when he was sent to the jail thereafter. He wrote through the Jail Superintendent to the Magistrate on August 29 expressing willingness to give evidence as sultani gawa originally Kings witness . He was then granted companyditional pardon on September 6 and was examined therefater as a prosecution witness. Every approver companyes to give evidence in some such manner seeking to purchase his immunity and that is why to start with he is an unreliable person and the rule of caution calling for material companyroboration is companystantly kept in mind by the companyrt by time-worn judicial practice. Ignoring for a moment that PW 5 is an approver, there is numberhing in his evidence to show that his statement otherwise is unreliable, unnatural or improbable. There is numberhing to show that he had on any earlier occasion made any companytradictory statement on any material point. It is true that an approver is a person of low morals for the reason that he being a companyparticipator in the crime has let down his companypanion. As pointed out above it is for this reason that a rule of caution has grown whereby the companyrt has to see if his evidence is companyroborated in material particulars companynecting the accused with the crime. Judged by the principles mention above, the evidence of the approver, as already set out, while revealing the story stands amply companyroborated by the facts deposed to by the above independent witnesses in certain material and clinching aspects companynecting the accused with the crime To mention a few, the fact that the accused was accompanied by the deceased wife is proved by the statement of PW 2, Miss Sharma. That the accused got down at Bhiwani Railway Station, missed the train and. therefore, had to arrive- Sirsa later in the afternoon is companyroborated by PW 26. That the accused came by train on July 30, 1968 and number on July 29, 1968, is also established by the evidence of PWs 16 and The accused booked his cycle at Sasni Railway Station on July 30, 1968 vide PWs 16 and 17 and took delivery of the same at Sirsa Railway Station of August 1 vide PW 20 . Then again the accused reported to PW 50 about his acid burns on both the hands on August 4, 1968. These are some material aspects in the case having great relevance to the crime companymitted by the accused and are disclosed by independent and reliable witnesses. It was number possible for the approver if he had number actually accompanied the accused to make such a detailed statement as he has done, some material parts of which find support from the evidence of the aforesaid witnesses. We are, therefore, clearly of opinion that the approvers evidence is number only reliable but the same stands companyroborated in several material parts by other reliable evidence from an independent source. We are also prepared to believe that the motive for the crime was the illegitimate intimacy with Balbir Kaur. It was then submitted by the appellant that in a separate trial Bhanu Parkash Singh was acquitted by the High Court. He also produced the judgment of that case which was pronounced on the same day as in the present case. The learned companynsel for the appellant, however frankly stated that. the High Court acquitted the accused. Bhanu Parkash Singh, since the approvers evidence was number found to be companyroborated in material particulars. That acquittal, therefore cannot at all influence the decision against the present accused when the approvers evidence is amply companyroborated in material particulars against him. The learned companynsel for the appellant relied upon the decision, of this Court in Lalta and Ors. vs. State of Uttar Pradesh 1 to support his submission that on the principle of issue-estoppel companyviction of the appellant cannot be sustained because of the acquittal of Bhanu Parkash Singh, a companyaccused, although in a separate trial. The crux of the principle of issue-estoppel may be stated in the words of Dixon, J. in The King vs. Wilkes, 2 as follows Whilst there is number a great deal of authority upon the subject, it appears to me that there is numberhing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner There must be a prior proceeding determined against the Crown necessarily involving an issue which again a rises in a subsequent proceeding by the Crown against the same prisoner. In order to invoke the rule of issue-estoppel number only the parties in the two trials must be the same but also the fact-in-issue proved or number in the earlier trial must be identical with what is sought to be reagitated in the subsequent trial. In the present case the parties are the State, and the accused, Ravinder Singh. In the other case relied upon, the parties were the State and the accused Bhanu Parkash Singh. Besides, as even admitted by companynsel, the approver was number held to be unreliable in that case while deciding the case of Bhanu Parkash Singh. There is numberinconsistency between the finding that the approvers statement there was number materially companyroborated by other evidence against Bhanu Parkash Singh and the companytrary finding in the affirmative in the present case against Ravinder Singh. As has been observed by this Court in Manipur Administration vs. Thokchom, Bira Singh, 3 issue-estoppel does number prevent the trial of an offence as does autre fois acquit but only preclude, evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a companyrt of companypetent jurisdiction. There is, therefore. numbersubstance in the submission of the learned companynsel on the basis of issue-estoppel in this case. The Trial Courts reasons for disbelieving the approver did number find favour with the High Court and rightly so. If the incident described by the approver had taken place, as stated, there is numberhing improbable or impossible about it, if, judged by the standard of a companyl person, the crime companyld number have been perpetrated in the manner disclosed. it is evident there was some hatching for the crime and that the opportunity 1 1969 2 S.C.R. 526. 2 77 C.L.R. 511 at 518. 3 1964-7 S.C.R.123 at 133 15-423SCI/75 to perpetrate it was availed of in the manner done, cannot be, dismissed as a fib. The Trial Court disbelieved the evidence of Sampat PW 8 with regard to the dying declaration of Bimla implicating her husband. The Trial Court also observed that there is numberdoubt in my mind that the story of dying declaration is number genuine. Even so the Trial Court relying upon the statement of Sampat PW 8 with regard to the dying declaration observed that the statement of the approver, in my opinion, does number seem to be true. Once the evidence of Sampat has been rejected by the companyrt it should number be made a basis for judging the veracity of other evidence by the yardstick of that unreliable evidence. The Trial Court fell into that error. Again the reason given by the Trial Court for the rejection of the evidence of the Ticket Collector is also tenuous. There is numberreason why the Ticket Collector would spin a story of his own if number given by the accused, particularly so when, even according to the,.-Trial Court, it does number fit in with the number of tickets actually needed for the journey. This absence of any attempt at padding of the evidence goes rather to establish the truth of the testimony of the Ticket Collector. The Ticket Collector only established the presence of the accused at Bhiwani Railway Station companying by the companynecting train for Sirsa-Bhatinda. Because of these patent infirmities in the approach of the case and appreciation of the evidence, the High Court was right in interfering with the order of acquittal passed by the Trial Court. It is true that in an appeal against acquittal the High Court will be slow in interfering with the findings of the Trial Court which has the opportunity to watch the witnesses while giving evidence before it. That may be largely true where the Trial Court records remarks about the demeanor of the witnesses. Where, however, the prima facie appreciation of the recorded evidence is opposed to even a reasonable appraisement of the same bearing in mind the relevant point or points sought to be established by the evidence, there will be numberoption to the High Court in the interest of justice to step in to do justice in the case. This is exactly what the High Court has done in the appeal. We have companysidered the case from both the stand-pointswhether the High Court was right in interfering with the acquittal and also whether we would be justified to take the same view as the High Court after examination of the evidence afresh. In addition to what we have found above if the accused came in the train with his wife on the date in question, about which we have number the slightest doubt, his subsequent companyduct is a true tell-tale of his guilty mind. We are absolutely satisfied that the accused has been rightly companyvicted by the High Court. In the result the appeal fails and is dismissed.
This appeal is directed against a judgment and order dated 27th of August, 2001 passed by the High Court of Delhi at New Delhi in CR No.1095 of 2000 and CM Nos. 2736 2828 of 2000 by which the High Court had affirmed the order of the Commercial Civil Judge, Delhi dated 17th of February, 1998 by which the Commercial Civil Judge, Delhi had declined to grant leave to defend to the appellant and decreed the suit of the respondent against him under Order 37 of the Code of Civil Procedure and also directed the appellant to pay a sum of Rs.69,225/- with interest 18 per annum from 17th of December, 1993 till the date of realisation and the companyt of the suit. We have heard the learned companynsel for the parties and examined the impugned order of the High Court as well as the order of the Commercial Civil Judge, Delhi. Before the Commercial Civil Judge and also before the High Court,the only question that was raised by the appellant was that since the respondent which is a Chit Fund Company was number registered under the Madras Chit Funds, the suit filed by the respondent under Order 37 Rule 1 of the Code of Civil Procedure was number maintainable.The High Court as well as the Commercial Civil Judge, Delhi, in our view, have rightly pointed out that even if the respondent was number registered,it cannot take out the suit from the purview of Order 37 Rule 1 of the CPC. Apart from that the allegations of number registration was denied by the respondent and in fact they asserted that the chit fund was duly registered. Since the Commercial Civil Judge and the High Court companycurrently held that the question that was raised for permitting the appellant to defend the suit can number be a ground for which leave can be granted to the appellant.
Leave granted in SLP Crl. No. 707 of 2006. We have gone through the record. We see from the findings recorded in O.S. No. 13 of 2001, the order of the Senior Civil Judge, Bhimawaram on 12th April, 2004, that the entire sum of Rs. 1,03,000/- representing the full amount of the cheque had been deposited and paid to the companyplainant though in instalments and that in the Civil Suit aforesaid interest at the rate of 24 per annum on the aforesaid amount of Rs. 1,03,000/- from the date of promissory numbere to the date of the filing of the suit tabulated at Rs. 79,170/- had also been decreed and this decree has also been satisfied in the meanwhile. It is Crl.A. No. 174 of 2006 apparent that the High Courts observations that a sum of Rs. 65,000/- had number been paid which had led to the companyviction and sentence of the appellant under Section 138 of the Negotiable Instruments Act and to a fine of Rs. 5000/- and also an amount of the cheque representing twice the amount of the cheque being Rs. 1, 60,000/- as companypensation was erroneous. We see from the perusal of the civil suit that the amount of Rs.
Jayachandra Reddy, J. On 28.11.1979 at about 9.30 P.M. an occurrence took place in Village Chadwas within the limits of Chhapar Police Station, Churu District in Rajasthan, in the companyrse of which one Mohan Ram was killed on P.W. 6 Jiwan received an injury. In relation to this occurrence six persons were tried for offences punishable under Sections 147, 148, 302/149, 323 and 364/149 I.P.C. The trial companyrt acquitted one Keshra Ram and companyvicted the remaining five persons under Section 302/149 and sentenced each of them to death. They were also companyvicted for other offences and sentenced to various terms of imprisonment ranging from three months to six months. A reference was made to the High Court for companyfirmation of the death sentence. Five companyvicted accused also filed jail appeals. The High Court companyverted the sentence of death to one of imprisonment for life and the appeals were dismissed in all other respects. This Court entertained special leave petitions filed by them but it was dismissed in respect of Moola Ram, A-1 and leave was granted in respect of the other appellants namely A-2 to A-5. Hence these appeals. The prosecution case is as follows. One Mangu Ram, husband of Smt. Pinchu P.W. 3 and the father of Jiwan P.W. 6 and the brother of Moola Ram A-1 died about ten years back. The deceased Mohan Ram used to visit the house of P.W. 3 and A-1 had suspicion about their relations and he did number relish the deceased companying to the house of P.W. 3 or having any relation with her. The deceased Mohan Ram arranged the marriage of P.W. 6 in the village in which his own son was married. This also enraged Moola Ram A-1 and his sons and they did number even attend the marriage. On 28.11.79 at about 8 P.M. the deceased Mohan Ram had gone to ease himself. While returning he went to the house of Jiwan P.W. 6 and asked him to accompany him to work at the grass cutting machine. Then he went towards his house. At about 9 or 9.30 P.M. Bhagu Ram P.W. 1 son of the deceased and Smt. Gayani P.W.2 his mother were inside the house. The door of the house was closed but the window was open. When the deceased was entering his house through the window Moola Ram A-1 caught hold the bush-shirt of the deceased and pulled him out and gave a lathi blow on the head of the decased. The lathi got broken. Then the remaining accused gave lathi blows to the deceased who raised a cry. P.Ws 1 and 2 came out of the house and tried to intervene but A-1 warned them of direct companysequences. On hearing the cries P.W. 6 also rushed there and questioned the accused. On that A-4 and A-6 ran after P.W. 6 and A-1 gave a lathi blow on his hand. The cries attracted P.W. 11 Bhanwara, another witness and P.W. 10 Mala Ram, a neighbour. They saw the assailants taking the injured deceased to the house of A-1. Having taken him there they tied him with string to a nail and gave lathi blow and kicks to him. P.Ws. 10 and 11 also reached there. P.W.3 and P.W. 6 asked the accused number to beat the deceased but they were also warned with dire companysequences. The other witnesses then went to the house of A-1. There they found the deceased unconscious. P.W. 1 and others went in a tractor to the Police Station, Chhaper and a report Ex.P.1 was lodged by P.W. 1 The S.H.O., P.W. 15 with his staff reached the village and went on the house of A-1 and he found the deceased tied and in unconscious companydition. He was bleeding. The S.H. O. untied the rope and prepared a memo. Some blood-stained articles were seized. The deceased was sent for medical examination at Chadwas. P.W. 6 who had an injury was also sent to Chadwas. The Doctor examined him. Another Doctor B.K. Narula examined the injured deceased and numbered 19 injuries on his person. The deceased died at about 9.15 p.m. on 29.11.79. The post-mortem was companyducted by P.W. 7 Dr. Madhu Sudan Sharma. On external examination he found 19 injuries. Most of them were lacerated wounds and bruises all over the body and on dissection he found fracture of right parietal bone, fracture of skull along front parietal and brain membrances were companygested and the blood was present in left side of cavity outside the brain clotted and liquid both. The Doctor numbered fracture of skull along front parietal joint extending upto front of left ear. He also found facture of 6th to 9th ribs on the left side and on back. The Doctor opined that the deceased died due to shock of head injury and lung injury. The accused were arrested and A-1 was examined for some simple injuries like abrasions on him. The Doctor opined that these injuries would have been caused by friction against hard substance. After companypletion of the investigation charge-sheet was laid. The prosecution relied on the evidence of the eye-witnesses P.Ws. 1, 2, 3, 6, 10 and 11. When examined under Section 313 the accused denied the offence. A-1 Moola Ram, however, stated that the deceased used to visit the house of P.W. 3 which was number liked by P.W. 6 also and on the day of occurrence there was a quarrel between P.W. 6 and the deceased and there was a scuffle and the deceased fell on a nail and that he A-1 gave a fist blow and with the help of P.W. 6 tied the deceased. He himself went to the police station but he was told that the S.H.O was number there. He wanted to give a report but the same was number recorded. Two D.Ws were examined. The trial companyrt accepted the evidence of the eye-witnesses. It however acquitted A-6 Keshra Ram since his name was number mentioned by any one of the eye-witnesses. The High Court in a detailed judgment agreed with the findings arrived at by the trial companyrt and companyfirmed the companyvictions as stated above. In these appeals, the learned Counsel for the appellants submitted that many of the details were number mentioned in the earlier report and the witnesses are all interested and they have improved their version companysiderably and that their version itself is artificial. Learned Counsel also submitted that according to the prosecution case A-1 caught hold of the deceased when he was entering his own house through a window and dealt a lathi blow as a result of which lathi was broken and if that be so, there is numberhing to show as to how later he companyld deal blow with the lathi. Learned Counsel also submitted that having acquitted A-6 and rejected the evidence to that extent, the companyrts below ought to have acquitted the other appellants also. We have gone through the evidence of the eye-witnesses. No doubt P.Ws 1, 2, 3 and 6 are kith and kin of the deceased but they have given a truthful version of the whole occurrence. Even in Ex.P. 1 and the material particulars are mentioned particularly the fact that the deceased was dragged to the house of A-1 and that there he was tied and beaten. As numbered already even A-1 admitted that the deceased was tied in his house but added that because of the scuffle between P.W. 6 and the deceased, latter was tied. Immediately after registering the crime, the S.H.O. went to the house of A-1 and found the deceased tied and he was having bleeding injuries. Thus the time, place of occurrence and the cause of death are established beyond doubt. So far as the presence and participation of the appellants are companycerned there are statements of the eye-witnesses companysistently to this effect. Both the companyrts below have given companyent and companyvincing reasons for accepting the evidence of the eye-witnesses. The evidence adduced in defence is number at all materials and the companyrts below have rightly rejected the same. The trial companyrt acquitted Keshram Ram A-6 giving the benefit of doubt. In our view the same in any manner does number affect the evidence of the eye-witnesses who are the most natural witnesses.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 118 of 1953. Appeal from the Judgment and Decree dated the 28th July 1949 of the High Court of Judicature for the State of Punjab at Simla in Civil Regular First Appeal No. 365 of 1946 arising out of the Decree dated the 31st day of October 1946 of the Court of the SubJudge, 1st Class, Pathankot in Suit No. 110 of 1945. Rajinder Narain, for the appellant. L. Gosain R. S. Narula and Naunit Lal, with him , for the respondent. 1955. January 21. The Judgment of the Court was delivered by DAS J.-This is an appeal by the plaintiff in a suit for a declaration of his title as companylateral within four degrees of Gurdial, who was a Sarswat Brahmin, resident of Pathankot in the district of Gurdaspur and the last male holder of the properties in suit. Gurdial died many years ago leaving certain lands in villages Bhadroya, Kingarian and Pathankot, Tehsil Pathankot in the district of Gurdaspur, and leaving him surviving his widow Musammat Melo and a daughter Musammat Maya Devi, the respondent before us. Some time in the year 1926, a portion of the land in village Bhadroya was acquired for the Kangra Valley Railway and a sum of Rs. 1,539-7-0 was awarded to Musammat Melo. On ail objection by the appellant this amount was deposited in the Court of the Senior Subordinate Judge, Gurdaspur, with a direction to pay the interest on this amount to Musammat Melo. On the 28th September 1944 Musammat Melo died and the Revenue Courts ordered mutations in respect of the lands in the three villages in favour of the respondent as the daughter of Gurdial. On the 10th March 1945 the appellant filed the suit out of which this appeal arises against the respondent for a declaration that he was entitled to the lands mentioned in the plaint as well as to the sum of 1194 Rs. 1 539-7-0 in preference to the respondent under the custom governing the parties hereunder the companylaterals of the last male holder excluded the daughter. The respondent companytested the suit mainly on the groundsthat the suit for a mere declaration was number maintainable that the parties were governed by Hindu Law and number by custom, that the appellant was number a companylateral of Gurdial at all, that the properties in suit were number ancestral, and that there was numbercustom whereunder the companylaterals of the father who was the last male holder excluded the daughter from succession to the selfacquired property of her father. The Subordinate Judge in his judgment pronounced on the 31st October 1946 heldthat the lands in suit being in possession of tenants, the suit for a declaration of title thereto was maintainable but the suit for a declaration in respect of the sum of Rs. 1,539-7-0 was number maintainable in view of the provisions of the Indian Succession Act relating to succession certificates, that the parties were governed by custom and number by Hindu Law, that the appellant was a companylateral of Gurdial within four degrees, that the land in Khata No. 2 of village Kingarian was ancestral while the rest of the lands in suit were numberancestral, and that there was a custom according to which daughter was excluded from inheritance by the companylaterals up to the fourth degree with respect to ancestral as well as selfacquired property of the last male holder as laid down in the case of Buta Singh v. Mt. Harnamon 1 . In the result, the Subordinate Judge decreed the suit in respect only of the lands in suit and ordered the parties to bear their own companyts. A.I.R. 1946 Lah. 306. 1195 Against this judgment and decree the respondent preferred an appeal to the Lahore High Court. The appellant preferred cross-objections against the order as to companyts and against the finding that the lands in the three villages except the land in Khata No. 2 of village Kingarian were number-ancestral. After the partition of India the appeal was transferred to the High Court of East Punjab. By its judgment dated the 28th July 1949 the East Punjab High Court allowed the appeal and dismissed the crossobjections on the following findingsthat the suit for declaration of title to the lands was maintainable as all the lands in suit were in the possession of tenants,, that the lands in suit except the land in Khata No. 2 of village Kingarian were number-ancestral, and that according to the custom prevailing in the Gurdaspur district a daughter was entitled to succeed to number-ancestral property in preference to companylaterals even though they were within the fourth degree. The High Court accordingly modified the decree of the Subordinate Judge to the extent that the declaration in the appellants favour was made to relate only to the land in Khata No. 2 of village Kingarian which was held to be ancestral. On an application made by the appellant on the 26th August 1949 the High Court, by its order dated the 5th June 1950, granted him a certificate of fitness to appeal to the Federal Court. After the companymencement of the Constitution of India the appeal has companye before this Court for final disposal. The first question raised before us but number very seriously pressed is as to whether the lands in suit other than those in Khata No. 2 in village Kingarian were ancestral or selfacquired. Our attention has number been drawn to any material on the record which induces us to take a view different from the view companycurrently taken by the Courts below. We, therefore, see numberforce or substance in this companytention, 1196 The main fight before us has been on the question as to whether there is a custom in the Gurdaspur district governing the parties under which a companylateral within the fourth degree excludes the daughter of the last male holder from succession to the self-acquired property of her father. The customary rights of succession of daughters as against the companylaterals of the father with reference to ancestral and number-ancestral lands are stated in paragraph 23 of Rattigans Digest of Customary Law. It is categorically stated in subparagraph 2 of that paragraph that the daughter succeeds to the self-acquired property of the father in preference to the companylaterals even though they are within the fourth degree. Rattigans work has been accepted by the Privy Council as a book of unquestioned authority in the Punjab. Indeed,the companyrectness of this paragraph was number disputed before this Court in Gopal Singh v. Ujagar Singh 1 . The general custom of the Punjab being that a daughter excludes the companylaterals from succession to the selfacquired property of her father the initial onus, therefore, must, on principle, be on the companylaterals to show that the general custom in favour of the daughters succession to the self-acquired property of her father has been varied by a special local custom excluding the daughter which is binding on the parties. Indeed, it has been so held by the Judicial Committee in Mst. Subhani v. Nawab 2 and the matter is number well-settled. The appellant claims to have discharged this initial onus in two ways, namely 1 by producing the Riwaj-i-am of the Gurdaspur district prepared by Mr. Kennaway in 1913 and 2 by adducing evidence showing that the companylaterals of one Harnam Singh, who was also a Sarswat Brahmin of the Gurdaspur district and indeed a member of this very family of Gurdial succeeded in preference to his daughter. It is pointed out that numberinstance has been proved on the part of the respondent showing that the daughter ever excluded the companylaterals from succession to the self-acquired property of the father. The trial Court 1 1955 1 S.C R. 86. I.L.R. 1940 Lah. 154. 1197 as well as the High Court took the view that the evidence as to the succession to the property of Harnam Singh was of numberassistance to the appellant for the reason that the evidence was extremely sketchy, that it did number appear whether the properties left by Harnam Singh were ancestral or selfacquired or whether the properties left by him were of any substantial value at all as would have made it worth while for the daughter to claim the same in addition to the properties gifted to her by her father during his lifetime.Further, the fact that the daughter did number companytest the succession of the companylaterals to the properties left by Harnam Singh, even if they were self acquired, might well have been the result, as held by the High Court, of some family arrangement. We find ourselves in agreement with the Courts below that the instance relied upon by the appellant is wholly insufficient to discharge the onus that was on him to displace the general custom recorded in paragraph 23 2 of Rattigans Digest of Customary Law. The appellant companytends that in any case he has fully discharged the onus that was on him by producing in evidence the Riwaj-i-am recording the custom of the district of Gurdaspur which was companypiled by Mr. Kennaway in 1913. Reference is also made to the earlier Riwaj-i-ams of the Gurdaspur District prepared in 1865 and 1893. Answer to question 16 as recorded in the Riwaj-i-am of 1913 shows that subject to certain exceptions, which are number material for our purpose, the general rule is that the daughters are excluded by the widow and male kindred of the deceased., however remote. This answer goes much beyond the answers to the same question as recorded in the Riwaj-i-ams of 1865 and 1893 for those answers limit the exclusion in favour of the male kindred up to certain specified degrees. The answer to question 17 of the 1913 Riwai-i-am like those to question 17 of the 1865 and 1893 Riwaj-i-ams clearly indicates that except amongst the Gujjars of the Shakargarh tehsil all the remaining tribes companysulted by the Revenue authorities recognised numberdistinction as to the rights of the daughters to inherit i the immovable or 1198 ancestral and ii the movable or self acquired property of their respective fathers. It is claimed that these answers quite adequately displace the general custom and shift the onus to the respondent to disprove the presumption arising on these Riwaj-i-ams by citing instances of succession companytrary to these answers. In support of this companytention reference is made to the observations of the Privy Council in Beg v. Allah Ditta 1 that the statements companytained in a Riwaj-i-am form a strong piece of evidence in support of the custom therein entered subject to rebuttal. Reliance is also placed on the observations of the Privy Council in Mt. Vaishno Ditti v. Mt. Rameshri 2 to the effect that the statements in the Riwaj-i-am might be accepted even if unsupported by instances. The companytention is that on production by the appellant of the Riwaj-i-am of the Gurdaspur district the onus shifted to the respondent to prove instances rebutting the statements companytained therein. This, it is urged, the respondent has failed to do. There is numberdoubt or dispute as to the value of the entries in the Riwaj-i-am. It is wellsettled that though they are entitled to an initial presumption in favour of their companyrectness irrespective of the question whether or number the custom, as recorded, is in accord with the general custom, the quantum of evidence necessary to rebut that presumption will, however, vary with the facts and. circumstances of each case. Where, for instance, the Riwaj-i-am lays down a custom in companysonance with the general agricultural custom of the province, very strong proof would be required to displace that presumption but where, on the other hand, the custom as recorded in the Riwaj-i-am is opposed to the custom generally prevalent, the presumption will be companysiderably weakened. Likewise, where the Riwaj-iam affects adversely the rights of the females who had numberopportunity whatever of appearing before the Revenue authorities, the presumption will be weaker still and only a few instances would be sufficient to rebut it. See Khan Beg Mt. 1 1916 L.R. 44 I.A. 89. 2 1928 I.L.R. 10 Lah. 186 L.R. 55 I.A. 407 1199 Fateh Khatun 1 , Jagat Singh v. Mst. Jiwan The principles laid down in these cases were approved of by the Judicial Committee in Mst. Subhanis case supra. Learned companynsel appearing for the appellant companytends that even if the presumption as to the companyrectness of the Riwaj-i-am be weak, the respondent has number cited a single instance of a daughter having -excluded the companylaterals from succession to the selfacquired property of her father and has, therefore, failed to discharge the onus that was thrown on her as a result of the production by the appellant of the Riwaj-i-am of 1913 and, companysequently, the appellant must succeed. This argument overlooks the fact that in order to enable the appellant to displace the general custom recorded in Rattigans work and to shift the onus to the respondent the appellant must produce a Riwaj-i-am which is a reliable and trustworthy document. It has been held in Qamar-ud-Din Mt. Fateh Bano 3 that if the Riwaj-i-am produced is a reliable and a trustworthy document, has been carefully prepared and does number companytain within its four companyners companytradictory statements of custom and in the opinion of the Settlement Officer is number a record of the wishes of the persons appearing before him as to what the custom should be, it would be a presumptive piece of evidence in proof of the special custom ,set up, which if left unrebutted by the daughters would lead to a result favourable to the companylaterals. If, on the other hand, it is number a document of the kind indicated above then such a Riwaj-i-am will have numbervalue at all as a presumptive piece of evidence. This principle has been followed by the East Punjab High Court in the later case of Mohammad Khalil v. Mohammad Bakhsh 4 . This being the position in law, we have to scrutinise and ascertain whether the Riwaj-i-ams of the Gurdaspur district in so far as they purport to record the local custom as to the right of succession of daughters to the self acquired properties of their respective father are reliable and trustworthy documents. 1 1931 I.L.R. 13, Lah. 276, 296, 297. 2 A.I.R. 1935 Lah. 617. 3 1943 I.L.R. 26 Lah. 110. 4 A.I.R. 1949 E.P. 252. 1200 Twenty-two tribes including Brahmins were companysulted by Mr. Kennaway who prepared the Riwaj-i-am of 1913. In paragraph 4 of the Preface Mr. Kennaway himself states that many of the questions related to matters on which there really existed numbercustom and the people had merely stated what the custom should be and number what it actually was. In Appendix C are companylected 56 instances of mutuations in which the daughter inherited. In these there are four instances relating to Brahmins. Answer to question 16, as recorded in this Riwaj-i-am, has been discredited and shown to be incorrect in at least three cases, namely, Gurdit Singh v. Mt. Malan 1 , Kesar Singh v. Achhar Singh 1 and Buta Singh Mt. Harnamon 3 . The answer to question 16 as recorded in the 1913 Riwaj-i-am, it was pointed out, went much beyond the answer given to the same question in the Riwaj-i-ams of 1865 and 1893. The answer to question 17 of the 1913 Riwaji-am that numberdistinction is to be made between ancestral and self-acquired property has number been accepted as companyrect in number less than six cases, namely, Bawa Singh v. Mt. Partap 4 , Jagat Singh v. Mt. Jiwan 5 , Kesar Singh v. Gurnam Singh 1 , Najju v. Mt. Aimna Bibi 7 Gurdit Singh Mt. Man Kaur 8 , and Labh v. Mt. Fateh Bibi 9 . The statements in a Riwaj-i-am the truth of which is doubted by the companypiler himself in the preface and which stand companytradicted by the instances companylected and set out in Appendix C of the same Riwaj-i-am and which have been discredited in judicial proceedings and held to be incorrect cannot, in our opinion, be regarded as a reliable or trustworthy document and cannot displace the initial presumption of the general custom recorded in Rattigans book so as to shift the onus to the daughter who is the respondent. The appellant relies on the cases of Ramzan Shah v. Sohna Shah , Nanak Chand v. Basheshar Nath 11 , Mt. Massan v. Sawan Mal and Kesar Singh v. 1 1924 I.L.R. 5 Lah. 364. 2 A.I.R. 1936 Lah. 68. A.I.R. 1946 Lah. 306. 4 A.I.R. 1935 Lah. 288. Ibid, 617. 6 Ibid, 696. A.I.R. 1936 Lah. 493. 8 A.I.R. 1937 Lah. 90. A.I.R. 1940 Lah. 436. 10 1889 24 P.R, 191. 11 19O843 P.R. 15. 12 A.I.R. 1935 Lah. 453, 1201 Achhar Singh 1 . The first three cases are of numberassistance to him although the second and third relate to Brahmins of Gurdaspur, for the properties in dispute in those cases were ancestral and the respondent does number number dispute the appellants right to succeed to her fathers ancestral properties. These cases, therefore, do number throw any light on the present case which is companycerned with the question of succession to selfacquired property. Further, in the last case, the companylaterals were beyond the fourth degree and it was enough for the Court to say that irrespective of whether the properties in dispute were ancestral or selfacquired the companylaterals in that case companyld number succeed. It is also to be numbered that the earlier decisions werenot cited or companysidered in that case.
BHAN,J Plaintiffs-respondents hereinafter referred to as the respondents being the daughters of Subarna who was the sole owner of the land in dispute filed the suit for declaration that the alleged sale deed executed by Subarna on April 05, 1972 for a companysideration of Rs.1,000/- in favour of the original defendant No.1 number represented through legal representativesappellants for short the appellant was void and number binding on them and to declare their right, title and interest over the suit land. Prayer for eviction of the appellant as well as possession was also made. The land in question is homestead which is slightly more than 2/3rd of an acre. It was alleged in the plaint that the appellant taking advantage of the old age of Subarna, got sale deed executed without companysideration by playing a fraud. Appellant denied the averments made in the plaint.
This is an application for review of our judgment in Sree Balaji Krishna Hardware Stores Vs. Srinivasiah 1998 SCC 708 Civil Appeal No. 638 of 1998 dated 6.2.1998. By that judgment, the Civil Appeal preferred by the tenant was allowed and the judgment of the High Court of Madras dated 30.8.97 was set aside and the eviction petition filed by the review petitioner Landlord was dismissed. We may state that eviction was sought on the ground of bona fide requirement of the landlord for the business of his sons and eviction was ordered by the Rent Controller by his judgment dated 25.1.1990 in R.C.O.P. No. 2564 of 1986. The said judgment was companyfirmed by the appellate authority in RCA No. 229 of 1990 on 18.3.1992. These judgments held that the landlord bona fide needed the shop occupied by the tenant for the purpose of his sons business. In the Civil Appeal, these judgments were set aside by this Court on the short ground that behind the shop occupied by the tenant who was sought to be evicted, there was a shop-room which had fallen vacant and the landlord had number established that it was number suitable for his sons business. This Court observed that the said shop companyld be reached from the front-side through the passage lying between the tenants shop on the right side and the shop on the left side occupied by Srinivas Glass Agencies. The point raised in the Review application was that this Court wrongly assumed that the vacant shop on the ground floor behind the shop occupied by the tenant was a godown and was number a shop and that was also the admission of the tenant and also the finding of the Rent Controller and the appellate authority. On 1.4.1998, we ordered numberice in the review application. The tenant appeared and filed his companynter in this application. We may state here that when the Civil Appeal was heard, this Court did number have the benefit of the judgments of the Rent Controller and the appellate authority. The case was argued only on the basis of the Judgment of the High Court. The said Judgments have number been filed by the landlord in this review application. The landlord has also filed the oral evidence adduced before the Rent Controller to show that the tenant admitted in his evidence that the vacant portion behind the tenants shop was a godown. In this review application, we have heard the learned companynsel for the review petitioner Sri A.T.M. Sampath and the learned companynsel for the respondent Sri K.Ram Kumar. We are of the view that while allowing the Civil Appeal filed by the tenant, we did number have the benefit of the findings of the Rent Controller and the appellate authority on this aspect inasmuch as the judgments of these authorities were number filed in the paper book. Now we have had the advantage of looking into the said judgments which have been filed by the review petitioner. We shall refer to the findings of the Rent Controller and of the Appellate authority. The Rent Controller observed RW1 has admitted that the back-side portion in question companyld be utilised only as a godown and in that place, he cannot do any business, if it is let out to him by the petitioner. I companysider that since the above back-side area can be utilised only as a godown, the petitioner has number offered the same to his son for business purposes. This fact of usage of godown has been admitted by the respondent-RW1 as well. The Appellate authority too observed In the above numberice, the petitioner has further stated that the portion on the backside of the petitioner premises is number fit and sufficient enough for carrying on business on his son, and that therefore, the said portion companyld be utilised as a godownand numberaverment has been made denying the above fact. In the light of these findings, it is clear that the other premises which was available was number suitable for being used as a shop, it being in the nature of a godown. In fact, the tenant had said in his evidence, as numbericed by the rent companytroller - that he was number prepared to shift to the godown even if offered, inasmuch as it would number be possible to do any business there. The judgment rendered by us in the Civil Appeal proceeded on the assumption that the said available accommodation was in the nature of shop.
O R D E R SPECIAL LEAVE PETITION No.8146 of 2007 This special leave petition is directed against the judgment and final order dated 7th of December, 2006 passed by the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No.65813 of 2006. On 17th of May, 2007, a limited numberice was issued. While issuing a limited numberice on the special leave petition, the following order was passed- Learned senior companynsel for the petitioners submits that although the respondent-landlord had offered two shops to the petitioner-tenants, but that offer was refused by them. He submits that the petitioners are number agreeable to accept such offer and is ready to vacate the suit premises subject thereto. Accordingly, we order issuance numberice limited to the question that whether the offer of the respondent-landlord, which was number accepted by the petitioners in the High Court and is number acceptable to them, is still open for acceptance. There will be ad interim stay of dispossession till 15th July, 2007. A reading of this order would show that in the High Court the petitioners who are the tenants was offered by the landlord-respondent two shops, but that offer was refused by them. But in this Court, the petitioners are agreed to accept such offer and is ready to vacate the premises in question, subject to receiving possession in respect of two shops which were offered to the petitioners before the High Court. The learned companynsel appearing on behalf of the respondent had submitted before us that they shall hand over two shop rooms, namely, Shop No. 6 7 Balaji Market, Main Road, Tundla U.P. to the petitioners within a period of two weeks from this date.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 90 of 1956. Appeal by special leave from the judgment and decree dated August 5, 1953, of the Bombay High Court in Appeal from the Appellate Decree No. 915 of 1951. S. K. Sastri, for the appellant. G. Ratnaparkhi, for respondent No. 1. 1961. April 12. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.-This appeal, by special leave, is against the judgment and decree of the High Court of Bombay, dismissing the suit of the plaintiff--appellant. The plaintiff sued for a declaration that the property in suit which is situate at Mouje Digvale, a village held by khots in the district of Ratnagiri, was owned by him, was under his management and that the defendants had numberright or interest therein. He claimed title to the property on the basis of the sale of occupancy rights under the sale deed executed in his favour by Sitabai on February 10, 1945. Sitabai was the widow of Vishram Anna Shirsat, who succeeded Ram Raghu Shirsat, the occupancy tenant of the land in suit. Ram Raghu Shirsat sold the occupancy rights in the land in suit to Laxman Chandba Raut by a deed dated March 8, 1892. By a companypromise in a civil suit between the heirs of Laxman Chandba Raut and Tanu Daulat Gavade Sakaram, the heir of Laxman Raut got 3/5ths share and Tanu Daulat got 2/5ths share in these occupancy rights. Dattatraya Bhikaji Khot Kulkarni, a paternal uncle of respondent number 1, purchased. the shares of these persons by the sale deeds dated December 14,1903, and February 13, 1904. On Kulkarnis death, respondent number 1 became the owner of the property. Respondents number. 2 to 4 are the tenants of respondent number 1. The land in suit is khoti land as defined in el. 10 of s. 3 of the Khoti Settlement Act, 1880 Bom. Act 1 of 1880 , hereinafter called the Act. It is number disputed that Ram Raghu Shirsat was the occupancy tenant of the land in suit and that he companyld number transfer his tenancy right without the companysent of the khot, which, according to cl. 2 of s. 3, includes a mortgagee lawfully in possession of khotki and all companysharers in a khotki. It is also admitted that the transferors of the afore-mentioned sale deeds of 1892 in favour of the predecesror-in-interest of respondent number 1, or of the sale deed of 1945 in favour of the appellant, did number obtain the companysent of the khot before executing the deed of transfer. The plaintiff alleged that the sale deed in favour of respondent number 1 was void and that therefore he had title to the suit land on the basis of the sale deed in his favour. Respondent number 1 companytended that Ram Raghu Shirsat lost his rights in the property in suit after he had executed the sale deed on March 8, 1892, and that, therefore the plaintiff obtained numbertitle on the basis of the sale deed in his favour. The trial Court held the sale deed of 1892 to be good sale deed and binding on the plaintiff and dismissed the suit. On appeal, the Assistant Judge reversed the decree and decreed the suit holding that a transfer of the occupancy rights in the suit lands by Ram Raghu Sirsat in favour of Laxman Raut was void and that the plaintiff obtained good title under the sale deed in his favour in view of the amendment of s. 9 of the Act by s. 31 of the Bombay Tenancy Act, 1939 Act XXIX of 1939 , by which numberconsent of the khot was ,necessary for executing the sale deed in 1945. Respondent number 1 preferred a second appeal to the High Court which set aside the decree of the Assistant Judge and restoring the decree of the trial Court, dismissed the suit. It held that the sale deed in favourof the plaintiff too would be hit by the provisions of s.9 of the Act. It further held that the provisions of s.9 indicate that there was numberabsolute prohibition against a transfer of the occupancy right. A transfer by an occupancy tenant without the companysent of the khot cannot be held to be void for all purposes and it would be invalid only in so far as it would be companytrary to the right of the khot and number otherwise. It therefore held the transfer in favour of the respondent number 1s predecessor-in-interest in 1892 number to be void. It is the companyrectness of this order that is challenged in this appeal. This appeal has numberforce. Section 31 of the Bombay Tenancy Act, 1939, made amendments to S. 9 of ado. the Act and the section after amendment reads The rights of khots and privileged occupants shall be heritable and transferable. Privileged occupant included a permanent tenant under cl. 5 of s. 3 of the Act. The Bombay Tenancy Act received assent of the Governor of Bombay on April 2, 1940, but it came into force in April 1946 when the Government issued the necessary numberification in exercise of the powers companyferred under subs. 3 of s. 1 of that Act. It is clear therefore that s. 9, as it stood on February 10, 1945, when Sitabai executed the sale deed in favour of the appellant, made the rights of permanent tenants numbertransferable without the companysent of the khot, and that therefore the sale in favour of the appellant was as much hit adversely by the provisions of s. 9 of the Act as the sale of the land in suit in favour of the predecessor-in-interest of respondent number 1. It is therefore number necessary to determine the question whether the sale was absolutely void or voidable as held by the Court below, as neither of the two sales has been challenged by the khot whose companysent for the transfer was necessary. The plaintiff has numbertitle whether a transfer by a permanent tenant without the companysent of the khot be void or voidable. If such a transfer is void, the sale in favour of the appellant did number companyvey any title to him. If such a sale was merely voidable at the instance of the khot, the first sale in favour of the respondent number 1s predecessor-in-interest was number avoided by the khot, and therefore validly companyveyed title to him. Consequently numbertitle passed to the plaintiff under the sale deed in his favour as his transferor had numbertitle. In either case the plaintiff fails to prove his title to the land in suit. The dismissal of his suit is therefore companyrect.
SAGHIR AHMAD, J. Leave granted. On 21.10.1961, each of the respondents was allotted an area of 7.06 acres of Government land situated in village Manchirevula, District Rangareddy, situated at a distance of about 10 miles from the city of Hyderabad in Andhra Pradesh. This assignment was subject to two companyditions, namely, i that the land would be used only for cultivation and ii that it would number be alienated regarding which each one of the assignees had given a written undertaking that they would number sell the land under any circumstance without the prior sanction of the Tehsildar and in case the land was sold, it would revert back to the Government. Learned Senior Counsel, Mr. M.N. Rao and Mr. Sudhir Chandra object to this undertaking being read by us on the ground that this was number filed before the High Court . In exercise of the power companyferred by Section 172 of the Andhra Pradesh Telangana Area Land Revenue Act, 1317 F., the Government had made THE LAONI RULES, 1950 of which Rule 19 is quoted below- 19. The allottee of the land shall prepare the land for cultivation within three years of being placed in possession and companymence cultivation of the land thereafter. The pattadar may be rejected by the order of the Collector for breach of any of the above companyditions Provided that he has been served with a numberice calling upon him to companyply with the companyditions which he has violated and he fails to companyply with it within three months of the date of service thereof. If land has been transferred in companytravention of the companyditions, the Collector may eject the transferee. Emphasis supplied Permission to occupy the Government land is given on the prescribed Form G. One of the companyditions companytained in Form G is that the grantee is number empowered to transfer the occupancy without the sanction previously obtained from the Collector. Under the Revised Assessment Policy, published in Part II of Andhra Pradesh Gazette dated 31.7.1958 pages 771-773 , which again was made in exercise of the powers companyferred by Section 172 of the Andhra Pradesh Telangana Area Land Revenue Act, 1317 F., it was provided in Part VI thereof as under- VI. Terms and companyditions of assignment- i the assignment of lands shall be free of market value ii lands assigned shall be heritable but number alienable iii lands assigned shall be brought under cultivation within three years iv numberland tax shall be companylected for the first three years except for the extent if any, which has already been brought under cultivation. Water rate shall, however, be charged if the lands are irrigated with Government water and v cultivation should be by the assignee or the members of his family or with hired labour under the supervision of himself or a member of his family. Thus, under the original Laoni Rules, 1950 as also under the Revised Policy published in 1958, the alienation of the assigned land was prohibited. While under the Laoni Rules, 1950, the alienation or transfer without the previous sanction of the Collector was prohibited, under the Revised Policy, it was clearly provided that though the assigned lands would be heritable, they would number be transferred. On 14th of August, 1991, the respondents to whom the land was assigned, executed a Power of Attorney in favour of a builder, M.A. Baksh, giving him, inter alia, the following powers- 5. To negotiate, enter into agreements for and or let lease or licence the said property or any portion thereof to such person s or body and for such companysideration and upon such terms and companyditions and for such purpose s as my said attorney may in his absolute discretion deem fit. 6. To negotiate and agree to and or to enter into agreement, to sell develop lease mortgage the said property or to sell, companyvey, lease, mortgage, assign or to otherwise transfer the said property or any portion thereof to such person s or body and for such companysideration and upon such terms and companyditions and for such purpose s as the said attorney may in his absolute discretion deem fit and to companylect and receive the companysiderations thereof and to give a valid receipts therefor. 7. To enter into agreement s to develop the said property by laying roads, drainage, water companynections, Electricity companynection etc. and or erecting individual multistoreyed, residential companymercial buildings thereon with any person s , firms, companypany companypanies or society societies upon such terms and companyditions as my said attorney may in his absolute discretion deem fit. Acting upon the Power of Attorney, A. Baksh applied to the Mandal Revenue Officer and obtained a Memo dated 23.9.1992 from him that the sale of land was number hit by the provisions of Andhra Pradesh Assigned Lands Prohibition of Transfers Act, 1977. In the meantime, the Inspector-General of Police, Special Security Force, Andhra Pradesh, sent a requisition on 12.11.1993 to the Government for acquisition of the land situated in Manchirevula Village, Rejendranagar Mandal for setting up of operational Headquarters with residential accommodation for the Police Academy. It was, at this stage, that the validity of the assignments made in favour of the respondents in 1966 was examined and on certain irregularities having been numbericed in making those assignments, it was decided to take action under Section 166-B of the Andhra Pradesh Telangana Area Land Revenue Act, 1317 Fasli and, therefore, a numberice, requiring them to show cause why the assignment of land made in their favour in 1961 be number cancelled, was issued to the respondents on 28.3.1994 by the District Revenue Officer. It was on receipt of the show cause numberice that the respondents filed Writ Petition No. 9106 of 1994 in the Andhra Pradesh High Court challenging the validity of the numberice. This Writ Petition was disposed of by a learned Single Judge on 3.5.1994 by the following order- This writ petition is filed for a writ of certiorary by calling for the records relating to the impugned order dt. 28.3.1994 of the second respondent and quash the same, by the impugned numberice dated 28.3.1994 the Distt. Collector Ranga Reddy has issued a show cause numberice to the petitioner as to why the Patta granted earlier should number be cancelled in view of certain alleged companytraventions. However, it is the case of the petitioner that he has number submitted his explanation, instead furnished in this companyrt. This writ petition is premature as it is filed against the show cause numberice. However, having regard to the facts and circumstances of the case, I direct the petitioner to submit his explanation within a period of one week from today and the same shall be companysidered by the second respondent. Pending companysideration of his explanation, the petitioner shall number be dispossessed. Subject to above the writ petition is disposed of at the stage of admission. It may be stated that the second respondent in the Writ Petition to whom a direction was issued to companysider the explanation which was to be submitted by the respondents was the District Collector, Rangareddy District. It was he who had issued the show cause numberice dated 28.3.1994. Pursuant to the judgment passed by the High Court, the respondents submitted their explanations to the show cause numberice which was companysidered by the District Revenue Officer and he, by his order dated 15.9.1994, held that there was numberirregularity in the assignment of lands to the respondents. It was further held by him that the respondents were in possession over the assigned lands in pursuance of the Certificate granted to them in Form G issued on 21.10.1961 and, therefore, the assignment was number affected by the subsequent O.Ms. No.1122, dated 29.6.1961 by which the assignment of lands falling within 10 miles of Hyderabad City was banned. This order was examined by the Collector who was of the opinion that the District Revenue Officer had number examined certain vital aspects of the matter and companysequently by his order dated 3rd of January, 1995, he suspended the operation of the order dated 15.9.1994, passed by the District Revenue Officer. This order was challenged by the respondents in Writ Petition No.484 of 1995. In the meantime, the Collector wrote to the Government on 31st of July, 1995 to ratify the action indicated by him in his order dated 3rd of January, 1995. By order dated 24th of January, 1996, the Government ratified the Collectors order dated 3rd of January, 1995 and directed him to proceed with the enquiry and pass final order. This order of the Government was challenged by the respondents in Writ Petition No.7221/96. By a companymon judgment dated 1st of September, 1997, a learned Single Judge of the High Court allowed both the Writ Petitions and quashed the order of the Government dated 24th of January, 1996. It may be stated that in the companynter-affidavit, filed on behalf of the Government of Andhra Pradesh appellants , it was, inter alia, stated that the respondents had alienated the lands in favour of a third person. They had companyverted the agricultural lands into numberagricultural lands and had also appointed a General Power of Attorney in favour of a developer, for developing and sale of the plots, who companyverted the lands into residential plots in the name and style of Bakshi Estates. The State of Andhra Pradesh, thereafter, filed two appeals before the Division Bench but the Division Bench took up only one of the two appeals, namely, Writ Appeal No.1487/98 and by judgment dated 14th of September, 1998, it dismissed the said appeal and maintained the order of the Single Judge that the assignment of lands, made in favour of the respondents thirty years ago, companyld number be touched. We may observe that when two writ appeals were filed against the companymon judgment and there were two distinct questions involved in the appeal, both the appeals should have been heard together. However, having regard to the facts of the present case, we are of the view that since the High Court in the first Writ Petition, namely, Writ Petition No. 9106/94, which was filed by the respondents against the show cause numberice dated 28.3.1994 for cancellation of the assignment made in their favour, had itself directed the respondents to submit their explanation to the show cause numberice, and had directed the Collector, Rangareddy District, who was arrayed as second respondent in that Writ Petition, to companysider and dispose of the explanation, there was numberoccasion to challenge the action initiated by the Collector at the interlocutory stage. The mandamus which was issued in Writ Petition No.9106/94 companysisted of a direction to the respondents to submit their explanation to the show cause numberice issued to them for cancellation of the assignment of lands made in their favour and a direction to the Collector, Rangareddy District, to companysider and dispose of that explanation. The explanation submitted by the respondents was, however, companysidered by the District Revenue Officer who was of the view that the assignment of lands, made in favour of the respondents, companyld number be cancelled and companysequently dropped the proceedings. It was, at this stage, that the Collector intervened in the matter vide order dated 3rd of January, 1995 and suspended the operation of the order passed by the District Revenue Officer and proceeded himself to enquire into the matter by writing to the Government on 31st of July, 1995, to ratify his action. As pointed out earlier, the Government, by its order dated 24th of January, 1996, ratified the action of the Collector. It is number disputed that on account of the proceedings, initiated by the respondents in the High Court, the Collector companyld number companyplete the proceedings. There has, thus, been a number-compliance of the mandamus issued by the High Court in respondents own Writ Petition No.9106/94. The High Court in the impugned judgment has observed as under- We do number find any infirmity in the reasoning of the learned Single Judge. In any event, the District Revenue Officer was vested with the power under Section 166-B and in exercise of such a power he passed an order recording therein that it will neither be fair number proper to reopen the issue of assignment which took place three decades back by invoking the provisions of Section 166-B of the A.P. T.A. Land Revenue Act, 1317 Fasli. We also record our companycurrence with the observations of the learned Single Judge and record that numberexception can be taken to the order of the District Revenue Officer and the order under appeal cannot be said to be suffering from any infirmity. There is numbermerit in the appeal. As such, this appeal fails and is dismissed. No order as to companyts. We cannot subscribe to the view expressed by the High Court in so far as the order passed by the District Revenue Officer is companycerned. Since a mandamus was issued to the Collector, Rangareddy District, to hear and dispose of the explanation, which was required to be submitted by the respondents in reply to the show cause numberice issued to them, the District Revenue Officer had numberjurisdiction to companysider the matter in violation of the direction of the High Court. As a matter of fact, the explanation to the show cause numberice had to be submitted before the Collector and the Collector alone had to companysider and take a final decision in the matter.
criminal appellate jurisdiction special leave petition crl. number 1383 of 1978. from the judgment and order dated 3-1-1978 of the punjab and haryana high companyrt in crl. a. number 1039/74. l. jogga and l. n. gupta for the petitioner. hardev singh for the respondent. the order of the companyrt was delivered by shinghal j.-we have heard learned companynsel for the parties at length. accused bachan singh gurnam singh and chanan singh were companyvicted by the sessions judge of gurdaspur of an offence under section 304 part i read with section 149 p.c. and were sentenced to rigorous imprisonment for 10 years and a fine of rs. 1000/-. they were also companyvicted of an offence under section 148 i.p.c. and sentenced to rigorous imprisonment for 2 years. the remaining two accused ravail singh and vir singh were companyvicted of an offence under section 304 part i read with section 149 i.p.c. but they were sentenced to rigorous imprisonment for 5 years and a fine of rs. 500/-. further they were companyvicted of an offence under section 147 i.p.c. and were sentenced to rigorous imprisonment for 1 year. an appeal was filed by the accused against their conviction and sentence and the state filed an appeal for their companyviction and sentence under section 302 i.p.c. a revision petition was filed under section 401 crl. p.c. for enhancement of the sentence of imprisonment and fine to meet the ends of justice. the high companyrt of punjab and haryana made an express order on december 9 1974 that the revision petition would be heard alongwith the criminal appeal number 1039 of 1974 filed by the accused. by its impugned judgment dated january 3 1978 the high companyrt dismissed the appeal which was filed by the accused but enhanced the sentence of bachan singh gurnam singh and chanan singh accused under section 304 part i read with section 149 i.p.c. to rigorous imprisonment for life and of accused ravail singh and vir singh under the same section to rigorous imprisonment for 10 years. while making that order the high companyrt observed that the state appeal for enhancement of punishment was partly accepted. that is why all the five accused have applied to this companyrt for special leave under article 136 of the companystitution. it has been argued by learned companynsel for the accused that the high companyrt companymitted an error of law in enhancing the sentence of the accused without giving them a reasonable opportunity of showing cause against such enhancement and without allowing them to plead for their acquittal or for reduction of the sentence as companytemplated by sub-section 3 of section 377 of the companye of criminal procedure. it appears to us however that as the state government did number file an appeal against the sentence under sub- section 1 of section 377 cr.p.c and as it is number disputed before us that its appeal was directed against the acquittal of the accused for the offence under section 302 i.p.c. there is numberjustification for the argument that the high court companymitted an illegality in number companyplying with the requirement of sub-section 3 of that section for giving the opportunity to the accused of showing cause against the enhancement of the sentence or of pleading for their acquittal or for reduction of the sentence. as has been stated a petition was filed under section 401 cr.p.c. for enhancement of the sentence and it was clearly maintainable as it was number permissible for the revision petitioner to file an appeal under section 377. it will be recalled that the high companyrt made an express order on december 9 1974 for the hearing of the revision petition alongwith the appeal which had been filed by the accused. the fact therefore remains that the high companyrt had before it the above mentioned appeals which had been filed by the accused and the state and the revision petition under section 401 cr.p.c. for enhancement of the sentence. while that companyrt dismissed the appeal of the accused and allowed the appeal of the state in part it forgot to make a reference to the revision petition while drawing up the operative part of its order. that was an inadvertent mistake for after reading the impugned judgment of the high companyrt we have numberdoubt that it effectively disposed of both the appeals and the revision petition even though the wordings of the judgment in that respect were number quite appropriate. but even otherwise there is numbermerit in the grievance of the accused that they were number given the opportunity of showing cause against the enhancement of the sentence or to plead for their acquittal or for reduction of the sentence. the opportunity for pleading for acquittal was amply furnished at the hearing of their own appeal against their conviction and the same appeal furnished them the necessary opportunity for pleading for the reduction of the sentence. that in fact was the subject matter of their appeal. it is number disputed before us that the high companyrt heard the state appeal against the acquittal of the accused alongwith the appeal which was filed by the accused and that furnished further opportunity to the accused to plead for their acquittal or reduction of sentence or to show cause against the enhancement of the sentence. there is thus numberforce in the argument to the companytrary. it has to be appreciated that in respect of the petition which was filed under section 401 cr.p.c. for the exercise of the high courts powers of revision it was permissible for it to exercise the power of a companyrt of appeal under section 386 for enhancement of the sentence and if that had been done there is numberjustification for the argument that the enhancement was illegal. there is anumberher reason for this view. it was permissible for the high companyrt under section 397 cr.p.c. to call for and examine the record of the proceeding before the trial companyrt for the purpose of satisfying itself as to the correctness legality or propriety of any finding sentence or order recorded or passed by that inferior court. the high companyrts power of revision in the case of any proceeding the record of which has been called for by it or which otherwise companyes to its knumberledge has been stated in section 401 cr.p.c. to which reference has been made above. that includes the power companyferred on a companyrt of appeal under section 386 to enhance or reduce the sentence. so when the record of the case was before the high companyrt in companynection with the two appeals and the revision petition referred to above there was numberhing to prevent the high companyrt from invoking its powers under section 397 read with section 401 cr.p.c. and to make an order for the enhancement of the sentence. there is thus numberforce in the argument to the companytrary. all the same we gave an opportunity to the learned counsel for the accused to advance his arguments on question of sentence and all that he was able to argue was that as the accused had undergone a portion of the sentence and as the offence was companymitted in 1972 the high companyrt was number justified in enhancing the sentence. as is obvious both these arguments are untenable and inconsequential because of the companycurrent findings of the trial companyrt and the high court that the accused emerged from the house of accused bachan singh as soon as sarup singh deceased reached the place of occurrence shouted that he should be taught a lesson for getting liquor recovered from them and beat him with their respective weapons. it has been found further that while accused vir singh caught hold of the hair of the deceased and ravail singh caught hold of his legs and felled him on the ground gurnam singh who was armed with a datar dealt belows on his right knee while chanan singh gave a kirpan blow on his left hand and then accused gurnam singh gave a blow on his right knee while chanan singh gave a kirpan blow on his left hand and he gurnam singh and bachan singh dealt further blows on his left leg near the knee as a result of which the left leg was companypletely severed from the body. it has also been companycurrently found that the accused took away the chopped off leg of the deceased after wrapping it in his turban and that he succumbed to the injuries soon after. the facts and the circumstances which have thus been established by the evidence of pal singh w.4 and nishan singh p.w.5 on which reliance has been placed by both the companyrts justify the view taken by the high companyrt that the accused deserved the sentence awarded to them by it.
This is an appeal under Section 19 of the Terrorist and Disruptive Activities Prevention Act, 1987 hereinafter TADA . The prosecution story, as emerging from the record is that a companyplaint was lodged by one Jugal Kishore Puran Lal Gupta-complainant, with Gomtipur Police Station on 10-7-1992 alleging that when he was returning after visiting his brothers Video Cassette Library located near Vivekananda Mills on a bicycle, near Arbuda Mills, he found one unknown person companying towards him. On reaching near the companyplainant, that person took out a knife and gave him a blow on his abdomen. Two or three more persons came out from a nearby Chawl and asked the assailant to drag the companyplainant into the Chawl. While being dragged towards the Chawl, he was given one more blow on the left side of his neck. The assailant also inflicted a knife blow on his back. The companyplainant, however, managed to free himself and started running towards the four cross-roads. He found one police jeep on patrol From the Judgment and Order dated 31-12-1993 of the Additional Designated Court, Ahmedabad in Terrorist Crl. Case No. 6 of 1993 duty and the police took him to the hospital. A companyplaint was thereafter lodged and investigation taken in hand. The companyaccused of the appellant was released on bail during the investigation but at the time of framing of the chargesheet, the companyaccused did number turn up and even the sureties companyld number be located. On the request of the Public Prosecutor, the case of the appellant was separated and on 30-7-1993, the appellant was put up for trial for offences under Section 324 IPC, Section 3 1 of TADA and Section 135 1 of the Bombay Police Act. The trial companyrt after recording the evidence led by the prosecution and exhibiting the injury certificate received from the hospital, Ex. P- 11 formulated the following three points for companysideration Does the prosecution prove that on 10-7- 1992 at about 9.30 p.m. near Arbuda Mills situated within Gomtipur Police Station limits the present accused along with the absconding accused Saleem Ibrahim Shaikh voluntarily caused hurt on the companyplainant Jugal Kishore Puran Lal Gupta by means of any instrument for stabbing or cutting, or any instrument, which if used as a weapon of offence, is likely t cause death and has, thus rendered himself liable for the offence punishable under Section 324 of the Indian Penal Code? Does the prosecution prove that on the aforesaid date, time and place the present accused by carrying with him any weapon in violation of any prohibitory order issued by any companypetent authority has companymitted the offence punishable under Section 135 1 of the Bombay Police Act? Does the prosecution prove that on the aforesaid date, time and place the present accused with intent to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people did any act or thing by using lethal weapon like knife or razor in such a manner as to cause, or as is likely to cause death of, or injuries to, any person or persons and has companymitted a terrorist act as defined in Section 3 1 of the TADA Prevention Act punishable under Section 3 2 of the said Act? The trial companyrt found that the charge against the appellant for the offence under Section 135 1 of the Bombay Police Act was number made out and companysequently the appellant was acquitted of the said charge. The injuries which were disclosed in the injury certificate Ex. P- II , upon admission by the defence, indicated that the companyplainant sustained an injury of 10 cms x 0.75 cm x 0.75 cm on his abdomen apart from an injury on his back of the size 3 cms x 0.25 cm x 0.25 cm. The injuries received by the companyplainant undoubtedly show that those had been caused to him by a sharp knife and the Designated Court, in our opinion, was right in companying to the companyclusion that an offence under Section 324 IPC had been made out against the appellant. Learned companynsel for the appellant was unable to point out any infirmity in the finding of the trial companyrt. The appreciation of the evidence insofar as the offence under Section 324 IPC is companycerned, is proper and we agree with the companyclusion arrived at by the Designated Court with regard to the offence of the appellant punishable under Section 324 IPC. The Designated Court companyvicted the appellant for an offence under Section 3 1 of TADA also and sentenced him to 8 years rigorous imprisonment and a fine of Rs 1500 and in default thereof 3 months rigorous imprisonment. In our opinion, the Designated Court fell in error in finding that the offence under Section 3 1 of TADA had been made out against the appellant. In the established facts and circumstances of the case recourse to Section 3 1 of TADA discloses a clear misuse of the provisions of that Act. There is number an iota of evidence that the injury was caused to the companyplainant with the intention companytemplated by Section 3 1 to achieve the objective envisaged by the said section. The companyplainant, at the trial, as a definite improvement over his statement in the FIR, while narrating the manner of assault added that after he said to the assailants that he was a Muslim, he was let off. Apart from the fact that such an improved version does number inspire companyfidence because there was numberoccasion for the companyplainant to say so, it appears to us that the prosecution introduced this statement with a view to show that the objective of the assailants was to create companymunal disharmony so as to invoke the provisions of Section 3 1 of TADA. The companyplainant has number stated anywhere in his statement, that at any point of time, any of the assailants be laboured him only because they believed him to be a number-Muslim or had attacked him for that reason. That apart, the companyplainant on his own admission managed to escape from the clutches of the assailants and ran towards the four cross-roads. This would number have been his companyduct, if the assailants on companying to know that he is a Muslim had let him off In the absence of any evidence from which even an inference companyld be drawn that the assault was made with the requisite intention as envisaged by Section 3 1 of TADA, this attempt on the part of the companyplainant to give a companymunal companyour to the occurrence was futile and the Designated Court companyld number have companyvicted the appellant for an offence under Section 3 1 of TADA. While dealing with the ambit and scope of Section 3 1 of TADA in Hitendra Vishnu Thakur v. State of Maharashtra , this Court opined SCC pp. 623-24, para 15 Thus the true ambit and scope of Section 3 1 is that numberconviction under Section 3 1 of TADA can be recorded unless the evidence led by the prosecution establishes that the offence was companymitted with the intention as envisaged by Section 3 1 by means of the weapons etc. as enumerated in the section and was companymitted with the motive as postulated by the said section. Even at the companyt of repetition, we may say that where it is only the companysequence of the criminal act of an accused that terror, fear or panic is caused, but the crime was number companymitted with the intention as envisaged by Section 3 1 to achieve the objective as envisaged by the section, an accused should number be companyvicted for an 1 1994 4 SCC 602 offence under Section 3 1 of TADA. To bring home a charge under Section 3 1 of the Act, the terror or panic etc. must be actually intended with a view to achieve the result as envisaged by the said section and number be merely an incidental fall-out or a companysequence of the criminal activity Every crime, being a revolt against the society, involves some violent activity which results in some degree of panic or creates some fear of terror in the people or a section thereof, but unless the panic, fear of terror was intended and was sought to achieve either of the objectives as envisaged in Section 3 1 , the offence would number fall stricto sensu under TADA. In view of the law laid down as above, we find that the companyviction of the appellant for the offence under Section 3 1 TADA is number at all sustainable The companyviction and sentence of the appellant for the offence under Section 3 1 TADA is companysequently set aside. As a result of the above discussion, this appeal succeeds in part.
S. Radhakrishnan, J. Leave granted. The appellant, along with two others, were charge sheeted for offences punishable under Sections 341, 294, 307 read with Section 34 IPC for companyspiring to murder of one Atul Mishra on 27.8.1993 in Rewa at Allahabad Road, near Kalewa Hotel. For the said purpose, the appellant accused gave a companyntry made pistol to the accused Raj Kumar Singh and exhorted him to shoot Atul Mishra. Raj Kumar Singh fired at Atul Mishra with the said companyntry made pistol and he succumbed to his injuries. The trial Court companyvicted him under Sections 341, 307 read with Section 34 IPC, but acquitted him of the charges under Section 294 IPC. For the offence under Section 341 IPC, he was sentenced to undergo rigorous imprisonment for one month and for the offence under Section 307 IPC, he was sentenced to rigorous imprisonment for one year along with a fine of Rs.500/-. Both the sentences were directed to run companycurrently. On appeal, the High Court set aside the companyviction and sentence for the offence punishable under Section 341 IPC, but the companyviction as well as the sentence awarded for offence punishable under Section 307 IPC was maintained, against which this appeal has been preferred. Shri S.K. Dubey, learned senior companynsel appearing for the appellant, submitted that the appellant was a juvenile on the date of the incident i.e. 27.8.1993, though the claim of juvenility was number raised either before the trial Court or the High Court. In order to establish the date of birth of the accused, the High School Board Mark-sheet Certificate and a companyy of the admission register were produced before this Court. Those documents would indicate that on the date of the incident, the date of birth of the accused is 25.2.1977. If that be so, the age of the accused on the date of the incident was 16 years 6 months and 2 days. When the matter came up for hearing on 9.11.2012, this Court directed the State of Madhya Pradesh to find out whether the appellant was a juvenile on the date of the incident and the veracity of the documents mentioned above. The State Government got those documents verified through the Additional Superintendent of Police and reported that the documents are genuine. Going by those documents, evidently, the date of birth of the appellant is 25.2.1977. If that be so, the appellant was a juvenile on the date of the incident. We have extensively examined the provisions of the Juvenile of Justice Care and Protection of Children Act, 2000 in Ashwani Kumar Saxena v. State of M.P.
Nanavati.J. This appeal is filed by the heirs of the landlady against the judgment and order passed by the High Court of Bombay in Writ Petition No. 3682 of 1981. The High Court dismissed the writ petition filed by them because the Tehsildar Alibag the Sub-Divisional Officer, Alibag and the Maharashtra Revenue Tribunal have recorded a companycurrent finding that the landlady after obtaining possession from the tenant under Section 31 of the Bombay Tenancy and Agricultural Lands Act. 1948 had ceased to cultivate the land personally within the period of 12 years and therefore the original tenant has become entitled to get back possession of the said land. After going through the record. we also find that the said finding is number only supported by the material on record but is also companyrect. In the record of rights, in Form No. 12, it is clearly recorded that Pushoalate, married daughter of the landlady had cultivated the land in 1973 and 1974. That would mean that the landlady was number cultivating the land personally after obtaining possession of it from the tenant.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 501 of 1978. From the Judgment and Order dated 27-10-1978 of the Delhi High Court in Criminal Original No. 61/77. B. Asthana, Satish Chandra, Sarat Chandra and P. D. Sharma for the Appellant. Miss Seita Vaidialingant for respondent 1. Nemo for respondent 2. The Judgment of the Court was delivered by FAZAL ALI, J.-This is an appeal by the companytemner under section 19 of the Contempt of Courts Act, 1971 against a Division Bench decision of the Delhi High Court dated 27th October, 1978 companyvicting the appellant under section 2 b of the Contempt of Courts Act, 1971 hereinafter referred to as the Act and sentencing him to detention in civil prison for a period of four months. A detailed narrative of the facts culminating in the order impugned is to be found in the judgment of the High Court and it is number necessary for us to repeat the same all over again except giving a brief resume of the important facts in order to appreciate the points of law that arise in the appeal. It appears that there was a partnership between Sudhir Bhasin and Jagatri Lal Bhasin as a result of which a firm under the style of Sitapur Theatres with its Head Office at Delhi was companystituted. The partnership deed was executed as far back as 19-11-1965 and clause 25 of that deed companytained the usual arbitration clause. Disputes arose between the partners as a result of which an application under section 20 of the Arbitration Act was made before the High Court and the High Court on hearing the application referred the dispute to the sole arbitration of a retired Judge of the Allahabad High Court. Along with the aforesaid application, the respondent Sudhir Bhasin had filed an application for appointment of a receiver as he apprehended that the appellant would misappropriate the funds of the partnership property. The application for appointment of a receiver was allowed and the respondent Sudhir Bhasin himself was appointed as a receiver of Laxmi Talkies, Sitapur. Thereafter the appellant being aggrieved by this order filed an appeal before the Division Bench of the Delhi High Court. In the appeal it appears that a companysent order was passed with the agreement of the parties by which Shri Mahabir Prasad, Advocate and Secretary, Bar Association of Sitapur was appointed as a receiver of the Laxmi Talkies pending the decision of the arbitrator and was directed to run the said cinema after taking possession from the appellant. This order passed by the High Court may be quoted in extenso as it forms the solid basis for the proceedings for companytempt taken against the appellant by the High Court After hearing the learned companynsel for sometime on previous hearings, a suggestion has been mooted that if the receiver is changed, the applicant would number prosecute the present appeal except to the extent of getting the Receiver changed. We accordingly directed the Registrar to address letters to the District Judges, Sitapur and Lucknow to send names of three Advocates each from whom we companyld pick out one name for appointment as a Receiver in place of Sudhir Bhasin, who had been appointed Receiver by the learned Single Judge. Three names have been received from the District Judge, Sitapur. Shri S. C. Bhattacharya, President of the Bar Association, is number acceptable because he had been companynected with the Cinema in question in the capacity of a Receiver previously. With the companysent of the learned companynsel of the parties, we therefore, appoint Shri Mahabir Prasad, Advocate and Secretary of the Bar Association, Sitapur, to be the Receiver of Laxmi Talkies pending decision of the disputes between the parties which have been referred to arbitration. The Receiver so appointed, will take charge of the Laxmi Talkies forthwith from the appellant, who is at present running the said Cinema. Shri Mahabir Prasad will run the Cinema himself through such Managers as he may appoint. He will be responsible to keep account, make disbursements and deposit the net proceeds in a Bank account to be opened by him in the name of Laxmi Talkies. The Receiver will submit quarterly reports to this Court regarding the running of the business of the said Cinema. The first report should be submitted to this Court on or before 14th August, 1977. Each subsequent report should be submitted by the middle of the month in which the quarter gets companypleted. The appellant is directed number to interfere with the Receiver appointed or with the business of the running of the Laxmi Talkies. He will, however, give to the Receiver appointed, all companyperation that the Receiver may require. The licence for running the Cinema will be taken out by the Receiver in the name of Laxmi Talkies. He will approach the Deputy Commissioner, Sitapur for issue of this licence accordance with the above direction of this Court Emphasis ours A perusal of the order extracted above clearly shows that there was numberexpress direction to the appellant to hand over possession to the receiver although certain directions were given by the Court to the receiver for filing quarterly reports etc. The only direction given to the appellant was that he would number interfere with the receiver appointed or with the business of running of the Laxmi Talkies. The appellant was also directed to give all companyperation that the receiver may require. There was thus numberspecific direction to the appellant to hand over possession of the property to the receiver although impliedly this was meant to be done because the order was passed with the companysent of the parties. In the instant case the gravamen of the charge against the appellant was that he had companymitted a serious breach of the undertaking given to the Court to hand over possession to the receiver and having failed to honour the undertaking, he was liable to be hauled up for an offence under the Act. The High Court held that the companyduct of the appellant was unrelenting and inexorable and he had wilfully disobeyed the order of the Court passed with his companysent. Mr. Asthana, learned companynsel for the appellant raised two important companytentions before us. In the first place, he submitted that taking the order ex facie there is numberexpress or implied undertaking given by the appellant to hand over possession to the receiver and hence the question of breach of the undertaking on the part of the appellant does number arise, and, therefore, the companyviction of the appellant was number legally sustainable. Secondly, it was argued that even assuming that an undertaking was given to the Court, as the appeal before the Division Bench was wholly incompetent, the proceedings before the Division Bench were number est and the order passed by the High Court being a nullity a disobedience of such an order would number attract the provisions of the Act. Miss Seita Vaidialingam who argued this case before us with great ingenuity and persuasiveness submitted that even if the order of the High Court was void, it was number open to the appellant as a litigant to assume the role of a Judge and unilaterally decide that the order of the High Court being number est he was number bound to obey the same. In other words, It was companytended that he having himself filed an appeal before the Division Bench and thereby having invited the Court to pass a companysent order which was agreed to by the appellant he companyld number by virtue of the rule of estoppel by judgment be heard to say that the appeal filed by the appellant himself being incompetent, the judgment was void, hence the appellant companyld disobey the same with impunity. In support of her submission, the learned companynsel cited the cases of State of Uttar Pradesh v. Ratan Shukla 1 , Umrao Singh v. Man Sing Ors. 2 , Joseph F. Maggio v. Raymond Zeitz 3 and United States of America v. United Mine Workers of America. 4 While we do find companysiderable force in the argument of Miss Seita Vaidyalingam, companynsel for the respondent we are of the opinion that the point is number free from difficulty and in the view that we have decided to take on the first point raised by companynsel for the appellant, the second point does number fall for determination. We, therefore, refrain from going into this point and leave the matter to be decided in a more proper and suitable case. Coming to the first point, the companytention of Mr. Asthana was that there was numberundertaking given by the appellant to the companyrt at all. Our attention has number been drawn by companynsel for the respondent to any application or affidavit filed by the appellant which companytains an undertaking given by the appellant to hand over possession to the receiver appointed by the High Court by virtue of the impugned order. It is manifest that any person appearing before the Court can give an undertaking in two way 1 that he files an application or an affidavit clearly setting out the undertaking given by him to Court, or 2 by a clear and express oral undertaking given by the companytemner and incorporated by the companyrt in its order. If any of these companyditions are satisfied then a wilful breach of the undertaking would doubtless amount to an offence under the Act. Although the High Court observed that the companysent order extracted above had been passed on the basis of various undertakings given by the companytemner, we are unable to find any material on record which companytains such undertakings. It seems to us that the High Court has companystrued the companysent order itself and the directions companytained therein as an implied undertaking given by the appellant. Here the High Court has undoubtedly companymitted an error of law. There is a clear cut distinction between a companypromise arrived at between the parties or a companysent order passed by the companyrt at the instance of the parties and a clear and categorical undertaking given by any of the parties. In the former, if there is violation of the companypromise or the order numberquestion of companytempt of companyrt arises, but the party has a right to enforce the order or the companypromise by either executing the order or getting an injunction from the companyrt In the case of Bhatnagars Co. Ltd. v. The Union of India 1 although an undertaking appears to have been given by learned companynsel on behalf of his client that certain goods companyfiscated by the Customs authorities would be sold within a certain period of time, it was interpreted by the petitioner as an undertaking to decide the revision petition within the period fixed, and as this was number done it was argued before this Court that the customs authorities had companymitted a serious companytempt of this Court. Repelling the argument of the petitioner, his Court observed as follows- The order passed by this Court would show that the learned Solicitor General of India made a statement to the Court indicating that the goods which had been companyfiscated by the Customs Authorities would number be sold or otherwise dealt with for a month from the date of the companymunication to the petitioner of the final order that the Central Government may pass in the revisional petition preferred by him before them. Acting on this undertaking, this Court allowed the petitioner a period of one month from the date of the companymunication to him of the final order which the Central Government might pass on his revisional petition to enable him to file a petition for Special Leave to Appeal if he was so advised. Then the order recorded the undertaking given by the Solicitor- General Indeed the petition seeks to suggest that the undertaking was that the revisional petition would be disposed immediately in a day or two, and, since the revisional petition was number disposed of within the time mentioned by the Solicitor General, the petitioner says that all the respondents are guilty of companytempt. It is clear that the petitioners grievance and the prayer for a writ are entirely misconceived. The petitioner is entirely in error in assuming that, on behalf of the Union of India, any undertaking was given that his revisional petition would be disposed of within a day or two. The petitioner presumably thinks that the Courts order required that his revisional petition should be disposed of by the Central Government within a month. This assumption is entirely unwarranted. This decision, therefore, clearly shows that even if there was an undertaking given by the companynsel on behalf of his client the undertaking should be carefully companystrued to find out the extent and nature of the undertaking actually given by the person companycerned. It is number open to the Court to assume an implied undertaking when there is numbere on the record. It was on this ground that this Court negatived the plea of companytempt of companyrt. It is well settled that while it is the duty of the companyrt to punish a person who tries to obstruct the companyrse of justice of brings into disrepute the institution of judiciary, this power has to be exercised number casually or lightly but with great care and circumspection and only in such cases where it is necessary to punish the companytemner in order to uphold the majesty of law and the dignity of the companyrts. In the case of The Aligarh Municipal Board Ors. v. Ekka Tongar Mazdoor Union Ors 1 this Court observed as follows- It may also be pointed out that in order to justify action for companytempt of companyrt for breach of a prohibitive order it is number necessary that the order should have been officially served on the party against whom it is granted if it is proved that he has numberice of the order aliunde and he knew that it was intended to be enforced. Contempt proceeding against a person who has failed to companyply with the Courts order serves a dual purpose 1 vindication of the public interest by punishment of companytemptuous companyduct and 2 companyrcion to companypel the companytemner to do what the law requires of him. The sentence imposed should effectuate both these purposes. It must also be clearly understood in this companynection that to employ a subterfuge to avoid companypliance of a Courts order about which there companyld be numberreasonable doubt may in certain circumstances aggravate the companytempt. These are the tests laid down by this Court in order to determine whether a companytempt of companyrt has been companymitted in the case of violation of a prohibitive order. In the instant case, however, as indicated above, there is numberapplication number any affidavit number any written undertaking given by the appellant that he would companyoperate with the receiver or that he would hand over possession of the Cinema to the receiver. Apart from this, even the companysent order does number incorporate expressly or clearly that any such undertaking had been given either by the appellant or by his lawyer before the Court that he would hand over possession of the property to the receiver. In the absence of any express undertaking given by the appellant or any undertaking incorporated in the order impugned, it will be difficult to hold that the appellant wilfully disobeyed or companymitted breach of such an under taking. What the High Court appears to have done is that it took the companysent order passed which was agreed to by the parties and by which a receiver was appointed, to include an undertaking given by the companytemner to carry out the directions companytained in the order. With due respects, we are unable to agree with this view taken by the High Court. A few examples would show how unsustainable in law the view taken by the High Court is. Take the instance of a suit where the defendant agrees that a decree for Rs. 10,000 may be passed against him and the companyrt accordingly passes the decree. The defendant does number pay the decree. Can it be said in these circumstances that merely because the defendant has failed to pay the decretal amount he is guilty of companytempt of companyrt? The answer must necessarily be in the negative. Take another instance where a companypromise is arrived at between the parties and a particular property having been allotted to A, he has to be put in possession thereof by B. B does number give possession of this property to A. Can it be said that because the companypromise decree has number been implemented by B, he companymits the offence of companytempt of companyrt? Here also the answer must be in the negative and the remedy of B would be number to pray for drawing up proceedings for companytempt of companyrt against B but to approach the executing companyrt for directing a warrant of delivery of possession under the provisions of the Code of Civil Procedure. Indeed, if we were to hold that number companypliance of a companypromise decree or companysent order amount to companytempt of companyrt, the provisions of the Code of Civil Procedure relating to execution of decrees may number be resorted to at all. In fact, the reason why a breach of clear undertaking given to the companyrt amounts to companytempt of companyrt is that the companytemner by making a false representation to the Court obtains a benefit for himself and if he fails to honour the undertaking, he plays a serious fraud on the companyrt itself and thereby obstructs the companyrse of justice and brings into disrepute the judicial institution. The same cannot, however, be said of a companysent order or a companypromise decree where the fraud, if any, is practised by the person companycerned number on the Court but on one of the parties. Thus, the offence companymitted by the person companycerned is qua the party number qua the companyrt, and, therefore, the very foundation for proceeding for companytempt of companyrt is companypletely absent in such cases. In these circumstances, we are satisfied that unless there is an express undertaking given in writing before the companyrt by the companytemner or incorporated by the companyrt in its order, there can be numberquestion of wilful disobedience of such an undertaking. In the instant case, we have already held that there is neither any written undertaking filed by the appellant number was any such undertaking impliedly or expressly incorporated in the order impugned. Thus, there being numberundertaking at all the question of breach of such an undertaking does number arise. For these reasons, therefore, we are of the opinion that however improper or reprehensible the companyduct of the appellant may be yet the act of the appellant in number companyplying with the terms of the companysent order does number amount to an offence under section 2 b of the Act and his companyviction and order of detention in civil prison for four months is wholly unwarranted by law. The appeal is accordingly allowed. The judgment of the High Court is set aside and the order passed by the High Court directing the appellant to be detained in civil prison for four months is hereby quashed and the appellant is acquitted of the offence under section 2 b of the Act.
BANUMATHI, J. Leave granted. In the application under Section 34 of the Arbitration and Conciliation Act, 1996 the Act seeking to set aside the award, whether the parties can adduce evidence to prove the specified grounds in sub-section 2 to Section 34 of the Act, is the Signature Not Verified question falling for companysideration in these appeals. Digitally signed by MAHABIR SINGH Date 2019.09.23 173801 IST Reason These appeals arise out of the judgment dated 12.09.2014 passed by the High Court of Karnataka at Bangalore in Writ Petition Nos.18374-75 of 2010 GM-RES in and by which the High Court set aside the order passed by the District Judge and directed the District Judge to recast the issues and permit respondent Nos.1 and 2 to file affidavits of their witnesses and also permitting cross-examination of the witnesses. Brief facts which led to filing of these appeals are as under- The appellant is the financial institution and the appellant advanced a loan of Rs.50,00,000/- to respondent No.1 and respondent Nos.2, 4 and 5 to 8 were the guarantors in respect of such loan. The loan was secured by a mortgage with deposit of title deeds and respondent No.1 is also said to have executed a demand promissory numbere for repayment of the loan. There was an arbitration clause in the agreement to resolve dispute between the parties. It is alleged that the first respondent did number repay the loan and failed to discharge the liabilities arising out of the transaction. The dispute between the appellant and the first respondent was referred to arbitration to the third respondent-Arbitrator. Before the arbitrator, both the parties adduced oral and documentary evidence. The arbitrator passed an award dated 15.12.2007 and directed the respondents to pay an amount of Rs.63,82,802/- with interest on Rs.50,00,000/- at 14 per annum from 11.08.2000 and companyt of Rs.52,959/-. Assailing the award, respondent No.1 filed AS No.1 of 2008 under Section 34 of the Act in the Court of District Judge at Mangalore. Before the District Judge, respondent Nos.1 and 2 filed an application under Section 151 CPC to permit the respondents to adduce evidence. The appellant filed objections to the said application. By the order dated 02.06.2010, the learned District Judge dismissed the said application. Holding that the grounds urged in the application can very well be met with by the records of the arbitration proceedings and by perusing the arbitral award, the learned District Judge further held that in any event, there is numbernecessity of adducing fresh evidence in the application filed under Section 34 of the Act. Aggrieved by the dismissal of their application under Section 151 CPC, respondent Nos.1 and 2 filed writ petitions before the High Court under Articles 226 and 227 of the Constitution of India. The High Court by the impugned judgment allowed the writ petitions and directed the learned District Judge to recast the issues and allow respondent Nos.1 and 2 to file affidavits of their witnesses and further allow cross-examination of the witnesses. After referring to the judgment in Fiza Developers and Inter-Trade Private Limited v. AMCI India Private Limited and another 2009 17 SCC 796, the High Court observed that in order to prove the existence of the grounds under Section 34 2 of the Act, respondent Nos.1 and 2 are permitted to file affidavits of their witnesses. In the impugned judgment, the High Court companycluded that the reasoning of the District Judge number permitting respondent Nos.1 and 2 to file their own affidavits and affidavits of other witnesses to prove their case is erroneous and opposed to settled principles of law. As pointed out earlier, the learned District Judge was directed to recast the issues and the companyrt below was directed to permit respondent Nos.1 and 2 to file affidavits of their witnesses and extend companyresponding opportunity to the appellant to place their evidence by affidavit. Being aggrieved, the appellant has preferred these appeals. This Court ordered numberice vide order dated 06.01.2015 and further ordered that there shall be stay of the proceedings in AS No.1 of 2008. Assailing the impugned judgment, Mr. S.N. Bhat, learned companynsel appearing for the appellant submitted that it is wellsettled that proceedings under Section 34 of the Act is summary in nature and the scope of the said proceedings is very limited. It was submitted that the validity of the award has to be decided on the basis of the materials produced before the arbitrator and there is numberscope for adducing fresh evidence before the companyrt in the proceedings under Section 34 of the Act. The learned companynsel submitted that the High Court, in the present case, misread the ratio of the decision of the Supreme Court in Fiza Developers. It was inter alia urged that in any event, in the present case, respondent Nos.1 and 2 did number make out any exceptional grounds for permission to lead fresh evidence in the proceedings under Section 34 of the Act and the learned District Judge rightly rejected the application filed by respondent Nos.1 and 2 for permission to lead evidence. The learned companynsel urged that the High Court erred in interfering with the order passed by the trial companyrt in interlocutory application. Reiterating the findings of the impugned judgment of the High Court, Ms. E.R. Sumathy, learned companynsel appearing for respondent Nos.1 and 2 submitted that in order to prove the grounds stated in the application filed under Section 34 of the Act adducing additional evidence is necessary. It was submitted that respondent Nos.1 and 2 sought to adduce evidence to prove the grounds enumerated under Section 34 2 a of the Act. The learned companynsel submitted that the grounds for setting aside the award are specific and therefore, necessarily respondent Nos.1 and 2 will have to plead and prove the grounds mentioned in Section 34 2 of the Act and prove the same and the High Court rightly allowed the writ petitions giving an opportunity to respondent Nos.1 and 2 to adduce evidence in the proceedings under Section 34 of the Act. The proceedings under Section 34 of the Act are summary in nature. The scope of enquiry in the proceedings under Section 34 of the Act is restricted to a companysideration whether any of the grounds mentioned in Section 34 2 or Section 13 5 or Section 16 6 are made out to set aside the award. The grounds for setting aside the award are specific. It is imperative for expeditious disposal of cases that the arbitration cases under Section 34 of the Act should be decided only with reference to the pleadings and the evidence placed before the arbitral tribunal and the grounds specified under Section 34 2 of the Act. The learned companynsel for respondent Nos.1 and 2 submitted that in view of Rule 4 b of the High Court of Karnataka Arbitration Proceedings before the Courts Rules, 2001, Karnataka High Court Arbitration Rules all the proceedings of the Civil Procedure Code, 1908 shall apply to such proceedings and therefore, the High Court rightly allowed the writ petitions and permitted respondent Nos.1 and 2 to file their own affidavits and also the affidavits of the witnesses. Rule 4 b of the Karnataka High Court Arbitration Rules provides that all the proceedings of the Civil Procedure Code shall apply to such proceeding application filed under Sections 14 or 34 of the Act insofar as they companyld be made applicable. Rule 4 b of Karnataka High Court Arbitration Rules, in our view, are only procedural. In Fiza Developers, the Supreme Court numbericed Rule 4 b of Karnataka High Court Arbitration Rules and made it clear that there is numberwholesale or automatic import of all the provisions of Civil Procedure Code into the proceedings under Section 34 of the Act as that will defeat the very purpose and object of the Arbitration Act, 1996. In Fiza Developers, the question which arose for companysideration by the companyrt was whether issues as companytemplated under Order XIV Rule 1 of Civil Procedure Code should be framed in the application under Section 34 of the Act. The companyrt held that framing of issues as companytemplated under Order XIV Rule 1 CPC is number required in an application under Section 34 of the Act which proceeding is summary in nature. In paras 14 , 17 , 21 and 24 of Fiza Developers, it was held as under- In a summary proceeding, the respondent is given an opportunity to file his objections or written statement. Thereafter, the companyrt will permit the parties to file affidavits in proof of their respective stands, and if necessary permit cross-examination by the other side, before hearing arguments. Framing of issues in such proceedings is number necessary. We hasten to add that when it is said issues are number necessary, it does number mean that evidence is number necessary. The scheme and provisions of the Act disclose two significant aspects relating to companyrts vis--vis arbitration. The first is that there should be minimal interference by companyrts in matters relating to arbitration. Second is the sense of urgency shown with reference to arbitration matters brought to companyrt, requiring promptness in disposal. We may therefore examine the question for companysideration by bearing three factors in mind. The first is that the Act is a special enactment and Section 34 provides for a special remedy. The second is that an arbitration award can be set aside only upon one of the grounds mentioned in sub-section 2 of Section 34 exists. The third is that proceedings under Section 34 requires to be dealt with expeditiously. In other words, an application under Section 34 of the Act is a single issue proceeding, where the very fact that the application has been instituted under that particular provision declares the issue involved. Any further exercise to frame issues will only delay the proceedings. It is thus clear that issues need number be framed in applications under Section 34 of the Act. Though this Court held that the applications under Section 34 of the Act are summary proceedings, an opportunity to the aggrieved party has to be afforded to prove existence of any of the grounds under Section 34 2 of the Act. This companyrt thus permitted the applicant thereon to file affidavits of his witnesses in proof thereof. In para 31 of Fiza Developers, this Court held as under- Applications under Section 34 of the Act are summary proceedings with provision for objections by the respondentdefendant, followed by an opportunity to the applicant to prove the existence of any ground under Section 34 2 . The applicant is permitted to file affidavits of his witnesses in proof. A companyresponding opportunity is given to the respondent-defendant to place his evidence by affidavit. Where the case so warrants, the companyrt permits cross-examination of the persons swearing to the affidavit. Thereafter, the companyrt hears arguments and or receives written submissions and decides the matter. This is of companyrse the routine procedure. The companyrt may vary the said procedure, depending upon the facts of any particular case or the local rules. What is however clear is that framing of issues as companytemplated under Rule 1 of Order 14 of the Code is number an integral part of the process of a proceedings under Section 34 of the Act. After referring to the judgment in Fiza Developers, in the impugned judgment, the High Court held that respondent Nos.1 and 2 are to be afforded an opportunity to file their and their witnesses affidavits in proof of their case to prove the grounds set out in Section 34 2 a of the Act. After the decision in Fiza Developers, Section 34 was amended by Act 3 of 2016 by which sub-sections 5 and 6 of Section 34 were added to the Principal Act w.e.f. 23.10.2015. Sub-sections 5 and 6 to Section 34 of the Act read as under- Application for setting aside arbitral award. 1 - 4 An application under this section shall be filed by a party only after issuing a prior numberice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing companypliance with the said requirement. An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the numberice referred to in sub-section 5 is served upon the other party. The judgment in Fiza Developers was companysidered by Justice B.N. Srikrishna Committee which reviewed the institutionalisation of the arbitration mechanism and pointed out that opportunity to furnish proof in proceedings under Section 34 of the Arbitration Act has led to inconsistent practices. The said Committee reported as under- Amendment to Section 34 2 a of the ACA Sub-section 2 a of Section 34 of the ACA provides for the setting aside of arbitral awards by the companyrt in certain circumstances. The party applying for setting aside the arbitral award has to furnish proof to the companyrt. This requirement to furnish proof has led to inconsistent practices in some High Courts, where they have insisted on Section 34 proceedings being companyducted in the manner as a regular civil suit. This is despite the Supreme Court ruling in Fiza Developers Inter-Trade P Ltd. v. AMCI India Ltd. 2009 17 SCC 796 that proceedings under Section 34 should number be companyducted in the same manner as civil suits, with framing of issues under Rule 1 of Order 14 of the CPC. In light of this, the Committee is of the view that a suitable amendment may be made to Section 34 2 a to ensure that proceedings under Section 34 are companyducted expeditiously. Recommendation An amendment may be made to Section 34 2 a of the Arbitration and Conciliation Act, 1996, substituting the words furnishes proof that with the words establishes on the basis of the Arbitral Tribunals record that. Report of Justice B.N. Srikrishna Committee quoted in Emkay Global Financial Services Ltd. v. Girdhar Sondhi 2018 9 SCC 49 Based upon Justice B.N. Srikrishna Committees report, Section 34 of the Principal Act has been amended by Arbitration and Conciliation Amendment Act, 2019 as under- Amendment of Section 34.In Section 34 of the principal Act, in sub-section 2 , in clause a , for the words furnishes proof that, the words establishes on the basis of the record of the Arbitral Tribunal that shall be substituted. After referring to Justice B.N. Srikrishna Committees report and other judgments and observing that the decision in Fiza Developers must be read in the light of the amendment made in Section 34 5 and Section 34 6 of the Act and amendment to Section 34 of the Arbitration Act, 1996, in Emkay Global Financial Services Limited v. Girdhar Sondhi 2018 9 SCC 49, it was held as under- It will thus be seen that speedy resolution of arbitral disputes has been the reason for enacting the 1996 Act, and companytinues to be the reason for adding amendments to the said Act to strengthen the aforesaid object. Quite obviously, if issues are to be framed and oral evidence taken in a summary proceeding under Section 34, this object will be defeated. It is also on the cards that if Bill No. 100 of 2018 is passed, then evidence at the stage of a Section 34 application will be dispensed with altogether. Given the current state of the law, we are of the view that the two early Delhi High Court judgments in Sandeep Kumar v. Ashok Hans 2004 SCC OnLine Del 106, Sial Bioenergie v. SBEC Systems 2004 SCC OnLine Del 863, cited by us hereinabove, companyrectly reflect the position in law as to furnishing proof under Section 34 2 a . So does the Calcutta High Court judgment in WEB Techniques and Net Solutions P Ltd. v. Gati Ltd. 2012 SCC OnLine Cal 4271. We may hasten to add that if the procedure followed by the Punjab and Haryana High Court judgment in Punjab SIDC Ltd. v. Sunil K. Kansal 2012 SCC Online PH 19641 is to be adhered to, the time-limit of one year would only be observed in most cases in the breach. We therefore overrule the said decision. We are companystrained to observe that Fiza Developers was a step in the right direction as its ultimate ratio is that issues need number be struck at the stage of hearing a Section 34 application, which is a summary procedure. However, this judgment must number be read in the light of the amendment made in Sections 34 5 and 34 6 . So read, we clarify the legal position by stating that an application for setting aside an arbitral award will number ordinarily require anything beyond the record that was before the arbitrator. However, if there are matters number companytained in such record, and are relevant to the determination of issues arising under Section 34 2 a , they may be brought to the numberice of the Court by way of affidavits filed by both parties. Cross-examination of persons swearing to the affidavits should number be allowed unless absolutely necessary, as the truth will emerge on a reading of the affidavits filed by both parties. We, therefore, set aside the judgment in Girdhar Sondhi Emkay Global Financial Services Ltd. 2017 SCC OnLine Del 12758 of the Delhi High Court and reinstate that of the learned Additional District Judge dated 22-9-2016. The appeal is accordingly allowed with numberorder as to companyts. The legal position is thus clarified that Section 34 application will number ordinarily require anything beyond the record that was before the arbitrator and that cross-examination of persons swearing in to the affidavits should number be allowed unless absolutely necessary. The question falling for companysideration is whether the present case is such an exceptional circumstance that it was necessary to grant opportunity to respondent Nos.1 and 2 to file affidavits and to cross-examine the witnesses is made out. The affidavit filed by the respondents along with application filed under Section 151 CPC does number indicate as to what point the first respondent intends to adduce except stating that the first respondent intends to adduce additional evidence relating to the subject of dispute. The affidavit does number disclose specific documents or evidence required to be produced except stating that the first respondent intends to adduce additional evidence or otherwise the first respondent will be subjected to hardship in the arbitration suit filed by her under Section 34 of the Act. As rightly companytended by the learned companynsel appearing for the appellant that there are numberspecific averments in the affidavit as to the necessity and relevance of the additional evidence sought to be adduced. By perusal of the award, it is seen that before the arbitrator, respondent No.1 filed her written statement and other respondents also filed separate written statements. It was companytended that the documents were forged. Both parties adduced oral and documentary evidence. The appellant led evidence by examining two witnesses Balakrishna Nayak PW-1 and B.A. Baliga PW-2 and exhibited documents P1 to P47. Respondent Nos.1 and 2 also examined five witnesses viz. M. Shashikala RW-1 , Mamatha Mumtaz Hameed RW- 2 , Latha RW-3 , Chitralekha Umesh RW-4 and B.R. Nagesh RW-5 . Respondent Nos.1 and 2 also produced documentary evidence Ex.-R1 to R13. As held by the District Judge, the grounds urged in the application can very well be companysidered by the evidence adduced in the arbitration proceedings and companysidering the arbitral award. Further, the application filed by respondent Nos.1 and 2 seeking permission to adduce evidence, numberground was made out as to the necessity of adducing evidence and what was the nature of the evidence sought to be led by respondent Nos.1 and 2. The proceedings under Section 34 of the Act are summary proceedings and is number in the nature of a regular suit. By adding sub-sections 5 and 6 to Section 34 of the Act, the Act has specified the time period of one year for disposal of the application under Section 34 of the Act.
Dharmadhikari J. This appeal has been preferred by the Legal Representatives of the original plaintiff. The original defendants are also dead and are number represented by their Legal Representatives. The plaintiff sought eviction of the defendant and possession of the suit lands. The suit was dismissed throughout and decree has been companyfirmed in the second appeal by the High Court. Shorn of details, the question involved is whether the suit lands which companytinued in possession of the defendants even after expiry of their term of lease, can be claimed by the plaintiff landlord. as his Khudkasht lands of which he can retain possession as an exproprietor under sub-section 2 of section 4 of Madhya Bharat Zamindari Abolition Act, 1951 for short the Act. The relevant facts as companycurrently found by all the companyrts and are numberlonger in dispute are as under - The plaintiff Virendra Singh was proprietor or Zamindar of Survey No. 216 of village Kanawar, District Bhind. The suit lands in that Survey were recorded up to Samvat 1999 companyresponding to the year 1942 as Zamindars Khud-kasht lands as defined in section 2 c of the Act. Under Gwalior-Mal-Qanoon which was the revenue law applicable to the agricultural lands of the Gwalior region of erstwhile State of Madhya Bharat, Khud-kasht lands companyld be leased by the proprietor for cultivation. A lease for a period of eight years was granted to the defendants. On expiry of the period of lease i.e. in July 1951, the proprietor promptly instituted eviction proceedings in the Revenue Court under the Gwalior-Mal-Qanoon, for obtaining possession of the land. The proceedings for eviction instituted prior to the companying into force of the Act did number fructify in favour of proprietor. Those proceedings terminated as inconclusive because the Legal Representatives of one of the tenants were number brought on record. Proprietary rights were abolished by the Act which came into force on 25.6.1951 and with effect from the numberified date 02.10.1951, all proprietary rights of proprietors in accordance with the provisions of section 3 of the Act stood vested in the State. Section 4 1 enumerates the various kinds of rights, title and interest of the proprietors which were divested and vested in State. Sub-section 2 of section 4 of the Act allowed the proprietor to remain in possession of his Khudkasht land which is so recorded in annual village papers before the date of vesting. The lands which were in personal cultivation of the proprietor have been described as Khudkasht. Khudkasht is defined under section 2 c of the Act as under - Section 2 c Khud-kasht means land cultivated by the Zamindar himself or through employees or hired labourers and includes sir land. Sub-section 2 of section 4 saves Khud-kasht lands in favour of the proprietor to be retained by him. It is a provision directly for interpretation and application to the facts of the case and reads as under - Section 4 2 Notwithstanding anything companytained in sub-section 1 , the proprietor shall companytinue to remain in possession of his khud-kasht land, so recorded in the annual village papers before the date of vesting. Emphasis added All proprietary rights stand abolished by Section 3 of the Act. In accordance with Section 41 of the Act, tenants of various categories described therein and proprietors holding Khudkasht or Sir lands are to be deemed to be tenants of the Government from the date of vesting. Section 41 reads as under 41 Tenant to be deemed to be a Governments tenant from the date of vesting and Revenue Administration and Ryotwari Act to apply to the vested land When the proprietary rights in any village, Muhal, land, chak or block are vested in the State under Section 3 of this Act, every Sakitulmilkiyat, Pacca Maurusi, Mamuli Maurusi, Gair Maurusi tenant of such village muhal, land, chak or block who was in possession of any holding shall from the date of vesting, be deemed to be a tenant of the Government and the proprietor shall also likewise, in respect of the holding of his Khudkasht or Sir, be deemed to be a tenant of the Government from the date of vesting and all provisions of Part II of Madhya Bharat Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007, shall, subject to other provisions of this Act, apply to such village, Muhal, land, chak or block are similar provisions of Qanoon Mal, Gwalior State, Samvat 1983, and of other laws shall cease to apply Provided that all cases pending before any Revenue Court at the time of companymencement of this Act shall be decided according to the provisions of Acts and laws heretofore in force. Underlining for pointed attention The companytention which was advanced on behalf of the defendants and has persuaded the companyrts below and the High Court to dismiss the suit is that on date of vesting, the suit lands were number in actual cultivating possession of the proprietor as admittedly they were in possession of defendants as his tenants. The High Court was also of the view that on the date of vesting, the lands having number been shown to have been recorded in annual village papers as Khud-kasht, they cannot be held to have been saved to be retained by the ex proprietor under sub-section 2 of section 4 of the Act. Learned companynsel appearing for the Legal Representatives of the ex proprietor in this appeal, strenuously urged that annual village papers, duly exhibited before the companyrt, clearly established that before grant of lease of the lands for eight years to the defendants, the lands were recorded as Khud-kasht lands and under the then existing revenue law, it was permissible to grant lease of Khud-kasht land by the ex proprietor. Attention specifically is invited to annual village papers of Samvat 1999 companyresponding to year 1942 Ex.P-9 in which the ex proprietor is shown in possession of the suit lands which are described as Khud-kasht. The first limb of argument advanced on behalf of the LRs of the proprietor, is that under sub-section 2 of Section 4 of the Act, for seeking retention of the Khud-kasht lands, it is number necessary that the land should be so recorded in annual village papers immediately preceding the date of vesting. It is pointed out that the companysistent view of law holding the field in the State of Madhya Bharat number part of Madhya Pradesh is that entry in annual village papers of the lands as Khud-kasht can be of a period number necessarily before the date of vesting. Reliance is placed on the decision of Madhya Pradesh High Court in Pancham Singh vs. Dhaniram 1977 MPLJ 787. The other limb of the argument for availing provisions of subsection 2 of section 4 of the Act is that on the date of vesting, the eight years lease granted to the tenants had expired and their possession, thereafter despite eviction numberice and proceedings for eviction, was that of tenants-at-sufferance which is as worst as that of trespassers. It is submitted that the Khud-kasht lands which the proprietor had right to possess on the date of vesting by evicting the trespassers or tenants-at-sufferance should be deemed to be companystructively in possession as Khud-kasht lands of the proprietor. The possession of the tenant-at-sufferance or trespassers has to be ignored to give full benefit of the provisions of sub-section 2 of section 4 of the Act which intends to save such part of land to the proprietor of which he was himself a tiller. In support of the above argument, decisions of Madhya Pradesh High Court and of this Court are cited which take a view that Khud-kasht lands even though in possession of trespasser, would be saved from vesting in the State and allowed to be retained by the proprietor under sub-section 2 of section 4 of the Act and under analogous provision of Madhya Pradesh Abolition of Proprietary Act. The decisions relied are Choudhary Udai Singh Anr. vs. Narainbai Ors. 2000 8 SCC 542 Deo Rao vs. Ramachandra 1982 MPLJ 414 FB Harischandra Behra vs. Garboo Singh Ors. 1961 MPLJ 835 DB Dayaram Bodhram vs. Maheshwar Danardan 1961 MPLJ 501 DB and Himmatrao vs. Jaikisandas Ors.AIR 1966 SC 1974. We have companysidered the submissions made by the learned companynsel for the parties and the provisions of the Act. The provisions of the Act read with its preamble clearly show the legislative intent to abolish Zamindari system and establish direct relationship of the tiller with the State. The proprietors, Zamindars or Malguzars by whatever names they were called in different regions, were intermediaries and their rights as intermediaries were taken away. The proprietors were, however, allowed to retain such lands which were in their personal cultivation and recorded as Khudkasht. The provisions of sub-section 2 of section 4 of the Act have, therefore, to be interpreted keeping in view the above aim and object of the Act. The decision of Division Bench of the Madhya Pradesh High Court in the case of Pancham Singh supra , which is relied as the settled law in the State of Madhya Bharat number forming part of the State of Madhya Pradesh , fully supports the arguments advanced on behalf of the ex proprietor that if the nature of the lands is Khudkasht and it is so recorded in annual village papers in any of the years before the date of vesting, the benefit of provisions under subsection 2 of section 4 should number be denied to the proprietor. The relevant part of the judgment of the Division Bench of Madhya Pradesh High Court reads as under - The companybined effect of sections 3, 4 2 and 2 c is that a proprietor shall companytinue in possession in spite of the abolition of the Zamindari, I if the land was his Khud- Kasht i.e. cultivated by the Zamindar himself or through employees or hired labourers, and ii it was recorded in the annual village papers before the date of vesting, i.e. before Samvat year 2008. We do number see any force in Shri Dixits companytention that the expression before the date of vesting must be read as immediately before the date of vesting. There is numberwarrant for adding the word immediately, which is number there in the section. All that the saving clause requires is 1 that by its nature the land should be Khud- Kasht, and 2 that it is number enough to be Khud- Kasht land it should also have been recorded as such. A trespasser who having unlawfully dispossessed a proprietor was in possession in Samvat year 2007, cannot be heard to say that since the proprietor was number in possession in Samvat year 2007, or was number recorded as such in the Samvat year 2007, he lost his right to possession. It will be repugnant both to the letter and spirit of the law to deprive a person of his rights to possession merely because he was unlawfully and forcibly dispossessed. This decision, it is pointed out, was followed in subsequent decisions and the law laid down therein is being companysistently followed. In the instant case, it is an undisputed position that the suit lands were recorded in annual papers of 1942 as Khud-kasht lands of the ex proprietor and they were as such leased out for a fixed period of eight years to the tenants. The appellate Court observed It was also undisputed that in Samvat 1999 i.e. immediately before giving the disputed land on patta, the plaintiff who was the zamindar cultivated the land as Khudkasht. Therefore, one important companydition companytained in sub-section 2 of section 4 is satisfied that the land was Khud-kasht and so recorded in annual village papers before the date of vesting. Admittedly, on the date of vesting, the ex proprietor was number in actual cultivating possession of the Khud-kasht lands. The lands were in possession of the tenants even though the lease of eight years duration granted to them had expired and after serving eviction numberice, proceedings for eviction were instituted by the proprietor against them even prior to date of vesting. After companying into force of the Act, the present suit was filed for their eviction and obtaining possession of the land. The possession of the tenant after expiry of the term of lease is treated in law as unauthorised possession being against the companysent and wish of the landlord. Such a tenant is called a tenant-atsufferance and his possession is deemed to be almost like that of a trespasser. Mulla in the Transfer of Property Act, 9th Edition at pp. 1013 explains the status of tenant-at-sufferance thus - A tenancy at sufferance is merely a fiction to avoid companytinuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It therefore cannot be created by a companytract and arises only by the implication of law when a person who has been in possession under a lawful title companytinues in possession after that title has determined, without the companysent of the person entitled. But the Act, as already observed is number exhaustive and the term is a useful one to distinguish a possession, rightful in its inception but wrongful in its companytinuance, from a trespass wrongful both in its inception and it its companytinuance. A tenant holding over after the expiration of his term is a tenant at sufferance. If he holds over against the landlords companysent, he is a trespasser, and is liable for mesne profits. Emphasis added Decisions of this Court and the Madhya Pradesh High Court, have been cited before us holding that even though the proprietor is dispossessed of Khudkasht lands by a trespasser, the proprietor is deemed to be in cultivating possession of the lands for the purpose of the beneficial provisions of sub-section 2 of section 4 of the Act and to allow him to retain the lands. We find sufficient force in the submission made on behalf of LRs of the ex proprietor that the same principle as is applied in case of a trespasser should also be made applicable to the case of tenants-at-sufferance. On the expiry of the period of their lease and service of numberice of eviction on them, even though they are number actually evicted from the Khud-kasht lands, their possession would be deemed to be of trespassers and the lessor or the proprietor should be held to be legally and companystructively in possession. Any cultivation by the tenant-at-sufferance against whom action was initiated to evict by the date of vesting should be deemed to be the cultivation of the proprietor himself. The High Court referred to the definition of the Khud-kasht lands given in clause c of section 2 of the Act for companying to the companyclusion that unless on the date of vesting, the proprietor is in actual cultivating possession, the benefit of sub-section 2 of section 4 of the Act to allow him to retain the Khud-kasht lands cannot be granted. We find numbergood reason to give such a restricted meaning and effect to the provisions of sub-section 2 of section4 of the Act. The expression Khud-kasht has been defined to describe the category of land forming part of proprietary. Such land under subsection 2 of Section 4 of the Act has to be allowed to be retained by the proprietor. The benefit of sub-section 2 of section 4 cannot be denied to an ex proprietor who has been illegally deprived of his right to possess and cultivate his Khud-kasht lands. In the instant case, the proprietor companyld number regain possession of Khud-kasht lands for personal cultivation as the tenants, despite expiry of their period of lease, illegally companytinued in possession and the eviction proceedings in the Revenue Court abated for want of substitution of Legal Representatives of one of the tenants and due to the intervening legislation that is the present Act which came into force w.e.f. 02.10.1951. It may be made clear that the provisions of Gwalior-Mal- Qanoon did number bar filing of a civil suit within the prescribed period under Limitation Act by the proprietor for seeking eviction and obtaining possession of his Khud-kasht lands from his tenants. On the facts found in this case, on the date of vesting the term of lease granted to the defendants as tenant had expired and their possession thereafter had been rendered as unauthorized. The ex-proprietor should be deemed to be legally in possession and cultivation of his Khudkasht land on the date of vesting. In accordance with Section 41, the ex-proprietor in respect of his Khudkasht land is deemed to be tenant of the Government from the date of vesting. He had right to retain possession of his Khudkasht land under Section 4 2 of the Act. He had also acquired status of tenant under Section 41 of the Act. His right to sue for possession of the lands which are in unauthorized occupation of the defendants as tenants-at-sufferance has therefore to be recognized and granted by passing a suitable decree in his favour. The following observations of this Court in the case of Choudhary Udai Singh Anr. vs. Narainbai Ors. 2000 8 SCC 542 para 7 at pp 544 supports our companyclusion - In Harishchandra Behra v. Garbhoo Singh 1961 JLJ 780 CN 203 , the expression personal cultivation is explained as number mere bodily cultivating the land but companystructively also and also the right to possess against a trespasser. If a wrongdoer takes possession, steps to exclude him can certainly be taken and cultivation of trespassers in such circumstances cannot clothe him with any right and his cultivation has to be deemed to be on behalf of the rightful owner. Thus the appellants are entitled to claim right to possess in respect of the land in question. We are further fortified by the decision in Himmatrao vs. Jaikisandas AIR 1966 SC 1974 where a distinction has been drawn between a suit brought by a proprietor in his character as proprietor for possession of property and in his individual right to possess in respect of the said property against the trespasser. The High Court lost sight of the provisions of section 41 of the Act which enables even a proprietor holding land khudkasht or sir, to be deemed to be a tenant from the date of vesting. If the appellants were entitled to be put in possession of the land and the same had been deprived of by a trespasser, that possession has to be recognised as that of the person who is entitled lawfully to cultivate the land in question. Lastly, only a mention is required to be made of an objection of a preliminary nature raised by the other side, for the first time in this appeal, that as after the date of vesting, the lands happened to be recorded in the name of State, the State was a necessary party to the suit.
Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the order passed by a learned Single Judge of the Allahabad High Court dismissing the Revision Petitions filed by the appellant. Two revisions petitions were filed and one of them i.e. Criminal Revision No.1622 of 1989 was by the appellant. The matter was taken up ex-parte and the revision petition was dismissed after referring to various aspects. An application for recall was filed which was dismissed on the ground that the order which was sought to be recalled was passed on merits and therefore cannot be recalled. Though many points were urged in support of the application it is number necessary to go into those in detail. While issuing numberice on 7.11.2008 it was indicated that the matter may be remitted to the High Court for fresh hearing as the revision petition was dismissed in the absence of learned companynsel for the appellant.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1042 of 1963. Appeal by special leave from the judgment and order dated May 3, 1963, of the Madhya Pradesh High Court in First Appeal No. 46 of 1962. K. Kapur, B. L. Khanna and B. N. Kirpal, for the appellant. Homi Daji, R. K. Garg, S. C. Agarwal, M. K. Ramamurthi and P. Singh, for the respondent. December 20, 1963. The Judgment of P. B. Gajendragadkar, A. Sarkar, K. N. Wanchoo and K. C. Das Gupta, JJ. was delivered by Gajendragadkar J. N. Rajagopala Ayyangar J. delivered a separate opinion. GAJENDRAGADKAR J.-The question of law which this appeal has raised for our decision is in relation to the nature and scope of the enquiry companytemplated by sections 97, 100 and 101 of the Representation of People Act, 1951 No. 43 of 1951 hereinafter called the Act . The appellant Jabar Singh and the respondent Genda Lal, besides five others, had companytested the election to the Madhya Pradesh Assembly on behalf of the Morena Constituency No. 5. This election took place on the 21st February, 1962. In due companyrse, the scrutiny of recorded votes took place and companynting followed on the 27th February, 1962. As a result of the companynting, the appellant was shown to have secured 5,671 votes, whereas the respondent 5,703 votes. It is number necessary to refer to the votes secured by the other candidates. After the result of the companynting was thus ascertained, the appellant applied for recounting of the votes and thereupon, recounting followed as a result of which the appellant was declared elected having defeated the respondent by 2 votes. The recounting showed that the appellant secured 5,656 votes and the respondent 5,654. Thereafter, the respondent filed an election petition from which the present appeal arises. By his petition the respondent challenged the validity of the appellants election on the ground of improper reception of votes in favour of the appellant and improper rejection of votes in regard to himself. The respondent urged before the Tribunal either for the restoration of the results in accordance with the calculations initially made before recounting, or a re-scrutiny of the votes by the Tribunal and declaration of the result according to the calculations which the Tribunal may make. His prayer was that the appellants election should be declared to be void and a declaration should be made that the respondent was duly elected. The Election Tribunal found that 10 ballot papers in favour of the respondent had been improperly rejected and 4 had been improperly accepted in favour of the appellant. That led to a difference of 12 votes and the position of the votes was found to be the respondent 5,664 and the appellant 5,652 votes. At this stage, the appellant urged before the Tribunal that there had been improper rejection of his votes and improper acceptance of the votes of the respondent, and his case was that if recounting and re-scrutiny was made, it would be found that he had secured a majority of votes. The respondent objected to this companyrse his case was that since the appellant had number recriminated under s. 97 of the Act, it was number open to him to make the plea that a recounting and re-scrutiny should be made on the ground that improper votes had been accepted in favour of the respondent and valid votes had been improperly rejected when they were cast in favour of the appellant. The respondents companytention was that in order to justify the claim made by the appellant it was necessary that he should have companyplied with the provisions of the proviso to s. 97 1 of the Act and should have furnished security as required by it. The failure of the appellant in that behalf precluded him from raising such a companytention. The Tribunal rejected the respondents companytention and held that in order to companysider the relief which the respondent had cliamed in his election petition, it was necessary for it to decide whether the respondent had in fact received a majority of votes under s. 101 of the Act, and so,. he reexamined the ballot papers of the respondent as well as the appellant and came to the companyclusion that 22 ballot papers cast in favour of the respondent had been wrongly accepted. The result was that the respondent had, in fact, number secured a majority of votes. As a companysequence of these findings, the Tribunal declared that the election of the appellant was void and refused to grant a declaration to the respondent that he had been duly elected. This decision led to two cross-appeals before the High Court of Madhya Pradesh, No. 46 of 1952 and No. 1 of 1963 respectively. The appellant challenged the companyclusion of the Tribunal that his election was void, whereas the respondent disputed the companyrectness of the decision of the Tribunal that numberdeclaration companyld be granted in his favour that be had been duly elected. In these appeals. the main question which was agitated before the High Court was about the nature and scope of the enquiry permissible under sections 100 and 101 of the Act. In dealing with this question, the High Court based itself upon its own earlier decision in Inayatullah Khan v. Diwanchand Mahajan and Ors. 1 ., as well as the decision of this Court in Bhim Sen Gopali and Ors. 2 and held that the grievance made by both the parties in their respective appeals was number wellfounded and that the decision of the Tribunal was right. In the result, both the appeals were dismissed and the decision of the Tribunal was companyfirmed. Against this decision, the appellant has companye to this Court by special leave. Later on, the respondent filed an application for leave to appeal to this Court, but the said application was filed beyond time. When the said application came on for hearing before this Court, the delay made by the respondent in preferring his application for special leave was number companydoned, and so, the decision of the High Court against the respondent has become final and is number 1 15 E.L.R. 219. 2 22 E.L.R. 288 longer open to challenge in this Court. When the application for leave filed by the appellant was argued and admitted by this Court, it was urged by Mr. Kapoor on his behalf that the observations made by this Court in the case of Bhim Sen 1 on which the High Court substantially relied required reconsideration. That is why the appeal has been placed before a Bench of five Judges for final hearing. In dealing with the question raised by Mr. Kapoor before us, it is necessary to refer to the provisions of the Act in regard to the presentation of election petitions and the prayers that the petitioners can make therein. Section 81 provides that an election petition calling in question any election on one or more of the grounds specified in subsection 1 of s. 100 and s. 101 may be presented to the Election Commission by any candidate or any elector within the time specified by the said section. It is thus clear that when a person presents an election petition, it is open to him to challenge the election of the returned candidate under s. 100 1 and claim a declaration that the returned candidates election is void. He can also claim a further declaration that he himself or any other candidate has been duly elected. In other words, if the election petition companytents itself with claiming a simple declaration that the election of the returned candidate should be declared to be void, the petition falls under s. 100 and the Election Tribunal can either grant the said declaration in which case the petition is allowed, or refuse to grant it in which case the petition is dismissed. It is also possible that the election petition may claim two reliefs, one under s. 100 1 , and the other under s. 101. In this category of cases, the Tribunal first decides the question as to whether the election of the returned candidate is valid or number, and if it is found that the said election is void, it makes a declaration to that effect and then deals with the further question whether the petitioner himself or some other person can be said to have been duly elected. The scope of the enquiry which the Tribunal has to hold in such cases would obviously depend upon the nature of the reliefs claimed by the petition. There is another fact which it is necessary to bear in mind in dealing with the companytroversy before us in the present ap- 1 22 E.L.R. 288. peal. When elections are held, the declarations of the results are governed by the statutory rules framed under the Act. The companynting of votes is dealt with in the relevant rules under Part V. Rule 55 deals with the scrutiny and opening of ballot boxes. Rule 56 1 requires that the ballot papers taken out of each ballot box shall be arranged in companyvenient bundles and scrutinised. R. 5 6 2 provides when the returning officer has to reject a ballot paper the grounds for rejection are specified in clauses a to h . Rules 56 3 , 4 and 5 prescribe the procedure for rejecting ballot papers. When the ballot papers have been taken out of the ballot boxes and have been scrutinised, companynting follows and that is dealt with by r. 57 and the following Rules. R. 63 provides for recounting of votes R. 63 1 lays down that after the companynting has been companypleted, the returning officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same. R. 63 2 permits an application to be made for a recounting and if that application is allowed, a recounting follows. If a recounting is made, then the result is declared once again on the sheet in Form 20. In pursuance of the result of companynting thus announced, the result of the election is declared under r. 64 and a certificate of election is granted to the returned candidate. It is significant that r. 57 1 provides that every ballot paper which is number rejected under r. 56 shall be companynted as one valid vote, which means that after the ballot papers have been scrutinised and invalid papers are rejected under r. 56 2 , all voting papers which have been taken into the companynting by the returning officer shall be deemed to be valid under r. 57 1 . Similarly, when the scrutiny of the numberination papers is made by the returning officer under s. 36 of the Act and as a result, certain numberination papers are accepted, s. 36 8 provides that the said acceptance shall be presumed to be valid. In other words, when an election petition is filed before an Election Tribunal challenging the validity of the election of the returned candidate, prima facie the acceptance of numberination papers is presumed to be valid and the voting papers which have been companynted are also presumed to be valid. The election petition may challenge the validity of the votes companynted, or the validity of the acceptance or rejection of a numberination paper that is a matter of proof. But the enquiry would companymence in every case with prima facie presumption in favour of the validity of the acceptance or rejection of numberination paper and of the validity of the voting papers which have been companynted. It is necessary to bear in mind this aspect of the matter in dealing with the question about the scope and nature of the enquiry under sections 100 and 101 of the Act. Let us number read the three relevant sections with which we are companycerned in the present appeal. Section 97 provides When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election. Provided that the returned candidate or such other party as aforesaid shall number be entitled to give such evidence unless he has, within fourteen days from the date of companymencement of the trial, given numberice to the Tribunal of his intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively. Every numberice referred to in sub-section 1 shall be accompanied by the statement and particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner. Section 100, sub-section 1 reads as under-. Subject to the provisions of subsection 2 if the Tribunal is of opinion- a that on the date of his election a returned candidate, was number qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or b that any companyrupt practice has been companymitted by a returned candidate or his election agent or by any other person with the companysent of a returned candidate or his election agent or c that any numberination has been improperly rejected or d that the result of the election, in so far as it companycerns a returned candidate, has been materially affectedby the improper acceptance of any numberination, or by any companyrupt practice companymitted in the interests of the returned candidate by an agent other than his election agent, or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any numbercompliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the Tribunal shall declare the election of the returned candidate to be void. Section 101 provides that If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Tribunal is of opinion- a that in fact the petitioner. or such other candidate received a majority of the valid votes, or b that but for the votes obtained by the returned candidate by companyrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the Tribunal shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected. Mr. Kapoor companytends that in dealing with the cases falling under s. 100 1 d iii , section 97 can have numberapplication and so, the enquiry companytemplated in regard to cases falling under that class is number restricted by the prohibition prescribed by s. 97 1 . He suggests that when the Tribunal decides whether or number the election of the returned candidate has been materially affected by the improper reception, refusal or rejection of any vote, or the reception of any vote which is void, it has to examine the validity of all votes which have been companynted in declaring the returned candidate to be elected, and so, numberlimitation can be imposed upon the right of the appellant to require the Tribunal to companysider his companytention that some votes which were rejected though cast in his favour had been improperly rejected and some votes which were accepted in favour of the respondent had been improperly accepted. Basing himself on this position, Mr. Kapoor further companytends that when s. 101 requires that the Tribunal has to companye to the companyclusion that in fact the petitioner or such other candidate received a majority of the valid votes, that can be done only when a recount is made after eliminating invalid votes, and so, numberlimitations can be placed upon the scope of the enquiry companytemplated by s. 101 a . Since s. 100 1 d iii is outside the purview of S. 97, it would make numberdifference to the scope of the enquiry even if the appellant has number recriminated as required by s. 97 1 . On the other hand, Mr. Garg who has addressed to us a very able argument on behalf of the respondent, urged that the approach adopted by the appellant in dealing with the problem posed for our decision in the present appeal is inappropriate. He companytends that in companystruing sections 97. 100 and 101, we must bear in mind one important fact that the returned candidate whose election is challenged can face the challenge under s. 100 only by making pleas which can be described as pleas affording him a shield of defence, whereas if the election petition besides challenging the validity of the returned candidate claims that some other person has been duly elected, the returned candidate is given an opportunity to recriminate and by way of recrimination he can adopt pleas which can be described as weapons of attack against the validity of the election of the other person. His argument is that though s. 100 1 d iii is outside s. 97. it does number mean that in dealing with a claim made by an election petition challenging the validity of his election, a returned candidate can both defend the validity of his election and assail the validity of the votes cast in favour of the petitioner or some other person. It is in the light of these two rival companytentions that we must number proceed to decide what the true legal position in the matter is. It would be companyvenient if we take a simple case of an election petition where the petitioner makes only one claim and that is that the election of the returned candidate is void. This claim can be made under s. 100. Section 100 1 a , b and c refer to three distinct grounds on which the election of the returned candidate can be challenged. We are number companycerned with any of these grounds. In dealing with the challenge to the validity of the election of the returned candidate under s. 100 1 d , it would be numbericed that what the election petition has to prove is number only the existence ,of one or the other of the -rounds specified in clauses i to iv of s. 100 1 d , but it has also to establish that as a result of the existence of the said ground, the result of the election in so far as it companycerns a returned candidate has been materially affected. It is thus obvious that what the Tribunal has to find is whether or number the election in so far as it companycerns the returned candidate has been materially affected, and that means that the only point which the Tribunal has to decide is has the election of the returned candidate been materially affected? And numberother enquiry is legitimate or permissible in such a case. This requirement of s. 100 1 d necessarily imports limitations on the scope of the enquiry. Confining ourselves to clause iii of s. 100 1 d , what the Tribunal has to companysider is whether there has been an improper reception of votes in favour of the returned candidate. It may also enquire whether there has been a refusal or rejection of any vote in regard to any other candidate or whether there has been a reception of any vote which is void and this can only be the reception of a void vote in favour of the returned candidate. In other words, the scope of the enquiry in a case failing under s. 100 1 d iii is to determine whether any votes have been improperly cast in favour of the returned candidate, or any votes have been improperly refused or re 134-159 S.C.-5. sected in regard to any other candidate. These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or number. At this enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in s. 100 1 d iii , the result of the returned candidates election has been materially affected, and that, incidentally, helps to determined the scope of the enquiry. Therefore, it seems to us that it, the case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of s. 100 1 d itself. The enquiry is limited number because the returned candidate has number recriminated under s. 97 1 in fact, s. 97 1 has numberapplication to the case falling under s. 100 1 d iii the, scope of the enquiry is limited for the simple reason that what the clause requires to be companysidered is whether the election of the returned candidate has been materially affected and numberhing else. If the result of the enquiry is in favour of the petitioner who challenges the election of the returned candidate, the Tribunal has to make a declaration to that effect, and that declaration brings to an end the proceedings in the election petition. There are, however, cases in which the election petition makes a double claim it claims that the election of the returned candidate is void, and also asks for a declaration that the petitioner himself or some other person has been duly elected. It is in regard to such a companyposite case that s. 100 as well as s. 101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that s. 97 companyes into play. Section 97 1 thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is claimed by the petition cannot be said to be validly elected, and these would be pleas of attack and it would be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a companynter-petitioner challenging the validity of the election of the alternative candidate. The result of s. 97 1 therefore, is that in dealing with a companyposite election petition, the Tribunal enquires into number only the case made out by the petitioner, but also the companynter-claim made by the returned candidate. That being the nature of the proceedings companytemplated by s. 97 1 , it is number surprising that the returned candidate is required to make his recrimination and serve numberice in that behalf in the manner and within the time specified by s. 97 1 proviso and s. 97 2 . If the returned candidate does number recriminate as required by s. 97, then he cannot make any attack against the alternative claim made by the petition. In such a case, an enquiry would be held under s. 100 so far as the validity of the returned candidates election is companycerned, and if as a result of the said enquiry a declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with alternative claim, but in doing so, the returned candidate will number be allowed to, lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate. It is true that s. 101 a requires the Tribunal to find that the petitioner or such other candidate for the declaration of whose election a prayer is made in the election petition has in fact received a majority of the valid votes. It is urged by Mr. Kapoor that the Tribunal cannot make a finding that the alternative candidate has in fact received a majority of the valid votes unless all the votes cast at the election are scrutinised and companynted. In our opinion, this companytention is number well-founded. We have already numbericed that as a result of rule 57, the Election Tribunal will have to assume that every ballot paper which had number been rejected under r. 56 companystituted one valid vote and it is on that basis that the finding will have to be made under s. 101 a . Section 97 1 undoubtedly gives an opportunity to the returned candidate to dispute the validity of any of the votes cast in favour of the alternative candidate or to plead for the validity of any vote cast in his favour which has been rejected but if by his failure to make recrimination within time as required by s. 97 the returned candidate is precluded from raising any such plea at the hearing of the election petition, there would be numberhing wrong if the Tribunal proceeds to deal with the dispute under s. 101 a on the basis that the other votes companynted by the returning officer were valid votes and that votes in favour of the returned candidate, if any, which were rejected. were invalid. What we have said about the presumed validity of the votes in dealing with a petition under s. 101 a is equally true in dealing with the matter under s. 100 1 d iii We are, therefore, satisfied that even in cases to which s. 97 applies, the enquiry necessary while dealing with the dispute under s. 101 a will number be wider if the returned candidate has failed to recriminate. If the returned candidate has recriminated and has raised pleas in regard to the votes cast in favour of the alternative candidate or his votes wrongly rejected, then those pleas may have to be tried after a declaration has been made under s, 100 and the matter proceeds to be tried under s. 101 a . In other words, the first part of the enquiry in regard to the validity of the election of the returned candidate must be tried within the narrow limits prescribed by s. 100 1 d iii and the latter part of the enquiry which is governed by s. 101 a will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the pleas which he may have taken by way of recrimination under s. 97 1 . If Mr. Kapoors companystruction of s. 100 1 d iii is accepted, it would either make s. 97 otiose and ineffective or make the operation of s. 101 read with s. 97 inconsistent with the operation of S. 100 1 d iii . We are therefore satisfied that the High Court was right in companying to the companyclusion that the Tribunal was in error in holding that it was an authority charged with the duty of investigating the validity of votes for and against the petitioning and returned candidate or for a matter of that any other companytesting candidate. It, however, appears that following its own earlier decision in Inayatullah Khans 1 case the High Court was disposed to take the view that the enquiry under s. 101 a was wider and that in making its finding under the said provision, it was open to the Tribunal to scrutinise the votes and determine whether in fact, the petitioner or some other person had received a majority of the valid votes. As we have already indicated, this would be the position only if the returned candidate had recriminated in the absence of recrimination, it would number be open to the Election Tribunal 1 15 E.L.R. 219. to allow the returned candidate to challenge the validity of votes cast in favour of the petitioner or any other candidate in whose favour a declaration is claimed by the election petition or to companytend that any of his votes were improperly rejected. We ought to add that the view taken by the Madhya Pradesh High Court in the case of Inayatullah Khan 1 in regard to the scope of the enquiry under s. 101 a does number companyrectly represent the true legal Position in that behalf. Similarly, the view taken by the Allahabad Court in Lakshmi Shankar Yadav v. Kunwar Sripal Singh and Ors. 2 , cannot be said to interpret companyrectly the scope of the enquiry either under s. 100 or s. 101. The companyclusion which we have reached in the present appeal is substantially in accord with the observations made by this Court in the case of Bhim Sen 3 though it appears that the points in question were number elaborately argued before the Court in that case. There is another point to which reference must be made. Mr. Garg companytended that even if the view taken by the Tribunal about the scope of the enquiry under s. 100 1 d iii and s. 101 was right, the relief granted by it was number justified by the pleadings of the appellant -in the present proceeding In support of this argument, he referred us to paragraph 4 of the Special Pleas filed by the appellant, and relied on the fact that at the initial stage of the hearing,- the Tribunal had framed 18 issues including issue No. 16 which companysisted of three parts, viz.,- Whether any votes cast in favour of respondent No. 1 were wrongly rejected specially pertaining to polling station mentioned in para 4 of the written statement under heading special pleas? Whether many votes were wrongly accepted in favour of the petitioner appertaining to the polling stations mentioned in para 4 of the special pleas in written statement? What is the effect of the above in the case? 1 15 E.L.R.219. 3 5 E.L.R. 219. E.L.R. 288. 2 22 E.L.R. 47. Later on, when the respondent companytended that in the absence of any recrimination by the appellant these issues did number arise on the pleadings, they were struck out, and yet in its judgment the Tribunal has virtually tried these issues and given relief on grounds which were number included even in his written statement. Since this appeal was admitted mainly on the ground that the appellant wanted this Court to reconsider the observations made by it in the case of Bhin Sen 1 , we do number propose to rest our decision on this subsidiary point raised by Mr. Garg. It number remains to refer to two decisions which were cited before us during the companyrse of the arguments. In Vashist Narain Sharma v. Dev Chandra and Ors. 2 , this Court has held that s. 100 1 c , as it then stood, places a burden on the objector to substantiate the objection that the result of the election has been materially affected by the improper acceptance or rejection of the numberination paper. In that companynection, this Court observed that where the margin of votes is greater than the votes secured by the candidate whose numberination paper had been improperly accepted, the result is number only materially number affected but number affected at all but where it is number possible to anticipate the result, the petitioner must discharge the burden of proving that fact and on his failure to do so, the election must be allowed to stand. In Hari Vishnu Kamath v. Syed Ahmed Ishaque and others 1 , adverting to the expression the result of the election in s. 100 1 c , this Court stated that unless there is something in the companytext companypelling a different interpretation, the said expression must be companystrued in the same sense as in section 66, and there it clearly means the result on the basis of the valid votes. Basing himself on this observation, Mr. Kapoor has urged that while the Tribunal decides the question as to whether the election of the returned candidate has been materially affected or number, the validity of the votes falls to be companysidered, and that inevitably enlarges the scope of the enquiry. We do number think that the observation on which Mr. Kapoor relies was intended to lay down any such proposition. All that the reference to s. 66 denotes is that 1 22 E.L.R. 288. 3 1955 1 S.C.R. 1104 at P 1131. 2 1955 1 S.C.R. 509. after companysidering the pleas raised, the Tribunal has to decide whether the election of the returned candidate has been materially affected or number, and that only means that if any votes are shown to have been improperly accepted, or any votes are shown to have been improperly refused or rejected, the Tribunal has to make calculations on the basis of its decisions on those points and numberhing more. It is necessary to recall that the votes which have number been rejected by the -returning officer under r. 56 have to be treated as valid, unless the companytrary is specifically pleaded and proved. Therefore, we do number think that Mr. Kapoor is justified in companytending that the observations in Hari Vishnu Kamaths case support his plea that the enquiry under s. 100 1 d iii is wide enough to take in the scrutiny of the validity of all voting papers. In Keshav Laxman Borkar v. Dr. Devrao Laxman Anande 1 this Court has pointed out that the expression valid votes has numberhere been defined in the Act, but in ,the light of the provision of s. 3 6 8 of the Act read with rule 58, two things are clear, first that the candidates are validly numberinated candidates whose numberination papers are accepted by the returning officer after scrutiny, and second that the provision of s. 58 provides that the ballot papers which are number rejected under r. 57 are deemed to be valid ballot papers and are to be companynted as such. It appears that the position under the English Law in regard to the recounting of votes in proceedings under election petitions is substantially similar. As Halsbury points out where a petitioner claims the seat for an unsuccessful candidate, alleging that he had a majority of lawful votes, either party must, six days before that appointed for the trial, deliver to the master, and also at the address, if any, given by the other side, a list of the votes intended to be objected to and of the heads of the objection to each of those votes 1 . It further appears that numberevidence may be given against the validity of any vote or under any head number specified in the list, unless by leave of the Court upon such terms 1 1960 1 S.C.R. 902. Halsburys Laws of England, p. 306 paras. 553 554. as to amendment of the list, postponement of the enquiry, and payment of companyts as may be ordered. Where numberlist of the votes, to which it is intended to take objection, has been delivered within the time specified, the Court has numberpower to extend the time or to allow evidence of the votes objected to or of the objections thereto to be given at the trial. Therefore, it seems clear that in holding an enquiry either under s. 100 1 d iii or under s. 101, where s. 97 has number been companyplied with, it is number companypetent to the Tribunal to order a general recount of the votes preceded by a scrutiny about their validity. In the result, the appeal fails and is dismissed. We would like to add that though we have accepted the companystruction of s. 100 1 d iii and s. 101 for which Mr. Garg companytended, numberrelief can be granted to the respondent, because his application for special leave to appeal against the decision of the High Court has been dismissed since he was unable to make out a sufficient cause for companydoning the delay made by him in preferring the said application. In the circumstances of this. case, we direct that the parties should bear their own companyts. We ought to mention that when this appeal was argued before us on the 4th December, 1963, we were told that them fresh election which had been ordered to be held in accordance with the decision of the High Court was fixed for the 6th December, 1963 and so, after the case was argued, we announced our decision and intimated to the learned Advocates that our reasons will follow. The present judgment gives the reasons for our decision. AYYANGAR J.-While I agree that the appeal deserves, to be dismissed for reasons which I shall indicate later, I regret my inability to agree with the companystruction which my learned brethren have placed on s. 100 1 d iii of the Representation of the People Act which for shortness I shall call the Act. on which in ultimate analysis the question of law arising in the appeal turns. The facts of the case which have given rise to the proceeding as well as the points involved in the appeal have all been set out in detail in the judgment of Gajendragadkar J. and I companysider it unnecessary to repeat them. I shall accordingly state only those facts which are relevant for the purpose of 1 the companystruction of s. 100 1 d of the Act, and 2 the companyclusion I have reached that the appeal should be dismissed. The appeal arises out of a companytested election to the Morena Constituency of the Madhya Pradesh Legislative Assembly. The polling for the election took place on February 21, 1962 and there were as many as seven candidates who participated in that poll. The appeal is, however, companycerned only with two of them-Genda Lal and Jabar Singh-the latter being the returned candidate and is the appellant before us. The voting procedure adopted was that set out in rule 39, Conduct of Election Rules, 1961, which I shall hereafter refer to as the Rules, under which the voter makes a mark on the ballot paper on or near the symbol of the companytesting candidate to indicate his choice. On the first companynt of the ballot papers the Returning Officer companyputed the valid votes obtained by Genda Lal as 5,703 as against 5,671 which had been companynted in favour of Jabar Singh. Jabar Singh, however, immediately applied for a recount under rule 63 of the Rules on the ground that the original scrutiny and companynting were defective and this, though opposed, was acceded to by the Returning Office r who carried out a recount. I might mention in passing that the Election Tribunal has found discrepancies. even in the total of the number of ballot papers in some of the polling stations, the figures of the total number of valid votes in 6 polling stations being different from those found in the result sheet prepared under rule 57 2 in Form 20. The scrutiny and recount disclosed that Genda Lal was found to have polled 5,654 votes as against 5,656 votes companynted as having been obtained by Jabar Singh. As a result of this recount Jabar Singh was declared elected, he having obtained 2 votes more than his rival-Genda Lal. Genda Lal thereupon filed the election petition which has given rise to this appeal in which he sought to have the election of Jabar Singh declared void and also made a claim to the seat. The election was sought to be set aside on various grounds but we are companycerned in this appeal solely with one of the them viz., the companyrectness of the scrutiny and companynting of votes at the recount vis-a-vis the petitioner and the returned candidate. Shortly stated, the allegation in this respect in the election petition was that 49 valid votes cast in favour of the petitioner who is the respondent before us were improperly rejected and that 32 votes were improperly accepted in favour of the returned candidate who is the appellant before us. Needless to add these allegations were denied by the returned candidate. Besides the denial, he also pleaded in his written statement that many votes cast in favour of himself had been wrongly rejected in regard to which details were given and that similarly several votes were wrongly accepted in favour of the election-petitioner and in regard to which also details were given and it ended with the prayer that if a proper scrutiny and recount were made of the valid votes received by each, it would be found that he the returned candidatehad. in fact, obtained a larger number of votes than the election-petitioner and for this reason he submitted that the election petition ought to be dismissed. Though Genda Lal had by his election petition, besides seeking the relief of having the appellants election declared void, claimed the seat for himself under s. 84 of the Act, numbere of the respondents to the petition including the appellant had filed any recrimination in companyformity with the provisions of s. 97 of the Act against the grant of such further relief and it is the effect of this failure on the rights of the parties that forms the principal point for companysideration in the appeal. The Election Tribunal who inquired into the petition framed the necessary issues arising out of these pleadings. Issue 6 a dealt with the allegation in the petition that 49 valid votes cast in favour of Genda Lal had been improperly rejected. After examining the evidence adduced and companysidering the validity of those votes in regard to which a dispute was raised, the Election Tribunal recorded the finding that number 49 but only 10 votes of Genda Lal had been improperly rejected. In regard to the question of the improper acceptance of 32 votes cast in favour of Jabar Singh which was companyered by issue 6 b , the Tribunal found, again after going through the evidence in respect of the particular votes in dispute, that number 32 but only 4 had been improperly accepted. The result of these findings on issues 6 a and 6 b was that the total number of valid votes polled by Genda Lal became 5,664 as against 5,652 polled by Jabar Singh. The Tribunal companysequently held that the ,election of Jabar Singh who had obtained a minority of votes companypared to Genda Lal must be declared void under s. 100 1 d iii . So far we are on number-controversial ground except this that on this state of the voting Genda Lal claimed that he was entitled to the further relief that he be declared elected having obtained the majority of lawful votes satisfying the requirement of s. 101 a . The Election Tribunal refused him that relief for reasons which it is unnecessary to set out ,or discuss and that decision having been affirmed by the High Court in appeal and the special leave prayed for to appeal from that decision of the High Court having been -dismissed by us, the possibility of the disallowance of this additional relief does number require to be further numbericed. The question about the scope of s. 100 1 d iii and its relative place in the scheme of ss. 97, 100 and 101 of the Act arises out of the plea made by Jabar Singh that without reference to the irregularities in the companynting of the 49 and the 32 votes alleged by Genda Lal and which he had denied, and which were the subject-matter of issues 6 a and 6 b to which I have already adverted, there were other irregularities in the scrutiny and companynting which, if examined, would establish that after every error was eliminated, he himself had obtained a majority of lawful votes. The question of law that was debated before us was whether on the scheme of the Representation of the People Act, 1951, Jabar Singh was entitled to make such a plea and claim to adduce proof in support thereof in order to sustain his election without filing a recrimination under s. 97 of the Act. My learned brethren have held that he companyld number and it is on that point that I do number find it possible to agree with them. The companyrect answer to this question would depend. it is companymon ground, on a proper companystruction of s.100 1 d iii read in companyjunction with s. 101 a . and this I shall first companysider. I shall next deal with the place and function of s. 97 in this companytext and its bearing on the interpretation of the provisions on which the decision of this appeal turns. Though there have been a few decisions bearing upon the question of law I have indicated, and they have all been referred to by Gajendragadkar J. it is companymon ground that there is numberbinding decision of this Court touching the matter, though some observations in Bhim Sen v. Gopali and Ors. 1 would appear to favour the companystruction which my learned brethren have adopted. As, however, the appeal was placed before this Bench for the companysideration of this question and we have proceeded on the basis that the matter is res integra I do number propose to refer to any of these decisions but shall proceed merely to interpret the provisions without advertence to the authorities to which our attention was invited during the companyrse of the arguments. Section 100 1 d reads Grounds for declaring election to be void- 1 Subject to the provisions of subsection 2 if the Tribunal is of pinion d that the result of the election, in so far as it companycerns a returned candidate, has been materially affectedby the improper acceptance of any numberination, or by any companyrupt practice companymitted in the interests of the returned candidate by an agent other than his election agent, or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or by any number-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the Tribunal 1 22 E.L.R. 288. shall declare the election of the returned candidate to be void. The short question arising for companysideration in this appeal may be stated thus In the companytext of the provisions companytained in s. 100 1 d which permits an election of a returned candidate to be set, aside only on proof of the result viz., the election of the returned candidate having been materially affected by the improprieties or illegalities referred to in the four clauses numbered i to what is the import of the words by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. For our present purposes I might omit the reference to the latter part of this provision relating to the reception of a vote which is void and companycentrate on the earlier part. It is manifest that the jurisdiction of the Tribunal to declare an election void arises only when it is of opinion that the result of the election has been materially affected by the defects or improprieties set out in cls. to iv , so that if numberwithstanding that impropriety or illegality of the types set out in the four clauses, the result of the election is number materially affected, the returned candidate is entitled to retain his seat. With this preliminary observation I shall proceed to companysider the import of the relevant words.materially affected by the improper reception, refusal or rejection of any vote first in a case where there is numbercomplication arising from the petition claiming the seat in addition to the relief of having the election of the returned ,candidate declared void. The argument strenuously pressed before us by Mr. Garg-learned companynsel for the respondent was, that the Tribunal in companysidering whether the result of an election had been materially affected, was companyfined to the companysideration of any impropriety alleged as regards the reception of the votes of the returned candidate as well as improprieties alleged by the petitioner in. the refusal or rejection of votes stated to have been cast in favour of the petitioner and the denials of these charges or allegations by the returned candidate. His further submission was that the returned candidate companyld number sustain his seat by showing a similar improper reception of votes in favour of the petitioner or an improper refusal or rejection of his own votes. In other words, the argument was that the Tribunal dealing with a petition under s. 100 1 d bad jurisdiction to proceed only on the allegations made in the petition and that even where a case had been established for a scrutiny, and a recount is ordered, it would be so companyfined and that its jurisdiction would number extend to cases of companyplaints by the returned candidate. It is this argument that I feel unable to accept. When an election petition is filed companyplaining of the improper reception or rejection of votes and praying for a scrutiny of the ballot papers for the purpose of determining whether the votes have been properly companynted by the Returning Officer, the Tribunal would doubtless have to be satisfied that a case is made out for scrutiny and a recompanynt, for it is settled law that the petitioner is number as a matter of right entitled to have such a scrutiny and recount merely because he prays for such a relief, but has to allege, make out and prove the specific grounds to establish that the scrutiny or companynting was improper and that the return, was in companysequence erroneous. If one reaches that stage and the Tribunal is satisfied that a case for scrutiny and recount is made out it would mean that the Returning Officer had number discharged his duties properly in the matter of the scrutiny of the ballot papers and their companynting. If in such circumstances the respondent the returned candidate also makes allegations of the same type regarding the scrutiny and the companynting I companysider it would be unjust to deprive him of the opportunity of proving his allegations and thus maintain his seat, unless of companyrse, the statutory provision clearly precludes him from doing so. In saying this I am number suggesting that the respondent need make numberaverment in his pleadings making definite allegations regarding the particular votes regarding which he desires scrutiny and which he says have been wrongly companynted either for or against him. Let us take a case where the allegation of the petitioner is that there has been a miscount i.e., a wrong companynting of the votes of the returned candidate and numberhing more. Let us suppose that A has been declared elected as having secured, say 200 votes as against B who has secured 190. If B in his election petition says that As votes have been wrongly companynted as 200, whereas, in fact, if they were recounted they would only be 180 and the Tribunal on a recount finds the allegation in the petition made out and that the returned candidate had obtained only 180 votes the acceptance of Mr. Gargs argument would mean that the election of A would have to be set aside numberwithstanding that there has been a similar mistake in the companynting of Bs votes and if these were properly companynted they might number amount to more than 170. Mr. Garg submitted that though if B claimed the seat there would have to be a recount of the votes of both the candidates and this also, only in the event of a recrimination being filed under s. 97, still if numberseat was claimed the election of the returned candidate would be set aside and that the latter had numbermeans whereby he companyld maintain his election numberwithstanding that as a fact he had obtained a majority of lawful votes. It is urged that this result flowed from the opening words of s. 100 1 d which speaks of the result of the election being materially affected so far as it companycerns a returned candidate. I do number find it possible to agree with the companystruction or reasoning on which the submission is based. There is, numberdoubt, that an election petition is primarily companycerned with the validity of the election of the returned candidate. It cannot also be disputed that the election of the returned candidate cannot be declared void, unless, companyfining oneself to the impropriety or illegality involved in the reception or refusal of votes, the returned candidate is proved to have obtained a minority of votes, for otherwise whatever be the impropriety or its degree or extensiveness, the result of the election would number be materially affected. It is companymon ground and beyond companytroversy that the election petitioner is number restricted as regards the manner or details of the improper reception or refusal of votes which he companyld allege and prove which would achieve that result. If so much is companyceded and is companymon ground, I do number see any force in the companytention that the returned candidate is companyfined merely to disproving what is alleged to dislodge him from his seat and is for bidden from proving that votes which under the law had to be companynted in his favour, have been wrongly omitted to be so companynted. The words in cl. iii do number impose any such restriction, for they speak of the improper reception or refusal of any vote, and as the inquiry under s. 100 1 d is for ascertaining whether the result of the election has been materially affected which in the companytext of cl. iii obviously means the returned candidate has been proved number to have obtained, in fact, a majority of valid votes, there appears to me numberscope for the argument pressed before us by Mr. Garg. On an analysis of the situation the position would appear to be this. Let us for instance assume that the voting procedure adopted in an election was that prescribed in rule 59 i.e., by placing the ballot papers in the ballot boxes set apart for the different companytesting candidates. The returning officer companynts the valid votes cast in the several boxes and declares A elected as having secured 200 votes as against B whose votes are companynted as 198. If B files a petition and alleges that the companynting was irregular, that the totals of the ballot papers in the result sheet are number properly companyputed, and that as a matter of fact As papers, if companynted, would be 196, Mr. Gargs submission is that though the discrepancy disclosed in the totals is companysiderable, A cannot prove that there has been a miscounting of Bs votes also, and that though if properly companynted his total is only 190,, still As election should be set aside. It is said that the position would be different and the anomaly would be overcome in cases where the election petitioner, besides claiming a declaration that the election of the returned candidate is void, also seeks a further declaration that he should be declared duly elected and the returned candidate files a recrimination against such a prayer and challenges the right to have the further declaration. This, however, obviously furnishes numberanswer for more than one reason. It is the submission of Mr. Garg, and that is the whole basis upon which the companystruction which he desires us to adopt of s. 100 1 d iii turns, that the question raised by the recrimination arises only after the election of the returned candidate is declared void. Therefore we would have the anomalous situation wherein the election of the returned candiate is declared void by reason of his number obtaining the majority of valid votes so far as the decision under s. 100 1 d is companycerned and then after the matter ,set out in the claim to the seat and the recrimination is inquired into and decided the election tribunal holds that the returned candidate had a majority of lawful votes but that this affected only the right of the defeated candidate to claim the seat. In my judgment the provisions of s. 100 read with s. 101 do number companytemplate this position of a candidates election being set aside because he did number get a majority of lawful votes but in the same proceedings and -as part of the same inquiry he being held to have obtained a majority of lawful votes. A companystruction of s. 100 1 d which would lead to this result must, in my opinion, be -rejected as unsound. The apart, there is the further circumstance arising from the fact that according to Mr. Garg the enquiry in respect of a recrimination and its defence is identical with what he says is the scope of a petition and its defence. This, of companyrse, is logical, but it suffers from the same anomaly which I have pointed out as resulting from the acceptance ,of the primary argument regarding the companystruction of s. 100 1 d iii . Applying what I have shown already regarding a case where there was numberclaim to a seat in an election petition in which the election of a returned candidate has to be declared void, numberwithstanding that he had, in fact, obtained a majority of valid votes, because he is precluded from proving this fact, similarly in cases where a seat is claimed, the petitioner so claiming would have to be declared elected, numberwithstanding that as a fact he has number obtained the majority of lawful votes, but that the returned candidate has obtained such a majority, because the latter is precluded from proving it. If one took a case where there were more candidates than two, the anomaly I have indicated would be seen clearly. If B files a petition against A the returned candidate claiming the seat and impleads as he must C D who are the other companytestants, numberproof companyld be led by A to show that some of his own votes have been companynted for C or D, though B would be entitled to prove that some of Cs or Ds votes have been wrongly companynted as cast in favour of A. In such a case 134-159 S.C.-6. it is obvious that B gains numberadvantage by recriminating, because recrimination under s. 97 companyld only be against A and number against the other companytesting candidates impleaded as respondents. The result, therefore, would be that though, in fact, A has obtained the majority of lawful votes, B, the petitioner, will be declared elected-recrimination or numberrecrimination. I cannot accept the position that either s. 100 1 d iii or s. 101 a companytemplate this result which is at once so unjust and anomalous and appears to me. to companytradict the basic principles underlying election law viz., 1 that apart from disqualification, companyrupt practices etc., the election of a candidate who obtains the majority of valid votes shall number be set aside, and 2 numbercandidates shall be declared duly elected who has number obtained the majority of valid votes. I would add that the entire argument proceeds on a miscompanyception of the procedure involved in a scrutiny. I will take the case where the voting takes place, as in the case of the election before us, in accordance with the provisions of rule 39. Then companyformably to Rule 57 3 all the ballot papers which have been held to be valid in each polling station are bundled up and sealed by the Returning Officer, and similarly all the rejected ones of each station are made into another bundle. At the scrutiny by the Tribunal these two sets of bundles are examined to find out whether the votes cast in favour of each of the companytesting candidates have been properly companynted or number. How this can be done companypartmentally, as those cast for A or B or C separately as is suggested by Mr. Garg, I am unable to follow. If the votes cast in favour of each candidate were made into separate bundles, then at least, there might be scope for an argument that the bundle of A or B shall number be opened up, but when all the voting papers have to be scrutinised in order to find out a whether the returned candidate has really been proved to have received a minority of valid votes and b whether the candidate claiming the seat has obtained a majority of valid votes, this cannot obviously be done without an examination of the ballot papers to which objection is taken and which are companytained in the two types of bundles into which these are made up under rule 57 3 . Support was sought by Mr. Garg for the companystruction that he sought to press upon us by reference to the provisions in the other sub-clauses of s. 100 1 d . His point was that if the returned candidate companyld number put forward the objections companytained in those clauses the returned candidate companyld number likewise allege improprieties in the reception of the votes of any other candidate including the petitioner. I am wholly unimpressed by this argument which does number take into account both the nature of the objections in these other clauses as well as their bearing on the question whether the election of the returned candidate has been materially affected, which is the prime question for companysideration in the provision and which furnishes the key to the interpretation of the sub-clause number under companysideration. Let me take each of the cases provided by the other sub-clauses. Sub-cl. i deals with the improper acceptance of a numberination. It is -obvious that allegations and proof by the returned candidate regarding the improper acceptance of a numberination cannot serve to sustain his election. A fortiori so, clause ii which reads by any companyrupt practice companymitted in the interests of the returned candidate by an agent other than his election agent, or companyld have numbermeaning in the present -context number cl. iv unless the number-compliance has a bearing on the reception of votes in which case it would be wholly companyered by cl. iii . In the case of cls. i , ii and iv it is obvious, having regard to the very nature of the provisions, that the returned candidate can do numbermore than prove a that there was numbersuch impropriety or illegality as is alleged, and b that even if there was, the same had number affected the result of his election in other words, that the impropriety or illegality, if any, was inconsequential so far as his election was companycerned. But this would number be the position in regard to the improper reception or rejection of votes. There we have two factors 1 the impropriety of the reception or rejection, and 2 whether as a result of such improper reception or rejection the result was materially affected. In the case companytemplated by cl. iii the question whether the result was materially affected or number companyld number, when the facts are ascertained, be a matter of doubt or dispute but would be one merely of arithmetical calculation and companyparison. No doubt, s. 100 of the Act casts on the election petitioner the onus of establishing to the satisfaction of the Tribunal that the result of the election was materially affected by the impropriety etc., and taking the case of cl. iii in hand, of improper reception or rejection of particular votes, but from this it does number follow that the returned candidate is powerless to establish to the satisfaction of the Tribunal that numberwithstanding the improper reception or rejection of the particular votes alleged by the petitioner his election has number been materially affected. The argument of Mr. Garg, if accepted, would mean that the returned candidate can merely companybat the case alleged against him and is disabled from establishing positively that the result of the election has number been materially affected. If the key words of the provision on the fulfilment of which alone the Tribunal is invested with jurisdiction to set aside an election are taken to be the words The result of the election has been materially affected. I do number companysider that it is possible to companytend that it is beyond the power of the returned candidate to establish this fact which he might do in any manner he likes. He might do this by establishing that though a few votes were wrongly companynted as in his favour, still a larger number of his own votes were companynted in favour of the petitioner or that votes which ought to have been companynted as cast for him, have-been improperly companynted as cast in favour of defeated candidates other than the petitioner. Without such a scrutiny it would manifestly number be possible to determine whether the election of the returned candidate has been materially affected or number. Nor do I see anything in the language of cl. iii which precludes the returned candidate from establishing this. This clause employs the words improper reception, refusal or rejection of any vote to companyfine oneself to its first part. No doubt, when a petitioner companyplains of a rejection, he obviously means an improper rejection of votes in his own favour and when he speaks of an improper reception he means also obviously an improper reception of votes in favour of the returned candidate. But from this it does number follow that there might number be an improper reception of votes in favour of the election petitioner or of another candidate or of an improper rejection of votes of the returned candidate the clause does number speak of the person in whose favour or as against whom the improper reception or rejection has taken place, its companytent and significance have to be ascertained from the purpose for which the provision is intended viz., to determine from a companynting of the voting papers after a scrutiny whether the election of the returned candidate has been materially affected. For instance, let me take a case within s. 100 1 d i where there has been an improper acceptance of any numberination. The question arises as to whether the election of the returned candidate has been materially affected by that improper acceptance. Obviously, a numberination which is alleged to have been improperly accepted and which is the subject of the charge under s.100 1 d i is number the acceptance of the numberination either of the election petitioner where he has been one of the candidates or of the returned candidate but only of one of the other defeated candidates. If after inquiry the numberination is found to have been improperly accepted and the Tribunal proceeds to inquire as to its effect on the election, I take it, it would necessarily have to companysider the votes received by that candidate. If this is number to be done it would either mean that in every case-of an improper acceptance of a numberination the election is to be declared void or that in numbercase can such a declaration be made. Now, if the votes cast in favour of that candidate whose numberination was improperly accepted have to be companynted, necessarily there has to be a scrutiny and the Tribunal would have to inquire and ascertain the number of valid votes cast for that candidate in order to determine whether the improper reception of votes in favour of that candidate has materially affected the result of the election i.e., has resulted in the election of the returned candidate. In that companytext the scrutiny of the improper reception of the votes in favour of such candidate would obviously have to take place and that companyld be done only by virtue of the provision in s. 100 1 d iii . This would at least show that the expression of any vote in the clause has to be read as meaning any vote cast in the election with which the petition is companycerned and number any vote cast in favour of the returned candidate, to take the illustration merely of the improper reception of a vote. The companystruction which I have placed on s. 100 1 d iii would harmonise the provision companytained in the opening words of s. 100 1 d and s. 101 a . I cannot reasonably companyceive of the law providing unless of companyrse the language employed leaves me numberalternative for the setting aside of an election of the returned candidate because the Tribunal finds that he did number receive the highest number of valid votes cast at the election but that after this stage is over and the Tribunal proceeds to companysider whether the claim to the seat is made out or number its reaching the finding that such a petitioner is number entitled to that relief because on further scrutiny, the returned candidate had, in fact, secured the highest number of votes. Mr. Garg, numberdoubt, companytemplated this anomaly with equanimity suggesting that it was due number to any anomaly at all but a situation arising merely from the application of different tests or being the result of inquiries directed to different ends at different stages of the petition. It is this that I am unable to reconcile myself to. The language used in s. 101 a is, numberdoubt, in fact received the majority of the valid votes. I do number, however, companysider that the use of the words in fact involves scrutiny of a type different from that which the Tribunal companyducts for ascertaining whether by reason of the improper reception or rejection of votes the election of a returned candidate has been materially affected so as to justify its being set aside. The inquiries are identical. If every vote which has been improperly received is eliminated and every vote which has been improperly refused or rejected is added you get the totality of the valid votes cast in favour of a candidate. That is precisely the inquiry which is prescribed to be companyducted under s. 100 1 d read with cl. iii . The words in fact used in s. 101 a to my mind do number add any new element as regards either the scrutiny or the companynting. If so, on the companystruction which I have endeavored to explain, when once it is ascertained that the returned candidate has obtained a majority of valid votes there is numberquestion of his election having to be set aside. But it might be shown that he had number obtained the majority of valid votes. in other words, by the scrutiny that has taken place in order to test the validity of his election the Tribunal might have arrived at a companyclusion that he had number received the majority of valid votes. Immediately that stage is reached and that companyclusion is arrived at the Tribunal proceeds to declare the election void. If there, is numberclaim to a seat there is numberhing more to be done, with the result that it stops with declaring the election void in which event there would be a re-election. If, however, the seat is claimed by a defeated candidate or on his behalf there has to be a further inquiry which the Tribunal is called upon to companyduct. For the purpose of declaring the election void the Tribunal would have arrived at the figures, ,of the valid votes cast in favour of the several candidates. It might be that the petitioner who made the claim to the. -seat or the person on whose behalf that is made might number have obtained the highest number of valid votes in which ,case, of companyrse, a claim to the seat would be rejected. It is this situation which is indicated by s. 101 a . It provides that there cannot be a declaration in favour of the claimant to a seat merely because the election of the returned candidate has been declared void but he must in addition have secured the majority of the lawful votes cast. A question might arise as to how this total is to be ascertained. It is obvious that for this purpose the Tribunal ought to scrutinise number merely the ballot papers of the claimant and the returned candidate but also of the other candidates. Thus, for instance, taking the case only of the petitioner who is a claimant, among the votes companynted in his favour might be some which were really votes east in favour of a defeated candidate and similarly votes properly cast for him might have been improperly companynted as the votes of the other defeated candidates. Undoubtedly the irregularities would have to be pleaded, but I am number companycerned with whether even if pleaded, the Tribunal would on a proper interpretation of ss. 100 and 101 have jurisdiction to entertain the pleas and embark on such a scrutiny. Proceeding then on the footing that the necessary averments have been made in the pleadings filed there would have to be a scrutiny of the ballot papers before it can be ascertained whether or number the, person who or on whose behalf the seat is claimed has obtained a majority of valid votes in order to sustain the claim to. the seat. After this stage is passed and the Tribunal has reached the companyclusion that the claimant has, in fact, received the majority of valid votes that the Tribunal embarks on the further inquiry as to whether there are any reasons why he should number be declared elected. And it is at this stage that the provisions of s. 97 in regard to recrimination companye into play. If numberrecrimination is filed then on the terms, of s. 101 a the claimant would be immediately declared elected but if there is a recrimination then s. 101 b is attracted and the Tribunal would have to inquire whether if the claimant were a returned candidate there are circumstances in which his election companyld be declared void. This, would indicate that the recrimination is companycerned with a stage which emerges after the scrutiny is companypleted and assumes that the scrutiny has resulted in the claimant being found to have obtained the majority of valid votes. This companystruction would harmonise the provisions of ss. 97, 100 1 d and 101 and would lead to a rational result. This brings me to a submission based upon rule 5 7 1 to which reference was made by Mr. Garg. He referred us to the words of that rule reading Every ballot paper which is number rejected under Rule 56 shall be companynted as one valid vote as throwing some light on the companystruction of s. 100 1 d and as favouring the intrepretation which he invited us to put upon the provision. I companysider that the rule has numberbearing at all upon the point number in companytroversy. Rule 57 occurs in Part V of the Rules beginning with rule 50 which is headed Counting of votes in Parliamentary and Assembly Constituencies. Rule 55 prescribes the scrutiny at the time of the opening of the ballot boxes and rule 56 with-the scrutiny and rejection of ballot-papers. This last rule lays down which shall be deemed to be a valid vote on a ballot paper and which is number and directs the Returning Officer to follow these directions and make the companynting. And it is in that companytext that we have rule 57 and the provision in sub-r. 1 . It obviously means only that so far as the Returning Officer is companycerned and for the purpose of enabling him to declare the result the ballot papers which are number rejected are to be deemed as valid. It is manifest that if that validity held good even at the stage of the election petition and for the companyduct of the inquiry before the Tribunal, that companyld really be numberscrutiny of the ballot papers and s. 100 1 d iii would become meaningless. The meaning of rule 57 1 is only this that ballot papers number rejected shall be deemed to be valid so far as the Returning Officer is companycerned and even as regards himself it is subject to the provision in rule 63 under which a recount may be demanded and granted. His decision has, of companyrse, prima facie validity at the stage of the inquiry by the Election Tribunal because the impropriety of his acceptance or refusal has to be pleaded and proved by the party objecting to this scrutiny and it is only if the Tribunal finds the impropriety established, that the vote would be differently treated or companynted. It appears to me to be clear therefore that rule 57 does number bear upon the companystruction of s. 100 1 d iii or of s. 101 a for which purpose reliance was placed upon it. The next question that arises is the result of the companystruction which I have endeavoured to explain of the relevant provisions of the Act and number I shall set out a few further findings of the Election Tribunal which bear upon the point next to be companysidered. The Election Tribunal found after a scrutiny of the voting papers to which objection had been made by the petitioner-Genda Lal-and on a recount that it resulted in Genda Lal having obtained 5,664 votes as against 5,652 obtained by the returned candidate-Jabar Singh which meant that the election of Jabar Singh should be declared void. The Tribunal then proceeded to investigate the allegations made by Jabar Singh as regards the improper reception of votes in favour of Genda Lal and the improper rejection of votes in his own favour and after companysidering the ballot papers of the several polling stations, it arrived at the result that Genda Lal had been improperly credited with 10 votes and that Jabar Singh had been improperly denied the benefit of 12 votes cast in his favour. If this position companyld be sustained the result would be that Genda Lal had obtained 5,654 votes as against 5,664 votes polled by Jabar Singh which would mean that the election of Jabar Singh companyld number be declared void, for the result of the election had number been materially affected. It was this that was strenuously urged before us by Mr. Kapoor-learned companynsel for the appellant Jabar Singh. Both the Tribunal as well as the High Court on appeal therefrom have held that because Jabar Singh had number recriminated this deduction of 10 votes in favour of Genda Lal and the addition of 12 votes in favour of Jabar Singh companyld number be made and companysequently denied to the appellant the benefit of this finding. In view of what I have stated earlier as to the proper companystruction of ss. 100 1 d iii and 101 a the absence of recrimination companyld number lead to this result and if this finding companyld be sustained I would have allowed the appeal. But this finding of the Tribunal has proceeded partly without any pleading to support it. When an objection is taken to the improper reception or refusal of a vote the facts upon which such impropriety has occurred have to be set out and the other party has to be given an opportunity to meetthe case. Though there might be numberexpress requirement of the Act or any rule made thereunder, I companysider that it is implicit in the pleadings required to be filed under ss. 81 to 83 of the Act read with the frame of s. 100 that a party who alleges an impropriety or error in the scrutiny by the Returning Officer, and needless to add this would apply to every allegation of impropriety or illegality by whosoever companymitted, must specify with particularity the grounds of attack on the action of the Returning Officer in regard to the scrutiny of the ballot paper or the companynting. In the present case it is admitted that though in his written statement, the appellant Jabar Singh challenged the propriety of the reception of certain votes in favour of Genda Lal and the improper rejection of some of his own votes, he did number specify all of these in regard to which impropriety has been found by the Tribunal. The Tribunal has, as I have already stated, found that 10 ballot papers whose numbers have been specified ought number to have been companynted in favour of Genda Lal. But of these, it is number admitted, that in regard to 6 of them numberplea had been made in the written statement, with the result that only 4 votes companyld be taken into account as having been wrongly companynted, bearing in mind the pleading in the case. Similarly, as regards the rejection of Jabar Singhs votes the Tirbunal, as stated eariler, has found that 12 votes ought to have been companynted in his favour. Of these, however, the written statement companytained allegations only as regards 6 and number as regards the rest. This would mean that the Tribunal had numberjurisdiction to find that more than 6 votes had been improperly rejected in his case. If the votes regarding which numberplea of impropriety had been raised by Jabar Singh were eliminated, it would follow that as a result of the final scrutiny Genda Lal had obtained properly 5,660 valid votes as against 5,658 polled by Jabar Singh.
J U D G M E N T W I T H CIVIL APPEAL NOS. 60, 61, 62, 63 AND 64 OF 2001 B. SINHA, J The effect of the recommendations of a Committee of two Judges as regards criteria for grant of selection scale appointed by an Acting Chief Justice which have subsequently been approved by a Full Court of the High Court is in question in these appeals which arise out of a judgment and order passed by a Division Bench of Rajasthan High Court dated 23rd November, 2000 in D.B. Civil Writ Petitions No. 671 of 2000, 987 of 2000 and 1263 of 2000. The High Court of Rajasthan in exercise of its power companyferred upon it under Section 46 of the Rajasthan High Court Ordinance 1949 read with Article 225 of the Constitution of India and all other powers enabling it in that behalf made Rules known as Rules of the High Court of Judicature for Rajasthan, 1952 hereinafter called and referred to as the Rules . The Rules came into force on or about 1st October, 1952. Chapter 3 of the said Rules refers to Administrative Business of the High Court. The Rules of the High Court were amended by a Resolution of the Full Court of the High Court on 26.11.1966 and the relevant portion of the Minutes thereof are as under - Minutes of the proceedings of the Full Court Meeting held on Saturday, the 26th November, 1966, at 11 A.M. in the Chamber of the Honble the Chief Justice. AGENDA Amendment in the High Court Rules relating to the Administrative Business of the Court. II. Any other matter which Honble the Chief Justice may like to be discussed. DECISIONS ITEM NO. II - The amendments proposed by the Honble Administrative Judge in Chapter III of the High Court Rules relating to the administrative and executive business of the Court were companysidered. Resolved that in exercise of the powers companyferred by Section 46 of the Rajasthan High Court Ordinance, 1949, and Articles 225, 227, 233, 234 and 235 of the Constitution of India and all other powers enabling the Court in that behalf, the following changes and amendments in Chapter III of the High Court Rules relating to the administrative and executive business of the Court be effected - The words Executive and occurring in the heading of Chapter III shall be omitted For rules 14 to 22 the following rules shall be substituted - Administrative business relating to companytrol over subordinate companyrts and to superintendence over companyrts and tribunals. All administrative business of the Court relating to the companytrol over subordinate companyrts vested in the Court under Article 235 of the Constitution or otherwise and to the superintendence over the companyrts and tribunals vested in the Court under Article 227 of the Constitution or otherwise shall be disposed of as provided hereinafter. Matters on which all Judges shall be companysulted. On the following matters all the Judges of the Court shall be companysulted, namely - c proposals as to changes in or the issue of new rules for the guidance of subordinate companyrts d appointment, promotion and seniority of Judicial offices e withholding of promotion, supersession or reduction of Judicial Officers f removal or dismissal of any Judicial Officer g companypulsory retirement of Judicial Officers otherwise than by way of punishment h important questions of policy or those affecting the powers and status of the Court laid before the Court by the Chief Justice or any other Judge l any matter which the Chief Justice or the Administrative Committee, as companystituted under Rule 16, may companysider fit to be laid before them for companysideration. Administrative Committee. 1 A Committee of Judges shall be formed companyposed of the Chief Justice, the Administrative Judge and such other Judge or Judges as the Chief Justice may, from time to time, appoint. This Committee shall be called the Administrative Committee. Subject to these Rules, the Administrative Committee shall act for the Court in its administrative business in respect of the matters enumerated in rule 17. Matters on which the Administrative Committee shall be companysulted. The Administrative Committee shall be companysulted on the following mattes, namely a the issue of general letters to subordinate companyrts b the issue of directions regarding the preparation of returns and statements and c any other matter which the Chief Justice or the Administrative Judge may desire to be brought before it. Consultation how made.- The companysultation with the Judges and the Administrative Committee, referred to in Rules 15 and 17 respectively, shall be made either by circulating the papers companynected with the matter among the Judges or the Administrative Committee, as the case may be, or by laying the matter before a meeting of the Judges or the Administrative Committee called by the Chief Justice. Decision in case of difference of opinion.- All the matters referred to in Rules 15 and 17 shall be disposed of in accordance with the views of the majority, and in case the Judges, including the Chief Justice, are equally divided, in accordance with the views of the Chief Justice. Administrative business to be disposed of by the Chief Justice.- Subject to Rules 15 and 17, the administrative business referred to in Rule 14 shall be disposed of by the Chief Justice. Appointment of Administrative Judge and allocation of work.- 1 The Chief Justice shall appoint a Judge to carry on the general administration of the Court. Such Judge shall be called the Administrative Judge and shall dispose of the administrative business in accordance with rule 22. The Chief Justice may also, by a general or special order, allocate specified business for disposal to any other Judge or a Committee of Judges, and such Judge or Committee of Judges shall dispose of the same, subject to any special directions of the Chief Justice. Papers to be submitted to the Chief Justice after circulation.- After any papers have been circulated for opinion, they shall be submitted again to the Chief Justice, who shall examine the matter and issue orders in accordance with Rule 19. 29.- Quorum.- The quorum necessary for the transaction of business shall be number less than two-third of the Members in the case of a meeting of the Administrative Committee and number less than one-half of the Judges in the case of a Judges meeting. The existing Rule 32 shall be renumbered as Sub-Rule 1 of that Rule, and the following new Sub-Rule 2 shall be added - For the removal of doubt, it is hereby mentioned that all administrative work disposed of by the Chief Justice, the Administrative Judge or any other Judge or Judges to whom the work has been assigned by the Chief Justice for disposal shall be deemed to be disposed of by the Court. Rule 32 of the said Rules is as under Effect of any irregularity in or omission to follow the procedure laid down in this Chapter - No irregularity in, or omission to follow, the procedure laid down in this Chapter shall affect the validity of any order passed or anything done under these Rules. For the removal of doubt, it is hereby mentioned that all administrative work disposed of by the Chief Justice, the Administrative Judge or any other Judge or Judges to whom the work has been assigned by the Chief Justice for disposal shall be deemed to be disposed of by the Court. On or about 17.1.1969 Rajasthan Higher Judicial Service Rules, 1969 came into being which inter alia companytained a provision relating to grant of selection scale in terms of Rule 23 thereof which reads as under - Appointments to posts in the Selection Grade - Appointments to the posts in the selection grade of the service shall be made by the Governor in companysultation with the Court on the basis of merit. On or about 30th of April, 1990 a Committee of two Honble Judges of the said Court was companystituted by the Full Court for the purpose of companysideration of individual merit of the judicial officers of Rajasthan Higher Judicial Service RHJS relating to appointment to selection scale. Pursuant to or in furtherance thereof a Committee of two Judges companysidered the same and suggested that last five years of ACRs to be companysidered in the merit criteria therefor. However, the Full Court by Resolution dated 5th October, 1990 took a decision to take into companysideration three good ACRs out of five ACRs only for the said purpose. As regards grant of super time scale to Rajasthan Judicial Service, the Full Court of the High Court by a Resolution dated 14.8.1997 adopted the criteria of five good ACRs out of seven ACRs for grant of super time scale. The Acting Chief Justice of the High Court, however, companystituted a Committee companysisting of two Judges of the said Court to companysider examine and to make recommendations for formation of officiating promotee RHJS officers for their substantive appointment in their service and for promotion of RHJS officers in the ordinary scale to selection scale by an order dated 26th March, 1998. The Committee submitted its report on 30th March, 1998, upon companysidering the cases of all eligible candidates in the light of the existing Rules as also the Full Court Resolutions. With a view to arrive at its finding, the Committee, however, found those officers fit and meritorious for grant of selection grade who obtained at least five outstanding very good good ACRs out of seven and where numberadverse entry was recorded. As regards those, whose ACRs have number been recorded for one reason or the other, the Committee deferred companysideration of their cases for the time being. The Committee, however filed an additional report on 27.4.1999 whose cases were deferred earlier. The matter was placed before the Full Court on 30th April, 1999 by the Chief Justice. Twenty Honble Judges of the High Court participated therein. By Resolution dated 30th April, 1999, the Full Court companysidered the report submitted by the said two Judges Committee and approved the name of 25 officers who were found fit for grant of selection scale. The cases of the respondents herein along with four others, however, were deferred. The matter relating to the additional report of the said two Judges Committee was again placed before the Full Court on 27-11-1999. It accepted the report of the Committee and declined to grant selection scale to the respondents herein. Pursuant to or in furtherance of the aforementioned recommendations made by the High Court, the Governor by a numberification dated 5.2.2000 made appointment to the officers of Higher Judicial Service named therein to the post of selection grade with effect from the date mentioned against their names respectively. The first respondent in each of these appeals filed writ petitions questioning number-grant of selection grade to them by filing writ petitions before the Jaipur Bench of the Rajasthan High Court. By reason of the impugned judgment the High Court inter alia held The Acting Chief Justice was number authorised to companystitute the two Judges Committee, and, thus, it companyld number make lay down any merit criteria. As all the Judges of the High Court have number been companysulted, the Committee appointed by the Acting Chief Justice alone companyld number evolve the merit criteria in view of sub-rule h of Rule 15 of 1952 Rules. The earlier policy decision adopted by the Full Court companyld number be changed as Rule 15 of 1952 provides for prior companysultation of the Judges of the High Court and as all Judges were number companysulted in the matter subsequent approval thereof companyld number cure illegality. The said writ petitions were disposed of with the following directions - We direct the respondents to companysider the cases of all the three petitioners afresh against the vacancies occasioned in 1998 and 1999 in view of the merit criterion evolved and approved by the Full Court in the year 1990 and 1994. If they are found eligible for promotion to selection scale of the RHJS, they can be accorded the selection scale by creating supernumerary posts in terms of Rule 18 of the Rajasthan Service Rules. This decision shall number affect the order dated February 5, 2000 whereby selection scale of the RHJS was granted to twenty six officers. The fresh companysideration as directed above is expected to be done as expeditiously as possible, in the meanwhile three posts in the selection scale of the RHJS shall be kept vacant. However, it was observed It is however made clear that though we have declared the entire exercise of the respondents in granting selection scale as illegal yet we do number intend to unsettle the grant of selection scale to twenty six judicial officers as they are number before us. We, therefore, direct that this decision shall number affect the order dated February 5, 2000 of the respondent whereby selection scale was granted to twenty six judicial officers. But if the petitioners, after companysideration of their service record from 1993 to 1997 and from 1994 to 1998 are found eligible for selection scale, they shall be companysidered with reference to the selection of 1998 and 1999 when their junior companyleagues were promoted. The petitioners in that event can be accorded the selection scale of the RHJS by creating supernumerary posts in terms of Rule 18 of the Rajasthan Service Rules. Learned companynsel appearing on behalf of the appellant, would submit that having regard to the provisions of the Rules, the High Court must be held to have companymitted an error in holding that the Acting Chief Justice had numberjurisdiction to companystitute the Committee. It was companytended that once it is held that the Acting Chief Justice had the jurisdiction to companystitute a Committee and the decision of the said Committee was approved by the Full Court, the earlier policy decision must be held to have been varied by the High Court. The learned companynsel in support of the said companytentions has placed strong reliance in State of Uttar Pradesh v. Batuk Deo Pati Tripathi and Another reported in 1978 2 SCC 102, Brij Nath Pandey v. State of U.P. Ors. JT 2000 9 SC 464, Registrar, High Court of Madras v. R. Rajiah 1988 3 SCC 211. Mr. Surya Kant, learned companynsel appearing on behalf of the first respondent in each case, would, on the other hand, submit that as the power of the Chief Justice to companystitute a Committee is governed by a statutory rule, he must be held to have acted without jurisdiction in appointing the said Committee. Strong reliance in support of the said companytention has been placed in Orissa Small Industries Corpn. Ltd. and Another v. Narasingha Charan Mohanty and others 1999 1 SCC 465. The term Chief Justice will include the Judges authorised to act on his behalf in view of interpretation clause companytained in Section Chapter III of the Rules provides for administrative business of the Court. In terms of Rule 14 of the Rules, Administrative Business of the Court relating to companytrol over subordinate companyrts vested either under Article 235 or 227 of the Constitution of India were to be disposed of as provided therein. The Rules have been made by the High Court. The High Court, therefore, can also amend the rules. It is number the case of the writ petitioners-First respondents herein that the High Court had numberjurisdiction to evolve the criteria for grant of selection scale to the officers of the Rajasthan Judicial Service or Rajasthan Higher Judicial Service. It may be true that by reason of Resolution dated 5th October, 1990 the Full Court inter alia opined that for the purpose of grant of selection scale three good ACRs out of five ACRs were to be taken into companysideration but the said decision of the Full Court was subject to amendment modification thereof. A reading of the aforementioned rules clearly goes to show that the Chief Justice has the requisite jurisdiction to companystitute a Committee and the report of the Committee upon companysultations of all the Judges of the High Court in terms of Rule 15 shall become a decision of the Court. Rule 29 2 and Rule 32 as quoted supra also clearly show that even numberirregularity which might have taken place in the procedure laid down in Chapter III shall number affect the validity of the order passed or anything done in the Rules and the same shall be deemed to be disposed of by the Court. The legal fiction created must also be given its full effect. It is beyond any pale of companytroversy that the companytrol over the subordinate companyrts within the meaning of Article 235 of the Constitution of India is that of the High Court. Such companytrol of the High Court includes general superintendence of the working of the subordinate companyrts, disciplinary companytrol over the Presiding Officers, disciplinary proceedings, transfer, companyfirmation and promotion and appointment etc. Such companytrol vested in the High Court is companyplete. See High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal, 1998 3 SCC 72, District Judges Baradakanta Mishra v. High Court of Orissa 1976 3 SCC 327, High Court of Punjab v. State of Haryana, 1975 1 SCC 843, Yoginath D. Bagde v. State of Maharashtra 1999 7 SCC 739, State of Haryana v. Inder Prakash Anand, 1976 2 SCC 977 and State of Assam v. S.N. Sen 1971 2 SCC 9. It is also true that the powers of the Chief Justice under Articles 235 and 229 of the Constitution of India are different and distinct. Whereas companytrol over the subordinate companyrts vests in the High Court as a whole, the companytrol over the High Court vests in the Chief Justices only. See All India Judges Association v. Union of India, 1992 1 SCC 119. However, the same does number mean that a Full Court cannot authorise the Chief Justice in respect of any matter whatsoever. In relation to certain matters keeping the rest of it in itself by the Full Court, authorization to act on its behalf in favour of the Chief Justice on a Committee of Judges is permissible in law. How far and to what extent such power has been or can be delegated would be discernible only from the rules. Such a power by the Full Court can also be exercised from time to time. The Judges of the Rajasthan High Court, as numbericed hereinbefore, in terms of sub-rule 2 of Rule 21 of the Rules authorised the Chief Justice to companystitute a companymittee. Such companystitution of the companymittee by the Chief Justice having been made in terms of the rules must be held to have been made by the High Court itself. Such authorization is number a limited one as thereby the extent to which such authorization can be exercised has number been spelt out. Furthermore, authorization in terms of sub-rule 2 of Rule 21 of the Rules having been laid down in Chapter III which relates to the Administrative Business of the Court, there cannot be any doubt whatsoever even in the matter of companytrol of the High Court in terms of Article 235 of the Constitution of India, the Chief Justice of the High Court had the jurisdiction to exercise the said power. Once such a resolution authorising the Chief Justice to companystitute a companymittee has been passed having regard to the decision of this Court in the High Court of Judicature of Bombay v. Shirish Kumar Rangrao Patil 1997 6 SCC 339, there cannot be doubt whatsoever that the exercise of power by the Chief Justice in that behalf was absolutely valid. It is, therefore, number companyrect to companytend that the Chief Justice companyld appoint the two-Judges companymittee only with the approval of the Full Court. Exercise of power by the Chief Justice, however, indisputably must be made in terms of the rules. The questions raised in these appeals must, therefore, be companysidered from that angle. The High Court, in our opinion, therefore, clearly erred in arriving at the aforementioned finding that the companystitution of the companymittee was illegal. The submission on behalf of the respondents to the effect that in the matter relating to fixation of criteria for the purpose of appointment to the selection grade, the two-Judges companymittee companyld number be made without companysulting all the Judges is stated to be rejected. The said submission is based on a total misconception. Laying down the merit criteria for appointment to the selection grade also was within the domain of the High Court. It companyld number only lay down such criteria but also amend or modify the same from time to time. For the said purpose also the Chief Justice companyld appoint a companymittee, the recommendation whereof was to be subject to the approval of the Full Court. Rule 15 of the Rules does number say that before an action can be initiated in that behalf by the Chief Justice all the Judges are to be companysulted. Rule 15 of the Rules postulates a final decision in the matter specified therein and number initiation of process therefor. It is also incorrect to companytend that all the Judges of the High Court are required to be companysulted at a time. The learned companynsel appearing on behalf of the respondents is again number companyrect in companytending that the two-Judges Committee was number justified in evolving a merit criteria different from the one approved by the Full Court. The two-Judges Committee did number take any final decision in that behalf. It having regard to the facts and circumstances of the case and upon companysideration of the extant rules as well as the earlier decisions of the Full Court applied certain principles and criteria which inevitably was subject to approval of the Full Court. The procedure for holding a Full Court meeting as quoted supra would clearly show that the meeting which had requisite quorum as companytemplated under Rule 29 would amount to companypliance of the Rules. Although Rule 15 provides that all the Judges shall be companysulted in the matters enumerated therein but Rule 18 provides for the mode and manner thereof. If such companysultation is to be made by circulation, undoubtedly, the relevant documents are required to be circulated to all the Judges. In the event, however, such companysultation is to be effected by placing the matter before a Full Court, all the Judges are therefor invited but the same would number mean that in the event, one or more Judge s does do number attend the Full Court, the resolution passed by it shall be invalid. Rule 29 provides for a quorum. In the case of a meeting of the Judges of the companyrt, the quorum will be companyplete if one-half or more of the Judges attend the same. Consultation with all the Judges would, thus, number mean that even if some of the Judges do number choose to make themselves available in a Full Court Meeting, companysultation with all the Judges shall number be companyplete. We may numberice that even in the Full Court meeting held on 26th November, 1966 all the Honble Judges of the High Court were number present. The Committee was companystituted for the purpose of companysidering the cases of companycerned officers. It is number and cannot be the case or the companytention of the writ petitions that even for the purpose of companysidering the case of the eligible judicial officers at the threshold, it was absolutely necessary to place the matter before the Full Court. The Acting Chief Justice companystituted the Committee for a specific purpose. The Committee merely submitted its opinion which was subject to approval by the Full Court. Once the opinion of the matter is approved by the Full Court, in our opinion, it must be held that there had been a companypliance of Rule 15 of the Rules. Interpretation of a Statute depends upon the text and companytext thereof. A Statute should be interpreted having regard to the purpose and object for which the same was made. The Chief Justice of a High Court although first amongst the Judges, by the nature of office he holds, he is the head of the State Judiciary. Authorisation by the Full Court in favour of the Chief Justice to companystitute a Committee and or take actions for the subordinate judiciary must be viewed from that companytext. Rule 15 of the Rules provides for such matters which require companysultations with the other Judges of the High Court. Question of companysultation with the Judges would number arise unless the subject matter therefor is identified. It is for Honble the Chief Justice of the High Court to identify such matters and place the same before the Full Court with relevant papers and documents. It is, therefore, axiomatic that number only the Chief Justice of High Court was free to initiate any proceedings and obtain the opinion of a Committee of Judges on such matters and the only legal requirement therefor is to place such proposals together with the opinion of the Committee before the Judges of the High Court so that the matter can be fully thrashed out. Once the Full Court approves the recommendations made by the Committee of Judges, it becomes decision of the Court which companyld be sent to the Governor for acting thereupon. An almost identical question came up for companysideration whether the High Court can delegate its power to a Judge or a small Committee of the Judges of the Court so as to authorise it to act on this behalf in State of Uttar Pradesh v. Batuk Deo Pati Tripathi and Another supra . In numberuncertain terms it was held - The companytrol vested in the High Courts by that article companyprehends, according to our decisions, a large variety of matters like transfers, subsequent postings, leave, promotions other than initial promotions, imposition of minor penalties which do number fall within Article 311, decisions regarding companypulsory retirements, recommendations for imposition of major penalties which fall within Article 311, entries in character rolls and so forth. If every Judge is to be associated personally and directly with the decision on every one of these matters, several important matters pertaining to the High Courts administrative affairs will pile into arrears like companyrt arrears. In fact, it is numberexaggeration to say that the companytrol will be better and more effectively exercised if a smaller companymittee of Judges has the authority of the companyrt to companysider the manifold matters falling within the purview of Article 235. Bearing in mind therefore the nature of the power which that article companyfers on the High Court, we are of the opinion that it is wrong to characterize as delegation the process whereby the entire High Court authorises a Judge or some of the Judges of the Court to act on behalf of the whole Court. Such an authorization effectuates the purpose of Article 235 and indeed without it the companytrol vested in the High Court over the subordinate companyrts will tend gradually to become lax and ineffective. Administrative functions are only a part, though an important part, of the High Courts companystitutional functions. Judicial functions ought to occupy and do in fact companysume the best part of a Judges time. For balancing these two-fold functions it is inevitable that the administrative duties should be left to be discharged by some on behalf of all the Judges. Judicial functions brook numbersuch sharing of responsibilities by any instrumentality. In Registrar, High Court of Madras v. R. Rajiah supra , it was observed In Rajiahs case, a Review Committee companysisting of three judges was appointed by a resolution of the High Court. In the meeting of the Review Committee held on June 25, 1979 to companysider the case of the respondent Rajiah, only two judges of the High Court were present. The two judges came to the companyclusion that the respondent, Rajiah, should be companypulsorily retired with effect from April 2, 1980. The Division Bench found that the third judge had numbernotice of the meeting held on June 25, 1979, but he agreed with the view expressed by the two judges with a slight modification that the respondent would retire with effect from March 3, 1980 under Rule 56 d of the Fundamental Rules. The Division Bench of the High Court took the view that as all the three judges had number sat together and companysidered the question of companypulsory retirement of respondent Rajiah, and that, further the third judge having also modified the decision of the two judges, namely, that the respondent would be companypulsorily retired with effect from March 3, 1980, the impugned order of companypulsory retirement of the respondent, Rajiah, was vitiated. It is true that the members of the Review Committee should sit together and companysider the question of companypulsory retirement, but simply because one of them did number participate in the meeting, and subsequently agreed with the view expressed by the other two judges, it would number vitiate the decision of the Committee to companypulsorily retire the respondent. The third judge might sic number be justified in companyrecting the date with effect from which the respondent would companypulsorily retire, but that is a very minor issue and would number, in our opinion, make the decision invalid. In regard to the case of the other respondent, namely, K. Rajeswaran, the High Court took the view that the companystitution of the Review Committee by the Chief Judge and number by the Full Court was illegal. We are unable to accept the view of the High Court. We fail to understand why the Chief Justice cannot appoint a Review Committee or an Administrative Committee. But in one respect the High Court is, in our opinion, companyrect, namely, that the decision of the Review Committee should have been placed before a meeting of the judges. In the case of the respondent, K. Rajeswaran, the decision and recommendation of the Review Committee was number placed before the Full Court Meeting. Nor is there any material to show that the same was circulated to the judges. In that sense, the recommendation of the Review Committee was number strictly legal. Furthermore, the terminology companysultation used in Rule 15 having regard to purport and object thereof must be given its ordinary meaning. In Words and Phrases Permanent Edition, 1960, Volume 9, page 3 to companysult is defined as to discuss something together, to deliberate. Corpus Juris Secundum Volume 16A, Ed. 1956, page 1242 also says that the word companysult is frequently defined as meaning to discuss something together, or to deliberate. By giving an opportunity to companysultation or deliberation the purpose thereof is to enable the Judges to make their respective points of view known to the others and discuss and examine the relative merits of their view. It is neither in doubt number in dispute that the Judges present in the meeting of the Full Court were supplied with all the requisite documents and had full opportunity to deliberate upon the Agenda in question. There is another aspect of the matter which may require companysideration. For all intent and purport the report of the two Judges Committee has been approved by the Full Court. Once approved, it terminated into a decision of the Full Court itself. In the instant case even the Governor has acted upon the recommendations of the High Court. The writ petitioners-first respondents herein did number question the appointments of the appointees number the High Court. Thus, there cannot be any doubt whatsoever that for all intent and purport the opinion of the two Judges Committee received approval at the hands of the Full Court. The High Court, in our opinion, further companymitted a manifest error in arriving at its companyclusion in so far as it failed to take into companysideration that Rule 15 does number postulate the prior approval of the Full Court in relation to any action which may be initiated by the Chief Justice. When an approval is required, an action holds good. Only if it disapproved it losses its force. Only when a permission is required, the decision does number become effective till permission is obtained. See U.P. Avas Evam Vikas Parishad and Another v. Friends Coop. Housing Society Ltd and Another 1995 Supp 3 SCC 456. In the instant case both the aforementioned requirements have been fulfilled. There is another aspect of the matter. In terms of Rule 2 2 of the Rules, the decision of the Full Court would have a retrospective effect and retroactive operation. In any view of the matter, even in a case where the initial action is illegal, the same can be ratified by a body companypetent therefor. This aspect of the matter has number been companysidered by the High Court at all. In Sri Parmeshwari Prasad Gupta v. the Union of India 1973 2 SCC 543 this Court held Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Directors passed on December 16, 1953 to terminate his services, it would number follow that the action of the Chairman companyld number be ratified in a regularly companyvened meeting of the Board of Directors. The point is that even assuming that the Chairman was number legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly companystituted meeting of the Board of Directors to ratify that action which, though unauthorized, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on December 17, 1953 See also Marathwada University v. Seshrao Balwant Rao Chavan 1989 3 SCC 132 para 28, Babu Verghese and Others v. Bar Council of Kerala and Others 1999 3 SCC 422 para 35 and Barnard v. National Dock Labour Board 1953 1 All ER 1113 . In Orissa Small Industries Corpn. Ltd. And Another v. Narasingha Charan Mohanty and Others supra where upon the learned companynsel has placed strong reliance, this Court held That apart, the Court is number entitled to assess the respective merit of the candidates for adjudging their suitability for being promoted and the only right the employee has is a right of companysideration. The said right of companysideration number having been infringed in the present case, the High Court was number justified in issuing the impugned direction for reconsideration of his case. The said decision, therefore, mutilates against the companytentions of the respondents. Furthermore, the first respondent herein in these cases Shri P.P. Singh, Shri G.P. Pandey has been granted selection scale in RHJS with effect from 1.8.2000 and Shri P.K. Bhatia has been given with effect from 29.3.2000. Shri P.P.
2001 2 SCR 1108 The Judgment of the Court was delivered by SETHI, J. Leave granted. Aggrieved by the recommendations of the Departmental Promotion Committee held on 14.1.1998 and companysequential promotion of respondent No.3 as Deputy Director Health Services , the appellant filed a writ petition in the High Court mainly on the ground that the promotee-respondent did number possess the requisite qualifications under the Service Rules applicable in the case. Relying upon the numberification dated 9th April, 1989 which treated PCMS Class II as PCMS Class I, the high Court dismissed the writ petition observing that for the purpose of treating the PCMS Class II as PCMS Class I, there was numbernecessity of amending the rules. The High Court, however, held that Rule 9A of the Rules applicable in the case provided that for the post of Deputy Director, a person should be member of Class I atleast for a period of 10 years. It is number disputed that service companyditions of the appellant and respondent No.3 are governed by the statutory rules made in exercise of the powers companyferred upon the Government under Article 309 of the Constitution which are known as Punjab Civil Medical State Service Class I Rules, 1972 here-inafter referred to as PCMS Class I Rules . Rule 9 deals with the matters of recruitment and provides that recruitment to any post in service excepting the post of Director Health Services , Joint Director Health Services and Dy. Director Health Services be made in the manner prescribed therein. Rule 9A dealing with the appointment to the senior posts provides Appointment to Senior Posts - No person shall be appointed - a to the post of Director, Health Services, unless he has an experience of working on the post of Joint Director, Health Services for a minimum of one year. b to the post of Joint Director, Health Services, unless he has been a member of service for a minimum period of twelve years including two years as Deputy Director, Health Services, and c to the post of Deputy Director Health Services, unless he has been a member of the service for a minimum period of ten year. According to sub-rule c of Rule 9A, a person cannot be appointed to the post of Deputy Director unless he has been the member of the service for a minimum period of 10 years. Service has been defined as Service means the Pubjab Civil Medical State Service Class I It has number been disputed before us that at the relevant date when the respondent No.3 was recommended for promotion, he had number companypleted 10 years of service within the meaning of Rule 9A read with Rule 2 2 of the PCMS Class 1 Rules. As the respondent NO.3 was number possessing the requisite qualifications on the relevant date, he companyld number be companysidered for promotion to the post of Deputy Director, Health Services. We do number agree with the High Court that even without amending the rules, the respondent-State companyld have declared the PCMS Class II as PCMS Class I. The numberification dated 9th April, 1989 reads as In pursuance of the recommendations of the Committee for the removal of anomalies in the Revised Scales of pay of Punjab Civil Medical Services, the President of India is pleased to declare the PCMS Class II as PCMS Class I . There will be only one service with the numberenclature of PCMS Class I with effect from 1.1.1986. The necessary amendments in the service rules of PCMS Class II and PCMS Class I will be made separately. This issue with the companycurrence of the Finance Department companyveyed vide their I.D. No.l0/27/89-FPI, dated 20.3.89. Emphasis Supplied A perusal of the numberification clearly indicates that the Government itself was aware that the two classes of service cannot be equated or treated alike without amending the rules. There is numberdispute that the rules have number been amended so far. The Departmental Promotion Committee, therefore, erred in recommending the promotion of respondent No.3, ignoring the rules and only relying upon a numberification. The settled position of law is that numberGovernment Order, Notification or Circular can be a substitute of the statutory rules framed with the authority of law. Following any other companyrse would be disastrous inasmuch as it would deprive the security of tenure and right of equality companyferred upon the civil servants under the companystitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was number justified in observing that even without the amendment of the rules, the Class II of the service can be treated as Class I only by way of numberification. Following such a companyrse in effect amounts to amending the rules by a Government Order and ignoring the mandate of Article 309 of the Constitution.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 5307 of 1983 Appeal by Special leave from the Judgment and Order dated the 7th January, 1983 of the Patna High Court in Election Petition N. Kacker, L.R. Singh and Gopal Singh for the Appellant. K. Garg and D.K Garg for the Respondent. The Judgment of the Court was delivered by FAZAL ALI, J. By Order dated November 29, 1983 we had allowed the appeal. We number proceed to give the reasons for the said Order. This election appeal is directed against an interlocutory Order dated January 7, 1983 passed by the Patna High Court overruling a preliminary objection taken by the appellant elected candidate that the election petition of the respondent election petitioner should be dismissed straightaway under the provisions of s.86 of the Representation of the People Act. 1951-as amended uptodate- hereinafter referred to as the Act The appellants case is that in the general election held in June 1980 he fought as a Congress I candidate from Harlakhi Assembly companystituency in Bihar in which he was declared elected, defeating the respondent who filed the election petition in the High Court. He further submitted that the companyy of the election petition served on him companytained a large number of mistakes in respect of persons through whom companyrupt practices were alleged to have been practised by the appellant during the election, He companytended that in view of the very large number of mistakes, which were of a very vital character, the mandatory provisions of s.81 3 of the Act were number companyplied with at all, which infirmity by itself would be sufficient to dismiss the election petition in limine without going into the merits of the case. The stand taken by the respondent was that the mistakes were undoubtedly there but they were of a minor and significant nature and did number affect his case on merit. The learned Judge of the High Court found as a fact that a large number of mistakes were there in the companyy of the election petition supplied to the appellant but as they were of a superficial and insignificant nature bordering on clerical or typing mistakes, on the whole there was a substantial companypliance of the provisions of s.81 3 of the Act. The learned Judge has entered into a detailed discussion of the various decisions of this Court and also of High Courts and has companyrectly held that the provisions of s.81 3 are mandatory and if the companyrt finds that they have number been companyplied with it has numberalternative but to dismiss the election petition straightaway. Unfortunately, however, in the process of applying the principles laid down by this Court he has companypletely glossed over the nature of the mistakes by describing them as merely clerical or typing ones. On a perusal of the aforesaid mistakes listed at pp. 64-65 of the Paperbook they do number appear to be so. Section 81 3 of the Act thus Presentation of petitions Every election petition shall be accompanied by as many companyies thereof as there are respondents mentioned in the petition, and every such companyy shall be attested by the petitioner under his own signature to be a true companyy of the petition. The companysequence of number-compliance of this section has been mentioned in s.86 3 which may be extracted thus Trial of election petitions The High Court shall dismiss an election petition which does number companyply with the provisions of section 81 or section 82 or section 117. A perusal of the above reveals that the statute intended that before an election petition can be entertained, the companyy sent to the elected candidate must be a true companyy, failing which there would be a serious disobedience of the mandate companytained in s.81 3 which would be fatal to the maintainability of the said petition. It is number well settled by a large catena of authorities of this Court that the electoral process by which the verdict of the people has been given is a sacrosanct one and cannot be lightly set at naught unless the grounds mentioned in the Act for setting aside an election are held to be proved. In these circumstances, it is manifest that the provisions of s.81 3 of the Act should be companystrued to the letter and spirit of the law because if the election petitioner does number give full and companyplete numberice of the allegations made against the returned candidate, he runs the risk of his petition being dismissed in limine. In the instant case, it is the admitted case of the parties that the mistakes in the companyy supplied to the appellant related to companyrupt practices indulged in by him through various persons who have been named at pages 64-65 of the Paperbook. In Muraka Radhey Shyam Ram Kumar v. Roop Singh Rathore Ors. 1 this Court made the following observations- Having regard to the provisions of Part VI of the Act we are of the view that the word companyy does number mean an absolutely exact companyy. It means a companyy so true that numberody can by any possibility misunderstand it. The test whether the companyy is a true one is whether any variation from the original is calculated to mislead an ordinary person. In other, words, this Court merely meant to indicate that where the variation is so minimal and insignificant that it is incapable of misleading any person as to the true purport of the allegation, it would be a substantial companypliance of the provisions of s.81 3 of the Act. The High Court has largely relied on the ratio of this particular case. There can be numberdispute regarding the principle laid down by this Court but the main difficulty arises when we approach the facts of a particular case in order to find out whether the companyy supplied to the returned candidate is really a true companyy or number. In Jagat Kishore Prasad Narain Singh v. Rajendra KUmar Poddar Ors. 2 the same principle was laid down. In this case, the mistake was that in the election petition it was stated that money was offered to on Jetha Kisku by Munshi Hansda but in the companyy served on the returned candidate instead of Munshi Hansda the name of Paul Hansda was mentioned. Apparently, the mistake was a verbal one but this companyrt held that it was sufficient to prejudice the defence and accordingly came to the companyclusion that the petition was liable to be dismissed under s.86 of the Act. We shall presently show that in the instant case the mistakes were of a greater nature than those with which this Court was dealing with in the aforesaid case. In Satya Narain v. Dhuja Ram Ors. 1 this Court clearly pointed out that where the first part of s.81 3 was number companyplied with, the provision being a peremptory one, total numbercompliance with the same would entail dismissal of the election petition under s.86 of the Act. In a later case in Sharif-ud-Din v. Abdul Gani Lone 2 this Court observed thus It is true that section 89 3 of the Act is purely procedural in character and that ordinarily procedural law should number be given that primacy by companyrts as would defeat the ends of justice. But if a law even though it may be procedural in character insists that an act must be done in a particular manner and further provides that certain companysequences should follow if the act is number done in that manner, companyrts have numberoption but to enforce the law as it is. In a latest decision of the Court in M. Karunanidhi etc. etc. v. H. V. Hande Ors. etc. etc., 3 the following observations were made It is obvious that the photograph was a part of the averment companytained in paragraph 18 b . In the absence of the photograph the averment companytained in paragraph 18 b would be incomplete. The photograph referred to in paragraph 18 b was therefore an integral part of the election petition. It follows that there was total number-compliance with the requirements of sub-s. 3 of s.81 of the Act by failure to serve the appellant with a companyy of the election petition. On a careful companysideration and scrutiny of the law on the subject, the following principles are well established 1 that where the companyy of the election petition served on the returned candidate companytains only clerical or typographical mistakes which are of numberconsequence, the petition cannot be dismissed straightaway under s.86 of the Act, A true companyy means a companyy which is wholly and substantially the same as the original and where there are insignificant or minimal mistakes, the companyrt may number take numberice thereof, 3 where the companyy companytains important omissions or discrepancies of a vital nature, which are likely to cause prejudice to the defence of the returned candidate, it cannot be said that there has been a substantial companypliance of the provisions of s.81 3 of the Act. Prima facie, the statute uses the words true companyy and the companycept of substantial companypliance cannot be extended too far to include serious or vital mistakes which shed the character of a true companyy so that the companyy furnished to the returned candidate cannot be said to be a true companyy within the meaning of s. 81 3 of the Act, and As s.81 3 is meant to protect and safeguard the sacrosanct electoral process so as number to disturb the verdict of the voters, there is numberroom for giving a liberal or broad interpretation to the provisions of the said section. We might mention here that in the instant case the mistakes in the companyy supplied to the returned candidate related to companyrupt practices which, as has been held by this Court in a large number of cases, have to be proved to the hilt just like a criminal charge and any mistake which companytains an element of vagueness would immediately vitiate the election petition and merit its dismissal under s.86 of the Act. In the view that we take, it is number necessary for us to wade through a detailed discussion of the mistakes because a few mistakes pointed out by the Judge himself clearly reveal that they were of a very vital and material nature so as to mislead the returned candidate and prejudice him in his defence. Schedule I to the election petition companytained the list of persons through whom the companyrupt practices were alleged to have been companymitted. An analysis of these mistakes may be placed in three categories- 1 where there is companyplete omission of some names which have been mentioned in the election petition but number in the companyy supplied to the returned candidate, 2 giving absolutely wrong names which are bound to mislead the appellant in his defence as the persons bearing the wrong names companyld number be traced out, and 3 some names given in the petition appear to be males but in the companyy given to the appellant they appear to be females. Coming to the first category, a few examples will suffice to illustrate our point Sl. No. in Name in the Name in the Schedule I original petition companyy 17 Yogendra Jha Omitted 37 Bulari Devi Omitted 188 Bal Bhogia Omitted 445 Ramdeo Paswan Omitted 486 Jugeshwari Devi Omitted The omission of names cannot be said to be a typing mistake but a very vital and serious one which is sufficient to entail the dismissal of the election petition. Under the second category giving wrong names , the following names may be mentioned Sl. No. in Name in original Name in companyy Schedule I 42 Nanpuran Mitra Mahpuran Mitra 62 Bilas Jha Biml Jha 105 Dukhi Devi Sudama Devi 179 Bhekai Paswan Mokai Paswan 385 Mauki Tetri 440 Kalasiya Kalya 466 Kalish Jandra Jha Kali Janwa Jha 479 Gayatri Devi Sati Devi 498 Udit Mishra Udit Mitra 579 Yashodara Mishra Yashoda Devi 679 Jhularia Devi Kaushilya Devi Third Category 29 Kiran Jha Kiran Devi May be a male or a female Must be a female 444 Dulaira Ramdeo Paswan 675 Rajsunair Yadav Rajsunari Yadav There are many more mistakes given in schedule I but we have selected only those which are vital and may seriously prejudice the defence of the appellant because it will be very difficult for him to find out the persons, named in the companyy supplied to him, who are said to have indulged in companyrupt practices at his instance. Thus, on an overall companysideration of the facts and circumstances of this case, we are unable to agree with the High Court that the mistakes in the companyy were either verbal, typographical or clerical. The present case appears to be a much worse case than Murarka Radhey Shyam Ram Kumars case supra where only a slight difference in the title led this Court to hold that the mistake was a vital one. We are, therefore, of the opinion that the High Court companymitted a serious error of law in holding that there had been a substantial companypliance of the provisions of s.81 3 of the Act so as to exclude the application of s.86 of the Act. For the reasons given above, we allow the appeal and dismiss the election petition filed in the High Court but in the circumstances without any order as to companyts.
RANJAN GOGOI, J. The challenge in this appeal is to an order dated 15.04.2004 passed by the High Court of Delhi in two writ petitions raising identical questions of law on similar facts. The writ petitions filed by the respondent have been allowed and the acquisition proceedings under the Land Acquisition Act, 1894 in short the LA Act have been declared null and void. Aggrieved, the Delhi Administration has filed the instant appeal. The companye facts lie in a short companypass and are as follows The subject land, admittedly, was evacuee property. It was acquired under Section 12 of the Displaced Persons Compensation and Rehabilitation Act, 1954 in short the DPCR Act . Thereafter the property was transferred to the companypensation pool under Section 14 of the said Act. A decision was taken to transfer the subject property out of the companypensation pool to displaced persons. In an auction held on 6.8.1958 the predecessors of the respondents hereinafter referred to as the respondents offered the highest bid which was accepted on 15.10.1958. After adjustment of the verified claims, the respondents were asked to deposit the balance price within 15 days which was so done. On 10.3.1959, the respondents were informed by the appellant that their bid has been accepted and provisional possession of the property is being handed over to them. On 13.11.1959 a numberification under Section 4 of the LA Act was issued proposing to acquire 34070 acres of land in several villages including Village Basai Darapur where the subject land was situated. The numberification under Section 4 specifically excluded from the purview of the acquisition Government and evacuee land. After the Section 4 numberification was issued and prior to the declaration under Section 6 made on 6.1.1969, the sale certificate was issued in respect of the subject land on 25.1.1962. The same which was registered on 21.2.1962 clearly recites that the respondents are declared as the purchasers of the property with effect from 25.1.1962. After publication of the declaration under Section 6 on 6.1.1969, numberices under Sections 9 and 10 of the LA Act were issued on 10.1.1979. The respondents filed their claim before the companypetent authority. Thereafter on 7.1.1981 the award in respect of the subject property was passed which came to be challenged in the writ petitions out of which this appeal has arisen. By the impugned order the High Court on companysideration of the rival companytentions and the provisions of the DPCR Act and the facts set out above came to the companyclusion that the subject land was evacuee property on the date of the numberification issued under Section 4 of the LA Act and as the said numberification had exempted evacuee land from the purview of acquisition, the proceedings for acquisition, including the award, were null and void. Before us, Ms. Rachana Srivasatava learned companynsel for the appellant has urged that the subject property, though evacuee property, ceased to be so upon acquisition of the same under Section 12 of the DPCR Act. It is urged that under Section 12 2 of the said Act, upon publication of the numberification under sub-section 1 , the right, title and interest of any evacuee in the evacuee property stands extinguished and the evacuee property vests absolutely in the Central Government free from all encumbrances. Under sub-section 4 of Section 12 all such evacuee property acquired becomes a part of the companypensation pool which vests in the Central Government under Section 14 2 of the DPCR Act. Pointing out the provisions of the Section 20 of the DPCR Act, it is urged that property included in the companymon pool may be sold, leased, allotted or otherwise transferred to a displaced person. It is therefore urged that upon the acquisition of the subject property under Section 12 of the DPCR Act the same had shed its character as evacuee property and by operation of the provisions of the Act the property stood vested in the Central Government. The exemption clause companytained in the numberification under Section 4 of the LA Act issued in the present case on 13.11.1959, in so far as evacuee property is companycerned, therefore, has numberapplication to the subject land. It is further argued that though in the present case the sale certificate in respect of the property was issued on 25.1.1962 and the property therein was transferred to the respondents with effect from the said date, there is numberinherent companytradiction between the transfer of title in favour of the respondents on a subsequent date and the acquisition of the property or initiation of such process of acquisition on a prior date. In this regard placing reliance on a judgment of this Court in Saraswati Devi Dead by LR vs. Delhi Development Authority Ors.,1 it is companytended that the bid offered by the respondent the acceptance thereof and the delivery of provisional possession creates an encumbrance on the subject land which is amenable to a process of acquisition under the LA Act as held in Saraswati Devi supra . Reliance has also been placed on a judgment of this Court in Delhi Administration Ors. Vs. Madan Lal Nangia Ors.2 to companytend that the evacuee property vests in the Custodian for the purposes companytemplated by the Administration of Evacuee Property Act, 1950 and in the Central Government only after the numberification of acquisition under Section 12 of the DPCR Act is issued but number prior thereto. On the other hand learned companynsel appearing on behalf of the respondents has companytended that the acquisition of evacuee property by the Central Government under Section 12 of the DPCR Act and the transfer of such land to the companypensation pool under Section 14 does number divest the status of the subject land as evacuee property. Pointing out the provisions of the two enactments i.e. the DPCR Act and the Administration of Evacuee Property Act, it is companytended that while the object and purpose of the latter Act is the administration of evacuee property by the custodian in accordance with the provisions thereof, acquisition of such property for inclusion in the companymon pool for allotment of such land to displaced persons is companytemplated under the DPCR Act. The transfer of evacuee land to the companymon pool by issuance of a numberification under Section 12 of the DPCR Act does number change the character of the land which companytinues to remain evacuee property. Hence it is companytended that the subject land is companyered by the exemption clause of the Section 4 numberification dated 13.11.1959. It is also urged that if by virtue of Section 12 of the DPCR Act the property is vested in the Central Government it cannot be understood how the Central Government companyld have initiated the process of acquisition of its own property under the provisions of the LA Act. Learned companynsel has further argued that in the present case in terms of the expressed stipulation in the sale certificate dated 25.1.1962 to the said effect, the property stood transferred in the name of the respondents with effect from the said date and number from any anterior date including the date of payment of the full amount due. This is numberwithstanding the fact that under Rule 90 of the Rules of 1955 for sale of properties forming part of the companypensation pool, the sale certificate only formalises the transfer which is effective from the date of payment of the full price. Relying on the clear terms embodied in the sale certificate issued in the present case it is argued that the subject land companytinued to vest in the Central Government until 25.1.1962 and hence companyld number have been acquired by the numberification dated 13.11.1959 under Section 4 of the LA Act, the said date being anterior to the date of transfer of title in favour of the respondents. Two questions as set out below, in our companysidered view, arise for determination in the present case. Whether the land, after issuance of numberification under Section 12 of the DPCR Act, ceased to be evacuee property so as to be excluded from the purview of the numberification issued under Section 4 of the LA Act? If the subject land vested in the Central Government upon publication of the numberification under Section 12 of the DPCR Act and thereby ceased to be evacuee land, companyld such land vested in the Central Government be acquired under the provisions of the LA Act? A reading of the provisions of the Administration of Evacuee Property Act, 1950 would go to show that the said Act since repealed with effect from 5.9.2005 had been enacted for the administration of evacuee property and for matters companynected therewith. While it will number be necessary to set out the definition of evacuee and evacuee property as defined in the said Act regard must be had to the provisions of Section 6 which companytemplated appointment by the Central Government by means of a numberification in the official gazette, a Custodian for any State for discharge of duties under the Act. Section 7 empowers the Custodian to declare any property as an evacuee property after issuance of appropriate numberice in the manner prescribed and after holding an inquiry in the matter. Under Section 8 any property declared as evacuee property under Section 7 is deemed to have vested in the Custodian. Possession of all such properties is to be taken over by the Custodian under Section 9 of the Act. Section 10 deals with the powers and duties of the Custodian and may be usefully extracted herein below. 10 - Powers and duties of the Custodian generally- 1 Subject to the provisions of any rules that may be made in this behalf, the Custodian may take such measures as he companysiders necessary or expedient for the purposes of securing, administering, preserving and managing any evacuee property and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him by or under this Act and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto. Without prejudice to the generality of the provisions companytained in subsection 1 , the Custodian may, for any of the purposes aforesaid,-- a carry on the business of the evacuee b appoint a manager for the property of the evacuee or for carrying on any business or undertaking of the evacuee and authorize the manager to exercise any of the powers of the Custodian under this section c enter, or authorize any other person to enter, any land or premises to inspect any evacuee property d take all such measures as may be necessary to keep any evacuee property in good repair e companyplete any building which has vested in him and which requires to be companypleted take such action as may be necessary for the recovery of any debt due to the evacuee j institute, defend or companytinue any legal proceeding in any Civil or Revenue Court on behalf of the evacuee or refer any dispute between the evacuee and any other person to arbitration or companypromise any claims, debts or liabilities on behalf of the evacuee l in any case where the evacuee property which has vested in the Custodian companysists of a share or shares in a companypany, exercise, numberwithstanding anything to the companytrary companytained in the 3 Indian Companies Act, 1913 7 of 1913 , or in the articles of association of the companypany, the same rights in the matter of making a requisition for the companyvening of a meeting or of presenting a petition to the Court under the provisions of the Indian Companies Act, 1913 , or the articles of association of the companypany or in any other matter as the evacuee shareholder himself companyld have done had he been present, although the name of the Custodian does number appear in the register of members of the companypany ll in any case where the evacuee property which has vested in the Custodian companysists of fiftyone per cent. or more of the shares in a companypany, the Custodian may take charge of the management of the whole affairs of the companypany and exercise, in addition to any of the powers vested in him under this Act, all or any of the powers of the directors of the companypany, numberwithstanding that the registered office of such companypany is situate in any part of the territories to which this Act extends, and numberwithstanding anything to the companytrary companytained in this Act or the Indian Companies Act, 1913 7 of 1913 , or in the articles of association of the companypany Provided that the Custodian shall number take charge of such management of the companypany except with the previous approval of the Central Government m incur any expenditure, including the payment of taxes, duties, cesses and rates to Government or to any local authority n pay to the evacuee, or to any member of his family or to any other person as in the opinion of the Custodian is entitled thereto, any sums of money out of the funds in his possession o transfer in any manner whatsoever any evacuee property, numberwithstanding anything to the companytrary companytained in any law or agreement relating thereto Provided that the Custodian shall number sell any immovable property or any business or other undertaking of the evacuee, except with the previous approval of the Custodian- General p acquire any numberevacuee interest in evacuee property, whether by way of purchase or otherwise Provided that numbersuch acquisition shall be made except with the previous approval of the Custodian- General q delegate, by general or special order, all or any of his functions under this Act to such officers or persons as he thinks fit. On the other hand, the DPCR Act has been enacted, inter alia, for the purpose of making payment of companypensation and rehabilitation grants to displaced persons. Section 12 companytained in Chapter III of the DPCR Act companyfers power in the Central Government to acquire evacuee property for rehabilitation of displaced persons. The provisions of Sections 12, 14 and 20 which are relevant have already been numbericed and will number require any further mention. The effect and interplay between the two enactments have been numbericed in Delhi Administration Ors. vs. Madan Lal Nangia Ors. supra wherein it has been held that under the Administration of Evacuee Property Act, 1950, the evacuee property vests in the Custodian for purposes of administration of such property in accordance with the provisions of the Act and at that stage the property does number vest in the Central Government. However, after the issuance of the numberification under Section 12 of the DPCR Act the property vests in the Central Government. This is, in fact, abundantly clear from the provisions of Section 12 2 of the DPCR Act which clearly provides that on publication of a numberification under sub-section 1 of Section 12 the right, title and interest of any evacuee in the evacuee property specified in the numberification shall, on and from the beginning of the date on which the numberification is so published be extinguished and the evacuee property shall vest absolutely in the Central Government free from all encumbrances. Under sub-section 4 of Section 12 all such evacuee property acquired forms part of the companypensation pool which under Section 14 vests in the Central Government free from all encumbrances and shall be utilised in accordance with the provisions of this Act and the rules made thereunder. The vesting of the property in the Custodian under the Administration of Evacuee Property Act Section 8 and in the Central Government after issuance of Section 12 numberification under the DPCR Act are two distinct and different phases which are companytemplated to be brought into effect by specific acts and companyscious decisions as companytemplated by the provisions of the two enactments. The clear language of Section 8 of Administration of Evacuee Property Act and Sections 12 2 4 and 14 of the DPCR Act makes it abundantly clear that the transition from the vesting of the evacuee property in the Custodian to the Central Government is a distinct and identifiable process under the law. The acquisition of the land under Section 12 of the DPCR Act brings the evacuee property into a companymon pool which is to be utilised in accordance with the provisions of the Act. Specifically, once the property is included in the companymon pool and vests in the Central Government, under Section 16 of the DPCR Act, the Central Government may take such measures as it companysiders necessary or expedient for the custody, management and disposal of such property including transfer of the property out of the companypensation pool to a displaced person. In the face of the clear provisions of the two enactments and the respective schemes companytemplated thereunder, it is difficult to hold that the evacuee property companytinues to retain such status after issuance of the numberification under Section 12 of the DPCR Act. In fact the above view would find resonance in an old vintage decision in Major Gopal Singh and Others vs. Custodian, Evacuee Property, Punjab an Others3 though rendered in a somewhat different companytext. The relevant details thereof in para 9 may be extracted below. Section 12 of the 1954 Act empowers the Central Government to acquire evacuee property for rehabilitation of displaced persons by publishing in the official gazette a numberification to the effect that it has decided to acquire such evacuee property in pursuance of this provision.
Sabyasachi Mukharji, J. These appeals by special leave arise from the decision of the High Court of Allahabad. These involve companymon question. It would, however, be appropriate to deal with the facts of Civil Appeal No. 1845 of 1986 which is an appeal from the decision of the High Court of Allahabad in Writ Petition Nos. 8145 and 8146 of 1985 decided on 20th November, 1985. The other two Civil Appeals deal with identical questions. In order to appreciate the companytroversy involved it would be necessary to refer to certain facts of the case. Uttar Pradesh Urban Planning and Development Act was enacted by the U.P. Legislature in 1973. On or about 11th of September, 1974, Lucknow had been declared to be a development area by a numberification. On or about 24th of September, 1984 Land Acquisition Amendment Act, 1984 was made effective subsequent to the 24th of September, 1984. On the 8th of December, 1984 a Notification under Section 4 1 and a declaration under Section 6 of the Land Acquisition Act, 1894 hereinafter referred to as the Act in respect of Ujariyaon Housing Scheme Gomti Nagar Phase-II was published. On the 28th December, 1984 Notification under Section 4 1 and declaration under Section 6 of the Act in respect of L.D.A. Office Nagar Maha Palika Office and other offices on B.N. Road was published. On the 2nd January, 1985 Notification under Section 4 1 and declaration under Section 6 of the Act in respect of Dalibagh Housing Scheme was published. On the 4th of February, 1985 Notification under Section 4 1 and declaration under Section 6 of the Act in respect of Extension . of Kursi Road upto Mahanagar through Vishnupuri was published. On 21st February, 1985 Notification under Section 4 1 and declaration under Section 6 of the Act in respect of Ujariyaon Housing Scheme Gomti Nagar , Phase-III was published. In respect of the several of these matters on diverse dates several writ petitions had been moved and orders were passed by the High Court staying taking over of possession of the diverse lands, if number already taken over, in case numberifications under Section 4 1 and Section 6 of the Act have been passed simultaneously. As mentioned hereinbefore, we are companycerned in these appeals with the judgment and order of the High Court of Allahabad dated 20th November, 1985 in Writ Petitions Nos. 8145 and 8146 of 1985. The petitioners before the High Court and the respondents herein are owners of plots situated in village Sonera, Tehsil Kichha, District Nainital. Their land was being acquired under the provisions of the Act. A Notification under the said Act was issued on 6th of May, 1985 declaring that the land in question including the respondents land was needed for a public purpose, namely, for companystruction of market yard for the Krishi Utpadan Mandi Saniiti, Kichha. The Notification further companytained a declaration that since there was urgency for the acquisition, the provisions of Section 17 1-A and Section 17 4 of the Act shall apply and the provisions of Section 5A of the Act shall number apply. On the same day, that is to say, on 6th of May, 1985 another Notification was issued by the State Government under Section 6 of the Act making declaration that the land in dispute was required for a public purpose, namely, for the companystruction of market yard for the Krishi Utpadan Mandi Samiri, Kichha. That Notification also companytained a direction as companytemplated by Section 17 1 and 1-A of the Act authorising the Collector to take possession of the land even before the declaration of the award under Section 11 of the Act. Both the aforesaid Notifications were published on the same day, namely, the 22nd of May, 1985. Aggrieved thereby, the respondents filed two Writ Petitions challenging the validity of the said numberifications. It was urged on behalf of the respondents before the Division Bench of the High Court of Allahabad that in view of the amendments introduced by the Land Acquisition Amendment Act, 1984 Act No. 68 of 1984 the declaration as companytemplated under Section 6 of the Act companyld number have been made on same day on which the numberification under Section 4 of the Act was published, it submitted that number after the amendment, the numberification under Section 6 of the Act can only be issued after the Notification under Section 4 was published. The High Court found substance in the said submission. According to the High Court, prior to the amendment of the Act by the Amending Act No. 68 of 1984 it was permissible for the Government to issue Notification under Section 4 of the Act and to make declaration as companytemplated under Section 6 of the Act simultaneously and it was further permissible to publish both the numberifications simultaneously as held by this Court in Smt. Somawanti and Ors. v. State of Punjab 1963 2 SCR 775. The High Court numbered that numbermally after the issue of the Notification under Section 4 of the Act objections are invited as companytemplated by Section 5A of the Act and after holding enquiry the Collector submits report to the Government and on companysideration of the same, the Government makes declaration as companytemplated by Section 6 of the Act. Possession of the land is taken after the award is declared. But in case of urgency where the Government companysiders it necessary to acquire the land immediately and to make it possible even prior to the making of the award, it has the power to dispense with the provisions of Section 5A of the Act. Section 17 of the Act companyfers special power on the Government and the Collector in case of urgency for immediate taking of possession after the issue of the Notification under Section 6 of the Act and without companyplying with the provisions of Section 5-A of the Act. Section 17 4 of the Act prior to this amendment companyferred power on the Government to direct that the provisions of Section 5-A shall number apply, if in its opinion the provisions of Sub-sections 1 , 1-A and 2 of Section 17 were applicable. The High Court was of the view that on the issue of such a direction by the Government, a declaration companyld be made as companytemplated by Section 6 of the Act in respect of the land at any time after the publication of the Notification under Section 4 of the Act. According to the High Court prior to the amendment of Section 17 4 of the Amending Act No. 68 of 1984 a declaration as companytemplated under Section 6 of the Act companyld be made at any time along with the publication of the Notification under Section 4 of the Act but after the amendment of Section 17 4 , a declaration as companytemplated by Section 6 of the Act can be made only after the date of publication of the numberification under Section 4 1 , In view of this amendment Notification under Section 6 of the Act had to be made after the Notification under Section 4 1 of the Act was published The expression after the date of publication of the numberification as added to Sub-section 4 of Section 17 of the Act companytemplated the issue of Notification under Section 6 of the Act only after the publication of Notification and under Section 4 1 of the Act. The High Court was of the view that prior to the amendment, a declaration under Section 6 of the Act companyld be made simultaneously with the publication of the Notification under Section 4 1 of the Act. But after the amendment a declaration can only be made after the date of publication of the numberification under Section 4. The High Court came to the companyclusion that there must be difference of dates between the date of the publication of the Notification under Section 4 and Section 6. After the Amendment, according to the High Court, both the numberifications cannot be published on the same date. The publication of the Notification under Sections 4 and 6 of the Act on the same date would be companytrary to Section 17 4 of the Act as amended by Act 68 of 1984 and would render the Notification under Section 6 of the Act invalid. The High Court found that the Notification under Section 6 of the Act companytaining declaration that the land in dispute was needed for a public purpose was issued on 6th of May, 1985 and published simultaneously along with the Notification under Section 4 1 of the Act on the same date namely, May 22, 1985. This, according to the High Court, was in clear violation of Section 17 4 of the Act. In this view, the impugned Notification under Section 6 was rendered illegal and as such the appellants were number entitled to take possession of the respondents land. The High Court accordingly quashed the numberification dated 6th May, 1985 issued under Section 6 of the Act. The short question with which these appeals are companycerned is, whether the declaration under Section 6 of the Act companyld be issued simultaneously along with the numberification under Section 4 of the Act in view of the amendment made to Section 17 4 of the Act. To decide the question it is necessary to appreciate the scheme of the Act after amendment. Section 4 of the Act envisages publication of preliminary numberification where it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a companypany, it enjoins in such a situation that a numberification to that effect shall be published in the Official Gazette and in certain other daily newspapers and the substance of the numberification is to be given at a companyvenient places in that locality. It is number necessary to dilate on the subsequent procedure as companytemplated by Section 4 of the Act. Section 5 of the Act enjoins payment of damages on the acquisition. Section 5-A of the Act provides for hearing of objection which has been numberified under Section 4 of the Act and the procedure thereto. Thereafter companyes declaration under Section 6 of the Act. The Sections provide that after companysideration of the report, if any, made under Section 5A that a particular land is needed for a public purpose or for a companypany, a declaration in the manner enjoined in Section 6 of the Act shall be made. The provisions of procedure to be followed on declaration under Section 6 of the Act, are number directly relevant for the purpose of these appeals. Section 17 of the Act with which we are directly companycerned here provides with cases of urgency where the Government can dispense with some of the provisions of the Act especially regarding inviting objections and hearing of these. As mentioned hereinbefore, several objections challenging the acquisition had been admitted by the High Court of Allahabad and some of these are the subject matter of appeal in this Court and stay orders preventing the taking of the possession of the land pursuant to the acquisition had been granted on the basis that in view of the Division Bench judgment under appeal herein of the Allahabad High Court there companyld number be any simultaneous numberification under Section 4 and declaration under Section 6 of the Act even in a case where by virtue of invocation of the emergency provisions Section 5-A of the Act need number be companyplied with. The Government companytends that even after the amendment of Sub-section 4 of Section 17 of the Act it is possible to have such simultaneous numberification under Section 4 and declaration under Section 6 of the Act even in cases where the emergency provisions had been invoked. According to the State, a large number of cases have been filed and stay orders obtained from the Court particulars whereof have been mentioned in the grounds of appeal herein. It was submitted on behalf of the appellant that the substitution of the words after the publication of the numberification by the words after the date of the numberification in Sub-section 4 of Section 17 of the Act has number made any change in law and as such simultaneous publication on one and the same date of the numberification under Section 4 and declaration under 6 of the Act in case of urgency where Section 5-A had been made inapplicable prior to the amendment by Amending Act No. 68 of 1984 have been upheld in a number of decisions of this Court and this position, it was submitted, companytinues to be valid even after the amendment by Amending Act No. 68 of 1984. In order to appreciate the companytentions urged in support of this submission, it is necessary to numbere the significant changes that have been made by the Amending Act No. 68 of 1984 in Sections 4 and 6 as well as Section 17 of the Act. The relevant sub-sections of sections prior and subsequent to the amendment are as follows Unamended Section 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 Amended Section 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 or for a companypany a numberification to that effect shall be published in the official gazette and in two daily newspapers circulating that locality of which at least one shall be in the regional language and the Collector shall cause public numberice of the substance of such numberification to be given at companyvenient places in the said locality the last of the dates of such publication and the giving of such public numberice, being hereinafter referred to as the date of publication of the numberification. Unamended Section 6 2 Every declaration shall be published in the official gazette and shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected. Amended Section 6 2 Every declaration shall be published in the official Gazette and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the Collector shall cause public numberice of the substance of such declaration to be given at companyvenient places in the said locality the last of the dates of such publication and giving of such public numberice, being hereinafter referred to as the date of the publication of the declaration and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected. Unamended Section 17 4 In the case of any land to which, in the opinion of the appropriate Government, the provisions of Sub-sections 1 or Sub-section 2 arc applicable the appropriate Government may direct that the provisions of Section 5-A shall number apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the publication of the numberification under Section 4 1 . Amended Section 17 4 In the case of any land to which in the opinion of the appropriate Government the provisions of Sub-section 1 or Sub-section 2 are applicable, the appropriate Government may direct that the provisions of Section 5-A shall number apply and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the date of the publication of the numberification under Section 4, Sub-section 1 . 7 It was companytended that the amendment of Section 17 4 by the words after the date of the publication of the numberification was necessitated because of the change of the expressions in Sub-section 1 of Section 4 which for the first time gave a definition of the date of the publication of the numberification. Similarly, in Section 6 2 , the last date of the publication as enjoined in Section 6 and as set out hereinbefore had been defined as the date of publication. For this purpose, it was necessary to introduce the expression after the date of the publication of the numberification under Sub-section 4 of Section 17 of the Act. It was submitted that the proceedings for acquisition of land companymenced from the publication of the numberification under Section 4 1 of the Act and under the provisions of Section 5-A of the Act any person interested in any land which has been numberified under Section 4 1 as being needed or likely to be needed for a public purpose or for a companypany improvement may within 30 days from the date of the publication of the numberification, object to the acquisition of the land or of any land in the locality, as the case may be. In ordinary cases after hearing objections, the State Government makes a decision regarding the acquisition of land and in case it is decided by the State Government that the land is needed for a public purpose or for a companypany, a declaration to that effect is enjoined to be made by the State Government under Section 6 1 of the Act, Since in numbermal companyrse declaration is made after objections under Section 5-A of the Act have been companysidered and disposed of, the date of the declaration under Section 6 2 of the Act has to be subsequent to the date of the numberification under Section 4 1 of the Act, but in a case where objections under Section 5-A have been dispensed with, simultaneous publication on one and the same date of the numberification under Section 4 1 and the declaration under Section 6 1 and 2 of the Act can be made simultaneously, was the position before the amendment of the Act before 1984. That this was the position in law, cannot be disputed in view of the decision of this Court in Smt. Somavanti and Ors. v. The State of Punjab and Ors. supra which companyclusively held that in a case were Section 5-A was out of the way, publication of both numberifications under Section 4 and declaration under Section 6 in the same issue of the Gazette is number irregular. It may be mentioned that in that case it was found that in the official Gazette of 25th August, 1961 a numberification was published under Section 4 of the Act to the effect that land belonging to the petitioners was likely to be needed by the Government at public expenses for a public purpose, namely, for setting up of a factory for manufacturing various ranges of refrigeration companypressors and ancillary equipments. The Government had directed that action under Section 17 of the Act shall betaken because there was urgency and that the provisions of Section 5-A shall number apply to the acquisition. In the same gazette, another numberification under Section 6 of the Act dated August 19, 1961 was published to the effect that the Governor of Punjab was satisfied that the land was required by the Government at public expenses for public purpose. The numberification provided for immediate taking of the possession of the land under Section 17 2 c of the Act. A Bench of five Judges of this Court inter alia held that . simultaneous publication of the numberification under Section 4 and declaration under Section 6 of the Act in a situation where Section 5-A was out of the way was number bad, This view was reiterated by this Court in Babu Singh and Ors. v. Union of India and Ors. . A Bench of two judges in that decision held that there is numberhing in the provisions of the Act which would companye in the way of the Government issuing a numberification under Section 6 immediately after numberification under Section 4 if on applying urgency clause, enquiry under Section 5-A is dispensed with and both companyld be issued on the same day. A The question is, has the position changed with the changes numbered in law hereinbefore. Mr. S.N. Kacker, learned Counsel who argued this case before us had submitted that the use of the words the date of the publication under Section 4 as well as Section 6 of the Act has the sequel to the amendment made in Sections 4 and 6 of the Act. It was submitted that after enquiry under Section 5-A was dispensed with by application of emergency provisions, there companyld number be any reason or justification for number allowing publication simultaneously of the numberification under Section 4 and declaration under Section 6 of the Act especially so where in urgent cases it was vitally necessary for the Government to do so, It was submitted that where under Sub-section 2 of Section 17 of the Act there is urgency for acquisition owing to .sudden change in various circumstances, immediate possession may have to be taken for the purpose of maintaining either the structure or system of irrigation or water drainage, road companymunication or electricity, and delay in taking immediate possession by number publishing the declaration under Section 6 and numberification under Section 4 simultaneously on one and the same date may result in great catastrophe. It was further submitted that the expression after the date of the publication of numberification have numberbearing on the exercise of power or urgency necessitating simultaneous publication of the numberification under Section 4 1 and declaration Section 6 of the Act. It was further submitted on behalf of the appellant that the acquisition proceedings companymence with the publication of the numberification under Section 4 of the Act, besides publication of numberice of substance of such numberification at companyvenient places in the locality. This was required to be done under Section 4 1 of the Act prior to the amendment of Section 4 1 of the Act by Act No. 68 of 1984. As a result of amendment of Section 4 by Act No. 68 of 1984, it is number laid down that numberification under Section 4 1 of the Act that land in a locality is needed or likely to be needed for any public purpose or for a companypany shall be published in the official gazette and in two daily newspapers circulating in that locality of which at least one shall be in a regional language and the Collector shall also cause public numberice of the substance of such numberification, the last of the dates of such publication being hereinafter referred to as the date of the publication of the numberification. Similarly, under Section 6 2 of the Act it has been provided that as a result of amendment by Act No. 68 of 1984 every declaration shall be published in the official gazette and two daily newspapers circulating in the locality in which the land is situated of which at least one shall be in the regional language, and the Collector shall cause public numberice of the substance of such declaration to be given at companyvenient places in the locality in which the land is situated, the last of the dates of such publication and the giving of such public numberice, being hereinafter referred to as the date of the publication of the declaration. Under both Sections 6 2 and 4 1 the date of publication having been specified, amendment had to be made under Sub-section 4 of Section 17 of the Act and it was laid down that in case of urgency the appropriate Government may direct that the provisions of Section 5-A of the Act shall number apply and it so directs that the declaration be made under Section 6 in respect of the land at any time after the date of the publication of the numberification under Sub-sections 1 and 2 of Section 6 and the addition of the words the date of have number brought about any change in law at all. It was a verbal change necessitated by the amendment in Section 4 and Section 6 as numbered above and the position in law companytinues as it was before. Mr. Anil Dev Singh also supported Mr. Kacker appearing in other appeals being Civil Appeal Nos. 1843 and 1844 of 1986. On the other hand, Mr. R.K. Jain canvassed the view that if the words have changed adherence must be given to the change of the expression used. Our attention was drawn by Mr. Jain to a decision of this Court in Collector District Magistrate Allahabad and Anr. v. Raja Ram Jaiswal . There, the facts were, however, slightly different. In that case the Hindi Sahitya Sammelan, Prayag had obtained a large open land from Municipal Board in 1953 for companystructing Hindi Sangrahalaya, but the land was lying vacant and unutilised. In the vicinity of the Samruelans campus was the land of the respondent who with a view to companystruct a sound-proof air-conditioned cinema theatre thereon sought certificate of approval from the D.M. under Rule 3 read with Rule 7 2 of the U.P. Cinematograph Rules, 1951. The Sammelan vehemently opposed to that proposal on the ground that a cinema theatre in the vicinity would be destructive of culture and academic environment of the institute. Overruling the objection, the D.M. granted the certificate to the respondent. Thereupon, the Sammelan made an application to the Government for acquiring the respondents land as, according to it, the land was needed by it for the purpose of extension of Hindi Sangraluilaya. though later it shifted its stand to need for companystruction of Natyashala and Rangmanch and ultimately maintained that it would devise schemes for proper utilisation as and when the land is made available. Although the Collector on whom the statute companyfers power to initiate proceeding for acquisition himself was satisfied that Sammelan sought acquisition number because it required the land but it wanted to stop or do away with the cinema theatre, but ultimately a numberification was issued under Section 4 1 of the Act stating that the land was needed for a public purpose, namely, for extension of Hindi Sangrahalaya of the Sammelan. The numberification was issued in the official gazette and the substance of the numberification was also published in the locality. But since the plot number of the land was wrongly mentioned in the numberification, a companyrigendum was published cancelling and superseding the earlier numberification and companyrecting the plot number. The numberice of the substance of the second numberification was number published in the locality. As the earlier numberification had numberrelevance to the plot of the respondent, there was admittedly numbernotice of the substance of the numberifications in the locality. Questions for determination were Whether the requirement under the second part of Section 4 1 regarding giving public numberice of the substance of the numberification in the locality is mandatory and its number-compliance is fatal to the acquisition proceedings Whether the acquisition proceeding was vitiated by legal mala fides Whether the numberification under Section 4 was invalid as it had been issued without first companyplying with Rule 4 of the Land Acquisition Companies Rules, 1963? This Court answered the first two questions in the affirmative and left the third question open. This Court held that the publication of the numberice in the locality as required in the second part of Section 4 1 of the Act was mandatory and unless that numberice was given in accordance with the provisions companytained therein, the entire acquisition proceedings would be vitiated. The Court further held that the assumption that the sole purpose behind publication of a numberice in the locality under Section 4 1 was to give an opportunity to the person interested in land to object to the acquisition under Section 5-A of the Act was number well-founded. Therefore, it companyld number be said that where such person files his objections the purpose was achieved and that the failure to give public numberice in the locality needed number to be treated as fatal to the proceedings. We have examined the observations of this Court at page 13 of judgment upon which reliance has been placed on behalf of the respondent. We are, however, of the opinion that in view of the significant difference of the set of facts with which this Court was dealing with in that case, the observations therein are number relevant for our present purpose. Reliance was also placed on certain observations of this Court in Shri Balaganesau Metals v. M.R. Shanmugham Chetty and Ors. where this Court, dealing with the provisions of Section 10 3 c of T.N. Buildings Lease and Control Act, 1960 observed that it was a settled rule of the interpretation of the statue that provisions of an Act should be interpreted in such manner as number to render any of its provisions otiose unless there were companypelling reasons for the Court to resort to that extreme companytingency. It was submitted that the use of the expression after the date of the publication of the numberification in Sub-section 4 of Section 17 would become otiose if it is number companystrued as holding that simultaneous publication of numberification under Section 4 and declaration under Section 6 are number permissible. In Raja Saiyendra Narayan Singh and Anr. v. State of Bihar and Ors. this Court had to deal with Bihar Land Reforms Act, 1950 and it was observed that while interpreting statutes plain meaning has to be ascertained and the statute has to be read as a whole and in the companytext and that statutory rules should be harmoniously read with the statute. The basic principle, it was reiterated at page 325 of the report, of companystruction of every statute was to find out what is clearly stated and number to speculate upon latent imponderables. The scheme of the Act also must be looked into. In interpreting the statutes it is safer to rely on the obvious meaning rather than to investigate the imponderables. It is true that the expression after the date of the publication of the numberification introduced in Section 4 can explained away as making numberchange from the provisions of law by reading it along with the amendment made in Section 4 whereby in different situation in Section 4, the last date of publication of the numberice has been determined as the date of the publication of the numberification and similarly in Section 6 a date of the publication of the numberice has been provided for. But the words after the date of the publication of the numberification in Sub-section 4 of Section 17 read simpliciter clearly indicate that declaration under Section 6 had to be made after the publication of the numberification meaning thereby subsequent to the date of the publication of the numberification. It appears to us that there is numberhing in the scheme of the Act which militates against such a companystruction. The fact that at times where emergency provisions are invoked emergent action may be taken but in such a situation in view of the state of law that was before it, the legislature has made a companyscious change which cannot be explained away merely because this is as a companysequence of the changes in Sections 4 and 6 of the Act. Reliance was placed on behalf of the appellant on Lord Howard de Walden v. IRC 1948 2 AER 825 for the proposition that numberalteration in meaning by alteration of language can result unless the requirement of the English language demand it or those requirements permit it and the sense of the section demands it. In our opinion, in this case in view of the alteration of the language and meaning and the meaning of the language used and the sense will be in companysonance with the interpretation that the change was intended. Similarly, in Hopes v. Hopes 1948 2 AER 920, it was the proposition than changes in the word may be because the draftsman wanted to improve the style. But in this case the style is number improved and the expression after the date as indicated above, becomes otiose. It is job of the Court to interpret the intention of the legislature by the words used. The fairest and the most rational method to interpret the will of the legislature is by exploring his intentions at the time when the law was made by signs, the most natural and probable, says Blackstone in his Commentaries on the Laws of England facsimile of 1st edition of 1965, University of Chicago Press, 1979 Volume I, p 59. And these signs are either the words, the companytext, the subject matter, the effects and companysequence, or the spirit and reason of the law. The words have to be understood in their usual and most known signification. If that be so, then the legislature must have had some intention in choosing the expression after before date of publication of the numberification in Sub-section 4 of Section 17 of the Act while making amendment by Amending Act No. 68 of 1984.
WITH SPECIAL LEAVE PETITION C NO. 20632 OF 1996 O R D E R These special leave petitions have been filed against the Order of the Division Bench of the Madras High Court made on September 9,1996 in Writ Petition Nos. 17011/94 and 9851/87. The admitted facts are that the petitioner, while working as a Manager of the respondent-Bank, was charged on November 3, 1986 for an offence punishable under Sections 420, 467, 477 IPC read with Section 5 1 d of the Prevention of Corruption Act, 1947 for short, the Act . The trial Court companyvicted the petitioner for an offence under Sections 420 and 477A IPC and 5 2 read with 5 1 d of the Act and sentenced to undergo one year imprisonment and also imposed a fine of Rs.3,000/- on each of the companynts. On appeal, the High Court suspended the sentence on September 15, 1987 and enlarged the petitioner on bail. The respondents had issued a show cause numberice pending trial to the petitioner on September 24, l987. The petitioner challenged the same which was subsequently withdrawn. After the companyviction, they issued another numberice to the petitioner on September 12, 1994. The petitioner challenged the show cause numberice in the above writ petition. The High Court in the impugned order dismissed the same. Shri Sampath. learned companynsel for the petitioner, companytended that the companyviction on the basis of a criminal charge is number one of the specified enumerated misconducts. Removal does number lead the companyviction due to the misconduct under the Regulation. Therefore, Regulations 6, 7 and 8 would number apply to the facts in this case. Consequently, Regulation 11 of the Canara Bank Officer Employees Discipline and Appeal Regulations does number get attracted. The action taken, therefore, is without jurisdiction. We find numberforce in the companytention. It is true that the High Court had suspended the operation of the judgment but numberetheless the companyviction recorded by the trial Court cannot be obliterated. It is still companyviction but only redemption is that by operation of the suspension, the petitioner is number required to undergo the sentence pending appeal in the High Court. Regulation 11 reads as under Regulation 11- Notwithstanding anything companytained in Regulation 6 or Regulation 7 or Regulation 8 the Disciplinary Authority may impose any of the penalties SPECIFIED IN Regulation 4, if the Officer employee has been companyvicted on a Criminal Charge or on the strength of facts or companyclusions arrived at by a judicial trial. The respondents have specifically stated that on account of the companyviction by the criminal companyrt on a criminal charge, the action is sought to be taking action under the Regulations. The number obstante clause engrafted in Regulation 11 takes out the necessity to follow the procedure prescribed in Regulation 6, 7 or 8, as the case may be, by excluding the operation of Regulations 6, 7 and The authority is empowered to take action against the delinquent employee for imposition of any of the penalties specified in Regulation 4. Only in two cases, Regulation 11 companyld be invoked, namely, companyviction of a criminal charge or on the strength of facts of companyclusions arrived at by a judicial trial. In view of the fact that criminal companyrt had recorded the companyviction of the appellant for offences under Sections 420. 477A and 5 2 read with Section 5 l d of the Act. The invocation of Regulation 11 stands applicable. It is then companytended that the companyviction must be such that leads to the criminal misconduct under the Regulation and when only the action companyld be taken. We find numberforce in the companytention. If the action is taken for any of the misconducts specified in Regulation 4, the procedural requirements companytemplated under Regulations 6, 7 and 8, as the case may be, are required to be followed and order passed. In other words, if any delinquent employee of the Bank was companyvicted of a criminal charge, action is taken number on the basis of the misconducts on the basis of a crime companymitted by the employee by abuse of the office or on the basis of an offence that led to the companyviction on a criminal charge or on the strength of facts or companyclusions arrived at by a judicial trial irrespective of the abuse of office. Since the petitioner is number an employee governed by the proviso to Article 311 2 of the Constitution, we need number go into the companyviction leading to the companyviction as to whether the authority can take disciplinary, action pending criminal proceedings leading to companyviction. In this case, since there is already a finding of companyviction recorded by the criminal companyrt, though the sentence was suspended by the High Court on appeal, the authorities are still companypetent to take action under Regulation 11.
Leave granted. This appeal by the Union of India has been filed against the order of the High Court granting bail to the accused against whom a proceeding under the Narcotic Drugs and Psychotropic Substances Act Narcotic Drugs Psychotropic Substances Act is pending. As the trial has number begun for four years, the High Court appears to have re-fused to exercise its power to cancel the bail. But, while companysidering the question of bail, the Court was number borne in mind the provisions of Section 37 of the Narcotic Drugs Psychotropic Substances Act which are mandatory in nature and the Court must bear in mind the said provisions before deciding an application of bail in case an accused is facing a trial under the provisions of the Narcotic Drugs Psychotropic Substances Act.
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 applied for a house in Govindpuram Extension Sadhna Duplex Residential Scheme. The entire amount was deposited. Ultimately the Respondent was issued a reservation letter in Karpuripuram Scheme, but even in this Scheme the possession of the house was number delivered number any particular house allotted to him. The Respondent therefore filed a companyplaint before the District Forum. While the matter was pending before the District Forum the Respondent was given an option to take a house in Govindpuram HIG Duplex at an increased price of Rs.6,15,000/-. The Respondent companyld number afford the increased price and therefore was number willing to take the house. The District Forum directed refund of all amounts with interest at the rate of 18 p.a. The State Forum dismissed the Appeal with companyts of Rs.2,000/-. The National Forum also dismissed the Revision. In respect of Karpuripuram Scheme, this Court has, in its Order in the case of Ghaziabad Development Authority vs. Balbir Singh supra , held as follows In a scheme known as Karpuripuram Scheme plots were allotted, monies companylected. However, thereafter the Scheme was cancelled. In some of the matters we have seen that the District Forum has recorded that the authority companyld give numberexplanation as to why the Scheme was cancelled. Before us some sort of explanation is sought to be given. In our view, irrespective of whether there was genuine reason to cancel or number, the monies must be returned with interest at the rate of 18. We say so because it is clear that even if the body has number already floated another scheme on the same land it is clear that the body is going to derive great profit from this land and therefore companypensating the allottee with interest at 18 per annum is just and fair. In Civil Appeal No. 7224 of 2002 the respondent had applied for a house in a scheme floated in 1992. He had paid the entire companyt. He had been allotted a flat and issued a reservation letter. Yet numberpossession was given. Thereafter, in 1996 the respondent was informed that for unavoidable reasons the house has been allotted to somebody else and if he desires, he can obtain an alternate flat at a much higher price. This, therefore, is also a case where there is absolutely numberjustifiable reason why the party has number been delivered possession of the flat which had been allotted to him number has any offer been made to return his money with interest. Instead the body has asked the party to apply for an alternate flat at a higher rate. In our view, on these facts the award of interest at the rate of 18 is justified. It is number just interest on the amount invested but is also companypensation for the harassment and agony caused to the allottee. We have given these two instances only by way of illustrations. Thus, numberinterference is called for with the award of interest at the rate of 18 p.a. as the Karipuripuram Scheme stood cancelled. We are told that interest at the rate of 12 p.a. has been paid vide Cheques dated 5th September, 2000 for Rs.96,000/- and dated 4th September, 2002 for Rs.53,793/-. The Appellants have, however, deducted TDS. The Appellants must number pay interest at the rate of 18 p.a. calculated from the date they received each deposit till date of payment. The Appellants are directed to refund the TDS amount deducted along with interest at the rate of 18 p.a. thereon to the Respondent for reasons set out in our Judgment delivered today in Civil Appeal No. 8400 of 2002. Along with the payment they should also handover a calculation sheet to the Respondent showing how they have calculated the interest amount. We clarify that this Order shall number be taken as a precedent in any other matter having been passed on account of the special features of the case.
SAGHIR AHMAD, J. Habibur Rehman, who is since dead and is represented by the present respondents, was the owner of a house situated in Gali Masjid Peerji in Ibrahimpura, Bhopal, which he had purchased for a sum of Rs.3,000/- through a registered sale deed dated 24.2.1949. On 28.12.1955, he executed a sale deed in respect of this house in favour of the appellant, Mushir Mohammed Khan, who also is dead and is represented by the present appellant, for a sum of Rs.1,000/- only. A few days later, namely, on 3rd January, 1956, Mushir Mohammed Khan executed an agreement in favour of Habibur Rehman agreeing to re-convey the said house if the amount of Rs.1,000/- was paid back to him within a period of two years. Habibur Rehman also executed a rent numbere in favour of Mushir Mohammed Khan on the same day. Both the documents, namely, the sale deed dated 28.12.1955 and the agreement for re-conveyance, executed on 3rd January, 1956, were registered on 5th January, 1956. In terms of the rent numbere, Habibur Rehman started paying Rs.20/- as rent for the house in question to Mushir Mohammed Khan. Treating the above documents as mortgage, Habibur Rehman, who shall hereinafter be referred to as plaintiff, filed a suit for redemption which was dismissed by the trial companyrt on 5th of July, 1979. The appeal filed thereafter was also dismissed by the Vth Addl. District Judge, Bhopal on 21.12.1982. But the second appeal filed by the plaintiff was allowed by the Madhya Pradesh High Court by the impugned judgment dated 27.8.1987. Learned companynsel appearing on behalf of the appellant hereinafter referred to as defendant has companytended that the High Court was in error in treating the transaction between the plaintiff and the defendant as mortgage. He companytended that since the companydition of re-conveyance was number companytained in the same document by which the property was sold by the plaintiff to the defendant, the document companyld number be treated to be a deed of mortgage. It is companytended that the agreement by which the defendant agreed to re-convey the property in question to the plaintiff was an entirely separate transaction between the parties and even if that document was read along with the sale deed executed earlier, the cumulative effect of both the transactions would number result in a mortgage and they will remain two separate transactions, namely, a sale deed by which the property was transferred to the defendant and an agreement by which the defendant agreed to re-convey the property to the plaintiff. Learned companynsel for the plaintiff, on the companytrary, companytended that the judgment passed by the High Court, in the circumstances of the case, was wholly justified inasmuch as the property which was purchased by the plaintiff himself for a sum of Rs.3,000/- was transferred to the defendant for a sum of Rs.1,000/- only which was far less than the real value of the property which, with the lapse of time, escalates specially in big cities like Bhopal where the property in question is situate and, therefore, the transaction cannot be treated as an out and out sale but a mortgage which was executed by the plaintiff to secure the loan of Rs.1,000/- advanced by the defendant. He also companytended that the plaintiff who has remained in possession throughout, has already invested huge amount of money in the improvement of the house and has made additional room on the first floor which the plaintiff would number have done if he had sold the property absolutely in favour of the defendant. He companytended that the companyduct of the plaintiff in selling the property for a lower price than its actual value and investing huge amount even after the sale transaction indicated that the plaintiff knew and believed that he was still the owner of that property, which he would redeem one day. The transaction, by companyduct, was, therefore, a mortgage and number a sale. Let us first analyse the High Court judgment on this question before proceeding to companysider the respective companytentions of the parties companynsel. The High Court took into companysideration both the documents together, namely, the Sale Deed Exh. P-2 executed by the plaintiff in favour of the defendant and the Agreement of Re-conveyance Exh. P-3 in the light of the so-called surrounding circumstances and came to the companyclusion that the transaction between the parties was a mortgage and number an absolute sale of the property in question in favour of the defendant. After having companye to the companyclusion that the transaction was a mortgage and number a Sale Deed, the High Court attempted to find out the nature of the mortgage. On account of the Proviso to Clause c of Section 58 of the Transfer of Property Act, it came to the companyclusion that since the companydition for re-conveyance of the property in favour of the plaintiff was number companytained in the Sale Deed Exh. P-2, the transaction companyld number be treated as a mortgage by companyditional sale. The High Court, thereafter, came to the companyclusion that the prohibition companytained in the above Proviso would operate only in respect of mortgage by companyditional sale, but number in respect of any other mortgage as the Proviso was appended to Clause c of Section 58 only. The High Court then proceeded to companysider the ingredients of Clause d and recorded a finding that the transaction between the parties was a usufructuary mortgage. Having thus found the transaction to be a mortgage, the High Court, while reversing the judgment passed by the trial companyrt and the lower appellate companyrt, decreed the suit of the plaintiff. The question whether there was a transaction of mortgage or sale between the parties is to be decided, number only in the light of the recitals made in the deed, but also in the light of other circumstances which are established on record. It is true that there is a difference between a mortgage by companyditional sale and a sale with a companydition to re-purchase the basic fact remains that the form of transaction is number always the final test and the true test is the intention of the parties in entering into the transaction. Mortgage by companyditional sale is defined in the Clause c of Section 58 which provides as under c Mortgage by companyditional sale. Where the mortgagor ostensibly sells the mortgaged property - on companydition that on default of payment of the mortgage money on a certain date the sale shall become absolute, or on companydition that on such payment being made the sale shall become void, or on companydition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by companyditional sale and the mortgagee a mortgagee by companyditional sale. Provided that numbersuch transaction shall be deemed to be a mortgage, unless the companydition is embodied in the document which effects or purports to effect the sale. Proviso to this Clause was added by Act XX of 1929 so as to set at rest the companyflict of decisions on the question whether the companyditions, specially the companydition relating to reconveyance companytained in a separate document companyld be taken into companysideration in finding out whether a mortgage was intended to be created by the principal deed. The Legislature enacted that a transaction shall number be deemed to be a mortgage unless the companydition for re-conveyance is companytained in the document which purports to effect the sale. This Proviso was companysidered in Chunchun Jha vs. Ebadat Ali Anr., AIR 1954 SC 345 1955 1 SCR 174, and came to be companysidered again in Bhaskar Waman Joshi D Ors. vs. Shrinarayan Rambilas Agarwal D Ors. AIR 1960 SC 301 1960 2 SCR 117, in which it was explained as under But it does number follow that if the companydition is incorporated in the deed effecting or purporting to effect a sale a mortgage transaction must of necessity have been intended. The question whether by the incorporation of such a companydition a transaction ostensibly of sale may be regarded as a mortgage is one of intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances. The circumstance that the companydition is incorporated in the sale deed must undoubtedly be taken into account, but the value to be attached thereto must vary with the degree of formality attending upon the transaction. The Court further companysidered the distinction between mortgage by companyditional sale and a sale with a companydition of re-purchase and observed as under The definition of a mortgage by companyditional sale postulates the creation by the transfer of a relation of mortgagor and the mortgagee, the price being charged on the property companyveyed. In a sale companypled with an agreement to reconvey there is numberrelation of debtor and creditor number is the price charged upon the property companyveyed, but the sale is subject to an obligation to retransfer the property within the period specified. What distinguishes the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt. The form in which the deed is clothed is number decisive. The definition of a mortgage by companyditional sale itself companytemplates an ostensible sale of the property. As pointed out by the Judicial Committee of the Privy Council in Narasingerji Gyanagerji v. P. Parthasaradhi, 51 Ind. App. 305 AIR 1924 PC 226, the circumstance that the transaction as phrased in the document is ostensibly a sale with a right of repurchase in the vendor, the appearance being laboriously maintained by the words of companyveyance needlessly iterating the description of an absolute interest or the right of repurchase bearing the appearance of a right in relation to the exercise of which time was of the essence is number decisive. The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of surrounding circumstances. If the words are plain and unambiguous they must in the light of the evidence of surrounding circumstances be given their true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the companytents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts. Oral evidence of intention is number admissible in interpreting the companyenants of the deed but evidence to explain or even to companytradict the recitals as distinguished from the terms of the documents may of companyrse be given. Evidence of companytemporaneous companyduct is always admissible as a surrounding circumstance, but evidence as to subsequent companyduct of the parties is inadmissible. The view expressed by this Court in Bhaskars case supra was repeated in the same words in P.L. Bapuswami vs. N. Pattay Gounder AIR 1966 SC 902 The question whether by the incorporation of such a companydition a transaction ostensibly of sale may be regarded as a mortgage is one of intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances. The definition of a mortgage by companyditional sale postulates the creation by the transfer of a relation of mortgagor and the mortgagee, the price being charged on the property companyveyed. In a sale companypled with an agreement to reconvey there is numberrelation of debtor and creditor number is the price charged upon the property companyveyed, but the sale is subject to an obligation to retransfer the property within the period specified. The distinction between the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt. The form in which the deed is clothed is number decisive. The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the documents viewed in the light of surrounding circumstances. If the language is plain and unambiguous it must in the light of the evidence of surrounding circumstances be given its true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the companytents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts. These decisions were companysidered again in Vidhyadhar vs. Mankikrao Anr., AIR 1999 SC 1st Supp. 1441 1999 3 SCC 573 and it was observed as under 47. The basic principle is that the form of transaction is number the final test and the true test is the intention of the parties in entering into the transaction. If the intention of the parties was that the transfer was by way of security, it would be a mortgage. The Privy Council as early as in Balkishen Das v. Legge, 1899 27 Ind.Appl 58, had laid down that, as between the parties to the document, the intention to treat the transaction as an out and out sale or as a mortgage has to be found out on a companysideration of the companytents of document in the light of surrounding circumstances. The decision of this Court in Bhaskar Waman Joshi v. Shrinarayan Rambilas Agarwal, AIR 1960 SC 301 1960 2 SCR 117 and P.L. Bapuswami v. N. Pattay Gounder, AIR 1960 SC 902 1966 2 SCR 918, are also to the same effect. 48. The companytents of the document have already been companysidered above which indicate that defendant No. 2 had executed a mortgage by companyditional sale in favour of defendant No. 1. He had promised to pay back Rs.1500/- to him by a particular date failing which the document was to be treated as a sale deed. The intention of the parties is reflected in the companytents of the document which is described as a mortgage by companyditional sale. In the body of the document, the mortgage money has also been specified. Having regard to the circumstances of this case as also the fact that the companydition of repurchase is companytained in the same document by which the mortgage was created in favour of defendant No.1, the deed in question cannot but be treated as a mortgage by companyditional sale. This is also the finding of the companyrts below. Applying the principles laid down above, the two documents read together would number companystitute a mortgage as the companydition of re-purchase is number companytained in the same documents by which the property was sold. Proviso to Clause c of Section 58 would operate in the instant case also and the transaction between the parties cannot be held to be a mortgage by companyditional sale. The High Court, after recording a finding that the transaction cannot be treated as a mortgage by companyditional sale, in view of the Proviso to Clause c of Section 58, proceeded to companysider the circumstances of the case and came to the companyclusion that although the transaction was number a mortgage by companyditional sale, it would definitely be a usufructuary mortgage. The High Court was of the opinion that all the ingredients which go to companystitute a usufructuary mortgage were present in the instant case inasmuch as the property was given away to the defendant for a price which was less than its original price or the market value on the date on which the sale was executed in favour of the defendant. The High Court also found that possession of the property in question was symbolically delivered to the defendant and the plaintiff also executed a rent numbere in favour of the defendant promising to pay rent in respect of the premises in question to the defendant every month. We are unable to accept the reasoning of the High Court. We have already seen above that the three documents read together do number companystitute a mortgage or mortgage by companyditional sale inasmuch as the companydition to repurchase was number companytained in the sale deed itself. If the documents cannot be treated as creating a mortgage on account of the prohibition companytained in the Proviso to Clause c of Section 58, it is difficult to accept that these documents would create a mortgage of another kind. The basic fact which has been ignored by the High Court is that though in a usufructuary mortgage, the possession has necessarily to be delivered to the mortgagee, an agreement for reconveyance is number obtained from him. While recording a finding on the question of usufructuary mortgage, the High Court did number take into companysideration the second document which represented an agreement between the parties that if the amount in question, namely, the price money for which the sale was executed by the plaintiff in favour of the defendant was returned within the time stipulated by that agreement, the defendant would reconvey the property to the plaintiff. An agreement of reconveyance does number numbermally companystitute part of the transaction by which usufructuary mortgage is created. Where the parties executed three documents almost companytemporaneously, all the three documents have to be taken into companysideration to find out the true nature of the transaction. Learned companynsel for the plaintiff referred to the decision of this Court in Smt. Indira Kaur and others vs. Shri Sheo Lal Kapoor, AIR 1988 SC 1074, and companytended that in that case too, the property was sold and a separate agreement of reconveyance was executed by which the purchaser had promised to reconvey the property to the seller on return of the companysideration money for which the sale deed was executed. The seller had also executed a rent numbere in favour of the purchaser and thus companytinued to occupy the property as tenant. The Court held, on companysideration of all the circumstances, the transaction to be a mortgage and number an out and out sale in favour of the purchaser. It is companytended that since in the instant case also the property was sold and a deed of reconveyance was executed by the defendant in favour of the plaintiff and possession was delivered to the defendant only symbolically inasmuch as the plaintiff had executed a rent numbere under which he had promised to pay rent every month to the defendant, the transaction should also be treated as mortgage. It is numberdoubt true that this Court in Smt. Indira Kaur ors. vs. Shri Sheo Lal Kapoor supra had held, on companysidering the facts of that case, the transaction to be a mortgage. The Court had also relied upon its earlier decision in Govind Prasad Chaturvedi vs. Hari Dutt Shastri, 1977 2 SCR 877 AIR 1977 SC 1005, in which the facts were almost similar and in which too, it was held that the transaction was a mortgage. But the learned companynsel did number numberice the relevant observations which are reproduced below- These factors clearly spell out the real intention of the parties that it was a transaction of mortgage to secure the sum of Rs.7000/- at approximately 13 1/2 interest. But then it is number necessary to examine this dimension of the matter inasmuch as the plaintiff has number prayed for redemption though in the plaint an averment has been made that the real intention of the parties was to create a mortgage. As the plaint stands, and as the plaintiff himself has preferred to enforce the agreement for specific performance, it is number necessary to examine the question as to whether or number the real nature of the transaction was mortgage though it was given an appearance of a transaction of a sale. For the same reason we need number examine the question as to whether or number S.58 c of the Transfer of Property Act would have disabled the plaintiff from claiming the relief of redemption on the basis that the real intention of the parties was to create a mortgage and number an absolute sale companypled with an agreement of reconveyance. This question will have to be dealt with at appropriate time having regard to the fact that there is an increasing tendency in recent years to enter into such transactions in order to deprive the debtor of his right of redemption within the prescribed period of limitation. In fact very often the mortgagee in place of getting a mortgage deed executed in lieu of a loan obtains an agreement to sell in his favour from the mortgagor so as to bring pressure on the mortgagor by seeking to enforce specific performance to enable the mortgagee to obtain possession of the property for an amount smaller than the real value of the property. We need number however probe the matter any further for the purpose of disposing of the present appeal for the reasons stated earlier. Emphasis supplied Thus, the Court did number companysider the effect of the Proviso to Section 58 c of the Transfer of Property Act and did number examine the matter from that angle as the plaintiff, in that case, had number prayed for redemption but had prayed for specific performance of the agreement of reconveyance. This decision is, therefore, of numberuse to the plaintiff. Though we, on the facts of this case, cannot hold the transaction to companystitute a mortgage with a companydition of repurchase, we also cannot hold the transaction to be a usufructuary mortgage as held by the High Court which, in our opinion, was in error in recording that finding by excluding from its companysideration the agreement of reconveyance. But we also cannot lose sight of a number of relevant factors for doing companyplete justice between the parties. These factors are that though the property was purchased by the plaintiff for a sum of Rs.3000/- in 1949, it was sold to the defendant for a smaller sum of Rs.1,000/- on 28.12.1955. This indicates that the property was ostensibly transferred to the defendant number for its real value but for a price which was far less than the market value which must have companysiderably appreciated from 1949 when the property was purchased by the plaintiff till 1955 when it was sold by him to the defendant. The other circumstance was that the defendant executed a companytemporaneous document in favour of the plaintiff by which he agreed to reconvey the property to the plaintiff if the sum of Rs.1000/- was returned to him within two years. That is to say, even though the defendant knew that within two years, the value of the property would further escalate, he agreed on a reconveyance for the original price of Rs.1,000/- for which it was sold to him. It is in these circumstances that the observations of this Court in Smt. Indira Kaur and others vs. Shri Sheo Lal Kapoor supra , which are repeated below, become relevant - there is an increasing tendency in recent years to enter into such transactions in order to deprive the debtor of his right of redemption within the prescribed period of limitation. In fact very often the mortgagee in place of getting a mortgage deed executed in lieu of a loan obtains an agreement to sell in his favour from the mortgagor so as to bring pressure on the mortgagor by seeking to enforce specific performance to enable the mortgagee to obtain possession of the property for an amount smaller than the real value of the property This might have happened in the instant case also and instead of executing a Mortgage deed in respect of the property in question, the plaintiff was persuaded to execute a sale deed in favour of the defendant who executed an agreement of reconveyance in favour of the plaintiff. In U. Nilan vs. Kannayyan Dead Through LRs. JT 1999 7 SC 621 1999 8 SCC 511, this Court observed as under Adversity of a person is number a boon for others. If a person in stringent financial companyditions had taken the loan and placed his properties as security therefor, the situation cannot be exploited by the person who had advanced the loan. The Court seeks to protect the person affected by adverse circumstances from being a victim of exploitation. It is this philosophy which is followed by the Court in allowing that person to redeem his properties by making the deposit under Order 34 Rule 5 P.C. Having regard to the circumstances of the case, parties were allowed time to negotiate a settlement, but they have failed to arrive at a companypromise. Although the plaintiff offered a sum of Rs. 1 lakh to be paid within six months to the defendant, the defendant made a companynter offer of Rs.1.5 lakh, forgoing also the arrears of rent, to the plaintiff, but the plaintiff is number prepared to give up the title in the property as indicated by the letters written by the respective companynsel to the Registrar of this Court, which were placed before us. This tussle, however, does indicate that the amount of Rs. 1,000/- for which the property was sold by the plaintiff in favour of the defendant, does number represent the true market value of the property, neither on the date on which the sale deed was executed in favour of the defendant number does it represent the true value of the property today.
We see numbermerit in the appeal and we accordingly reject it. Frank and fair as usual, Shri K. Parasaran, learned Solicitor General, invited us to companysider whether the point of view which he was presenting to us would make any difference to the view expressed by the Court in Morey v. State of Andhra Pradesh. Cr. Appeal No. 247 of 1981 What we number say is, therefore, a post-script to what the companyrt had said in Morey v. State of Andhra Pradesh. The learned Solicitor General argued that G.O.M.S. No. 557 was earlier in point of time than the pronouncement of this Court in Maru Ram v. Union of India and that at that time, it was thought that Section 433A Cr.P.C. was retrospective and applied equally to those companyvicted and sentenced before that provision came into force as to those companyvicted and sentenced thereafter. He also suggested that 10 there was numberneed at all to except those who were governed by Section 433A Cr.P.C. from the G.O., since the Government companyld number in any event remit the sentences of those governed by Section 433A Cr.P.C. We are unable to agree with the submissions of the learned Solicitor General. In Maru Ram v. Union of India, the companyrt merely declared the law and did number make it. The law declared by the companyrt must be companysidered to have always been so. The G.O. has necessarily to be companystrued in the light of companystruction placed upon Section 433A Cr.P.C. by this Court in Maru Ram v. Union of India. Now, what was the object of Section 433A Cr.P.C. It was that those governed by it shall number be released unless they have served a sentence of at least 14 years imprisonment. Section 433A Cr.P.C. does number govern all life companyvicts. It does number apply to those companyvicted and sentenced to life imprisonment before its companymencement. It does number apply to those companyvicted and sentenced to life imprisonment for offences number punishable with death, such as, Sections 304, 307, 306 IPC, etc. Those companyvicted and sentenced to life imprisonment after the companymencement of Section 433A Cr.P.C. for offences for which the sentence of death companyld have also been imposed alone are governed by Section 433A Cr.P.C. The effect of Section 433A Cr.P.C. on those that are governed by it is that they must undergo imprisonment for a minimum period of 14 years. Those that are number governed by Section 433A Cr.P.C. are number bound to undergo imprisonment for a minimum period of 14 years, being eligible for such remissions as may be granted to them by the Government. Those governed by Section 433A Cr.P.C. are excepted from the benefit of G.O.M.S. No. 557 for the obvious reason that they have to serve the statutory minimum period of 14 years in jail prescribed by Section 433A Cr.P.C. Others, i.e., those in respect of whom there is numbersuch statutory companypulsion are entitled to the benefit of the G.O. The reference to those governed by Section 433A Cr.P.C. in the G.O. is evidently to clarify the position that the GO.
M. Ahmadi, J. Special leave granted. In the present case, the numberice was companyfined to the question as to the date from which the respondents-workmen were entitled to payment on account of weekly off-days. Pending numberice, this Court directed the appellant to pay 50 of the amount awarded to the workmen within a stipulated time, which we are told has since been done. The short question arises in the following factual background. The respondents-workmen made a grievance that the appellant had number paid the wages in respect of weekly offs to which they were entitled. They, therefore, moved the Labour Court under Section 33-C 2 of the Industrial Disputes Act, 1947. Exercising jurisdiction under that provision, the Labour Court passed an order directing the appellant to pay the amount claimed by the workmen. It is against that order that the appellant preferred a writ petition in the High Court of Delhi which was disposed of by a learned Single Judge of the High Court on merits. The appellant preferred an appeal against the order of the learned Single Judge which was dismissed in limine. It is against the said order that the present appeal is filed. As stated earlier when the matter came up for admission, numberice was issued on the limited question stated hereinbefore. We have heard learned Counsel on that limited question. The learned Counsel for the appellant tried to companytend that the Labour Court had numberjurisdiction to entertain any application under Section 33-C 2 of the Industrial Disputes Act and that as such a claim companyld only be made under Section 21 of the Delhi Shops and Establishments Act, 1954. He desired us to go into this question, but having regard to the fact that the numberice was issued on a limited point we have refrained from going into that larger question. On the limited question, learned Counsel for the appellant once again invited our attention to Sections 18 and 21 of the Delhi Act and argued that having regard to the period of limitation prescribed under the latter provision, the Labour Court ought number to have directed the pay ment for a period exceeding one year. He submitted that even while exercising jurisdiction under Section 33- C 2 of the Industrial Disputes Act, the Labour Court ought to have kept in view the period of limitation prescribed under Section 21 of the Delhi Act. It must, however, be remembered that the proviso to Section 21 lays down that if the application is filed after the period of limitation and the applicant satisfies the authority that he had sufficient cause for number making the application within the prescribed period the authority may companydone the delay and admit the application. Therefore, ultimately, the question would be whether in the facts and circumstances of the case that delay beyond the period of one year deserved to be excused. That being so, the question would have to be decided in the facts and circumstances of each case and numberhard and fast rule can be laid down in that behalf. Therefore, even if we assume, as we do for the purposes of this case, that the provision in Section 21 of the Delhi Act has relevance,-the question would have to be decided by the Court in the facts and circumstances of each case. We are, therefore, unable to agree with the view that numberclaim beyond the period of one year can be entertained. But at the same time we do see force in the submission of Mr. Thakur that if the claim is entertained after gross delay it would cause companysiderable hardship to the employer, in that the employer would have destroyed the records because it cannot be expected to preserve the records for years on end. That would be a circumstance which would have to be borne in mind while deciding on the question as to the period from which the authority would like to allow the claim. Section 18 of the Delhi Act in turn states that numberdeduction shall be made from the wages of any employee on account of the closed day under Section 16 or a holiday granted under Section 17 of that Act. Therefore, if a deduction is made in violation of that provision or payment is withheld in violation of the spirit of that provision that would be a factor which would have to be companysidered assuming that the Delhi Act applies.
ORIGINAL JURISDICTION Writ Petition No. 355 of 1979. Under Article 32 of the Constitution R. Mridul, K. Jayaram, K. Ram Kumar and Aruneshwar Gupta for the Petitioner. Soli J. Sorabjee, Solicitor General, R. N. Sachthey, E. Agarwala and Miss A. Subhashini for Respondent No. 1. The Judgment of V. R. Krishna Iyer, S. Murtaza Fazal Ali, and D. A. Desai, JJ. was delivered by Krishna Iyer, J. and companycurring opinion of R. S. Pathak and A. D. Koshal, JJ. was delivered by Pathak, J. KRISHNA IYER, J. Is it companystitutionally valid or desirable on principle to permit a private citizen, who has but loose nexus with the victim of a crime, to invoke the special power under Art. 136 of the Constitution for leave to appeal against an acquittal of the alleged criminal thereby putting in peril his life or liberty in the absence of any legislative provision arming such officious outsider with the right to appeal? This issue, profound on its face but unsound on reflection, falls for decision in this writ petition under Art. 32 of the Constitution. The facts, companypressed into a single sentence, are that the petitioner was acquitted of a murder charge by the High Court in appeal but the brother of the deceased-not the State number even the first informant-moved this Court under Art. 136, got leave and had his appeal heard which resulted in the petitioner accused being companyvicted and sentenced to the life term under s. 302 I.P.C. The present companytention urged to upset that companyviction, is that the leave to appeal and the subsequent proceedings were unconstitutional as violative of Art. 21 the procedural magna carta protective of life and liberty-and, therefore, the sentence must fail. This plea, faintly presented before this Court when the appeal was heard, was briefly companysidered and rightly rejected. This second battle, doomed to fail like the first, demands of us a companydensed ratiocination in negation of the companytention hopefully urged by Sri Mridul, companynsel for the petitioner. Two inter-laced issues arise and they turn on a the companytent and character of Art. 136 vis-a-vis Art. 21, and b the locus standi of a Good Samaritan, if we may use that expression to refer to a public-spirited citizen seeking to trigger the legal process to see that justice is done to his neighbour. Article 21, in its sublime brevity, guardians human liberty by insisting on the prescription of procedure established by law, number fiat as sine qua number for deprivation of personal freedom. And those procedures so established must be fair, number fanciful, number formal number flimsy, as laid down in Maneka Gandhis case. So, it is axiomatic that our companystitutional jurisprudence mandates the State number to deprive a person of his personal liberty without adherence to fair procedure laid down by law. The question is whether there is any procedure, fair or otherwise, which enables a kindly neighbour who is number a companyplainant or first informant, to appeal to the Supreme Court against an allegedly erroneous acquittal by the High Court. The companypus juris companytains numberblack-letter law arming any such purely companypassionate soul to approach this Court, argues Sri Mridul and so, his clients liberty has been deprived by a proceeding initiated by someone without any procedure established by law. We see the dexterity in the advocacy but reject its efficacy. Nor are we impressed with the submission that the brother of the deceased in the case, or any other high-minded citizen, is an officious meddler who has numberbusiness number grievance when the companymission of grievous crime is going unpunished. There is a spiritual sensitivity for our criminal justice system which approves of the view that a wrong done to anyone is a wrong done to oneself, although for pragmatic companysiderations the law leashes the right to initiate proceedings in some situations. Again, justice is functionally outraged number only when an innocent person is punished but also when a guilty criminal gets away with it stultifying the legal system. The deep companycern of the law is to track down, try and punish the culprit, and if found number guilty, to acquit the accused. It is imperative under Art. 21 that there should be some civilised procedure for holding a man guilty and depriving him of his liberty. Undoubtedly, this Court, if it grants leave under Art. 136 and eventually finds him guilty, deprives him of his liberty and so the crucial question that falls for decision is as to whether there is any procedure as predicated by Art. 21 independent of or implicit in Art. 136. It is apparent that there is numberstatutory provision which creates a right of appeal in favour of a stranger enabling him to challenge an acquittal by the High Court. The Criminal Procedure Code does number create such a right of appeal and, speaking generally, a right of appeal is the creature of statute. So it is submitted that before the companyrt may grant special leave under Art. 136 there must be an antecedent right of appeal, absent which the question of leave by the companyrt does number arise. The argument is ingenious but inference is fallacious. An insightful understanding of the sweep, scope and character of Art. 136 will easily dispel the dichotomy between an antecedent right of appeal and a subsequent grant of leave, which is the companyner-stone of the companytention of the petitioner. The jural reach and plural range of the judicial process to remove injustice in a given society is a sure index of the versatile genius of law-in-action as a delivery system of social justice. By this standard, our companystitutional order vests in the summit companyrt a jurisdiction to do justice, at once omnipresent and omnipotent but companytrolled and guided by that refined yet flexible censor called judicial discretion. This nidus of power and process, which master-minds the broad observance throughout the Republic of justice according to law, is Art. 136. Specificity being essential to legality, let us see if the broad spectrum spread-out of Art. 136 fills the bill from the point of view of procedure established by law. In express terms, Art. 136 does number companyfer a right of appeal on a party as such but it companyfers a wide discretionary power on the Supreme Court to interfere in suitable cases. The discretionary dimension is companysiderable but that relates to the power of the companyrt. The question is whether it spells by implication, a fair procedure as companytemplated by Art. 21. In our view, it does. Article 136 is a special jurisdiction. It is residuary power it is extra ordinary in its amplitude, its limit, when it chases injustice, in the sky itself. This Court functionally fulfils itself by reaching out to injustice wherever it is and this power is largely derived in the companymon run of cases from Art. 136. Is it merely a power in the Court to be exercised in any manner it fancies? Is there numberprocedural limitation in the manner of exercise and the occasion for exercise ? Is there numberduty to Act fairly while hearing a case under Art. 136, either in the matter of grant of leave or, after such grant, in the final disposal of the appeal ? We have hardly any doubt that there is a procedure necessarily implicit in the power vested in the summit companyrt. It must be remembered that Art. 136 companyfers jurisdiction on the highest companyrt. The founding fathers unarguably intended in the very terms of Art. 136 that it shall be exercised by the highest judges of the land with scrupulous adherence to judicial principles well-established by precedents in our jurisprudence. Judicial discretion is canalised authority number arbitrary eccentricity. Cardozo, with elegant accuracy, has observed The judge, even when he is free, is still number wholly free. He is number to innovate at pleasure. He is number a knighterrant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from companysecrated principles. He is number to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life. Wide enough in all companyscience is the field of discretion that remains. It is manifest that Art. 136 is of companyposite structure, is power-cum-procedure-power in that it vests jurisdiction in the Supreme Court, and procedure in that it spells a mode of hearing. It obligates the exercise of judicial discretion and the mode of hearing so characteristic of the companyrt process. In short, there is an in-built prescription of power and procedure in terms of Art. 136 which meets the demand of Art.21. We may eye the issue slightly differently. If Art. 21 is telescoped into Art. 136, the companyclusion follows that fair procedure is imprinted on the special leave that the companyrt may grant or refuse. When a motion is made for leave to appeal against an acquittal, this Court appreciates the gravity of the peril to personal liberty involved in that proceeding. It is fair to assume that while companysidering the petition under Art. 136 the companyrt will pay attention to the question of liberty, the person who seeks such leave from the companyrt, his motive and his locus standi and the weighty factors which persuade the companyrt to grant special leave. When this companyspectus of processual circumstances and criteria play upon the jurisdiction of the companyrt under Art. 136, it is reasonable to companyclude that the desideratum of fair procedure implied in Art. 21 is adequately answered. Once we hold that Art. 136 is a companyposite provision which vests a wide jurisdiction and, by the very fact of entrusting this unique jurisdiction in the Supreme Court, postulates, inarticulately though, the methodology of exercising that power, numberhing more remains in the objection of the petitioner. It is open to the Court to grant special leave and the subsequent process of hearing are wellestablished. Thus, there is an integral provision of powercum-procedure which answers with the desideratum of Art. 21 justifying deprivation of life and liberty. The wider the discretionary power the more sparing its exercise. Times out of number this Court has stressed that though parties promiscuously provoke this jurisdiction, the Court parsimoniously invokes the power. Moreover, the Court may number, save in special situations, grant leave to one who is number eo numberine a party on the record. Thus, procedural limitations exist and are governed by well-worn rules of guidance. Sri Mridul urged that every inquisitive benefactor or offensive adventurer cannot rush in and upset a verdict of acquittal by resort to Art. 136. This is really a matter for exercise of judicial discretion and the Court can be trusted to bear in mind time-honoured practices and the values of Art. 21. But numberdogmatic proscription of leave under Art. 136 to a number-party applicant can be laid down inflexibly. For access to justice is number a cloistered virtue. It is true that the strictest vigilance over abuse of the process of the companyrt, especially at the expensively exalted level of the Supreme Court, should be maintained and ordinarily meddlesome bystanders should number be granted visa. It is also true that in the criminal jurisdiction this strictness applies a fortiori since an adverse verdict from this Court may result in irretrievable injury to life or liberty. Having said this, we must emphasise that we are living in times when many societal pollutants create new problems of unredressed grievance when the State becomes the sole repository for initiation of criminal action. Sometimes, pachydermic indifference of bureaucratic officials, at other times politicisation of higher functionaries may result in refusal to take a case to this Court under Art. 136 even though the justice of the lis may well justify it. While the criminal law should number be used as a weapon in personal vendettas between private individuals, as Lord Shawcross once wrote, in the absence of an independent prosecution authority easily accessible to every citizen, a wider companynotation of the expression standing is necessary for Art. 136 to further its mission. There are jurisdictions in which private individuals-not the State alone-may institute criminal proceedings. The Law Reform Commission Australia in its Discussion Paper No. 4 on Access to Courts-I Standing Public Interest Suits wrote The general rule, at the present time, is that anyone may companymence proceedings and prosecute in the magistrates companyrt. The argument for retention of that right arises at either end of the spectrum-the great cases and the frequent petty cases. The great cases are those touching government itself-a Watergate or a Poulson. However independent they may legally be any public official, police or prosecuting authority, must be subject to some government supervision and be dependent on government funds its officers will inevitably have personal links with government. They will be part of the establishment. There may be cases where a decision number to prosecute a case having political ramifications will be seen, rightly or wrongly, as politically motivated. Accepting the possibility of occasional abuse the Commission sees merit in retaining some right of a citizen to ventilate such a matter in the companyrts. Even the English System, as pointed by the Discussion paper, permits a private citizen to file an indictment. In our view, the narrow limits set, in vintage English law, into the companycept of person aggrieved and standing needs liberalisation in our democratic situation. In Dabholkars case this companyrt imparted such a wider meaning. The American Supreme Court relaxed the restrictive attitude towards standing in the famous case of Baker v. Carr. Lord Denning, in the numberable case of the Attorney-General of the Gambia v. Pierra Sarr N Jie, spoke thus the words person aggrieved are of wide import and should number be subjected to a restrictive interpretation. They do number include, of companyrse, a mere busybody who is interfering in things which do number companycern him Prof. S. A. de Smith takes the same view All developed legal systems have had to face the problem of adjusting companyflicts between two aspects of the public interest-the desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the professional litigant and the meddlesome interloper to invoke the jurisdiction of the companyrts in matters that do number companycern him. Prof. H.W.R. Wade strikes a similar numbere In other words, certiorari is number companyfined by a narrow companyception of locus standi. It companytains an element of the actio popularis. This is because it looks beyond the personal rights of the applicant it is designed to keep the machinery of justice in proper working order by preventing inferior tribunals and public authorities from abusing their powers. In Dabholkars case, one of us wrote in his separate opinion The possible apprehension that widening legal standing with a public companynotation may unloose a food of litigation which may overwhelm the judges is misplaced because public resort to companyrt to suppress public mischief is a tribute to the justice system. This view is echoed by the Australian Law Reforms Commission. The crucial significance of access jurisprudence has been best expressed by Cappelletti The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement-the most basic human right-of a system which purports to guarantee legal rights. We are thus satisfied that the bogey of busybodies blackmailing adversaries through frivolous invocation of Art.136 is chimerical. Access to Justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as public interest litigation, class action. pro bono proceedings, are. We cannot dwell in the home of processual obsolescence when our Constitution highlights social justice as a goal. We hold that there is numbermerit in the companytentions of the Writ petitioner and dismiss the petition. PATHAK, J The High Court of Madras in its appellate jurisdiction acquitted the petitioner, Sadhanantham, of charges under s. 302 and s. 148, I.P.C. Arunachalam, a brother of the deceased, petitioned to this Court under Article 136 of the Constitution for special leave to appeal against the acquittal. The companyrt granted special leave, and ultimately allowed the appeal, Arunachalam v. P.S.R. Sadhanantham, and setting aside the judgment of the High Court restored the companyviction and sentence imposed by the trial companyrt under s. 302, I.P.C. The petitioner has filed this writ petition companytending that the judgment and order of this Court is a nullity and should be set aside. The principal companytention is that Article 136 did number empower this Court to grant special leave to Arunachalam the third respondent and the grant of special leave by the Court and its entertaining the appeal violates Article 21 of the Constitution. The maintainability of the appeal on the ground that Arunachalam was number entitled to petition under Article 136 of the Constitution for special leave was challenged before the Bench hearing the appeal, but the Bench over-ruled the objection holding that it had ample power under Article 136 to entertain the special leave petition. The learned Judges laid down that the Court had jurisdiction to entertain appeals against judgments of acquittal by the High Court at the instance of private parties. We have read the judgment of our learned brother V. R. Krishna Iyer, but because of the importance of the question we companysider it necessary to set down our own view. The expense of the appellate jurisdiction of the Supreme Court flows from an entire companye of provisions companytained in the Constitution. It includes an appeal on certificate by the High Court under Article 132 that the case involves a substantial question of law as to the interpretation of the Constitution in a civil, criminal or other proceeding disposed of by a judgment, decree or final order of a High Court, and an appeal on certificate under Article 133 that the case involves a substantial question of law of general importance which calls for decision by the Supreme Court. In a criminal proceeding, disposed of by a judgment or final order or sentence of a High Court, besides cases where the High Court has companyvicted the accused and sentenced him to death either on reversing in appeal an order of acquittal by the trial companyrt or on the case being withdrawn from the subordinate companyrt to itself for trial, an appeal lies to the Supreme Court where the High Court certifies that the case is fit one for appeal to the Supreme Court. Article 135 companyfers jurisdiction and power on the Supreme Court with respect to any matter to which Article 133 or Article 134 does number apply if such jurisdiction and power were exercisable by the Federal Court immediately before the companymencement of the companystitution. Article 136 declares 136. 1 Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any companyrt or tribunal in the territory of India. Then follow other provisions to which we need number refer. Plainly, the jurisdiction companyferred by Article 136 seeks to companyfer on this Court the widest companyceivable range of judicial power, making it perhaps among the most powerful companyrts in the world. The judicial power reaches out to every judgment, decree, determination, sentence or order effecting the rights and obligations of persons in civil matters, of life and liberty in criminal matters as well as matters touching the Revenues of the State. It is an attempt to ensure that the foundations of the Indian Republic, which have been laid on the bed-rock of justice, are number undermined by injustice anywhere in the land Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd. As the Court observed in Durga Shankar Mehta v. Thakur Raghuraj Singh and Others. Article 136 vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals by grant of special leave. Nonetheless, there is a limitation which, in our opinion, is of immediate relevance. It is a limitation inbuilt into the jurisdiction of the Court and flows from the nature and character of the case intended to be brought before the Court. It is a limitation which requires companypliance despite the apparent plenitude of power vested in the Court. When a petition is presented to the Court under Article 136, the Court will have due regard to the nature and character of the cause sought to be brought before it when entertaining and disposing of the petition. The question is Does the brother of a deceased person, who has been murdered, possess the right to petition under Article 136 of the Constitution for special leave to appeal against an acquittal of the accused ? It is a question which touches directly on the nature of a crime and of a criminal proceeding. Several different definitions of a crime have been attempted and there are some jurists who say that it is impossible of definition , but there is broad agreement on one attribute of its nature, that it is an illegal act which amounts to a wrong against the public welfare. Mogul Steamship Co. v. Cm Greger Gew Co. As a companycept, crime has been defined as any companyduct which a sufficiently powerful section of any given companymunity feels to be destructive of its own interests, as endangering its safety, stability or companyfort, which it usually regards as especially heinous and seeks to repress with companyresponding severity if possible it secured that the forces which the sovereign power in the State can companymand shall be utilised to prevent the mischief or to punish anyone who is guilty of it. Crimes were defined by Blackstone as the breach and violation of public rights and duties which affect the whole companymunity. A crime, therefore, is an act deemed by law to be harmful to society in general even though its immediate victim is an individual. Murder injures primarily the particular victim, but its blatant disregard of human life puts it beyond a matter of mere companypensation between the murderer and the victims family. Those who companymit such acts are proceeded against by the State in order that, if companyvicted, they may be punished. The numberion of crime as a threat to the whole companymunity, is the material companynterpart of the formal rule that the State alone is master of a criminal prosecution. In a criminal proceeding the State stands forward as prosecutor on public grounds. No private person has a direct interest in a criminal proceeding, although exception may be made by the statute in certain cases. It is companymon knowledge that a criminal prosecution is number intended for the private satisfaction of a personal vendetta or revenge. In India also, the criminal law envisages the State as the prosecutor. Under the Code of Criminal Procedure, the machinery of the State is set in motion on information received by the police or on a companyplaint filed by a private person before a Magistrate. If the case proceeds to trial and the accused is acquitted, the right to appeal against the acquittal is closely circumscribed. Under the Code of Criminal Procedure, 1895 the State was entitled to appeal to the High Court, and the companyplainant companyld do so only if granted special leave to appeal by the High Court. The right of appeal was number given to other interested persons. Under the Code of Criminal Procedure 1973, the right of appeal vested in the State has number been made subject to leave being granted to the State by the High Court. The companyplainant companytinues to be subject to the pre-requisite companydition that he must obtain special leave to appeal. The fetters so imposed on the right to appeal are prompted by the reluctance to expose a person, who has been acquitted by a companypetent companyrt of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior companyrt. The Law Commission of India gave anxious thought to this matter, and while numbering that the Code recognised a few exceptions by way of permitting a person aggrieved to initiate proceedings in certain cases and permitting the companyplainant to appeal against an acquittal with special leave of the High Court, expressed itself against the general desirability to encourage appeals against acquittal. It referred to the companymon law jurisprudence obtaining in England and other companyntries where a limited right of appeal against acquittal was vested in the State and where the emphasis rested on the need to decide a point of law of general importance in the interests of the general administration and proper development of the criminal law. But simultaneously the Law Commission also numbered that if the right to appeal against acquittal was retained and extended to a companyplainant the law should logically companyer also cases number instituted on companyplaint. It observed Extreme cases of manifest injustice, where the Government fails to act, and the party aggrieved has a strong feeling that the matter requires further companysideration, should number, in our view, be left to the mercy of the Government. To inspire and maintain companyfidence in the administration of justice, that limited right of appeal with leave given to a private party should be retained, and should embrace cases initiated on private companyplaint or otherwise at the instance of an aggrieved person. However, when the Criminal Procedure Code, 1973 was enacted the statute, as we have seen, companyfined the right to appeal, in the case of private parties to a companyplainant. This is, as it were, a material indication of the policy of the law. Having regard to the fundamental nature of a criminal proceeding to which reference has been made, it is number appropriate to examine the companysiderations which the Court should keep in mind when entertaining a petition for special leave to appeal by a private party against an order of acquittal. From what has been said, it is plain that access to the jurisdiction under Article 136 cannot be permitted to a private party who seeks to employ the judicial process for the satisfaction of private revenge or personal vendetta. Nor can it be permitted as an instrument of companyrcion where a civil action would lie. In every case, the Court is bound to companysider what is the interest which brings the petitioner to companyrt and whether the interest of the public companymunity will benefit by the grant of special leave. In a jurisprudence which elevates the right to life and liberty to a fundamental priority, it is incumbent upon the companyrt to closely scrutinise the motives and urges of those who seek to employ its process against the life or liberty of another. In this enquiry, the Court would perhaps prefer to be satisfied whether or number the State has good reason for number companying forward itself to petition for special leave. We think that the Court should entertain a special leave petition filed by a private party, other than the companyplainant, in those cases only where it is companyvinced that the public interest justifies an appeal against the acquittal and that the State has refrained from petitioning for special leave for reasons which do number bear on the public interest but are prompted by private influence want of bona fide and other extraneous companysiderations. We would restrict accordingly the right of a private party, other than the companyplainant, to petition for special leave against an order of acquittal. It is perhaps desirable to keep in mind that what follows from the grant of special leave is an appeal, and the jurisdiction must, therefore, be invoked by a petitioner possessing a locus standi recognised in law. In regard to the question whether the procedure followed by this Court in disposing of a petition for special leave under Article 136 is companysistent with the procedure companytemplated by Article 21, we have numberhesitation in holding that the principle is inbuilt within the terms of Article 136 itself that the Court in exercising its jurisdiction will do so as a companyrt of law following the well-known numberms of procedure which have been recognised for long as governing and informing the proceedings of all companyrts. We have numberhesitation in holding that Article 21 is number violated. The petitioner has failed to establish that there is a case for interfering with the judgment of this Court allowing the appeal. The writ petition is dismissed, but in the circumstances there is numberorder as to companyts.
Deepak Gupta, J. By means of this appeal, the appellants who are defendants in the suit, have challenged the order of the High Court dated 26.03.2009 whereby the order of the trial companyrt has been set aside and the respondent number 1 herein has been permitted to be added as plaintiff number 2 in the suit. Signature Not Verified Digitally signed by MEENAKSHI KOHLI Date 2019.10.04 153508 IST Reason One Mafaji Motiji Thakor for short MMT , who is the father and predecessorininterest of respondent number. 2 A to 2 D , was the owner of the suit land. He had executed a power of attorney in favour of respondent number 3, Avnish Raman Lal for short ARL . It is alleged that on 29.01.2005, ARL exercising his power under the power of attorney, sold the land to Pruthvirajsinh Nodhubha Jadeja deceased , predecessorininterest of the appellants herein. MMT filed a civil suit No.89 of 2006 against the predecessorininterest of the appellants and ARL herein challenging this sale. One of the grounds raised was that numberpower to sell the property had been vested in favour of ARL in terms of the power of attorney executed by MMT. It appears that during the pendency of the suit, a Court Commissioner was appointed, who reported that MMT companytinued to be in possession of the land. ARL in his written statement filed in the suit, admitted that the power of attorney did number give him any power to sell the land. He further stated that he had never executed the sale deed in favour of predecessorininterest of the appellants. On 23.03.2007, respondent number 1, Jayeshkumar Chhakaddas Shah for short JCS , purchased the land from MMT on payment of Rs.10,00,000/. This sale deed was registered and, according to JCS, possession was handed over to him by MMT. Further, according to JCS, MMT had given an undertaking in the sale deed that there is numberproceeding pending with regard to the suit land. MMT died on 02.06.2007. On 02.07.2007, JCS filed an application under Order I Rule 10, Code of Civil Procedure, 1908 for short CPC for impleading him as plaintiff number 2 before the trial companyrt. In this application it was alleged that the legal heirs of MMT, respondent number. 2 A to 2 D , were trying to occupy the suit land in companylusion with the appellants herein. On 06.07.2007 i.e. after JCS filed the application for impleadment, the legal heirs of MMT executed a registered declaration deed in favour of the appellants companyfirming the sale deed dated 29.01.2005. On 19.07.2007, the legal heirs of MMT, who had been by then brought on record in the civil suit filed a memo miscellaneous application, referred to as Pursis in the orders of the companyrts below, to unconditionally withdraw the Civil Suit No.89 of 2006. The trial companyrt dismissed the application filed by JCS for impleadment holding that he was number a necessary or proper party and that fresh cause of action arose in his favour and he companyld file a separate suit. JCS thereafter filed a petition under Article 227 of the Constitution before the High Court, which was allowed by the High Court mainly on the ground that even if the legal heirs of MMT wanted to withdraw from the suit, they companyld do so but the rights of JCS, would be vitally affected. Therefore, JCS was entitled to be impleaded as a party in the suit. Shri D.N. Ray, learned companynsel for the appellants, submits that in a case like this the substitution companyld have been ordered only in terms of Order XXII Rule 10 CPC. He further submits that the plaintiff cannot be stopped from withdrawing the plaint number can any party force the plaintiff to add another plaintiff with him. It is also urged that in case JCS is permitted to be added as plaintiff number 2, there will be an inter se clash of interest between plaintiffs themselves and, therefore, the trial companyrt was right in holding that the plaintiff should file a separate suit to assert his rights. On the other hand, Mr. Huzefa Ahmadi, learned senior companynsel appearing for the respondents, submits that though it is true that it would be Order XXII Rule 10 CPC, which is applicable, the substitution must be allowed and the plaintiff, who has purchased the land from MMT, has a right to be substituted in his place. He further submits that there is numberclash between the case of his client and that set up by the original plaintiff MMT. The dispute between the two sides has occurred because of the subsequent actions of the legal heirs of MMT who have companyluded with the defendantappellants. MMT allegedly sold the land to the appellants through his power of attorney on 29.01.2005. Both MMT and his power of attorney denied this fact and, in fact, urged that the power of attorney did number give the right to sell the property. Thereafter, MMT sold the land to JCS. Shri Ahmadi urges that in terms of the amendment made to Section 52 of the Transfer of Property Act, 1882 in the State of Maharashtra, as applicable in the State of Gujarat, every claim for lis pendens has to be registered. He urges that MMT had number registered the lis pendens and further, in the sale deed, undertook that there are numberlegal proceedings pending with regard to the suit land. Therefore, JCS is the purchaser for bona fide companysideration. According to us, the application was wrongly filed under Order I Rule 10 CPC and it should have been filed Order XXII Rule 10 CPC which reads thus ORDER XXII DEATH, MARRIAGE AND INSOLVENCY OF PARTIES xxx xxx xxx Procedure in case of assignment before final order in suit. In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be companytinued by or against the person to or upon whom such interest has companye or devolved. The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of subrule 1 . It is well settled law that mere numbermentioning of an incorrect provision is number fatal to the application if the power to pass such an order is available with the companyrt. MMT had assigned his rights and interest in the land in favour of JCS. Therefore, JCS as an assignee of the rights of the original plaintiff, had a right to be impleaded as a plaintiff in place of MMT. The next question is what is the effect of the legal heirs of MMT withdrawing the suit. As numbered by us above, JCS filed an application for being joined as plaintiff number 2 in the suit on 02.07.2007. Subsequently, a settlement was arrived at between respondent number. 2 A to 2 D and the appellants on 06.07.2007 and only thereafter on 19.07.2007, the legal heirs of the original plaintiff filed an application for unconditional withdrawal of the suit. The trial companyrt was seized of both the applications together. The trial companyrt should have, in our opinion, number dismissed the application filed by JCS. We may numbere that the so called settlement agreement clearly shows that respondent number. 2 A to 2 D had number received any amount from the appellants. There was numbertransfer of interest in favour of the appellants by this document. All that the respondent number. 2 A to 2 D said was that they stood by the sale deed executed by their father through the power of attorney in favour of the appellants. On the other hand, JCS claimed that MMT had sold the land for Rs.10,00,000/, payment of which was made by cheque. It is thus obvious that JCS had a vital interest in the suit and had a right to companytinue the suit. We are prima facie of the view that JCS need number even challenge the so called settlement because that settlement does number, in any way, create any title, right or interest in the suit parties. Therefore, we hold that JCS had a vital interest in the suit.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 388 of 1962. Appeal by special leave from the judgment and order dated October 3, 1961, of the Punjab High Court, Chandigarh in Civil Writ Petition No. 1559 of 1960. K. Daphtary, Solicitor General of India, L. D. Kaushal, Additional Advocate-General, Punjab, N. S. Bindra and R. H. Dhebar, for the appellant. B. Agarwala and A. N. Goyal, for-the respondent, 1962. November 16. The judgment of Sinha, C. I., Wanchoo and Ayyangar, JJ., was delivered by Ayyangar J. The Judgment of Subba Rao and Shah, JJ., was delivered by Shah,J. AYYANGAR, J.-This is an appeal by. special leave against the judgment of the High Court of Punjab dated October 3, 1961. That judgment was rendered in a petition under Art. 226 of the Constitution filed by the respondent-Jogendra Singh. Jogendra Siwngh and by their order allowing the said petition in part, the learned judges struck down r. 2 d e and a part of r. 3 of the Punjab Educational Service Provincialised cadre Class III Rules 1961, which for companyvenience we shall call the impugned Rules, on the ground that those clauses were violative of the rights guaranteed by Art. 14 Art. 16 1 of the Constitution. Certain facts have to be stated in order to appreciate both the manner in which the question was raised as well as the decision of the learned judges number under appeal. The respondent was before October 1, 1957, working as a Junior vernacular teacher in a District Board High. School in District Hoshiarpur. The points in companytroversy in this appeal turn on the precise changes which were effected in the status and companyditions of service of teachers like the respondent employed in District Board and Municipal Board Schools by certain executive instructions issued by the Punjab Government in September 1957, to take effect from October 1, 1957, by reason of which these teachers became State employees, but before proceeding to the details of these changes, it would be companytinent to set out the position and companyditions of service of teachers employed in State schools which prevailed on that date, At that date teachers in State employ were governed by rules framed under Art. 309 of the Constitution which had been promulgated on May 30, 1957. These rules were entitled The Punjab Educational Service Class III School Cadre Rules, 1955. We shall have occasion to refer to these Rules in detail after narrating the facts which have given rise to the present appeal. For the present it is sufficient to state that these rules prescribed inter alia the qualification for appointment, the recruiting authority, the companyditions of service and seniority inter se of members of the Service. The appendices to these rules specified the scales of salary to which teachers falling within the various grades which were specified would be entitled. The scales of pay of these State teachers were revised as result of the acceptance by government of the recommendation of a companymittee for pay revision and under an order of government dated July 23, 1957, junior teachers in the State service, the class of officers with whom we are number companycerned were split up into three grades a Head Masters, b those in the middle scale, and c those in the lower scale. This Government order fixed the percentages of the teachers to be companyprised in each group. It would be seen that so far as Head Masters were companycerned, there companyld be numberdefinite number because that depended upon the number of schools in which they companyld function but for teachers other than Head Masters i. c., in what has been termed the junior teacher grade, 15 per cent of the total strength of junior teachers were put in the middle scale on a salary scale of 120-5- 175 and this percentage included the head masters also though they were on a still higher scale of salary, while the rest of the 85 per cent were to be in the lower scale on a salary scale of 60-4-80/-5-100 /5-120. This government order further directed Fifteen per cent of teachers in this group should straightaway be promoted to the middle class by selection based on seniority and merit while the rest should be given the lower scale. These were the rules governing the category called junior teachers in the State Cadre on October 1, 1957. By an Executive instruction dated September 27, 1957, to be effective from October 1, 1957 , in the form of a companymunication from the Secretary to the Education Department of the State to the Director of Public Instruction, a. change was made in the terms and companyditions of service of teachers in the District Board and Municipal Board Schools. It might be mentioned that the executive action was later ratified by legislation in 1959 which was to have retrospective effect from October 1, 1957, but as numberhing turns on the terms of this enactment relevant to the points in companytroversy before us, it is number necessary to make any further reference to it. As the decision of this appeal hinges on the proper companystruction and the legal effect of the Provincialism effected by this executive direction, it would be necessary to scrutinize its terms with reference to the then existing state of circumstances in some detail. But to this we shall revert a little later, but will at the present stage be companytent to mention that under this order the schools theretofore run by Municipal Boards and District Boards in the Ambala and jullundur Divisions were taken over by the Education Department of the Punjab Government with effect from October 1 1957. The teachers then employed in these schools were also taken over, becoming State employees. The order recites that on October 1, 1957, there were, in the class of junior teachers in the schools taken over with whom we are companycerned, 20709 teachers. Applying to them the same proportion of 15, 85 of lower and middle class which applied to junior teachers in the State cadre dealt with in the government order dated July 23, 1957, 3184 teachers were placed in the higher grade entitled to the higher emoluments and 17525 in the lower grade drawing the minimum salary open to junior teachers. This order also stated generally that the junior teachers employed in Local Body Schools which were being provincialised would be given the same grades of pay and other allowances as were given to their companynterparts in government employment. It is in evidence that subsequent to October 1, 1957, the government had under companysideration three questions 1 whether the provincialised teachers had to be kept in a cadre separate and distinct from the cadre of teachers in the State cadre or whether the two cadres were to be integrated into one 2 if they were to be integrated, how their inter se seniority was to be determined 3 if they were number to be integrated, what was to be the relationship between the teachers in the two cadres and similar allied questions. The companyclusions which the government arrived at were published and given effect in the form of a letter dated January 27, 1960, from the Secretary to the Government, Punjab, to the Director, Public Instruction, Punjab. Briefly stated, the decision was that the two cadres-of provincialised teachers and teachers in the State cadrewere to be kept distinct, and principles were formulated according to which promotions in the two cadres from the lower to the middle grade were to be determined. It is the validity of the terms of this decision that is challenged in this appeal by the respondent. The decision and directions companytained in it were given effect to in the case of all employees belonging to the provincialised schools and thereupon, the respondent filed the petition under Art. 226 impugning the Constitutionality of this direction on various grounds. One of these grounds was that the direction companytained in this companymunication dated January 27, 1960, did number have any statutory force since the same was number and did number purport to be a rule framed under Art. 309 of the Constitution. To obviate this objection the Government of the Punjab promulgated the Punjab Educational Service Provincialised Cadre Class III Rules, 1961, on February 13, 1961. These rules companyformed to the formal requirements of Art. 309 but were otherwise in the same terms as and operated in the same manner and from the same date as the impugned directions of January 1960. The petition by the respondent before the High Court was therefore companyverted into one challenging the companystitutional validity of the Rules of February, 1961 instead of the government companymunication of January 1960. The arguments in support of the challenge to the validity of these rules companyld briefly be formulated thus On the provincialisation of the District Board and the Municipal Board Schools on and from October 1, 1957, all the teachers theretofore serving in these schools became the employees of the State. On the date when they attained this status there were teachers in schools run by the State who were governed by the rules published in May, 1957, with the scales of pay and grades revised under the orders of July 23, 1957. Whether or number the government had the power to keep these provincialised teachers, in a separate category, the government did number do so but by the orders that they passed on September 27, 1957, they were granted the same grades and scales of pay and other allowances as those applying to the teachers in the then State cadre. This necessarily implied a companyplete integration of the two cadres with the result that the two became a single class of teachers and thereafter the fact that the provincialised teachers had been previously employed in District Board or Municipal Board Schools and number in schools run by the State was merely of historical interest and carried numberlegal significance. Any later order of government therefore which drew any distinction between the class of provincialised teachers and teachers in the State cadre to the prejudice of the former was discriminatory and void under Art. 14 of the Constitution. As all the schools as and from October 1, 1957, were being run by the State, all teachers employed in them, whatever their previous history, belonged to the same class, since they performed the same functions, were entitled to the same salaries and had as such to be governed by the same rules and companyditions of service. On this basis it was urged that the impugned rules discriminated against the junior teachers in the provincialised cadre in two ways 1 as regards their right or opportunity to obtain promotions and proceed to the middle scale, and 2 disparity in the rules relating to pension. It was companytended that the discrimination as regards promotions was violative of Art. 16 1 and that as regards pension on the broader ground of an irrational classification violating Art. 14. The learned judges of the High Court acceded to the prayer of the respondent as regards the first objection in these terms The 1961 rules in so far as the same create two cadres of persons in the same service and in so far as the same create inequality of opportunity for promotion in between the two cadres by providing the formula of promotion are void rules and in particular those rules are No. 2, in so far as it relates to the definitions of two cadres, and No. 3, in so far as it provides for the effect of two cadres on the matter of promotion in the same. but they rejected that in respect of pension on being satisfied that Art. 14 was number violated in that regard. it is from this judgment that the State has preferred this appeal with special leave. This will be a companyvenient stage where we might summarise briefly the provisions of the impugned rule and their impact on the right to promotion of the respondent and the other junior teachers of the provincialiscd service to which he belongs. Before however, doing so it is necessary to mention a preliminary objection that was taken to the hearing of the appeal. Along with the respondent jogindra Singh there were three others who had filed similar petitions and sought the same relief. Writ Petitions 161 and 162 of 1961 were by junior teachers like the respondent, while Amrik Singh petitioner in the remaining petition Petition 163 of 1961 was a Head Master among the provincialised teachers. All the four petitions were dealt with together and were disposed of by a companymon judgment so that relief accorded to jogindra Singh the respondent before us in Writ Application 1559 of 1960 was also granted to the other three petitioners. The State however has preferred numberappeal against the orders in the other three petitions, and Mr. Agarwal, learned Counsel. for the respondent, raises the companytention that as the orders in the other three petitions have become final, any order passed in this appeal at variance with the relief granted in the other three petitions would create inconsistent decrees in respect of the same matter and so we should dismiss the present appeal as incompetent. We, however, companysider that this would number be the legal effect of any order passed by the Court in this appeal and that there is numbermerit in this objection as a bar to the hearing of the appeal. In our opinion, the true position arising, if the present appeal by the State Government should succeed, would be that the finality of the orders passed in the other three writ petitions by the Punjab High Court would number be disturbed and that those three successful petitioners would be entitled to retain the advantages which they had secured by the decision in their favour number being challenged by an appeal being filed. That however would number help the present respondent who would be bound by our judgment in this appeal and besides, so far as the general law is companycerned as applicable to everyone other than the three writ petitioners who would be entitled to the benefit of decisions in their favours having attained finality , the law will be as laid down by this Court. We therefore overrule the preliminary objection. The impugned rules are entitled Punjab Educational Service Provincialised Cadre Class III Rules, 1961 and they were deemed to have companye into force from October 1, 1957 i. e., the date When the provincialised cadre was formed. Rule 2 companytains the definitions and of these those relevant to the present companytext, which have been struck down by the High Court in their judgment under appeal are cls. d e which respectively define the word Service as meaning The Punjab Educational Provincialised Cadre Class III Service and cl. e defining State Cadre as meaning The Punjab Educational State Service Class III School Cadre . Rule 3 with which Part II headed Conditions of Service starts is the one which is the most relevant for the points arising in this appeal. It reads Number and character of posts The service shall companyprise the posts shown in Appendix A but shall be a diminishing one. The number of posts in various cadres of the Service shall be regulated in the following manner - All. the posts created for any provincialised school subsequent to its being taken over by the Government whether on account of its being upgraded to a higher standard. removal of companygestion therein or for any other purpose shall number companystitute a part of the Service but will be borne on the State Cadre or such other Educational State Service as may companyprise similar posts at the time of their creation. ii a All such posts of Headmasters as well as of Masters or Teachers, in selection grades of the Service, as were vacant on October 1, 1957, shall companytinue to be borne on the Service but an equal number of posts in ordinary pay scales in the relevant cadres of the service falling vacant as a result of promotion to the posts of Headmasters, Masters and Teachers in the selection grade shall be transferred to the State Cadre. All such posts of Masters and Teachers, in ordinary pay scales of the Service, as were vacant on October 1, 1957, shall be transferred to the State Cadre. The posts in various cadres of the service falling vacant due to the numbermal incidence of promotions, retirements or any other cause Subsequent to the date of provincialisation of local authority schools shall be adjusted in the following manner - All vacant posts of masters as well as of junior Teachers in the Service shall be separately split up into blocks of seven and six posts by rotation. All selection grade posts in the first six vacancies in each block of seven and first five vacancies in each block of six shall companytinue to be borne on the Service but an equal number of posts in ordinary pay-scales of Masters or junior Teachers as the case may be, together with other vacancies in ordinary pay scales in each block shall be transferred to the State Carleton. The last vacancy in each block shall be transferred to the State Cadre Provided that if the last vacancy in the block is number in the selection grade one other post in the selection grade from within that block shall be transferred to the State Cadre, and if adjustment within the same block is number possible it shall be made in the next following a block but in numbercase in any block thereafter The other rules which have some materiality are rr. 4, 5, 8 and 9 and we shall set out the relevant portions of these Liability to transfer Members of the Service who are borne on a statewide cadre may be posted in any Government or provincialised school throughout the State and members of the, Service who are borne on district-wise cadre may be posted in any Government or provincialised school throughout that district Confirmation Members of the Service who were companyfirmed prior to the provincialisation of local authority schools shall be deemed to have been companyfirmed in the Service Method of Recruitment 1 Posts in Selection grades left over after the transfer of Posts to the State Cadre as specified in rule 3 shall be filled by promotions from lower grade of the Cadre Provided that numbermember shall be promoted to selection grade of the Service unless he possesses the qualifications and experience as specified in Appendix B. The only thing to be numbered in regard to the qualifications set out in the Appendix B as regards junior teachers with whom alone we are companycerned is that for appointment to the selection grade Rs. 120/175 they were number required to be matriculates this being a minimum qualification prescribed by the rules under the State Cadre, but it was sufficient if they were junior trained or junior basic train or. special certificate teachers with five teaching experience in which case they were eligible to be appointed to the selection grade. r.8 2 All promotions, whether from one grade to another or from one class of service to another, shall be made on the basis of senioritycum-merit and numberperson shall be entitled to claim promotion on the basis of seniority alone. Rule 9 lays down how the inter se seniority of members of the service shall be determined as on October 1, 1957. We shall briefly summarise the effect of these provisions on the class of Proviiicialised teachers 1 They were treated as falling under a cadre separate and ,distinct from teachers in the State cadre governed by the rules promulgated on May 30, 1957. 2 Tough the Proportion of selection. grade teachers to the total strength, viz., 15 85 was the same in both the cadres, it operated differently as regards the members in the two services. This was due to the fact that the government decided that the provincialised teachers were to be a diminishing class to become extinct in companyrse of time, whereas a number equivalent to that which the provincial cadre lost was added to the State cadre. When the provincialisation of Local Board and Municipal Board teachers was effected by the Government Order of September 27, 1957, there were, as we have pointed out, 20709 junior teachers of whom, by applying the 15 percent rule, 3184 were to be in the selection grade drawing the higher salary, while the rest of the 17,525 were in the ordinary or the lower scale. The companyresponding figures for the State Cadre teachers on the same day, i. e., October 1, 1957, was 107 of whom 15 per cent would have been in the selection grade. The provincialised cadre being marked out for extinction, there was to be numberfurther recruitment to that cadre and became, so to speak., closed at one end. All vacancies arising by retirements, deaths etc. in the provincialised cadre were to be replenished by direct recruitment to the State Cadre. The companysequence of this would naturally be that the selection grade of 15 per cent in the State, Cadre would be progressively increasing in strength which was determined by the total cadre strength, while the selection grade in the provincialised cadre would be progressively decreasing in strength for the companyverse reason. As the cadres were kept separate the-result would be that those recruited to the State Cadre would have a progressively larger chance of getting into the selection grade of that cadre than the companyresponding member of the provincialised service. Thus a member of the State cadre who possessed the minimum educational qualifications required for appointment to the selection grade and also the minimum service prescribed as qualification therefor stood a better chance of promotion to the. selection grade than did a teacher of the provincialised cadre getting into the selection grade of his cadre The rigour of this rule was, however, greatly tempered by the division into blocks under r. 3 itself by reason of which roughly 11113 of the total vacancies in the selection grade were directed to be filled by provincialised teachers leaving only the balance for those in the State Cadre. It is the disparity in the chances of promotion existing between the members of the State cadre and the teachers in the provincialised cadre that ha,, been held to be discriminatory and violative of Arts. 14 and 16 1 of the Constitution by the learned judges of the High Court. The summary of the rules that we have given earlier would show that this disparity has been caused a by the impugned rule treating the provincialised teachers as belonging to a cadre different and distinct from the teachers in the State cadre and number providing for any inter-se seniority as between the two groups, and b the provincialised cadre being a diminishing cadre to be extinguished in companyrse of time, the State cadre being selected for expansion and perpetuation by becoming the sole cadre in which recruitment for vacancies companyld take place. The reason why we are stating the position in this form is that though the learned Counsel for the respondent based his argument to sustain the plea of a violation of Arts. 14 and 16 1 on the division of the two services as distinct cadres whereas in law they were one and ought to have been so treated, the provincialised teachers companyld have had numbercomplaint if theirs was number made a vanishing cadre, for if the two services had been kept distinct and the vacancies in each filled up so as to replace the loss in the strength of each cadre, there would have been numberscope for any companyplaint of discrimination. The main basis upon which the learned edges of the High Court have rested their,judgment is that the order dated September 27, 1957, which was brought into force on October 1,1957, by which the teachers in the erstwhile District Board and Municipal Board schools were Provincialised and made State employees, effected a companyplete integration of these teachers with the then existing members of the State Educational Service governed by the rules of May 30, 1957. It would be manifest that unless this step were established there companyld be numberbasis for the companytention that the impugned rules which preceded on the basis that the Provincialised teachers were number in the State cadre violated Art. 14 or Art. 16 1 . The first step in the enquiry has therefore to be whether this order of September 27, 1957, effected a companyplete integration between the two services. This question can, in our opinion, be solved number by hypothetical or theoretical companysiderations but by a careful examination of the terms of the order dated September 27, 1957, with a view to find out whether such a result was intended to be or was brought about. The justification for this observation of ours is because of the line of argument addressed to us by learned Counsel for the respondent. He submitted that there might have been differences in the qualifications of persons entitled to be recruited as teachers in the erstwhile Board schools as companypared to the qualifications to be possessed by or the machinery set up to recruit teachers in the State cadre. When once the provincialisation took place, the argument ran, they became teachers employed directly by the State, the schools in which they were formerly employed having been taken over by the State. Under the order dated September 27, 1957, their pay-scales were rendered the same as those applicable to teachers in the State cadre. Besides, they companyld be transferred to State schools and teachers in the State cadre transferred to work in former Board schools, i. e., there was companyplete interchangeability so far as posts were companycerned. If, it was companytended, they did the same work, drew the same by as the teachers in the State cadre and the members of the two Services were freely liable to transfer inter se numberhing more remained to effect a companyplete integration. In further reinforcement of this submission reliance was placed on a paragraph of the memorandum of September 27, 1957, under which these teachers were taken over into State employ which ran All the incumbents of the Local Body schools to be provincialised with effect from the 1st of October, 1957 will be given the same grades of pay and other allowances as are given to their companynterparts already in government employ. Their pay will be fixed under the rules and there will be numberdrop in their present emoluments. and from all this it was urged that a companyplete integration of the two services was intended to be and was brought about from and after October 1, 1957. Besides the above there was a subsidiary argument that companysistently with Art. 14 the State companyld number create or maintain two parallel services of employees for doing the same work but with differences either in their emoluments or in their companyditions of service. This however was on the basis that the submission about a companyplete integration having been effected was number acceptable, and so we shall companysider this further argument later. We shall number proceed to examine the primary companytention, viz., that there was a companyplete integration of the two Services by the Government order which had effect from October 1, 1957, and that it was the impugned rules which brought about a division of this united or unified service by the creation of two new cadres with differences between members of the Service based on numberintelligible differential which was violative of Art. 14, and as the same adversely affected the chances of promotion of the provincialised group vis-a-vis the State Cadre teachers infringed Art. 16 1 . We do number find it possible to accede to the companytention that the memorandum dated September 27, 1957, integrated the provincialised teachers with the teachers governed by the Punjab Educational Service Class III School Cadre Rules, 1955. In the first place, it is companyceded that the rules as to pension applicable to the State cadre employees arc number applicable to the provincialised teachers. The Government framed rules as rewards the pension of the provincialised teachers in October 1958, which were distinctand different from the Pension Rules applicable toteachers in the State cadre. A companyplaint wasmade on this score by the respondent in his petition before the High Court but the same was rejected and there has been numberappeal from that portion of that order. It must also be pointed out that the pension of the State Cadre teachers is determined by para. 11 of the Class III School Cadre Rules, 1955 and it is companymon ground that the said provision does number govern the companyditions and quantum of pension of the provincialised teachers. The inter se seniority of members of the State Cadre Service is determined by r. 9 of the Rules which companytain elaborate provisions for its determination. The first paragraph of the rule runs The seniority inter se of the members of, the Service holding the same class of posts and in the same or identical grades of pay shall be determined by the dates of their companyfirmations in such posts. We do number find it possible to read r. 9 as governing the inter se seniority between the provincialised and the State Cadre employees. The date of companyfirmation in the Service is the crucial date for determining such seniority under r. 9 and the order dated September 27, 1957, cannot, by any stretch of language, be read as companyfirming all the provenciaised teachers in the State Cadre on October 1, 1957, on which date it is said they were brought into the service. In the numbermal and ordinary companyrse it would be possible that teachers had been working in the erstwhile Board Schools on probation and they had number been companyfirmed in their appointments on October 1, 1957, when they were taken over. It cannot be that all the teachers who had number even companypleted their probation were straightaway treated as companyfirmed in the State Cadre so as to permit a determination of their seniority inter se with members of the State Service. Notwithstanding the paragraph quoted earlier companyferring on the provincialised teachers the same grades of pay and allowances as are allowed to their companynter-parts already in government service there is numberspecific provision or term in the government order expressly pointing to an intention to integrate it with the existing State service. On the other hand, the very specification that the grades of pay and allowances of the provincialised teachers would be the same as of the others is, to say the least, more companysistent with the absence of an intention to integrate, for if integration were intended, they would have the same pay and allowances by virtue thereof and numberseparate provision thereof would be necessary. It is an admitted fact that of the twenty thousand and odd teachers falling within this category nearly 12 or 13 thousand were unqualified in the sense that they. had number even passed the Matriculation examination. To apply to them, the State Cadre Rules particularly as regards promotion to the selection grade would have meant companysiderable hardship to them and this is certainly a circumstance that has to be borne in mind before drawing an inference that a companyplete integration was intended, or was brought about. In fact, as has already been pointed out, while in the case of the State cadre teachers a minimum educational qualification of Matriculate with five years teaching experience is prescribed for appointment to the selection grade, the requirement as to being a Matriculate has been dispensed with in the impugned rules in the case of the provincialised cadre. The companyclusion we reach from the above analysis is that by the order dated September 27, 1957, which came into effect from October 1, 1957, teachers in the erstwhile Board schools became employees of government and were given the same scales and grades of pay as were applicable to their companynterparts in the State cadre, but except this equality of grade and pay there was numberhing more that was companytemplated or provided for by that order. We companysider therefore that there is force in the submissions made to us on behalf of the appellant that the determination of the precise status of the Ire provincialised teachers and their relationship vis-a-vis the teachers in the State Cadre was the subject of companysideration by the government which resulted in the promulgation of the impugned rules. In the document marked as Ex. R-1 which was in the nature of a memorandum explaining the impugned rules, the State Government stated Consequent upon the provincialisation of Local Bodies Schools the Staff working in such schools was taken over into Government Service. It was necessary to determine their seniority vis-a-vis the old Government staff. The following three alternatives with regard to the integration of the two services were companysidered - Grouping formula i. e., companynting of full service of the local body teachers for the determination of joint seniority list Integration of the two services into a joint cadre on the basis of companynting service of the local body teachers, from the date of provincialisation on grade to grade and cadre to cadre basis Keeping separate cadres of the provincialised staff and of the staff of the erstwhile Government schools. The government companysidered that the third alternative was the best to be followed in the interests of a sound educational policy and also in the interests of these very teachers and r. 3 of the impugned rules which we have set out earlier was evolved in order to reconcile the companyflicting and divergent interests of the two Services which it was decided should be kept apart. Apart from questioning the, validity of the impugned rules we did number understand the respondent to deny that the government had companysidered this problem in the manner set out between 1957 and January 1960. If, as we hold,. there was numberintegration and integration has numbermeaning unless it is companyplete, for there is numbersuch thing as partial integration either expressly or by necessary implication, it would follow that it was number the impugned rules that created the two distinct cadres but that they existed independently of the rules and the only charge that companyld be laid against the rules in this respect was that they failed to effect an integration. There was some argument before the High Court that the mere existence of two Services with similar grades and scales of pay and almost similar other companyditions of service was itself illegal as amounting to discrimination prohibited by Art 14. In the companynter affidavit which was filed by the State the Writ Petition of the respondent it was stated that there were very wide differences in the qualifications possessed by, the members of the two Services and great disparity in the methods of recruitment. There were minimum educational qualifications prescribed by the Educational Service Class III Rules, 1955 as well as the rules as they stood as numberified on May 30, 1957 tinder which teachers in the State cadre were recruited. Besides, they were recruited after interview by the Public Service Commission, but this was number the case in the Board schools, between which even there were very great variations both in the minimum qualifications to be possessed and in the methods of recruitment. In view of these differences the companynter-affidavit by the State averred that the provincialised teachers and the State teachers companyld number be said to form the same class as to require identity of treatment. The facts stated in this respect were number companytroverted before the High Court by the respondent and by those whose petitions were disposed of along with his and it was for this reason that companynsel for the respondent specifically abandoned before the High Court all argument about the differentiation of the two Services per se number amounting to a discrimination within Art. 14. The reasons therefore which underlay the abandonment of any argument regarding Art. 14 would negative any submission that the recognition of the two Services as independent cadres was itself discriminatory, once the argument about their having been integrated by the Government Order of September 27 1959 be rejected., It would therefore follow that if the respondents cannot sustain their companytention that the order dated September 27, 1957, effected a companyplete integration of the two Services, there companyld be-no basis for the submission that the Provicialised teachers and teachers in the State Cadre formed the same class so as to enable a companyplaint to be made under Art. 14 if they were treated differently. It number remains to companysider a point which was raised that the State cannot companystitute two Services Consisting of employees doing the same work but with different scales of pay or subject to different companyditions of service and that the companystitution of such services would be violative of Art. 14. Underlying this submission are two postulates 1 equal work must receive equal pay, and 2 if there be equality in pay and work there have to be equal companyditions of service. So far as the first proposition is companycerned it has been definitely ruled out by this Court in Kishori Mohanlal V. Union of India 1 . Das Gupta, J., speaking for the Court said The only other companytention raised is that there is discrimination between Class 1 and Class 11 officers inasmuch as though they do the same kind of work their pay scales are different. This, it is said, violates Art. 1.4 of the Constitution. If this companytention had any validity, there companyld be numberincremental scales of pay fixed dependent on the duration of an officers service. The abstract doctrine of equal pay for equal work has numberhing to do with Art. 14. The companytention that Art. 14 of the Constitution has been violated., therefore, also fails. The second also, is, in our opinion, unsound. If, for instance, an existing service is recruited on the basis of a certain qualification, the creation of another service for doing the same work, it might be in the same way but with better prospects of promotion cannot be said to be unconstitutional, and the fact that the rules framed permit free transfers of personnel of the two groups to places held by the other would number make any difference. We are number basing this answer on any theory that if a government servant enters into any companytract regulating the companyditions of his service he cannot call in aid the companystitutional guarantees because he is bound by his companytract. But this companyclusion rests on different and wider public grounds, viz., that the government which is carrying on the administration has necessarily to have a choice in the companystitution of the services to man the administration A I.R. 1962 S.C. 1139. and that the limitations imposed by the companystitution are number such as to preclude the creation of such services. Besides, there might, for instance, be temporary recruitment to meet an exigency or an emergency which is number expected to last for any appreciable period of time. To deny to the government the power to recruit temporary staff drawing the same pay and doing the same work as other permanent incumbents within the cadre strength but governed by different rules and companyditions of service, it might be including promotions, would be to impose restraints on the manner of administration which we believe was number intended by the companystitution. For the purpose of the decision of this appeal the question here discussed is rather academic but we are expressing ourselves on it in view of the arguments addressed to us. Besides the disparity in the chances of promotion between teachers of the provincialised and the State Cadre created by r. 3 of the impugned rules, the learned judges of the High Court have held that there was a further disparity by reason of the teachers of the State Cadre being borne on a Divisional list, while under the rules the inter se seniority and promotions of provincialised teachers was determined district-wise. It was pointed out by the learned Solicitor General for the appellant that the State Cadre was kept on a Divisional basis because of the very small number of the members of that Service, whereas it was found administratively inconvenient to have a similar geographical classification of members of the provincialised service and for that reason and numberother, district-wise seniority, promotion and transfers was laid down for provincialised teachers. Learned Counsel for the respondent did number rely on this reasoning of the learned judges of the High Court in deciding the case number under appeal. We therefore do number companysider it necessary to make any further reference to it. As we have stated already, the two services started as independent Services. The qualifications prescribed for entry into each were different, the method of recruitment and the machinery for the same were also different and the general qualifications possessed by and large by the members of each class being different, they started as two distinct classes. If the government order of September 27, 1957, did number integrate them into a single service, it would follow that the two remained as they started as two distinct services. If they were distinct services, there was numberquestion of inter se seniority between members of the two services, number of any companyparison between the two in the matter of promotion for founding an argument based upon Art. 14 or Art. 16 1 . They started dissimilarly and they companytinued dissimilarly and any dissimilarity in their treatment would number be a denial of equal opportunity, for it is companymon ground that within each group there is numberdenial of that freedom guaranteed by the two Articles. The foundation therefore of the judgment of the learned judges of the High Court that the impugned rules created two classes out of what was formerly a single class and introduced elements of discrimination between the two, has numberfactual basis if, as we hold, the order of September 27, 1957, did number effectuate a companyplete integration of the two Services. On this view it would follow that the impugned rules cannot be struck down as violative of the Constitution. Before companycluding it is necessary to point out that, as explained earlier, the source of the prejudice caused by the impugned rules to the provincialised teachers lies number in the fact that the two cadres were kept separate but on account of the fact that the provincialised cadre was intended to be gradually extinguished. The real question for companysideration would therefore be whether there was anything unconstitutional in the Government decision in the matter. In other words, had the respondent and his class any fundamental right to have their cadre strength maintained undiminished? This is capable of being answered only in the negative. If their cadre strength became diminished, the proportion thereof who companyld be in the grade, viz., 15 of the total strength being predetermined, there must necessarily be a progressive reduction in the number of selection posts. In other words a mere reduction of the cadre strength would bring about that result and unless the respondent companyld establish that the Government were bound in law to fill up all vacancies in the provinialised cadre by fresh recruitment to that cadre and thus keep its strength at the level at which it was on October 1, 1957, he should fail. It is manifest that such a companytention is obviously untenable. There companyld number be any dispute that the impugned rules which enable vacancies in the selection grade of the State Cadre to be filled in part by teachers belonging to the provincialised service by the devise of the block system greatly improves their position. The claim in the memorandum accompanying the impugned rules Ex. R 1 that the system has been framed so as to improve their companyditions should therefore be companysidered to have some justification. The appeal is accordingly allowed and the order of the High Court striking down r. 2 d and e and r. 3 in so far as it relates to promotions is set aside. In the peculiar circumstances of this case we companysider that there should be numberorder as to companyts in this appeal. SHAH, J.-In this appeal the validity of the Punjab Government Notification No. 12832-ED59/2935 dated January 27, 1960, and the Rules framed under Art. 309 of the Constitution by the Governor of Punjab, on February 13, 1961 in so far as they purport to prescribe a scheme for Promotion of provincialised junior teachers to the selection grade is challenged. On the re-organisation of the State of Punjab on November 1, 1956, the Patiala and East Punjab States Union which was a part B State was merged with the State of Punjab, but for administrative purposes, in so far as it related to matters educational, the area was maintained as a separate division and the teachers serving in that region were maintained in a separate cadre. In this appeal we are number companycerned with the rights and obligations of those teachers. On July 23, 1957, the Government of the State of Punjab issued a scheme of revision of scales of pay of low-paid public servants. By paragraph 3 which applied to employees in the Education Department it was directed that all teachers according to their qualifications be placed in two broad categoriescategory A and Category B. Teachers in Category Bwere divided into three classes, Lower Rs. 60-4-8O/5-100/5120. Middle Rs. 120-5-175, and Upper Rs. 140-10-250. It was decided that ,,with a view to providing incentives, posts falling in these groups should be in the following percentages - Group I-Lower scale 85 per cent Middle scale 15 per cent 15 per cent of teachers in this group should straightaway be promoted to the middle scale by selection, based on seniority and merit, while the rest should be given the lower scale. We are number companycerned with Group II and Group III in this appeal. Before October 1, 1957, in the State of Punjab excluding the territory of the Patiently and East Punjab States Union which had merged with the State on reorganisation of the States on November 1, 1956 there were two sets of schools maintained by the District and Municipal Boards and schools maintained by the State. On September 27, 1957, the Government of the State of Punjab issued a Notification c provincialising all District Board and Municipal Board schools with effect from October 1, 1957, and took over the management of those schools. The number of schools to be taken over and the posts to be created in respect of the teaching and other staff in the various grades were set out in paragraph 2 of the scheme. Out of the provincialised teachers 3016 J.V.S, J.T.S, and J.B.F.S, and others were to be absorbed in the grade of Rs. 120-5-175 and 17123 in the grade of Rs. 60-4-80/5-100/5-120, and it was recited in the Notification that all the incumbents of the Local Body Schools to be provincialised with effect from 1st October, 1957 will be given the same grades of pay and other allowances as are given to their companynter-parts already in Government employ. Their pay will be fixed under the rules and there will be numberdrop in their present emoluments. The Government of Punjab thereafter appointed a Committee for framing rules for fixing inter-State seniority of the provincialised teachers and the State Schools teachers, the terms of pension and other allied matters. By letters dated January 27, 1960, from the Secretary, Education Department, the Director of Public Instructions was informed that it had been decided, inter alia, that the staff of provincialised schools and the erstwhile Government schools will be kept in separate cadres. All new entrants into service after the date of provincialisation will be deemed to have joined the ranks of the staff of erstwhile Government schools. The provincialised staff cadre would be a companytinuously diminishing cadre and would in companyrse of time companypletely vanish leaving in the field only one cadre i.e. the cadre of Government staff. It is companysidered that this would ensure the same chances of promotion to the staff of erstwhile Government schools as existed before provincialisation whereas the provincialised staff would get the benefit of promotion to a large number of posts created directly as a result of provincialisation. There would be numberadministrative difficulty with regard to the transfers of teachers borne on both the cadres from one school to the other irrespective of the fact whether it is a provincialised school or a Government school, inasmuch as the two cadres would be separate only for the purpose of future promotions. It was also stated that the two separate cadres will be known as State Cadre and Provincialised Cadre. All the vacancies arising out of the numbermal incidence of retirements, promotions, etc. etc. in the Provincialised Cadre, will be transferred to the State Cadre. In the State Cadre, the posts will be split up in the ratio of 15 Rs. 250-300 and 250-350 85 Rs. 110-250 in the case of Anglo-Vernacular Teachers and 15 Rs. 140-220 35 Rs. 120-175 50 Rs. 60-120 in the case of Vernacular staff. The number of posts in the higher grades released as a result of retirements, promotions etc. in the provincialised cadre minus those created on the State Cadre will be utilized for the promotion of teachers on the provincialised Cadre from lower to higher grades. The respondent jogendra Singh who was a District Board junior Vernacular teacher addressed a memorandum to the Government of the State that the bifurcation of the junior vernacular teachers into two categories was -unnatural and put the teachers from the provincialised schools to a great disadvantage and that the treatment being discriminatory was wholly illegal, unreasonable and invalid and offended Art. 14 of the Constitution. It was submitted that the scheme should number be introduced without promulgation by the Governor of the State of Punjab rules under Art. 309 of the Constitution. The respondent and others having failed to obtain any relief filed petitions under Art. 226 of the Constitution being petitions Nos. 1559 of 1960 and 61, 162 and 163 of 1961 for writs or orders or directions quashing the Punjab Government Notification No. 12832-ED-II-59/2935 dated January 27, 1963. Subsequent to the institution of the petitions the Governor of Punjab published rules on February 13, 1961, under Art. 309 of the Constitution setting up a separate cadre of provincialised teachers and regulating companyditions of service of the teaching staff taken over by the State Government from the Local authorities companysequent upon provincialisation of the Board schools. Simultaneously with the publication of the rules, a policy statement explaining the reasons for setting up a distinct cadre, and. the scheme for promotion to higher scale and other matters was also published. It was recited in the Policy statement that after companysidering three alternative schemes one of grouping, other of integration of the two services into a joint cadre and the third of keeping separate cadres of provincialised staff and the staff of the erstwhile Government schools, the following important policy decision was taken by the Government- The staff of the provincialised schools and the erstwhile Government schools will be kept on separate cadres All higher posts created on 1st October, 1957 directly due to the provincialisation of Local Body schools will be filled up by promotion from amongst the staff borne on the provincialised cadre Provincialised Cadre will be a diminishing cadre and all future recruitment will be made on the State Cadre All the vacancies arising out of the numbermal incidence of retirements, promotions, etc. in the Provincialised Cadre will be transferred to the State Cadre. x x x x The number of posts in the higher grades released as a result of retirements, promotions, etc. in the Provincialised Cadre minus those transferred to the State Cadre will be utilised for promotion in the Provincialised Cadre, In dealing with the Vernacular junior teachers it was stated There are the following two grades in this section and the posts were divided in the ratio of 15 85 a Rs. 120/175 15 per cent and b Rs. 60/120 85 per cent. Before a teacher is promoted from category b to a , he she must have at least five years service to his her credit. By rule 2 d , the expression service was defined as meaning the Punjab Educational provincialised Cadre Class III Service. State Cadre was defined as meaning the Punjab Educational State Service, Class III School Cadre . By rule 3 it was provided that the Service shall companyprise the posts shown in the Appendix which shall be a diminishing cadre and the number of posts in various cadres of the Service shall be regulated in the manner set out therein. Sub-rule 1 i provided that all posts created for any provincialised school subsequent to its being taken over by the Government shall number companystitute a part of the Service but shall be borne on the State Cadre. By sub-rule 1 cl. it was provided that the posts in various cadres of the Service falling vacant due to the numbermal incidence of promotions, retirement or any other cause subsequent to the date of provincialism of local authority schools shall be adjusted in the manner detailed therein. Sub-rule 2 provided that all posts in the Service shall be borne on a State-wide cadre except the posts of Vernacular and Classical Teachers, J. A. V., or J. S. T. Teachers and Junior Teachers which will be borne on District-wise Cadres. After promulgating the Rules and the Policy Statement, the Government of Punjab filed their written statement to the petitions and companytended, inter alia , that they were companypetent to take the decision even after provincialisation with regard to the service companyditions of the provincialised staff that all the service rules including rules of seniority did number become automatically applicable to the provincialised staff on October 1, 1957, and as the provincialised staff formed a separate cadre for the purposes of promotion, there was reasonable classification and numberdiscrimination between the State Cadre and the Provincialised Cadre. The High Court of Punjab rejected the plea raised by the State of Punjab and held that the teachers of the provincialised cadre, and State cadre were Government servants of the same class and the former were deprived by the Rules and the scheme equality of opportunity of promotion, and a discriminatory treatment was accorded to the provincialised staff by keeping them in a separate cadre and treating recruitment to the vacancies accruing in the provincialised cadre as in the State Cadre and at the same time maintaining a uniform ratio of 15 and 85 per cent between the teachers drawing higher scale and the lower scale salary. The High Court accordingly declared that the Rules of 1961 in so far as they created two cadres created inequality of opportunity for promotion in the provincialised cadre and in particular Rules 2 and 3 to the extent as stated above were void and inoperative against the petitioners. The Government of Punjab acquiesced in the order in three out of the four petitions, but for some reason which is number apparent on the record and numbere is furnished by companynsel for the State filed an appeal only against the present respondent. That, however, is number a ground on which we may be justified in refusing to companysider the appeal on the merits as submitted by companynsel for the State. It is undisputed that there were more than 20,000 teachers in the provincialised schools out of whom 15 per cent were under the scheme of provincialisations to be immediately posted in the higher scale and the remaining in the lower scale. In the State Service there were only 107 posts before October 1, 1957. The State teachers, and the provincialised teachers were by the rules and the statement made in the policy decision formed into two separate cadres, though they were given the same grades of salary, performed the same duties, and were liable to be transferred so as to interchange their posts The vice of the scheme lay in the provision that all the vacancies in the provincialised cadre were number to be filled by entrants to that cadre but new entrants were to be treated as entrants to the State Cadre. The practical effect of that provision was that the provincialised cadre was gradually diminishing cadre which would be extinguished in approximately about 30 years whereas the State cadre was an expanding cadre. By maintaining the uniform ratio of 15 to 85 in both the cadres between the higher scale and the lower scale some teachers in the Provincialised cadre and in the lower scale were relegated to a perpetual state of remaining juniors even. to new entrants in the State cadre. This is manifest from a simple illustration. Assuming that 3 per cent of the total strength fall vacant ,at the end of each year on account of death, retirement, resignation and other causes, their would be approximately 630 vacancies in the first year of the operation of the scheme 630 new appointments would therefore be made in the State Cadre, in that year, and the provincialised Cadre would be reduced by that number. The State Cadre which companysisted of 107 on October 1, 1957, would on October 1, 1958, be a cadre of 737 teachers, and because of the uniform ratio of 15 to 85 per cent in each cadre between the higher scale and the lower scale 15 of 737 teachers would have to be placed in the State cadre in the higher scale. That would mean that practically all the teachers in the State Cadre would be promoted to the higher scale at the end of the year irrespective of their seniority provided they satisfied the requirement of the rule relating to educational qualifications and the requisite qualifying length of service. Assuming that all the 107 teachers possessed those qualifications all the members of the old State Service would be promoted to the higher scale. At the end of the year ending September 30, 1959 the scheme would break down because in the State Cadre there would be a total strength of 1345 out of whom moire than 201 would be in the higher scale. For that purpose more than a hundred would have to be promoted to the higher scale, and the Government would have to draw upon the junior scale of the State Cadre who may number have satisfied the requirement as to the duration of service. If the companydition of length of service is waived about 100 teachers who are new entrants in the State Service would be promoted to the higher scale, whereas a large number of provincialised teachers would still companytinue to remain in the lower scale even though they would be many years senior to the new entrants and may otherwise have the requisite qualifications for promotion. That this would be the result of companyplying with the terms of the scheme, is number disputed by the Solicitor-General who appeared on behalf of the State. Article 16 1 of the companystitution provides ,There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the States. This Court in dealing with the extent of protection of Art, 16 1 observed in General Manager Southern Rly. v. Rangachari 1 , it would be clear that matters relating to employment cannot be companyfined only to the initial matters prior to the act of employment. The narrow companystruction would companyfine the application of Art. 16 1 to the initial employment and numberhing else but that clearly is only one of the matters relating to employment. The other matters relating to employment would inevitably be the provision as to the salary and periodical increments therein, terms as to leave, as to gratuity, as to pension and as to the age of 1 1962 2 S.C.R. 586. superannuation. These are all matters relating to employment and they are, and must be, deemed to be included in the expression matters relating to employment in Art. 16 1 x x x x What Art.- 16 1 guarantees is equality of opportunity to all citizens in respect of all the matters relating to employment illustrated by us as well as to an appointment to any office as explained by us. x x x x The three provisions Art. 16 1 , Art. 14 and Art. 15 1 form part of the same companystitutional companye of guarantees and supplement each other. If that be so, there would be numberdifficulty in holding that the matters relating to employment must include all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of the terms and companyditions of such employment. Dealing with Art. 16 1 the Court observed Art. 16 2 prohibits discrimination and thus assures the effective enforcement of the fundamental right of equality of opportunity guaranteed by Art. 16 1 . The words in respect of any employment used in Art. 16 2 must, therefore, include all matters relating to employment as specified in Art. 16 1 . There before we are satisfied that x x x promotion to selection posts is included both under Art. 16. 1 and 2 . Ex facie, by the promulgation of the rule and the implementation of the scheme of promotion the fundamental right of the junior teachers in the provincialised cadre and in the lower scale is infringed. But the Solicitor- General appearing on behalf of the State of Punjab companytended that the provincialised Cadre was a newly created cadre, and it was open to the Government of the State to offer such terms of employment as they thought proper to the new entrants in the Service when the District Board and Municipal Board schools were provincialised. The Government in exercise of their admitted right, said companynsel, offered terms of service which though substantially similar to the terms by which the State Cadre was governed, differed in two important respects i that the transfer of junior teachers was to be within the District and ii that the right of promotion was restricted in the manner prescribed, and the provincialised teachers having accepted those terms, they formed a separate grade with different terms of employment and they companyld number be deemed to belong to the same class as members of the State Cadre, and therefore the case of the respondent was one companyered by the decision of this Court in All India Station Masters Assistant Station Masters Association v. General Manager, C. R. 1 and Kishori Mohanlal Bakshi v. Union of India 2 . Counsel relied upon the principle enunciated by this Court in All India Station Masters case 1 that the question of denial of equal opportunity required serious companysideration only as between the members of the same class. The companycept of equal opportunity in matters of employment, does number apply to variations in provisions as between members of different classes of employees under the State. Equality of opportunity in matters of employment can be predicted only between persons who are either seeking the same employment, or have obtained the same employment. Equality of opportunity in matters of promotion, must mean equality as between members of the same class of employee and number equality between members of separate, independent classes and in Kishori Mohanlal Bakshis case 2 that inequality of opportunity for promotion as between citizens holding different posts in the same grade may, therefore, be an infringement of Art. 16. That numbersuch question can arise at all when the rules make the members of two 1 1960 2 S.C.R. 311. A.I.R. 1962 S.C. 1139. grades eligible for promotion to different posts, there is in strict sense, numberdenial of equality of opportunity as among citizens holding posts of the same grade. As between citizens holding posts in different grades in Government service there can be numberquestion of equality of opportunity and that Art. 16 does number forbid the creation of different grades in the Government service. The crucial point falling for determination in this cage is whether the members of the Provincialised Cadre belong to the same grade as the members of the State Cadre. It is true that two separate cadres-the State Cadre, and the Provincialised Cadre-were formed by the Government, but in our judgment the division into two cadres was number decisive of the question whether there was denial of equal opportunity. The same scales of remuneration were paid to members of both the cadres. They performed the same duties and functions and held the same posts. Posts occupied by State Cadre teachers companyld be occupied by the Provincialised school teachers and vice versa It is admitted in the letter dated January 27, 1960, addressed by the Secretary to the Government of Punjab, Education Department to the Director of Public Instructions, which formed the basis of the setting up of the two cadres, that the two cadres were Separate only for the purposes of future promotion. We are in the circumstances unable to hold that between the members of the State Cadre and the Provincialised Cadre there was any valid basis for classification so as to justify a differential treatment between their members inter se for the purposes of promotion without infringing the Constitutional guarantee of equality of opportunity in the matter of employment. In the All India Station Masters case 1 there were two distinct classes of Railway employees-Roadside Station Masters and Guards. These two classes of employees performed distinct duties each class had separate rules fixing 1 1960 2 S.C.R. 311. the number of personnel of each class, posts to which the men in that class will be appointed, questions of seniority, pay of different posts, the manner in which promotion will be effected from the lower grades of pay to the higher grades. It was the view of the Court that they companyld be reasonably companysidered to be separate classes each in many matters an independent entity with its own rules of recruitment, pay and prospects and other companyditions of service varying companysiderably from another. In Kishori Mohanlal Bakshis case 1 , the Income-tax services were reconstituted. One of the features of the reconstitution was that in place of a single class of Income-tax Officers, two classes came into existence, one companysisting of Incometax Officers of Class I Service and the other class in which all the then existing Income tax Officers were placed forming the Class II Officers. Class 1 Officers were eligible to be promoted to the higher posts of Commissioners and Assistant Commissioners Class II Officers were number however eligible to be directly promoted to the higher posts. A percentage of the vacancies in the posts of Class 1 Officers was to be filled by promotion of Class 11 Officers and the rest by direct recruitment. The two classes of Officers did undoubtedly perform the same kind of work but their pay scales were different. The Court on those facts held that there was numberdenial of equal opportunity among citizens holding posts of the same grade. In the present case, it can number be said that the grades of the Provincialised teachers and the State Cadre were different. It may be true that in some cases, a lower degree of efficiency may have been insisted upon at the time of recruitment to the service which ultimately became the Provincialised Cadre. But once the District Board and Municipal Board school teachers were taken over by the Government of Punjab and an amalgamated Educational Service was evolved, any special A.I.R. 1962 S.C. 1139. provision relating to promotion depending solely upon the source of recruitment and upon numberother ground seriously affected the rights of the members of the Provincialised Cadre to promotion, and infringed Art. 16 cl. 1 of Constitution. It may be numbericed that for promotion to the higher grade the companyditions in respect of both the State Cadre and the Provincialised Cadre are the same namely that the teacher must be a Matriculate and must have put in service for five years in the Education Department. Therefore persons number possessing the prescribed educational qualifications admitted to the District Board and Municipal Boards as teachers will have numberright to promotion. It was submitted on behalf of the State that it was open to Government to give to the members of the Provincialised Cadre such terms as they thought proper and the Government was number bound to give the Provincialised Cadre the same grades as were in fact given and therefore it was number open to the members of the Provincialised Cadre to raise a dispute about the validity of the provisions relating to promotions. But if the Government in fact gave the same terms of employment and have in effect companystituted a single grade of teachers State and provincialised, any discrimination between the members of that grade based on the source of recruitment so as to treat persons who have subsequently entered the service differently would clearly infringe Art. 16 1 and 2 . It was doubtless open to the Government at the initial stage to give to the Provincialised Cadre different terms and number to companystitute them into a service with the same grade as the State Cadre, but the Government did give the same terms to the Provincialised teachers, and it was number then open to the Government to make rules relating to promotion so as to discriminate between the Provincialised teachers and the State Cadre teachers. It was also suggested that if the Government had treated all the teachers equally, the teachers who were absorbed from the Pepsu region would have taken precedence over the Provincialised teachers and the members of the Provincialised Cadre would number have even the slender chance of promotion to which they are entitled under the present scheme. It is unnecessary to companysider as to what would have happened under a different scheme if adopted bythe Government. It is companymon ground that the teachers who were absorbed from the Pepsu region were for men into a separate Cadre, distinctive character of which has been maintained. We are companycerned in this case with the State teachers and the Provincialised teachers under the scheme which came into effect on October 1, 1957 and in that scheme. teachers absorbed from the Pepsu region have number been integrated. It is problematical whether Provincialisedteachers would have stood to gain by being integrated into a companymon service with the teachers in the Pepsu region. That is a question which does number fall to be determined in this appeal. Finally, it was companytended that the rules having been given retrospective operation from October 1, 1957, it was open to the Government to accord to the new entrants such terms as the Government thought proper and thereby numberright of the new entrants was infringed. But it cannot be forgotten that in the first instance Government of the State admitted the Provincialised teachers into a single unit of employment and thereafter by retrospective provision they have sought to provide a differential treatment between the two sections companystituting one unit. It is against this differential treatment that the protection of Art. 16 is claimed and in our judgment avails.
K. SIKRI, J. Leave granted. Rajasthan State Road Transport Corporation is the appellant in the instant petition through of which it impugns the validity of the orders dated 16.1.2013 passed by Division Bench of the High Court of Judicature For Rajasthan, Bench at Jaipur. The Division Bench has dismissed the Writ Appeal of the appellant and companyfirmed the orders of the Additional Judge passed in the Writ Petition filed by the respondent herein, quashing the orders of companypulsory retirement of the respondent with the direction that the respondent would be deemed to be in the service as if the order of companypulsory retirement had number been passed and as a companysequence the respondent is held entitled to all companysequential benefits. The Respondent joined the services of the appellant on the post of Driver on 14.2.1977. He was placed on probation for a period of one year. The appellant has framed Standing Orders for its employees known as the Rajasthan State Road Transport Workers and workshop Employees Standing Orders, 1965 hereinafter to be referred as the Standing Orders . These orders are duly certified by the Authority under the provisions of Industrial Employment Standing Orders Act, 1946. Subsequently, there was an amendment in these Standing Orders and certain new clauses under rule 18, were inserted introducing the provision of companypulsory and voluntary retirement. The same are reproduced herein below 18-D 1 COMPULSORY RETIREMENT Notwithstanding anything companytained in the regulations the Corporation may if is of the opinion that it is in the interest of the Corporation to do so, have the absolute right to retire any Corporation employee after, he has attained the age of 50 years or on the date he companypletes 25 years of service whichever is earlier, or on any date thereafter, by giving him 3 months numberice in writing or three months pay and allowances in lieu thereof. 18-D 2 VOLUNTARY RETIREMENT Notwithstanding anything companytained here in before Corporation employee may after giving three months previous numberice in writing, retire from the service on the date on which he companypletes 20 years service on the date he attains the age of 45 years or on any other date thereafter. It is clear from the above that the clauses pertaining to companypulsory retirement gives the Petitioner-Corporation absolute right to retire any employee after he attains the age of 50 years or on companypletion of 25 years service whichever is earlier. A Screening Committee was companystituted by the Petitioner Corporation in 27.3.2002 to look into the companyduct and companytinuance of four employees who had attained the age of 50 years or had companypleted 25 years of service. Among these four persons, name of the Respondent also appeared. This companymittee, on perusal of the record of the respondent, recommended his companypulsory retirement. The Review Committee held its meeting on 8.4.2002 to review the report of the Screening Committee and after perusal of the report of the Screening Committee, the Review Committee approved the proposal of the Screening Committee. Based on the recommendation of the Review Committee, the Competent Authority passed the orders dated 9.4.2002, companypulsorily retiring the respondent from service. As three months previous numberice is required under rule 18-D 1 of the Standing Orders, in lieu thereof the respondent was sent three months salary cheque. Challenging this action of the appellant, the respondent filed the Writ Petition in the High Court of Judicature for Rajasthan. The appellant herein Respondent in the Writ Petition appeared and decided a Writ Petition by filing companynter affidavit. It was the highlight of the petitioners defense that the service record of the respondent showed a dismal picture, in as much as between the year 1978-1990, nearly 19 cases of misconduct were foisted upon the respondent which resulted into some or the other kind of penalty like admonition or stoppage of pay or annual grade increment for a limited period. So much so, in the year 1992 a criminal case against the respondent was initiated under Section 279 read with Section 304 a of IPC and Section 18/118 of the Motor Vehicles Act. In that case he was given the benefit of doubt and released. However, a departmental inquiry was held in which penalty of imposition or stoppage of two years increment was imposed upon him. A representation against this penalty was also dismissed. In the year 1999 another criminal case was instituted against the Respondent because of the accident of the bus of the petitioner which was driven by the Respondent as Driver. The victims had also filed their claim before the Motor Claim Tribunal MACT and the Appellant -Corporation had to suffer heavy loss by paying companypensation in the said case. However, in criminal case, the Respondent was acquitted. The appellant also pointed out that the service record of the Respondent revealed that he was also involved in the another accident in the year 1999 in which he suffered serious burn injuries. Because of this, he had moved an application requesting the Petitioner-Corporation to give him light job. Accordingly, he was posted as staff car Driver at Head Office. This job was given to him virtually showing mercy, which did number entail regular hard work. It was thus, argued by the Appellant -Corporation that the aforesaid entire service record was gone into by the Screening Committee as well as the Review Committee on the basis of which the decision was taken to retire the Respondent prematurely. The learned Single Judge of the High Court, however, did number eschew the aforesaid submission of the Appellant -Corporation giving the reason that the various acts of misconduct pointed out by the Petitioner-Corporation against the Respondent herein pertained to the period between 1978-90, whereas the order of companypulsory retirement was passed 12 years thereafter i.e. on 9.4.2002. In the opinion of the learned Single Judge, thee minor misconducts of the period more than 12 years before the companypulsory retirement were number sufficient to companye to the companyclusion that the companypulsory retirement of the respondent was in public interest. The learned Single Judge also observed that record of immediate past period was number looked into at all and on the basis of current purpose it companyld number be said that respondent had become deadwood or had become inefficient who needed to be weeded out. It also It also remarked that the appellant companyporation was number able to point out any deficiency in the work and companyduct of the Respondent for over 10 years immediately preceding his companypulsory retirement. It was thus, unjust, unreasonable and arbitrary to retire the respondent prematurely on the basis of old and stale material. For companying to this companyclusion the learned Single Judge drew sustenance from the judgment of this Court in Brij Mohan Singh Chopra v. State of Punjab 1987 2 SCC 188. Not satisfied with the aforesaid outcome, the appellant preferred Writ Appeal before the Division Bench but without any success as the said Writ Appeal has been dismissed by the Division Bench, echoing the reasons given by the ld. Single Judge. While upholding the order of the learned Single Judge, the Division Bench also numbered that the recorded date of birth, at the time of entry of the Respondent into service, was 7.7.1951. Since the numbermal age of superannuation is 60 years, the respondent would have companytinued in service till the year 2011. Since he was prematurely retired and that retirement has been set aside with the direction that he deems to be in service, the respondent would have to be treated in service till July, 2011. However, before the Division Bench, the respondent raised the dispute about his date of birth companytending that his actual date of birth was 21.1.1957 which was even recorded in some of the official documents. He thus pleaded that he had right to companytinue in service even beyond July 2011 i.e. upto the end of January, 2017. The High Court, however refrained from passing any order on this aspect and observed that it would be open to the respondent to submit a proper presentation before the companycerned authority of the Appellant -Corporation who will examine the records of his date of birth and take a decision thereon. It further directed In case his date of birth is ultimately determined to be 7/7/1951, all companysequential benefits following the interference with the order of companypulsory retirement would be released to him. In the eventuality of his date of birth being determined to be 21.9.1957, the Corporation would companysider his reinstatement in service. On the very first day i.e. on 23.8.13, when this petition came up for hearing, the respondent appeared person. He showed his willingness to argue the matter himself finally at the admission stage itself. As this companyrse of action was agreeable to the Counsel for the petitioner as well, the parties were heard at length. From the narration of facts stated above and specifically from the perusal of the judgment of the learned Single Judge which is upheld by the Division Bench on the same reasoning it is apparent clear that the main reason for setting aside the order of companypulsory retirement is that adverse entries minor mis-conducts of the Respondent related to the period 1978-90 i.e 12 years prior to premature retirement were taken into companysideration and there was numbermaterial whatsoever before this Review Committee in the recent past on the basis of which, the requisite opinion companyld be framed that the premature retirement of the respondent was in public interest. Again, as pointed above, for arriving at this companyclusion, the High Court extensively relied upon judgment of this Court in Brij Mohan Singh Chopra supra . First and foremost argument of the learned Counsel for the appellant was that judgment of this Court in Brij Mohan Singh Chopra supra was overruled by three member Bench in Baikuntha Nath Das Anr. v. Chief District Medical Officer, Baripara Anr.1992 2 SCC 299, and it was specifically recorded so in subsequent judgment in the case of The State of Punjab v. Gurdas Singh 1998 4 SCC 92. This calls for examination of this argument in the first instance. A reading of Baikuntha Nath judgment would reveal that the main issue in that case was as to whether the employer companyld act upon, uncompanymunicated adverse remarks and whether observance of the principles of natural justice was necessary before taking a decision to companypulsory retire a government servant. The companyrt answered both the questions in the negative holding that it was permissible for the Government to even look into and companysider un-communicated adverse remarks. It was also held that since the premature retirement was number stigmatic in nature and such an action was based on subjective satisfaction of the Government, there was numberroom for importing facet of natural justice in such a case. In the process of discussion and giving reasons for the aforesaid opinion, the Court took numbere of various judgments. Decision in the case of Brij Mohan Singh Chopra supra was also specifically dealt with. In this case there were numberadverse entries in the companyfidential records of the appellant for a period of five years prior to the impugned order of premature retirement. Within five years there were two adverse entries. However, these adverse remarks were number companymunicated to the employee. The order based on un-communicated adverse entries was set aside on two grounds namely It was number reasonable and just to companysider adverse entries of remote past and to ignore good entries of recent past. If the entries for the period of more than 10 years past are taken into account it would be act of digging out past to get some material to make an order against the employee. ii Since the adverse entries were number even companymunicated, it was unjust and unfair and companytrary to principles of natural justice to retire prematurely a government employee on the basis of adverse entries which are either number companymunicated to him or if companymunicated, representations made against those entries are number companysidered and disposed of. After taking numbere of the aforesaid grounds on which the order of companypulsory retirement in Brij Mohan Singh Chopra supra was set aside, the Court in Baikuntha Nath Das supra dealt with the second ground alone namely whether principles of natural justice were required to be followed or it was permissible for the Government to take into companysideration the adverse entries which were either number companymunicated to him or if companymunicated representations made against those entries were still pending. This second proposition of Brij Mohan Singh Chopra was held as number the companyrect proposition in law and principles of natural justice companyld number be brought in such a case. The Court had numbered that this reasoning was in companyflict with the earlier judgment in the case Union of India v. Col. J.N. Sinha Anr. 1970 II LLJ 284 and agreed with the view taken in J.N. Sinhas Case. It clearly follows from the above that in so far as first ground in Brij Mohan Singh Chopra namely companysideration of adverse entries of remote past was inappropriate to companypulsory retire an employee, was number touched or discussed. In fact, on the facts of the Baikunth Nath Dass, this proposition did number arise for companysideration at all. No doubt, in Gurdas Singhs Case, it has been specifically remarked that the judgment in Brij Mohan Singh Chopra supra has been overruled in Baikuntha Nath supra . It would be relevant to point out that even Gurdas Singh was a case relating to un-communicated adverse entries. Therefore, Brij Mohan Singh Chopra was overruled only on the second proposition. The fact that the issue as to whether remote past of the employee can be taken into companysideration or number was number dealt with in Baikuntha Nath Das or Gurdas Singh Case was specifically numbericed by this Court in the case of Badrinath v. Government of Tamil Nadu and Ors. 2000 8 SCC 395 2000 6 SCALE 618. That was a case where this question of taking into companysideration the old records came up directly for discussion. The companyrt discussed the judgment in Brij Mohan Singh Chopra and pointed out that three judge Bench in Baikuntha Nath Das overruled Brij Mohan Singh Chopra Case only on the second aspect, namely number-communication of the adverse reports. In so far as first aspect, which pertained to companysidering adverse entries of old period, the Court also pointed out that in Para 32 of Baikuntha Nath Das Case, various legal principles propositions were summed up and drew attention to principle No. iv in that para with which we are companycerned. It reads as under So far as the appeals before us are companycerned, the High Court has looked into the relevant record and companyfidential records has opined that the order of companypulsory retirement was based number merely upon the said adverse remarks but other material as well. Secondly, it has also found that the material placed before them does number justify the companyclusion that the said remarks were number recorded duly or properly. In the circumstances, it cannot be said that the said remarks were number recorded duly or properly. In the circumstances, it cannot be said that the order of companypulsory retirement suffers from mala fides or that it is based on numberevidence or that it is arbitrary. On that basis following pertinent observations were made in Badrinath case We are however companycerned with the first point stated in Brij Mohan Singh Chopras case as explained and accepted in principle iv of para 34 of the three Judge Judgment in Baikunth Nath Das. We have already extracted this passage in principle iv of para 34. It reaffirms that old adverse remarks are number to be dug out and that adverse remarks made before an earlier selection for promotion are to be treated as having lost their sting. This view of the three Judge Bench, in our view, has since been number departed from. We shall, therefore, refer to the two latter cases which have referred to this case in Baikunth Nath Das. The second of these two latter cases has also to be explained. In the first of these latter cases, namely, Union of India V.R. Seth MANU SC/0286/1994 1994 IILLJ411SC the point related both to adverse remarks of a period before an earlier promotion but also to uncommunicated adverse remarks. It was held that the Tribunal was wrong in holding in favour of the officer on the ground that uncommunicated adverse remarks companyld number be relied upon for purposes of companypulsory retirement. So far as the remarks prior to an earlier promotion this Court did number hold that they companyld be given as much weight as those in later years. The Court, in fact, relied upon Baikunth Nath Das case decided by three Judge Bench which had proposition iv in para 34 at p. 315-316 had clearly accepted that adverse remarks prior to an earlier promotion lose their sting. The second case is the one in State of Punjab v. Gurdas Singh MANU SC/0256/1998 AIR1998SC1661 . The facts there were that there were adverse remarks from 1978 prior to 1984 when the officer was promoted and there were also adverse remarks for the period 18.6.84 to 31.3.85. The companypulsory retirement order was passed on 3.9.87. The said order was quashed by the Civil Court on the ground that his record prior to his promotion i.e. prior to 1984 companyld number have been companysidered and two adverse entries after 1984 were number companymunicated and companyld number be relied upon. The three Judge Bench, while clearly setting out proposition in para 34 at p. 315-316 of Baikunth Nath Das which said that adverse remarks prior to promotion lose their sting, held that they were following the said judgment and they allowed the appeal of the State. Following Baikunth Nath Das, the Bench felt that uncommunicated adverse remarks companyld be relied upon and in that case these entries related to the period after an earlier promotion. That ground alone was sufficient for the case. There is a further observation at p. 99, para 11 that an adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is number wiped out and can be taken into companysideration while companysidering the overall performance of the employee during the whole tenure of service. The above sentence in Gurdas Singh needs to be explained in the companytext of the Bench accepting the three Judge Bench ruling in Baikunth Nath Das. Firstly, this last observation in Gurdas Singhs case does number go against the general principle laid down in Baikunth Nath Das to the effect that though adverse remarks prior to an earlier promotion can be taken into account, they would have lost their sting. Secondly, there is a special fact in Gurdas Singhs case, namely, that the adverse remarks prior to the earlier promotion related to his dishonesty. In a case relating to companypulsory retirement therefore, the sting in adverse remarks relating to dishonesty prior to an earlier promotion cannot be said to be absolutely wiped out. The fact also remains that in Gurdas Singhs case there were other adverse remarks also even after the earlier promotion, regarding dishonesty though they were number companymunicated. We do number think that Gurdas Singh is an authority to say that adverse remarks before a promotion however remote companyld be given full weight in all situations irrespective of whether they related to dishonesty or otherwise. As pointed in the three Judge Bench case in Baikunth Nath Das, which was followed in Gurdas Singh they can be kept in mind but number given the numbermal weight which companyld have otherwise been given to them but their strength is substantially weakened unless of companyrse they related to dishonesty. If one were to go by the dicta in Badrinath Case, obvious companyclusion would be that even if there are adverse remarks in the service career of an employee they would lose there effect, when that employee is given promotion to the higher post and would number be taken into account when the case of that employee for companypulsory retirement is taken up for companysideration, except only those adverse entries in the companyfidential reports of that employee which touch upon his integrity. Thus, Badrinath case interprets principle iv in para 32 of Baikunth Dass to mean such adverse remarks for the period prior to promotion, unless they are related to dishonesty, would be substantially weekend after the promotion. This interpretation given in Badrinath case, which was the judgment rendered by two member Bench, has number been accepted by three member bench of this Court, subsequently, in Pyare Mohan Lal v. State of Jharkhand and Ors. 2010 10 SCC 693. After discussing various judgments, including the judgments referred to by us hitherto, the Court clarified and spelled out the circumstances in which the earlier adverse entries record would be wiped of and the circumstances in which the said record, even of remote past would number lose its significance. It is lucidly companyceptualized under the head Washed Off Theory as follows WASHED OFF THEORY In State of Punjab v. Dewan Chuni Lal MANU SC/0497/1970 AIR 1970 SC 2086, a two-Judge Bench of this Court held that adverse entries regarding the dishonesty and inefficiency of the government employee in his ACRs have to be ignored if, subsequent to recording of the same, he had been allowed to cross the efficiency bar, as it would mean that while permitting him to cross the efficiency bar such entries had been companysidered and were number found of serious nature for the purpose of crossing the efficiency bar. Similarly, a two-Judge Bench of this Court in Baidyanath Mahapatra v. State of Orissa and Anr. MANU SC/0051/1989 AIR 1989 SC 2218, had taken a similar view on the issue observing that adverse entries awarded to the employee in the remote past lost significance in view of the fact that he had subsequently been promoted to the higher post, for the reason that while companysidering the case for promotion he had been found to possess eligibility and suitability and if such entry did number reflect deficiency in his work and companyduct for the purpose of promotion, it would be difficult to companyprehend how such an adverse entry companyld be pressed into service for retiring him companypulsorily. When a government servant is promoted to higher post on the basis of merit and selection, adverse entries if any companytained in his service record lose their significance and remain on record as part of past history. This view has been adopted by this Court in Baikuntha Nath Das supra . However, a three-Judge Bench of this Court in State of Orissa and Ors. v. Ram Chandra Das MANU SC/0613/1996 AIR 1996 SC 2436, had taken a different view as it had been held therein that such entries still remain part of the record for overall companysideration to retire a government servant companypulsorily. The object always is public interest. Therefore, such entries do number lose significance, even if the employee has subsequently been promoted. The Court held as under Merely because a promotion has been given even after adverse entries were made, cannot be a ground to numbere that companypulsory retirement of the government servant companyld number be ordered. The evidence does number become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or companypetent officer reach that decision. We find that selfsame material after promotion may number be taken into companysideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to companysider the overall expediency or necessity to companytinue the government servant in service after he attained the required length of service or qualified period of service for pension. Emphasis added This judgment has been approved and followed by this Court in State of Gujarat v. Umedbhai M. Patel MANU SC/0140/2001 AIR 2001 SC 1109, emphasising that the entire record of the government servant is to be examined. In Vijay Kumar Jain supra , this Court held that the vigour or sting of an entry does number get wiped out, particularly, while companysidering the case of employee for giving him companypulsory retirement, as it requires the examination of the entire service records, including character rolls and companyfidential reports. Vigour or sting of an adverse entry is number wiped out merely it relates to the remote past. There may be a single adverse entry of integrity which may be sufficient to companypulsorily retire the government servant. Stating that the judgment of larger Bench would be binding, the washed off theory is summed up by the Court in the following manner In view of the above, the law can be summarised to state that in case there is a companyflict between two or more judgments of this Court, the judgment of the larger Bench is to be followed. More so, the washed off theory does number have universal application. It may have relevance while companysidering the case of government servant for further promotion but number in a case where the employee is being assessed by the Reviewing Authority to determine whether he is fit to be retained in service or requires to be given companypulsory retirement, as the Committee is to assess his suitability taking into companysideration his entire service record. It clearly follows from the above that the clarification given by two Bench judgment in Badrinath is number companyrect and the observations of this Court in Gurdas Singh to the effect that the adverse entries prior to the promotion or crossing of efficiency bar or picking up higher rank are number wiped off and can be taken into account while companysidering the overall performance of the employee when it companyes to the companysideration of case of that employee for premature retirement. The principle of law which is clarified and stands crystallized after the judgment in Pyare Mohan Lal v. State of Jharkhand and Ors. 2010 10 SCC 693 is that after the promotion of an employee the adverse entries prior thereto would have numberrelevance and can be treated as wiped off when the case of the government employee is to be companysidered for further promotion. However, this washed off theory will have numberapplication when case of an employee is being assessed to determine whether he is fit to be retained in service or requires to be given companypulsory retirement. The rationale given is that since such an assessment is based on entire service record, there is numberquestion of number taking into companysideration an earlier old adverse entries or record of the old period. We may hasten to add that while such a record can be taken into companysideration, at the same time, the service record of the immediate past period will have to be given due credence and weightage. For example, as against some very old adverse entries where the immediate past record shows exemplary performance, ignoring such a record of recent past and acting only on the basis of old adverse entries, to retire a person will be a clear example of arbitrary exercise of power. However, if old record pertains to integrity of a person then that may be sufficient to justify the order of premature retirement of the government servant. Having taken numbere of the companyrect principles which need to be applied, we can safely companyclude that the order of the High Court based solely on the judgment in the case of Brij Mohan Singh Chopra was number companyrect. The High Court companyld number have set aside the order merely on the ground that service record pertaining to the period 1978-90 being old and stale companyld number be taken into companysideration at all. As per the law laid down in the aforesaid judgments, it is clear that entire service record is relevant for deciding as to whether the government servant needs to be eased out prematurely. Of companyrse, at the same time, subsequent record is also relevant, and immediate past record, preceding the date on which decision is to be taken would be of more value, qualitatively. What is to be examined is the overall performance on the basis of entire service record to companye to the companyclusion as to whether the companycerned employee has become a deadwood and it is public interest to retire him companypulsorily. The Authority must companysider and examine the overall effect of the entries of the officer companycerned and number an isolated entry, as it may well be in some cases that in spite of satisfactory performance, the Authority may desire to companypulsorily retire an employee in public interest, as in the opinion of the said authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee rendered himself a liability to the institution, there is numberoccasion for the Court to interfere in the exercise of its limited power of judicial review. With this we revert to the facts of the present case In so far as period of 1978-1990 is companycerned, the respondent was charge sheeted in 19 cases. In few cases he was exonerated and in some other cases he was given minor penalty like admonition, stoppage of pay, annual grade increment for a limited period. The gist of these cases is as follows NChargeDate Details of Date of Details of Remarks Charges Order decision Sheet 1. 1648 11.8.1978Negligent 417/7-2-79 Exonerated Driving 2. 798 25.10.79 Recovered fare2783/ Yearly from 15 27.8.84 increment passengers stopped and without ticket forfeiture of salary for suspension period 3. 2314 20.11.80 Corruption 3454/ Stoppage of 22.10.84. yearly increment for one year 4. 1235 27.4.83 Absent from 1708/ Absolved from duty 7.4.86 charges without intimation 5. 1035 31.3.83 Excess 1709/ Stoppage of companysumption 3.4.86 one two increments 6. 1754 13.6.84 Misbehavior 3453/ Absolved from with companyductor22.10.84. charge 7. 162 8.1.85 Absent from 5123/ Stoppage of duty without 4.12.85 yearly intimation increment for one year without companymutative effect and forfeiture of salar for suspension period appeal No. 3588/ 29.8.88 pending 8. 1798 4.4.85 Damage to tyre 9. 2298 29.4.85 Absent from 5123/4.12.1Stoppage of duty without 985 one increment intimation forfeiture of salary for suspension period 10.3928 26.2.85 Vehicle 830/ Stoppage of accident 5.12.85 two increments without companymutative effect 11.3763 1.8.90 Excess 68/ 14.2.94Order for companysumption of recovery and Diesel or warning for future recovered Rs. 132.60. 12.3090 30.10.82 Different types of companyplaints 13.4669 30.10.85 Damage to tyre11830/ Stoppage of 5.12.88 two increments without companymutative effect and forfeiture of salary for the suspension period. 14.316 23.1.86 Bad behavior 4953/ 1. Stoppage of 12.10.87 one increment. Forfeiture of salary for the suspension period. Less Diesel average 15.134 12.1.87 Demanding 11830/ Stoppage of money from 5.12.88 two increments driver without companymulative effect under companysideration 16.4745 1.11.85 17.3361 13.7.97 Refusal to 706/ Absolved, take vehicle 10.2.88 released the salary for the suspension period 18.2041 21.4.87 Negligent 2815/ Absolved driving of 9.6.93 released the vehicle salary for suspension period. 19.3792/ 27.7.87 Less average 2686/5.5.89Recovered Rs. of Diesel 72/- The aforesaid record projects the dismal picture. The High Court has observed that the respondents have number been able to show anything adverse in the career of the respondent after 1990 i.e. in last 12 years preceding the order of retirement. These observations are number companyrect in as much as There was an inquiry against the respondent for which he was imposed the penalty of stoppage of increment for two years. He had made a representation against this penalty on 5.11.1998 which was dismissed on 25.5.1998. Further another criminal case was also instituted against him in the year 1999. Though outcome of this criminal case is number mentioned, fact remains that the accident was caused by the Respondent while driving the bus of the appellant Corporation, and the appellant companyporation had to pay heavy companypensation to the victims as a result of orders passed by MACT. Thus even the service record after 1990 does number depict a rosy picture. In any case, there is numberhing to show his performance became better during this period. It hardly needs to be emphasized that the order of companypulsory retirement is neither punitive number stigmatic. It is based on subjective satisfaction of the employer and a very limited scope of judicial review is available in such cases. Interference is permissible only on the ground of number application of mind, malafide, perverse, or arbitrary or if there is number-compliance of statutory duty by the statutory authority.
Sathasivam, J. Leave granted. These appeals are directed against the final order dated 02.11.2006 passed by the learned single Judge of the High Court of Chhattisgarh at Bilaspur in Writ Petition No. 5508 of 2006 and final order dated 06.11.2007 passed by the Division Bench of the same High Court in W.A. P.R. No. 6823 of 2007 whereby the High Court dismissed the writ petition and the writ appeal filed by the appellants herein. Brief Facts According to the appellants, on 05.08.1989, they were selected on the temporary post of Nakedar by a duly companystituted Selection Committee on the pay-scale determined by the Collector. At the threat of removal, the appellants approached the Labour Court in 1994. At this stage, respondent No.1 and the appellants filed a joint petition dated 10.01.1995 for companypromise in which respondent No.1 agreed to reinstate the appellants and also to grant seniority and other benefits from the date of their initial appointment that is 05.08.1989. On the basis of the companypromise petition, the award dated 27.04.1995 was passed by the Labour Court, Durg, directing the respondent-therein to reinstate the appellants herein. Again in 2000, when an attempt was made to remove the appellants arbitrarily, initially it was the High Court which granted status quo in their favour and thereafter the higher authorities intervened and prevented the respondents from victimizing the appellants. In view of the said efforts, the respondents once again ordered reinstatement of the appellants on 06.01.2001. Despite such voluminous material demonstrating the companytinuous working of the appellants with the respondents, according to the appellants they were dismissed on the ground of failure to establish that they worked for more than 240 days companytinuously in one calendar year. Aggrieved by the same, the appellants approached the High Court by way of a writ petition. By the order impugned, the High Court, after pointing out that the appellants were on daily wage basis and have number companypleted 240 days in one calendar year which is the companydition precedent for attracting the provisions of Section 25F of the Industrial Disputes Act, 1947 companyfirmed the order of the Labour Court and dismissed their writ petition. The said order is under challenge in these appeals. Heard Mr. Akshat Shrivastava, learned companynsel for the appellants and Mr. Milind Kumar, learned companynsel for the respondents. At the outset, learned companynsel appearing for the appellants-workmen fairly stated that because of the ignorance though the appellants were having adequate materials in the form of documents and companymunications from the respondents employer, they were number properly placed the same before the Labour Court in support of their claim for reinstatement. He also submitted that even before the High Court these additional documents were number placed for companysideration and requested this Court to companysider the same in order to render substantial justice to the workmen. The appellants have filed a separate application for taking those additional documents Annexures P-18 and P-19 on record. Considering the plight of the workmen, we perused the said Annexures P- 18 and P-19 which companytain details such as number of days worked in a month, salary paid by the respondents companymencing from year 1994 ending with 2004. The documents in Annexures P-18 and P-19 clearly show the number of days on which both the appellants worked. Apart from the above details, the appellants have also pressed into service Annexure-P4, the terms and companyditions of companypromise entered into between the appellants workmen and the Krishi Upaj Mandi Samiti, Bemetara Management. Since Annexure-P4 was pressed into service by the workmen, it is useful to refer the same ANNEXURE P/4 BEFORE THE HONBLE LABOUR COURT, DURG Case No. 18/1994 I.D. Act Date of Institution 10.01.1995 Balram Singh Rajput, Clerk Santuram Yadav, Nakedar Santosh Yadav, Bhritya First Party AND Krishi Upaj Mandi Samiti, Bemetara Second Party Both parties respectfully submits that the both parties have arrived at companypromise under the following terms and companyditions TERMS AND CONDITIONS OF COMPROMISE That the second party will reinstate the first party workmen into their services and they will be granted seniority from the date of their first appointment. That towards the symbolic backwages for the period in the meantime, the second party will pay a sum of Rs.1/- per workmen. That the first party workmen will get salary from the date of their joining of duty and as per the Circular No. 2546 dated 28.02.1994 of the Honble Collector, Durg in the following manner Balram Singh Rajput, Clerk - Rs. 1412/- Santu Ram Yadav, Nakedar - Rs. 996/- Santosh Kumar Yadav, Bhritya - Rs. 996/- Per month. Apart from the aforesaid Circular, the Circulars issued by the Honble Collector in this reference, shall also be applicable on both parties. It is respectfully prayed that an Award may be passed under the terms and companyditions of the aforesaid companypromise. Prayed accordingly. Durg Date Advocate for the Second Party Applicant Balram Singh Rajput, Clerk Santu Ram Yadav, Nakedar Santosh Kumar Bhritya Advocate for the First Party Based on the companypromise between the appellants and the respondent-management, the Labour Court, Durg by award dated 27.04.1995 while making a reference about justifiability of the termination of service of these workmen recorded the companypromise deed and directed the management to reinstate Santuram Yadav and Santosh Yadav, the appellants herein. On going through Annexure P-4, companypromise memo between the workmen and the management, followed by an award dated 27.04.1995 of the Labour Court, Durg as well as the materials furnished in the form of Annexures P-18 and P-19 about the number of days on which both the appellants worked and the wages received clearly support their stand. We are companyscious of the fact of the implication of Constitution Bench decision of this Court in Secretary, State of Karnataka and Others vs. Umadevi and Others, 2006 4 SCC 1. However, in view of the peculiar facts, namely, the stand taken by the Management in the form of companypromise agreeing to reinstate and provide seniority from the date of their first appointment 05.08.1989, as evidenced in the Compromise Deed, we are of the view that the information materials mentioned above cannot be ignored lightly though number projected before the Labour Court and the High Court. Considering the abundant materials which were unfortunately number placed before the Labour Court and in order to give an opportunity to these workmen, we set aside the order of the Labour Court, Durg dated 08.08.2006 in case No. 56/ID Act Reference/2005 and the order of the High Court dated 02.11.2006 in Writ Petition No. 5508 of 2006 and order dated 06.11.2007 in W.A. P.R. No. 6823 of 2007 and remit the matter to the Labour Court, Durg with a direction to companysider the claim of the workmen afresh.
Leave granted. Challenge in this appeal is to order dated 28th May, 2008, passed by the High Court of Punjab Haryana in T.A. No.188 of 2008. By the impugned order, a learned Single Judge of the High Court has dismissed the petition filed by the appellant under Section 24 read with 151 of the Code of Civil Procedure seeking transfer of the case titled Naveen Vaid vs. Rajni Vaid pending in the Court of Additional District Judge, Panipat to the Court of companypetent jurisdiction at Gurgaon. The sole factor which has weighed with the High Court in dismissing the application is that the respondent-husband has never insisted upon the personal presence of the wife on every date of hearing. We have heard learned companynsel for the parties. 2/- CA 3175/2009contd Learned companynsel appearing for the respondent-husband very fairly states that the respondent has numberobjection to the transfer of the afore-mentioned case to any Court at Gurgaon. Accordingly, the appeal is allowed the impugned order is set aside and it is ordered that suit, being H.M.A.
CIVIL APPEAL NO. 2976 OF 2004 B. SINHA, J Plaintiff, in a suit for specific performance of companytract, is the appellant herein. She was a tenant in a portion of the premises in respect whereof the agreement of sale dated 1.4.1986 is said to have been entered into by and between the parties hereto. The relevant clauses of the said agreement read as under- It was settled down in between the above parties that house of party No. 1, in which party No. 2 is living, party No. 1 will sell for Rs. 48,000/- Forty eight thousand only and as a part payment received Rs. 24,000/- Rupees twenty four thousand by cheque by party No. 2 from party No. 1 on 20.3.86. Party No. 1 will obtain permission for sale of the house from Ceiling Officer and will give information to party No. 2 and within three months of the information the party No. 2 will get executed the Registry and will make the payment of balance amount. That Party No. 1 assured to Party No. 2 that regarding the rights of ownership and transfer of the house there is numberdispute and if need arises then party No. 1 will get permission from the Court and Party No. 2 will have the right that on the error of party No. 1 will get registry executed through companyrt and the expenses will have to be borne by party No. 1. Therefore, this agreement wrote down and received Rs. 24,000/- Rupees twenty four thousand . The map of residential house prepared and will remain with this document. The boundaries are wrote down under North House Sambhajirao Angre. West Property of Sambhajirao Angre East Road South House Hariram Kapoor A suit for specific performance was filed on 9.9.1986 which was marked as O.S. No. 228A/1986. Proper companyrt fees were number paid thereupon. Having regard to an objection taken in that behalf by the first respondent herein in his written statement, allegedly another suit was filed by her on 23.3.1987, which was marked as O.S. No. 13A of 1987. O.S. No. 228A of 1986, on the premise that another suit has been filed, was sought to be withdrawn. The application for withdrawal was allowed. Respondent No. 1, however, had entered into another agreement of sale with the respondent No. 2. He filed an application for impleading himself as a party in the suit. It was allowed. The learned Trial Judge decreed the suit. By reason of the impugned judgment, however, the High Court has reversed the same, holding In view of Order XXIII Rule 1 of the Code of Civil Procedure, the permission for filing another suit on the same cause of action having number been obtained, the second suit was number maintainable and The agreement of sale dated 1.4.1986 being vague, numberdecree for specific performance companyld be granted. Mr. P.S. Narasimha, learned companynsel appearing on behalf of the appellant in support of the appeal raised the following companytentions The High Court companymitted a manifest error in passing the impugned judgment insofar as it failed to take into companysideration that the second suit having been instituted during the pendency of the first suit, Order XXIII Rule 1 of the Code of Civil Procedure was number applicable. The agreement was required to be read in its entirety and so read, it would be evident that the subject matter of sale was the entire house and number a part thereof. Mr. S.S. Khanduja, learned companynsel appearing on behalf of the respondent, on the other hand, would support the judgment. It is number in dispute that O.S. No. 13A of 1987 was filed during pendency of O.S. No. 228A of 1986. Order XXIII Rule 1 of the CPC stricto sensu therefore, was number applicable, the relevant provision whereof reads thus Withdrawal of suit or abandonment of part of claim. 1 At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim 2 Where the Court is satisfied, - a that a suit must fail by reason of some formal defect, or b that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. Admittedly, the second suit was filed before filing the application of withdrawal of the first suit. The first suit was withdrawn as an objection had been taken by the appellant in regard to payment of proper companyrt fee. We, therefore, are of opinion that Order 23 Rule 1 of the Code was number applicable to the facts and circumstances of the present case. A somewhat similar question came up for companysideration in Mangi Lal Vs. Radha Mohan 1930 Lahore 599 2 , wherein it was held Order 23, Rule 1, refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. Order 23, Rule 1, cannot be read so as to bar a suit which has already been instituted before the other suit has been abandoned or dismissed. The rule is clear and can only be applied to suits instituted after the withdrawal or abandonment of previous suits. The said view was followed by the Karnataka High Court in P.A. Muhammed Vs. The Canara Bank and Another AIR 1992 Kar. 85. An identical view was also taken in Girdhari Lal Bansal Vs. The Chairman, Bhakra Beas Management Board, Chandigarh and Others AIR 1985 Punj and Har 219 wherein it was held 4. The earlier application was filed on 6th Oct, 1982 and the present application was fixed on 26th Oct., 1982 and the first application was withdrawn vide order dt. 18-11-1982. The learned companynsel for the Board companyld number show if aforesaid two decisions were ever dissented from or overruled. The aforesaid two Lahore decisions clearly say that if second suit is filed before the first suit is withdrawn then O. 23, C.P.C. is number attracted and the second suit cannot be dismissed under O. 23, R. 1 4 of the Civil P.C. Accordingly, I reverse the decision of the trial Court and hold that the present petition was number barred under O. 23, C.P.C. We agree with said views of the High Court. The application filed for withdrawal of the suit categorically stated about the pendency of the earlier suit. Respondent, therefore was aware thereof. They objected to the withdrawal of the suit only on the ground that legal companyts therefor should be paid. The said objection was accepted by the learned Trial Court. Respondent even accepted the companyts as directed by the Court, granting permission to withdraw the suit. In a situation of this nature, we are of the opinion that an inference in regard to grant of permission can also be drawn from the companyduct of the parties as also the Order passed by the Court. It is trite that even a presumption of implied grant can be drawn. In Hari Basudev Vs. State of Orissa and Others AIR 2000 Orissa 125, a Division Bench of the Orissa High Court held As already indicated, the cause of action accrued to opposite party No. 4 to file the election dispute u S. 30 of the Act only after publication of the result of the election. Opposite party No. 4 in his petition made out a case for grant of permission to withdraw M.J.C. No. 14 of 1997. He had also stated in the petition that he reserved his right to file a fresh case, if necessary. The learned Civil Judge having permitted him to withdraw the said case, we are inclined to hold that permission to institute a fresh case in the circumstances was impliedly granted. In Mullas The Code of Civil Procedure, Seventeenth Edition, page 674, it is stated Permission need number be Express The permission mentioned in this section need number be given in express terms. It is sufficient if it can be implied from the order read with the application on which the order was made. No formal order is necessary for withdrawal of a suit. But the proceedings must show that the plaintiff has withdrawn the suit or part of the claim. However, if either from the application of the plaintiff or from the order permitting withdrawal, it transpires that while permitting withdrawal, the companyrt had also granted liberty to institute fresh suit, the subsequent suit would be barred. Thus, in a case, the Delhi High Court held that the words without prejudice to the right of plaintiff endorsed on the application for withdrawal would only mean that the suit was sought to be withdrawn as companypromised and number on merits. An application for withdrawal of suit was made, seeking liberty to file a fresh suit. The order passed by the companyrt was that The application is, therefore, allowed while permitting the plaintiff to withdraw the suit. It was held that this should be companystrued as an order also granting liberty, as prayed. The companyrt cannot split the prayer made by the applicant. For the reasons aforementioned, we are of the opinion that the High Court was number companyrect in applying the provisions companytained in Order XXIII Rule 1 of the Code of Civil Procedure in the facts and circumstances of the case. It is numberdoubt true that ordinarily an endeavour should be made by the companyrt to give effect to the terms of the agreement but it is also a well settled principle of law that an agreement is to be read as a whole so as to enable the companyrt to ascertain the true intention of the parties. It is number in dispute that numberplan was prepared. A purported sketch mark was attached with the plaint, which was number proved. Evidences brought on record clearly lead to the companyclusion that the appellant was number the tenant in respect of the entire house. She, in her deposition, even did number claim the same. Another tenant was occupying some rooms in the same premises. Appellant herein in her evidence also admitted that numbermap was attached to the agreement. The very fact that the premises sought to be transferred companyld number adequately be described a plan was sought to be attached. According to the appellant herself, she had been residing only in the ground floor, along with open land on the numberthern side and had been using two rooms, a Patore alongwith open land of the upper portion. She had number received the possession of the disputed house. It is, therefore, evident that she did number claim herself to be a tenant in respect of the entire house and, thus, the same was number agreed to be sold. It is in the aforementioned companytext, the meaning of the words used in the agreement must be determined. It refers to the property where the appellant was living and number any other property. If the appellant was living in a part of the property, only the same was the subject matter of sale and number the entire premises. Reliance, has been placed by Mr. Narasimha on a decision of the House of Lords in Hillas Co. Ltd. Vs. Arcos, Ltd. 1932 All. E. R. 494, wherein it was held It is the duty of the companyrt to companystrue agreements made by business men - which often appear to those unfamiliar with the business far from companyplete or precisefairly and broadly, without being astute or subtle in finding defects on the companytrary, the companyrt should seek to apply the maxim verba ita sunt intelligenda ut res magis valeat quam pereat. That maxim, however, does number mean that the companyrt is to make a companytract for the parties, or to go outside the words they have used, except in so far as there are appropriate implications of law, as, for instance, the implication of what is just and reasonable to be ascertained by the companyrt as matter of machinery where the companytractual intention is clear but the companytract is silent on some detail. Thus in companytracts for future performance over a period the parties may number be able number may they desire to specify many matters of detail, but leave them to be adjusted in the working out of the companytract. There is numberdispute with regard to the aforementioned legal proposition. However, we have number been called upon to companystrue an agreement entered into by and between two businessmen. The maxim, Certum est quod certum reddi potest instead of being of any assistance to the appellant, runs companynter to her submission. It means that is certain which can be made certain. In relation to uncertainty it is stated The office of the habendum is a deed is to limit, explain, or qualify the words in the premises but if the words of the habendum are manifestly companytradictory and repugnant to those in the premises, they must be disregarded. A deed shall be void if it be totally uncertain but if the Kings grant refers to another thing which is certain, it is sufficient as, if he grant to a city all liberties which London has, without saying what liberties London has. An agreement in writing for the sale of a house did number describe the particular house, but it stated that the deeds were in the possession of A. The Court held the agreement sufficiently certain, since it appeared upon the face of the agreement that the house referred to was the house of which the deeds were in the possession of A., and, companysequently, the house might easily be ascertained, and id certum est quod certum redid potest. Again, the word certain must, in a variety of cases, where a companytract is entered into for the sale of goods, refer to an indefinite quantity at the time of the companytract made, and must mean a quantity which is to be ascertained according to the above maxim. See Trayners Latin Maxims, Fourth Edition, Page 76 Reference to the said legal maxim is, in our opinion, is number apposite in the facts and circumstances of this case. By reference to the boundaries of the premises alone, the description of the properties agreed to be sold did number become certain. For the purpose of finding out the companyrect description of the property, the entire agreement was required to be read as a whole. So read, the agreement becomes uncertain. An agreement of sale must be companystrued having regard to the circumstances attending thereto. The relationship between the parties was that of the landlord and tenant. Appellant was only a tenant in respect of a part of the premises. It may be that the boundaries of the house have been described but a plan was to be a part thereof. We have indicated hereinbefore that the parties intended to annex a plan with the agreement only because the description of the properties was inadequate. It is with a view to make the description of the subject matter of sale definite, the plan was to be attached. The plan was number even prepared. It has number been found that the sketch of map annexed to the plaint companyformed to the plan which was to be made a part of the agreement for sale. The agreement for sale, therefore, being uncertain companyld number be given effect to. In Plant Vs. Bourne 1897 2 Ch. 281, whereupon Mr. Narsimha relied upon, the Court of Appeals held that oral evidence is admissible.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 474 of 1964. Appeal by special leave from the judgment and order dated March 14, 1963 of the Andhra Pradesh High Court in C.R.P. No. 1725 of 1959. C. Setalvad, and T. V. R. Tatachari for the appellant. Kirpa Narain and T. Satyanarayana, for respondent Nos. 1 and 9. The Judgment of the Court was delivered by Hidayatullah J. On the application of two creditors the appellant Yenumula Mallu Dora has been adjudged insolvent by the Subordinate Judge, Kakinada and a receiving order has been passed against him. The respondents before us are one of the petitioning creditors and the legal representatives of the other petitioning creditor who died during these proceedings. The first petitioning creditor held a decree for money which he had obtained in O.S. 67 of 1949. He also held another money decree in O.S. 473 of 1948. The second petitioning creditor held a decree which she had obtained in S. 17 of 1955. The application was based upon three acts of insolvency which the appellant was stated to have companymitted and on the general facts that he was indebted to the tune of Rs. two lakhs, and was unable to pay his debts. The three acts of insolvency alleged against him were a evasion of arrest in execution of the money decree in O.S. 67 of 1949 b sale of some of his properties on September 26, 1956 in execution arising from O.S. 73 of 1952 and c sale of some of his properties on September 19, 1956 in execution of money decree in O.S. 9 of 1950. It was also alleged that he was fraudulently transferring properties in the name of his wife and brother-in-law and had suffered a companylusive charge decree for maintenance in favour of his wife, to delay and defeat his creditors. The Subordinate Judge, Kakinada did number accept the first two acts of insolvency. The evidence regarding evasion of arrest was number found companyvincing and the second act of insolvency was rejected because the sale of the property was in execution of a mortgage decree. In respect of the third art of insolvency the Subordinate Judge held that it satisfied S. 6 e of the Provincial Insolvency Act and an adjudication and a receiving order were justified in the case. An appeal was taken to the District Court at Rajahmundry C.A. 41 of 1958 which was dismissed on October 15, 1959. A Revision Application filed under S. 75 of the Provincial Insolvency Act was dismissed by the High Court of Andhra Pradesh on March 14, 1963. The appellant, however, obtained special leave of this Court and has filed the present appeal against the order of the High Court. The companytention of the appellant was, and still is, that the third act of insolvency was number established as he had deposited, within one month of the sale, the entire decretal amount together with poundage and companymission and the sale was set aside on his petition under Or. 21 r. 89 of the Code of Civil Procedure. He companytended, therefore, that as numbere of the acts of insolvency remained, the petition ought to have been dismissed as incompetent or he was. entitled to have the petition dismissed in any event, under s. 25 of the Provincial Insolvency Act which allows a creditors petition to be dismissed on sufficient cause. He submitted that as the sale was set aside before the order of adjudication was made the preexisted sufficient cause for the dismissal of the creditors petition. The Subordinate Judge relying upon Venkatakrishnayya v. Malakondayya 1 and on decisions of the Lahore and the Calcutta High Courts rejected the submission and made the order against the appellant. The District Judge, Rajahmundry agreed with the, companyclusion of the Subordinate Judge and the High Court rejected the petition for revision. In this appeal the same points are urged again for our acceptance. In our judgment the view of the law taken in this case by the Subordinate Judge and approved by the, District Court is right and does number warrant any interference. The object of the law of insolvency is to seize the property of an insolvent before he can squander it and to distribute it amongst his creditors. It is, however, number every debtor, who has borrowed beyond his assets or even one whose property is attached in execution of his debts, who can be subjected to such companytrol. The jurisdiction of the companyrt companymences when certain acts take place which are known as acts of insolvency and which give a right to, his creditors to apply to the Court for his adjudication as an insolvent. The Provincial Insolvency Act lays down in s. 6 what acts. are to be regarded as acts of insolvency. It is a long list. Some are voluntary acts of the insolvent and some others, are involuntary The involuntary acts are of a kind by which a creditor is able to, companypel a debtor to disclose his insolvent companydition even if the insolvent is careful enough number to companymit a voluntary act of insolvency. One such act is that the insolvent has been imprisoned in execution of a decree of any companyrt for payment of money, and another is that any of his property has been sold in execution of a decree of any companyrt for payment of money. In this case the property of the appellant was sold on September 19, 1956 in execution of a money decree against him and therefore there is numberquestion that he was guilty of an act of insolvency described in s. 6 e of the Provincial Insolvency Act. A.I.R, 1942 Mad, 306, Under S. 7, a creditor is entitled to present a petition in the Insolvency Court against a debtor if he has companymitted an act of insolvency provided as laid down in S. 9 i c the petition is made within three months of the act of insolvency on which the petition is grounded. In this case both these companyditions are fulfilled. There is thus numberdoubt that the petitioning creditors application under S. 7 companyplied with S. 6 e and S. 9 1 c of the Provincial Insolvency Act. The petitioning creditors alleged that the appellant was indebted to the extent of Rs. two lakhs and this was number denied by the appellant. In the trial of one of the execution petitions filed against him by a decreeholder the appellant admitted that he had numbermeans to pay the decree debt because all his properties were under attachment and were being brought to sale. He also stated that he was number in a position to discharge the debts. It is, therefore, clear that the appellant who was in more than embarrassed pecuniary circumstances was unable to pay his debts. It was also clear from the evidence, which the District Court and the Subordinate Judge have companycurrently accepted, that he had made some transfers to screen his properties from his creditors and had suffered a decree for maintenance in a suit by his wife. In view of these facts, which the appellant cannot number deny, he is driven to support his case by argument on law. The argument, as we have seen, is two-fold. We, are number inclined to accept either leg of the argument. An act of insolvency once, companymitted cannot be explained or purged by subsequent events. The insolvent cannot claim to wipe it off by paying some of his creditors. This is because the same act of insolvency is available to all his creditors. By satisfying one of the creditors the act of insolvency is number erased unless all creditors are satisfied because till all creditors are paid the debtor must prove his ability to meet his liabilities. In this case the petitioning creditors had their own decrees. It was in the decree of another creditor that the payment was made but only after the act of insolvency was companymitted. Besides the petitioning creditors there were several other creditors to whom the appellant owed large sum of money and his total debts aggregated to Rs. two lakhs. It is plain that any of the remaining creditors, including the petitioning creditors, companyld rely upon the act of insolvency even though one or more creditors might have been paid in full. The act of insolvency which the appellant had companymitted thus remained and was number purged by payment of decretal amount after the sale in execution of the money decree. 21 3 The next question is whether the Subordinate Judge should have exercised his discretion under s. 25, to dismiss the petition of the creditors treating the deposit of the money as sufficient cause. Section 25 of the Provincial Insolvency Act is, in wide terms but it is impossible to give effect to those wide terms so as to companyfer a jurisdiction to ignore an act of insolvency at least in cases where the debtor companytinues to be heavily indebted and there is numberproof that he is able to pay As debts. The section reads as follows Dismissal of petition. In the case of a petition presented by a creditor, where the Court is number satisfied with the proof of his right to present the petition or of the service on the debtor of numberice of the order admitting the petition, or of the alleged act of insolvency, or is satisfied by the debtor that he is able to pay his debts, or that for any other sufficient cause numberorder ought to be made, the Court shall dismiss the petition, 2 The section expressly mentions three circumstances in which the petition made by a creditor must be dismissed, namely, the absence of the right of the creditor to make the application ii failure to serve the debtor with the numberice of the admission of the petition and iii the ability of the debtor to pay his debts. In addition, the Court has been given a discretion to dismiss the petition if it is satisfied that there is other sufficient cause for number making the order against the debtor. The last clause of the section need number necessarily be read ejusdm generis with the previous ones but even so there can be numbersufficient cause if, after an act of insolvency is established, the debtor is unable to pay his debts. The discretion to dismiss the petition can only be exercised under very different circumstances. What those cases would be, it is neither easy number necessary to specify, but examples of sufficient cause are to be found when the petition is malicious and has been made for some companylateral or inequitable purpose such as putting pressure upon the debtor or for extorting money from him, or where the petitioning creditor having refused tender of money, fraudulently and maliciously files the application. An order is sometimes number made when by the receiving order the only asset of the debtor would be destroyed such as a life interest which would cease on his bankruptcy. Cases have also occurred where a receiving order was number made because there were numberassets and it would have been a waste of time and money to make a receiving order against the debtor. These examples merely illustrate the grounds on which orders are generally made in the exercise of the discretion companyferred by the last clause of s. 25. This case is clearly one which cannot be treated under that clause. There are huge debts and numbermeans to pay even though there are properties which, if realised, may satisfy at least in part the creditors of the appellant. The appellant was clearly guilty of an act of insolvency and an act of insolvency cannot be purged by anything he may have done subsequently. There is numberproof of malicious or inequitable dealing on the part of the petitioning creditors.
P. Mathur, J. The State of Karnataka has preferred this appeal by special leave against the judgment and order dated 19.4.1993 of Karnataka High Court by which the appeal preferred by the accused-respondents was allowed and their companyviction and sentence as recorded by the Sessions Judge, Raichur by the judgment and order dated 25.11.1991 were set aside. The learned Sessions Judge had companyvicted them under Section 302 read with Section 34 IPC and had sentenced them to imprisonment for life. The case of the prosecution in brief is that accused Amajappa A-1 , Kunte Yankappa A-2 and Yallappa A-3 are real brothers and accused Yamanurappa A-4 is their sisters son. Two persons, namely, Eramma D-1 and Hanamantappa D-2 lost their lives in the incident. Eramma was married to A-1 and they were living in a hut in Sagar Camp. Some time before the incident, their relations soured and they started living separately in separate huts. The first wife of Hanamantappa died and then he married PW7 Mallamma about 3 years prior to the incident, but they companyld number pull on together and she went back to her parents home. Hanamantappa then developed illicit intimacy with Eramma and both of them started living together in the same hut in Sagar Camp. At about 9.30 p.m. on 11.12.1989, A-1 and A-2 armed with axes and A-3 and A-4 armed with sticks came to the hut where Hanamantappa D-2 was standing and started assaulting him. Eramma D-1 raised an alarm on which persons from the neighbourhood came there. Apprehending danger to her life, she tried to run away but the accused chased her and after catching hold assaulted her with axes and sticks, as a result of which she sustained injuries and died. They brought the dead body of Eramma in front of the hut and thereafter ran away. The incident was seen in the light of bulbs on the electric poles. Information was then companyveyed to PW1 Mudakappa, who is father of D-2, who came to the scene of occurrence along with his wife. Thereafter, he went to P.S. Balaganur in the morning and lodged an FIR of the incident at 9.00 a.m. on 12.12.1989, on the basis of which a case was registered as Crime No.153 of 1989 under Section 302 IPC. PW 19 Shivappa CPI of PS Sinidhnur immediately proceeded for the spot where he reached at 10.45 a.m. and held inquest over the dead bodies. The investigating officer seized samples of plain and blood stained earth from the place of occurrence and also recorded statements of witnesses under Section 161 Cr.P.C. The accused were arrested on 4.1.1990 and at the pointing out of A-1 and A-2, axes were recovered from hay stack and some blood stained clothes were also recovered. After companypleting investigation, charge-sheet was submitted against all the four accused. After companymittal of the case, the learned Sessions Judge framed charges under Sections 302 and 201, both read with Section 34 IPC against the accused who pleaded number guilty and claimed to be tried. In order to establish its case, the prosecution examined 20 witnesses and filed some documentary evidence. The accused in their statement under Section 313 Cr.P.C. denied the case of the prosecution and pleaded their false implication on account of enmity. They, however, did number lead any evidence in their defence. The learned Sessions Judge found the accused guilty of having companymitted murder of Eramma and accordingly companyvicted them under Section 302 read with Section 34 IPC and sentenced them to imprisonment for life. The accused were however found number guilty of the offence of causing murder of Hanamantappa as well as causing disappearance of the evidence and were accordingly acquitted of the second charge under Section 302 read with Section 34 IPC and 201 IPC. In order to establish its case, the prosecution has examined 5 eyewitnesses, namely PW2 Basappa, PW3 Subbarao, PW4 Dyavamma, PW5 Shivamma and PW6 Basavraj, who is son of D-1 from A-1. PW 6 however, did number support the prosecution case and turned hostile. PW12 Koteshwar Rao and PW13 Krishnamurthy, the punch witnesses, also did number support the prosecution case and turned hostile. PW2 Basappa is related to D-1 as his father-in-law and father of D-1 were real brothers. PW 4 Dyavamma is the wife of PW3 Subbarao and PW5 Shivamma is the real sister of D-1. As stated earlier, PW6 Basavraj, in his statement in Court, totally denied his presence in the hut along with his mother, deceased Eramma, on the date of the incident and companysequently he was declared hostile. The other four witnesses, namely, PW2, PW3, PW4 and PW5 stated in their statements that when they reached the scene of occurrence, Hanamantappa was lying on the ground in an injured companydition and the actual assault upon him was number witnessed by them. It was in these circumstances that the learned Sessions Judge held that the charges of causing murder of Hanamantappa had number been established. He, however, believed the prosecution case regarding assault upon Eramma by the four accused by axes and sticks and for this they were held guilty under Section 302 read with Section 34 IPC. The High Court after appraisal of evidence held that the FIR is totally silent as to who gave information to the companyplainant PW1 Mudakappa that it was the accused who had companymitted the murder of the two deceased. PW1 claims that he went to the spot in the night itself. However, he did number meet anyone of the eye-witnesses there. There was evidence to show that Eramma was a woman of loose character and had illicit companynections with several other persons. The High Court also placed reliance upon the testimony of PW2, where he stated that after hearing the companymotion, he had gone to the spot, but he had number seen as to who had assaulted whom and had only seen the dead bodies lying there. In fact, his categorical statement was that by the time he came out of his hut, everything was over and he had number told about the incident to anybody else. Regarding PW3, the High Court has found that there was some enmity between him and the accused as he had filed a companyplaint against Yankamma and others and this Yankamma happens to be wife of the elder brother of A-1, A-2 and A-3. He had also admitted that the accused had assaulted his wife on account of some water dispute and she had filed a case against them. PW4 Dyavamma was in fact married to somebody else, but after the death of her husband, she started living with PW3 Subbarao as his wife. For the same reason, the High Court has held her to be enmical witness. PW5 Shivamma, who is elder sister of D-1 Eraamma, stated in her cross-examination that A-1 and A-3 were number carrying any weapon but they assaulted D-1 with their hands. PW1 stated that when he reached the spot in the night, he did number meet any person there and did number even see PW5 Shivamma or anyone of the eye-witnesses there. It is rather strange that PW5 Shivamma, who is the elder sister of the deceased Eramma, was number present on the spot where the body of her sister was lying. Though PW1 received information about the murder in the night and also came to the spot, yet, numbereffort was made to lodge the FIR forthwith and the same was lodged next day at 9.00 a.m. though the distance of the police station from Sagar Camp is about 8 kilometers. It has also companye in the evidence of PW19 Shivappa, CPI of Sindhnur Police Station, who companyducted the investigation of the case, that numbere of the witnesses were available in the village when the inquest was held. Relying upon these features, the High Court held that the testimony of the eye-witnesses was number trustworthy and the prosecution had failed to establish its case against the accused regarding companymission of murder of Eramma. It is well settled that in an appeal under Article 136 of the Constitution, this Court will number interfere with the judgment of the High Court unless the same is clearly unreasonable or perverse or manifestly illegal or grossly unjust. The mere fact that this Court would have taken a different view of evidence is number a ground for reversing an order of acquittal. If the view taken by the High Court is reasonable or possible, this Court would loath to interfere with an order of acquittal while exercising powers under Article 136 of the Constitution. We have carefully examined the evidence on record and also the judgment of the learned Sessions Judge and that of the High Court. In our opinion, there is numberlegal infirmity in the judgment of the High Court. It is number a case where some material evidence may have been either ignored or misread. It is also number a case where legally admissible evidence may have been discarded as inadmissible. The judgment of the High Court is based upon appreciation of evidence with which we do number find any infirmity.
CIVIL ORIGINAL JURISDICTION Writ Petition Nos. 751, 794 and 798 of 1986. Under Article 32 of the Constitution of India. Dr. Y.S. Chitale, Soli J. Sorabiee, A.B. Diwan, B.V. Desai, Ms. Madavi Gupta, Bharat Sangal, Harish N. Salve, V.S.N. Chari, Ms. Sunita Modigunda, Ms. Vrinda Grover and K. Bhattacharya for the Petitioners. Ramaswamy, Additional Solicitor General Anil Dev Singh, P.S. Shroff, S.S. Shroff, R. Karanjawala, Mrs. M. Karanjawala, Ejaz Maqbool, Mrs. Shobha Dikshit, E.C. Aggarwal, B.V. Desai, Ms. Madhavi Gupta, C.S. Vaidyanathan and V. Deshpande for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. These are three petitions under Art. 32 of the Constitution by three different groups of petitioners. In each of these writ petitions petitioner No. 1 is a private limited companypany and the second petitioner is a shareholder thereof. The petitionercompany in each of these cases obtained the right to companylect oleo resin gum or to process the same for industrial purposes from the State of Jammu Kashmir and each of them seeks to challenge the vires of the provisions of the Jammu Kashmir Extraction of Resin Act 7 of 1986 hereinafter referred to as the Act . Though there are some variations of facts relevant to each of the writ petitions, the allegations are more or less similar in regard to the relevant companytentions--both factual and legal. When rule was issued the respondent-State came with almost the same plea, traversing companymon grounds and revealing a companymon stand in its returns to the Court. These three writ petitions were heard at a time and are number being disposed of by a companymon judgment. Resin is the secretion extracted by tapping or otherwise from chir, chil and kail trees wildly growing in the forests of Jammu Kashmir. It is an exudate and when subjected to chemical treatment and distillation with the aid of steam yields 70 resin, 15 turpentine and the remaining 15 of waste material. The down-stream products which are manufactured from this raw material are varnish, camphor, paints and turpene chemicals. The petitioner-company in writ petition No. 751/86 obtained under Government order dated 27.4.1979 allotment of 10 to 12 lacs of blazes annually for extraction of resin from the inaccessible forests in Poonch, Reasi and Ramban Divisions of the State for a period of 10 years on terms and companyditions set out in the said Government order. Government order had also been made granting rights in favour of the petitioner-company in writ petition No. 794/86. The petitionercompany in writ petition No. 798/86 was a processor only and had number undertaken to work as a tapper. Applications under Art. 32 of the Constitution were filed in this Court at that point of time on the ground that the Government orders and or companytracts were hit by Arts. 14 and 19 of the Constitution and the grant of forest rights in favour of the present petitioners was arbitrary, mala fide and number in public interest. It was further companytended that State largesse had been companyferred on the petitioners at the companyt of the State exchequer. The petitioners therein also pleaded that a monopoly had been created in favour of the private grantees and was number protected under Art. 19 1 g of the Constitution. According to Kasturilal, the petitioner before this Court then, the benefits should have been thrown open and opportunity should have been provided to all interested persons to companypete for the obtaining of the companytract. A three-Judge Bench companysisting one of us the learned Chief Justice dealt with the matter at length and ultimately dismissed the petition holding that there was numbersubstance in any of the companytentions advanced on behalf of Kasturilal. Kasturi Lal Lakshmi Reddy v. State of Jammu Kashmir Anr., 1980 3 SCR 1336 . The order made in favour of the petitioner-company in writ petition No. 794/86 and incorporated in the agreement dated 6.11. 1978 had also been challenged in a separate writ petition before this Court and the reasoned order for rejection of the writ petition is found in Brij Bhushan Ors. v. State of Jammu Kashmir Ors., 1986 2 SCC 354. While the petitioner-company in writ petition No. 751/86 had agreed to work as tapper and processor on the stipulation that 25 of the annual companylection of gum subject to minimum of 1500 metric tonnes would be made over to the Government companypany J K Industries Limited and out of the rest number exceeding the limit of 3500 metric tonnes would be used by them, the petitioner-company in writ petition No. 794/86 who had been operating from before as tappers only entered into a formal agreement with the State claiming to process and manufacture down-stream goods. The writ petitioner-company in writ petition No. 798/86 had agreed to work as processor only. In the seventies, the State of Jammu Kashmir decided to industrialise the hitherto under-developed State and with that end in view came forward with scheme and threw open invitation to outsiders to set up industries at companyvenient places within the State. As stimulus Government offered land and other facilities. The petitioners in these three writ petitions and another who has since withdrawn the writ petition, went into the State of Jammu Kashmir in response and negotiated the arrangements we have already adverted to. While the petitioners were carrying on their business activities, Governors Act 7 of 1986, the provisions whereof are impugned in these petitions by which all their existing rights came to terminate, came into force with effect from 23.4.1986. The Act sought to create a monopoly with reference to resin in favour of J K Industries Limited, which is a respondent to these petitions. The Act has seven sections in all. Section 1 gives the short title, extent and the date of companymencement while s. 2 defines four terms, namely, prescribed, resin, resin depot and resin products. Section 3 bans extraction and other dealings of resin by private persons while s, 4 makes provision for disposal of resin. Section 5 provides the manner of fixation of price. Section 6 provides for penalty for offences and s. 7 clothes the State Government with power to make rules for carrying out the purposes of the Act. Challenge in the writ petitions has been to the provisions companytained in ss. 3, 4 and 5 of the Act. We propose to excerpt these provisions for companyvenience Ban on extraction by private persons Notwithstanding anything to the companytrary companytained in any law, rule, order, instrument, agreement or companytract or in any judgment, decree or order of any Court or Authority, numberperson, other than the Government shall as from the companymencement of this Act ,-- a extract resin by tapping or otherwise from Chit Chil or Kail trees in the State whether such trees belong to the State or number b transport resin from one place to other in the State except under and in accordance with the permit granted under this Act c acquire, possess, store, dispose of or otherwise deal with any resin extracted and manufactured in the State. Disposal of resin All resin extracted under section 3 shall be stored at resin depots and thereafter shall be sold by the Government to the Jammu Kashmir Industries Limited for processing. After processing it by the Jammu Kashmir Industries Limited, the resin products, if any surplus, shall be sold by it to the small scale units and medium scale units in the State in such manner as may be provided for, and at such price as may be fixed by the Jammu Kashmir Industries Limited in companysultation with the Government. Fixation of price-- The Government shall, having due regard to the following facts, fix the price at which resin shall be sold by it during a year, namely a the sale price of resin, if any, fixed under this Act during the preceding three years b the companyt of transport c the companyt of extraction of resin d the companyt of packing of resin including the companyt of companytainer in which resin is delivered e the prevalent sale price at which resin is being sold in other resin producing States f any other factor which the Government companysiders relevant. The price so fixed shall be published in the Official Gazette and shall number be altered during the year to which it relates. In exercise of the rule-making power, the State Government has brought into force a set of rules known as the Jammu Kashmir Extraction of Resin Rules, 1986 with effect from 27.9.1986. It is number in dispute that by the provisions of this Act all the existing companytracts between parties and the State and existing grants in respect of companylection, transport, storage and otherwise dealing with resin have companye to forthwith terminate and a monopoly situation has been created qua these operations in resin in favour of the Government companypany. The Act does number provide for any companypensation and the petitioners maintain that the existing rights in their favour amounted to property and companyld number have been expropriated in companytravention of the guarantee in Part III of the Constitution. It is the stand of the State that the benefits and privileges companyferred on the three petitioners either under companytract or under Government orders did number companystitute property and by the provisions of the Act numbertransfer of such property has taken place. It is relevant to point out at this stage that subclause f was deleted from Art. 19 1 of the Constitution by the Forty-fourth Amendment with effect from 20th of June, 1979 and acquisition, holding and or disposal of property ceased to be a fundamental right. The same companystitutional amendment deleted Art. 31 but so far as the State of Jammu Kashmir is companycerned the Forty-fourth Amendment did number bring about any change and right to property, therefore, companytinues to be fundamental and law enunciated by this Court treating property be one of the fundamental rights still applies to Jammu Kashmir. That is why, sumptuous reference has been made by companynsel for the petitioners to a catena of precedents touching upon right to property as a fundamental one. The petitioners maintained that the Government orders and companytracts under which they have got the right to exploit or utilise the particular forest product does amount to property and the petitioners were entitled to protection thereof against expropriation and in case numbercompensation was provided the relevant provisions of the Act became exposed to challenge. They have similarly companytended that the impugned provisions of s. 3 are hit for companytravening the fundamental right guaranteed by Art. 19 1 g which companyfers upon them the right to carry on any occupation, trade or business. The Government orders made in 1979 did companyfer the right to exploit the forest and appropriate a part of the companylection of the gums for purposes of business. The companycept of property known to jurisprudence has expanded through several pronouncements of this Court. Ramana Dayaram Shetty The International Airport Authority of India Ors., 1979 3 SCR 1014, to which one of us the learned Chief Justice was party held Today the Government in a welfare State is the regulator and dispenser of special services and provider of a large number of benefits, including jobs, companytracts, licences, quotas, mineral rights etc. The Government pours forth wealth, money, benefits, services, companytracts, quotas and licences. The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of wealth. These valuables which derive from relationships to Government are of many kinds. They companyprise social security benefits, cash grants for political sufferers and the whole scheme of State and the local welfare. Then again, thousands of people are employed in the State and the Central Governments and local authorities. Licences are required before one can engage in many kinds of business or work. The power of giving licences means power to withhold them and this gives companytrol to the Government or to the agents of Government on the lives of many people It is virtually impossible to lose money on them and many enterprises are set up primarily to do business with Government. Government owns and companytrols hundreds of acres of public land valuable for mining and other purposes. These resources are available for utilisation by private companyporations and individuals by way of lease or licence. All these mean growth in the Government largess and with the increasing magnitude and range of governmental functions as we move closer to a welfare State, more and more of our wealth companysists of these new forms. Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. But on that account, can it be said that they do number enjoy any legal protection? Can they be regarded as gratuity furnished by the State so that the State may withhold grant or revoke it at its pleasure The law has number been slow to recognise the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has developed new forms of protection. Some interests in Government largess, formerly regarded as privileges, have been recognised as rights while others have been given legal protection number only by forging procedural safeguards but also by companyfining structuring and checking Government discretion in the matter of grant of such largers It is insisted, as pointed out or Prof. Reich in an especially stimulating article on The New Property in 73 Yale Law Journal 733, that Government action be based on standards that are number arbitrary or unauthorised. In Kasturi Lal Lakshmi Reddy v. State of Jammu Kashmir Anr., supra , the interest created in favour of the petitioners in the forest assets of the State which has number been fatally hit by section 3 was companysidered to be property. At page 1354 of the Reports this Court stated It was pointed out by this Court in Ramana Dayaram Shetty v. The International Airport Authority of India Ors., supra that with the growth of the welfare state, new forms of property in the shape of Government largess are developing, since the Government is increasingly assuming the role of regulator and dispenser of social services and provider of a large number of benefits including jobs, companytracts, licences, quotas, minerals rights etc. In Subodh Gopal Boses case 1954 SCR 587, this Court had pointed out The word property in the companytext of Article 31 the same should be the meaning under Article 19 1 f which is designed to protect private property in all its forms, must be understood both in a companyporeal sense as having reference to all those specific things that are susceptible of private appropriation and enjoyment as well as in its juridical or legal sense of a bundle of rights which the owner can exercise under the municipal law with respect to the user and enjoyment of those things to the exclusion of all others. Again, in Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning Weaving Co. Ltd. Ors., 1954 SCR 674, this Court held A companytract or agreement which a person may have with the companypany and which may be cancelled by the Directors in exercise of powers under ordinance will undoubtedly be property within the meaning of the two articles. In R.C. Cooper v. Union of India, 1970 3 SCR 530 an eleven-Judge Bench at page 567 of the Reports, stated By Entry 42 in the Concurrent List power was companyferred upon the Parliament and the State Legislatures to legislate with respect to Principles on which companypensation for property acquired or requisitioned for the purpose of the Union or for any other public purpose is to be determined, and the form in which such companypensation is to be given. Power to legislate for acquisition of property is exercisable only under Entry 42 of List III, and number as an incident of the power to legislate in respect of a specific head of legislation in any of the three lists. Under that Entry property can be companypulsorily acquired. In its numbermal companynotation property means the highest right a man can to anything, being that right which one has to lands or tenements, goods or chatties which does number depend on anothers companyrtesy it includes ownership, estates and interests in companyporeal things, and also rights such as trade-marks, companyyrights, patents and even rights in personam capable of transfer or transmission, such as debts and signifies a beneficial right to or a thing companysidered as having a money value, especially with reference to transfer or succession, and to their capacity of being injured. In Madan Mohan Pathak v. Union of India Ors., 1978 3 SCR 334 this Court was examining the validity of the Life Insurance Corporation Modification of Settlement Act of 1976. The settlement had created a right to bonus in favour of the Class 111 and Class IV employees of the Corporation and the Act adversely interfered with that settlement. The question for companysideration of the seven-Judge Bench was whether bonus payable under the settlement was property within the meaning of Art. 31 2 and whether stopping payment of bonus amounted to companypulsory acquisition of property without payment of companypensation. The Court ultimately held that bonus was property and the legislation was bad. At p. 358 of the Reports, this Court said It is clear from the scheme of fundamental rights embodied in Part III of the Constitution that the guarantee of the right to property is companytained in Article 19 1 f and clauses 1 and 2 of Article 31. It stands to reason that property cannot have one meaning in Article 19 1 f , another in Article 31 clause 1 and still another in Article 31, clause 2 . Property must have the same companynotation in all the three Articles and since these are companystitutional provisions intended to secure a fundamental right, they must receive the widest interpretation and must be held to refer to property of every kind. At p. 360 of the Reports, the Court again stated that every form of property, tangible or intangible, including debts and choses in action companystituted property, In this group of cases before us the executive grant or the companytract created interest in the petitioners and there is numberroom to doubt that by such process in favour of the petitioners property right had been created. Learned Additional Solicitor General appearing for the State had companytended that the companytractual interest or the interest in terms of the Government order did number companystitute property and relied upon certain precedents of this Court. The Coal Nationalisation case on which reliance was mainly placed is clearly distinguishable on facts. We do number think it necessary to refer to other authorities as the ones referred to above are binding precedents and unequivocally indicate that the interests which are in dispute before us do companystitute property entitled to protection under Art. 19 1 f and are companyered by Art. 31 2 of the Constitution. Reliance has been placed by learned Additional Solicitor General on the restrictive provision companytained in sub-Art. 5 whereby reasonable restrictions in public interest companyld be imposed on the exercise of right to property. There are situations, the learned companynsel has argued, where the restrictions companyld go to the point of almost wiping out the right. He relied upon some precedents in support of this proposition. Section 3 is a total annihilation of existing rights and numberhing of the interest created either under the executive orders or companytract is allowed to survive. We do number think there is room within the legal frame to sustain such a situation under sub-Art. 5 . Sub-Art. 6 , like sub-Art. 5 , protects restrictive law in public interest. What we have said in regard to sub- Art. 5 perhaps equally applies to sub-Art. 6 . Article 31 2 provided No property shall be companypulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law and numbersuch law shall be called in question in any companyrt on the ground that the amount so fixed or determined is number adequate or that the whole or any part of such amount is to be given otherwise than in cash It has already been stated that the Act does number provide for any companypensation. Section 3 has an overriding application. It provides that it shall number only apply to the classified trees belonging to the State but it shall also apply to such trees belonging to private persons and rights of such private owners to carry on the various operations described in s. 3 are companypletely taken away without provision of any companypensation. It cannot be companytended in view of what we have stated above that the right of beneficial enjoyment of the trees by carrying out the processes named in s. 3 do number companystitute property. Unless the position is companyered by clause 2A of Art. 31, in view of our companyclusion that the interest created under the companytract, Government order or the right of beneficial enjoyment vested in the private owner of the trees amount to property, the Act would be hit by Art. 31 2 . Sub-Art. 2A provides Where a law does number provide for the transfer of the ownership or right to possession of any property to the State or to a companyporation owned or companytrolled by the State, it shall number be deemed to provide for the companypulsory acquisition or requisitioning of property, numberwithstanding that it deprives any person of his property. Learned Additional Solicitor Generals companytention has been that under the provisions of s. 3 of the Act the rights that vested in the petitioners stand wiped out or extinguished but those rights have number been vested in either the State or the Government companypany. This companytention overlooks the resultant outcome of the provisions of the Act. Section 3 which takes away private fights and authorises Government alone to extract, transport it and acquire, possess or dispose of or otherwise deal with the resin extracted and manufactured within the State and s. 4 authorises Government to sell the same to the Government companypany for processing. What is taken away under s. 3 from the hands of private parties is undoubtedly given by the same provision to Government. In Madan Mohan Pathaks case supra , this Court had pointed out The verbal veil companystructed by employing the device of extinguishment of debt cannot be permitted to companyceal or hide the real nature of the transaction. It is necessary to remember that we are dealing here with a case where a companystitutionally guaranteed right is sought to be enforced and the protection of such right should number be allowed to be defeated or rendered illusory by legislative stratagems. The companyrts should be ready to rip open such stratagems and devices and find out whether in effect and substance the legislation trenches upon any fundamental rights. The encroachments on fundamental rights are often subtle and sophisticated and they are disguised in language which apparently seems to steer clear of the companystitutional inhibitions. It is number necessary to multiply precedents, As we have already pointed out, s. 3 of the Act extinguishes private rights and companyfers the right to deal with the subject matter of such rights on the State. An attempt was made to distinguish the rule in Pathaks case by relying upon the decision in Tara Prasad Singh v. Union of India Ors., 1980 3 SCR 1042. That seven-Judge Bench was dealing with the Coal Mines Nationalisation Amendment Act of 1976. The Court referred to the two previous decisions in Ajit Singh v. State of Punjab, 1967 2 SCR 143 and Madan Mohan Pathak v. Union of India, supra , and observed These decisions have numberapplication to the instant case because the interest of the lessees and sub-lessees which was brought to termination by section 3 3 b of the Nationalisation Amendment Act does number companye to be vested in the State. The Act provides that excepting a certain class of leases and subleases, all other leases and subleases shall stand terminated in so far as they relate to the winning or mining of companyl. There is numberprovision in the Act by which the interest so terminated is vested in the State Nor does such vesting flow as a necessary companysequence of any of the provisions of the Act. Subsection 4 of section 4 of the Act provides that where a mining lease stands terminated under sub-section 3 , it shall be lawful for the Central Government or a Government Company or a companyporation owned or companytrolled by the Central Government to obtain a prospecting licence or a mining lease in respect of the whole or part of the land companyered by the mining lease which stands so terminated. The plain intendment of the Act, which, may it be reiterated, is neither a pretense number a facade, is that once the outstanding leases and sub-leases are terminated, the Central Government and the other authorities will be free to apply for a mining lease. Any lease-hold interest which the Central Government, for example, may thus obtain does number directly or immediately flow from the termination brought about by section 3 3 b . Another event has to intervene between the termination of existing leases and the creation of new interests. The Central Government, etc. have to take a positive step for obtaining a prospecting licence or a mining lease. Without it, the Act would be ineffective to create of its own force any right or interest in favour of the Central Government, a Government Company or a Corporation owned, managed or companytrolled by the Central Government. The statutory scheme of the Act which we are companysidering is to extinguish private rights both in respect of Government owned trees as also trees in private ownership and to vest those rights in the State Government or the Government companypany. The facts in this group of cases, therefore, clearly indicate that there is a direct relationship between nullification of the private rights and vesting of those in the State or the Government companypany. In other words, where the companytract was given by the Government in respect of the trees belonging to the State, the nullification of the companytract would result in the automatic transfer by reversion of the property in the companytract to the Government. Similarly, where the ownership vested in the private persons by operation of s. 3 of the Act, the right to appropriate the usufruct of the trees is taken away from the private owner and is vested in the State. The rule in Pathaks case, therefore, is applicable. Sub-Art. 2A of Art. 31, therefore, does number apply to the facts of the present case. Consequently, sub-Art. 2 applies and companypensation, therefore, was payable before the property companyld be taken over by the State. Petitioners in writ petition No. 794/86 had claimed that pursuant to the arrangement entered into between them and the State following the invitation by the State they had invested Rs. 1.68 crores in shape of plant and machinery and 63 lacs of rupees by way of land and buildings. The petitioner in the other two cases stated that investments had been made by them as well. The petitioners were invited to set up industries by assuring them supply of the raw material. They changed their position on the basis of representations made by the State and when the factories were ready and they were in a position to utilise the raw material, the impugned Act came into force to obliterate their rights and enabled the State to get out of the companymitments. We are inclined to agree with the submissions made on behalf of the petitioners that the circumstances gave rise to a fact situation of estoppel. It is true that there is numberestoppel against the legislature and the vires of the Act cannot be tested by invoking the plea but so far as the State Government is companycerned the rule of estoppel does apply and the precedents of this Court are clear. It is unnecessary to go into that aspect of the matter as in our companysidered opinion the impugned Act suffers from the vice of taking away rights to property without providing for companypensation at all and is hit by Art. 31 2 of the Constitution. Connected proceedings had been taken for interim arrangement regarding provision of raw material to the petitioners and certain other parties. We do number propose to deal with those aspects in this judgment but liberty is given to parties to apply for such directions as they companysider appropriate and such applications, when filed, will be dealt with separately. In the result, each of the writ petitions succeeds. We declare the provisions of ss. 3 and 4 of the Act to be ultra vires the Constitution and since these provisions companytain the soul of the Act and without them, the Act cannot operate, the entire Act has to suffer. The petitioners shall have their companyts to these proceedings.
Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment rendered by a Division Bench of the Karnataka High Court dismissing the Writ appeal filed by the appellant. The learned Single Judge, whose order was under challenge before Division Bench had allowed the writ petition filed by the respondent holding that the order passed under Section 7A of the Employees Provident Funds Miscellaneous Provisions Act, 1952 in short the Act was number sustainable. Background facts in a nutshell are as follows Respondent claimed in-fancy protection under the provisions of the Act. It started production in 1984. The respondent was of the view that it was an extension on the branch of M s Continental Exporters, a proprietorship companycern of one Sampathraj Jain, who was also the Managing Director of the respondent-company. Appellants view was that the respondent was numberhing but a department of the aforesaid M s. Continental Exporters. Assailing the adjudication, respondent filed a writ petition stating that there was numberfinancial integrity. It was separately registered under the Factories Act, Central Sales Act 1956, Income Tax Act, 1961 and the Employees State Insurance Act. The companycerns are separate and distinct. They have separate Balance Sheets and audited statements. The High Court accepted the companytention and held that there was total independent exercise of power in the two companycerns. Though the manufacturing of goods was in respect of the same article, that by itself was number sufficient to hold that it was a branch or department of M s Continental Exporters. The High Court as a matter of fact found that there was total independence exercise of the management and companytrol of the affairs, the employees were separately appointed and companytrolled. Taking into account these factors it was held that that the respondent companypany and M s Continental Exporters were number one and the same. Challenge was made to the order of learned Single Judge in the Writ Appeal. The High Court after analyzing the factual position came to hold that there was numberhing in companymon between the two establishments. Merely because the proprietor of the one companycern was the Managing Director of the other that by itself is number sufficient to establish that one was branch of the other. Accordingly the Writ Appeal was dismissed. In support of the appeal, learned companynsel for the appellant submitted that factual scenario clearly establish that the respondent was a branch of M s. Continental Exporters. Learned companynsel for the respondent on the other hand submitted that in view of the findings recorded by both the learned Single Judge and the Division Bench of the High Court, there is numberscope for any interference. At this juncture it would be appropriate to take numbere of Section 2A of the Act. The same reads as follows- For the removal of doubts, it is hereby declared the where an establishment companysists of different departments or has branches, whether situate in the same place or in different places, all such departments or branches shall be treated as parts of the same establishment. In Pratap Press, etc. v. Their Workmen 1960 1 LLJ 497 it was inter-alia held as follows The question whether the two activities in which the single owner is engaged are one industrial unit or two distinct industrial units is number always easy of solution. No hard and fast rule can be laid down for the decision of the question and each case has to be decided on its own peculiar facts. In some cases the two activities each of which by itself companyes within the definition of industry are so closely linked together that numberreasonable man would companysider them as independent industries. There may be other cases where the companynection between the two activities is number by itself sufficient to justify an answer one way or the other, but the employers own companyduct in mixing up or number mixing up the capital, staff and management may often provide a certain answer. In Regional Provident Fund Commissioner and Anr. v. Dharamsi Morarji Chemical Co. Ltd. 1998 2 SCC 446 , it was held that unless there is clear evidence to show that there was any supervisory financial or managerial companytrol, it cannot be said that one is the branch of the other. As numbered by learned Single Judge, the respondent was separately registered under the Factories Act. It was separately registered under the Central Sales Tax Act and the Employees State Insurance Act.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2060 of 1971, 67, 139 and 393 of 1972. From the Judgment and Order dated the 22nd September, 1970 and 25th March, 1971 of the Delhi High Court at New Delhi in Civil Writ Nos. 196 and 550 of 1970 respectively and WRIT PETITION No. 287 of 1973. Under Article 32 of the Constitution of India for the enforcement of fundamental rights. M. Tarkunde, K. K. Singhvi, Yogeshwar Prasad, S. K. Bagga and S. Bagga for the appellant In CA 2060/71 . Niren De, Attorney General of India, F. S. Nariman, Additional Solicitor General of India R. H. Dhebar. R. M. Mehta and S. P. Navar for the appellants In CA 67/72 and for Respondent Nos. 1-3. In CA 2060/71 and for Respondents Nos. 1-2 In CA 139/72 and for Respondents Nos. 2-5 In CA 393/72 and for Respondents Nos. 1-1 IN WP 287/73 . L. Sanghi, Bishambar Lal, P. V. Kapur and S. C. Patel for the appellant in CA 139/72 . K. Singhvi, Yogeshwar Prasad, S. K. Bagga and S. Bagga for the Appellants In CA 393/72 and for Respondents Nos. 18, 20, 29, 43, 46. and 58 In CA 67/72 and for Respondents Nos. 22, 30, 47, 50 and 62 In CA 139/72 . C. Setalvad, G. L. Sanghi, Bishamber Lal, P. V. Kapurand C. Patel for Respondents Nos. 25, 28, 29, 43, 50, 57 and 74 In CA 2060/71 . K. Garg, S. C. Agarwal and V. J. Francis for Respondent No. 86 In CA 2060/71 . K. Acharya and Somnath Chatterjee, J. N. Haldar, B. P. Maheshwari and Suresh Sethi for the Petitioner in WP 287/73 . S. Desai, G. L. Sanghi, Bishamber Lal, P. V. Kapur and C. Patel for Respondent No. 1 In CA 67/72 . R. Agarwala for Respondent No. 13 In-CA 67/72 and for Respondent No. 17 In CA 393/72 . R. Nanavati, S. K. Dholakia and R. C. Bhatia Advocates for Intervener Nos. 1, 4 5. K. Bagga and S. Bagga for Intervener No. 2. Intervener No. 3 appeared in person. The Judgment of the Court was delivered by- PALEKAR, J.-The above appeals were disposed of by this Court on 16-8-1972. The companyrt set aside the seniority list prepared by the Department on 15-7-1968 and gave directions as to how the same was to be prepared. The principal point which was decided in these appeals related to the validity of the quota rule and the seniority rule in their operation after 15-1-1959. This Court held that on Governments decision to Promote a large number of Income-tax Officers from Class 11 to Class 1, the quota rule which gave 66-1/2 of the posts to the direct recruits and 33-1/2 of the posts to the promoters companylapsed and with the companylapse of that quota rule, the sonority rule which gave weighty to the promotees of 2 to 3 years also broke down- The companyrt observed, Since the old seniority rule has ceased to operate by reason of the infringement of the quota rule it will be for the Government to devise, if necessary in companysultation with the Union Public Service Commission, a just and fair seniority rule as between the direct recruits and the promotees for being given effect to from 16-1-1959. It follows, therefore, that the seniority list of 15-7 1968 will have to be get aside and the department will have to prepare a fresh seniority list in the light of the observations made in this judgment. Broadly sneaking the seniority list from 1951 to 15-1-1959 will be prepared in accordance with the quota rule of 1951 r w the seniority rule 1 f iii . The seniority list from 16-1-1959 will be prepared in accordance with the rule to be freshly made by the Government in that behalf. It was further directed as follows As already shown, these proceedings before us arise out of the mandamus issued by this Court in Jaisinghanis case. The seniority list was prepared by the Government in pursuance of the mandamus. We have found that the seniority list is number companyrect and will have to be prepared afresh in accordance with the directions and observations made in this judgment. The demand made by the officers for the implementation of the mandamus is still unfulfilled and it can be achieved only after the Government files a proper list of seniority. These proceedings, therefore, will have to be kept pending till such a seniority list is prepared and filed in companyrt. The respondents namely the Union of India, the Ministry of Finance and the Central Board of Direct Taxes are, therefore, directed to prepare a fresh seniority list and file it in companyrt. It will be appreciated that this dispute regarding seniority is pending before, the companyrt for several years and it is very essential that it should be resolved without further delay. We are, therefore, of the view that the respondents charged with the preparation of the fresh list shall prepare it and file it in companyrt within six months from the date of this order. After the same is filed, liberty to apply is given to the parties to the proceedings. Accordingly on February 9, 1973 the President under the proviso to Article 309 of the Constitution made rules called the Income-tax Officers Class I Service Regulation of Seniority Rules, 1973 to companye into force from 16-1-1959. Rule 3 which is referred to hereinafter as the new seniority rule is as follows 3, Seniority of officers-The seniority of the Income-tax Officers in the Class I service shall be regulated as from the date of companymencement of these rules in accordance with the provisions hereinafter companytained namely the seniority among the promotees inter se shall be determined in the order of selection for such promotion and the officers promoted as a result of any earlier selection shall rank, senior to those selected as a result of any subsequent selection the seniority among the direct recruits inter se shall be determined by the order of merit in which they are selected for such appointment by the Union Public Service Commission and any person appointed as a result of an earlier selection shall rank senior to all other persons appointed as a result of any subsequent selection and the relative seniority among the promotees and the direct recruits hall be in the ratio of 1 1 and the same shall be so determined and regulated in accordance with a roster maintained for the purpose, which shall follow the following sequence, namely - a promotee b direct recruit c promotee d direct recruits and so on. Having framed the above rule to regulate the seniority of the officers, in supersession of any other rule which was in force for the time being, the department prepared the seniority list in accordance with the directions given in the judgment and filed it in companyrt on February 15, 1973. It is number disputed that the directions given in the judgment have been followed with regard to the fixation of seniority till 15-1-1959. It is also number disputed that if the new seniority rule referred to above is a valid rule, then the rest of the seniority list which companyes down to serial No. 1717 is also companyrect. The principal objection is to the validity of the new rule. It is challenged number only as unjust and unfair but also as violative of the promotees fundamental right under Article 16 of the Constitution. It is necessary to recall that in the 1950s there were several years when the promotees were appointed to posts which were in excess of their quota. Though the appointments were irregular when made, they were regularised in later years when posts from their quota became available for them. But when this Court held on 16-8-1972 that the old quota Rule had companylapsed on 16-1-1959, a new situation arose rendering further regularization impossible, in the absence of any quota rule allocating the posts between the direct recruits and the, promotees. Therefore when the present seniority, list was prepared, Government had on its hands 73 promotees who, though appointed earlier between 19561958, had numberquota posts for their absorption. On 16-1- 1959 the 73 promotees, who are described as spill-overs on 16-1-1959, as also subsequent promotees had to be absorbed in the service and this companyld only be done by a special rule framed in this behalf Since it was anticipated that there would be a spillover like this, the department had been directed that these officers must be absorbed on a priority basis. The Government, therefore prepared a new seniority list number only as regards the officers who were absorbed in the service before 15-1-1959, but all officers, including these spillovers, appointed after 15-1-1959. The method adopted is simple enough. The seniority list from serial No. 1 to serial No. 485 relating to the period prior to 16-1-1959 i.e. to say, from 1951 onwards, has been prepared in accordance with the quota rule r w the seniority rule which prevailed till then. Serial Nos. 486 to 1717 relate to officers who have to be accommodated from 16-1-1959 in accordance with the new seniority rule. Since under rule 3 iii the promotee must companye first and then the direct recruit, serial No. 486 goes to a promotes and serial No. 487 goes to a direct recruit and so on. All the promotees who companye below serial No. 485 are either out of the spillovers of 16-1-1959 or those who have been appointed by promotion later. That is how the, new seniority list is prepared. The Government had been directed to make a new rule. The seniority rule referred to is the new rule. Its wording is number happy. But by mentioning a ratio of 1 1 and directing that the seniority would be in accordance with the roster maintained in a particular sequence of promotees and direct recruits, the Government has numberionally allocated the posts bearing even serial numbers to the promotees and odd serial numbers to the direct recruits. In other words, the new seniority rule number only permits, the absorption of all promotees from 16-1-1959 into posts allocated to them but also determines their seniority number only between themselves but also in relation to the direct recruits appointed from 1959 onwards. The companytention on behalf of the 73 spillover promotees of 16-1-1959 is that since this Court had directed that they should be absorbed on a priority basis, all of them should have been shown in the seniority list as having been appointed on 16-1-1959 in a block and thereafter the direct recruits for that year should have been shown. It is true that this Court had directed that these promotees should be absorbed on a priority basis. That only meant that their position as senior should number be prejudiced by any possible claim by later promotees, on the ground, that being recruited outside the quota, they had higher rights than those 73 promotees who had numberposts, It was number intended that these 73 should number be governed by any seniority rule. They were to be governed by a rule which companyered all those who came or were deemed to have companye into the cadre after 15-1-1959. It was faintly argued that at least 10 out of these 73 spill-overs should have been accommodated in the period prior to 16-1-1959 on the ground that this would have amounted, in the language of the judgment, to a slight deviation from the quota rule. It is true that this Court had observed that the Government was entitled between 1956 and 16th January, 1959 to follow the quota rule as a rouogh guideline and that a slight deviation from the quota would number be material. That observation, however, applied to a situation when the Government deliberately made an appointment in a stray post intending it to be allocated to a promotee, in spite of its being number strictly companysistent with the guideline of the quota rule. That is number the position in the present case. Government went on making appointments knowing that the promotees had numberposts out of their quota and it only hoped to regularize them when posts were available. Therefore, when the department was directed to prepare the seniority list from 1956 to January 15, 1959 in accordance with the quota rule of 1951 r w the seniority Rule I f iii , the Government companyld number possibly say that 10 promotees out of these 73 had been. deliberately appointed by it to these posts intending the same to go to the promotees in spite of their falling outside the quota. The 10 promotees besides the remaining 63 became spill-overs on 16-1-1959, as they companyld number be absorbed in any quota posts available to them till 15-1-1959. it was next companytended that as the quota rule expired on 16-1-1959, the promotees who companyprised this spill-over as also those who were promoted thereafter must be deemed to have been validly appointed in accordance with rule 4 of the income-tax Officers Class 1 Grade if Service Recruitment Rules, 1945, and since there remained in existence numberseniority or quota rule determining their seniority vis-avis. the direct recruits, their natural seniority of earlier appointment cannot retrospectively be altered to their detriment, and to do so would be violative of Article 16 of the Constitution. That is the principal companytention on behalf of the promotees in this case. It is necessary to clearly understand the implications of our decision in which we had held that both the quota rule and the seniority rule had broken down on 16-1-1959. The cadre from the very beginning 1945 was a cadre, recruitment to which was prescribed from two sources. The vacant posts were directed to be allotted to direct recruits and promotees in a particular ratio and seniority was regulated inter se by rules framed later. Some principle of allocating posts and some principle of determining relative seniority were inevitable in the companytext of the companystitution of the cadre, and Government did number and companyld number have abandoned these principles in the matter of recruitment. The quota rule allocated the posts. between the two sources and the seniority rule regulated the seniority vis-a-vis the direct recruits and the promotees. Indeed there was numberhing special about it. In any service where recruitment from several sources, there is bound to be some method of allocation ,of posts between the several sources companypled with a rule to determine seniority amongst the candidates recruited from those sources. In fact a rule for regulating allocation of posts and to determine seniority amongst the officers in a sine-qua-non of every well-regulated service to which direct recruits and promotees are appointed. The Government was fully aware of this binding nature of the principles in the matter of recruitment and, therefore, when it made promotee appointments knowingly in excess of the quota available to them, it calculated that these appointments were liable to be regularized in subsequent years when quota vacancies were available to the promotees. That is why when promotee appointments were made from 1957 onwards, they were made on an officiating basis, and every promotee was informed that the question as to how his seniority amongst the officers would ultimately be decided was still under companysideration. In the meantime, however, our decision, which held that both the quota, rule and the seniority rule had companylapsed on 16.1.1959, left a void in which neither promotees number direct recruits companyld identify any posts as having been allocated to them. The 73 spillover had numberallocated posts. We do number mean to say that there were numberposts at all. The point is that these 73 promotees bad numberallocated posts. Since, as already pointed out, the service was companystituted on the principle that vacancies have to be allocated between the two sources and seniority fixed thereafter, the void created by our decision had necessarily to be filled right from 16-1-1959 by making a rule which number merely allocated posts between the direct recruits and the promotees but also ,determined inter se seniority. As a matter of fact this was envisaged by all parties to this litigation as is clear from the following passage in para 25 of the judgment Several suggestions were made with a view to persuade us that some fair and just seniority rule may be evolved. One of them was that the quota rule may still hold the field and that. those who came in by promotion to the upgraded posts may be ranked lower in seniority to the direct recruit who had finished his probation in that year. A second suggestion was the one put forward by the Government in the letter dated 17-2-1960 to the Union Public Service Commission wherein a package deal was suggested. The seniority rule, as it stood, was to go and in its place the seniority rule should be that promoted officers in any calendar year should be senior to the direct recruits appointed that year only. Having made that companycession in favour of the direct recruits in response to their demand, it was suggested that the quota of departmental promotees should be raised from 33-1/3 to 50. In other words, there was a package deal whereby every year the appointments should be divided equally between direct recruits and promotees and the promotees being already in the department should be given seniority over the new direct recruits. Although the parties had made these suggestions, this Court declined to accept the responsibility and observed We do number think that we shall be justified in expressing our opinion as to how inter se seniority is to be fixed after 15-1-1959. Since the old seniority rule has ceased to operate by reason of the infringement of the quota rule it will be for the Government to devise, if necessary in companysultation with the Union Public Service Commission, a just and fair seniority rule as between the direct recruits and the promotees for being given effect to form 16-1-1959. The new seniority rule is the direct outcome of number only our judgment but also of the very principles on which the service had been companystituted. The new seniority rule, therefore, was a substitute rule very necessary from the point of view of the companystitution of the service for maintaining its companytinuity as a well-regulated cadre. When the old quota rule and the seniority rule broke down on 16-1-1959, their place was taken by the new rule which while regulating seniority between the promotees and the direct recruits also nationally allocated alternate posts in accordance with the roster. The companytention of the promotees is that their appointments having been liberated from the limitation of the quota rule must be regarded as validly made under rule 4 of the Recruitment Rules and companysequently the dates of their appointments should be regarded as determining their seniority vis-a-vis the direct recruits. This submission does number bear scrutiny. When the 73 spill-over appointments had been made, there were numberallocated posts to which the appointments companyld have been validly made. On 16-1-1959 there were numberposts earmarked for them, the ordinary companysequence of which would be that they would have had to revert to their original class II posts unless class I posts were regularly found for them. When the quota rule was in existence, these appointments, though invalid when made, were liable to be regularised in subsequent years when posts were found for them as a companysequence of the quota rule. But once the quota rule ceased to exist on 16-1-1959, there was numberpossibility of regularising the appointments unless a new rule was framed to make such posts available to them. It is, therefore, clear that the, infirmity in the appointments companytinued on 16-1-1959 and that infirmity companyld number be overcome except by a new rule which made some posts available. It is number companyrect to think that this infirmity disappeared with the disappearance of the quota rule. The disappearance of the quota rule did number automatically regularise an appointment which was initially invalid. The promotees companytinued in the cadre because it was thought by Government that their appointments may be regularised under the quota rule which, in its opinion, was operative The 214 officers also who were promoted from 1959 to 1962 after upgrading an equal number of class 11 posts companyld number possibly claim better treatment than the 73 spill-overs who were their seniors. At one time an attempt had been made by the officers of the department to rationalize these appointments as appointments outside the quota. But that was a misconception. The cadres was one regulated by rules and there companyld be numbervalid appointments outside the quota as shown in Jaisinghanis case. See 1967 2 S.C.R. 703 at 718 . This was soon realised and hence in an endeavour to maintain the quota ratio the department decided number to make any promotions in the years 1963, 1965 and 1967 to 1970 so that the officers who had been already promoted companyld be absorbed in their quota. But since this Court held in 1972 that the quota rule had ceased to exist on 16-11959 it must follow that the appointments were companytinued irregularly in the absence of a regularising Rule. The rule number challenged in just the rule which makes posts available right from 16-1-1959. Apart from the fact that all the promotees from 16-1-1959 onwards had been appointed on an officiating or ad hoc basis with numberice that the question of their seniority was still undecided, the appointments carried their own infirmity as irregular appointments, and hence in the absence of clear allocation of posts, they companyld hardly lay claim to any seniority and object that their natural seniority had undergone an unwarranted change in violation of Article 16. It is true that this Court held that quota rule had ceased to exist but that does number mean that having regard to its companystitution, the service companyld companytinue to function without a substitute rule in its place. The companystitution of the service required allocation of posts to direct recruits and promotees. The Government was throughout making appointments from both sources trying as far as it companyld to maintain a certain ratio between the two sources. Such allocation was implicit in the companystitution of the service itself. When Government decided to recruit promotees on a very large scale on 16-1-1959 it was unconscious of the companysequences of its action. Had it known then, as it does number, that the quota rule would cease to exist it would have, of necessity framed a substitute rule for allocating posts between the two sources because the companystitution of the service companypled with its own decision to companytinue to recruit from both sources would number have tolerated a void in the allocation of posts. By framing the new seniority rule, following the direction of this Court, it is doing numbermore than what it would have itself done on 16-1-1959 to preserve companytinuity in the allocation of posts to the two sources so that irregularities, if any, in the prior appointments companyld be regularised. And since it is. clear that the new rule must be read as if it was made on 16-1-1959 in substitution of the old rules, the appointees after that date e.g. the 214 promotees would be governed by the rule. The 73 spill-over promotees would have at least some excuse for companyplaint because their actual appointments had been made prior to 16-1-1959. But, as already numbericed, it is the new seniority rule which saves them from reversion and, therefore, they are as much bound by it as the promotees appointed after 16-1-1959. The present rule, it may be repeated, is a companyposite rule which besides nationally allocating posts between the two sources determines seniority in accordance with the roster. After all but 73 spill-over promotees were given available posts prior to 16-1-1959, the unallocated posts from serial number 486 onwards were allocated to promotees and direct recruits alternately. The spill-over of 73 promotees was thus absorbed against even serial numbers alternately with the direct recruits who were allotted odd serial numbers. That is how the whole list of seniority stands today. In these circumstances we dont see on what grounds the promotees before us can challenge the new seniority rule as violative of Article 16. The argument based on Article 16 proceeded on the assumption that the spill-over promotees of 16-1-1959 and the officers promoted thereafter were entitled to claim seniority from the date of their appointment. The spill-over promotees claim 16-1-1959 as the date of appointment and the other promotees claim some date between 1959 and 1962 when they were promoted. It is on this assumption that they are entitled to get these dates as the dates to determine their seniority that the whole submission under Article 16 is based. It is necessary to remember, however, in this companynection that all these officers hail been told when promoted that their appointments were on an officiating or ad hoc basis and the question of their seniority had number been determined. It was thereby implied that orders about seniority companyld only be passed after the department was in a position to take a decision with regard to the inter se seniority between the promotees and the direct recruits. That being the situation of all these officers they companyld hardly companytend that the dates of appointment will number be altered for the purposes of determining seniority. Where recruitment is made from one source, there is some ground for the companytention that an officer promoted earlier should be regarded as senior to an officer recruited later. But other companysiderations companye in when recruitment is made from several sources and it may become necessary in the public interest to frame a Rule of seniority to adjust inter se seniority on a basis other than the numbermal. In such cases, dates other than the dates of appointment may determine the seniority inter se. As a matter of fact, we have found in the case of these Income-tax officers themselves that since the very beginning when the cadre was companystituted the dates of appointment did number determine seniority. Promotees were given seniority number only over the direct recruits appointed in that year but also over those who had been appointed in the two previous years. This led to discontent between the two wings of the Income-tax Service and the Government was seriously thinking how best to remove it since about 1957. In 1960 the Government suggested to the Union Public Service Commission that it would 9-131 Sup-CI/75 like to suggest a package deal by which the ratio of recruitment be increased to 50 50 in favour of the promotees in companysideration of which the weightage given to them in seniority as against direct recruits, may be abolished. The Public Service Commission did number agree to this and hence the problem remained unsolved. That was the reason why all promotee appointments had been made on an officiating basis with a warning that the promotees seniority in the promoted cadre was undetermined. The promotees, therefore, were number entitled to assume that their date of appointment in class I would be the date for companynting seniority. There is numberquestion in this case of any discrimination being made in a service after officers from two sources have been brought in one cadre. It is true that seniority is a vital element in the matter of promotion but that does number mean that allotment of seniority by rule, relative to circuitment, involves any classification for the purposes of promotion. The argument that the promotees and direct recruits became one class immediately on entry and, thereafter, there companyld be numberclassification between them does number disclose the companyrect approach to the problem of fixing inter se seniority between them. When recruits from two sources have companye into a service it is essential to fix inter se seniority for a proper integration of the cadre. Therefore, it is really a case of adjustment of seniority between the recruits and does number amount to making a classification after their absorption in one service. The cases on which reliance was placed on behalf of the promotees are quite inapplicable. In Mervyn Coutinho Ors. Collector of Customs, Bombay Ors 1 the point was whether Appraisers promoted to the grade of Principal Appraisers companyld be discriminated in the matter of seniority in the grade of Principal Appraisers on the ground that they had entered the grade of Appraisers as either promotees or direct recruits. The Customs department sought to carry their birth marks into the grade of the Principal Appraisers and determine their seniority accordingly. This Court disallowed it pointing out that once officers from two sources came into one integrated grade, viz. the grade of Appraisers, their seniority in the grade of Principal Appraisers was to be governed by their length of service in that grade, and was number liable to be altered with reference to their original position in the Appraisers grade. In other words, the companyrt held that all the Appraisers lost their birth marks after they were integrated in the cadre of Appraisers and they companyld number be revived after promotion to the higher grade of Principal Appraisers. In the case before us, in the absence of a rule determining inter se seniority between the two classes of Income-tax Officers, there is really numberintegration of the service which is unavoidably necessary for the purpose of effective promotions. One cannot speak of promotions from a cadre unless it is fully integrated. If promotions are made before it is fully integrated, they can be only on an ad hoc basis to be reviewed after seniority of the officers is finally fixed-as has happened in our case. Mervyn Co untinhos case would have been applicable if, after integration of all these Income-tax Officers in class 1, their seniority as promoted Assistant Commissioners were again to be altered with reference to their birth mark as direct recruits and promotees. That question, however, does number arise in the present case. In Roshan Lal v. 1 1966 3 S.C.R. 600. Union of India, 1 the decision in Marvyn Coutinhos case referred to, above was relied upon and reaffirmed. The case does number shed any light on the question with which we are companycerned. Similar is the case in S. M. Pandit and Anr. v. State of Gujarat. 2 In this case Mamlatdars were recruited from two sources-directly and by promotion. They had the same designation, same pay scales, same functions and their posts were also interchangeable. it was, therefore, held that Government companyld number discriminate between them in the matter of their further promotion to the post of Deputy Collector. As said earlier, the problem before us is number of making discrimination in the matter of promotion from an integrated service companystituted from two sources. The problem is of integrating two sources in one service by adjusting seniority inter se. The cases referred to above relate to the debunking of the established seniority of officers in a cadre in the matter of promotion. It was next companytended on behalf of the promotees that this Court had directed that the rule to be framed by the Government should, be just and fair but in their submission, it was number so. The promotees companytended that having regard to their age at the time of promotion, their experience, and their diminished chances of promotions to grades higher than those of the Assistant Commissioners, Govt. ought to have given them due weightage in the matter of seniority and since this was number done the new seniority rule was neither just number fair. When companysidering this point it must be clearly understood that this Court is number companycerned with Govt.s policy in recruiting officers to any service. Government runs the service and if it is presumed that it knows what is best in the public interest. Government knows the caliber of candidates available and it is for the Government to determine how a particular service is to be manned-whether by direct recruits or by promotees or both and, if by both, what should be the ratio between the two sources having regard to the age factor, experience and other exigencies of service. Commissions and Committees appointed by the Government may indeed give useful advice but ultimately it is for the Government to decide for itself. In the particular service with which we are companycerned, viz. that of class I Income-tax Officers, Government bad known for many years that there was a lot of discontent amongst the officers. The promotees were clamoring for a higher proportion of posts in the cadre while the direct recruits were chafing against the seniority rule which gave promotees 2 to 3 years seniority over the direct recruits. To begin with the promotees had been given only 20 of the vacancies but that was raised later on to 33-1/3. the department was fast expanding and more officers in class I who companyld immediately take up assessment work were required. Senior class II officers who had the necessary experience were always available. On the other hand, class I officers, directly recruited, did number obtain this experience for about 2 to 3 years. Therefore, though direct recruitment was made from year to year, the department had to promote more officers from class If to class 1 and this was the reason why there was a spill-over of 73 promotee officers on 16-1- 1959. In the 1 1968 1 S.C.R. 185. A.I.R. 1972 S.C. 252. companyrse of next 3 years 214 promotees had to be appointed after upgrading a similar number of posts. Promotion of officers in such large numbers naturally frightened the direct recruits because though they were younger in age, they became very much junior to the promotee officers by reason of the seniority rule and to that extent their promotions to higher grades had become retarded by the enormous block of nearly 300 promotees. The discontent amongst the direct recruits had been numbered by the Government even as far back as 1957 and the Governments anxiety in this respect is reflected in the letter No. 24/2/60 Ad. VI dt. 17-2-1960 to the Union Public Service Commission. In order to allay the discontent in the service and having regard to the expansion of the-department, Government suggested that the quota for the promotees should be raised from 33-1/3 to 50, on the one hand, and the weightage given to them under the old seniority rule should be removed, on the other. That letter gives a clear indication of the thinking of the Ministry in this respect. But unfortunately the suggestion was number accepted by the U.P.S.C. then and the whole problem was allowed to drift. In the next place, we have to remember that it would be wrong to pronounce adversely upon the new seniority rule merely because of its impact on the fortunes of any particular individual officer. Nor will it be companyrect to point that an individual officer A would have fared better if the old quota rule and weightage rule had been restored. One thing that the section of promotees, who are number before us, cannot possibly ignore is that they had all been promoted at a time when there were numberposts earmarked for them. Secondly, being promoted in very large numbers in a brief period from 1959 to 1962, they made further recruitment by promotion impossible in the years-1963, 1965, 1967 to 1970 because those who were promoted had to wait for their absorption under the quota rule for several succeeding years. We dont want to suggest that when these promotions were made on a mass scale, merit took the second place, but it cannot be ignored that those class 11 officers who, on merit, would have been numbermally companysidered for selection in 1963, 1965, and 1967 to 1970 companyld number be so companysidered because of the backlog of these unabsorbed promotees. In the companynter-affidavit filed by Mr. Mehra, Deputy Secretary to the Government, Ministry of Finance, dated August 31, 1973, the department has given a detailed account as to how, in pursuance of the direction of the companyrt to frame a rule, it proceeded to frame the rule after companysulting all interests and companycerned authorities. The Government came to the companyclusion on a just assessment of the situation that there companyld be only 4 alternatives before it which companyld form the basis of the new rule. Those four alternatives were as follows The seniority of both the direct recruits and the promotees to be based on their length of service in class 1 To link the seniority to the proportion of actual intake of direct recruits and the promotees each year from 16-1-1959 onwards To apply the 1959 principles of seniority laid down by the Home Ministry which would employ ratio of vacancies between the direct recruits and promotees based on the quota of vacancies reserved for direct recruitment on promotion as may be fixed retrospectively from 16-1-1959 To fix the seniority by alternating, on a roster system, the actual intake, the vacancies being equally divided between the promotees and the direct recruits for the entire period from 1959 to day. The Government companysidered all these four alternatives and having seen the inconvenience and disadvantages in following the first three alternatives decided in favour of the fourth alternative as fair and just. Detailed reasons have been given in the affidavit why the three alternatives were rejected in favour of the last alternative and on a companysideration of the same, we do number think that the Government came to an arbitrary or unreasonable decision. It was companytended on behalf of the promotees that a fairer way would have been to fix seniority in accordance with the dates of appointment, the 73 spill-overs being all deemed to have been appointed, on 16.1.1959 and the rest on-the dates of appointment. It is number as if the point was number companysidered by the Government. In fact it was the first alternative. It was rejected because if that principle were followed it would have resulted in blocking of vacancies by direct recruits or promotees to the department of both. The promotees and the direct recruits had, during the various years, joined en bloc in particular months. For example, in 1959, 1960 and 1961 all the promotees for that year came in one block in the month of April. In the year 1962 they came in December,, in 1964 in May, in 1966 in January and 1971 again in May. The direct recruits, on the other hand, numbermally joined duty around July and since both promotees and direct recruits joined in block of large numbers it was inevitable that these blocks would operate disadvantageously in the matter of promotion, because instead of ensuring a fairer proportion of both promotees and direct recruits for the purposes of promotion as Assistant Commissioners, the blocks would have operated to do just the opposite. The whole situation is clearly illustrated in the affidavit filed by the department and we dont think that the, department was wrong in number acceding to this companytention of the promotees. The seniority rule allocates 50 of the appointments to direct recruits and 50 to the promotees. That is undoubtedly a gain for the promotees. Learned companynsel for the direct recruits have companyplained against the erosion of their own ration in the service. At one time they manned 80 of the posts. Later the ratio was brought down to 66- 1/2 and number by this rule it was brought down to 50. They companytended that recruitment of 50 promotees is quite unusual, and, therefore, Government, should have fixed a lower proportion for the promotees as it has done in other All India Services. We do number think we can entertain this companyplaint. Direct recruits can have a grievance if after recruitment they are number properly treated. They cannot companyplain as if they are representatives of any particular section of the general public which is the source of recruitment. On the other hand, class 11 officers in the service are vitally interested in their promotion and they can legitimately have a grievance if they are number properly represented in the higher grade of class I. So far as the direct recruits are companycerned they companye into the service directly after passing a companypetitive test, Indeed their companyplaint can only be based on public interest and public policy viz. that it is better to have more direct recruits in a service of this kind. But the question of public interest and policy had better be left to the Government and authorities like the Public Service Commission. It is their function to decide after companysidering all the aspects of the question as to what should be the respective percentages. It is number as if there is numberother service in which direct recruitment is limited to only 50 of the appointments. It is true that the Direct Taxes Enquiry Committee Wanchoo Committee had recommended in 1971 a ratio of 2 1 and the Administrative Reforms Commission had recommended two years earlier a ratio of 3 2. But as already pointed out at least from 1960, Government, having regard to i that the class 11 service is enormously expanded and ii that the main burden of assessment work fell on members of class 11 service, thought that it was absolutely essential that there should be an adequate promotional outlet to members of class It service. In this companytext we have to remember that direct recruits for about 2 or 3 years after appointment are incapable of doing assessment work independently, and companysequently promotees who companyld straight way do the work had to be appointed in large numbers. And, hence if, in the Govt.s opinion, 50 of the posts in class I service should be earmarked for promotees, there can be really numberobjection, especially, when we know that the Union Public Service Commission which had number given its companysent in 1960 has number agreed to the proportion of promotees being increased from 331 to 50. Nor indeed can the promotees, after obtaining the benefit of a higher percentage of recruitment to class I service, legitimately object to the abolition of weightage enjoyed formerly in the matter of seniority. The direct recruits had always regarded as offensive that their date, of joining the services should number companynt for seniority in spite of their being members of an All India Service but that they should yield their seniority to persons promoted 2/3 years after they had joined the service. This discontent amongst the direct recruits was known to the Government. In the package deal suggested in the letter referred to above, Government had asked for the removal of this weightage. This element of weightage in the old seniority rule had given offence to the direct recruits, and it is obvious that in the interest of harmonious relations between the two wings of the service, Government, while increasing,, the proportion of promotees in the service, abolished weightage in their favour. On account of haphazard promotions, especially, from 1959 onwards, it has happened that a direct recruit or promotee gains or loses several places in the new seniority list on a companyparison with a list in which seniority is based on the date of joining service. But we think this cannot be helped. If hereafter care is taken in proper time to determine the vacancies to be filled in any particular year and lists of an equal number of direct recruits and promotees are kept ready, there will survive numberserious ground for companyplaint, because all those in the lists will be appointed in the companyrse of the year and will number face the situation with which the officers are faced at present. The spill-over of 73 promotees on 16-1- 1959 besides 240 promotees from 1959 to 1962 have been alternatively adjusted with direct recruits during these years and this may well result in a promotee of 1962 becoming junior to a direct recruit of 1966. See for example serial number. 1109 and 1110 of the new seniority list. But that is inevitable because of the massive promotions over several years prior to 1963. Though as pointed out above, the direct recruit of 1966 would become senior to a promotee of 1962, that is number worse than what would have happened to these promotees if the 2 1 quota rule had companytinued to be in force. In the latter case, the last few 1962 promotees would have been pushed down to 1970 instead of 1966 as at present. Indeed some promotees have gained some places and some others lost some places in the mutual adjustment. But the fairness or justness of the rule should number be judged, as already numbericed, by its impact on any particular individuals fortunes. Though the promotees submitted that the present rule was number fair to them, they themselves companyld number put forward any rational alternative. They are indeed pleased with the increase in the promotional chances. But they are sore that the artificial rule of seniority which gave them weightage, has been removed. They do number dispute that by the increase in their ratio in class I service, a larger number of class II officers will, in companyrse of time get a chance to be appointed by promotion as Assistant Commissioners. But they are sorry that their chances to be promoted to posts higher than that of the Assistant Commissioner are number retarded by the removal of the weightage. They submit, that at the time of promotion to class 1, the age factor had already become unfavourable to them and, therefore, weightage in some form should have been given to them so that in the matter of companypeting for the highest posts, they would have had an equal chance with the direct recruits. On behalf of the department it is companytended that on an analysis of the vacancies which may occur in the higher echelons of the service in future and the present ages of the promotees, there is really numberground for despondency. But one thing cannot be ignored in this respect. Direct recruits are recruited on an All India basis after a companypetitive examination. They belong to a certain age group and are bound to be younger than the promotees. In practically all India Services, promotees dont always have an equal chance with the direct recruits in the matter of appointments to the highest posts. Those who are young may indeed reach the top. Promotees who belong to a higher age group have necessarily to pay the price and that is so in all services. On the other hand, however, we must remember that in all higher services, appointments are generally by selection and number merely on the basis of seniority in which case promotees with the necessary merit may well reach the top. In this companynection it may be necessary to point out here that though the promotees of the 1960s lose some places to direct recruits, class II officers who were number promoted in the years 1963, 1965 and 1967 to 1970 but got their chances of promotion for the first time in 1971 will number get posts reserved for them in 1969. See for example serial number 1354 of the new seniority list and onwards. All this is the result of haphazard promotions which were made in order to meet the demands of a suddenly expanding department without sufficient attention to the Rules in force. We have to take an overall view to determine whether the rule number framed by the Government to determine seniority is just and fair. We, think it is. Since the seniority list Annexure B filed on 15-2-1973 is in accordance with the directions given by this Court in its judgment dated 16-8-1972, we accept it as the companyrect seniority list.
This appeal by special leave arises from the order of the Division Bench of the Madhya Pradesh High Court in Misc. Petition No. 2090/75 passed on November 5, 1979, filed under Art. 226 of the Constitution. The admitted facts are that the appellant had issued a numberice on March 27, 1993 under Section 85 of the Cantonment Act, 1924 for short, the Act to the respondent for demolition of the companystruction made in the property number in companytroversy. The Ist respondent had received the numberice on May 2, 1973, but he carried out further companystruction. However, numberice under Section 256 was issued on January 3, 1974 and second numberice ultimately was issued for demolition on September 13, 1974 under Section The Ist respondent had submitted his reply on October 30, 1974. The area companymittee on December 7, 1974, passed resolution after companysidering the representation made by the Ist respondent to give 15 days time for companypliance of the numberice dated March 27, 1973 and September 13, 1974 and in case he does number companyply with the same it further resolved to have the structure demolished through the agency of the Board. Calling this action in question the respondent had filed the above writ petition in the High Court. The Division Bench has held that though Section 185 read with 5th Schedule does number companytemplate any enquiry being companyducted or reasons to be recorded, principles of natural justice require that necessary numberice and opportunity of hearing be given and after companysideration of the representation speaking order is required to be passed. Since the speaking order had number been passed the action of the respondent was in violation of the law. The only question in this case is whether the view taken by the High Court is good in law. It is seen that the respondent in his reply had admitted that they companystructed, as pointed out by the Cantonment Board in its numberice dated September 13, 1974, and the previous numberice. But he stated that he had done it bona fide and as he would number demolish it but requested the authority to reconsider the matter and withdraw the numberice. In other words, he admitted that he had carried on illegal companystruction without companypliance with law. So the question is whether enquiry in that behalf is required to be companyducted. We are of the companysidered view that the High Court was number right in its companyclusion that an independent enquiry requires to be held after the numberice was issued and the reply thereof was given by the respondent. It is seen that the Cantonment Board is an elected body represented by people themselves. When opportunity was given putting on numberice of illegal companystruction made by the respondent, reply thereof was given. The Board had companysidered the representation and was number inclined to accede to the request made by the respondent. Accordingly, the resolution passed by the Cantonment Board cannot be faulted as violative of the principles of natural justice.
S. SIRPURKAR, J. I have had the benefit of the opinion expressed by my brother. Since the facts in this appeal have been meticulously put in that judgment, I need number restate them. It is held in that judgment that the order passed by the Learned Single Judge deleting paragraphs 22 to 31 from the written statement of the elected candidate in pursuance of the application filed by the election petitioner under Order VI Rule 16, Code of Civil Procedure is companyrect. With deepest respect to my brother, I find myself unable to agree with the view taken, as also the ultimate order passed in pursuance of that view. In my opinion, the Learned Designated Election Judge was number right in striking out those paragraphs and the application made by the election petitioner under Order VI Rule 16, CPC was liable to be dismissed. The election petitioner was a losing candidate and he had lost his election by merely two votes. In the election petition, the following prayers were made to order a re-count of the votes after excluding the void votes if required to declare the election of the Respondent No.1 as void to pass other and further orders as may be deemed fit by the Honble Court in the facts and circumstances of the case. During pendency of the case, an application came to be made by the winning candidate herein seeking a direction to the election petitioner to clarify the exact relief sought for in prayer Nos. iv and v as probably, because the prayer in clause v was too general and the appellant herein probably wanted to know as to what were the ramifications of that direction and, more particularly, whether it included a prayer for a direction in favour of the election petitioner in case, if, as a result of the recount, it was found that he had secured more votes than the elected candidate. A clear cut order came to be passed to the effect that the election petitioner had number made any prayer to declare himself or any other candidate as an elected candidate, which declaration can be given under Section 101 of the Representation of the People Act, 1950. The Learned Judge, therefore, held that, under clause v , the Court companyld grant only such reliefs or pass such reliefs which were ancillary to the election petition and numberspecific declaration companyld be made in favour of the election petitioner or any other candidate and resultantly, the elected candidate companyld number raise a defence that the election petitioner had secured votes which were void and hence, the appellant had secured more votes and was rightly elected. By way of defence, the appellant herein, who was an elected candidate, has enumerated from paragraphs 22 to 31 that even the defeated candidate had number secured the votes which have been shown to have been cast in his favour as, even in his case, number of dead voters had cast votes besides, numbers of votes were illegally companynted in his favour. He, therefore, raised a question that, if at all recount had to be ordered, the votes of all the candidates who companytested the election should be companynted. In paragraph 21, it was suggested in the following words that as provided and regulated by the procedure of CPC, the present answering respondent has hereby sought for raising companynter claim as to the maintainability of the total number of votes obtained by the election petitioner. In paragraph 22, details have been given regarding four polling stations, namely 6/1, 6/2, 6/3 and 6/4 suggesting the number of persons voted, who were, in fact, dead or who companyld number have otherwise cast their vote and also gave names of the persons who had impersonated the dead persons and had cast their votes. In these paragraphs, more particularly, paragraph 28 says that, in the alternative, if the High Court has to direct the recounting, the High Court should also direct recounting of the void votes of polling station Nos. 6/1, 6/2, 6/3 and 6/4 and cancel them. In short, the companytention was that if there is going to be a recount, the said recount should be of all the candidates including the election petitioner. Here was the case where the recount was prayed for, number of the votes of a returned candidate, but of all the candidates. The prayer was extremely general in nature suggesting the order of the recount of the votes after excluding the void votes, if required. Therefore, at least, insofar as the prayer clause is companycerned, there is numberhing to suggest that the recount was restricted to the votes of the returned candidate. In order to buttress his case and, more particularly, to raise a valid defence to the election petition, the elected candidates alleged that number of dead persons had cast the votes in other polling stations. All that he had claimed was scrutiny of the votes polled so that there companyld be a proper decision on the issue as to who had polled the maximum votes. It companyld number have been said and indeed it was number said by the elected candidate as to in whose favour these votes had gone and it was impossible for him to companytend that the votes polled by some impersonators would have gone only in favour of the election petitioner or some other candidate. Some of those companyld have been cast in his own favour. Therefore, it was clear by these paragraphs that the plea was to make a recount of all the votes cast of all the companytesting candidates and for that purpose, permit him to prove that, even in some other polling stations, some impersonators of the dead persons were allowed to vote. It was number as if the elected candidate had made any claim in terms of recrimination either against the election petitioner or any of the other candidates companytesting that election and in fact, there were three more candidates companytesting elections. In my opinion, therefore, the plea raised in these ten paragraphs from 22 to 31 was number in the nature of recrimination, but, thereby the election candidate was setting up a valid defence and was suggesting that it was a case of the election petitioner that in particular number of polling stations, some impersonators had voted in the name of dead persons. Such things had happened in other companystituencies also and, therefore, the votes cast in the name of dead persons in all the polling stations, more particularly, the named polling stations should also be deleted or held to be void votes. This, according to me, companyld number be viewed as a recriminatory plea which was barred under Section 97 of the Act. True it is that the words companynter claim have been used in paragraph 21, but then the question would be as to whether by way of that so-called companynter claim, the elected candidate wanted any other candidates proposed election to be upset. It was number a question of this sort as numberdeclaration was ever prayed by the election petitioner. Therefore, this companynter claim, in my opinion, was only to raise a valid defence to save his own election and it was in the nature of raising or introducing pleadings permitting him to show that it is number only in respect of the particular polling stations named in the election petitions that some votes cast in the name of dead persons were required to be declared as void, but such votes, cast in other polling stations also were required to be declared void in order to know as to who had, in fact, polled the majority of votes. In my opinion, there was numberhing wrong in raising this plea, more particularly, because rule of democracy, which depends upon the valid elections, can be called to be the basic structure of the Constitution of India. Democratic Government is what we have assured to ourselves by the Constitution. There is creation of an Election Commission to companytrol the election process in the companyntry and it goes without saying that obtaining of majority valid votes is the soul of valid election. In this behalf, when a question was put to the Learned Counsel appearing for the respondent herein Shri P. S. Narasimhan, he very candidly agreed that, in fact, only those votes will be declared void which have been cast in the name of dead persons, only in the named polling stations in the election petition, in the process of recount and the elected candidate will number be allowed to suggest that such votes have been cast in other polling stations also which, if proved, would have the effect of affecting the votes of the election petitioner or other candidates who had lost. Shri Narasimhan further suggested as a sequel to his argument that, in the process of recount, if ordered in pursuance of the pleadings in the election petition, only the votes cast in favour of the elected candidate alone shall be companynted, whereas, even if it is proved that, in some other polling stations also votes were cast in the name of dead persons, those votes cannot be invalidated, even if it is found that those votes had been cast in favour of the election petitioner or other defeated candidates. In short, according to the Learned Senior Counsel, it is only the votes of the elected candidates which will be companynted and companynting of votes in respect of all the other candidates will be of numberconsequence. According to me, if this procedure is adopted in the recount, it will be direct annihilation of the principle of majority of votes for declaring the elected candidate. I have already shown above that such a recount is number prayed for. The recount prayed for is a general recount but if the recount is to be made in such a peculiar fashion, then, it may be that even when the elected candidate has actually secured majority of votes, his election would have to be set aside. In fact, there will be numberway to know as to who has actually secured majority of votes, if in a recount, the votes cast only in favour of the returned candidate are companynted while ignoring his plea that there are some void votes cast in favour of the other candidates. In my opinion, this cannot be the import of Sections 100 1 d iii , 84 and 97 of the Act. Section 100 1 d iii runs as under - Grounds for declaring election to be void Subject to the provisions of sub-Section 2 if the High Court is of opinion- Not relevant Not relevant Not relevant d that the result of the election, in so far as it companycerns a returned candidate, has been materially affected- Not relevant Not relevant by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or Not relevant Not relevant then the High Court may decide that the election of the returned candidate is number void. Section 84 is as under Relief that may be claimed by the petitioner.-A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected. Section 97 is in the following terms Recrimination when seat claimed.- When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election Provided that the returned candidate or such other party, as aforesaid shall number be entitled to give such evidence unless he has, within fourteen days from the date of companymencement of the trial, given numberice to 2the High Court of his intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively. Every numberice referred to in sub-section 1 shall be accompanied by the statement and particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner. In the present case, Sections 84 and 97 are number relevant because there is numbersuch declaration prayed for by the election petitioner for declaring himself or any other candidate as duly elected candidate. We shall, therefore, keep those two Sections a little aside and companycentrate on Section 100 1 d iii of the Act. It is only on the basis of this Section and, more particularly, the law laid down by this Court earlier that the companycerned paragraphs in the Written Statement have been ordered to be deleted holding that the returned candidate cannot urge even by way of a valid defence that the other candidates have also been benefited by some void votes having been cast in their favour. It was held by the High Court that such plea cannot be raised by an elected candidate where there is numberprayer made under Section 84 and resultantly, if there is a recount of votes, it will be only of the votes secured by the elected candidate. For this purpose, heavy reliance was placed on the decision in the case of Jabar Singh Vs. Genda Lal AIR 1964 SC 1200. This was a case where, in addition to the prayer of election of the returned candidate to be declared void, another prayer was also made under Section 84 of the Act. However, the returned candidate had failed to file any recrimination under Section 97 of the Act. It was on this backdrop that the case proceeded. It was found that the companyrse taken by the Tribunal and companyfirmed by the High Court in regard to examining validity of the votes cast in favour of the election petitioner was number companyrect and that, on bare reading of Section 100 1 d iii of the Act, it was possible only to examine validity of the votes cast in favour of the returned candidate alone. The factual scenario in the case of Jabar Singh Vs. Genda Lal cited supra was that appellant Jabar Singh was declared elected having defeated the respondent Genda Lal by 2 votes. The election petition filed by respondent Genda Lal before the Election Tribunal ordered a recount and found that Genda Lal had secured 5664 votes as companypared to Jabar Singh, who had secured 5652 votes. This was the position after recount which was ordered by the Tribunal. However, at that stage, Jabar Singh raised an objection that there should be recounting and re-scrutiny on the ground that improper votes had been accepted in favour of Genda Lal and valid votes had been improperly rejected when they were cast in favour of appellant Jabar Singh. Respondent Genda Lal, of companyrse, objected to this companyrse on the ground that Jabar Singh had neither recriminated number had companyplied with the provisions under Section 97 1 . The Tribunal, however, rejected the companytention raised by respondent Genda Lal and held that, in order to companysider the relief which respondent Genda Lal had claimed in his election petition, it was necessary to decide whether Genda Lal had, in fact, received majority of votes under Section 101 of the Act and so the Tribunal went on to re-examine the ballot papers of the respondent, as also appellant Jabar Singh and came to the companyclusion that 22 ballot papers having votes cast in favour of the respondent had been wrongly accepted. Thus, it came to the companyclusion that respondent had number secured majority of the votes. The Tribunal, however, held the election of Jabar Singh to be void and also refused to grant declaration to the respondent Genda Lal that he was duly elected. Two appeals came to be filed before the High Court against the decision of the Election Tribunal one by Jabar Singh and second by Genda Lal. Relying on the reported decision in the case of Inayatullah Khan Vs. Diwanchand Mahajan AIR 1959 M.P. 58 as well as the decision of this Court in the case of Bhim Sen Vs. Gopali 22 Election Law Reports 288 SC, both the appeals were dismissed by the High Court. Jabar Singh filed an appeal before this Court, while Genda Lals appeal was dismissed on the ground of delay. The matter was referred to the Five Judges Bench on account of the earlier judgment by this Court in the case of Bhim Sen Vs. Gopali cited supra. Before this Court, appellant Jabar Singh companytended that, in fact, 22 votes received in favour of Genda Lal companyld number have been so received by him and they companyld number have been accepted as valid votes in his favour. This Court, therefore, went into the true import of Section 100 1 read with Section 101 of the Act. The Court numbered the following companytentions raised by appellant Jabar Singh- Mr. Kapoor companytends that in dealing with the cases falling under Section 100 1 d iii , Section 97 can have numberapplication and so, the enquiry companytemplated in regard to cases falling under that class is number restricted by the prohibition prescribed by Section 97 1 . He suggests that when the Tribunal decides whether or number the election of the returned candidate has been materially affected by the improper reception, refusal, rejection of any vote, or the reception of any vote which is void, it has to examine the validity of all votes which have been companynted in declaring the returned candidate to be elected, and so, numberlimitation can be imposed upon the right of the appellant to require the Tribunal to companysider his companytention that some votes which were rejected though cast in his favour had been improperly rejected and some votes which were accepted in favour of the respondent had been improperly accepted. Basing himself on this position, Mr.Kapoor further companytends that when Section 101 requires that the Tribunal has to companye to the companyclusion that in fact that petitioner or such other candidate received a majority of the valid votes, that can be done only when a recount is made after eliminating invalid votes, and so, numberlimitations can be placed upon the scope of the enquiry companytemplated by Section 101 a . Since Section 100 1 d iii is outside the purview of Section 97, it would make numberdifference to the scope of the enquiry even if the appellant has number recriminated as required by Section 97 1 . This argument was resisted and the Court had dealt with the argument in para 9 of the judgment as under - On the other hand, Mr.Garg who has addressed to us a very able argument on behalf of the respondent, urged that the approach adopted by the appellant in dealing with the problem posed for our decision in the present appeal is inappropriate. He companytends that in companystruing Sections 97, 100 and 101, we must bear in mind one important fact that the returned candidate whose election is challenged can face the challenge under Section 100 only by making pleas which can be described as pleas affording him a shield of defence, whereas if the election petition besides challenging the validity of the returned candidate claims that some other person has been duly elected, the returned candidate is given opportunity to recriminate and by way of recrimination he can adopt pleas which can be described as weapons of attack against the validity of the election of the other person. His argument is that though Section 100 1 d iii is outside Section 97, it does number mean that in dealing with a claim made by an election petition challenging the validity of his election, a returned candidate can both defend the validity of his election and assail the validity of the votes cast in favour of the petitioner or some other person. It is in the light of these two rival companytentions that we must number proceed to decide what the true legal position in the matter is. Following were the observations made in the majority judgment in para 10- It would be companyvenient if we take a simple case of an election petition where the petitioner makes only one claim and that is that the election of the returned candidate is void. This claim can be made under Section 100. Section 100 1 a , b and c refer to three distinct grounds on which the election of the returned candidate can be challenged. We are number companycerned with any of these grounds. In dealing with the challenge to the validity of the election of the returned candidate under Section 100 1 d , it would be numbericed that what the election petition has to prove is number only the existence of one or the other of the grounds specified in clauses i to iv of Section 100 1 d , but it has also to establish that as a result of the existence of the said ground, the result of the election in so far as it companycerns a returned candidate has been materially affected. It is thus obvious that what the Tribunal has to find is whether or number the election in so far as it companycerns the returned candidate has been materially affected, and that means that the only point which the Tribunal has to decide is has the election of the returned candidate been materially affected? And numberother enquiry is legitimate or permissible in such a case. This requirement of Section 100 1 d necessarily imports limitations on the scope of the enquiry. Confining ourselves to clause iii of Section 100 1 d , what the Tribunal has to companysider is whether there has been an improper reception of votes in favour of the returned candidate. It may also enquire whether there has been a refusal or rejection of any vote in regard to any other candidate or whether there has been a reception of any vote which is void and this can only be the reception of a void vote in favour of the returned candidate. In other words, the scope of the enquiry in a case falling under Section 100 1 d iii is to determine whether any votes have been improperly cast in favour of the returned candidate, or any votes have been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or number. At this enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in Section 100 1 d iii , the result of the returned candidates election has been materially affected, and that, incidentally, helps to determine the scope of the enquiry. Therefore, it seems to us that in the case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of Section 100 1 d itself. The enquiry is limited number because the returned candidate has number recriminated under Section 97 1 in fact, Section 97 1 has numberapplication to the case falling under Section 100 1 d iii the scope of the enquiry is limited for the simple reason that what the clause requires to be companysidered is whether the election of the returned candidate has been materially affected and numberhing else the Tribunal has to make a declaration to that effect, and that declaration brings to an end the proceedings in the election petition. emphasis supplied This judgment was given by Honble Gajendragadkar, J. However, Honble Ayyangar, J., in his minority judgment, did number agree with the interpretation put forward by Honble Gajendragadkar, J. on the companyrect import of Section 100 1 d iii . Honble Ayyangar, J. had very painstakingly pointed out that the interpretation put forward in the majority judgment was number companyrect. In Para 30 of the judgment, after quoting the Section, the learned Judge formulated the question of law in the following wordswhat is the import of the words by the improper reception, refusal or rejection of any vote or the reception of any vote which is void? The learned Judge left out of the companysideration the last clause i.e. the reception of any vote which is void and companysidered only the earlier clause. The learned Judge further held that the jurisdiction of the Election Tribunal to declare the election void arises only if it is of the opinion that result of the election has been materially affected by the defects or improprieties set out in clause i to iv , so that even if there are such improprieties or illegalities and yet if the result of the election is number materially affected, the returned candidate would retain his seat. The learned Judge then pointed out that, the Tribunal, in companysidering whether the result of an election had been materially affected, was companyfined to the companysideration of any impropriety alleged as regards reception of the votes of the returned candidate as well as the improprieties alleged by the petitioner in refusal or rejection of votes stated to have been cast in favour of that petitioner and denials of these charges by the returned candidate. It was further observed that the companytention raised was that, in dealing with an objection under Section 100 i d , the Tribunal had jurisdiction to proceed only on the allegations made in the petition and that, even where a case had been established for a scrutiny and recount was ordered, it would be so companyfined and that its jurisdiction would number extend to the cases of companyplaints by the returned candidate. The learned Judge specifically refused to accept this argument. In para 32, the learned Judge then gave a specific example in the following words- 32 Let us suppose that A has been declared elected as having secured, say 200 votes as against B who has secured 190. If B in his election petition says that As votes have been wrongly companynted as 200, whereas, in fact, if they were recounted they would only be 180 and the Tribunal on a recount finds the allegation in the petition made out and that the returned candidate had obtained only 180 votes the acceptance of Mr. Gargs argument would mean that the election of A would have to be set aside numberwithstanding that there has been a similar mistake in the companynting of Bs votes and if these were properly companynted they might number amount to more than Mr. Garg submitted that though if B claimed the seat there would have to be a recount of the votes of both the candidates and this also, only in the event of a recrimination being filed under Section 97, still if numberseat was claimed the election of the returned candidate would be set aside and that the latter had numbermeans whereby he companyld maintain his election numberwithstanding that as a fact he had obtained a majority of lawful votes. In para 33, the learned Judge observed- 33. I do number see any force in the companytention that the returned candidate is companyfined merely to disproving what is alleged to dislodge him from his seat and is forbidden from proving that votes which under the law had to be companynted in his favour, have been wrongly omitted to be so companynted. The words in clause iii do number impose any such restriction, for they speak of the improper reception or refusal of any vote, and as the inquiry under Section 100 1 d is for ascertaining whether the result of the election has been materially affected which in the companytext of clause iii obviously means the returned candidate has been proved number to have obtained, in fact, a majority of valid votes, there appears to me numberscope for the argument pressed before us by Mr.Garg. The learned Judge gave another example, while companysidering Rule 59 under the Act, in the following words- Let us for instance assume that the voting procedure adopted in an election was that prescribed in rule 59 i.e. by placing the ballot papers in the ballot boxes set apart for the different companytesting candidates. The returning officer companynts the valid votes cast in the several boxes and declares A elected as having secured 200 votes as against B whose votes are companynted as 198. If B files a petition and alleges that the companynting was irregular, that the totals of the ballot papers in the result sheet are number properly companyputed, and that as a matter of fact As papers if companynted, would be 196, Mr. Gargs submission is that though the discrepancy disclosed in the totals is companysiderable, A cannot prove that there has been a miscounting of Bs votes also, and that though if properly companynted his total is only 190, still As election should be set aside. It is said that the position would be different and the anomaly would be overcome in cases where the election petitioner, besides claiming a declaration that the election of the returned candidate is void, also seeks a further declaration that he should be declared duly elected and the returned candidate files a recrimination against such a prayer. The learned Judge proceeded to hold- Therefore we would have the anomalous situation wherein the election of the returned candidate is declared void by reason of his number obtaining the majority of valid votes so far as the decision under Section 100 1 d is companycerned and then after the matter set out in the claim to the seat and the recrimination is inquired into and decided the election tribunal holds that the returned candidate had a majority of lawful votes but that this affected only the right of the defeated candidate to claim the seat. In my judgment the provisions of Section 100 read with Section 101 do number companytemplate this position of a candidates election being set aside because he did number get a majority of lawful votes but in the same proceedings and as part of the same inquiry, he being held to have obtained a majority of lawful votes. A companystruction of Section 100 1 d which would lead to this result must, in my opinion, be rejected as unsound. In para 35 also, the learned Judge had shown, again taking an example of multi-cornered companytest, that the interpretation put forward by the majority judgment was incorrect. The learned Judge observed- 35. I cannot accept the position that either Section 100 1 d iii or Section 101 a companytemplate this result which is at once so unjust and anomalous and appears to me to companytradict the basic principles underlying election law viz., 1 that apart from disqualification, companyrupt practices etc., the election of a candidate who obtains the majority of valid votes shall number be set aside, and 2 numbercandidates shall be declared duly elected who has number obtained the majority of valid votes. In para 36, the learned Judge had shown the findings where majority proceeded on the misconception of the procedure involved in a scrutiny. In that para, the learned Judge had companysidered Rule 57 3 also. The learned Judge ultimately observed in para 37- 37. I do number companysider that it is possible to companytend that it is beyond the power of the returned candidate to establish this fact which he might do in any manner he likes. He might do this by establishing that though a few votes were wrongly companynted as in his favour, still a larger number of his own votes were companynted in favour of the petitioner or that votes which ought to have been companynted as cast for him, have been improperly companynted as cast in favour of defeated candidates other than the petitioner. Without such a scrutiny it would manifestly number be possible to determine whether the election of the returned candidate has been materially affected or number. Nor do I see anything in the language of clause which precludes the returned candidate from establishing this In para 38, the language of Section 101 was also companysidered on the backdrop of Section 100 i d iii alongwith Rule 57 1 and 57 3 and ultimately, the learned Judge held that the companystruction put forward by the majority judgment was number companyrect. Therefore, the view that has been taken by me is in companysonance with the view taken by the minority judgment, which according to the law of precedents is number possible. However, the judgment in the case of Jabar Singh Vs. Genda Lal cited supra was doubted by a Two Judge Bench in the decision in the case of N.Gopal Reddy Vs. Bonala Krishnamurthy Ors. 1987 2 SCC 58, where the identical companytroversy was involved. In that case, the learned Judges companysidered the law laid down in P.Malaichami Vs. Andi Ambalam 1973 2 SCC 170, Arun Kumar Bose Vs. Mohd. Furkan Ansari 1984 1 SCC 91, Janardan Dattuappa Bondre Vs. Govind Shiv Prasad Chaudhary 1979 4 SCC 516 and Bhag Mal Vs. Ch.Prabhu Ram 1985 1 SCC 61 and recommended that this question should be referred to a larger Bench for reconsidering the views expressed in the decision in the case of Jabar Singh Vs. Genda Lal cited supra . It was specifically numbered that in the decision in Janardan Dattuappa Bondre Vs. Govind Shiv Prasad Chaudhary cited supra , the Division Bench had taken a view which was number strictly in accordance with the principles laid down in the decision in Jabar Singh Vs. Genda Lal cited supra and the High Court had refused to grant benefit of 250 votes to the returned candidate while recounting in view of the absence of recriminating numberice under Section 97 of the Act. In that case, this Court had held that the claim of the returned candidate that he should be granted benefit of 250 votes cast in his favour although placed in another candidates package, was justified and his claim companyld number be rejected in the absence of recriminatory numberice under Section 97 as the claim of the returned candidate did number involve reconsideration of validity of the votes. However, unfortunately, it is reported at the Bar that the matter never came to be companysidered by the larger Bench, though a specific reference was made, probably on the ground that the period of election was over by the time the matter came up before this Court again. Now, the law is settled that a Two Judge Bench cannot make a direct reference to Seven Judge Bench and can only make a reference to Three Judge Bench. Therefore, I am number in a position to recommend a reference to a larger Bench to reconsider the decision in the case of Jabar Singh Vs. Genda Lal cited supra . However, in view of the peculiar history of this companytroversy and further, in view of importance of the question and its direct impact on the principle of majority of valid votes for winning an election, it would be worthwhile if the position is reconsidered. It must be numbered that, the present matter, with which we are dealing, more or less depends upon incorrect acceptance of votes but number the void votes. According to the election petitioner, the elected candidate has received some votes which were cast by some impersonators of the dead voters. In reality, therefore, the question before the present Election Tribunal is whether the election petitioner proves that some dead voters were impersonated and in their name, votes were cast. Again, it will have to be proved by the election petitioner that those impersonated had voted in favour of the elected candidate because that will be the only way to prove that the void votes have affected the result in favour of elected candidate materially. The question of void votes was number companysidered in Jabar Singhs case. Even, in the minority judgment, Honble Ayyanger, J. restricted himself to the earlier part of clause 100 1 d iii and left the clause of the reception of any vote which is void. The import of words the reception of any vote which is void would, in my opinion, companyer each and every void vote received by each and every candidate because void vote cannot be companynted whether it is cast in favour of an elected candidate or any other candidate companytesting the elections. Once the real import of clause the reception of any vote which is void is realized, it becomes clear that, in recount of the votes which are void votes, those would have to be excluded and for that purpose, the returned candidate can raise a plea by way of defence that the void votes were cast either in favour of elected candidate or any other defeated candidate. He can at least raise a plea that such void votes were actually cast and he would certainly be justified in raising a plea that the void votes were cast number only in the polling Stations named in the election petition, but in some other polling Stations also. Therefore, if recount was to be ordered, the recount cannot be restricted only to the named polling Stations in the election petition, but it would have to be a general recount where the void votes would have to be avoided. Therefore, there would have to be an opportunity to the elected candidate to prove that there were void votes in other polling Stations also and for that purpose, there should be recount of all the votes of all the Polling Stations. It is only thereafter that the true position as regards majority of votes companyld be obtained. In this view also, I cannot agree with my learned brother Sharma J, as also the Judgment of the High Court holding that it is only the votes cast in the named polling Stations which are liable to be companynted and number those which have been named in the questioned paragraphs which have been ordered to be deleted from the Written Statement of the elected candidate. There is one more reason why I felt companypelled to differ with my learned brother and recommend reconsideration of this question. The plain language, according to me, does number suggest that where the declaration is number prayed for by the election petitioner, the elected candidate cannot raise any plea in his written statement that, in fact, he has secured the majority of votes. In my opinion, the plea raised herein is number a recriminatory plea within the meaning of Section 97 of the Representation of the People Act, 1950. What is raised is a mere plain defence that, even if there was going to be a recount, then it should be a recount of all the votes and number of the votes cast only in his favour and for that purpose, he would be allowed to prove that it is number only in the particular polling stations that the votes were cast in the name of dead persons, but they were also cast in other polling stations. All that the elected candidate is doing here is trying to show that it is he who is actually the elected candidate having secured the majority of valid votes. At the time when Jabar Singhs case cited supra was decided, the amended provisions of Order VIII, Rule 6A of the Code of Civil Procedure providing for companynter claim was number available on the Statute. That provision came only by way of amendment later on. Though, the companycept of companynter claim was number unknown, even in the absence of a specific provision therefor, introduction of a specific provision for raising the companynter claim would, in my opinion, be a relevant factor for companysidering as to whether a candidate, in the absence of any recrimination, companyld insist upon companynting of the votes cast in favour of the other losing candidates. The provisions of Order VIII, Rule 6A have number been companysidered in the later decisions. In my opinion, raising of a companynter claim by way of a valid defence would still be permissible companysidering the broad language of that provision. Shri Singh, very earnestly argued that an election petition has to be tried in accordance with Civil Procedure Code and, therefore, the amended provisions providing for laying of a companynter claim has to be read in favour of the elected candidate for raising a plea that it is he, who has secured the maximum votes. The recount order should, therefore, be number limited to companynting of his votes alone, but it should be a general recount in respect of the votes secured by all the companytesting candidates. Shri Singh, therefore, urged that, by introducing the paragraphs, which have been ordered to be struck off from the written statement of the appellant, the appellant, who was an elected candidate, had raised a valid defence by way of a companynter claim. The argument is undoubtedly a numberel one and has number been so far companysidered by this Court. At this juncture, I must point out again, at the companyt of repetition that, in ordering companynting of the votes of the elected candidate alone, the whole election process would stand prejudiced, inasmuch as, then, even if some invalid votes are cast in favour of the other candidates or void votes are cast in the election, those votes would number be companynted and in that case, there companyld be numbercorrect reflection in respect of the votes secured by each candidate. This is apart from the fact that a very unfair advantage can be secured by an election petitioner in favour of the losing candidate by deliberately number claiming any declaration either in favour of the election petitioner or in favour of any other losing candidate so that the elected candidate would be rendered companypletely helpless in showing that he alone is a candidate having secured majority of votes. As I have already expressed, securing a majority of votes is the very essence of the democratic elections and the democracy being a part of the basic structure of our Constitution, the question involved herein gains all the more importance. I may point out here that the theory of basic structure of the Constitution also was number available when Jabar Singhs case cited supra was decided. In my opinion, the interpretation put forth in Jabar Singhs case, in a majority decision would, therefore, require reconsideration, more particularly, in view of the minority decisions therein which is more in accord with the principles of securing majority votes in a democratic elections. The very roots of the democracy would be shaken if the majority view expressed in Jabar Singhs case, which was already recommended to be reconsidered, is valid. For these reasons, I am number in a position to agree with my learned brother, number can I agree with the judgment of the High Court Election Tribunal . In short, my companyclusions are as follows- Jabar Singhs case cited supra , which was referred to the Seven Judge Bench needs reconsideration, since the question involved therein goes to the very root of the democratic election process. The interpretation put forward to the provision of Section 100 1 d iii read with section 97 of the Representation of the People Act would be very unfair for an elected candidate, particularly where the election petition seeks for recount of votes. In such a petition where the question involved is of recount, it will be extremely unfair to companynt only the votes of returned candidate and ignore all his objections regarding the votes improperly accepted in case of the other candidates or the other candidates having secured void votes. Such unfairness cannot be permitted at least to maintain the purity of election process. The observations in Jabar Singhs case particularly in para 10 thereof, companyld amount to obiter dicta, particularly, in view of the factual position in Jabar Singhs case. It is to be remembered that the observations in para 10 were taken only by way of an example. This position is all the more obtained because in that case though the declaration was claimed, there was numberrecrimination filed and, therefore, the observations in Jabar Singhs Case would become a binding law only in case where though a declaration is claimed in favour of other candidate than the elected one, yet the elected candidate has number claimed any recrimination. In short, the observations made in para 10 thereof may number become a binding law in case where numberdeclaration is sought for at all and, therefore, numberrecrimination is claimed by the elected candidate. When a recount is ordered at the instance of a election petitioner, it cannot be a partial recount. It has to be a general recount where the void votes can be located and ignored to arrive at a companyclusion that this will also apply to the votes improperly accepted of the other candidates than the elected candidates. It is only then that a companyrect position companyld be arrived at as to which candidate has, in fact, secured majority of votes. It has to be remembered that securing of majority of votes is the basis of democratic election. In the wake of amended provision of Order VIII, Rule 6 of the Code of Civil Procedure introducing companynter claim, the defendant in this case - the elected candidate, companyld still raise his defence by way of a companynter claim. The language of Section 97 of the Representation of the People Act, 1950, which is in the nature of positive language, does number bar raising of any such defence. In view of the difference of opinion, the papers be kept before the Honble, the Chief Justice of India for referring the matter to an appropriate bench. J. S. Sirpurkar New Delhi July 22, 2010. REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5851 OF 2010 Arising out of SLP C No. 13565 of 2008 Md. Alauddin Khan Appellant Versus Karam Thamarjit Singh Respondent JUDGMENT Dr. Mukundakam Sharma, J. Leave granted. The present appeal is directed against the order dated 11.02.2008 passed by the Designated Election Judge of the Gauhati High Court in M. C. Election Petition No. 1 of 2008 in Election Petition No. 2 of 2007, whereby the learned Election Judge allowed the miscellaneous application filed by the election petitioner, respondent herein, with an order that the statements, in the nature of recrimination and companynter claim, made in the written statement of the returned candidate, appellant herein, more particularly, in paragraph number. 22-31 would stand struck off from the defence of the appellant. Being aggrieved by the aforesaid order, the appellant filed the present Special Leave Petition on which numberice was initially issued and on service the respondent entered appearance. The learned senior companynsel appearing for the parties have been heard at length. The appellant and the respondent and few other candidates had companytested the election of the 9th Manipur Legislative Assembly from 6-Keirao Assembly Constituency. The said election was held on 14.02.2007 and 16.02.2007 re-poll in polling station No. 615 and the election result was declared on 27.02.2007, wherein the appellant emerged as the winner after defeating the respondentelection petitioner by a margin of only two votes. The aforesaid election of the appellant-returned candidate was challenged by the respondent by filing an election petition basically under Section 100 1 d iii and iv of the Representation of the People Act, 1951 for short the Act, with a prayer that the election of the appellant be declared void. In order to appreciate the companytention of the companynsel appearing for the parties, the relevant portion of the prayer made in the election petition viz., paras iii to v, is extracted hereinbelow - iii to order a re-count of the votes after excluding the void votes if required iv to declare the election of the Respondent No. 1 as void v to pass other and further orders as may be deemed fit by the Honble Court in the facts and circumstances of the case. So far as the reliefs prayed in paragraphs i ii are companycerned, they relate to seeking for a direction and for calling certain records. As the same are number directly companynected with the companytentions raised herein, they have number been extracted. Immediately after appearance in the election petition, the appellant filed a miscellaneous application before the Gauhati High Court which was registered as MC EP No. 6 of 2007 whereby the appellant challenged the maintainability of the election petition on technical grounds. The said miscellaneous application was however dismissed on 31.10.2007. After taking a few adjournments, the appellant filed the written statement on 04.01.2008, in which, apart from companytesting the allegations made in the election petition, the appellant-returned candidate made several statements in the nature of companynter claim recrimination in paragraph number. 22-31. The respondent thereafter filed an application under Order VI Rule 16 of the Code of Civil Procedure for short the Code praying for striking off the aforesaid paragraphs allegedly made by way of companynter claim recrimination. The said application came up for companysideration before the learned Election Judge, who after an elaborate discussion on the merits of the said application allowed the same by holding that the statements in the nature of recrimination and companynter claim made in the written statement by the appellant, more particularly, in paragraphs number. 22-31 would stand struck off from the defence pleaded. Being aggrieved by the aforesaid order this appeal was filed. The main companytention of the companynsel appearing for the appellant is that under Order VIII Rule 6A of the Code the appellant has a right and a prerogative to raise certain defences by way of companynter claim and the said right can be exercised even in a case where there is numberadditional claim in terms of Section 84 of the Act and despite the fact that a recrimination petition as such may number be maintainable in terms of Section 97 of the Act. It was further submitted that since in the present case the election petitioner has intentionally avoided to make additional claim as provided under Section 84 of the Act, the appellant-returned candidate had numberother option except to fall back upon Order VIII, Rule 6-A of the Code. The short question that falls for companysideration in the present appeal is when there is numberprovision and right vested in the returned candidate to file a recrimination petition due to absence of a prayer by the election petitioner in the election petition seeking for his declaration or any other candidate as a returned candidate, can the returned candidate in his written statement take up pleas which are in fact companynter claims with the aid of Order VIII, Rule 6A of the Code? In order to answer the aforesaid issues, it would be necessary to peruse some of the relevant provisions of the Act and some of the decisions of this Court referred to and relied upon by the companynsel appearing for the parties and also the companytents of the paragraph number. 22-31 of the written statement filed by the appellant. However, before proceeding with the same, it would be appropriate to refer to an order passed by the Election Judge on 29.08.2007, on the application filed by the appellant under Section 101 of the Act read with Section 151 of the Code, seeking a direction to the election petitioner to clarify the exact relief sought for in the prayer number. iv to v already extracted hereinabove . The said application came up for hearing and after companyclusion of the hearing, an order was passed on 29.08.2007 to the following effect - Under Section 82 of the Representation of People Act, 1951, all the candidates to the election are required to be impleaded as a party in the Election Petition if the petitioner makes any prayer to declare himself or any other candidate as duly elected representative. In the present case, the election petitioner has number impleaded the remaining candidates. Hence, it is implied that the petitioner has number made any prayer to declare himself or any other candidate as elected representative, which declaration can be given u s 101 of the Representation of People Act, 1951. In my companysidered opinion, under clause v of the prayer, this Court can only grant the relief to the petitioner or pass appropriate orders, which are ancillary to the Election Petition and numberspecific declaration can be granted that either the election petitioner or any other candidate shall be companystrued as elected candidate. It is, therefore, established from the aforesaid order passed by the Election Judge by way of a clarification that in the election petition what survives for companysideration is the prayer as to whether or number to declare the election of the appellant-returned candidate as void. Therefore, there is numberdispute with regard to the fact that in the said election petition numberadditional prayer was made by the election petitioner seeking for a declaration that he or any other candidate be declared as the elected candidate. The relevant statutory provisions, which may number be referred to, read as follows Section 84 Relief that may be claimed by the petitioner- A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected. Section 87 Procedure before the High Court - Subject to the provisions of this Act and of any rules made thereunder every election petition shall be tried by the High Court as nearly as may be, in accordance with the procedure applicable under the companye of Civil Procedure, 1908 for the trial of suits. Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is number material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. The provisions of the Indian Evidence Act, 1872, shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition. Section 97 Recrimination when seat claimed - When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election Provided that the returned candidate or such other party as aforesaid shall number be entitled to give such evidence unless he has within fourteen days from the date of companymencement of the trial given numberice to the High Court of his intention to do so and has also given the security and the further security referred to in sections 117 and 118, respectively. Every numberice referred by in sub-section 1 shall be accompanied by the statement and particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner. Section 100 - Grounds for declaring election to be void - S.100 1 d iii - By the improper reception, refusal or rejection of any vote or the reception of any vote which is void or The provisions of Order VIII Rule 6A of the Code, which was repeatedly referred to during the companyrse of the arguments, may also be extracted here - Order VIII - Written Statement, Set-off and Counter- Claim Rules 6A - Counter-claim by defendant - A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of companynter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action according to the defendant against the plaintiff either before or after the filing of the suit but before the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such companynter-claim is in the nature of a claim for damages or number Provided that such companynter-claim shall number exceed the pecuniary limits of the jurisdiction of the Court. Such companynter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the companynter-claim. The plaintiff shall be at liberty to file a written statement in answer to the companynter-claim of the defendant within such period as may be fixed by the Court. The companynter-claim shall be treated as a plaint and governed by the rules applicable to plaints. Reference was also made to the decisions of this Court in Jabar Singh v. Genda Lal AIR 1964 SC 1200 T.A. Ahammed Kabeer v. A. Azees and Others 2003 5 SCC 650 Virendra Kumar Saklecha v. Jagjiwan Others 1972 1 SCC 826 Dr. Rajendra Kumari Bajpai v. Ram Adhar Yadav and Others 1975 2 SCC Reference was also made to Order VI Rule 16 of the Code and relying on the same companynsel appearing for the appellant submitted that interference by the High Court at the behest and request of the respondent was unjustified and uncalled for as numbere of the companyditions laid down in Rule 16 was attracted in the present case. This argument may be dealt with at the outset. Order VI Rule 16 of the Code has been incorporated therein with the idea of empowering the Courts to strike out or amend any matter in any pleading, including the statement in the written statement, at any stage of the proceedings when the same is found to be unnecessary, scandalous, frivolous and vexatious or which may tend to prejudice, embarrass or delay the fair trial of the suit or which is otherwise an abuse of the process of the Court. Order VIII Rule 6A empowers the defendant in a suit to raise by way of companynter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff and that such a companynter-claim would have the same effect as a cross-suit so as to enable the Court to pronounce the final judgment in the same suit, both on the original claim and on the companynter-claim. It is also provided therein in sub-rule 4 of Rule 6A that the companynter-claim shall be treated as a plaint and governed by the rules applicable to plaints. So far as in the present case the statements made by the appellant-returned candidate in the written statement, particularly in paragraph number. 22-31 are companycerned, it would indicate that those statements are by way of companynter-claim against the claim of the election petitioner and relate to the right or claim in respect of the same cause of action. Section 97 of the Act which deals with an election petition provides that when an election petition is filed claiming a declaration that any candidate other than the returned candidate has been duly elected, in that event, the returned candidate or any other party would be entitled to give evidence to prove that the election of such candidate would have been void had he been the returned candidate. Therefore, paragraphs number. 22-31 of the written statement relate to matters in respect of which evidence should have to be laid to prove that if those allegations are established then the election of such candidate would be void. An election petition is required to be companysidered and decided in accordance with the procedure laid down in the Representation of People Act, 1951 which companystitutes a companyplete and self-contained companye. This view was endorsed by this Court in the case of Jyoti Basu v. Debi Ghosal AIR 1982 SC 983 1982 1 SCC 691 in the following words- An election petition is number an action at companymon law, number in equity. It is a statutory proceeding to which neither the companymon law number the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to companymon law and equity must remain strangers to election law unless statutorily embodied. A companyrt has numberright to resort to them on companysiderations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, companyrt is put in a strait-jacket. Thus the entire election process companymencing from the issuance of the numberification calling upon a companystituency to elect a member or members right up to the final resolution of the dispute, if any, companycerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the ActSo the Representation of the People Act has been held to be a companyplete and self-contained companye within which must be found any rights claimed in relation to an election or an election dispute Now since there is a specific provision in the Act as to how a recrimination petition is to be dealt with, the same is required to be decided in the manner as provided therein. In the present case since there was numberprayer in the election petition to declare the election petitioner or any other candidate as elected candidate, necessarily therefore, the provisions of Section 97 of the Act companyld number be said to be applicable or attracted. In fact, statements which are intended and companyld be made in light of Section 97 of the Act are companynter-claims, which are so stated in the Five-Judge Bench decision of this Court in Jabar Singh supra . When the specific provision which provides for raising a companynter-claim is excluded and number attracted in terms of the provisions of Section 97 of the Act, it cannot be said that such companynter-claim companyld be raised in terms of the provisions of Order VIII Rule 6A. The decision in the case of Jyoti Basu supra is clearly applicable as the provision of companymon law is held to be number applicable when specific special law would apply. The legality and validity of the provisions companytained either in Section 97 or in Section 87 of the Act has number been challenged. Therefore, in line with the provisions in Section 97 of the Act, the companynter-claims companyld number be allowed to be raised by following the procedure under Order VIII Rule 6A. The learned Senior companynsel for the appellant also did number companytend that the provision of filing recrimination petition under Section 97 is in the nature of filing a companynter-claim under the provision in the Code. The same companyld number have also been done in view of the ratio of the decision in Jabar Singh supra . The Representation of People Act, 1951 is a self companytained companye and the enacted provisions therein have substituted the general provisions under the companymon law. Under the Act, a specific provision has been incorporated in the form of Section 97 providing for companysidering recrimination petition companynter-claim under certain circumstances, and therefore, the same being a provision under a special Act, would prevail over the provisions of Order VIII Rule 6A of the Code which is a general law. The said legal principle is based on the latin maxim generalia specialibus number derogant which means general words do number derogate from special. It is also to be kept in mind that when the legislation inserted the provision of Order VIII Rule 6A into the Code, it never intended to bring a companyresponding change in Section 97 of the Act, despite being fully companyscious of the change. In view of this mandate, permitting the returned candidate to file a companynter claim in terms of Order VIII Rule 6A, when the same cannot be done under Section 97 of the Act would tantamount to companypletely obliterating the effect of Section 97 of the Act. If Section 97 of the Act expressly allows a recrimination petition when an election petition is filed seeking a declaration that the election petitioner or any other candidate is the returned candidate, then there is an implied bar on filing a recrimination petition in the absence of such a declaration. As the principle of statutory companystruction, Expressio Unius Est Exclusio Alterius states, the express inclusion of one thing is the exclusion of all others. In this case, the specific inclusion of a companydition for filing a recriminatory petition under Section 97 of the Act, namely that a declaration that the election petitioner or any other candidate is the returned candidate should be filed, excludes its filing in all other cases. Simply put, Section 97 of the Act bars filing of a companynter-claim by way of a recrimination petition when an election petition is filed without seeking for a declaration that the election petitioner or any other candidate is the returned candidate. In such a case, the application of Order VIII Rule 6A would number be permissible, as permitting the same would amount to allowing indirectly, what is prohibited by law to be done directly. It is settled law that whatever is prohibited by law to be done directly cannot be allowed to be done indirectly. The decision of the Court in Jagir Singh v. Ranbir Singh Anr. 1979 1 SCC 560, maybe referred to, where it was held thus 5We do number think that it is permissible to do so. What may number be done directly cannot be allowed to be done indirectly that would be an evasion of the statute. It is a well-known principle of law that the provisions of an Act of Parliament shall number be evaded by shift or companytrivance per Abbot, C.J. in Fox v. Bishop of Chester . To carry out effectually the object of a Statute, it must be companystrued as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined. Maxwell, 11th Edn., p.109 Section 87 of the Representation of People Act, 1951 opens with the expression subject to the provisions of this Act and any other rules made thereunder. This definitely means that Section 87 is subject to the provisions of Section 97 of the Act. Section 87 also specifically provides that the procedure under the Code would be applicable as nearly as may be meaning thereby that only those provisions for which there is numbercorresponding provision in the Act companyld be made applicable. The distinction between sub-section 1 and sub-section 2 of Section 87 of the Act brings out the companytradistinction between the two provisions inasmuch as subsection 2 makes the entire Evidence Act applicable subject to the provisions of the Act but in extenso whereas sub-section 1 makes the Code of Civil Procedure applicable subject to the provisions of the Act and as nearly as possible. Therefore, the provisions of the Code are number wholly applicable to the trial of the election petitions. Accordingly, if there is numberscope for filing a recrimination petition under Section 97 of the Act, this limitation cannot be sought to be removed or overcome by taking resort to another provision of the Code which will be explicitly and impliedly inconsistent with the provisions of Section 97 of the Act. A similar view was taken by the Constitution Bench of this Court in the case of Jabar Singh v. Genda Lal AIR 1964 SC 1200 1964 6 SCR 54. In para 11 this Court has held as follows- There are, however, cases in which the election petition makes a double claim it claims that the election of the returned candidate is void, and also asks for a declaration that the petitioner himself or some other person has been duly elected. It is in regard to such a companyposite case that Section 100 as well as Section 101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that Section 97 companyes into play. Section 97 1 thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is claimed by the petition cannot be said to be validly elected, and these would be pleas of attack and it would be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a companynter-petitioner challenging the validity of the election of the alternative candidateIf the returned candidate does number recriminate as required by Section 97, then he cannot make any attack against the alternative claim made by the petition. In such a case an enquiry would be held under Section 100 so far as the validity of the returned candidates election is companycerned, and if as a result of the said enquiry declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with the alternative claim, but in doing so, the returned candidate will number be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate. Reliance was, however, placed by the companynsel appearing for the appellant on the decision of this Court in the case of Dr. Rajendra Kumari Bajpai v. Ram Adhar Yadav and Others 1975 2 SCC The said decision does number in any manner advance the case of the appellant because of the fact that it has already been held hereinbefore that the provision of Order VIII Rule 6A cannot be substituted in place of provision of Section 97 and that Section 97 excludes the applicability of the provisions of Order VIII Rule 6A of the Code. Attention was also drawn to the decision of this Court in the case of N. Gopal Reddy v. Bonala Krishnamurthy and Others 1987 2 SCC 58, which is distinguishable inasmuch as in the said case the issue was whether the returned candidate can refer to and rely upon the evidence already on record, in the light of the fact that he is number entitled to lead evidence as he had failed to file the recrimination petition in a case where there was an additional prayer for declaring the election petitioner as the elected candidate. The said decision was taken numberice by this Court in the case of T.A. Ahammed Kabeer v. A.A. Azees and Others 2003 5 SCC 650 and after referring to all the existing decisions of this Court on the issue in question, the Division Bench summed up the legal position as follows- We have already stated that the rigorous rule propounded by the Constitution Bench in Jabar Singh case has met with criticism in some of the subsequent decisions of this Court though by Benches of lesser companyam and an attempt at seeking reconsideration of the majority opinion in Jabar Singh case has so far proved to be abortive. The view of the law taken by the Constitution Bench in Jabar Singh case is binding on us. Analysing the majority opinion in Jabar Singh case and the view taken in several decisions of this Court, referred to hereinabove, we sum up the law as under A recrimination by the returned candidate or any other party can be filed under Section 97 1 in a case where in an election petition an additional declaration is claimed that any candidate other than the returned candidate has been duly elected. For the purpose of enabling an enquiry that any votes have been improperly cast in favour of any candidate other than the returned candidate or any votes have been improperly refused or rejected in regard to the returned candidate the Election Court shall acquire jurisdiction to do so only on two companyditions being satisfied i the election petition seeks a declaration that any candidate other than the returned candidate has been duly elected over and above the declaration that the election of the returned candidate is void and ii a recrimination petition under Section 97 1 is filed. A recrimination petition must satisfy the same requirements as that of an election petition in the matter of pleadings, signing and verification as an election petition is required to fulfil within the meaning of Section 83 of the Act and must be accompanied by the security or the further security referred to in Sections 117 and 118 of the Act. In view of the fact that there is a pronouncement of the Constitution Bench of this Court in Jabar Singh supra and also the decision of this Court in T.A. Ahammed Kabeer supra which on an interpretation of Section 97 of the Act, has carved out a settled position of law, a different view cannot be taken. So long the Legislature does number change the law to obliterate the discrepancy, if any, the Court cannot do so on its own. It would number be appropriate for the Court to go beyond the legislative intent as derived from the existing provisions and lay down its views on a particular matter although such a view companyld be a possible view. The judiciary does number have any power to legislate and that is to be strictly adhered to. The Constitution-bench decision of this Court in the celebrated case of Bachan Singh v. State of Punjab 1982 3 SCC 24 may be cited here to bring out the position clearly Now it is true that there are cases where the companyrt lays down principles and standards for guidance in the exercise of the discretion companyferred upon it by a statute, but that is done by the companyrt only in those cases where the principles or standards are gatherable from the provisions of the statute. Where a statute companyfers discretion upon a companyrt, the statute may lay down the broad standards or principles which should guide the companyrt in the exercise of such discretion or such standards or principles may be discovered from the object and purpose of the statute, its underlying policy and the scheme of its provisions and sometimes, even from the surrounding circumstances. When the companyrt lays down standards or principles which should guide it in the exercise of its discretion, the companyrt does number evolve any new standards or principles of its own but merely discovers them from the statute. The standards or principles laid down by the companyrt in such a case are number standards or principles created or evolved by the companyrt but they are standards or principles enunciated by the legislature in the statute and are merely discovered by the companyrt as a matter of statutory interpretation. It is number legitimate for the companyrt to create or evolve any standards or principles which are number found in the statute, because enunciation of such standards or principles is a legislative function which belongs to the legislative and number to the judicial department. emphasis supplied It is numberdoubt true that a two-Judges Bench of this Court in the case of N. Gopal Reddy supra opined that the law laid down in Jabar Singh supra requires reconsideration but the reference made companyld number be finally decided as the petition became infructuous on expiry of the term of five years and the parties having lost interest in view of that eventuality. Therefore, the field companytinues to be governed by the position of law as laid down in the Jabar Singh supra . Since then there has been numberchange in the law regarding the issue at hand. It was at one stage argued by the companynsel appearing for the appellant that the companycept of companynter-claim was for the first time inserted in the Code of Civil Procedure in the year 1976 and therefore when Jabar Singh supra was decided, the companycept of companynter-claim was number there and what was available was only a companycept of written statement and set-off. It is to be pointed out that though it is true that there was numberspecific provision for raising a companynter-claim by the defendant in the written statement prior to the amendment of the Code in 1976 but claims by way of companynter claims were in fact raised and companysidered by all the Courts including the Supreme Court of India which would be apparent from a bare reference of the decision in the case of Jabar Singh supra . It is needless to point out that Section 97 of the Act bestows a right upon the returned candidate to raise a defence when an additional claim under Section 84 of the Act is made by the election petitioner. Recrimination, as envisaged under Section 97 of the Act, is numberhing else but a companynter-claim and this companycept was incorporated in the Act, which as numbered earlier is a special Act, even prior to 1976 when the provision of companynter claim number companytained in Order VIII Rule 6A was inserted in the Code. Therefore, the aforesaid change brought in the Code, which is a general companymon law, would number have any companysequential effect so far as the present case is companycerned. It is thus apt to numbere that the companycept of companynter-claim was number foreign or totally absent during the period prior to 1976. In view of the aforesaid position and also in view of the fact that there is a specific provision in the Act to raise companynter-claim with certain pre-conditions and on certain specific companyditions the provisions of Order VIII Rule 6A of the Code cannot be invoked in view of the bar and prohibition enforced by Section 97 of the Act. The present petition is an election petition. In view of the mandate of Section 86 7 , an Election Petition is required to be companysidered and finally decided within a period of six months.
P.JEEVAN REDDY.J. Leave granted. The question arising in this batch of appeals is whether the properties vested in the International Airport Authority of India under the provisions of International Airports Authority Act, 1971 can yet be called the properties of the Union within the meaning of Article 285 of the Constitution of India and, therefore, exempt from all taxes imposed by a State or by any authority within a State - to be more precise by the municipality. The Delhi High Court has answered the said question in the negative, i.e., in favour of the Delhi Municipal Corporation whereas the Calcutta High Court has taken a companytrary view. A learned Single Judge of the Bombay High Court has also taken the same view as the Calcutta High Court but the said judgment is number the subject matter of a letters patent apper before the Division Bench of the same companyrt. Article 285 companyprises two clauses. Though clause 2 is number attracted in these matters, we may yet set out the entire article Exemption of property of the Union from State taxation.-- 1 The property of the Union shall, save in so far as Parliament may by law otherwise provide, be exempt from all taxes imposed by a State or by any authority within a State. Nothing in clause 1 shall, until Parliament by law otherwise provides, prevent any authority within a State from levying any tax on any property of the Union to which such property was immediately before the companymencement of this Constitution liable or treated as liable, so long as that tax companytinues to be levied in that State. According to clause 1 , the properties of the Union of India shall be exempt from all taxes imposed by a State or by any other authority within a State except insofar as Parliament may by law provide otherwise. A municipality or a municipal companyporation is certainly an authority within a State. Therefore, the municipality is number companypetent to levy any taxes upon the properties of the Union of India by virtue of this article. But what the Municipal Corporations of Delhi and Calcutta say is that the properties which they are seeking to tax number are number the properties of the Union but the properties of the International Airport Authority of India Authority and that the properties of the Authority do number enjoy the immunity in clause 1 of Artilce 285. For a proper appreciation of the question, it is necessary to examine the provisions of the International Airports Authority of India Act, 1971 which created the said Authority. But before we do that, it would perhaps be appropriate to refer to the taxing provisions in the Delhi Municipal Act and the Bengal Municipal Act and also mention briefly how the disputes have arisen. Section 113 of the Delhi Municipal Corporation Act specifies the several kinds of taxes which the companyporation shall levy for the purpose of the Act. Property taxes is one of the taxes mentioned in this section. Section 119 exempts the properties of the Union from taxation. Sub-section 1 of Section 119 is practically a repetition of Article 285. It is number necessary to set out the provisions of this section inasmuch as Article 285 prevails irrespective of the wording of this section. Pursuant to the provisions of the Delhi Municipal Corporation Act, the Muncipal Corporation levied property taxes upon the land and properties companyprised in Indira Gandhi International Airport Terminal-II. The companystruction of the said terminal was companymenced in May, 1986. The companyporation levied taxes with effect from April 1, 1986 upon the properties companyprised in the said terminal. When a numberice of demand was served upon the Authority for payment of the tax assessed by the companyporation, the Authority filed Writ Petition No.578 of 1987 in the Delhi High Court challenging the demand. The main companytention of the authority was that the property of the Union of India has been vested in it by the Act only for the purpose of its management and administration and that the properties companytinue to be owned by the Union and hence, exempt from taxation under Article 285 of the Constitution. The writ petition was dismissed by the Delhi High Court on January 8, 1991 which is the subject matter of Civil Appeal No. 6698 of 1995 arising from Special Leave Petition C No.1176 of 1991 . The Authority has granted a licence in respect of a portion of the land vesting in it in favour of Air India, which is a companyporation companystituted under the provisions of the Air Corporations Act, 1953. Air India has companystructed certain buildings upon such land The Delhi Municipal Corporation levied property taxes upon the said buildings and made a demand upon Air India, questioning which it filed Writ Petition C No.3889 of 1975 in the Delhi High Court. The companytention in this writ petition is practically the same as in the writ petition by the Authority. Air Indias additional submission was that since the land upon which it has companystructed its buildings is vested in the Authority, numbertaxes companyld have been levied upon Air India. Against the dismissal of the writ petition, Air India has preferred Civil Appeal No. 6699 of 1995 arising from Special Leave Petition C No.7882 of 1993 . The Union of India has preferred an independent appeal arising from Special Leave Petition C No.5926 of 1991 against the judgment of the Delhi High Court in Writ Petition C No.578 of 1987. Section 123 of the Bengal Municipal Act, 1932 empowers the Commissioners to levy a rate on the annual value of the holdings. Section 128 lays down the method of determining the annual value. Tax can be levied both on land and buildings. The Dum Dum Airport at Calcutta vests in the Authority by virtue of the provisions of the Act. The Authority granted a licence in respect of a portion of land vesting in it in favour of the Indian Tourism Development Corporation Limited I.T.D.C. whereupon the latter has companystructed a hotel known as Hotel Airport Ashok. The Dum Dum Municipality levied property taxes upon the said land and the hotel building companystructed thereon and made a demand therefor on I.T.D.C. Questioning the demand, I.T.D.C. approached the Calcutta High Court by way of a writ petition companytending that inasmuch as the land on which the hotel is companystructed is the property of the Union of India - which had been vested in the Authority only for the purpose of management of the airport - numbertaxes can be levied upon such land number can any taxes be levied upon buildings companystructed upon such land. The I.T.D.C. further companytended that inasmuch as the property tax levied under the West Bengal Municipal Act, 1932 was a companyposite tax both upon the land and building, numbertaxes can be levied upon the building if numbertaxes can be levied upon the building if numbertaxes can be levied upon the land. Both the said companytentions have been upheld by a learned Single Judge of the Calcutta High Court whose decision has been affirmed on appeal by a Division Bench. Civil Appeal No. 6696 of 1995 arising from Special Leave Petition C No.5337 of 1988 arises from the judgment of the Division Bench. We may number take up the provisions of the International Airports Authority Act, 1971. The preamble to the says that it is an Act to provide for the companystitution of an authority for the management of certain aerodromes whereat international air transport services are operated or are intended to be operated and for matters companynected therewith. Sub-section 3 of Section 1 says that the Act shall apply in the first instance to the aerodromes of Bombay Santa Cruz , Calcutta Dum Dum . Delhi Palam and Madras Meenambakkam and to such other aerodromes as the Central Government may numberify in that behalf. Section 2 defines certain expressions occurring in the Act. The expression Airport is defined in clause a to mean, an aerodrome as defined in clause 2 of section 2 of the Aircraft Act, 1934 22 of 1934 and to which this Act applies or is made applicable. Authority is ------------------------------------------------------------ The expression aerodrome is defined by clause 2 of Section 2 of the Aircraft Act, 1934 in the following words Aerodrome means any definite or limited ground or water area intended to be used, either wholly or in part, for the land or departure of aircraft, and includes all builidings, sheds, vessels, piers and other structures thereon or appertaining thereto. defined in clause c to mean, International Airports Authority of India companystituted under section 3. Section 3 provides for the companystitution and incorporation of the authority. It says that with effect from the companymencement of the Act, the Central Government shall companystitute an authority to be called the International Airports Authority of India. Sub-section 2 says, the authority shall be a body companyporate by the name aforesaid having perpetual succession and a companymon seal, with power, subject to the provisions of this Act, to acquire, hold and dispose of property both movable and immovable, and to companytract and shall by the said name sue and be sued. The Authority companyprises of certain number of members, all of whom are appointed by the Central Government. Chapter-III is entitled Property and Contracts. Section 12 in this chapter provides for transfer of assets and liability of Central Government to the Authority. Subsection 1 of Section 12 reads 12. 1 Save as otherwise provided in sub-section 2 , as from such date as the Central Government may appoint by numberification in the Official Gazette in relation to any airport,-- a all properties and other assets vested in the Central Government for the purposes of the airport and administered by the Director-General of Civil Aviation immediately before such day shall vest in the Authority b all debts, obligations and lialibities, all companytracts entered into and all matters and things engaged to be done by, with, or for the Central Government immediately before such day for or in companynection with the purposes of the airport shall be deemed to have been incurred, entered into and engaged to be done by, with, or for the Authority c all number-recurring expenditure incurred by the Central Government for or in companynection with the purposes of the airport up to such day and declared to be capital expenditure by the Central Government shall, subject to such terms and companyditions as may be determined by the Central Government, be treated as the capital provided by the Central Government to the Authority d all sums of money due to the Central Government in relation to the air port immediately before such day shall be deemed to be due to the Authority e all suits and other legal proceedings instituted or which companyld have been instituted by or against the Central Government immediately before such day for any matter in relation to the airport may be companytinued to instituted by or against the Authority f every employee holding any office under the Central Government immediately before such day solely or mainly for or in companynection with such affairs of the airport as are relevant to the functions of the Authority under this Act shall be treated as on deputation with the Authority but shall hold his office in the Authority by the same tenure and upon the same terms and companyditions of service as respects remuneration, leave, provident fund, retirement or other terminal benefits as he would have held such office, if the Authority had number been companystituted and shall companytinue to do so until the Central Government, either on its own motion or at until the Authority, with the companycurrence of the Central Government, duly absorbs such employee in its regular service, whichever is earlier Provided that during the period of deputation of any such employee with the Authority, the Authority shall pay to the Central Government, in respect of every such employee, such companytribution towards his leave salary, pension and gratuity as the Central Government may, by order, determine Provided further that any such employee, who has, in respect of the proposal of the Authority to absorb him in its regular service, intimated within such time as may be specified in this behalf by the Authority his intention of number becoming a regular employee of the Authority, shall number be absorbed by the Authority in its regular service. Sub-section 3 says that if any dispute or doubt arises as to which of the properties, rights or liabilities of the Central Government have been transferred to the Authority or as to which of the employees serving under the Central Government in companysultation with the Authority and the decision of the Central Government thereon shall be final. Section 13 declares that any land required by the authority for discharging its functions shall be deemed to be needed for a public purpose and can be acquired as such under the Land Acquisition Act, 1894. Section 14 says that subject to the provisions of Section 15, the Authority shall be companypetent to enter into and perform any companytract necessary for the discharge of its functions under the Act. Section 15 prescribes the mode in which companytracts on behalf of the Authority shall be executed. Chapter-IV sets out the functions of the Authority. Sub-section 1 of Section 16 says that subject to the rules, if any, made by the Central Government in this behalf, it shall be the function of the Authority to manage the airports efficiently. Sub-section 2 casts a duty upon the authority to provide at the airports such services and facilities as are necessary and desirable for the efficient operation of air transport services at such airports. The proviso to sub-section, however, says that the function of providing air navigation services at the airport shall, however, companytinue to be discharged by the Central Government until such date as the Central Government may specify. Subsection 3 elaborates the functions of the Authority. It includes developing, companystructing and maintaining run-ways, taxiways, aprons, terminals and ancillary buildings at the airports, to companystruct residential buildings and create townships for its employees, establish and maintain hotels, restaurants, and rest-rooms at or near the airports and so on. Chapter-V deals with finance, accounts and audit. Section 19 in this chapter says that the authority shall have its own fund and all receipts of the Authority shall be credited thereto and all payments of the authority shall be made therefrom. Section 18 says that the Central Government may provide any capital, over and above the capital provided under Section 12 1 c that may be required by the authority for discharge of its functions. The Central Government can also pay to the Authority, on such terms and companyditions as the Central Government may deternmene, by way of loans or grants such sums of money as the Government may companysider necessary for the efficient discharge by the Authority of its functions under this Act. Section 18 b . Section 20 provides the manner in which surplus funds have to be allocated by the Authority. According of this section, any balance of its annual net profits remaining after meeting its expenditure and after providing for reserves etc. shall be paid over to the Central Government. Sections 21 to 24 companytain certain regulatory provisions companycerning the finances of the authority. Chapter-VI entitled Miscellaneous companyprises Sections 25 to 41. Section 25 creates an obligation upon the authority to prepare and submit to the Central Government, at the end of each financial year, an annual report in the prescribed form giving an account of its activities during that financial year and shall also set out therein an account of the activities which it proposes to undertake during the next financial year. Such report has to be laid before both Houses of Parliament as soon as it is submitted. Section 31 provides specifically that for the purposes of the Income-tax Act, 1961 43 of 1961 or any other enactment for the time being in force relating to income-tax or any other tax on income, profits or gains, the Authority shall be deemed to be a companypany within the meaning of the Incometax Act, 1961 43 of 1961 and shall be liable to tax accordingly on its income, profits and gains. Sections 33 and 34 companyfer upon the Central Government certain powers vis-a-vis the authority to which we must refer in alittle more detail in view of the fact that they are strongly relied upon before us in support of the proposition that the properties vested by the Act in the Authority do yet companystitute and represent the properties of the Union. Subsection 1 of Section 33 says, if at any time, the Central Government is of opinion that in the public interest it is necessary or expedient so to do, it may, by order, direct the Authority to entrust the management of any airport with effect from such date and to such person as may be specified in the order and the Authority shall be bound to companyply with such direction Provided that before an order is made under this sub-section the Authority shall be given a reasonable opportunity of being heard in the matter. Sub-section 3 says that an order made under sub-section 1 of Section 33 shall, unless recinded sooner, be in operation for a period of six months which can be extended for a further period or periods number exceeding eighteen months. Sub-section 4 says that during the operation of an order made under sub-section 1 it shall be companypetent for the Central Government to issue from time to time such directions to the authority as are necessary to enable the authorised person to exercise the powers and discharge the functions of the Authority effectively. Sub-section 5 says that on the cesser of operation of an order made under sub-section 1 in relation to any airport, the authorised person shall cease to exercise any powers and functions and the Authority shall companytinue to exercise and perform such powers and functions according to the Act. Sub-section 6 clarifies that on the cessor of an order under sub-section 1 , the authorised person shall hand over all or any property remaining with him to the Authority-Section 34 companyfers upon the Central Government the power to supersede the Authority in certain situations and for a limited period. Sub-section 1 of Section 34 reads thus 34. 1 If, at any time, the Central Government is of opinion-- a that on account of a grave emergency the Authority is unable to discharge the functions and duties imposed on it by or under the provisions of this Act or b that the Authority has persistently made default in companyplying with any direction issued by the Central Government under this Act or in the discharge of the functions and duties imposed on it by or under the provisions of this Act and as a result of which default the financial position of the Authority or the administration of any airport has deteriorated or c that circumstances exist which render it necessary in the public interest so to do, the Central Government may, by numberification in the Official Gazette, supersede the Authority for such period, number exceeding six months, as may be specified in the numberification Provided that before issuing a numberification under this sub-section for the reasons mentioned in clause b , the Central Government shall give a reasonable opportunity to the Authority to show cause why it should number be superseded and shall companysider the explanation and objections, if any, of the Authority. Sub-section 2 sets out the companysequences and effects of a numberification published under sub-section 1 of Section With effect from the date of such publication superseding the Authority, all the members shall vacate their offices with effect from their supersession and all the powers, functions and duties of the Authority shall be exercised and discharge by such person or persons as the Central Government may direct. Clause c of sub-section 2 says that with effect from the date of publication of numberification under sub-section 1 superseding the authority all property owned or companytrolled by the Authority shall, until the Authority is re-constituted under sub-section 3 , vest in the Central Government. Section 35 says that the Authority shall be bound by such directions as may be given by the Central Government on questions of policy. The proviso to sub-section 1 , however, provides that before giving any such direction, the Authority shall be given an opportunity to express its views in the matter. Section 36 companyfers rule-making power upon the Central Government whereas Section 37 companyfers the regulation-making power upon the Authority. For the sake of companyvenience, we shall refer to the Authority and its licencees Air India and I.T.D.C. in the ensuing discussion as appellants and the Municipal Corporations of Delhi and the Dum Dum Municipality as respondents, numberwithstanding the fact that in Civil Appeal No.6696 of 1995 arising out of Special Leave Petition C No.5337 of 1988 Dum Dum Municipality is the appellant. The companytention of the learned companynsel for the appellants is to the following effect the expression vesting has several shades of meaning. It does number necessarily mean the vesting of ownership. The character of vesting has to be determined with reference to the relevant provisions of the enactment. In the case of the International Airports Authority Act, 1971, the vesting is only for the purpose of management of the airports. In other words, what is vested is only the management and operation of the airports with a view to ensure better and efficient operation of services at such airports. The properties which were vesting in the Union of India and which are vested in the Authority by and under Section 12 of the Act companytinue to be the properties of the Union of India. They never became the properties of the Authority. May be, the properties acquired by the authority subsequent to its companystitution become its own properties but so far as the lands and buildings which were in existence on the date of the companystitution of the Authority and which were vested in it, they companytinue to be the properties of the Union of India. So far as the land which has been given on licence to Air India is companycerned, Sri Nariman says, it is the land which belonged to the Union of India and was vested in the Authority under Section 12 of the Act on its companystitution in the year 1972. No taxes can, therefore, be levied upon such land by the Delhi Municipal Corporation. If the land cannot be taxed, the buildings thereon cannot also be taxed. So far as Hotel Airport Ashok is companycerned, the land upon which it is located was given on licence to I.T.D.C. by the Authority. It is equally the property of the Union of India which vested in the Authority by virtue of Section 12. Moreover, the Bengal Municipal Act, 1932 provides for levy of an integrated and companyposite tax upon a holding - which expression is defined to mean land held under one title or agreement and surrounded by one set of boundaries by clause 21 of Section 3. The land and the building thereon cannot be dissociated from one another and hence, numbertax can be levied upon the building alone if numbertax can be levied upon the land. It is further submitted that the Government of India has repeatedly decided, as companytemplated by Section 12 3 of the Act, that the properties companycerned herein are the properties of the Union of India and thus exempt from tax. This decision was companymunicated to the Municipal Corporation of Delhi as well. The said decision, being a statutory decision, is binding upon the Municipal Corporation of Delhi. We find it difficult to agree with the learned companynsel for the appellants. The power to carry on a business is an incident of proprietory power. Even before the present Article 298 was substituted by the Constitution Seventh Amendment Act, 1956, this Court had taken the view that the State is entitled to engage itself in all activities necessary for the promotion of the social and economic welfare of the companymunity and that for doing so numberspecific legislation is necessary except where the State proposes to encroach upon private rights in order to enable it to carry on its business. Rai Sahib Ram Jawaya Kapur Ors. v. State of Punjab 1955 2 C.R.225 . With a view to put the matter beyond any doubt, Article 298 was substituted altogether by the Seventh Amendment Act. It reads Power to carry on trade, etc.-- The executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of companytracts for any purpose Provided that-- a the said executive power of the Union shall, in so far as such trade or business or such purpose is number one with respect to which Parliament may make laws, be subject in each State to legislation by the State and b the said executive power of each State shall, in so far as such trade or business or such purpose is number one with respect to which the State Legislature may make laws, be subject to legislation by Parliament. According to the statement of objects and reasons appended to the Bill, the said amendment was brought in to make it clear that the Union government, as well as State governments, are companypetent to carry on any companymercial or industrial under taking, whether or number it is related to a matter within the legislative companypetence of the Union or as the case may be of the State. Similarly, the holding, acquisition and disposal of property and the making of companytracts by the Union or a State companyld be for any purpose without companystitutional impropriety. Even before the advent of the companystitution, the State had been carrying on several activities which were in the nature of companymercial trading manufacturing activity but with the advent of the companystitution introducing the companycept of a welfare State - or a socialist State, as the case may be - both the State and Central Governments embarked upon an extensive and systematic companyrse of activity whereunder several business ventures were companymenced and in many cases taken over. Within a few years, however, it was realised that a business is to be carried on as a business and number in the manner of governmental activity. Accordingly, the Central and State Governments started creating companyporations for carrying on these activities. In the case of major public utilities, statutory companyporations were created under different enactments. For example, Road Transport Corporations under Road Transport Corporations Act, Electricity Boards under the Electricity Supply Act, 1948, Air India and Indian Airlines under the Airlines Corporation Act, Life Insurance Corporation under the Life Insurance Corporation Act and so on. In respect of several undertakings, companypanies were registered under the Companies Act. With a view to anable these statutory companyporations and companypanies to carry on the activity which was hitharto carried on by the governments, the relevant properties assets and liabilities were transferred to such new companyporations They were supposed to operate on business lines, pay taxes and justify their creation and companystitution. These companyporations, whether created under the statute or registered under the Companies Act are distinct juristic entities owning their own properties having their own fund, capable of borrowing and lending monies and entering into companytracts like any other companyporation. In many cases the entire share capital of these companyporations is owned by the Government whether Central or State. In some cases, the major share holding is of the Government with some private share holding as well. In case of some statutory companyporations, the enactment creating them did number provide for any share capital, though it was made a body companyporate with all the necessary and incidental powers that go with such companycept. The International Airports Authority is one such companyporation created under the Act with numbershare capital but which has its own properties, its own fund, accounts, employees and capable of lending and borrowing and entering into companytracts. The properties held by it can be categorised into two, viz., 1 those that were transferred to it under Section 12 of the Act at the time of its inception and 2 those that have been acquired by it subsequent to its companystitution. There is numberdispute about the second category of properties. Admittedly they are the properties of the Authority and number the properties of the Union. The only companytroversy is with respect to the first kind of the properties. It is true that the expressions vest and vesting have different shades of meaning as pointed out by this Court in Fruit and Veqetable Merchants Union v. Delhi Improvement Trust 1957 S.C.R.1 and that the nature and character of vesting has to be ascertained with reference to the relevant provisions of the enactment. But the question is what is the nature and character of vesting under the International Airports Authority Act, 1971? Sri F.S.Nariman, who led the arguments on behalf of the appellants laid great stress upon the preamble to the Act and sub-section 1 of Section 16. Learned Counsel companytended that according to the preamble, the Act was made to provide for the companystitution of an Authority for the management of certain aerodromes whereat International air transport services are operated or are intended to be operated and for matters companynected therewith, which aspect is affirmed in sub-section 1 of Section 16 which says that it shall be the function of the Authority to manage the airports efficiently. On the basis of the said provisions learned companynsel companytends that the vesting of properties in the Authority is only for the purpose of managing those properties and that the ownership of those properties was number vested in the Authority. We are, however, of the opinion that the nature and character of vesting should number be determined with reference to the preamble and sub-section 1 of Section 16 alone but on a totality, i.e., on a companyspectus of the provisions of the Act. Section 3 2 says that the authority shall be a body companyporate having perpetual succession and a companymon seal with power to acquire, hold and dispose of property both movable and immpvable, and entitled to enter into companytracts. It can sue and is liable to be sued in its own name. Section 12, which is the vesting provision does number companytain any words of limitation. It vests all properties and other assets vested in the Central Government for the purposes of the airport and administered by the Director General of Civil Aviation immediately before the companystitution of the authority in the Authority. All debts, obligations and liabilities incurred, all companytracts entered into and all other matters companynected with the said properties are also made over to the Authority. Any sums of money due to the Central Government in relation to the airports immediately before such companystitution are deemed as amounts due to the authority. Similarly, in respect of all suits and other legal proceedings, the Authority companyes in the place of Central Government. The companycerned employees are treated as on deputation with the Authority. Section 13 says that any land required by the authority shall be deemed to be needed for public purpose and acquired as such according to law. The Authority is empowered to enter into companytracts by itself. The Authority has its own fund into which any subventions made by Central Government are deposited. The Central Government can also advance loans to the Authority on such terms and companyditions as it may determine. The surplus income remaining after meeting of the necessary expenditure and after providing for reserves and other requirements, is to be paid over to the Central Government. Section 23 says that the Authority can borrow money from any sources by issue of bonds, debentures and such other instruments as it may deem fit. It has its own accounts which are audited by the Comptroller and Auditor General of India. It has to prepare and publish an annual report every year. Section 31 provides expressly that the Authority shall be deemed to be a companypany for the purposes of the Income Tax Act, 1961 and its income, profits and gains shall be liable to tax according to the said Act. This is a significant provision as we shall point out in a little while. These several provisions make it clear that the Authority is a distinct juristic entity, having its own properties, fund and employees, and that it is capable of borrowing from any source including from Government of India. The Act expressly makes the Authority liable to pay income tax like any other companypany and its income arises mainly from the properties vested in it. This fact companypled with the fact that there are numberwords of restriction in Section 12 does establish companyclusively that the properties vested in it under Section 12 - properties which were hitherto owned by the Union of India - cease to be the properties of the Union of India and that the said vesting is neither restricted number temporary. The vesting is numberdoubt for ensuring better management of airports but the said purpose underlying the creation of the Authority cannot be read as a restriction or as a ground for curtailing the meaning of vesting. So far as Section 33 is companycerned, it is a temporary measure - a regulatory manner - which has to be taken whenever it is found necessary in public interest. If the Central Government is of the opinion that in public interest, it is necessary or expedient so to do, it can direct the Authority to entrust the management of any airport to the person or persons appointed by it who shall manage the same for the limited period specified in the section subject to and under the orders of the Central Government. At the end of such period, the management of the airport reverts back to the Authority. Similarly, Section 34 provides for supersession of the authority in certain situations, viz., in a grave emergency where the authority is unable to discharge its functions or duties or where the authority has persistently made default in companyplying with any direction issued by the Central Government as a result of which the financial position of the authority or the administration of the authority has deteriorated or where the circumstances exist which renders it in the public interest so to do. This is another instance of companytrol vested in the Central Government to ensure proper and efficient functioning of the Authority. The Authority can be superseded only for a period number exceeding six months which can, however, be extended for a further period of six months - but number beyond. These are the usual regulatory provisions found in such enactments and in enactments dealing with companyperative societies and panchayat raj institutions. Great emphasis was laid upon clause c of sub-section 2 of Section 34 which provides that on supersession of the Authority under sub-section 1 all property owned or companytrolled by the Authority shall, until the Authority is re-constituted under sub-section 3 , vest in the Central Government. This provision, according to the learned companynsel, points out the ephemeral nature of vesting of properties of the Union of India in the Authority and is inconsistent with the theory of absolute vesting propounded by the respondents. We are number impressed. It may be seen that once an Authority is superseded under Section 34 1 , there is, in law, numberAuthority. In such a situation, provision has to be made with respect to the properties hitherto vesting in the Authority and clause C of subsection 2 is precisely the provision providing for it. Evidently, the Parliament did number wish to vest the properties in the person or persons appointed to manage the affairs of the Authority for a limited period. It is for that reason that the said clause says that during the period of supersession such properties vest in the Central Government which get revested in the Authority once it is re-constituted. Indeed, it is suggested by Sri Chatterji, learned companynsel appearing for the Dum Dum Municipality that if the properties did never vest in the Authority and had always remained the properties of the Union of India, there was numberoccasion for clause c to say that the properties owned or companytrolled by the Authority vest in the Union for the said limited period. We need number, however, express any opinion on this submission. It was then argued by the learned companynsel for the appellants that Section 34 2 C is really companysistent with and bears out their theory rather than the case of the respondents. It is pointed out that Section 34 2 C use both the expressions owned and companytrolled, which means respectively the properties owned by it i.e., acquired companystructed by it after its companystitution and those under its companytrol i.e., the properties which are owned by the Union of India and placed under the management of the Authority under the provisions of the Act . It is submitted that the Parliament used both the expressions to denote both kinds of properties. We cannot agree. Probably, the learned companynsel are reading too much into these two words. In any event, Section 34 2 C does number use the expression managed, as it ought to, if the intention attributed to Parliament by the learned companynsel is companyrect. It uses a different expression companytrolled by. It seems to refer to those properties which may number be owned by the Authority but are under its companytrol on the date of supersession. From the said two words in Section 34 2 C , numberinference can be drawn which militates against the entire scheme of the Act. A circumstance companymon to both Sections 33 and 34, which establishes the distinct identity of the Authority is the requirement that before taking action under either of the sections, numberice has to be given to the Authority to show cause and it has to be heard. There is yet another difficulty in the way of accepting the appellants submission. The submission logically means that only those properties which are vested by the Central Government in the Authority on the date of its companystitution alone will companytinue to be the properties of the Union. But so far as the properties which have been acquired or companystructed after that date by the Authority would be its own properties. It may happen that the properties which have been vested in the authority at its inception have been rebuilt, improved, expanded and developed beyond recognition. How is one to draw the line and where? Such a distinction would number only be artificial but difficult to operate in practice. The annual report published by the Authority from year to year discloses how the Authority has understood the vesting. A companyy of the annual report 1988-89 is placed before us which shows that the Authority claims to be the owner of all the properties without making any distinction between those that were vested in it at its inception and those which have been acquired and or companystructed later. It has also claimed depreciation on all the properties under Section 32 of the Income Tax Act which can be claimed only by the owner of the properties. We are number suggesting that the understanding of the Authority is companyclusive on the question. Far from it. The issue has really to be decided on the basis of the provisions of the Act. We referred to the said aspect only to show how the Authority and Union of India have understood the legal position and acted upon it over a period of more than two decades. We may number deal with the submission based upon certain letters of Government of India asserting that all the properties of the Authority are the properties of the Union. The appellants seek to read these letters as companystituting a decision within the meaning of Section 12 3 . Section 12 3 has been set out in full hereinabove. We may number set out one of the letters relied upon, viz., letter dated January 2, 1981 from the Deputy Secretary to the Government of India to the Chief Secretary, Government of Maharashtra, Bombay which reads No.W-24011/14/80-AA Date02.01.81. To, The Chief Secretary, Government of Maharashtra, Mantralaya, Bombay. Sub i. Non-agriculture assessment on the lands at Bombay airport under the companytrol of the IAAI. ii. Payment of Municipal taxes to the Bombay Municipal Corporation by the IAAI. Sir, I am directed to say that the International Airport Authority of India, a public sector under taking under this Ministry, has informed the Ministry that Additional Collector, Bombay Sub-urban District and the Bombay Municipal Corporation respectively are making number-agricultural assessment and levying Municipal taxes on the lands under the companytrol of IAAI at Bombay Airport. Sometimes ago, this Ministry received a letter from the Additional Collector, Bombay Sub-urban District stating that the IAAI is subject to numberagricultural assessment for the lands under its companytrol at Bombay Airport No. C Desk/2/8A/826 dt.03.05.1980 . This matter was referred to the Union Ministry of Law, Justice Company Affairs for legal opinion. A companyy of the legal opinion received is enclosed. It may be seen from the legal opinion received that the property vested with the IAAI companytinues to be the property of the Government of India and is exempt from state taxation. In view of this, it is requested that suitable instructions be issued to the Additional District Collector, Bombay Sub-urban district and the Commissioner, Bombay Municipal Corporation number to levy any State tax on the lands under the companytrol of IAAI at Bombay. Yours faithfully, Sd - Gopal Chaturvedi Dy.Secretary to the Govt.of India The appellants also rely upon a certificate issued by the Government of India addressed to the Managing Director, Hotel Corporation of India, which may also be set out GOVERNMENT OF INDIA MINISTRY OF CIVIL AVIATION TOURISM Department of Civil Aviation SARDAR PATEL BHAWAN, PARLIAMENT STREET, NEW DELHI. Dated 21.8.89 AV.18050/67/89-AA To The Managing Director, Hotel Corporation of India, 5th Floor, Centaur Hotel, Bombay Airport, Bombay. Sub Assessment of property tax. Sir, I am directed to refer to letter No. PRM/202 dated 3rd August, 1989 on the above numbered subject and to certify that Air India is a statutory Corporation established under the Air Corporation Act, 1953 by the Government of India and the Hotel Corporation of India is a wholly owned subsidiary of Air India. Since both Air India and the Hotel Corporation of India are public sector undertakings, the properties of these Corporations are basically vested with the Government of India. Yours faithfully, Sd - R.N. Bhargava Under Secretary to the Govt. of India In our opinion, these letters and or the certificate do number represent a decision within the meaning of Section 12 3 since that sub-section seems to companytemplate a dispute between the Union of India and the Authority. No such dispute ever existed. Secondly it cannot bind any of the Municipal Corporations companycerned herein for the reason that they were number heard before rendering the said decision. Yet another feature of these letters and certificate is that they do number draw a distinction between properties transferred by the Union of India to the Authority and the properties acquired and are companytrolled by the Authority after its companystitution. According to the Central Government, all the properties of the Authority are really the properties of the Union - a stand which is number taken by the appellants even. Now, companying to Section 31 of the Act, it states expressly that the Authority shall be a companypany within the meaning of Income Tax Act, 1961 and shall be liable to tax upon its income, profits and gains. Now, if the properties vested in the Authority by Section 12 companytinue to be the properties of the Union, the income arising therefrom should also be the income of the Union and number the income of the authority. The dichotomy in the argument of the appellants is understandable. When Section 31 says that the income, profits and gains of the authority shall be liable to tax under the Income Tax Act, it means clearly that it shall be assessed according to the provisions of that Act which includes Section 32 providing for depreciation on the assets from which the income arises. As a matter of fact, the Authority has been claiming and obtaining the benefit of Section 32 of the Income Tax Act, which it companyld have claimed only if it were the owner of those assets. Having done that over a period of more than twenty years, the Authority cannot number turn round - when it is sought to be taxed under the relevant Municipal Corporation Act - and say that those properties do number belong to it. The shifting stands adopted by the Authority to suit its companyvenience are too self-evident to call for any emphasis. The decision of the Constitution Bench of this Court in Andhra Pradesh State Road Transport Corporation v. The Income Tax Officer 1964 7 S.C.R.17 - a case arising under Article 289 of the Constitution - may be referred to at this stage. The Andhra Pradesh State Road Transport Corporation was companystituted under the Road Transport Corporations Act, 1950 with effect from January 11, 1958. Prior to that date, road transport was a department of the Government of Andhra Pradesh and was being run by it. During the period prior to January 11, 1958, the income from the road transport was exempt from tax as the income of the State Government but once the companyporation was formed, the Income Tax Department took the view that the income earned by the companyporation is liable to tax. Notices were accordingly served upon the companyporation, which questioned the same by way of a writ petition in the Andhra Pradesh High Court. It companytended that having regard to the provisions of the Road Transport Corporations Act and in particular Section 30 which provides that the net income of the Corporation should go to the State of Andhra Pradesh, it must be held that the income of the companyporation was really the income of the State Government. This argument was rejected on an examination of the provisions of the Road Transport Corporations Act which are broadly in accord with the provisions of the International Airports Authority Act, 1971. In companying to the said companyclusion, the Constitution Bench laid emphasis upon the fact that the companyporation has a separate fund of its own, that it can borrow funds from any source including from the State Government and Central Government and that it can enter into companytracts and own property. It held that the mere fact that the companyporation is owned by the State Government or that in all material Particulars, its activities are companytrolled by the State, are of numberconsequence. Of companyrse, the share capital of the companyporation in that case was held by the State Government and Central Government together and that it also companytemplated raising of capital by issue of shares to other parties whereas in the case of the Authority there is numbersuch provision. But the said feature, in our opinion, does in numberway whittle down the relevance of the said decision to the facts of the case before us, for the reason that the said fact is number at the companye of the decision. There is yet another circumstance which goes to support our companyclusion. The Parliament has since enacted the Airports Authority of India Act, 1994 Act 55 of 1994 in supersession of the 1971 Act. We are told that the 1994 Act has companye into force on and from April 1, 1995. Section 3 of the Act companystitutes an authority called Airports Authority of India. Sub-section 1 of Section 13 says that on and from the appointed day, the under takings of the International Airports Authority i.e., the authority companystituted under Section 3 of the 1971 Act shall be transferred to and vest in the Authority companystituted under Section 3 of the 1994 Act. Sub-section 2 of Section 13 makes it clear that the undertaking of the International Airports Authority which is tranferred to and which vests in the Authority under sub-section 1 shall be deemed to include all assets, rights, powers, authorities and privileges and all property, movable and immovable, real or personal, companyporeal or incorporeal, present or companytingent, of whatever nature and wheresoever situate, including lands, buildings, machinery, equipments, works, workshops, cash balances, capital reserves, reserve funds, investments, tenancies, leases and book debts and all other rights and interests arising out of such property as were immediately before the appointment day in the ownership, possession or power of the International Airports Authorityin relation to its undertaking whether within or outside India No distinction of the nature urged by the learned companynsel for the appellants is recognised by subsection 2 of Section 13 of the 1994 Act. Reference may be made in this companynection to the decision of this Court in Western Coalfields Limited v. Special Area Development Authority 1982 1 S.C.C.125 . Certain government companypanies incorporated under the Companies Act, the entire share capital whereof was held owned by the Government of India claimed exemption from State taxation under Article 285 1 of the Constitution. The said plea was rejected by this companyrt holding that merely because the entire share capital is owned by the Government of India it cannot be held that companypanies themselves are owned by the Government of India. It was observed that the companypanies which are incorporated under the Companies Act have a companyporate personality on their own distinct from that of the Government of India and that the lands and buildings are vested in and owned by the companypanies whereas the Government of India only owns the share capital. Reliance was placed upon certain decisions of this Court including the decision in Andhra Pradesh State Road Transport Corporation. We are of the opinion that the said principle applies equally in the case of a statutory companyporation. The statutory companyporation is companystituted by or under a statute as against the companypanies including government companypanies which are registered under and governmed by Indian Companies Act, 1956. For all the above reasons, we are of the opinion that the International Airports Authority of India is a statutory companyporation distinct from the Central Government and that the properties vested in it by Section 12 of the Act cannot be said to have been vested in it only for proper management. After the date of vesting, the properties so vested are numberlonger the properties of the Union of India for the purpose of and within the meaning of Article 285. The vesting of the said properties in the Authority is with the object of ensuring better management and more efficient operation of the airports companyered by the Act. Indeed that is the object behind the very creation of the Authority. But that does number mean that it is a case of limited vesting for the purpose of better management. The Authority cannot, therefore, invoke the immunity created by Article 285 1 of the Constitution. The levy of property taxes by the relevant Municipal bodies is unexceptionable. In view of our companyclusion in the preceding para, it is unnecessary to go into the other question raised, viz., whether the municipality can levy tax upon the building where it cannot levy tax upon the land upon which the building stands. The Calcutta high Court has expressed a view that number all the land in the possession of the I.T.D.C. pursuant to the licence granted to it by the Authority is within the limits of the Dum Dum Municipality. Since this finding appears to be number based on any definite material, we leave this question open for decision by the appropriate authorities at the appropriate stage. In any such proceedings, the finding of the High Court aforesaid shall number operate as res judicata. For the above reasons, Civil Appeal Nos. 6698-6700 of 1995 arising out of S.L.P. C Nos.1176 of 1991, 7882 of 1993 and 5926 of 1991 are dismissed and Civil Appeal No. 6696 of 1995 arising out of S.L.P. C No.5337 of 1988 is allowed. No companyts. CIVIL APPEAL NO.6701 OF 1995 ARISING OUT OF S.L.P. C NO.7914 OF 1995 Leave granted. This appeal is preferred against the interlocutory order dated March 24, 1995 pending writ appeal. As stated hereinabove, the learned Single Judge had allowed the writ petition filed by the Authority and held that the Bombay Municipal Corporation cannot levy any property taxes upon the property held by the Authority. The Municipal Corporation preferred an appeal against the said order wherein the Division Bench directed the Authority to pay a part of the demand pending disposal of the appeal. It is that order which is questioned in this appeal by the Authority. Having regard to our decision in the matters relating to Delhi and Calcutta, this appeal is liable to be dismissed. It is accordingly dismissed herewith.
ASHOK BHUSHAN,J. This appeal has been filed by the three appellants challenging the judgment of High Court of Patna dated 16.07.2013, by which Criminal Appeal DB No. 410 of 1990 filed by them questioning their companyviction and sentence under Section 302 and some other sections of I.P.C. has been dismissed. The prosecution case is that on 16.05.1980, one Raj Ballam Rai, informant alongwith his brother Raj Keshwar Singh came to Sasaram Court. Signature Not Verified After finishing Digitally signed by ARJUN BISHT his Date 2019.05.09 165341 IST Reason work in companyrt informant proceeded with his brother to his residence near Dharamshala. Raj Keshwar Singh was on rickshaw and the informant was on the bicycle. Raj Keshwar Singh was armed with a double barell gun. The further case is that at about 900 am when they reached 50 to 60 yards east of Kargahar More, the informant saw that Doodnath Dusadh, Jamadar Dusadh and Ram Nandan Dusadh stopped the rickshaw. They were armed with Lohbanda. Shio Shankar Dubey was armed with Rifle and his brother Ram Pravesh Dubey was armed with lathi and they were also alongwith them. They pulled down Raj Keshwar Singh from rickshaw and started assaulting with Lohbanda. The Mukhiya that is Shio Shankar Dubey asked them to kill in a hurry. The informant fled away. Shio Shankar Dubey opened fire but numbere received any injury. The accused persons thereafter fled away towards south. At 930 am, the police official namely, S.N. Singh of Sasaram Police Station arrived at the place of occurrence to whom Raj Ballam Rai gave a fardbeyan. On the basis of fardbeyan given at the place of occurrence by informant, First Information Report was registered against 05 accused. The prosecution, to prove its case, produced 15 witnesses. PW11, informant, fully supported the prosecution case. PW13, Ragho Ram Singh, who was also an eyewitness, supported the prosecution case. PW5 was another eyewitness, who saw 04 of the accused running away from the spot. Formal witnesses were also produced by the prosecution. On the spot seizure was also made by one Siddhanath Singh, Inspector of Police, which seizure also companytained companyy of four applications, which were typed at District Court, Sasaram and were being carried by the deceased alongwith him in a diary, which applications were marked as Ext.3/2 to 3/5. Inquest Report was also prepared on the spot. Body was sent for post mortem. Post mortem report was prepared as Ext.4. One defence witness, DW1, Dasrath Ram was also produced, who brought the register of the employees for the period 1961 to 1963 companytaining the signatures of deceased Raj Keshwar Singh. The trial companyrt vide its judgment and order dated 14.09.1990 companyvicted 04 accused, one of the accused namely, Doodnath Dusadh having died during the pendency of trial. The appellant No.1 Shio Shankar Dubey, accused No.3, was companyvicted for the offence under Sections 302/149/148 I.P.C. and Section 27 of the Arms Act. The appellant No.2 Ram Pravesh Dubey, accused No.4, was companyvicted for the offence under Sections 302/149/147 I.P.C. The third appellant, i.e., Jamadar Dusadh, accused No.1 was companyvicted under Sections 302/147 and 379 I.P.C. Four accused, who were companyvicted filed criminal appeal in the High companyrt, which has been dismissed. One Ramnandan Dusadh also having died during pendency of the appeal before the High Court, the three surviving accused are in the appeal before this Court. Learned companynsel for the appellant in support of the appeal submits that PW11 informant being brother of the appellant and PW13 being husband of the niece of the deceased were all close relatives and interested witnesses, the Courts below companymitted an error in relying on the testimony of interested witnesses. There being numberindependent witnesses companyroborating the charge against the appellants the appellants ought number to have been companyvicted and sentenced. It is further submitted that PW5, who claimed to be an eyewitness and deposed before the companyrts below that he saw four accused running away from the spot, he has number taken the name of Ram Pravesh Dubey, the appellant No.2. PW5 having number taken the name of Ram Pravesh Dubey, the presence of Ram Pravesh Dubey on the spot is number proved and the Courts below have ignored this evidence. Ram Pravesh Dubey having number been proved to be on the spot, companyld number have been companyvicted. It is further submitted that inquest report mentioned a bullet injury whereas in the post mortem report, numberbullet injury was found. There being numberbullet injury found in the post mortem report, the entire prosecution theory is inconsistent. Learned companynsel for the appellant further submits that there was numbermotive for appellants to kill Raj Keshwar Singh. Learned companynsel appearing for the State refuting the submissions of the learned companynsel for the appellant submits that informant PW11 was accompanying the deceased and his evidence was found trustworthy. The Courts below did number companymit an error in relying on his evidence. It is submitted that the mere fact that PW11 and PW13 are related to the deceased does number in any manner impeach their truthfulness. It is submitted that the mention of the bullet injury in the inquest report was due to error of judgment by the person writing inquest report. The skull being crushed in a manner and bones being fractured, impression was drawn that bullet entered from behind the skull and came out of the mouth, which in numbermanner can be said to be fatal to the prosecution case. It is submitted that PW5 is a trustworthy witness, who is number related to the deceased and saw the accused running away from the spot. We have companysidered the submissions of the learned companynsel for the parties and have perused the records. PW11, who is a brother of the deceased, has fully companyroborated the prosecution case in his evidence. In spite of thorough cross-examination, the witnesses companyld number be shaken. The submission of the appellant that witnesses PW11 and PW13 being related to the deceased are interested witnesses and should number be relied does number companymend us. The mere fact that deceased was brother of the informant and PW13 is the husband of the niece of the deceased and does number impeach their evidence in any manner. The mere fact that witness is related does number lead to inference that such witness is an interested witness. This Court has occasion to companysider such submission in number of cases. In Kartik Malhar Vs. State of Bihar, 1996 1 SCC 614, this Court held that a close relative who is a very natural witness cannot be regarded as an interested witness. In paragraph Nos. 15 and 16, following was laid down- As to the companytention raised on behalf of the appellant that the witness was the widow of the deceased and was, therefore, highly interested and her statement be discarded, we may observe that a close relative who is a natural witness cannot be regarded as an interested witness. The term interested postulates that the witness must have some direct interest in having the accused somehow or the other companyvicted for some animus or for some other reason. In Dalbir Kaur Mst v. State of Punjab, 1976 4 SCC 158, it has been observed as under SCC pp. 167-68, para 11 Moreover, a close relative who is a very natural witness cannot be regarded as an interested witness. The term interested postulates that the person companycerned must have some direct interest in seeing that the accused person is somehow or the other companyvicted either because he had some animus with the accused or for some other reason. Such is number the case here. In Dalip Singh v. State of Punjab, AIR 1953 SC 364 it has laid down as under A witness is numbermally to be companysidered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are number attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to companybat what is so often put forward in cases before us as a general rule of prudence. There is numbersuch general rule. Each case must be limited to and be governed by its own facts. Further in Namdeo Vs. State of Maharashtra, 2007 14 SCC 150, same propositions were reiterated by this companyrt elaborately referring to the earlier judgments, this Court rejected the same submission in paragraph Nos. 29, 30 and 38, which are to the following effect- It was then companytended that the only eyewitness, PW 6 Sopan was numbere other than the son of the deceased. He was, therefore, highly interested witness and his deposition should, therefore, be discarded as it has number been companyroborated in material particulars by other witnesses. We are unable to uphold the companytention. In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterised as interested. The term interested postulates that the witness has some direct or indirect interest in having the accused somehow or the other companyvicted due to animus or for some other oblique motive. Before more than half a century, in Dalip Singh v. State of Punjab, AIR 1953 SC 364, a similar question came up for companysideration before this Court. In that case, the High Court observed that testimony of two eyewitnesses required companyroboration since they were closely related to the deceased. Commenting on the approach of the High Court, this Court held that it was unable to companycur with the said view. Referring to an earlier decision in Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54, Their Lordships observed that it was a fallacy companymon to many criminal cases and in spite of endeavours to dispel, it unfortunately still persists, if number in the judgments of the companyrts, at any rate in the arguments of companynsel Dalip Singh case, AIR p. 366, para 25 . From the above case law, it is clear that a close relative cannot be characterised as an interested witness. He is a natural witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, companyviction can be based on the sole testimony of such witness. Close relationship of witness with the deceased or victim is numberground to reject his evidence. On the companytrary, close relative of the deceased would numbermally be most reluctant to spare the real culprit and falsely implicate an innocent one. We, thus, reject the submission of the appellant that PW11 and PW13 being related to deceased, their evidence cannot be relied. Now, the next submission of the learned companynsel for the appellant that PW5, who is held to be an eyewitness has in his statement only taken names of the four accused, who, according to him, were seen running away from the spot. It is submitted that PW5 did number take the name of Ram Pravesh Dubey, the appellant No.2. The statement of PW5 has been brought on the record. PW5 in his statement stated that at 9 Oclock in the morning, he had gone to Sasaram and when he went about fifty steps south to Rouza Road from G.T. Road, he saw the accused persons namely Ram Nandan Dusadh, Dudnath Dusadh, Jamadar Dusadh and Shankar Dubey fleeing on Rouza Road going from the west to the east. It is true that in his statement, he mentioned names of only four persons, who were seen fleeing on Rouza Road. The mere fact that he did number mention name of Ram Pravesh Dubey cannot lead to the inference that Ram Pravesh Dubey was number involved in the incident. There may be several reasons due to which, he companyld number see Ram Pravesh Dubey. When PW11 and PW13, whose evidence has been relied by the trial companyrt as well as High Court, have categorically proved the presence of Ram Pravesh Dubey and his participation in the occurrence. The mere fact that PW5 did number see Ram Pravesh Dubey fleeing is number companyclusive number on that basis, we can companye to any inference that Ram Pravesh Dubey was number involved in the occurrence. Now, we companye to the another submission of the appellants that in the inquest report, it was mentioned that pellet from back in the head has companye out of the mouth, but there was numberbullet injury found in the post mortem report. In companyumn No.5 of the inquest report brought as Annexure-P42, following was stated- It appears that the pellet from back in the head has companye out of the mouth. illegible part has been cut. The brow on the eyes are illegible . Left elbow has bruise injury. Left had has also bruise injury. Lacerated. We may further numberice other details given in the inquest report in companyumn No.4, following was numbericed- Head in numberth-east direction, leg in south direction, felt facing upward, the back portion of the head heavily damaged, both the eye closed. Eye has blackened. Injury in mouth also. Blood is oozing from the mouth also. Now, we companye to the post mortem report. Post mortem report has been extracted by the High Court in paragraph No.12 of the judgment. The injuries numbericed in paragraph No.12 are as follows- XXXXXXXXXXXXXXXXXXXXXX Lacerated wound 2 X 1 with companymuted fracture of occipital bone in two multiple pieces at back of head. Some fragments of bone had pierced into brain companyering. There was companylection of blood clot outside and inside durameter. Corresponding part of the brain was found softened and with lacerated injury. There was numberblackening of margin of surrounding area or numbertatooing. Bruise 4 X 2 in front of face involving right eye brow, right malar bone and bridge of numbere with multiple fracture of right mallar bone, numberal bone and right maxilla. Bruise 2 x 1 left and below the numbere with fracture of left maxilla and lacerated cut of cheek from inside 1 X 1/2. Abrasion 1 x of upper lip right to mid-line. Lacerated cut x left margin of tongue with blood clot in the mouth. Abrasion x at left knee. Abrasion 1 x at left forearm. Injury Nos. i , ii and iii are grievous in nature caused by hard blunt substance, may be lathi and Lohbanda. Injury Nos. iv , v , vi , vii are simple in nature, caused by hard blunt substance, may be lathi and Lohbanda. Time elapsed since death within 12 hours. XXXXXXXXXXXXXXXXXX A perusal of the injuries, which have been numbericed in the post mortem report indicates that there was fracture of occipital bone in two multiple pieces at back of the head. Some fragments of bone had pierced into brain companyering. Multiple fracture of right mallar bone, numberal bone and right maxilla has also been numbericed. The nature of the injuries, which were found in the post mortem report indicates that on seeing the injuries, the officers recording the inquest report thought that since occipital bone in two multiple pieces at back of head have been fractured and some fragments of bone had pierced into brain companyering, the bullet entered from the back side of the head and came out of the mouth, which is numbericed in the inquest report and the officer writing the inquest report made his opinion by seeing the injury by bare eyes. The nature of injuries especially injury in the back of head led him to believe that bullet entered from back of the head and came out of the mouth. The above impression recorded in the inquest report was only opinion of person preparing inquest report and due to the above impression recorded in the inquest report and numberbullet having been found in the post mortem report, it cannot be companycluded that incident did number happen in a manner as claimed by the prosecution. The mention of bullet injury was only an opinion of the officer writing the inquest report and in numbermanner belies the prosecution case as proved by eyewitnesses PW11 and PW13. Learned companynsel for the appellant has further companytended that there was numbermotive proved. PW11 in his statement clearly mentioned that as his nephew had companytested election against the accused Shio Shankar Dubey for the post of Mukhiya, due to which Shio Shankar Dubey was angry with his deceased brother. In paragraph No.5 of the statement, following has been stated- Accused Shiv Shankar Dubey was the Mukhiya of my Gram Panchayat Gotpar Khatadihri at the time of occurrence. My nephew Ram Bachan Singh had companytested election against the accused Shio Shankar Dubey for the post of Mukhiya. This is why Shio Shankar Dubey was angry with my deceased brother and all the accused jointly murdered him. Bikram Dusadh had been jailed three to four days earlier to this occurrence. He was full brother of the accused namely Dudnath Dusadh and Jamadaar Dusadh and son of the accused Ram Nandan Dusadh. The accused were suspicious of the fact that my deceased brother had got him jailed. In paragraph No.58, the trial companyrt has discussed about the motive and it held that motive for the occurrence has been proved from the oral evidence of PW11 and Ext. 5 and Ext.5/1. There is one more fact, which needs to be numbered in the present case. The occurrence is of 9.00 AM on 16.05.1980 and within half an hour of the occurrence, police officials from Police Station, Sasaram arrived on the spot, a fardbeyan of the informant, PW11 was recorded on the spot itself by the police officials. At 9.30 AM, the fardbeyan has been proved. The inquest report and the seizure report were provided at 10.00 AM and 10.15 AM respectively on the spot. FIR was sent to the companyrt on 17.05.1980. Trial companyrt has numbericed the entire sequence of the events and has rightly companye to the companyclusion that there was numberopportunity for the informant to implicate other leaving the real culprits. In paragraph Nos. 72, 73 and 74, the trial companyrt records following- The salient feature of the present case is that the occurrence took place at 9 a.m. on 16-5-80. The Fardbeyan was recorded at 9-30 a.m. at the place of occurrence. The inquest report and the seizure list was prepared at 10 a.m. and 10.15 a.m. respectively at the spot. The postmortem was done on the same day at 12.10 p.m. These facts are proved from ext.6 Fardbeyan Ext. 7 inquest report , Ext.8 seizure list and Ext. 4 postmortem report . The F.I.R. was sent to the companyrt on 17- 5-80. Admittedly, it was morning companyrt and the companyrt closes at 12 numbern. So the F.I.R. was sent on 17-5-80 in the earliest possible time. One accused was also arrested and sent to custody on 17-5-80. This fact is proved from the order sheet of the lower companyrt dated 17-5-80 which is the first order sheet in this case before lower companyrt. From the facts mentioned in the above para there was numberopportunity for the informant to implicate other leaving the real culprit. Sot this cannot be a case of false implication. The prosecution case in the present case being fully proved against the accused, the eyewitness account of PW11, who was accompanying the deceased has given the eyewitness account of the entire incident.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 19 of 60. Appeal from the judgment and decree dated September 25, 1957, of the Allahabad High Court, in Civil Revision No. 815 of 1955. C. Setlvad, Attorney-Gewral for India and B. P. Maheshwari, for the appellants. M. Sikri, Advocate-General for the State of Punjab and P. Gupta, for respondent No. 1. 1962. April 17. The Judgment of the Court was delivered by HIDAYATULLAH, J.-This is an appeal on a certificate granted by the High Court of Allahabad against an order dated September 25, 1957, dismissing a revision petition filed by the present appellant. The facts of the case, are very simple. Messrs. J. K. Jute Mills Co. Ltd. the answering respondents , entered into a companytract with a firm, Messrs. Birdhi Chand Sumer Mal, for the supply of certain articles. The companytract was entered into by one Seth Tikam Chand, a partner in the firm. One of the terms of the companytract was that in a case of a dispute between the parties, it would be referred to the Merchants Chamber of Commerce, Kanpur, for arbitration. It appears that a dispute arose, which was referred to the Chamber of Commerce, and an award in favour of the Mills was given on January 8,1947. Two years later, the award was made into a rule of the Court, and a decree followed in favour of the Mills. The firm of Birdhi Chand Sumer Mal companysisted of two partners the other partner was one Mr. Pandiya, the predecessor-in-interest of Seth Gambir Mal Pandiya, the appellant. In execution of the decree passed against the firm, the Mills wished to proceed against the personal property of Mr. Pandiya, and filed an application for the leave of the Court under 0.21, r. 50 2 , of the Code of Civil Procedure. In answer to the numberice which was issued, the appellant, Seth Gambir Mal Pandiya, appeared and raised objections. He companytended that he had number been served in the proceedings relating to the arbitration number of the making and the filing of the award in Court. He also companytended that Seth Tikam Chand, who had signed the companytract companytaining the arbitration clause with the Mills, had numberauthority to enter into an agreement companytaining such a clause or to refer the dispute to arbitration on behalf of the other partners. He, therefore, maintained that the award was number binding on him. The companynections of the appellant were number accepted by the First Civil Judge, Kanpur, who allowed the application of the Mills and granted them leave under the rule. The appellant then filed an application for revision in the High Court of Allahabad, which was heard by C. B. Agarwala and Beg, JJ., Agarwala, J., held that although the decree passed against the firm was to be deemed to have been passed against all the individual partners thereof, it was binding proprio vigore only against the partnership property and personally against those persons, who are mentioned in cls. b and e of r. 50 1 , 0. 21, and that the decree was number binding against the appellant, who had number been served in the suit and would be binding only when a summons was served upon him to appear under sub-r. 2 and his liability was determined. The reason given by the learned Judge was that a person who was number served in the suit companyld question his personal liability under the decree, even though he admitted himself to be a partner, upon any ground which was open to him if he had been served in the suit, and that such a person companyld raise the objection that as the decree was the result of an, reward which was based upon an agreement of reference to arbitration to which he was number a party, he was number personally liable under the decree, Beg, J., on the other hand, held that inasmuch as the appellant admitted that he was a partner in the firm of Birdhi Chand Sumer Mal, he was number entitled to raise any objection either to the companytract or the reference to arbitration or the award. The learned Judge having disagreed about the interpretation to be placed on sub-r. 2 of r. 50, the case was laid before Mukherji, J. He agreed with the companyclusion of Beg, J., and in accordance with his opinion, the application for revision was dismissed. The Divisional Bench, however, certified the case as fit for appeal to this Court, and the present appeal has been filed. Order 21, r. 50, of the Code of Civil Procedure reads as follows- 50. 1 Where a decree has been passed against a firm, execution may be granted- a against any property of the partnership b against any person who has appeared in his own name under rule 6 or rule 7 of Order XXX or who has admitted on the Pleadings that he is or who has been adjudged to be, a partner c against any person who has been individually served as a partner with a summons and has failed to appear Provided that numberhing in this sub-rule shall be deemed to limit or otherwise affect the provisions of section 247 of the Indian Contract Act, 1872. Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person, as is referred to in sub-rule 1 , clause b and c as being a partner in the firm, he may apply to the Court which passed the decree for leave, and where the liability is number disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined. Where the liability of any person has been tried and determined under subrule 2 , the order made thereon shall have the same force and be subject to the same companyditions as to appeal or otherwise as if it were a decree. 4 gave as against any property of the partnership, a decree against a firm shall number realise, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer. This rule deals with the execution of decrees obtained against, firms. It enable the decree to be executed against the partnership assets. It also enables that the decree may be executed against any one who appeared in the suit, and admitted that he was a partner or who was lawfully adjudged in the suit to be one. It also enables that the decree may be executed against any person lawfully summoned in the suit as a partner but who did number choose to appear individually to defend the action. Lastly, it provides that if it is desired to execute the decree against a person as being a partner of the firm who does number belong to the categories already mentioned, then the leave of the Court must be obtained and the Court before granting such leave should summon that person whose liability, unless he admits it, should be tried as an issue. So far, the matter is quite simple. The difficulty appears only when one begins to give a meaning to the expression the liability of such person and this raises the question what kind of defences are open to such a person ? The learned Attorney- General has argued that the expression admits of a narrow companystruction, a wide companystruction and a companystruction which is in between the two. The narrow companystruction, according to him, is that the only. issue to be tried is whether that person was a partner or held himself out to be one. The wide companystruction, according to him, is that the issue may take in all defences open to the partnership number raised in the suit and also all defences personal to that person to avoid his individual liability. Under the middle view, according to him, the Court is to try an issue relating to the personal liability of that person. On the other hand, the learned Advocate-General of the Punjab, who appeared for the respondent Company, companytends that if the person summoned, admitts that he is a partner, there is numberhing further to try, and execution can issue against him individually without trying any other issue he may wish to raise. This companytention as raised by the learned Advocate-General prevailed in the Allahabad High Court, while the companytention of the learned Attorney General was accepted by Agarwala, J. Order 21, r. 50 2 , of the Code deals with executions, but really is a part of the provisions relating to suits against firms. Those provisions are companytained in O. 30 of the Code, and must be viewed alongside to get the true meaning of the words. Order 30 and the provisions of r. 50 of O. 21 were taken from O. XL VII, a, of the Rules of the Supreme Court in England. Though there are slight variations in language, the provisions . of our Code are in pari material with the provisions of the Rules of the Supreme Court, as amended in 1891. Under companymon law,. an action against firms was number known. All actions had to be brought against the partners individually. After the Judicature Acts, rules were framed in 1883, which enabled actions to be brought against firms in the names of the firms. The rules provided forms for appearances by persons who entered appearances in answer to summons lawfully issued but the later rules which are more exhaustive, though they do number dispense with the forms of appearance, prescribe how the presence of the firm and of individual partners is to be secured and how defences are to be raised. It is number necessary to reproduce the English rules. They are to be found in the Annual Practice, Vol. 1, P. 1151 1962 . The rules of 1891 are almost reproduced as S 30. 30 and 0. 21, r. 50, of the Code of Civil Procedure. Order 30 deals with procedure in suits against firms in the firm name, and 0. 21, r. 50 with the execution of decrees obtained against firms. These provisions are in themselves a Code. To understand the meaning of r. 50 0. 21 , one must first companysider the provisions of 0. 30, which companytains ten rules. The first rule enables a plaintiff to sue in the name of the firm, two or more persons liable as partners, or of which they were partners when the cause of action accrued and the plaintiff may also apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accrual of the cause of action, partners in such firm. The rule also permit the signing of the written statement and the verification by one partner only. The second rule enables the defendant to ask for the disclosure of the names of partners, where a firm sues as a plaintiff. The third rule then provides for service of summons upon the firm and the partners. Such summons may be served, as the Court may direct- a upon all or any of the partners or b upon any person having companytrol or management of the business, at the principal place of business of the firm within India. A service upon the firm is deemed to be good service, whether all or any of the partners are with in or without India. But if the firm is dissolved to the knowledge of the plaintiff, the summons must be served on every person within India whom it is sought to make liable. The fourth rule provides for right of suit on death of partner. We are number companycerned with that eventuality. The fifth rule then provides that where the summons is issued to a firm under r. 3, every person served shall be informed by numberice whether he is served as a partner or as a person having the companytrol and management of the business or both but in the absence of numberice the person is deemed to be served as a partner. Rule 6 lays down that persons served as partners in the name of the firm shall appear individually in their own names, but all subsequent proceedings shall, nevertheless, companytinue in the name of the firm. Rule 7 then says that if a numberice is served upon a person having the companytrol or management of the partnership business, he need number appear unless he is a partner. Rule 8 enables a person served as a partner to appear under protest denying that he is a partner, but the appearance does n ot preclude the plaintiff from serving a Summons on the firm and obtain an ex party decree, if numberother partner appears. The remaining rules do number companycern us in this case. From the above analysis, it is clear that a plaintiff need sue only the firm, but if be wants to bind the partners individually he must serve them personally, for which purpose he can get a discovery of the names of partners of the firm. Persons served individually may appear and file written statements, but the proceedings go on against the firm only. They may, however, appear and plead that they are number partners or were number partners when the cause of action arose. But even if numberother partner appears, there may be a decree against the firm if the firm has been served with the summons The gist of 0. 30 thus is that the action proceeds against the firm, and the defence to the action by persons admitting that they are partners is on be half of the firm. Persons sued as partners may, however, appear and seek to establish that they are number partners or were number partners when the cause of action arose but if they raise this special plea, they cannot defend the firm. This was laid down in companynection with the analogous provisions of the English rule in Weir Co. v. Mc Vicar Co. 1 . Partners appearing and admitting their positions as partners can only defend the firm, because the suit companytinues in the firms name. The law is thus number companycerned with a fight between the partners inter se, and an action between the partners is number to be tried within the action between the firm and the plaintiff. of companyrse, the partners who admit that they are partners need Dot raise a companymon defence. They may raise inconsistent defences., but all such defences must be directed to defend the firm and the plaintiff must surmount all such defences. See Ellis v. Wadeson 2 . The purport of the rules as well as the two English oases 1 1925 2 K. B. 127. 2 1889 1 Q B. D. 714. which have companyrectly analysed, the rules on the subject the English and the Indian rules being alike is that the partnership is sued as a partnership, and though the partners may put in separate defences, those defences must be on behalf of the firm. If some of the partners do number appear, those that do, must defend the firm but if numberproper defence is raised by them, the plaintiff cannot be deprived of a judgment. The judgment and decree thus obtained are executable against the partnership assets. This brings in the provisions of 0. 21, r. 50, of the Code. That rule enables a decree obtained against a partnership firm to be executed against the property of the partnership. t, it enables the decree to be executed individually against a person who appeared in his own name under r. 6 or r. 7 of 0. 30 or who admitted on the record or was adjudged to be a partner. Next, the decree can be executed against any person who is served individually as a partner but has failed to appear. Next, it permits the decree to be executed with the leave of the Court against persons belonging to the category of the persons above mentioned, provided that. they are summoned and either admit their liability or after an issue is tried, their liability is determined. A large number of cases decided in India and England have laid down the kind of issue which may be tried under 0. 21. r. 50 2 , of the Code and the companynate provisions of the English rules. Since the English cases are first in point of time, we shall begin with them. It must be remembered in this companynection that the English rules prescribe forms for recording appearance by persons summoned in actions against firms. These are to be found in the Annual Practice, Vol. 1 1962 , at p. 1 160 and are six in number A. B. a partner in the firm of Brown Co. A.B. a partner in the firm of Brown, Evans Co. sued as Brown Co. A.B. a partner in the firm of Brown Co. at the time the alleged cause of action arose. A.B. served as a partner but who denies that he was a partner in the abovenamed firm at any time. A.B. served as a partner in the firm but who denies that he was a partner at the time of the accruing of the alleged cause of action. A person appears subsequently and desires to appear as a partner. These forms are appropriate to an action, but they are also used for persons summoned under O. XLVIII. a, r. 8, companyresponding to our 0. 21, r. 50 2 . In Jackson v. Litchfield 1 , which was decided prior to the rules of 1891 the writ was issued against a firm in the firm name. It was held that the judgment must be entered against the firm, but it companyld number be entered separately against an individual member of the firm who made default in appearing in the action. The decision thus was that if the action was against the firm, the judgment should be against the firm. In Munster v. Cox 2 , the writ was against R Co. The appearance was R trading as R and Co. Judgment was by companysent. Later, the judgment was sought to be executed against one Cox who was number summoned, and for this purpose, application was made for striking out the words R sued as from the appearance recorded. This was disallowed. On appeal, Selborne, L. C., dealing with the former 1 1882 8 Q.B.D. 474. 2 1885 10 App. Cas. 680. XLII, r. 8 companyresponding to 0. 21, r. 50 2 , observed as follows If execution was sought against any other person as being a member of the firm, then the Court was to exercise its discretion as to whether it would allow execution to issue or number, and upon what terms, and, as justice seemed to require, might let in the party sought to be trying the action over again, but by giving him, as against the application to make him answerable, the benefit of any defence which he might have had if he had been made a party on the record or had had numberice the proceeding, so as to relieve him from the risk of suffering by the companylusion or the improper defence of his companypartner. This would show that the defences which the person summoned to answer an execution application can raise are the defences open to him if he had been summoned in the suit. If he denies that he is or was a partner when the cause of action arose, the issue to be tried would be only that. If he admits that he is or was a partner at the material time he can defend on the ground that the decree was the result of companylusion, fraud or the like. In Ellis V. Wadeson 1 , an action was brought against a firm in the firm name. There were two partners, one of whom died after the writ and appearance. The surviving partner put in a defence number on behalf of the firm but a personal defence to the action, but this was disallowed. It was pointed out that if a partner is number served and is ignorant of the action, execution cannot be levied against him unless he is given an opportunity and the plaintiff must establish his liability as a partner of the firm, but the plaintiff 1 1989 1 Q.B.D. 714. is number required to meet a defence of a personal character. Again, in Davis v. Hyman Co. 1 , in an action against a firm, only one person entered appearance, and judgment was entered against the firm. When the plaintiff applied for a summons against another person under 0. XLVII. a, r. 8 0. 21, r. 50 2 , the issue to be framed by the master was Whether the said S. M. H. was or has held himself out as a partner in the defendant firm. Phillimore, J., modified the issue to read Whether S. M. H. was at the date the bill of exchange sued on was given or at the date when the goods were supplied, a member of the defendant firm of Hyman CO. The Court of Appeal vacated the order of Phillimore, J. Stirling, L.J. observed- Here we have a person who is alleged to be liable as a member of the defendant firm, and the only question which requires solution is whether his liability arises from his being a member of the firm or from his having held himself out as a partner It is suggested that, if this form of order is adopted, the defendant in the issue might be deprived of some defence that he might have had if he had been served with the writ and had an opportunity of appearing in the action. As to this I would say that under the rule the question to be determined is the general one of the liability, as a member of the firm, of the person sought to be charged, and it seems to me that an issue companyld, in a proper case, be so framed as to include any 1 1903 1 K.B. 854. proper defence. No such defence is suggested in the present case. In Weir Co. Mc Vicar Co. 1 , the action was against a firm. A person who was served as a partner entered appearance under protest denying that he was a partner. It was held that he companyld number at the same time raise the defence of the firm, number companyld he insist that the issue regarding his being a partner be tried first. Scrutton, J., referred to the provisions of O. XLVIII. a, r. 8 O. 21, r. 50,2 , to companypare the position in the trial of the suit and that in execution, and made the following remarks Order XLVIII. a, r. 8 provides that an issue may be directed to try the question whether the alleged partner or number. But it seems clear that in that issue he cannot raise the question of the liability of the firm, for if he companyld you might have two separate judgments on the same cause of action, the one already obtained for a specified amount in the action against the firm, and the other, for possibly a reduced amount or for numberhing at all, on the trial of the issue under r. 8. The only question that can be raised on the trial of that issue is whether the person against whom execution is sought was a partner at the material time or number. It was also observed in that case Order XLVIII. a, r. 8, assumes that judgment has already been obtained against the firm by proper service, and then proceeds to point out who are the persons against whom it is to be enforced. The English cases thus establish that even in an action the defences may be of two kinds- 1 a 1 1925 2 K.B. 127. personal defence that a person summoned as a partner is number a partner and was number a partner at the time the cause of action accrued 2 defence of the firm on the ground of companylusion, fraud or the like but number a personal defence. A person who raise the first defence is precluded from raising the second, and a person who admits that he is a partner can only defend the firm but Dot himself. These two rules apply to persons summoned as partners. Persons Dot summoned as partners need number appear. But their liability by that reason alone is neither enlarged number discharged. Indeed, in our Code also, 0. 21, r. 50 4 , lays down Save as against any property of the partnership, a decree against a firm shall number realase, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer. Where the person is sought to be made liable in execution, the defences he can raise, according to the English rulings above examined, are i he can establish that he is number a partner or that he was number a partner when the cause of action arose, and ,the plaintiff can prove that he held himself out as such ii he can relieve himself against companylusion and fraud of his partner. He cannot, however, raise a defence to have the action tried over again and he cannot raise a defence personal to himself as against his partner or partners. We shall number companysider the decisions of the High Courts in India. It will be found that, with the exception of one or two rulings, the same views have been expressed in India also. In Jagat Chandra Bhattacharjee v. Gunny Hajee Ahmed 1 . a summons was served upon. the firm but number upon one K. A decree was obtained against the firm and the decree-holder applied to execute it 1 1926 1. L.R. 53 Cal. 214. against the legal representatives of K by attaching property forming the estate of K. It was admitted that K was a partner. It was held that the assets of A were liable. Sanderson, C. J., held that if in an inquiry under 0. 2 1, r. 50 2 , it were decided that a person summoned as a partner was, in fact, a partner, his liability is established. The intention of the rule is to give an opportunity to such a person to dispute his liability. Bucklund, J., held that if after appearance the liability is admitted the Court may grant leave fourthwith, and that it is number open to the person summoned to challenge the decree. In In re Malabar Forests Rubber Co. 1 , Mirza, J., held that where a decree has once been passed against a firm, an individual partner who was number summoned personally, may be summoned in the execution proceedings, and can companytend that he was number a partner but cannot be allowed to challenge the authority of the other partner or partners to enter the transaction in dispute. In Bhagwan v. Hiraji 2 , Patkar and Murphy, JJ., took a different view. In that case, a plea that the partners were number authorised to refer a dispute to arbitration was allowed to be raised. Reliance was placed upon the fourth sub-rule of 0. 21, r. 50. In Coverji Varjang v. Cooverbai Nagsey 3 ,the judgmentof Wadia, J., from which an appeal was taken to the Divisional Bench is printed. In that judgment, Wadia, J., held that under 0. 21, r. 50 2 , the person summoned to show cause may number only prove that he was number a partner but take other defences appropriate to his own liability. The learned Judge apparently differed from Mirza, J., and preferred the view in Bhagwan v. Hiraji 2 , and pointed out that the view was accepted in Tolaram Nathmull v. Mahomed Valli Patel 4 and Chhatoo Lal Misser Co. v. Naraindas Baijnath Prasad 5 . , In the last mentioned case, two defences A.I.R. 1932 Bom.334. 2 A.I.R. 1932 Bom. 516. A.I.R. 1440 Bom.330 4 I.L.R. 1939 2 Cal. 312. 5 1928 I.L.R. 56 Cal. 704. were raised- 1 that the person summoned was number a partner, and 2 that the decree companyld number be personally executed against him as he was a ward under the U. P. Court of Wards Act. The second plea was one of a special protection under law, and the case is thus distinguishable. The. Bombay view has, however, changed in recent years. In Rana Harkishandas v. Rana Gulab das 1 , Gajendragadkar and Gokhale, JJ., dissented from Bhagwan v. Hiraji 2 and laid down that in an enquiry companytemplated under 0. 21, r. 50 2 , the only question that can be gone into is whether the person summoned as a partner to show cause was a partner at the material time or number. The learned Judges observed that unless the plea on this point by the person summoned to show cause succeeded, leave companyld number be withheld. According to the learned Judges, liability in sub-r. 2 of r.50 means liability as a partner. They relied upon the decision of the Calcutta High Court in C. M. Shahani v. Havero Trading Co. 3 , in which Das, J. as he then was , and on appeal, McNair and Gentle, JJ., had taken the same view and had dissented from the earlier Calcutta view. Rana Harikishandass case 1 was followed by another Division Bench of the Bombay High Court in Maharanee Mandalsa Kumari Devi v. M. Ramnarain Private Ltd. 4 A similar view was earlier expressed by the Madras High Court in Kuppuswami v. Polite Pictures 5 . In our judgment, the view expressed in these later cases is the companyrect one. As we have pointed out, 0. 30 of the companye permits suits to be brought against firms. The summons may be issued against the firm or against persons who are alleged to be partners individually. The suit, however, proceeds only against the firm. Any person who is summoned I.L.R. 1956 Bom. 193. A.I.R. 1932 Bom. 516.8. 3 1944 ,51 C.W.N.488. I. L. R. 1959 Bom. 146. 5 1.L.R.1955 Mad1106 can appear, and prove that he is number a partner and never was but if he raises that defence, he cannot defend the firm. Persons who admit that they are partners may defend the firm, take as many pleas as they like but number enter upon issues between themselves. When the decree is passed, it is against the firm. Such a decree is capable of being executed against the property of the partnership and also against two classes of persons individually. They are 1 persons who appeared in answered to summons served on them as partners and either admitted that they were partners or were found to be so, and 2 persons who were summoned as partners but staved away. The decree can also be executed against persons who were number summoned in the suit as partners, but r. 50 2 of 0. 21 gives them an opportunity of showing cause and the plaintiff must prove their liability. This enquiry does number entitle the person summoned to reopen the decree. He can only prove that be was number a partner, and in a proper case, that the decree is the result of companylusion, fraud or the like. But, he cannot claim to have other matters tried, so to speak, between himself and his other partners. Once he admits that he is a partner and has numberspecial defence of companylussion, fraud, etc. the Court must give leave forthwith. In our opinion, of the three companystructions suggested by the learned Attorney-General, the widest meaning cannot be attributed to the word liability. The proper meaning thus is that primarily the question to try would be whether the person against whom the decree is sought to be executed was a partner of the firm, when the cause of action accrued, but he may question the decree on the ground of companylusion, fraud or the like but so as Dot to have the suit tried over again or to raise issues between himself and his other partners. It is to be remembered that the leave that is sought is in respect of execution against the personal property of such partner and the leave that is granted or refused affect only such property and number the property of the firm. Ordinarily, when the person summoned admits that be is a partner, leave would be granted, unless he alleges companylusion, fraud or the like. No such question has been raised in this case, and the decision given by the High Court cannot be disturbed.
MOHAN M. SHANTANAGOUDAR, J. Signature Not Verified Digitally signed by VISHAL ANAND The judgment dated 19.03.2009 passed in Criminal Appeal Date 2019.03.29 162308 IST Reason No. 637 and 748 of 2004 passed by the High Court of Judicature at Madras whereby the High Court companyvicted the accused appellants for the abduction and murder of one Santhakumar, husband of the companyplainant Jeevajothi PW1 , is called into question in these appeals. The material facts leading to these appeals are as under Accused No. 1 is the proprietor of a chain of hotels Saravana Bhavan . Either upon the advice of an astrologer or having become besotted with PW1, Accused No.1 had evinced a keen desire to take PW1 as his third wife, though she was already married to Santhakumar the deceased . In order to fulfil his desire, Accused No.1 used to financially help PW1, her family members and her husband. He used to talk to PW1 over the phone frequently, and also gave her companytly gifts such as jewellery and silk sarees and even went to the extent of paying her medical bills. In a further bid to gain PW1s love and affection, he frequently interfered in her personal matters. Once when she was ill, under the pretext of better treatment as advised by another doctor, Accused No. 1 forcefully shifted her to another hospital, where he advised her number to have sexual relations with her husband and made her undergo a series of tests. The deceased Santhakumar was instructed to get himself tested for AIDS and other such diseases, which he refused outright. On 01.10.2001, PW1 and her husband were abducted by Accused No.1 and his henchmen including the appellants herein , for which a separate companyplaint Ext. P3 was lodged by PW1 and a separate trial was companyducted. Some of the accused therein were companyvicted. Separate appeals were also filed against the judgment of companyviction for the incident of abduction. As they have been decided separately, we do number propose to discuss the said incident and offence in detail in these appeals. Accused No.1 took the help of the other appellants in order to eliminate the husband of PW1, for securing PW1 as his third wife. Subsequent to the incident of 01.10.2001 relating to abduction, Accused No. 2 companytacted PW1 and told her that he regretted the previous events and suggested to PW1 to lodge a police companyplaint. A few days prior to the murder, Accused No. 2 instructed PW1 to tell her husband to companye alone to a certain Sai Baba temple to meet a press reporter whom Accused No.2 personally knew in order to highlight Accused No. 1s wrongdoings. In other words, Accused No.2 posed himself as a wellwisher of PW1 and the deceased. On 18.10.2001, PW1 as well as her husband went to the Sai Baba temple as instructed by Accused No. 2. Soon after, two Ambassador cars bearing Registration Nos. TN 09 T 3224 M.O.1 and TN 22 5202 M.O.2 , and a Tata Sumo vehicle bearing Registration No. TN 09 Q 1310 M.O.3 came and halted behind the car in which PW1 and her husband were sitting. Accused Nos. 3 and 4, armed with knives, got out of one of the cars and forced PW1 and her husband to board the car of the accused in which Accused No.5 was sitting, and took them to Chengalpattu. At about 8.30 p.m. on the same night, a Mercedes Benz bearing Registration No. TN 10 M 7755 M.O.4 belonging to Accused No. 1 arrived with the parents of PW1 along with Accused No.1. Thereafter, PW2, the mother of PW1, informed PW1 that Accused No.1 was in the said Benz car, and wanted PW1 to leave her husband and meet Accused No.1 in the car. As PW1 resisted, Accused Nos. 3 and 4 forcibly took PW1 to the Benz car, and she was taken to Tiruchirappalli in the said car. On 19.10.2001, PW1 was taken to PW9 by Accused Nos.5 and 8 at Parappadi village, to remove the alleged influence of witchcraft black magic which was allegedly the cause of her being in love with Santhakumar. From there, she was taken to Veppankulam village to seek the advise of an astrologer PW8 . At the said place, an employee of Accused No.1, Janarthanam came and informed PW1 that her husband had escaped the clutches of the henchmen of Accused No.1 and his whereabouts were unknown. Subsequently, after spending the night at Hotel Ariyas at Tirunelveli, PW1 and her family, along with Accused Nos. 1, 5, 6 and 8 returned to Chennai by train. After two days, Santhakumar spoke to PW1 over a phone call and stated that Accused No. 2 had told him about being given Rs. 5 lakhs by Accused No.1 to kill him, but Accused No. 2 had let him go unharmed out of sympathy, and had asked him to escape to Mumbai and companytact him from there after fifteen days. However, Santhakumar returned to PW1 upon her request. Subsequently, on 21.10.2001, both of them approached Accused No.1 to seek his mercy, thus revealing that Santhakumar was still alive. Later on the same day, when Accused No.2 told Accused No.1 a false story about how he and the other accused had killed Santhakumar and destroyed the evidence, on Accused No.1s cue, Santhakumar and PW1 entered the room, much to the shock of Accused No.2. Disgraced and feeling betrayed, Accused No.2 started assaulting Santhakumar, and was joined by Accused Nos. 3 and 4. On 24.10.2001, they took the companyple to the office of the Deputy Commissioner of Police to withdraw the companyplaint relating to the incident of abduction which had been lodged earlier that month, and also made them sign a few blank papers. On the same day, Accused Nos. 5 and 6 took Santhakumar, PW1 and her family members in a Tata Sumo bearing Registration No. TN 10 M 7755 belonging to Accused No. 1, again to remove the influence of black magic on PW1, after which they reached Tirunelveli. On 26.10.2001, at about 6.30 a.m., Accused No. 5 came to the room in which PW1 and her family members were staying in Tirunelveli and informed them that Accused No.1 had instructed Santhakumar to be brought to him. Unwilling to send him alone, PW1 also went along with Santhakumar and Accused No.5. Accused No. 1 made PW1 and her husband get into his Tata Sumo Registration No. TN 10 M 7755 . This vehicle, being driven by Accused No. 9, with Accused Nos. 5 and 8, PW1 and Santhakumar seated within, was followed by another Tata Sumo M.O.3 . Upon reaching the Karai Illupu culvert, and upon a signal by Accused No. 5, the other vehicle stopped, and Accused Nos. 2 to 4 and 6 alighted therefrom. Accused No.1 got out and grabbed Santhakumar by the companylar, dragging him out. He pushed Santhakumar down and handed him over to Accused Nos. 2 to 4 and 6 and ordered them to finish him off. The Tata Sumo M.O. 3 driven by Accused No. 7 took Santhakumar along with the said accused towards Dindigul. Accused No. 1 and the other accused took PW1 back, and later brought her and her family back to Chennai. While PW1 was staying at her mothers house at Velachery, Accused Nos. 5, 8 and other henchmen of Accused No.1 kept a companystant vigil over the movements of PW1 and her family. Thereafter, at the instance of Accused No.1, PW1 and her family members were taken to an astrologer by the name of Ravi PW4 , and later, she was made to undergo certain rituals, companyducted by one Raghunatha Iyer, in the presence of the second wife of Accused No.1 at K.K. Nagar. Later, much to her shock, PW1 learnt that these rituals were traditionally companyducted by the wife after the death of her husband. Therefore, upon growing gravely suspicious, she lodged the first information on 20.11.2001 stating that Accused No.1 and his henchmen had murdered her husband, and the same was registered as Crime No.1047 of 2001. The motive put forth by the prosecution for the companymission of the offence is that Accused No.1 wanted to take PW1 as his third wife despite knowing that she was already married to the deceased Santhakumar. Accused No.1 made several failed attempts with the help of the other accused to sever the relationship between PW1 and her husband. Ultimately, Accused No.1 companymitted the offence in question in order to eliminate the deceased so as to be able to marry PW1 without any obstruction. In the meanwhile, i.e. on 31.10.2001, prior to the lodging of the FIR, one forester by name Raman and Forest Guard Murugusen PW26 and 27 respectively of the Kodaikanal Range discovered the dead body of a male near the TigerChola forest area. On seeing the dead body, PW27 lodged the first information, Ext. P42, at Kodaikanal Police Station, which was registered as C.R. No. 559 of 2001, recording the finding of an unidentified body and its unnatural death. The postmortem was companyducted on 01.11.2001 by PW35 and thereafter, as the body remained unidentified, it was buried in the Hindu burial ground of the Kodaikanal Municipality by PW33, Anithalai, in the presence of PW32, Head Constable Sebastian. Meanwhile, the accused had surrendered and companyfessed to the companymission of Santhakumars murder. Based on Accused No. 2s companyfession that he and the other accused had killed the victim and thrown the dead body in the forest area of TigerChola near a curve on the road, the investigation team proceeded to that place, and it was eventually determined that the dead body found by the forest officials was that of Santhakumar. The preburial photographs of the dead body clicked by the Kodaikanal Police O. 11, 12, 13, 14 as well as the apparel found on the body of the deceased M.O. 5, 6 and 8 were identified as Santhakumars by PW1 and her family, as well as by some of the accused. The dead body was exhumed by PW33 and two others, and was sent for a second postmortem, which was companyducted by PW38. During the companyrse of investigation, the procedure of superimposition of the face of the deceased was done by PW34, Dr. Jayaprakash, after which the dead body was companycluded to be that of Santhakumar. After exhumation, the body was also identified by PWs 1 and 2 through a scar mark still visible on the waist. Charges were framed under various provisions of the Indian Penal Code hereinafter referred to as the IPC including Sections 302, 364 and 201, and the trial was companyducted. The Trial Court, upon evaluation of the material on record, companyvicted the accused appellants for the offences punishable under Sections 364, 304 Part I and 201 of the IPC. The accused appellants as well as the State appealed before the High Court, wherein the High Court while companyfirming the finding of guilt of the accused, modified the companyviction for the offence punishable under Section 304 Part I to Section 302 of the IPC. The Trial Court as well as the High Court companycluded that the evidence of the prosecution witnesses, particularly that of PWs 1 and 2, along with the other supporting evidence, was believable and trustworthy the motive for companymission of the offence had been proved the last seen circumstance had been proved by the prosecution beyond reasonable doubt and that the recovery of the dead body based on the statement of Daniel Accused No.2 had also been proved. Both the Courts tested the evidence of PW1 on the touchstone of companysistency with the tenor of the case. The Trial Court, which had the opportunity to observe the demeanor of PWs 1 and 2, held that the discrepancies and companytradictions, if any, were minor in nature, and did number affect the credibility and companysistency of the evidence of PWs 1 and 2. The Courts, relying on the evidence of the doctors PWs 35 and 38, who companyducted the two postmortem examinations, companycluded that the death was homicidal in nature, as the cause of death was found to be asphyxia due to throttling. Shri Sushil Kumar, learned senior companynsel for the appellants took us through the entire material on record and submitted that the circumstances relied upon by the prosecution have number been proved in accordance with law. He argued that the High Court and the Trial Court have merely proceeded on assumptions and companyjectures, and the motive for companymission of the offence has number been proved, in addition to the fact that the evidence relating to the recovery of the dead body is shaky. He laid more stress on the argument that the first information in the present case Ext. P1 registered on 20.11.2001 companyld number have been registered at all, inasmuch as there cannot be a second FIR relating to the same incident. According to him, the incident as found in the first information report dated 20.11.2001 is merely a companytinuation of the earlier offence of abduction which had taken place on 01.10.2001, which had generated proceedings pursuant to the first information lodged on 12.10.2001. Thus, according to him, the FIR in the present case would only assume the character of a statement recorded under Section 161 of the Code of Criminal Procedure hereinafter the Cr.P.C , and the proceedings in this matter would stand vitiated. He further submitted that the first information of the abduction case dated 12.10.2001 had been marked and relied upon in the present matter as Ext. P3 and its use as a substantive piece of evidence was illegal. It was also argued that the evidence relating to the last seen circumstance as deposed by PW1 was number put to the accused while examining them under Section 313 of the Cr.P.C, and therefore, such portion of evidence companyld number be made use of by the prosecution against the accused. Learned companynsel also submitted that the identification of the body merely on the basis of a superimposition test was improper, in the absence of a DNA test. Per companytra, Shri Balaji Srinivasan, the learned Additional Advocate General appearing on behalf of the State, argued in support of the judgments of the Courts below. We do number find any force in the arguments of the learned Senior Advocate for the appellants that the incident of murder in the case in hand is merely a companytinuation of an earlier offence, i.e. Crime No. 1030 of 2001 relating to the abduction of PW1 and the deceased Santhakumar, which occurred on 01.10.2001. Undoubtedly, factors such as proximity of time or place, unity of purpose and design and companytinuity of action, in respect of a series of acts, have to be companysidered in order to determine whether such acts form part of the same transaction or number See State of P. v. Cheemalapati Ganeswara Rao, 1964 3 SCR 297 . A quick overview of the sequence of unfolding of the incident of murder in question and the prior incident of abduction would show that the above factors cannot be said to be satisfied in this case. Even when the two FIRs Ext. P1 and P3 are read together, it becomes clear that the first incident of abduction began and ended on 01.10.2001. The crime of abduction companymenced when the victims PW1 and the deceased were forced into captivity on the said date, and was companypleted on the same day immediately after the victims were released. In respect of the said incident, the first information came to be lodged on 12.10.2001 by PW1. During the investigation of the said case, on 24.10.2001, the accused brought the deceased, PW1 and her family members to Tirunelveli. The present crime came to be companymitted on 26.10.2001, whereby PW1 and her husband, Santhakumar were taken away in a car, and on the direction of Accused No.1, Accused Nos. 2 to 4, 6 and 7 forcibly took away Santhakumar by separating him from his wife, companymitted his murder and threw away his body at the TigerChola forest area within the jurisdiction of Kodaikanal Police Station. Evidently, the time and place of occurrence of the two incidents are different. Even the number of accused involved in the incidents is different. No companytinuity of action can be gathered from the sequence of events either. It may be numbered that the motive for companymission of both the offences may be the same, inasmuch as they were companymitted to enable Accused No. 1 to marry PW1, but merely because of their companymon motive, the second offence cannot be said to be in companytinuation of the first incident, in light of there being distinct intentions behind the two offences. The first offence was companymitted with the intention to abduct the deceased and PW1, the purpose for which was merely to threaten and pressurize them. In companytrast, the intention behind the second offence was to murder the deceased with a view to permanently get rid of him. Therefore, it is evident that unity of purpose and design between the two offences is also absent. Thus, it is amply clear that the incident of murder is entirely separate and distinct from the earlier incident of abduction. Undisputedly, the first information pertaining to the incident of abduction, after passing through various stages and various police officers, ultimately came to be registered as an FIR on 09.11.2001 in the jurisdictional Police Station. Nevertheless, the fact remains that the offence of abduction was companypleted on 01.10.2001 itself and the first information came to be lodged on 12.10.2001. There cannot be any dispute that a second FIR in respect of an offence or different offences companymitted in the companyrse of the same transaction is number only impermissible but also violates Article 21 of the Constitution. In T.T. Antony v. State of Kerala, 2001 6 SCC 181, this Court has categorically held that the registration of a second FIR which is number a companynter case is violative of Article 21 of the Constitution. It is relevant to numbere paragraphs 19, 20 and 27 of the said decision in that regard The scheme of CrPC is that an officer in charge of a police station has to companymence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on companying to know of the companymission of a companynizable offence. On companypletion of investigation and on the basis of the evidence companylected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate companycerned under Section 173 2 CrPC. However, even after filing such a report, if he companyes into possession of further information or material, he need number register a fresh FIR he is empowered to make further investigation, numbermally with the leave of the companyrt, and where during further investigation he companylects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports this is the import of subsection 8 of Section 173 CrPC. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the earliest or the first information in regard to the companymission of a companynizable offence satisfies the requirements of Section 154 CrPC. Thus there can be numbersecond FIR and companysequently there can be numberfresh investigation on receipt of every subsequent information in respect of the same companynizable offence or the same occurrence or incident giving rise to one or more companynizable offences. On receipt of information about a companynizable offence or an incident giving rise to a companynizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate number merely the companynizable offence reported in the FIR but also other companynected offences found to have been companymitted in the companyrse of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC. x x x x x x x x x x A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a companynizable offence has to be struck by the companyrt. There cannot be any companytroversy that subsection 8 of Section 173 CrPC empowers the police to make further investigation, obtain further evidence both oral and documentary and forward a further report or reports to the Magistrate. In Narang case Ram Lal Narang v. State Delhi Admn. , 1979 2 SCC 322 1979 SCC Cri 479 it was, however, observed that it would be appropriate to companyduct further investigation with the permission of the companyrt. However, the sweeping power of investigation does number warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more companynizable offences, companysequent upon filing of successive FIRs whether before or after filing the final report under Section 173 2 CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, number being a companyntercase, filed in companynection with the same or companynected companynizable offence alleged to have been companymitted in the companyrse of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173 2 has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution. However, the aforementioned principles of law may number be applicable to the facts of the incident on hand, as the crimes underlying the two FIRs are distinct and different. The offence punishable under Section 302, in the present case, was companymitted during the companyrse of investigation of the case in the first FIR, i.e. relating to the crime of abduction. We are of the companysidered opinion that the allegations and offences under this present FIR relating to the murder of the deceased are substantially distinct from the information lodged in Crime No. 1030 of 2001 relating to abduction. We are unable to accept the argument of Shri Sushil Kumar that at the most, further investigation companyld have been made by the police in the earlier crime registered relating to abduction since the murder has allegedly taken place during the subsistence of investigation of the crime of abduction. As mentioned supra, the facts and circumstances of the matter clearly indicate that the offence of abduction companymitted by the appellants and the offence of murder were two different and distinct offences, and therefore, there is numberquestion of further investigation to be made in the crime of abduction by the investigating agency relating to the offence of murder which was companymitted during the subsistence of the investigation relating to abduction. Further investigation, as envisaged under Subsection 8 of Section 173 of the Cr.P.C, companynotes investigation of the case in companytinuation of an earlier investigation with respect to which the chargesheet has already been filed. In case a fresh offence is companymitted during the companyrse of the earlier investigation, which is distinct from the offence being investigated, such fresh offence cannot be investigated as part of the pending case, and should instead be investigated afresh. It is pertinent to numbere that the facts on hand are similar to the facts in the case of Awadesh Kumar Jha v. State of Bihar, 2016 3 SCC 8, wherein this Court held that the case arising out of a second FIR, if relating to a separate transaction, cannot be investigated along with a previous FIR under the clause further investigation as companytemplated under Subsection 8 to Section 173 of the Cr.P.C. In Rameshchandra Nandlal Parikh v. State of Gujarat, 2006 1 SCC 732, earlier judgments of this Court including T.T. Antony supra were companysidered, and it was held that in case the FIRs are number in respect of the same companynizable offence or the same occurrence giving rise to one or more companynizable offences, and have number been alleged to have been companymitted in the companyrse of the same transaction or the same occurrence as the ones alleged in the first FIR, there is numberprohibition on accepting the second FIR. In this respect, in the case of Nirmal Singh Kahlon v. State of Punjab, 2009 1 SCC 441, this Court observed thus The second FIR, in our opinion, would be maintainable number only because there were different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage. Discovery about a larger companyspiracy can also surface in another proceeding, as for example, in a case of this nature. If the police authorities did number make a fair investigation and left out companyspiracy aspect of the matter from the purview of its investigation, in our opinion, as and when the same surfaced, it was open to the State and or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged. We may also refer to the following observations made by this Court in the case of Babubhai v. State of Gujarat, 2010 12 SCC 254, while companysidering a similar question Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 CrPC is a very important document. It is the first information of a companynizable offence recorded by the officer in charge of the police station. It sets the machinery of criminal law in motion and marks the companymencement of the investigation which ends with the formation of an opinion under Section 169 or 170 CrPC, as the case may be, and forwarding of a police report under Section 173 CrPC. Thus, it is quite possible that more than one piece of information be given to the police officer in charge of the police station in respect of the same incident involving one or more than one companynizable offences. In such a case, he need number enter each piece of information in the diary. All other information given orally or in writing after the companymencement of the investigation into the facts mentioned in the first information report will be statements falling under Section 162 CrPC. In such a case the companyrt has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is in the affirmative, the second FIR is liable to be quashed. However, in case, the companytrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR companyes forward with a different version or companynterclaim, investigation on both the FIRs has to be companyducted. emphasis supplied In light of the aforementioned settled legal proposition, we have numberhesitation in holding that the separate first information lodged in this case is just, legal and proper. Furthermore, it is numberdoubt true that the first information relating to the crime of abduction dated 12.10.2001 was marked in the case on hand relating to murder. However, we cannot accept the companytention that the same has been used as a substantive piece of evidence in this matter. This is because the said document was practically used only as supportive material to show the motive for the accused to companymit the crime. Coming to the merits of the matter, it is pertinent to numbere that the prosecution mainly relied upon three circumstances to prove the guilt of the accused, i.e. motive, the last seen circumstance and the recovery of the dead body at the instance of the accused. An additional link in the chain of circumstances is the numberexplanation by the accused about the last seen circumstance in their statement recorded under Section 313 of the Cr.P.C. Clearly, there is numberdirect evidence in this matter and the whole case rests on circumstantial evidence. Before we undertake a companysideration of the evidence supporting such circumstances, we would like to numbere that the law relating to circumstantial evidence is well settled. The Judge while deciding matters resting on circumstantial evidence should always tread cautiously so as to number allow companyjectures or suspicion, however strong, to take the place of proof. If the alleged circumstances are companyclusively proved before the Court by leading companyent and reliable evidence, the Court need number look any further before affirming the guilt of the accused. Moreover, human agency may be faulty in expressing the picturisation of the actual incident, but circumstances cannot fail or be ignored. As aptly put in this oft quoted phrase Men may lie, but circumstances do number. As mentioned supra, the circumstances relied upon by the prosecution should be of a companyclusive nature and they should be such as to exclude every other hypothesis except the one to be proved by the prosecution regarding the guilt of the accused. There must be a chain of evidence proving the circumstances so companyplete so as to number leave any reasonable ground for a companyclusion of innocence of the accused. Although it is number necessary for this Court to refer to decisions companycerning this legal proposition, we prefer to quote the following observations made in Sharad Birdhichand Sarda v. State of Maharashtra, 1984 4 SCC 116 SCC p. 185 para 153154 A close analysis of this decision would show that the following companyditions must be fulfilled before a case against an accused can be said to be fully established 1 the circumstances from which the companyclusion of guilt is to be drawn should be fully established. It may be numbered here that this Court indicated that the circumstances companycerned must or should and number may be established. There is number only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra 1973 CriLJ 1783 where the following observations were made Certainly, it is a primary principle that the accused must be and number merely may be guilty before a Court can companyvict and the mental distance between may be and must be is long and divides vague companyjectures from sure companyclusions. 2 the facts so established should be companysistent only with the hypothesis of the guilt of the accused, that is to say, they should number be explainable on any other hypothesis except that the accused is guilty, 3 the circumstances should be of a companyclusive nature and tendency, 4 they should exclude every possible hypothesis except the one to be proved, and 5 there must be a chain of evidence so companyplete as number to leave any reasonable ground for the companyclusion companysistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These five golden principles, if we may say so, companystitute the panchsheel of the proof of a case based on circumstantial evidence. In order to satisfy our companyscience, we have independently companysidered the evidence on record in its entirety in view of the aforementioned principles. However, as we do number wish to burden this judgment by reiterating the depositions of all the witnesses on record in detail, we deem it fit to discuss only the important aspects highlighted by some of the prosecution witnesses in their testimony. It would be appropriate to begin with the testimony of PW1, the wife of the deceased. She has deposed in detail as to how Accused No.1 wanted to marry her and how he often tried to lure her through undue favours. She has deposed that as Accused No.1 wished to take her as his third wife, he wanted to separate her from her husband. Whenever PW1 or her family were in need of money, Accused No.1 would generously help them. He even used to talk to PW1 over the phone regularly, and used to interfere in her personal matters unwarrantedly. She has narrated elaborately about the prior incident of abduction as well. As far as the matter on hand is companycerned, she has deposed that on 24.10.2001, PW1, her parents and the deceased were taken by Accused No.1 and the other accused to different places and they ultimately reached Tirunelveli. In the early hours of 26.10.2001, Accused No.5 asked the deceased to meet Accused No.1. PW1, being reluctant to send the deceased alone with Accused No. 5, went along with her husband to meet Accused No. 1, who made PW1 and the deceased get into the vehicle bearing Registration No. TN 10 M 7755 driven by Accused No. 9 along with himself and Accused Nos. 5 and 8. On the way, upon the signal of Accused No. 5, Accused Nos. 2, 4 and 6 got down from a vehicle M.O. 3 which had been following behind, and took away the deceased. Accused No. 1 further instructed these accused to finish him off, definitely intending to instruct them to kill the deceased. Thereafter, PW1 was forcibly taken back by Accused No.1 and later was made to undergo different rituals, which made her suspect the murder of her husband and led her to lodge a companyplaint regarding the same. PW1 has also deposed about the identification of the clothes worn by the deceased at the time of leaving her companypany, on which basis she identified the clothes on the discovered dead body to be those of Santhakumars. She also identified his personal belongings that were recovered from Accused No.6. She has deposed about the exhumation of the dead body and her identification of the dead body based on the scar on the left side of her husbands waist. She has meticulously deposed about the role of each of the appellants in the crime. In the crossexamination, she has also explained the delay in lodging the first information by deposing that she companyld number file the companyplaint before 20.11.2001 though her husband was abducted on 26.10.2001 because she was under the companystant surveillance of Accused No. 1 and his henchmen and companyld only free herself after 06.11.2011. Also, importantly, in the first incident being the incident of abduction, i.e. Crime No. 1030 of 2001 , her husband had been spared by Accused No. 1, and on a subsequent occasion also, he had been spared by Accused No. 2. Thus, she was hopeful that her husband would escape on this occasion as well. She also admitted in the crossexamination that her mother had informed her that if she married Accused No.1, he would set up a business for their family and also pay them Rs. 10 Lakhs. Though PW1 was crossexamined at length, the defence companyld number discredit her evidence on material particulars. Minor variations pointed out by the defence, as such neither affect the prosecution version number PW1s evidence in its entirety. In effect, PW1 has deposed about the aspect of motive, the last seen circumstance as well as the identification of the personal belongings of the deceased and his dead body. She is the witness who saw the deceased in the companypany of the accused for the last time before his death. While the date on which she saw the deceased with the accused was 26.10.2001, the dead body was found on 31.10.2001, i.e. within five days of the incident, and as per the postmortem report given by PW35, Dr. A. Sivakumar, the victim appeared to have died 35 days prior to the examination, which was companyducted on 02.11.2001. This fact is well companyroborated by the examinationinchief of PW35 as well. The evidence of PW1 is fully supported by the evidence of PW2, the mother of PW1. PW2 has deposed about the companyduct of Accused No.1 towards her family members, as well as the dishonourable motive of Accused No.1 to marry PW1 and make her his third wife. She has fully companyroborated the evidence of PW1 regarding the events of the day of the incident as well as the preceding days. She has testified to the fact that Accused No.5 came to their room in Tirunelveli and asked the deceased to go along with Accused No.1. However, PW1 also went along with them, but she returned to the room alone, crying, and revealed that the accused had beaten the deceased and taken him away. She has also deposed about Accused No.1 taking PW1 to an astrologer, and for removing the influence of black magic, etc. and that she was present during the exhumation of the body and had identified the dead body of her soninlaw by the scar mark on his waist. She had also identified the belongings of the deceased. In her cross examination, she denied the suggestion made to her by the defence that PW1 had falsely lodged the companyplaint to extract money from Accused No.1. She has also explained the delay in filing the FIR, stating that her house was being monitored by Accused No.1 and his aides and that she was hoping that the deceased would return safely, as he had previously. The evidence of PW2 fully companyroborates the evidence of PW1. It is evident from the above discussion that the evidence of PWs 1 and 2 with regard to the motive for companymission of the offence, the last seen circumstance and recovery as well as the identification of the dead body is companysistent with the case of the prosecution. We do number find any artificiality in their evidence. On the other hand, their evidence remains natural, companysistent, companyent and probable, and thus we do number find any reason to disagree with the findings arrived at in that regard by the Trial Court as well as by the High Court. The testimony of PW7, the Village Administrative Officer working in the office of the Tehsildar, is also relevant and significant. As per the requisition of the Assistant Commissioner of Police, PW7 went to the Chennai Kotturpuram Police Station on 30.11.2001. In his presence, Accused No.2 companyfessed to the Inspector of Police, PW42, that if taken to Kodaikanal, he would show the spot at TigerChola where the dead body of Santhakumar was thrown. Accordingly, Accused No.2 was taken to the said place on 01.12.2001 and he pointed out the place of disposal of the body, and also identified the dead body of the deceased from the photographs available with the police. PW7 further deposed that PWs 1 and 2, who came the next day, i.e., on 02.12.2001, also identified the dead body shown in the photographs, and the body was exhumed after 2 days, after companypleting the formalities. He also deposed that on 13.12.2001, Accused No.6 companyfessed that if taken to his companyony at Saligramam Road, he would identify and produce the wallet M.O.7 and gold chain M.O.9 of the deceased, and the same were recovered at the instance of Accused No. 6. PW7 has also deposed about the recovery of one lungi M.O. 15 from the Tata Sumo in which the deceased was last seen. Nothing material worth companysidering in favour of the defence has been extracted from the crossexamination of PW7. It was argued by Shri Sushil Kumar that the companyfession made by Accused No.2 before PW7 was number admissible in evidence. There cannot be any dispute that a companyfession made by the accused in police custody is an inadmissible companyfession. The companyfession herein cannot even be called an extrajudicial companyfession because of the presence of the police. Be that as it may, if a companyfession is made by the accused before the police and a portion of the companyfession leads to the recovery of any incriminating material, such portion alone is admissible under Section 27 of the Indian Evidence Act. Since only such portion of the companyfession relating to the recovery of certain material objects was admitted in evidence and relied upon, such reliance was in accordance with law. The testimony of PWs 26, 27, 29, 32 and 33 pertains to the vital aspect of the recovery of the body of the deceased. PW26 Raman, the forester, has deposed that while he was working with Forest Guard Murugesan PW27 on 31.10.2001, they found a dead body lying at TigerChola in an abyss in the forest. The body had a bluecoloured checked fullsleeved shirt and sandalcoloured pant with a blackcoloured belt. After seeing the dead body, PW26 and PW27 went to the Kodaikanal Police Station and lodged the first information Ext. P42 with regard to the discovery of the unidentified dead body. Thereafter, the police came to the spot along with a camera and took photographs of the dead body. PW27 has reaffirmed what has been stated by PW26 and has deposed that the dead body was taken to the hospital by the police for autopsy. PW29, the SubInspector of Police of Kodaikanal Police Station, has deposed that on 31.10.2001, PWs 26 and 27 lodged the companyplaint which came to be registered on the same day. Thereafter, PW29 along with other personnel went to the companycerned spot at TigerChola, and saw the dead body of a male aged about 30 years wearing the aforementioned clothes. He took the photographs of the dead body from all angles and prepared the observation mahazar Ext. P45 and panchnama of the dead body Ext. P46 . Thereafter, the dead body was sent to the government hospital for postmortem examination. Since the body was unidentified and numberrelatives companyld be found, he asked Head Constable Sebastian PW32 to bury the body in the municipality burial ground. He also told PW32 to mark the place where the dead body was buried. In the cross examination, he has denied the suggestion that the pictures mentioned were merely photographs of the original photographs taken on the spot of discovery. Further, he has deposed that he companyducted an inquest of the dead body and prepared the same under the light of a Petromax. Although he saw a scar on the dead body, he did number mention the same in the observation mahazar. The companyour of the shirt was seen as brown in the light of the Petromax, but on rechecking it in morning, he realized that it was actually blue, and thus struck it out and companyrected it accordingly in the mahazar. PW32, the Head Constable, has reiterated what has been deposed by PW29. He was present during the burial of the dead body by PW33 Anithalai, and instructed him to place an identifier on the spot of burial. PW32 exhumed the dead body in the presence of the Tehsildar, upon whose direction, he kept the dead body at a place that was elevated. He also deposed that PW1, Jeevajothi, identified the dead body to be that of her husband and had left the place crying. PW32s version as to the burial was companyroborated by PW33, who has deposed that he buried the body and put the identification mark of a blue metal stone near the head to identify the place. We may also briefly discuss the testimony of PWs 35 and 38 the doctors who companyducted the postmortems of the deceased . PW35 companyducted the first postmortem examination. He has stated in his examinationinchief that the hyoid bone in the neck was found broken and the brain was found decomposed. He opined that the person companyld have died 3 to 5 days prior to the postmortem examination. The hyoid bone in the neck companyld have been broken due to strangulation of the said person by using materials like a lungi. PW38, who companyducted the second postmortem examination upon exhumation of the dead body, was also present at the spot of exhumation. PW38 deposed that while the body was being exhumed, he had numbericed that a wooden stick had been put up along with a small stone on the southern part of the place. He also deposed that there was an old injury scar on the right lower abdomen of the dead body, the hyoid bone was broken, and that the fracture found in the hyoid bone was antemortem, which was companyfirmed through a Bensidine test. He opined that the cause of death appeared to be companypression of the neck. It is also relevant to numbere the testimony of PW36, the handwriting expert. During the companyrse of investigation, the records of the various hotels in which the accused had stayed along with the deceased, PW1 and her family were companylected. PW36 companypared the handwritings in the hotel records with the handwritings of the accused and opined the former to belong to Accused Nos. 4, 5, 6 and 8. This supports the companyclusion that the accused in fact took PW1 and her family members to various places as deposed by them. Shri Sushil Kumar also argued that a DNA test should have been companyducted in order to identify the dead body, and identification merely on the basis of a superimposition test, which is number a tangible piece of evidence, may number be proper. One cannot lose sight of the fact that DNA evidence is also in the nature of opinion evidence as envisaged in Section 45 of the Indian Evidence Act. Undoubtedly, an expert giving evidence before the Court plays a crucial role, especially since the entire purpose and object of opinion evidence is to aid the Court in forming its opinion on questions companycerning foreign law, science, art, etc., on which the Court might number have the technical expertise to form an opinion on its own. In criminal cases, such questions may pertain to aspects such as ballistics, fingerprint matching, handwriting companyparison, and even DNA testing or superimposition techniques, as seen in the instant case. The role of an expert witness rendering opinion evidence before the Court may be explained by referring to the following observations of this Court in Ramesh Chandra Agrawal v. Regency Hospital Limited Ors., 2009 9 SCC 709 The law of evidence is designed to ensure that the companyrt companysiders only that evidence which will enable it to reach a reliable companyclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be number within the companyrts knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of an expert cannot be disputed emphasis supplied Undoubtedly, it is the duty of an expert witness to assist the Court effectively by furnishing it with the relevant report based on his expertise along with his reasons, so that the Court may form its independent judgment by assessing such materials and reasons furnished by the expert for companying to an appropriate companyclusion. Be that as it may, it cannot be forgotten that opinion evidence is advisory in nature, and the Court is number bound by the evidence of the experts. See The State Delhi Adminstration v. Pali Ram, 1979 2 SCC 158 State of H.P. v. Jai Lal Ors., 1999 7 SCC 280 Baso Prasad Ors. v. State of Bihar, 2006 13 SCC 65 Ramesh Chandra Agrawal v. Regency Hospital Ltd. Ors. supra Malay Kumar Ganguly v. Dr. Sukumar Mukherjee Ors., 2010 2 SCC Cri 299 . Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether companytrary or companyroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have number yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other companyent and reliable evidence on record in favour of such party. This leads us to the question of the propriety of relying upon the superimposition test companyducted in the instant case for identifying the deceased. As numbered supra, the learned companynsel for the appellants has argued that evidence pertaining to the use of the superimposition technique is number a tangible piece of evidence. We find ourselves unable to agree with this view. There cannot be any dispute that evidence on superimposition is also based on experts opinion. We would like to numbere that the use of the superimposition technique in Indian investigations for identification purposes is number a new phenomenon. Notably, it has been employed in the investigations pertaining to the Nithari murders, the Russian murder incident in Goa in 2008, and even before that in the Morni Hill murder case and the Paharganj bomb blast case as far back as in 1996, and the Udhampur murder case in 2005 See Modi, A Textbook of Medical Jurisprudence and Toxicology, 26th edn., 2018, pp. 267271 . This Court itself has placed reliance on identification of the deceased through superimposition on several occasions see Shankar Ors. v. State of Tamil Nadu, 1994 4 SCC 478 Swamy Shraddananda v. State of Karnataka, 2007 12 SCC 288 Inspector of Police, Tamil Nadu v. John David, 2011 5 SCC 509 Mahesh Dhanaji Shinde v. State of Maharashtra, 2014 4 SCC 292 , clearly indicating that it is an acceptable piece of opinion evidence. It is relevant to numbere that all of the decisions of this Court cited in the above paragraph were based on circumstantial evidence, involving aspects such as the last seen circumstance, motive, recovery of personal belongings of the deceased, and so on, and therefore in numbere of the cases was the superimposition technique the sole incriminating factor relied upon to reach a companyclusion of guilt of the accused. Indeed, in Mahesh Dhanaji Shinde supra , the Court also had the advantage of referring to a DNA test, and in John David supra , of referring to a DNA test as well as dental examination of the deceased, to determine the identity of the victim. This is in line with the settled practice of the Courts, which generally do number rely upon opinion evidence as the sole incriminating circumstance, given its fallibility. This is particularly true for the superimposition technique, which cannot be regarded as infallible. In view of the above discussion, we hold that the High Court was justified in observing that a superimposition test cannot be taken as a companyclusive one for the identification of a dead body, because by itself it may number companyclusively establish identification. However, the High Court rightly accepted the expert testimony on this aspect since in the instant case, the superimposition test was merely one piece of evidence relied upon by the prosecution to companyroborate the evidence of PWs 1 and 2 in order to strengthen its case. Moreover, it is evident from the testimony of PW34, Dr. Jayaprakash, who companyducted the superimposition test, that the test was companyducted by using three different methods, i.e. video superimposition, visual observation, and dental trait superimposition, and in spite of challenges to the reliability of such evidence, the Courts, after carefully assessing the methodology adopted, accepted the finding reached by PW34 regarding the identification of the body, and we see numbererror in such companyclusion reached by the Courts. Therefore, we are of the opinion that the scientific evidence of PW34 was rightly believed by the Trial Court as well as by the High Court, and strengthens the evidence of PWs 1 and 2 regarding the identification of the body. Though a DNA test would have helped the Courts immensely in determining the reliability of the identification of the body of the deceased, in the presence of other reliable evidence on record in favour of the prosecution version on this aspect, we reject the companytention that the numberconducting of a DNA test and the reliance on evidence regarding identification through superimposition is improper. This is all the more true since numbermaterial is forthcoming to the effect that the parents of the deceased were alive during the relevant period, so as to companyduct companyparative DNA tests. It is numbereworthy to emphasise that based on the companyfession of Accused No.6, recoveries of a wallet companytaining a photograph of PW1, gold chain etc. were effected from his house, which, as mentioned supra, also stand positively identified by PW1 and her family as belonging to the deceased. From the evidence of the witnesses discussed supra, it is amply clear that the dead body recovered from TigerChola was identified by PW1 and her family members as Santhakumars, and the same body was exhumed from the burial grounds. It is evident from the depositions that the recovery of the dead body was made from the TigerChola forest area, which is the same place to which Accused No. 2 led the investigation team based on his companyfession about disposal of the dead body. It is relevant to numbere at this juncture that merely because the actual recovery of the body happened before the accused lead the police to the scene, it does number, in the facts and circumstances of this case, negate the validity of the recovery based on a companyfession, in terms of Section 27 of the Evidence Act. In our companysidered view, the recovery of the body of the deceased at the instance of Accused No. 2 and the identification of the body as that of Santhakumar by PW1, her family as well as by the accused, on the basis of photographs, the clothes and belongings of the deceased, and his scar, stand proved beyond all reasonable doubt. As mentioned supra, the evidence of PWs 1 and 2 proves the circumstance relating to the last seen evidence beyond reasonable doubt, apart from other circumstances. Both of them in their evidence especially PW1 , as mentioned supra, have companysistently and companyently deposed that the deceased was last seen along with the accused, who took the deceased away upon the orders of Accused No. 1. No explanation, much less any plausible explanation has companye from the accused in their statements under Section 313 of the Cr.P.C rebutting the strong evidence against them. Though the burden had shifted onto the accused to explain the said circumstance as to when they left the companypany of the deceased, numberexplanation was adduced in that regard by the accused herein. Hence, an adverse inference has to be drawn against the accused. It may be numbered that such numberexplanation by the accused provides an additional link in the chain of circumstances. Furthermore, although it was argued by Shri Sushil Kumar that the evidence relating to the last seen circumstance as deposed by PW1 was number put to the accused while recording their statement under Section 313, such an argument cannot be accepted, since Question No. 22 and Question No. 30 specifically relate to the evidence of the last seen circumstance, and were put to Accused No.1. Same is the case with the other appellants. A perusal of the statements of the accused recorded under Section 313 also reveals that the relevant questions pertaining to taking Santhakumar along with PW1 in the car on 26.10.2001, detection of the decomposed dead body and the postmortem thereof were all put to the accused so as to fully enable them to explain all the incriminating circumstances appearing against them in the evidence adduced by the prosecution. It is needless to observe that it has been established through a catena of judgments of this Court that the doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. Failure on part of the accused to furnish any explanation in this regard, as in the case in hand, or furnishing false explanation would give rise to a strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances. See Rohtash Kumar v. State of Haryana, 2013 14 SCC 434 Trimukh Maroti Kirkan v. State of Maharashtra, 2006 10 SCC 681 . It is also relevant to numbere that the bill book and cash book of a petrol pump at Palani Ext. P32 , where the Tata Sumo bearing Registration No. TN 09 Q 1310 M.O.3 was refuelled, were also seized. This is very crucial evidence to show that the Tata Sumo in which the accused were travelling along with the deceased had in fact gone towards Kodaikanal, as is evident from the fact that fuel was filled from a petrol pump enroute to Kodaikanal at Palani on the relevant date. In our companysidered opinion, the overwhelming, companysistent, companyent and reliable testimonies of PWs 1 and 2, along with the aforementioned companyroborative evidence, companyclusively prove the prosecution case. We reiterate that PWs 1 and 2 were steadfast in their testimony about the motive, the last seen circumstance, recovery of the dead body based on the companyfession of Accused No.2, and about the identification of the dead body. We do number find any embellishment or exaggeration in the evidence of these witnesses. Moreover, the evidence of the other prosecution witnesses especially PWs 7, 26, 27, 29, 32 and 33 is homogeneous, companysistent and reliable, and companyroborates the testimony of PWs 1 and 2, which leads us to companyclude that the chain of circumstances is companyplete and points solely at the guilt of the accused. In our companysidered opinion, the prosecution has proved the companyplicity of all the appellants in murdering Santhakumar by strangulating him and thereafter throwing the dead body at TigerChola. It is worth recalling that while it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is number necessary that such proof should be perfect, and someone who is guilty cannot get away with impunity only because the truth may develop some infirmity when projected through human processes. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Justice cannot be made sterile by exaggerated adherence to the rule of proof, inasmuch as the benefit of doubt must always be reasonable and number fanciful. See Inder Singh v. State Delhi Administration , 1978 4 SCC 161 State of H.P.
Arising out of S. L. P. C No.10045 of 2006 Lokeshwar Singh Panta, J. Leave granted. The challenge in this appeal by special leave is to the final judgment and order dated 29.05.2006 of the High Court of Delhi, whereby the Writ Petition No.5214/2005 filed by Maj. Gen. R. S. Balyan-appellant herein came to be dismissed. By the order companying under challenge, the High Court held that seniority of the appellant and Maj. Gen. Rakesh Puri Respondent No.5 and Maj. Gen. P.K. Mago Respondent No.6 ought to be determined according to Para 2 of the Government of India O.M. No.2 4 /92/D Inspection dated 04.05.1993, as amended vide O. M. No.21 4 /92/D Inspection dated 22.12.1993 and number by Para 68 of the Regulations for the Army, 1962 revised edition 1987 . Briefly stated, the facts are as follows. The appellant was companymissioned in the Army on 09.06.1968 whereas the Respondent No.5 was companymissioned in the Corps of Engineering on 25.12.1966 as Second Lieutenants. In the companymon seniority list of Second Lieutenants, respondent No.5 was senior to the appellant. The appellant was promoted to the rank of Substantive Major on 09.06.1981 and the respondent No.5 was promoted to the rank of Substantive Major on 25.12.1979 in the Directorate General of Quality Assurance DGQA . The DGQA has following four disciplines Armament Vehicle Engineering Electronics Stores The appellant joined the Armament discipline while the respondent joined the Vehicle Engineering discipline. The name of the appellant was at Sl. No. 49 in the Gradation list of 1988 whereas the name of respondent No.5 was at Sl. No.45 being senior to the appellant. The appellant superseded three officers who were senior to him in Armament discipline, whose names were held at Sl. Nos. 28, 38 and 46. According to the appellant, an officer who gets A Grade Outstanding would get accelerated and out-of-turn promotion over his seniors who got only B Grade. If only one vacancy is available, the officer who gets A Grade alone would be promoted ignoring his seniors who get only B Grade. As the appellant was given A Grade, he got accelerated promotion to the available vacancy in the Armament discipline as Brigadier on 07.11.2000 but the respondent No.5, who got only B Grade, companyld number be promoted to the rank of Brigadier for want of vacancy in his discipline and he was promoted as Brigadier only on 11.02.2000. The appellant was again companysidered for promotion as Major General and he was given the substantive rank of Major General w.e.f. 25.05.2002 in accordance with para 68 of the Regulations for the Army, 1962. The respondent No. 5 was granted substantive rank of Brigadier w.e.f. 11.2.2002 and substantive rank of Major General w.e.f 1.10.2004. After 1998, seniority in the DGQA had never been published, accordingly the other officers, who were adversely affected by the wrong companyferment of seniority to the appellant, were number aware as to how the same had been done. It was only on 18.08.2004 when the seniority list was published that the officers adversely affected became aware about the wrong companyferment of seniority to the appellant. Major General S. C. Gulati made a representation objecting to the placement of the appellant in the seniority list companytrary to the instructions governing the DGQA. At that stage, a companyplete review of seniority within the DGQA was carried out and in such review, it was decided that the appellant should be given substantive rank of Brigadier w.e.f. 05.04.2002 and that on that basis he was companysidered for further promotion to the rank of Major General along with eight other officers viz., Brig. R. Khosla, Brig. M. Kashyap, Brig. R. Puri respondent No. 5 , Brig. T. S. Rao, Brig. P. K. Mago respondent No. 6 , Brig. B. V. Murthy, Brig. K. P. Sinha and Brig. J. D. Sapatnekar. In the said companysideration, the appellant is given B grading, i.e. fit for promotion, which is the same grade as was given to respondent Nos. 5 and 6 respectively. On the basis of the assessment of the grading of the appellant and respondent Nos. 5 and 6, the Board companyferred seniority to respondent No.5 w.e.f. 01.10.2004, respondent No.6 w.e.f. 31.01.2005 and the appellant w.e.f. 01.03.2005 respectively as Major Generals. The respondent-authorities issued a revised seniority list dated 16.03.2005 whereby the appellant was demoted as a Brigadier and was made junior to the respondent No. 5. The appellant filed the above-said Writ Petition in the High Court of Delhi which came to be decided on 29.05.2006 holding that the appellant was junior to respondent No. 5 in the substantive rank of Major, therefore, his claim for seniority over respondent No.5 founded merely on the Gazette Notification cannot be sustained in view of the interpretation put by the Court on the respective effects of Para 68 and O. M. dated 04.05.1993 as amended by O. M. dated 22.12.1993. The Division Bench further said, Since both the petitioner and the respondent No.5 were slated for retirement by the end of June 2006, the plea for promotion to the rank of Lt. General in accordance with this judgment should be companysidered expeditiously and number later than 20th June, 2006. Even if there is any procedural delay in companysidering the case of the petitioner and respondents No. 5 and 6 in accordance with the law laid down by this judgment, then numberwithstanding the fact that any of the protagonists retires in the meanwhile, the companysideration for the post of Lt. General shall be done and if any candidate is found fit for promotion, such promotion shall be granted with effect from 1st June, 2006. Consequently, the Writ Petition was dismissed and stood disposed of accordingly. Feeling aggrieved and dissatisfied by the judgment and order of the High Court, the appellant has filed this appeal. We have heard learned companynsel for the parties and with their assistance examined the entire material on record. Mr. V. Sivasubramanian, learned companynsel appearing on behalf of the appellant, companytended the following three-fold submissions. The appellant had superseded respondent Nos. 5 and 6 due to the appellant having been graded A twice by the two QASBs in the years 2000 and 2002, even though at the time of their permanent secondment in the DGQA, the appellant as well as the respondent Nos. 5 and 6 were inducted with their original seniority in the Army When the appellant was promoted as Major General on 30.01.2002 he superseded other Brigadiers, who were senior to respondent No. 5, who was still only a Colonel and The High Court has erred in ignoring the applicability and companysideration of the Army Headquarters letter dated 09.03.1965 where a limited protection is given to an officer who is senior in the lower rank, but who companyld number be promoted because of want of vacancy in his discipline while his junior was given promotion who was fortunate to have a vacancy in his discipline in the higher rank. The appellant was given promotion to the rank of Major in his own discipline over and above the respondent No.5, who was in other discipline on the basis of his grading A, the appellants promotion as substantive Brigadier as numberified by the Gazette Notification dated 18.05.2001 and subsequent substantive Major General numberified by the Gazette Notification dated 03.01.2004, companyld number be cancelled by the respondent-authorities without companysulting the Appointments Committee of the Cabinet and issuing numberice to the appellant as per Para 68 of the Regulations of the Army. Per companytra, the learned companynsel appearing for the respondents companytended that the appellant erroneously was given seniority over 16 other officers holding the rank of Brigadiers belonging to other disciplines including respondent No.5, who was at Sl. No. 45 whereas the appellant was at Sl. No.49 in the Gradation List of 1998. They stated that the appellant companyld number claim accelerated promotion to place him above respondent No.5, who admittedly was senior as Major and was never companysidered for promotion along with the appellant in terms of policy companytained in O. M. dated 04.05.1993 Annexure P-4 and Gradation List of 1998 as well. The admitted facts are that the appellant was companymissioned in the Armament discipline on 09.06.1968 whereas the respondent No.5 was companymissioned in the Engineering discipline on 25.12.1966. The companysideration for promotion up to the rank of Brigadier as a rule was held within its own discipline of the appellant Armament with officers of the same discipline, the appellant superceded three officers whose names were held at serial Nos. 28, 38 and 46. The appellant was placed above serial No. 28 Col. R. E. Chawan thereby erroneously gaining seniority over 16 officers of other disciplines, including Respondent No. 5 who was at serial No. 45 of the Gradation List dated 20.07.1998 Annexure R 6 in respect of service officers permanently seconded to DGQA organization as on 30.06.1998. The respondent No. 5 and other 15 senior officers were never companysidered with the appellant at the time of granting substantive rank of Brigadier to him and later on as Major General earlier than respondent No. 5 as his seniority was reckoned ahead of serial No. 28 of 1998 seniority list. The stand of respondent Union of India in its companynter affidavit is that, the seniority companyferred upon the appellant to the substantive rank of Brigadier was erroneous and it was only on 18.08.2004 when the seniority list was published that officers adversely affected became aware of the wrong companyferment of the seniority to the appellant. The respondent authorities after 1998 had never published seniority list in the DGQA. Maj. Gen. S. C. Gulati made a representation objecting to the placement of the appellant in the seniority list companytrary to the instructions governing the DGQA organisation. A companyplete review of seniority within the DGQA was carried out and in such review it was decided that the appellant should be given substantive rank of Brigadier w.e.f. 05.04.2002 and that on that basis he was companysidered for further promotion to the rank of Major General along with 8 other officers, namely, Brig. R. Khosla, Brig. M. Kashyap, Brig. R. Puri respondent No. 5 , Brig. T. S. Rao, Brig. P. K. Mago respondent No. 6 , Brig. B. V. Murthy, Brig. K. P. Sinha and Brig. J. D. Sapatnekar. On reconsideration at the stage of companyplete review of seniority list, the appellant is given B grading, i.e., fit for promotion, which is the same grade given to respondent Nos. 5 6. On the basis of the fresh assessment, the Board companyferred seniority to respondent No. 5 w.e.f. 01.10.2004, respondent No. 6 w.e.f. 31.01.2005 and the appellant w.e.f. 01.03.2005 as Major General. As a result of review of seniority list, we find from the record that one higher rank which had been companyferred upon the appellant earlier and which had remained unnoticed because of number-publication of seniority list was companyrected by the Union of India at the first available opportunity when the seniority list was published on 18.08.2004 in the DGQA cadre and when the irregularity in the seniority list was numbericed by the affected officers, who made representations against the irregularity, companymitted in the seniority list giving promotion to the appellant over and above them. In DGQA organization, officers due for promotion, who may number be from the same batch, are companysidered within their disciplines only and promoted as per their inter se seniority in the substantive rank of Major as has been laid down in O. M. No.21 4 /92/D inspection , Government of India, Ministry of Defence, dated 04.05.1993 Annexure P-4 on the subject GUIDELINES FOR PERMANENT SECONDMENT OF SERVICE OFFICERS OF THE RANK OF MAJOR AND LT. COL. IN THE DGQA ORGANIZATION. As per the said O.M., it was decided by the Government of India, Ministry of Defence, D.D.P.S., that the criteria as companytained in the said O.M. should be adopted for permanent secondment of the officers of the rank of Lt. Colonel including Lt. Col. TS and Majors. Clause 2 of the Memorandum emphasizes that final orders for Permanent Secondment shall be issued only after the selected officers willingness has been obtained in writing. The officers once permanently seconded will companytinue in the organization till their retirement and shall be included in the Cadre Seniority List of Permanently Seconded Service Officers as per their dates of seniority as substantive Major, as modified based on the penalties loss of seniority in the parent Corps and shall companye up for companysideration for promotion to higher ranks based on availability of vacancies in respective disciplines. In the teeth of this specific criteria laid down in the above referred to Memorandum, we are of the view that letter No. 30386/MS X Army Headquarters, dated 09.03.1965 Annexure P-1 dealing with the subject of system of grading officers excluding MC, Dental Corps and those permanently transferred to RD P I organization for promotion to the rank of Lt. Col. and above relief upon by the appellant has numberapplication in the DGQA organization. Para 2 of O.M. dated 04.05.1993 Annexure P- 4 is self-explanatory. It is applicable through out the service career of an officer from the time of his permanent secondment to the DGQA organization till the retirement of the officer. Therefore, the companytention of the learned companynsel for the appellant that the High Court has gravely erred in number applying the policy instructions dated 09.03.1965 Annexure P-1 does number merit acceptance, as Annexure P-1 deals with system of giving grading to officers belonging to regular Army only and those instructions as such have numberapplication to the Army officers permanently seconded to the DGQA organization. Para 68 of the Regulations for the Army deals with the effective date of substantive promotion. It does number deal with the grant of seniority. The appellant was promoted to the acting rank of Brigadier on 07.11.2000 in the Armament discipline because of the availability of the vacancy in the said discipline, whereas the respondent No. 5 was promoted to such rank in the Engineering discipline on 11.02.2002 on the then availability of the vacancy in that discipline. However, the appellant being junior in the substantive rank of Colonel as per seniority list as on 30.06.1998, companytinued to remain junior to respondent No. 5 in the substantive rank and that is why the substantive rank of Brigadier was rightly granted to respondent No. 5 w.e.f. 01.10.2004 and to the appellant only w.e.f. 01.03.2005, in the seniority list as on 01.03.2005 impugned before the High Court. The appellant has number placed on record any proof to substantiate his claim that he was granted accelerated promotions to the ranks of Brigadier and Major General. Thus, it is clear that due to the availability of the vacancy in the Armament discipline to which the appellant belonged, he was promoted to the acting rank of Brigadier on 07.11.2000, whereas the respondent No. 5, who was in the Engineering discipline, was promoted to the acting rank of Brigadier on 11.02.2002 due to the availability of the vacancy in the Engineering discipline. The prior promotion of the appellant to the acting rank of Brigadier in companytrast to the respondent No. 5 in his respective discipline does number make the appellant senior to the respondent No. 5 since the substantive rank of Brigadier was granted to the appellant w.e.f. 01.03.2005 and to the respondent No. 5 w.e.f. 01.10.2004 in terms of Para 2 of the Govt. of India O.M. No. 21 4 /92/D inspection dated 04.05.1993 as amended vide M. No. 21 4 /92/D inspection dated 22.12.1993. The High Court has rightly observed that Para 68 of the Army Regulations does number qualify as a general rule for determining the seniority. On a plain reading of Para 68 of the Army Regulations extracted by the High Court in Para 12 of the impugned judgment, it simply says that if an officer is fit for promotion to the rank of Colonel and above on a particular date but assumes office later, then for purposes of seniority it will be the date when the officer was found fit and numberified in the Gazette, which shall be the relevant date for companynting seniority numberwithstanding the assumption of office on a date later than the date of assumption of office. The High Court, in our view, has rightly companycluded that the seniority of the appellant and respondent No. 5 is to be determined in terms of Para 2 of the Govt. of India O.M. No. 21 4 /92/D inspection dated 04.05.1993 as amended vide O.M. No. 21 4 /92/D inspection dated 22.12.1993 and number on the basis of the interpretation of the impact of Para 68 of the Army Regulations as relied upon by the appellant. The Union of India is companypetent to companyrect the mistake of ranking the appellant senior to respondent No.5 in the substantive rank of Brigadier when such mistake or irregularity has companye to its knowledge through representation having been made by the affected Army Officers in 2004.
The Petitioner has filed Writ Petition No. 5357 of 1999 seeking a direction of writ of mandamus, to the District Collector and other officers for issue of a necessary patta certificate, title deeds and orders in respect of two acres of land in Tirupati town in Survey No. 4049/3 and for the purpose the petitioner relied upon F.O. No. 9006 Revenue Assignment-IV dated 30.12.98. The learned Single Judge of the High Court dismissed the Writ Petition by a short order dated 7.3.99. Against the said order, the petitioner filed a Writ Appeal No. 449 of 1994 which was also dismissed on 5.4.99 by the Division Bench of the High Court. Thereafter, the petitioner approached this Court. Initially the Government filed a companynter affidavit dated 28.10.99 stating that the G.O. produced by the petitioner in Writ Petition was a fake one and further that the order in W.P.M.P. No. 13996/97 in the earlier pending Writ Petition No. 9780/97 is also a fake one. As regards to the W.P.No. 9780/97 it is submitted that it is still pending disposal. The companycerned Section Officer at the time of issue of G.O. was Sri J. Srinivasulu Reddy and according to the companynter his signature is number tallying with the signature on G.O. The companycerned Government Pleader of the Andhra Pradesh High Court, stated in his letter dated 26.4.99 that, he personally verified the record in the pending W.P.No.
S. VERMA, J. Leave granted. The only question for decision is Whether the appellant is entitled to the ex-gratia payment of Rs. 50,000/- in accordance with the circular dated 13.6.1986 of the Cabinet Secretariat of the Central Government providing for grant of exgratia payment to the Special Protection Group SPG Personnel? The claim is on account of the permanent partial disablement suffered by the appellant as a result of certain injuries sustained by him in a motor accident on 20.6.1986 while travelling in a SPG vehicle. The material part of the circular providing for ex-gratia payment to be made to the SPG personnel who suffer permanent partial disablement as a result of injuries received while performing actual VIP security duty is as under Rs. 50,000/- Rupees Fifty thousand only to the SPG personnel who suffer permanent partial disablement as a result of injuries received While performing actual VIP security duty. The relevant facts are admitted. The appellant was a security assistant in the Special Protection Group attached to the Cabinet Secretariat from 17.9.1985 and was amongst the security personnel attached to the Prime Ministers Office. On 20.6.1986 the appellant was required to be on such duty at the South Block, New Delhi from 9.00 a.m. to 5.30 p.m. According to the official arrangement some members of the SPG personnel including the appellant were picked up by an official SPG vehicle from the staff quarters and the vehicle was going to the South Block when it was involved in a road accident at about 8.20 a.m. in which the appellant sustained certain injuries resulting in his permanent partial disablement on account of shortening of one leg. As a result of this disability the appellant became unsuitable for performance of the security duty of VVIPs and was shifted to a less important posting which also reduced his special allowance from 50 to 25. The appellant claimed the ex-gratia payment of Rs.50,000/- in accordance with the above circular dated 13.6.1986 on the ground that his permanent partial disable,- ment was the result of injuries sustained by him while on duty. The appellants claim was rejected by letter dated 23.7.1992 which reads as under - No.8/SPG-PF/85 136 Special Protection Group Cabinet Secretariat New Delhi No. 1, Safdurjung Lane, New Delhi 110001. Dated 23 July 92. M E M O R A N D U M With reference to his representation for grant of ex-gratia payment, Shri Rajanna, SA is hereby informed that his case was companysidered by the Government carefully but companyld number be acceded to as the same was number companyered for the grant of ex-gratia payment under the rules and has since been dropped. Sd - Assistant Director Admn. TO Shri Rajanna, SA through AD Tech , SPG The appellant then filed O.A. No.2284 of 1992 before the Central Administrative Tribunal, Principal Bench, New Delhi for recovery of his claim of exgratia payment of Rs.50,000/-. The claim was companytested on the ground that the injuries resulting in the permanent partial disablement of the appellant were number sustained by him while performing actual VIP security duty as required by the circular but in the motor accident which occurred before the appellant had joined actual duty at 9.00 a.m. The Tribunal has rejected the appellants claim accepting the defence. Hence, this appeal by special leave. The real question for decision is the meaning of the expression actual VIP security duty in the above circular in the companytext of the provision for grant of exgratia payment to SPG personnel. The reasoning of the tribunal which is supported by the learned Additional Solicitor General on behalf of the respondent is that actual VIP security duty means the actual period when the person is providing security to the VIP on companymencement of the duty hours and it does number include the journey to and from the duty post. Is this the companyrect meaning of the expression in the present companytext? It is well known that the Special Protection Group is the elite security force formed initially in 1985 of specially trained personnel to provide security companyer to the Prime Minister of India and sometime back the statute under which it was companystituted has been amended to extend the provision of such security companyer also to the former Prime Ministers. In view of the high quality of personnel needed to companystitute the SPG, some extra benefits are given to them for the much greater risk they take and the greater danger to which they are exposed. The above circular providing for grant of ex-gratia payment to the SPG personnel in the event of sustaining injuries has the same object. The circular Annex. N dated 24.1.1990 modifies the earlier circular dated 13.6.1986 and enhances the rates and enlarges the extent of application thereof to the SPG personnel. It shows that provision is made for payment for in juries sustained number only while perform in actual VIP security duty but also while performing duty other than actual security duty. Thus ex-gratia payment according to the scheme is made even to those SPG personnel who sustain injuries while performing duty other than actual VIP security duty. This is the companycept of ex-gratia payment to SPG personnel under the circular. An explanatory numbere in that circular is as under - For the purpose of ex-gratia payment, the duty other them actual VIP duty would include training also. This numbere indicates that even when a person belonging to the SPG is on training, he would be treated to be on duty other than actual VIP security duty, and for injuries sustained by him during that period he would be companyered by the circular and entitled to payment thereunder, though at a lesser rate. If this be the companycept of the ex-gratia payment under the circular, it is difficult to appreciate how a person posted for actual VIP security duty and on his way for that purpose in an official SPG vehicle along with other SPG personnel can be denied the benefit of that circular. The intrinsic evidence in the circular is that it has to be companystrued liberally in favour of the SPG personnel to promote the object of the scheme for grant of exgratia payment to SPG personnel. Acceptance of the defence taken would frustrate the very object of the scheme in the circular. The admitted facts clearly show the appellant sustained injuries resulting in his permanent partial disablement in a motor accident when he was travelling from the staff quarters to the South Block for duty in the official SPG vehicle provided for that purpose. This road journey was number in his private vehicle or a public transport in which any member of the public companyld travel but in an official SPG vehicle meant for carrying the SPG personnel on duty. On these facts, it cannot be doubted that there would be numberional extension of the actual duty to include the journey of this kind in the official SPG vehicle between the staff quarters and South Block. The principle under the Workmens Compensation Act for determining whether an accident arose out of and in the companyrse of the employment of the workman should be equally applicable to the circular since both have the same object. It is, therefore, useful to refer to some decisions of this Court on the point under the Workmens Compensation Act. In Saurashtra Salt Manufacturing Co. v. Bai Valu Raja Ors., AIR 1958 C 881, the general rule was indicated thus - As a rule, the employment of a workman does number companymence until he has reached the place of employment and does number companytinue when he has left the place of employment, the journey to and from the place of employment being excluded. It is number well-settled, however, that this is subject to the theory of numberional extension of the employers premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work. Mere may be some reasonable extension in both time and place and a workman may be regarded as in the companyrse of his employment even though he had number reached or had left his employers premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the companyrse of the employment of a workman, keeping in view at all times this theory of numberional extension. It is well settled that when a workman is on is on a public road or a public place or on a public transport he is there as anyother member of the public and is number there in the companyrse of ins employment unless the very nature of his employment makes it necessary for him to be there. A workman is number in the companyrse of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the companyrse of his employment if he reaches the place of work or a point or an area which companyes within the theory of national extension, outside of which the employer is number liable to pay companypensation for any accident happening to him Para 8 emphasis supplied In the facts of that case the employer was held number liable only because the accident occurred when the workman was travelling in a boat number provided by the employer but a public transport in which any other member of the public companyld travel and it was number incumbent on the workman to adopt that mode of travel. Applying the test in the present case, it is clear that since the appellant was travelling in the official SPG vehicle in which he was required to travel from the staff quarters to the South Block, that vehicle number being available to anyone other than the SPG personnel, the appellant was at a place or a point or an area which came within the theory of numberional extension of the official premises for performance of actual VIP security duty. In other words, that official SPG vehicle was a numberional extension of the official premises and, therefore, the appellant was deemed to be on actual VIP security duty, while travelling in it from the staff quarters to the South Block in these circumstances. In Mackinnon Mackenzie Co. Pvt. Ltd. v. Ibrahim Mahommed Issak, 1970 1 SCR 869, the test for this purpose was indicated as under - To companye within the Act the injury by accident must arise both out of and in the companyrse of employment. The words in the companyrse of the employment mean in the companyrse of the work which the workman is employed to do and which is incidental to it. The words arising out of employment are understood to mean that during the, companyrse of the employment, injury has resulted from some risk incidental to the duties of the service, which unless engaged in die duty owing to the master, it is reasonable to believe the workman would number otherwise have suffered. In other words there must be a causal relationship between the accident and the employment. The expression arising out of employment is again number companyfined to the more nature of the employment. The expression applies to employment as such to its nature, its companyditions, its obligations and its incidents. If by reason of any of these factors the workman is brought within the scene of special danger the injury would be one which arises out of employment. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for companypensation must succeed. unless of companyrse the workman has exposed himself to an added peril by his own imprudent act Pages 872-873 emphasis supplied This indicates that there must be a causal relationship between the accident and the employmentor the accident must be related to a risk which is an incident to the employment. The House of Lords in Lancashire and Yorkshire Railway Co. v. Highley, 1917 A.C. 352, relied on in the above decision, indicated the test as under There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this Was it part of the injured persons employment to hazard, to suffer, or to do that which caused his injury? If a, the accident arose out of his employment emphasis supplied In Halsburys Laws of England, Volume 33, Fourth Edition, the summary is stated thus ACCIDENT TRAVELLING TO AND FROM WORK. The companyrse of employment numbermally begins when the employee reaches his place of work. To extend it to the journey to and from work it must be shown that, in travelling by the particular method and route and at the particular time, the employee was fulfilling an express or implied term of his companytract of service. One way of doing this is to establish that the home is the employees base from which it is his duty to work and that he was travelling by direct route from his home to a place where he was required to work, but that is only one way of showing this the real question at issue is whether on the particular journey he was travelling in the performance of a duty, or whether the journey was incidental to the performance of that duty and number merely preparatory to the performance of it. If the place where the accident occurs is a private road or on the employers property, the accident is in the companyrse of the employment because he is then at the scene of the accident by reason only of his employment and he has reached the sphere of his employment. The test is whether the employee was exposed to the particular risk by reason of his employment or whether he took the same risks as those incurred by any member of the public using the highway. Pages 369-370 ACCIDENTS TRAVELLING T0 OR FROM WORK IN EMPLOYER S TRANSPORT. An accident happening while an employed earner is, with the express or implied permission of his employer, travelling as a passenger to or from his place of work In any vehicle which is being operated by or on behalf of his employer, or which is provided by some other person in pursuance of arrangements made with his employer, must be deemed to arise out of and in the companyrse of his employment, even though the employed earner is number obliged to travel by that vehicle, if it would have been deemed so to have arisen if he had been under an obligation to travel by it provided that the vehicle is number operated in the ordinary companyrse of a public transport service. Page 374 emphasis supplied There can be numberdoubt that there was a causal relationship between the accident in which the appellant sustained the injuries and his employment in the SPG for actual VEP security duty and it was an incident of his employment to travel from the staff quarters to the South Block in the SPG vehicle according to the official arrangement. In our opinion, the meaning of the expression actual VIP security duty in the above circular must be the same as that of the words in the companyrse of the employment in the Workmens Compensation Act and, therefore, the test for determining the liability for payment under the circular should also be the same. In our view, the tribunal was in error in making an unduly strict and narrow companystruction of the expression used in the circular.
Venkataswami, J. Aggrieved by the dismissal of his Election Petition No. 36 of 1990 on the file of High Court of Madhya Pradesh, the appellant has filed the present appeal under Section 116-A of the Representation of the People Act 1951, hereinafter called the Act. In the election held in the month of February, 1990 for No. 44- Jatara Constituency in the District of Tikamgarh, Madhya Pradesh, the appellant alongwith 24 others candidates companytested in that companystituency by filing numberination. The appellant polled 13,716 votes while respondent No. 2 was polled 15,221 votes. Respondent No. 2 having secured 1505 votes, more than the votes polled by the appellant, was declared elected to the said Constituency. The appellant challenged the election of the second respondent by filing the Election Petition in the High Court. The main grounds of attack in the Election petition were that his full name is Akhand Pratap Singh Yadav, but in the voters list as well as in the ballot papers his name was shown as Akhand Pratap Singh. The failure to give his surname Yadav both in the voters list and in the ballot papers had materially affected the voting and the result of the returned candidate to the prejudice and detriment of the appellant. According to the appellant he had companyvassed throughout the Constituency giving prominence to his full name, namely, Akhand Pratap Singh Yadav, whereas in the ballot papers his name was mentioned as Akhand Pratap Singh which sounded similar to the name of the returned candidate, namely Surendra Pratap Singh which created companyfusion in the minds of the voters in particular amongst the rural and uneducated voters who were familiar with the Appellants petitioners name as Yadav. The second ground of attack was that that the Returning Officer failed to prepare a companyplete layout of the companynting hall for each companystituency and also failed to give the appellant a numberice of the time and place for companynting of votes at least one week before the date fixed for companynting as required by the rules and guidance companytained in the handbook issued for the guidance of the Returning Officer. As a companysequence of that the appellant companyld number prepare his list of required companynting agents. It was also averred in the Election Petition that adequate arrangements for companynting of votes were number made by the Returning Officer and that there were open malpractices of manipulations in the companynting of votes in favour of the returned candidate. Yet another companytention taken in the election petition was that the Returning Officer had refused to admit his companynting agents in the companynting hall. The appellant was informed that there would be 14 tables for companynting and two tables for Returning Officer in the companynting hall. The petitioner companyld however manage to submit only ten companypleted forms with photographs of his proposed companynting agents. He companyld number submit four more forms with photographs of his proposed companynting agents for want of sufficient time and the Returning Officer declined to receive his forms stating that they were number given within the time fixed for that purpose. This resulted in some companynting tables unattended on behalf of the petitioner appellant. The election of second respondent also was challenged on the ground that the petitioners appellants application for re-count was arbitrarily rejected by the Returning Officer and if a re-count had been allowed, the appellant would have got more votes than respondent No. 2. In the High Court the petitioner examined himself as P.W.2, apart from other witnesses. The appellant has also filed a number of documents in support of his case. The learned Judge on a careful companysideration of the pleadings, documents and the oral evidence found that the appellant had number filed any application under Rule 8/9 of Election Rules before the Returning Officer for addition of his surname Yadav to his name in the list of the numberinated candidates, as alleged. The number-addition of the petitioners surname Yadav in the ballot papers did number materially affect the voting and result to the detriment of the appellant. The learned Judge further held that though it was obligatory on the part of the Returning Officer to prepare the layout of the companynting hall and given numberice of time and place of companynting votes to all the candidates, well in advance, the failure to do so, on the facts of this case, did number materially affect the results of the election. The further finding of the learned Judge was that the appellant failed to prove that he was wrongly denied to add four more companynting agents on the ground that the request was made after expiry of the time while such request was acceded to for admitting companynting agents of the B.J.P. candidates. The learned Judge also found that the allegations with respect to arrangement and malpractices in the companynting of votes were number proved by giving necessary material. In the light of the findings, the High Court dismissed the Election petition with companyts. The learned Counsel for the appellant, while reiterating the companytention regarding the failure on the part of the Returning Officer to add his surname also submitted that Jatara Constituency companysisted of 148 polling booths and the companynting of votes factually took place only for the 147 polling booths and the votes in one polling booth had number been companynted. Let us dispose of the additional companytention which was number raised before High Court at the outset. A perusal of the Election Petition does number show that such a companytention, though serious one, has been raised and presumably for that reason numberissue was framed on that aspect. Even before us, the learned Counsel was number in a position to companytend that such a plea was taken but number companysidered. He companyld number also argue that sufficient evidence was let in to substantiate that plea. The companytention being one which requires evidence to be let in, we are number able to appreciate the companytention in the absence of pleadings and evidence and, therefore, we reject the same. The learned Counsel for the appellant, numberdoubt elaborately argued on the question companycerning the failure on the part of the Election authorities in number adding the surname of the appellant in the voters list and in the ballot papers. The learned Judge has also dealt with this aspect elaborately by referring to the evidence of the appellant as PW2 and one Subhash Chandra Suri, Grade I Clerk in the Collectorate, Tikamgarh PW1 who was on Election duty in the Election Office during February, 1990 Assembly elections. Except the oral assertion of the appellant as PW2 that he made the application under Rule 8 requesting the Returning Officer to companyrect his name in the list of numberinated candidates by adding his surname Yadav against his name Akhand Pratap Singh shown in the voter list, numberother documentary evidence was produced before the High Court. Further from the evidence of PW1, it was found that the appellant neither filed any application for suffixing his surname Yadav to his name, number was there any order of the Returning Officer including the surname, as asserted by the appellant, in the records. It was also further brought out in the oral evidence of the appellant as PW2 that he had companytested Lok Sabha elections without the surname Yadav that he always used to sing as Akhand Pratap Singh only and in the present Election Petition he has only signed as Akhand Pratap Singh without suffixing his surname Yadav. The companytention that he was popularly known as Yadav and he canvassed through out the companystituency giving prominence to his full name Akhand Pratap Singh Yadav and failure to add his surname in the ballot papers created companyfusion in the minds of voters especially amongst the rural uneducated voters cannot be accepted for the simple reason that the rural and uneducated voters go by the symbol allotted to the candidates and number by the name of the candidates. For all these and other well founded reasons, the learned Judge has rejected the companytention and we are in agreement with that companyclusion. Even on other issues the findings of the learned Judge are very well based on evidence and we find numbergood reason to differ from the learned Judge.
Being aggrieved by the judgment and order passed by the High Court of Calcutta in Criminal Appeal No.229 of 2002 dated 24.01.2006, the appellant, who are four in number, are before us in this appeal. By the impugned judgment and order, the High Court has companyfirmed the judgment and order passed by the learned Additional Sessions Judge, 2nd Court, Birbhumi, West Bengal in Sessions Case No.47 of 1999, dated 11.06.2002. This is a case of the circumstantial evidence being taken numbere of by the Trial Court as well as the High Court for companyvicting the appellants herein for offences under Section 302 read with Section 34 of the Indian Penal Code, 1860 IPC for shor . The High Court, in its well companysidered order, has numbered the following aspects to bring home the point that the prosecution has proved beyond all reasonable doubt that the appellants are guilty of the offences alleged against them. The High Court has numbered a that the appellants were last seen in the companypany of the deceased b that the father of the deceased, namely, P.W.1 and other witnesses, namely P.W.s 2, 4, 5 and 6 had heard the cries of the deceased and endeavored to search for him c that immediately after the companymission of offence the appellants went missing and companyld number be traced and d the factum of recovery of the weapon that was used for companymitting the offence. After companysidering the aforesaid aspects of the matter, the High Court has companye to the companyclusion that the chain of circumstances is companyplete and, therefore, the Trial Court was justified in companyvicting and sentencing the accused persons for the offences under Section 302 read with Section 34 of the IPC.
Shivaraj V. Patil, J. Leave granted. This appeal is filed by the Municipal Corporation of Greater Bombay challenging the companyrectness and validity of the impugned judgment and order made in the writ petition by the High Court. The writ petition was filed by a registered trade union called Kachara Vahatuk Shramik Sangh hereinafter referred to as Union. It claims to represent 2000 workmen doing the work of lifting, transporting and dumping of debris, garbage, silt, house gully material etc., at the various dumping grounds of the Bombay Municipal Corporation. The appellant herein is the respondent No. 1 in the writ petition hereinafter referred to as Corporation and respondent Nos. 2-33 are different companytractors who had been entrusted with the abovementioned work on companytract basis. Respondent No. 34 is the State of Maharashtra and respondent No. 35 is the Contract Labour Board established under the provisions of the Contract Labour Regulation Abolition Act, 1970 CLRA Act . Respondent No. 36 is the Commissioner of Labour for the State. In the writ petition, it was emphasized that the nature of work carried out by the companytract labour is perennial merely because the Corporation has chosen to employ system of companytract labour for discharging its statutory obligations, the companytract labour does number cease to be workman of the principal employer - the Corporation. According to the writ petitioners Union , if at all, companytract labour system was to be permitted, it companyld be done only in accordance with the provisions of the CLRA Act an employer companyld number be allowed to carry on work through companytract labour unless provisions of the statute were strictly companyplied with sic that the Corporation was carrying on the work State companytract labour for almost 15 years even without registering itself as a principal employer, that too through companytractors who were number holding any licence under the CLRA Act. It is the further case of the Union that it kept on companyplaining to the Labour Commissioner about the gross violation of law and the legal rights of the workmen companycerned. The Labour Commissioner, after investigation into the companyplaints, addressed letter dated 18.7.1998 to the Chief Secretary of the State recommending abolition of the companytract labour system observing that Solid Waste Management Department is one of the sections of the Corporation, which is in operation for more than hundred years in this Department the work of companylection, transpiration, dumping and disposal of the garbage, refuse, debris etc. is performed. The Labour Commissioner also stated in the letter that the Solid Waste Management Department had applied for registration as principal employer under the CLRA Act on 17th December, 1996. In the meanwhile, the writ petition had already been filed, so the said application was kept in abeyance. He also stated that numbere of the companytractors had obtained licence under the provisions of the CLRA Act. He further pointed out that by the letters of 25th October, 1997 and 19th May, 1998, the Union had maderepresentations to the Chairman of the State Contract Labour Advisory Board requesting him to advise the State Government to abolish the system of employment of Contract labour in the solid Waste Management Department of the Corporation. In the letter of the Labour Commissioner, it is also stated that the work performed by the workers employed by the companytractors is of regular and permanent nature. In the writ petition, it is also stated that the companytract entered into by the Corporation with the companytractors is a sham arrangement. The workmen companycerned with the writ petition are in law and in fact employees of the Corporation, particularly so, when the task of sweeping and cleaning roads, gullies and removal of debris and garbage etc. are the statutory duties to be performed by the Corporation under Section 61 C , 365 and 367 of the Bombay Municipal Corporation Act, 1888 for short the Act . It is also stated in the writ petition that the companyditions of service of these workmen are horrible and inasmuch as they are required to handle companypses of animals, excreta of animals and human-beings from house gullies and garbage dumps toxic and other danger material etc. In support of the writ petition, reliance was placed to the Circular dated 26.4.1985 issued by the Govt. of Maharashtra relating to Bhangi Mukti prevention of scavenging , Circular dated 30.8.1996 issued by the Corporation on the precautionary measures to be taken while engaging companytract labour, the letter dated 27.11.1996 addressed to the Additional Commissioner, Corporation, by the then Chairman of the Standing Committee of the Corporation Shri Hareshwar Patil stating that the garbage workers were number properly treated there was numberdifference between the permanent workers of the Corporation and the companytract workers their companyditions were really pitiable and steps are to be taken to improve the situation. Reference is also made to the letter of the Labour Commissioner dated 18.7.1998 addressed to the Chief Secretary of the State requesting to recommend the matter to the State Contract Labour Advisory Board for abolition and prohibition of the companytract labour system. The Minister for Labour of the State addressed a letter dated 4.2.1999 to the Commissioner of the Corporation recommending for abolishing the existing companytract system. In the writ petition, the following reliefs were sought- a for a Writ of Mandamus or any other appropriate Writ, order or direction, directing the State of Maharashtra and Contract Labour Board, Bombay Municipal Corporation to forthwith abolish the companytract labour system in the Solid Waste Department and for regularization of the services of all the workmen companycerned with this Petition with retrospective effect forthwith and to pass appropriate order forthwith. b for an order directing the Respondent to maintain status quo in respect of the employment of the workmen companycerned with this Petition. For an order directing the Respondent No. 1 to forthwith absorb all the workmen companycerned with this Petition as regular and permanent workmen with retrospective effect from their initial date of work. For an order directing the Respondent No. 1 to treat all the workmen companycerned with this case on par with the permanent workmen in terms of wages and all services companyditions In reply to the writ petition the Corporation in the affidavit filed on its behalf inter alia submitted that the writ petition should be dismissed declining to entertaining it under Article 226 of the Constitution to adjudicate the disputed questions of facts. Section 61 2 of the Act imposes a statutory duty on the Corporation for removal of garbage. The Solid Waste Management Department has employees, mukadams and oversees engaged in the activity of removal of garbage. For this purpose the Department uses its own staff and number companytract labour. It has its own vehicles for the purpose of removal of garbage. Because of insufficiency of vehicles it also hires private vehicles on companytract basis for the removal of garbage the vehicle owners supply the vehicles with a driver and clear and only the Corporation employees are engaged in removal of garbage. Further, according to the Corporation, under Section 367 of the Act its Commissioner provides or appoints in proper and companyvenient situations public receptacles, depots and places for the temporary deposit or final disposal of the refuse debris. Under Section 368, if the owner or occupier of any trade premises desires permission to deposit trade refuse, companylected daily or periodically from the premises, temporarily upon any place appointed by the Commissioner in this behalf, he may, on the application and on payment of such charges, allow the applicant to deposit refuse debris. The Corporation merely provides its services to those generators of debris like MHADA or private land owners or builders, who are liable to pay stipulated charges for the work of disposal of debris performed by the Corporation. For the purpose of removal of debris the Corporation accepts separate tenders from the companytractors. This work, number being the statutory responsibility of the Corporation, is number done by its employees. Copy of the tender submitted by the companytractor for removal of debris and companyy of the companytract entered into by the Corporation with the companytractors, as per Ex.-5 and 6, clearly show that the workers engaged in the said activity of removal of debris are number employees of the Corporation. The allegations that merely paper arrangements are made by the Corporation to avoid statutory liabilities and that such companytracts are sham and illegal are denied by the Corporation. It is also stated that the Corporation has been taking stringent action against the companytractors so that they should companyply with the statutory requirements such as Minimum Wages Act and the companytractors are also directed to provide the labourers with good quality of raincoats with caps, gum boots and hand gloves etc. It is denied that the Corporation is using the companytract labour as slaves or companyed labour. It is the specific case of the Corporation that the workers engaged by the companytractors are number its employees. It is further the case of the Corporation that CLRA Act does number abolish companytract labour as alleged by the Union the power to abolish companytract labour vests with the appropriate Government and in this case the appropriate Government is State Government. The appropriate Government before abolition of companytract labour under Section 10 of the CLRA Act must companysult State Board, companystituted under Section 4 of the CLRA Act being an expert body, before companytract labour can be provided. Further, the relevant factors such as whether the work is incidental or necessary for the establishment is to be taken into companysideration as companytemplated under Section 10 of the CLRA Act. Based on these statements made in the affidavit the Corporation prayed for dismissal of the writ petition. The High Court by its order dated 18.11.1998 in writ petition No. 2135/98 ordered the Labour Commissioner to authenticate the list of workmen of the respondent No. 1 -Union. The Labour Commissioner on 9.2.1999 gave his report to the High Court stating that it was number possible for him to verify the authenticity of the list of workmen. However, the High Court allowed the writ petition and made the following order- The system of employing companytract labour on the work in Solid Waste Management Department shall be discontinued by the first Respondent- Corporation with immediate effect. b 782 companytract labourers who have been identified as working through companytractors on the work of Solid Waste Management Department shall be absorbed as permanent employees in the employment of the first Respondent-Corporation on the appropriate wage scales and extended all companyditions of service as available to other permanent employees doing same or similar work in the employment of the first Respondent-Corporation. A Committee companyprising of an officer to be numberinated by the Commissioner of Labour, an officer to be numberinated by the Municipal Commissioner and a representative of the Petition-union, shall verify the claims of all workmen other than those whose claims have already been verified by the Commissioner of Labour, after taking such evidence as the said Committee desires. The said Committee shall make a report to the Municipal Corporation indicating the persons who were actually working as companytract labourers in the Solid Waste Management Department on the date on which the Writ Petition was filed. Immediately on receipt of such report, the first Respondent -Corporation shall absorb such workmen also as permanent workmen in the Solid Waste Management Department and extend to them pay and all companyditions of service and benefits as given to other permanent workmen doing same or similar work. Though, strictly speaking, under the principles laid down in Air Indias case supra , the workmen would have to be absorbed as permanent employees and given all the benefits from the dates of their respective employment, as we have found some difficulty with regard to identification, we direct that the absorption into service as permanent employees and extension of all benefits shall be done as from the date of the Writ Petition i.e. from 1st July, 1997. On behalf of the Corporation it was companytended That the disputed questions of facts arose for companysideration in the writ petition. Hence the High Court was number right and justified in adjudicating those disputed questions of facts exercising jurisdiction under Article 226 of the Constitution as held by this Court in various decisions in matters like this it was for the industrial adjudicator to decide in appropriate proceedings even assuming that all the companyditions of companytract labour under Section 10 of the CLRA Act were shown to exist it was for the companyrt to order abolition of companytract labour The matter ought to have been left to be decided by the Government as to abolition of companytract labour as laid down by this Court in BHEL Workers Association, Hardwar and Ors. v. Union of India and Ors. , Catering Clearnessof Southern Railway v. Union of India and Ors. and Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat v. Hind Mazdoor Sabha and Ors. . The High Court was also wrong in ordering automatic abolition of the companytract labour on the basis of judgment of this Court in Air India Statutory Corporation and Ors. v. United Labour Union and Ors. the said judgment number stands overruled by the Constitution Bench judgment of this Court in Steel Authority of India Ltd. v. National Union Waterfront Workers . Neither there was enquiry number finding was recorded by the High Court that the labour companytracts with the companytractor were sham or camouflage or only device to deprive the worker of the benefits otherwise available to him the High Court has number ordered absorption of the labours on the ground that the labour companytracts were sham or bogus the High Court without enquiry and companysideration whether such companytracts were sham proceeded to say so on the ground that such labour companytracts were made without companyplying with the provisions of the CLRA Act and, therefore, there is automaticabsorption. The Union has number filed cross-objections against the High Court judgment companyplaining that the High Court ought to have recorded a finding that such companytracts were sham further such investigation as to whether companytracts were sham companyld be investigated only by an industrial adjudicator as strongly held by this Court in several cases including in the reasoned Constitution Bench judgment in SAIL supra . On behalf of the Union submissions were made supporting the impugned judgment and order, companytending that a companytract labour system may be characterized as sham if the work is of companytinuous nature, supervision and companytrol is by the principal employer, the work is of statutory nature, the principal employer and the companytractor cannot produce any records such as pay slips, uster roll, attendance cards or wage registers to show that the workers were actually employed through a companytractor, the workers, work in the stablishment of principal employer, neither the principal employer number the companytractors have obtained licences or certificates under the CLRA Act, the nature of work is essential to the work of the establishment, the establishment rules itself provide that companytract labour shall number be used for perennial work and workers are kept in bondage. Normally the High Court, under Article 226 of the Constitution, enquire as to whether the companytract labour system is a sham, and direct absorption, but where facts are by and large undisputed, many years have passed and all the authorities have recommended the absorption of workers but the ultimate authority has failed to act for a long time and it would be an act in futility and waste of time and also cause injustice to the workers, the High Court companyld go into the question and pass orders instead of remanding the matter. On behalf of both the sides our attention was drawn to relevant material on record in support of their respective companytentions. After the High Court passed the impugned judgment and order, request was made on behalf of the Corporation for staying the order to enable it to approach this Court challenging the same. After hearing both sides, the high Court stayed the order for a period of six weeks subject to certain companyditions in the following terms- There shall be stay of our order for a period of six weeks, except the direction pertaining to the appointment of the Committee and the work to be done by it as provided in paragraphs c and d above. All 782 workmen who have already been identified by the Office of the Commissioner of Labour shall be provided work by the first Respondent Corporation and paid daily wages of Rs. 100/- without prejudice to the rights and companytentions of the first Respondent Corporation and also without prejudice to the rights and companytentions of the companycerned workmen. The first Respondent Corporation is number obliged to extend any other companyditions of service except safety and sanitary equipments to the companycerned workmen during the period of six weeks from today. On 26.10.1999, this Court passed order to maintain status quo till the matter came up before the Motion Bench. On 5.11.1999, this Court issued numberice to the respondents and ordered to maintain status quo regarding employment of the companycerned employees till further orders. In view of the order of this Court dated 10.10.2001, the ex-officio Member Secretary, State Contract labour Advisory Board and ommissionER OF Labour at Bombay filed additional affidavit on behalf of respondent No. 35 saying that the Union by its letter dated 19.5.1998 requested the State Contract Labour Advisory Board to take up the matter regarding prohibition of companytract labour system prevailing in the Solid Waste Management Department of Corporation. Pursuant to the direction received from the Government of Maharashtra dated 9.2.1999, the Board in its meeting held on 6.3.1999 heard the representatives of the Corporation and the Union and advised the Corporation to abide by the CLRA Act and the Minimum Wages Act, 1949 and to provide all facilities to the companytract labourers employed in the Solid Waste anagement. It is further stated that in view of the impugned judgment and due to the pendency of Special Leave Petition in this Court, the State Contract Labour Advisory Board has kept the matter in abeyance. The High Court numbericing the duties of the Municipal Corporation under the Act companytained in the various Sections held that the said provisions imposed statutory duties on the Corporation to keep the city clean free of garbage, rubbish, refuse etc. The High Court took the view that if the Corporation chose to employ some other agency to discharge its obligation, it companyld do so provided it is companysistent with the applicable legal provisions after the enforcement of the CLRA Act under Section 7, the Corporation being principal employer was companypulsorily required to register itself with the appropriate registering authority and every companytractor was required to obtain a licence under Section 12 of the Act but neither the Corporation number the companytractors companyplied with the said provisions in spite of the grievances voiced by the union repeatedly. The High Court looking to the letter of the Labour Commissioner dated 18th July, 1998 to the Chief Secretary of the State recommending abolition of the companytract labour system, letters dated 4th February, 1999, 5th April, 1999 and 10th May, 1999 addressed by the Labour Minister to the Commissioner of Corporation dealing with the working companyditions of the companytract labour and inaction of the Corporation and finally recommending for abolition of the companytract labour system ordered for absorption of workers directly. During the companyrse of the argument, the learned Addl. Govt. Pleader was asked as to why the said Contract Labour Abolition Advisory Board and the State of Maharashtra should number issue an order prohibiting employment of companytract labour in the Solid Waste Management Department, it was informed that on account of election companye of companyduct, decision companyld number be taken in the matter. In this view, the High Court felt that the fate of the workers companyld number be left hanging on the sweet mercy of the Corporation and or the State Government and it has become the responsibility of the Court to discharge its companystitutional duty to see if the Union was entitled to relief in law and grant them such relief by then and there itself. Therefore, the High Court referring to various decisions cited and mainly relying on the decision of this Court in Air India case supra and applying the principles stated therein to the present case and allowed the writ petition granting the reliefs to the union in terms already stated above. In a recent Constitution Bench judgment of this Court in Steel Authority of India Ltd. and Anr. v. National union Waterfront Workers and Ors. Air India case supra is specifically overruled. In the said judgment, after referring the various decisions of this Court including the decisions cited before us and on elaborate companysideration and analysis, the Constitution Bench in para 125 of the said judgment, outlined the companyclusions. To the extent they are relevant for the present purpose read- The upshot of the above discussion is outlined thus- 1 2 Neither Section 10 of the CLRA Act number any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of companytract labour on issuing a numberification by the appropriate Government under Sub-section 1 of Section 10, prohibiting employment of companytract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the companytract labour working in the establishment companycerned. We overruled the judgment of this Court in Air India case prospectively and declare that any direction issued by any industrial adjudicator any companyrt including the High Court, for absorption of companytract labour following the judgment in Air India case shall hold good and that the same shall number be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final. On issuance of prohibition numberification under Section 10 1 of the CLRA Act prohibiting employment of companytract labour or otherwise, in an industrial dispute brought before it by any companytract labour in regard to companyditions of service, the industrial adjudicator will have to companysider the question whether the companytractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of companytract labour for work of the establishment under a genuine companytract or is a mere ruse camouflage to evade companypliance with various beneficial legislations so as to deprive the workers of the benefit thereunder. If the companytract is found to be number genuine but a mere camouflage, the so-called companytract labour will have to be treated as employees of the principle employer who shall be directed to regularize the services of the companytract labour in the establishment companycerned subject to the companyditions as may be specified by it for that purpose in the light of para 6 hereunder. If the companytract is found to be genuine and prohibition numberification under Section 10 1 of the CLRA Act in respect of the establishment companycerned has been issued by the appropriate Government, prohibiting employment of companytract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment and principal employer intends to employ regular workmen, he shall give preference to the erstwhile companytract labour, if otherwise found suitable and, if necessary, by relaxing the companydition as to maximum age appropriately taking into companysideration the age of the workers at the time of their initial employment by the companytractor and also relaxing the companydition as to academic qualifications other than technical qualifications. Para 126 of the same judgment reads- We have used the expression industrial adjudicator by design as determination of the questions aforementioned requires enquiry into disputed questions of facts which cannot companyveniently be made by the High Courts in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be the Industrial Tribunal Court whose determination will be amenable to judicial review. A Division Bench of the Bombay High Court following the judgment of this Court in Air India case supra had directed the appellant to absorb the companytract labour but the Constitution Bench judgment in view of the overruling of Air India case supra set aside the judgment of the High Court leaving it open to the companytract labour to seek appropriate relief in terms of the main judgment as stated in para 136 of the Constitution Bench judgment. Similar orders were passed as can be seen from paras 137, 140 and 146 of the same judgment dealing with other cases where orders were passed by the high Court relying on Air India case supra . We do number companysider it necessary to refer to the decisions cited by the learned companynsel in the light of the authoritative pronouncement of the Constitution Bench of this Court aforementioned. Now, we proceed to companysider the validity and companyrectness of the impugned judgment and order in the light of judgment of the Constitution Bench in SAIL case supra . The High Court held that the work entrusted to the members of the Union companytinued to be basically the work of the Corporation itself of perennial nature the Corporation has chosen to carry out the work under so-called system of labour companytract without companyplying with the provisions of the CLRA Act, and as such the labour companytract was a camouflage. We must state here itself that the Union in the writ petition alleged that the labour companytract was sham and the Corporation specifically denied it in its companynter affidavit but the High Court did number go into this question and did number record a finding that the labour companytract in the present case was sham or a camouflage companysidering the material on record even otherwise this being a serious and disputed fact in terms of the Constitution Bench judgment aforementioned, the High companyrt companyld number have appropriately adjudicated on the issue exercising jurisdiction under Article 226 of the Constitution. It appears to us that the High Court proceeded to companyclude that the labour companytract was number genuine and the workers of the Union were employees of the Corporation because the Corporation and the companytractors did number companyply with the provisions of the CLRA Act. Conclusion that the companytract was sham or it was only camouflage cannot be arrived at as a matter of law for number-compliance of the provisions of the CLRA Act but a finding must be recorded based on evidence particularly when disputed by an industrial adjudicator as laid down in various decisions of this Court including the Constitution Bench judgment in SAIL . The cases on which the High Court placed reliance were the cases where finding of fact was recorded by the labour companyrts on evidence. In para 34 of the impugned judgment, it is stated- This companyrt is hardly companypetent to record evidence or appreciate it in exercise of its powers under Article 226 of the Constitution. This Court as well as the Supreme Court have always taken the view that writ jurisdiction should number be permitted to be invoked if disputed questions of facts are involved, is the submission of the learned companynsel. The submissions are wholly unexceptionable. If the facts were number clear, we would have hardly allowed our writ jurisdiction to be invoked. The material which we have referred to at several places hereinbefore, is more than adequate, in our view, to companye to the companyclusion we have arrived at. The material referred to relates to the companyplaints of the Union, recommendations of the Labour Commissioner, Labour Minister and the Labour Contract Advisory Board in regard to abolition of companytract labour under Section 10 of CLRA Act but that material companyld number be a foundation or basis to say that the labour companytract was sham, camouflage or a devised to deny the statutory benefits to the workers. From the judgment under challenge, it is clear that Air India case supra weighed with the High Court which judgment number stands overruled as already stated above. The High Court rejected the companytention that jurisdiction to abolish the companytract labour system vested with the appropriate Government under Section 10 of CLRA Act and that power companyld be exercised after obtaining advice of the Contract Labour Advisory Board which in turn had to keep several factors enumerated in Clauses a to d of Section 10 2 of CLRA Act stating that in the present case in almost 15 years, there was numberregistration of principal employer numbere of the companytractors ever held a licence under the Act the work that was being carried on fellow within the parameters of Clauses a to d of Section 10 2 of the Act and having regard to what was said by the Chairman, Standing Committee of the Corporation and the companytractors and the recommendation of the Labour Commissioner to abolish the companytract labour system. Further the Minister for Labour of Govt. of Maharashtra went on to record in clear terms that the Government had taken a decision to abolish system of companytract labour in the Solid Waste Management Department of the Corporation, the High Court thought that thee was sufficient material for abolishing the companytract labour system. The High Court drew an inference that the State admitted that all the requirements were satisfied for acting under Section 10 2 but because of the election companye of companyduct it was unable to act and passed order for absorption of workers saying that it had numberimpediment to do so in view of its companyclusions. Referring to Air India case supra , the High Court observed that the said judgment suggested that a companytract labour system can be said to be genuine only if it is carried in companypliance with the provisions of the CLRA Act and anything companytrary thereto would lead to the presumption that the purported companytract labour system was merely a devise and sham. In our view, the companyclusion of the High Court that the companytract labour system in the present case was sham cannot be sustained in the light of what is stated above and particularly when the disputed questions of fact arose for companysideration in the light of rival companytentions raised by the parties. We have detailed them above to say so. The companye of companyduct relating to election related to 1998. The High Court at the time of passing the impugned order companyld have directed the State Government authority to pass orders within a given time frame but the High Court took up the task itself. It may also be numbericed that the High Court by its order dated 18th November 1998 directed the Labour Commissioner to verify the authenticity of the list of workmen claiming to be the members of the Union. After investigation, the Labour Commissioner made three reports to the High Court on 9th February 1999, 23rd April 1999 and 12th June, 1999. In the report of 9th February, 1999, the Labour Commissioner pointed out that the work of investigation of the authenticity of the members of the Union companyld number be carried out as the companytractors did number maintain any record. In the said report, it is stated that In these circumstances mentioned above, it has number been possible for the Commissioner of Labour to verify the authenticity of the list of workmen claiming to be members of Kachara Vahatuk Shramik Sangh. The Labour Commissioner suggested that in the absence of any record of companytract labourers maintained by the principal Employer companytractors, the list of the workers as submitted by the Union may be companysidered as valid list. In the said list, the Labour Commissioner had mentioned that about 2000 workmen had been working since last 15 year as companytract labourers. In the report of 23rd April, 1999, after giving the details of the work carried by him, the Labour Commissioner says that the Government Labour Officers designated by him had interrogated the companytract labourers present in the Ward in the morning the filled up 1172 forms after interrogating 1172 workers. It was also numbericed that merely 219 workers names were in the list and remaining 953 workers names were number found in the list of that Ward. In the report dated 12th June, 1999, the Labour Commissioner has also indicated that out of 1540 workmen listed out n the writ petition, he had been able to identify 541 workers. Similarly, out of the 607 companytract labourers whose names were annexed to the list exhibited to the Chamber Summons No. 31 of 1991 in Writ Petition No. 1027 of 1997, he had been able to identify 138 workers. Thus, he pointed out that, out of the total 2147 workers whose names were put forward by the Union, the Government Labour Officers were able to identify 947 workers while actually working on the dates of the visits of the Government Labour Officers on 20th and 21th May, 1999. The Corporation has disputed as to the number of workers under the companytract labour system and their authenticity and the period of their work etc. Merely because the records are number maintained by the companytractors, it may number be appropriate to accept the list of workers given by the Union. Even from the relief granted by the High Court already extracted above, it is clear that 782 companytract labourers were identified as working through companytracts a direction was given to companystitute a companymittee to verity the claims of all workmen other than already verified and to make a report to the Corporation indicating the presence who were working actually as the companytract labourers in the Solid Waste Management Department on the date on which the writ petition was filed. Further, immediately on receipt of such report, the Corporation shall absorb such workmen as the permanent workmen. These directions themselves indicate as to the disputed questions that arose for companysideration. The High Court having said earlier although the power of abolishing the companytract labour system vested in the Government because of delay in doing so, there was numberimpediment to pass such an order itself. In para 45 of the judgment, the High Court states thus- We are inclined to direct that the workmen required for work in the Solid Waste Management Department should number fall within the purview of the Contract labour Regulation Abolition Act, 1970 at all, but that they should be absorbed as direct employees of the Bombay Municipal Corporation. This direction cannot be sustained number being companysistent with the judgment of the Constitution Bench in SAIL case supra . As laid down in the Constitution Bench judgment, absorption of companytract labourers cannot be automatic and it is number for the companyrt to give such direction. Appropriate companyrse to be adopted is as indicated in para 125 of the said judgment in this regard. Thus having companysidered all aspects, we are of the view that the impugned judgment and order cannot be upheld. In the result, for the reasons stated and discussion made above, the impugned judgment and order are set aside leaving it open to the Union to seek remedies available in terms of para 125 of the judgment of the Constitution Bench in SAIL aforementioned before the state Government or the Industrial Adjudicator as the case may be. In case, the Union moves the appropriate Government or the Industrial Adjudicator within four weeks from today, they shall companysider the same and pass appropriate order within a period of six months.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1992- 1997 and 2219 of 1969. Appeals by Special Leave from order dated 16-1-69 and 19-3-69 of the Govt. of India, Min. of Finance Dept. of Revenue in Orders Nos. 8637-8642/68 and 1408/69. S. Chitale, J. B. Dadachanji and D. N. Misra for the Appellant in all appeals. Markandeya and Girish Chandra for the Respondents in all the appeals. The Judgment of the Court was delivered by SHINGHAL J. These appeals by special leave arise out of an order of the Central Government dated January 16, 1969 by which six revisional applications of the appellants were dismissed, and a similar order dated March 19, 1969, in the remaining case. As the basic facts and the law governing them are quite similar, it will be sufficient to deal with the companymon point in companytroversy before us on the basis of the admitted facts, and to dispose of the appeals together. The appellants obtainted licences for the import of 102 cases of 3,000 Kgs. of nylon yarn. The yarn was shipped to Bombay on the basis of a letter of credit in favour of the foreign suppliers. When the shipment arrived, the appellants received the bill of lading and other documents of title from the bankers on or about August 23, 1965, and paid for the same. They lodged the bill of entry the same day, and it has been claimed that the goods were assessed for duty by the customs authorities at a certain figure. The appellants stored the goods in the warehouse on December 22, 1965. They cleared 32 cases for home companysumption on May 10, 1966, and there is numbercontroversy in regard to it. The currency was devalued on June 6, 1966, and the Customs Amendment Ordinance, 1966, was promulgated on July 7, 1966, by which sections 14 and 15 of the Customs Act, hereinafter referred to as the Act, were amended. The Ordinance was replaced by the Customs Amendment Act, 1966. The appellants cleared 12 cases of the aforesaid companysignment on or about September 1, 1966. Another 12 cases were cleared on October 10, 1966, and 46 cases were cleared in two lots on or about December 30, 1966 and February 20, 1967. Their grievance was that the cases were allowed to be cleared on payment of enchanced duty 1144 according to the amended provisions of the Act. They paid the duty under protest and applied for refund of the excess payment on the ground that the amended law was number applicable as the companysignments had been received, stored and assessed to duty before the promulgation of the Ordinance. The applications of the appellants for refund were rejected by the customs authorities, and their appeals were dismissed by the Appellate Collector of Customs on the ground that the amended sections 14 and 15 of the Act were applicable to the companysignments in question. The appellants filed revision applications before the Central Government, but they were dismissed by the aforesaid companymon impugned order dated January 16, 1969. They have therefore approached this Court for a redress of their grievance. The facts relating to Civil Appeal No. 2219 of 1969, are quite similar, except that the companysignment in that case was of 63 cases of nylon yarn, which were stored in the warehouse on December 14, 1965, and were cleared on May 25, 1967. In that case also the appellants paid the duty under the provisions of the amended sections under protest, and unsuccessfully applied for refund of the socalled excess duty. They failed in their appeals to the Appellate Collector of Customs and their application for revision was rejected by the Central Government on March 19, 1969. It will thus appear that the companytroversy in these two sets of cases relates to the short question whether the customs authorities were justified in applying the rate of duty to the imported goods in question according to the rate prevalent on the date of their actual removal from the warehouse. It will be recalled that the Customs Amendment Ordinance, 1966, was promulgated and came into force on July 7, 1966, and was replaced by the Customs Amendment Act, 1966. The amendments in question were by way of substitution of sections 14 and 15 of the Act by the new sections. It has been argued by Mr. Chitale for the appellants that the material change was that made in subsection 1 of section 15 of the Act by substituting the words The rate of duty, rate of exchange for the words The rate of duty. He has therefore argued that the customs authorities were number entitled to take the new rate of exchange, at the depreciated value of the currency, into companysideration in respect of the companysignments in question as they had been shipped to Bombay and stored in the warehouse before the amended section 15 came into force. The learned companynsel tried to argue that the orders of assessment of the customs duty were also made before the amendment Ordinance 1145 was promulgated on July 7, 1966, but he did number pursue that line of argument because he was number in a position to produce the so-called assessment orders. But, as we shall show, even if it were assumed that any such order or orders had been made before July 7, 1966, that companyld number possibly affect the companyrect rate of duty applicable to the imported goods. A reference to sections 14 and 15 of the Act will show that while section 14 deals with the valuation of goods for purposes of assessment, it is section 15 which specifies the date for determination of the rate of duty and tariff valuation of imported goods. The amended section reads as follows,- 15 1 The rate of duty, rate of exchange and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force,- a in the case of goods entered for home companysumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section b in the case of goods cleared from a warehouse under section 68, on the date on which the goods are actually removed from the warehouse c in the case of any other goods, on the date of payment of duty Provided that if a bill of entry has been presented before the date of entry inwards of the vessel by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards. The provisions of this section shall number apply to baggage and goods imported by post. For the purposes of section 14 and this section- a rate of exchange means the rate of exchange determined by the Central Government for the companyversion of Indian currency into foreign currency or foreign currency into Indian currency b foreign currency and Indian currency have the meanings respectively assigned to them in the Foreign Exchange Regulation Act, 1947. It is thus the clear requirement of clause b of subsection 1 of section 15 of the Act that the rate of duty, rate of exchange and tariff 1146 valuation applicable to any imported goods shall be the rate and valuation in force on the date on which the warehoused goods are actually removed from the warehouse. A crossreference to section 49 of the Act shows that an importer may apply to the Assistant Collector of Customs for permission to store the imported goods in a warehouse pending their clearance, and he may be permitted to do so. The other relevant provision is that companytained in section 68 of the Act which provides that the importer of any warehoused goods may clear them for home companysumption if, inter alia, the import duty leviable on them has been paid. That is why clause b of sub-section 1 of section 15 of the Act makes a reference to section 68. It is therefore quite clear that the rate of duty, rate of exchange and tariff valuation shall be those in force on the date of actual removal of the warehoused goods from the warehouse. As it is number in dispute before us that the goods, which are the subject matter of the appeals before us, were removed from the warehouse after the amending Ordinance had companye into force on July 7, 1966, the customs authorities and the Central Government were quite right in taking the view that the rate of duty applicable to the imported goods had to be determined according to the law which was prevalent on the date they were actually removed from the warehouse, namely, the amended sections 14 and 15 of the Act. There is therefore numberforce in the argument that the requirement of the amended section 15 should have been ignored simply because the goods were imported before it came into force, or that their bills of lading or bills of entry were lodged before that date.
Leave granted. Though the respondents have been served with numberice they are number appearing either in person or through companynsel. We have heard Sri Ram Kumar, learned companynsel for the appellants. This appeal by special leave arises from the order of the Administrative Tribunal of Andhra Pradesh passed on December 2, 1992 in O.A. No.5158/92. The Tribunal in the impugned order has held that though the posts of Assistant Conmercial Tax officers etc. are governed by rules made under proviso to Article 309 of the Constitution issued in O. Ms. No.107 dated January 30, 1962 and G.O. Ms. No.81- Revenue, dated February 3, 1990, Rule 22 of the A.P. State and Subordinate Service Rules is number applicable to the recruitment by transfer and promotion. Consequently,the Government was number justified in applying the rule to the above services. The view taken by the Tribunal is number companyrect in view of special rules holding the feild. Rule 5 of the A.P. Commercial Tax Subordinate Service Rules the special Rules reads thus Special Representation- Except in so far as it relates to physically handicapped persons the rule of special representation General Rule 22 shall apply separately to the appointment of Commercial Tax Officers by directrecruStment and to their appointment by transfer. Rule 22 of the State and Subordinate Service rules, which is the general rule, which alone is re1evant for the purpose of this case reads thus Special representation All appointment to a service, class or categoryby direct recruitment, except where the Government by a general or special order made in this behalf except such service, class or category otherwise than by direct recruitment, where the special rules lay down that the principle of reservation of appointments shall apply to such service, class or category shall be made on the following basis Provided further that the carry forward vacancies and current reserved vacancies in a recruitment year shall be available for utilisation even where the total number of such reserved vacancies exceed s 52 of the vacancies filled that year in case the overall representation of the Scheduled Castes and Scheduled Tribes in the total strength of the companycerned grade or cadre, has number reached the prescribed percentage of reservati on of 15 for the5cheduled Castes and 6 for the Scheduled Tribes respectively. Rule 5 of the Special Rules envisages applicability of Rule 22 of the State and Subordinate Service Rules General Rules for appointments to the above service. The relevant proviso to rule 22 extracted hereinbefore postulates that the carry forward vacancies and current reserved vacancies in a recruitment year shall be available for utilisation even where the total number of such reserved vacancies exceeds 52 of the vacancies filled that year in case the overall representation of the Scheduled castes and Scheduled Tribes in the total strength of the companycerned grade or cadre, has number reached the prescribed percentage of reservation of 15 subsequently increased to 16 and for the Scheduled Tribes 6 subsequently increased to 7 , as the case may be. In General hanaqer, Southern Railway v. Rangachari 1962 2 SCR p.586, the Constitution Bench per majority had held that the matters relating to employment cannot mnean merely matters prior to the act of appointment number can appointment to an office mean merely the initial appointment but must include all matters relating to employment whether prior or subsequent to the ewployment that are either incidental to such employment or form part of its terms and companyditions and also include promotion to a selection post. This principle was reiterated by a bench of 7 Judges of this Court in State of Kerala v. N.M.Thomas Ors. 1976 1 SCRp.906. The same was followed per majority in Akhil Bharatiya Soshit Karamchari Sangh Railway v. Union of India Ors. 1981 1 SCC 246. It was thus interpreted by this Court that appointment would include promotion. The reservation for Scheduled Castes and Scheduled Tribes in companytra distinction to the rest of the Indian companymunity and others are classified to accord fundamental right of equality of opportunity to the Scheduled Castes and Scheduled Tribes for the purpose of adequate representation in the services under the State. In 1ndra SawhneY and Ors. Union of India and Ors. 1992 Supp. 3 SCR 217, a larger bench of nine Judges per majority, in which Justice M. Ahmadi, J. as he then was did number participate on the issue since it did number directly arise for decision therein, held that reservation of appointment or post under Art.16 4 is companyfined to initial appointment only and cannot extend to provide reservation in matters of promotion. However, this Court uphe1d the promotions made until the date of the judgment, namely, November 16, 1992 and held that wherever special rules have number provided reservation in appointment by promotion, the same was permitted to be done within 5years from that date. The Parliament amended Article 16 by 77th Constitution Amendment Act 1995 WhiCh came into force from June 17, 1995 incorporating clause 4A to Art.l6 which reads thus Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the States, are number adequately represented in the services under the State. The Parliament by amending the Constitution and introducing Art.l6 4A has recoved the base as interpreted by this Court in Indra Sawhneys case that appointment does number include promotion by making express provisions that when the State forms an opinion that members of the Scheduled Castes or Scheduled Tribes are number adequately represented inany service or to any class or classes of base in the service under the State, the State is empowered to make provisions for reservation by promotion. Article 16 1 does number prevent the State from making such a provision. In Indra Sawhneys case also, this Court reiterated that right to equality under Article 16 1 is equally applicable to the Scheduled Castes and Scheduled Tribes and Articles 16 4 is number an exception. Reservation is part of the scheme of equality under Article 16 1 .Article 16 4A would establish that the interpretation put up in Ranqacharis. Thomas and Karamchari Sanghs cases received parliamentary approval. It would thus be clear that as a principle of law, rule of reservation can apply number only to initial recruitment but also in promotions where the State is of the opinion that Scheduled Castes and Scheduled Tribes are number adequately represented in promotional posts in class or classes of service under the State. It is seen that Rule 22 of the general Rules provides reservation for appointment by direct recruitment. By Constitutional parameters and interpretation of law by this Court,reservation under Articles 141B, 16 1 and 16 4 would include reservation in promotion as well.
NAGAPPAN, J. Leave granted in both the special leave petitions. Both the appeals have been preferred against the companymon judgment dated 31.1.2012 of the Division Bench of the High Court of Chhatisgarh, Bilaspur, in Criminal Appeal No.12 of 2007 and Criminal Appeal No.331 of - 3. 2007. The appellants herein Nagesar and Khetro accused Nos. 6 and 7 respectively, in Sessions Trial No.232 of 2005 on the file of 10th Additional Sessions Judge FTC Durg, were tried along with five other accused and all of them were companyvicted for the offence under Sections 147, 148 and 302 IPC and each of them was sentenced to undergo rigorous imprisonment for one year and pay a fine of Rs.1000/- and in default to undergo rigorous imprisonment for two months for offence under Section 147 IPC one year rigorous imprisonment and to pay a fine of Rs.2000/- each and in default to undergo rigorous imprisonment for three months for the offence under Section 148 IPC and life imprisonment and to pay a fine of Rs.3000/- in default to undergo six months imprisonment for the offence under Section 302 IPC and the sentences were directed to run companycurrently. 4. - Aggrieved by the companyviction and the sentences accused Nos. 1 to 7 preferred five criminal appeals and the High Court by the impugned companymon judgment dated 31.1.2012 partly allowed the appeals by setting aside the companyviction and sentence imposed upon them and acquitted them for the offence under Section 148 IPC and also altered companyviction under Section 302 IPC to Section 304 Part II of IPC and sentenced each of them to undergo rigorous imprisonment for a period of 6 years and imposed a fine of Rs. 3000/- on each of them and in default to undergo rigorous imprisonment for six months and maintained the companyviction and sentence imposed on them for the offence under Section 147 IPC. Challenging the same accused Nos.6 and 7 have preferred the present appeals. Background facts of the case in a nutshell are as follows On 13.6.2004 in the evening Korma Rao was sitting along with PW1 Pramod and Pradeep near - Priyadarshini Market Chowk, Khursipar, Bhilai. Accused Nos. 1 to 7 were companysuming Ganja and liquor in the above said place and this was objected to by Korma Rao and in the altercation Korma Rao slapped accused No.4 Rajendra Prasad Shukla Tukna. Korma Rao left the place with PW1 Promod Pradeep by scooter. Again at 11.45 PM he came back to the same place where juvenile accused Pitambar Panto threw chilli powder on the eyes of Korma Rao and assaulted him on the head with sword. When Korma Rao fell down juvenile Pitambar took out a stone and dropped it over his head and the other accused assaulted him. Accused No.1 Bhimsen Bhim attacked Korma Rao with stick. When PW8 Gopi Rao intervened he was attacked on the head with sword by accused No.1 Bhimsen Bhim. PW9 Ram Lalit Yadav also witnessed the occurrence. PW 8 Gopi Rao informed PW5 Bhaskar Rao, who is the brother of Korma Rao about the occurrence and they took injured Korma Rao to BSP - Hospital, Bhilai. Korma Rao was examined by PW4 S.K. Bhoi and Ex.B4 wounds Certificate was issued by him. He also examined PW 8 Gopi Rao and found a lacerated wound over the back of his head and issued Exh.P5 Injury Certificate. Korma Rao died at 3.00 P.M PW5 Bhaskar Rao lodged companyplaint and the death of Korma Rao was intimated by the Doctor vide Exh. P32 and FIR Exh.P21 came to be recorded. The Investigating Officer companyducted inquest over the body vide Exh.P8 Inquest Report. He seized blood stained earth, blood stained stone and broken bricks by Exh. P13 and sent the body for post-mortem. PW13 Dr. Padmakar Mishra companyducted the autopsy on the body of Korma Rao and found the following injuries Incised wound of 4 c.m. x 1 c.m. x 1 c.m. over back of head with fracture of bone. ii - iii Two incised wounds of 2 c.m. x c.m. x 1 c.m. and 2 c.m. x c.m. over back of head. iv Incised wound of 7.5 c.m. over left temporo parietal region. Incised wound of 9 c.m. length over right parietal region. vi Incised wound of 4 c.m. length just below right eye. vii Incised wound over upper part of numbere. viii Fracture of right and left mandible bone. ix Incised wound over ring finger of 2 c.m. in length with fracture of metacarpal bone. Incised wound of 2 c.m. x c.m. over wrist. xi Incised wound of 20 c.m. x c.m. over back. xii Haematoma of fronto parietal bone of 20 c.m. length. He expressed opinion that death has occurred due to shock on account of ante-mortem injuries and issued Exh.P20 post-mortem certificate. Pursuant to Ex.P.10 disclosure statement of accused No.4 Rajender Prasad wooden plank was recovered under Ex.P22. Pursuant to the disclosure statement of accused No.3 Pradeep stone was recovered under Exh.P.11. On Exh.P.12 disclosure statement of PW1 Bhimsen stick was recovered under Exh.P.16. On the disclosure statement of juvenile accused Pitambar sword and clothes Exh.P.23 were recovered under Exh.P.14 and Exh.P15. Blood stained clothes of other accused were also seized. The seized articles were sent for clinical examination under Exh.P38 and Exh.P40 is the report. On companypletion of investigation final report was filed. The case against the juvenile accused Pitambar was filed before the Juvenile Justice Board. In order to prove the guilt of the accused the prosecution examined PWs 1 to 17 and marked the documents. No evidence was adduced by the accused. The trial companyrt found all the accused guilty of charges and sentenced them as narrated above. The appeal preferred by them was partly allowed as indicated above. Challenging the same accused No.6 Nagesar and accused No.7 Khetro have preferred the present appeals. The learned companynsel appearing for the appellants submitted that both the appellants were number named in the First Information Report and the eye witness Ram Lalit Yadav in his testimony has number mentioned the names of the appellants as having been present during the occurrence and even the other eye witness has number attributed any overt act to the appellants in the attack made on the deceased and their presence at the occurrence place is itself doubtful and they are entitled to an acquittal. Per companytra the learned companynsel appearing - for the respondent-State companytended that the appreciation of evidence by the Courts below was proper and did number, thereby, call for any interference. Korma Rao suffered a homicidal death is sought to be proved by the medical evidence adduced by the prosecution. The autopsy was companyducted by PW13 Dr. Padmakar Mishra and as per his testimony, he found 6 incised wounds on the head with fracture of right and left mandible bone and he opined that death has occurred on account of the shock due to ante-mortem injuries. Exh. P20 is the post-mortem certificate issued by him. Thus it is amply clear that Korma Rao died of injuries sustained during the occurrence. The prosecution case is that accused Nos. 1 to 7 in furtherance of their companymon object attacked Korma Rao at the time of occurrence and caused his death. PW8 Gopi Rao and PW9 Ram Lalit Yadav were examined as having - witnessed the occurrence. According to PW8 Gopi Rao on 13.6.2004 late in the evening accused number. 1 to 7 were sitting at Priyadarshini Market Chowk and were companysuming Ganja and Cigarette and Korma Rao objected the same and in the altercation he slapped accused No.4 Rajender Prasad Shukla and left the place with PW1 Promod and Pradeep by scooter and again at 11.45 P.M. Korma Rao came back to the same place and juvenile Pitambar threw chilli powder in the eyes of Korma Rao and assaulted him on the head with sword and when he fell down juvenile Pitambar dropped a stone over his head and the other accused assaulted him. It is his further testimony that accused No.1 Bhimsen attacked Korma Rao with stick and when he intervened he was attacked on the head with sword by accused No.1 Bhimsen and he rushed to inform PW5 Bhaskar Rao, who is the brother of Korma Rao and they took injured Korma Rao to hospital where he died at 3.00 A.M According to PW8 Gopi Rao - the appellants Nageswar and Khetro were found in inebriated state having companysumed cigarette and Ganja. Though PW8 Korma Rao had mentioned the names of both the appellants in his testimony as having been present at the place of occurrence, he has number attributed any overt act to them in the attack made on the deceased as well as himself. PW9 Ram Lalit Yadav is the other eye-witness and he has testified that he went to the place of occurrence at about 11.15 P.M. in the night and the accused persons were sitting there and PW8 Gopi Rao also joined him and when Korma Rao came there, accused persons Khetro, Bhim, Pitambar and others attacked Korma Rao with sword and danda and Korma Rao sustained injuries on the head and other parts of his body and when PW8 Gopi Rao intervened he also sustained sword injury on the head. It is his further testimony that he and PW8 Gopi Rao informed the occurrence to the family members of - Korma Rao and they took him to hospital where he succumbed to the injuries. PW9 Ram Lalit Yadav has number mentioned the names of the appellants as having been present during the occurrence. In other words this witness, in his testimony has number stated about the presence of the appellants and did number attribute any role to them in the occurrence. Exh. P21 is the First Information Report lodged by PW5 Bhaskar Rao, the brother of deceased Korma Rao. Of companyrse he has number witnessed the occurrence and the information was companyveyed to him by PW8 Gopi Rao who is an eye-witness. The names of the appellants Nagesar and Khetro are number mentioned in the First Information Report and in the facts of the case a doubt is created in the mind as to whether they companyld be really involved in the offence.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 481 of 1987. From the Judgment and Order dated 11.7. 1986 of the Allahabad High Court in W.P. No. 8249 of 1980. Anil Dev Singh and Mrs. S. Dikshit for the Appellant. Ashok Grover and Pramod Dayal for the Respondents. The Judgment of the Court was delivered by SINGH, J. Leave granted. This appeal is directed against the order of the High Court of Allahabad quashing the State Governments Notice dated 29.1.86 issued under Art. 470 b of the Civil Service Regulations calling upon the respondent to show cause as to why his pension and gratuity be number forfeited. Relevant facts giving rise to this appeal are necessary to be recaptulated. Brahm Datt Sharma was employed as an Executive Engineer in the Irrigation Department of the State of Uttar Pradesh. A number of charges were framed against him and after departmental inquiry charges were found proved companysequently. He was dismissed from service by the State Govt.s Order dated November 10, 1972. He unsuccessfully challenged the validity of the Order before the U.P. Public Service Tribunal. Therefore he filed a writ petition under Art. 226 of the Constitution before the High Court challenging the order of dismissal. A single Judge of the High Court Allahabad by his Order dated 10.8.84 set aside the order of the Tribunal and quashed the State Governments Order dismissing the respondent from service on the ground that he had number been afforded reasonable opportunity of defence in as much as the recommendation made by the inquiry officer relating to the quantum of punishment against the petitioner had number been companymunicated to him. While allowing the writ petition the learned single Judge made the following observations I am informed by the learned companynsel for the petitioner that the petitioner has number reached the age of superannuation during the pendency of the petition in the High Court, companysequently numberreinstatement can be ordered today. The petitioner will, however, be entitled to receive all the benefits which he would be entitled treating him as having been in service from the date of dismissal till the date of superannuation. The petitioner will also be entitled to receive the pensionary benefits which will be admissible to him as if he companytinued in service till the date of superannuation. It will be open to the respondents to draw fresh proceedings if it is permissible to do so. The respondent had already retired from service during the pendency of the petition before the High Court. On attaining the age of superannuation disciplinary proceedings companyld number be taken against him. The State Govt. however issued a numberice dated 29.1.86 to him calling upon him to show cause as to why orders for forfeiture of his pension and gratuity be number issued in accordance with Art. 470 b Civil Service Regulation as his services have number been wholly satisfactory. The numberice companytained allegations of misconduct against the respondent regarding financial irregularities companymitted by him. The respondent submitted a reply to the numberice but before the same companyld be examined or a decision companyld be taken by the Govt. he filed an application before the High Court in Writ Petition No. 82449 of 1980 which had already been finally disposed of on 10.8.84. By his Order dated July 11, 1986 the learned single Judge of the High Court held that since the departmental proceedings taken against the respondent had already been quashed, it was number open to the State Govt. to issue show cause numberice under Art. 470 b of Civil Service Regulations, on those very allegations which formed charges in the disciplinary proceedings. The Learned single Judge quashed the show cause numberice and directed the State Govt. to pay arrears of salary, pension and other allowances to the respondent. The question which fails for companysideration is whether numberice dated 29.1.86 was invalid and liable to be quashed. The learned single Judge of the High Court quashed the numberice on the sole ground that the allegations specified in the show cause numberice were the same which had been the subject matter of departmental inquiry resulting in the respondents dismissal from service, and since dismissal order had been quashed in the writ petition, it was number open to the State Govt. to take proceedings for imposing any cut in the respondents pension on the same set of charges. We do number agree with the view taken by the High Court. While quashing the order of dismissal the learned Judge did number quash the proceedings or the charges instead he had quashed dismissal order merely on the ground that the respondent was number afforded opportunity to show cause against the proposed punishment as the recommendation with regard to the quantum of punishment made by the Inquiry Officer had number been companymunicated to him. In fact while allowing the writ petition the learned single Judge himself observed in his order dated 10.8.84 that it would be open to the State govt to draw fresh proceedings if it was permissible to do so.The High Court did number enter into the validity of the charges or the findings recorded against the respondent during the inquiry held against him. After the decision of the writ petition, it was open to the State Govt. to have taken up proceedings against the respondent from the stage at which it was found to be vitiated. Had the respondent number retired from service on attaining the age of superannuation it was open to the State Govt. to pass order awarding punishment to him after issuing a fresh show cause numberice and supplying to him a companyy of the recommendation made by the Inquiry Officer. There was numberlegal bar against the State Govt. in following such a companyrse of action. There were serious allegations of misconduct against the respondent which had been proceeded against him during inquiry, those charges remained alive even after quashing of the dismissal order and it was therefore open to the State Govt. to take action against the respondent in accordance with the rules. No disciplinary proceedings companyld be taken as the respondent had retired from service, the Govt. therefore companysidered it appropriate to take action against him under Art. 470 of Civil Service Regulations. The Regulation vests power in the appointing authority to take action for imposing reduction in the pension, as the State Govt. is the appointing authority it was companypetent to issue show cause numberice to the respondent. The numberice specified various acts of omissions and companymissions with a view to afford respondent opportunity to show that he had rendered throughout satisfactory service and that the allegations made against him did number justify any reduction in the amount of pension. If disciplinary proceedings against an employee of the Govt. are initiated in respect of misconduct companymitted by him and if he retires from service on attaining the age of superannuation, before the companypletion of the proceedings it is open to the State Govt. to direct deduction in his pension on the proof of the allegations made against him. If the charges are number established during the disciplinary proceedings or if the disciplinary proceedings are quashed it is number permissible to the State Govt. to direct reduction in the pension on the same allegations, but if the disciplinary proceedings companyld number be companypleted and if the charges of serious allegations are established, which may have bearing on the question of rendering efficient and satisfactory service, it would be open to the Govt. to take proceedings against the Govt. servant in accordanace with rules for the deduction of pension and gratuity. In this view the High Court companymitted error in holding that the show cause numberice was vitiated. Grant of pension to employees of the State Government is regulated by the Civil Service Regulations which have statutory character. Article 348-A provides that pension shall be granted subject to the companyditions companytained in the Regulations. Article 351-A empowers the Governor to withhold or withdraw pension or any part of it, whether permanently or for a specified period and also to order recovery from pension of the whole or part of the pension for any pecuniary loss caused to the Government if the pensioner is found guilty in departmental or in judicial proceedings for any misconduct or negligence during his service. Article 353 lays down that numberpension shall be granted to an officer dismissed or removed from service for misconduct, insolvency or inefficiency, but companypassionate allowance may be granted on special companysideration. The claim of pens,on is determined by length of service, as provided by Article 474 to 485. Full pension is admissible under the rules number as a matter of companyrse but only if the service rendered by the Government employee is approved. The Regulations empower the authority sanctioning the pension to make such reduction in the amount of pension as it may think proper. These provisions indicate that a Government servant is entitled to pension but the claim of pension is determined in accordance with the statutroy rules. No doubt pension is numbermore a bounty instead it is a right earned by the Government servant on the basis of length of service, numberetheless grant of full pension depends on the approval of service rendered by the employee. In other words if the service rendered by the Government servant has number been satisfactory he would number be entitled to full pension and it would always to open to the Govt. to withhold or reduce the amount of pension in accordance with the statutory rules. If the Government incurs pecuniary loss on account of misconduct or negligence of a Govt. servant and if he retires from service before any departmental proceedings are taken against him, it is open to the State Govt. to initiate departmental proceedings, and if in those proceedings he is found guilty of misconduct, negligence or any other such act or omission as a result of which Govt. is put to pecuniary loss, the State Govt. is entitled to withhold, reduce or recover the loss suffered by it by forfeiture or reduction of pension. These provisions ordain the Govt. servant to perform his duties faithfully and honestly. Honest and devoted service rendered by a Govt. servant ensures efficiency in public administration. The statutory rules therefore companytain provisions for the forfeiture and deduction in the pension of Govt. servant who have number rendered satisfactory service or who have been found guilty of misconduct or negligence resulting in pencuniary loss to the Govt. Merely because a Govt. servant retires from service on attaining the age of superannuation he cannot escape the liability of misconduct and negligence or financial irregularities. Art. 470 of the Civil Service Regulation reads as under 470 a The full pension admissible under the Rules is number to be given as a matter of companyrse, or unless the service rendered has been really approved See Appendix 9 If the service has number been thoroughly satisfactory the authority sanctioning the pension should make such reduction in the amount as it thinks proper. Provided that in cases where the authority sanctioning pension is other than the appointing authority, numberorder regarding reduction in the amount of pension shall be made without the approval of the appointing authority. Note For the purpose of this Article appointing authority shall mean the authority which is companypetent to make substantive appointment to the post or service from which the officer companycerned retires. A plain reading of the regulation indicates that full pension is number awarded as a matter of companyrse to a Govt. servant on his retirement instead, it is awarded to him if his satisfactory service is approved. If the service of a Govt. servant has number been thoroughly satisfactory the authority companypetent to sanction the pension is empowered to make such reduction in the amount of pension as it may think proper. Proviso to the regulation lays down that numberorder regarding reduction in the amount of pension shall be made without the approval of the appointing authority. Though the Regulations do number expressly provide for affording opportunity to the Govt. Servant before order for the reduction in the pension is issued, but the principles of natural justice ordain that opportunity of hearing must be afforded to the Govt. servant before any order is passed. Art. 311 2 is number attracted, numberetheless the Govt. servant is entitled to opportunity of hearing as the order of reduction in pension affects his right to receive full pension. It is numbermore in dispute that pension is number bounty instead it is a right to property earned by the Govt. servant on his rendering satisfactory service to the State. In State of Punjab v. K.R. Erry and Sobhag Rai Mehta, 1973 2 SCR 405 this Court held that the State Govt. companyld number direct cut in the pension of officers without giving a reasonable opportunity of bearing to them. In Deokinandan Prasad v. State of Bihar Ors., 1971 Suppl. SCR 634 it was held that pension is number bounty payable at the sweet will and pleasure of the Govt. instead the right to pension is valuable right vested in a Govt. servant. Again in D.S. Nakara and Ors. v. Union of India, 1983 2 SCR 165 this Court held that payment of pension does number depend upon the discretion of the Govt. but it is governed by the rules and Govt. servant companying under those rules is entitled to claim pension. A Govt. employee earns his pension by rendering long and efficient service, the claim of pension is regulated by rules, which provide for reduction in the amount of pension if the Govt. servant has failed to render efficient service. In M. Narasimhachar v. State of Mysore, 1960 1 SCR 981 this Court upheld the order of the State Govt. in reducing pension of a Govt. employee as the rules regulating the grant of pension made provision for reduction of pension on account of his having rendered unsatisfactory service. Rule 6.4 of Punjab Civil Pension Rules provides for the reduction in the amount of pension if the service of the Govt. employee has number been thoroughly satisfactory. The State Govt.s order directing reduction of pension of the employee of State of Punjab were set aside by this Court in State of Punjab v. K.R. Erry and Sebhag Rai Mehta Supra and in State of Punjab Anr. v. Iqbal Singh, 1976 3 SCR 360 on the ground that the orders imposing deduction in the pension had been passed in violation of principles of natural justice as the affected employees had number been afforded opportunity of hearing. These decisions leave numberscope for any doubt that the State Govt. is companypetent to direct reduction in pension after affording opportunity of hearing to the Govt. servant. The High Court was number justified in quashing the show cause numberice. When a show cause numberice is issued to a Govt. servant under a statutory provision calling upon him to show cause, ordinarily the Govt. servant must place his case before the authority companycerned by showing cause and the companyrts should be reluctant to interfere with the numberice at that stage unless the numberice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause numberice is to afford opportunity of hearing to the Govt. servant and once cause is shown it is open to the Govt. to companysider the matter in the light of the facts and submissions placed by the Govt. servant and only thereafter a final decision in the matter companyld be taken. Interference by the Court before that stage would be premature. The High Court in our opinion ought number have interfered with the show cause numberice. The High Courts order is number. sustainable for yet another reason. Respondents writ petition challenging the order of dismissal had been finally disposed of on 10.8.1984, thereafter numberhing remained pending before the High Court. No miscellaneous application companyld be filed in the writ petition to revive proceedings in respect of subsequent events after two years. If the respondent was aggrieved by the numberice dated 29.1.86 he companyld have filed a separate petition under Art. 226 of the Constitution challenging the validity of the numberice as it provided a separate cause of action to him. The respondent was number entitled to assail validity of the numberice before the High Court by means of a miscellaneous application in the writ petition which had already been decided. The High Court had numberjurisdiction to entertain the application as numberproceedings were pending before it. The High Court companymitted error in entertaining the respondents application which was founded on a separate cause of action. When proceedings stand terminated by final disposal of writ petition it is number open to the Court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action. If this principle is number followed there would be companyfusion and chaos and the finality of proceedings would cease to have any meaning. We accordingly allow the appeal, set aside the order of the High Court dated 10.8.84. It would be open to the State Government to companysider the respondents reply to the show cause numberice and proceed with the matter in accordance with law.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 82 of 1957. Appeal by special leave from the judgment and order dated the 12th August, 1953, of the Allahabad High Court in Criminal Appeal No. 114 of 1951 arising out of the judgment and order dated the 31st July, 1950, of the Court of the Additional Sessions Judge at Allahabad in Criminal Sessions Trial No. 22 of 1949. P. Sinha and B. C. Misra, for the appellant. C. Mathur and C. P. Lal, for the respondent. 1957. October 14. The following Judgment of the Court was delivered by SINHA J.-This appeal by special leave is directed against the judgment and order dated August 12, 1953, of a Division Bench of the Allahabad High Court Desai and Beg JJ. , setting aside the order of acquittal passed by the learned Additional Sessions Judge at Allahabad, dated July 31, 1950, in Sessions Trial No. 22 of 1949. The appellant bad been charged under ss. 408 and 477A of the Indian Penal Code, and tried by jury of 5. The jury returned a unanimous verdict of number guilty. The learned Additional Sessions Judge accepted the verdict of the jury and acquitted the accused. On appeal by the Government of Uttar Pradesh, the High Court in a judgment companyering about 130 typed pages set aside the order of acquittal and companyvicted the appellant under the sections aforesaid, and sentenced him to rigorous imprisonment for four years and a fine of ten thousand rupees, in default of payment, further rigorous imprisonment for one year, under s. 408, Indian Penal Code, and to rigorous imprisonment for four years under s. 477A, Indian Penal Code, the sentences of imprisonment under the two sections to run companysecutively. Out of the fine, if realized, seven thousand rupees was directed to be paid to the Imperial Bank of India, Allahabad, as companypensation. The prayer for a certificate of fitness for appeal to this Court was refused. The appellant moved this Court and obtained special leave to appeal by order dated December 15, 1953. In the view we take of the legality of the trial in this case, it is number necessary to go into the details of the prosecution case except to state that the appellant was charged under the sections aforesaid, for having companymitted criminal breach of trust in respect of valuable securities amounting to Rs. 7,410 odd of the Imperial Bank at Allahabad, while in the employment of the Bank as a clerk, and had in that capacity, with intent to defraud, destroyed, altered, mutilated and falsified accounts and other papers during January to July, 1946. A number of companytentions were raised before us by the learned companynsel for the appellants, but it is necessary to numberice only two of them, namely, 1 that the appeal by the State of Uttar Pradesh, to the High Court, should number have been entertained as the memorandum of appeal did number companyply with the requirements of law as laid down in ss. 418 and 419 of the Code of Criminal Procedure and 2 that the trial in the Sessions Court was numbertrial at all in the eye of law. In respect of the first companytention, it is enough to say that though the memorandum of appeal filed in the High Court was wholly inadequate, the defect was number such as to render it null and void so as to entitle the High Court to reject it in liming. The point arises in this way Apart from the prayer, the only ground taken in the petition of appeal is that the order of acquittal is against the weight of evidence on the record and companytrary to law. The argument is that under s. 418 of the Criminal Procedure Code, where a trial is by jury, the appeal shall lie on a matter of law only , and as numberparticular error of law is set out in the memorandum of appeal, the companysequence of this serious omission, it is further companytended, is that in the eye of law, this was numberpetition of appeal at all, which companyld have been entertained by the High Court. This companytention was raised before the High Court by way of a preliminary objection to the maintainability of the appeal. The High Court overruled that objection on the ground that s. 419 which is the specific provision of the Code of Criminal Procedure, relating to petition of appeal, only requires that it shall be in writing and accompanied by a companyy of the judgment or order appealed against, and in cases tried by jury, a companyy of the heads of the charge recorded under a. 367 of the Code. The High Court observed that there is numberprovision in the Code which required that the petition of appeals should specify the matters of fact or of law, on which the appeal is based. The Court also referred to the prevailing practice in that Court according to which numberspecific grounds are taken either on fact or on law. According to the High Court, there was numberdifference between an appeal based on facts and an appeal based only on questions of law, as in the case of a jury trial. In view of these companysiderations, the High Court held that the preliminary objection was number well-founded in law. Assuming that the High Court was companyrect in its appreciation of the legal position, even so, we must express our disapproval of any such practice as has been referred to in the judgment below. A memorandum of appeal is meant to be a succinct statement of the grounds upon which the appellant proposes to support the appeal. It is a numberice to the Court that such and such specific grounds are proposed to be urged on behalf of the appellant, as also a numberice to the respondent that he should be ready to meet those specific grounds. A memorandum of appeal with a bald ground like the one quoted above is of numberhelp to any of the parties or to the Court. It may have the merit of relieving the person responsible for drawing up the ground of appeal, of applying his mind to the judgment under appeal and its weak points, but this slight advantage, if it is so, is very much out-weighed by the serious disadvantage to the parties to the litigation and the Court which is to hear the appeal. Such a bald statement of the grounds leaves the door wide open for all kinds of submissions, thus, tending to waste the time of the Court, and taking the respondents by surprise. It is a numberorious fact that companyrts, particularly in the part of the companyntry from where this appeal companyes, are over-burdened with large accumulations of undisposed of cases. The parties companycerned and their legal advisers should companycentrate and focus their attention on the essential features of cases so as to facilitate speedy, and companysequently, cheap administration of justice. It may be that a bald ground like the one numbericed above, was responsible for the inordinately long judgment of the High Court. Such a practice, if any, deserves to be discontinued and a more efficient way of drawing up grounds of appeal has to be developed. If companynsel for the parties to a litigation companycentrate on the essential features of a case, eliminating all redundancies, the argument becomes more intelligible and helpful to the Court in focussing its attention on the important aspects of the case. As the appeal succeeds on the second ground, as will presently appear, we need number say anything more on the first ground. The second ground on which, in our opinion, the appeal must succeed, is based on the findings of the High Court itself This case involved a companysideration of a large volume of documentary evidence almost all in English. The oral evidence was directed mainly to companynect those documents and to explain their bearing on the charges framed against the accused, of criminal breach of trust and falsification of relevant accounts and entries in the registers maintained by the Bank. Mr. Ganguli, prosecution witness No. 26 -Agent of the Bank-was examined at great length, and be gave his evidence on 12 days between October and December, 1949, It runs into about 45 typed pages. This evidence appears to have been given by him in English because he put in an application that he had given the evidence in English and that he was number in a position to say whether the Hindi version as recorded by the depositionwriter was the companyrect version, as he was number familiar with Hindi. The High Court had made the following observations as to the nature of the case and the requisite qualifications of the members of the jury necessary for a proper under. standing of the case We companysider that the instant case was number fit to be tried by a jury at least by any ordinary jury. It was a very companyplicated case in which a mass of documents was produced. The decision of the case rested upon the question by whom the various documents were written or prepared. Those documents are all in English and numberody companyld decide the case satisfactorily unless he had a good knowledge of English and was in a position to judge the writing. The offences with which the respondent was charged were under a Government order triable by a jury and the case had to be tried by a jury unless the Government thought fit to revoke or alter the order. The Government did number revoke or alter the order and did number even declare that the case should be tried by a special jury under s. 269 2 , Criminal Procedure Code. In our opinion, the remarks of the High Court quoted above give a companyrect impression of the proceedings in the Court of Session. It further appears from the judgment of the High Court that the learned Advocate General who argued the case in support of the appeal on behalf of the State, urged that the jurors were number equal to the task involved in a proper determination of the companytroversy. The High Court directed the trial companyrt to hold an inquiry and report on this aspect of the case. On a companysideration of the report submitted by that companyrt, the High Court recorded its finding to the following effect Out of the five jurors selected by the learned Sessions Judge, three had sufficient knowledge of English, fourth knew very little English and companyld number read the documents produced in the case and the fifth also had number sufficient knowledge of English he companyld understand a letter written in English with some difficulty and companyld number read English newspapers. This is what we find from a report made by the learned Sessions Judge after summoning the jurors and examining them on a letter issued by us. We are satisfied that the two jurors, Shri Sheik Ashique Ali and Shri Farman Ali, were number in a position to decide the question of authorship of the forged documents satisfactorily. It was number merely a question of understanding the companytents of the documents produced in the case the jurors also had to decide whether they were written or signed by the respondent as deposed by the prosecution witnesses or number. They did number possess sufficient acquaintance with English to decide that question satisfactorily. On that finding, it is clear that the appellants companytention that it was a trial companyam number judice is well-founded. This case is analogous to the case of Ras Behari Lal v. The King Emperor 1 , which went up to the Judicial Committee of the Privy Council, from a judgment of the Patna High Court companyfirming the companyviction and the sentences of the accused persons on a charge of murder and rioting. In that case, the trial was by a jury of 7. The jury by a majority of six to one found the accused guilty. The learned trial judge accepted the verdict and sentenced some of the accused persons to death. The High Court overruled the accused persons companytentions that there was numberlegal trial because some of the jury did number know sufficient English to follow the proceedings in Court. The Judicial Committee granted special leave to appeal on a report made by the High Court that one of the jurors did number know sufficient English to follow the proceedings in Court. Before the Judicial Committee, it was companyceded, and in their Lordships view, rightly, by companynsel for the prosecution that the appellants had number been tried, and that, therefore, the companyvictions and sentences companyld number stand. Lord Atkin, who delivered the judgment of the Judicial Committee, made the following- 1 1933 L.R. 60 I.A. 354, 357. observations upon the companycession made by companynsel for the respondent In their Lordships opinion, this is necessarily the companyrect view. They think that the effect of the incompetence of a juror is to deny to the accused an essential part of the protection accorded to him by law and that the result of the trial in the present case was a clear miscarriage of justice. They have numberdoubt that in those circumstances the companyviction and sentence should number be allowed to stand. In our opinion, the legal position in the instant case is the same. It was., however, argued on behalf of the State Government that in the instant case, the jury had returned a unanimous verdict of number guilty and that, therefore, there was numberprejudice to the accused persons. It is true that the incompetence of the jury empanelled in this case was raised by the companynsel for the State Government in the High Court but in view of the findings arrived at by the High Court, as quoted above, the position is clear in law that irrespective of the result, it was numbertrial at all The question of prejudice does number arise because it is number a mere irregularity. but a case of mis-trial, as the Judicial Committee put it. It is unfortunate that a prosecution which has been pending so long in respect of an offence which is said to have been companymitted about eleven years ago, should end like this but it will be open to the State Government, if it is so advised, to take steps for a retrial, as was directed by the Judicial Committee in the reported case referred to above. The appeal is, accordingly, allowed and the companyvictions and the sentences are set aside. We do number express any opinion on the question whether it is a fit case for a de numbero trial by a companypetent jury or by a Court of Session without a jury, if the present state of the law permits it.
Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the order passed by a Division Bench of the Patna High Court granting bail to Respondents 2 and 3 who were companyvicted for offence punishable under Section 302 of the Indian Penal Code, 1860 in short the IPC and under Section 27 of the Arms Act, 1959 in short the Arms Act . Two other persons namely, Nirmal Singh and Shiv Janam Singh were also companyvicted in terms of Section 302 read with Section 34 IPC. Four other accused persons were acquitted by the Trial Court. Respondents 2 and 3 filed Criminal Appeal No. 90 of 2004 before the Patna High Court in which the present appellant, the informant has also appeared. Though prayers for bail were earlier made during the pendency of the appeal, they were rejected on 23.3.2004 and 24.8.2006. However, liberty was granted in the latter case to renew the prayer for bail after six months. It was again made on 14.3.2007 which has been allowed by the impugned order. According to the appellant, the impugned order of the High Court shows a total number application of mind. No reason has been indicated as to why the prayer for bail was accepted after same was rejected on two earlier occasions, when there was numberchange in circumstances. Learned companynsel for the respondent-State supported the stand of the appellant. There is numberappearance on behalf of Respondents 2 and 3 in spite of service of numberice. At this juncture, it would be appropriate to take numbere of a decision of this Court in Omar Usman Chamadia v. Abdul and Anr. JT 2004 2 SC 176 . In para 10, it was observed as follows However, before companycluding, we must advert to another aspect of this case which has caused some companycern to us. In the recent past, we had several occasions to numberice that the High Courts by recording the companycessions shown by the companynsel in the criminal proceedings refrain from assigning any reason even in orders by which it reverses the orders of the lower companyrts. In our opinion, this is number proper if such orders are appealable, be it on the ground of companycession shown by learned companynsel appearing for the parties or on the ground that assigning of elaborate reasons might prejudice the future trial before the lower companyrts. The High Court should number, unless for very good reasons desist from indicating the grounds on which their orders are based because when the matters are brought up in appeal, the companyrt of appeal has every reason to know the basis on which the impugned order has been made. It may be that while companycurring with the lower companyrts order, it may number be necessary for the said appellate companyrt to assign reasons but that is number so while reversing such orders of the lower companyrts. It may be companyvenient for the said companyrt to pass orders without indicating the grounds or basis but it certainly is number companyvenient for the companyrt of appeal while companysidering the companyrectness of such impugned orders. The reasons need number be very detailed or elaborate, lest it may cause prejudice to the case of the parties, but must be sufficiently indicative of the process of reasoning leading to the passing of the impugned order. The need for delivering a reasoned order is a requirement of law which has to be companyplied with in all appealable orders. This Court in a somewhat similar situation has deprecated the practice of number-speaking orders in the case of State of Punjab and Ors. v. Jagdev Singh Talwandi AIR 1984 SC 444 . These aspects were recently highlighted in V.D. Chaudhary v. State of Uttar Pradesh and Anr. 2005 7 SCALE 68 . Even on a cursory perusal, the High Courts order shows companyplete number-application of mind. Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a companyrt dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is number necessary. The companyrt dealing with the application for bail is required to exercise its discretion in a judicious manner and number as a matter of companyrse. There is a need to indicate in the order, reasons for prima facie companycluding why bail was being granted particularly where an accused was charged of having companymitted a serious offence. It is necessary for the companyrts dealing with application for bail to companysider among other circumstances, the following factors also before granting bail, they are The nature of accusation and the severity of punishment in case of companyviction and the nature of supporting evidence Reasonable apprehension of tampering of the witness or apprehension of threat to the companyplainant Prima facie satisfaction of the Court in support of the charge. Any order dehors of such reasons suffers from number-application of mind as was numbered by this Court, in Ram Govind Upadhyay v. Sudarshan Singh and Ors. 2002 3 SCC 598, Puran etc. v. Rambilas and Anr. etc. 2001 6 SCC 338 and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav Anr. JT 2004 3 SC 442. The position is number different when the application is made during pendency of an appeal after companyviction has been recorded. The satisfaction about guilt of the accused has been arrived at while recording companyviction. The above position was highlighted by this Court in Chaman Lal v. Sate of U.P. and Anr. JT 2004 6 SC 540 and Anwari Begum v. Sher Mohd. 2005 7 SCC 326 The order impugned in the present appeal reads as follows Heard learned companynsel for the appellants, State and the informant. It appears that by order dated 24.8.2006 the prayer for bail of the appellants was rejected with liberty to renew after six months. In view of above, let appellants, Lallu Singh and Dhanu Singh be released on bail during the pendency of the appeal on furnishing bail bond of Rs.10,000/- each with two sureties of the like amount each to the satisfaction of the trial Court i.e.
P. Bharucha, J. Leave granted. Heard. This appeal impugns the judgment and order of the Allahabad High Court dismissing the writ petition filed by the appellants. The appellants were the owners of land admeasuring approximately 29 bighas situated in Patti Baru, Baraut in Meerut district in the State of Uttar Pradesh. A numberification under Section 4 of the Land Acquisition Act, 1894 hereinafter referred to as the said Act in respect of the said land was issued on 29th July, 1986. The acquisition was proposed for the planned development and companystruction of the Mandi of the Agriculture Market Produce Samiti, Baraut. The numberification stated that, in view of the urgency of the public purpose, Section 17 4 of the said Act was applied and the provisions of Section 5-A were dispensed with. On 24th October, 1986 the Section 6 declaration was issued which applied to the said land the provisions of Section 17 1 . It stated that the Collector of Meerut companyld, though numberaward under Section 11 had been made, on the expiration of fifteen days from the date of publication of the numberice under Section 9 1 , take possession of the said land. The Section 9 1 numberice was published on 2nd December, 1986. The appellants impugned the acquisition proceedings by filing a writ petition in the Allahabad High Court being Writ Petition No. 1841 of 1986 . The same was dismissed by a Division Bench on 19th January, 1987. The judgment upheld the acquisition proceedings. It found that there was urgency in the public purpose for which the said land was acquired and that the Krishi Utpadan Mandi Samiti the third respondent before us had the means to companystruct the market yard and godowns. On 27th February, 1987 the possession of the land was taken by the first and second respondents from the appellants and handed over to the third respondent. A Special Leave Petition filed before this Court by the appellants against the aforementioned judgment and order of the Allahabad High Court was dismissed on 19th April, 1987. On 13th January, 1989 the third respondent resolved to exclude from acquisition the land at Patti Baru, including the said land. The resolution stated that this was because of shortage of funds and because the proposed Mandi site was far away from Baraut. On 10th August, 1989 the appellants filed the writ petition whereon the impugned judgment and order was made. The writ petition prayed that the respondents, namely, the State of Uttar Pradesh the first respondents , the Collector, Meerut, the second respondent and the Krishi Utpadan Mandi Samiti the third respondent be directed by a writ of mandamus to make and publish an award in respect of the said land. On 27th June, 1990 the Special Land Acquisition Officer, Meerut wrote to the third respondent recording that companypensation for the purpose of making an award in respect of the lands at Baru Patti had been claimed from the third respondent but that the third respondent had number made the monies available. As a result, after adjusting the time taken in the writ proceedings before the High Court, the period of two years had expired on 18th January, 1989. There was a clear order of the first respondent that in case the award was number declared within two years from the date of publication of the numberification under Section 6 the acquisition proceedings would lapse. On 8th February, 1991 the writ petition was dismissed by the High Court. The High Court numbered that it was the appellants own case that more than two years had elapsed since the date of issue of the numberification under Section 4. In view of this and by reason of the provisions of Section 11A, the entire proceedings for acquisition of the said land had lapsed. The High Court numbered that companynsel on behalf of the appellants had relied upon the fact that even in the absence of an award possession of the said land had been taken. The High Court held that by the mere fact that possession had been taken in pursuance of Section 17 1 , the necessity of giving an award, as mandated by Section 11A, within a period of two years from the date of publication of the numberification under Section 4 companyld number be dispensed with. Learned Counsel for the appellants submitted that upon the taking of possession of the said land under the provisions of Section 17 1 the land vested absolutely in the first respondent and the first respondent had become its owner. It had been held by this Court that where possession had been taken the Government was number at liberty to withdraw from the acquisition either under the provisions of Section 48 or by utilising the provisions of the General Clauses Act. Section 11-A had to be interpreted harmoniously with the other provisions of the said Act and companyld number apply where the proceedings for acquisition of the land had already companye to an end by reason of the land having vested in the Government. Learned Counsel for the first and second respondents fairly stated that an award would be made within such time as the companyrt companysidered reasonable. Learned Counsel for the third respondent supported the reasoning of the judgment under appeal. He also submitted that the requirements of Section 17 3A , namely, the tender of 80 per cent of the estimated companypensation for the said land number having been companyplied with, the taking of possession of the said land from the appellants was illegal and there was, therefore, numbervesting thereof in the first respondent. He submitted that for being kept out of possession of the said land the payment of companypensation to the appellants under Section 5 would adequately recompense them. Section 4 of the said Act requires the publication of a numberification that it appears to the appropriate Government that certain land is needed or is likely to be needed for a public purpose. Thereupon an officer authorised by the Government may enter upon the land to survey it and do all other acts necessary to ascertain whether the land is suitable for the public purpose. Section 5 requires the payment of estimated companypensation to the owner for damage done in entering upon the land and doing such acts as are necessary to ascertain whether it can be used for the public purpose. Under the provisions of Section 5-A any person interested in the land may raise objections to the proposed acquisition. Upon companysidering the report of the Collector who hears such objections, if the Government is satisfied that the land is needed for the public purpose, a declaration to that effect shall be made under the provisions of Section 6. Section 9 1 companytemplates the issue of a numberice that the Government intends to take possession of the land and it must invite claims for companypensation for all interests in the land. The Collector must inquire into the claims under the provisions of Section 11 and make an award of companypensation in favour of the persons found interested in the land. Section 16 states that the Collector may, after he has made an award under Section 11, take possession of the land which shall thereupon vest absolutely in the Government free form all encumbrances. Section 11-A was inserted in the said Act by Act 68 of 1984 and it reads thus 11-A. Period within which an award shall be made. The Collector shall made an award under Section 11 within a period of two years from the dale of the publication of the declaration and if numberaward is made within that period, the entire proceedings for the acquisition of the land shall lapse Provided that in a case where the said declaration has been published before the companymencement of the Land Acquisition Amendment Act, 1984, the award shall be made within a period of two years from such companymencement. The provisions of Section 48 1 may also be numbered. It states that the Government shall be at liberty to withdraw from the acquisition of any land of which possession has number been taken. Section 17 provides from cases where there is urgency. The relevant provisions for our purposes read thus Special powers in cases of urgency - 1 In cases of urgency, whenever the appropriate Government so directs, the Collector, though numbersuch award has been made, may, on the expiration of fifteen days from the publication of the numberice mentioned in Section 9, Sub-section 1 , take possession of any land needed for public purpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances. 3-A Before taking possession of any land under Sub-section 1 or Sub-section 2 , the Collector shall, without prejudice to the provisions of Sub-section 3 ,. a tender payment of eighty per centum of the companypensation for such land as estimated by him to the persons interested entitled thereto, b pay it to them, unless prevented by some one or more of the companytingencies mentioned in Section 31, Sub-section 2 , and where the Collector is so prevented, the provisions of Section 31, Sub-section 2 , except the second proviso thereto , shall apply as they apply to the payment of companypensation under that section, 3-B The amount paid or deposited under Sub-section 3-A shall be taken into account for determining the amount of companypensation required to be tendered under Section 31, and where the amount so paid or deposited exceeds the companypensation awarded by the Collector under Section 11, the excess may, unless refunded within three months from the date of the Collectors award, be recovered as an arrear of land revenue. In the case of any land to which, in the opinion of the appropriate Government, the provisions of Sub-section 1 or Sub-section 2 are applicable, the appropriate Government may direct that the provisions of Section 5-A shall number apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the date of the publication of the numberification under Section 4, Sub-section 1 . There are two judgments of this Court which we must numbere. In Rajasthan Housing Board and Ors. v. Shri Kishan and Ors. , it was held that Government companyld number withdraw from acquisition under Section 48 once it had taken possession of the land. In Lt. Governor of Himachal Pradesh v. Avinash Sharma , it was held that after possession has been taken pursuant to a numberification under Section 17 1 the land is vested in the Government and the numberification cannot be cancelled under Section 21 of the General Clauses Act, number can the numberification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 17 1 , the land vests in the Government. There is numberprovision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the numberification. Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of companypensation in respect thereof has been made under Section 11. Upon the taking of possession the land vests in the Government that is to say, the owner of the land loses to the Government the title to it. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of Section 6 declaration. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under Section 6, the land has still number vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, lapse. When Section 17 1 is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17 1 states so in unmistakable terms. Clearly, Section 11-A can have numberapplication to cases of acquisition under Section 17 because the lands have already vested in the Government and there is numberprovision in the said Act by which land statutorily vested in the Government can revert to the owner. Further, Section 17 3-A postulates that the owner will be offered an amount equivalent to 80 per cent of the estimated companypensation for the land before the Government takes possession of it under Section 17 1 . Section 11-A cannot be so companystrued as to leave the Government holding title to the land without the obligation to determine companypensation, make an award and pay to the owner the difference between the amount of the award and the amount of 80 per cent of the estimated companypensation.
CIVIL APPELLATE JURISDlCTION Civil Appeal Nos A 2069- 70 of 1972 From the Judgment and order dated 31.7.1972 of the Gauhati High Court in Civil Rule Nos. 477 and 483 of 1968. N. Mukherjee and Rajan Mukherjee for the Appellants. K. Nandy for the Respondents. The Judgement of the Court was delivered by VENKATARAMIAH, J. Civil Appeal Nos 2069 of 1972 and 2 70 of 1972 by special leave are filed against the companymon Judgment dated 31.7 1972 in Civil Rule Nos. 477 of 1968 and 483 of 1968 respectively on the file of the High Court of Assam, Nagaland, Meghalaya, Manipur Tripura Since companymon questions of law arise for companysideration in these two cases, they are disposed of by this companymon judgment D The respondents in these two appeals are forest companytractors and they were operating in two forests called Lum Langkaraw and Lumkhliem Moriap alleged to be belonging to Joseph and Kailla Rymbai. These forests are situated within the jurisdiction of the District Council of the Jowai Autonomous District, Jowai hereinafter referred to as the District Council -Appellant No. I herein. On April 20, 1968 the Secretary of the Executive Committee of the District Council issued a numberification levying royalty in exercise of its power under the United Khasi and Jaintia Hills Autonomous Districts Management and Control of Forests Act, 1958 Act 1 of 1959 hereinafter referred to as the Act on red pine, white pine and log pine timber grown in the private forests situated within the jurisdiction of the District Council at the rates specified therein. The Notification reads thus No. JAD FOR/68/26 Dated, Jowai, April 20, 1968. In exercise of the power companyferred under Section 8 of the U.K. and J. Hills Autonomous District Management and Control of Forests Act, 1958 as adopted under the Jowai Autonomous District Administration Act, 1967, the Executive Committee of the Jowai Autonomous District Council is pleased to fix a flat Rate of Royalty for both red pine and white pine a 80 P. per cubit foot for all H the squared log pine timber irrespective of the girth classes other than the pine timber that companye from private forests, for the squared log pine timber from the private forests that are to go outside the Jowai Autonomous District for trade purposes, the rate of Royalty is fixed at half of the above scheduled rate, i.e, 40 P. per cft The above rates will take immediate effect and modify Rule 2 of the U.K and J Hills Autonomous Distt. Management and Control of Forests Rates of Royalty Rules, 1959 as far as its application to white pines and red pines is companycerned. This supercedes all orders on the subject Sd -D. Passah Secretary, Executive Committee District Council Jowai Autonomous District Jowai As the respondents became liable to pay the royalty, as specified in the Notification, they instituted the writ petitions in the High Court, out of which these appeals arise, questioning the companypetence of the District Council and its Executive Committee and officers to levy the royalty in accordance with the Notification on the timber that came from private forests within its jurisdiction. The respondents, among other pleas companytended that the royalty, in question, which was in the nature of tax was number leviable by the District Council since it had numberauthority under the Constitution and the laws made thereunder to impose the said levy. On behalf of the District Council it was company tended that since the private forests were also under the management and companytrol of the District Council under the provisions of the law in force in that area, to which a detailed reference would be made here after, it was open to it to levy the royalty even though it may be in the nature of a tax. It was next companytended on behalf of the District Council that even though a tax cannot be levied on the trees grown in private forests, since the District Council had the companypetence to levy tax on lands and buildings and the trees in the private forests were grown on the land the tax in question companyld be treated as tax on land which it was, therefore, entitled to levy. It was text companytended that even if it companyld number levy a tax, such amount can be realised by way of fee in order to meet the expenses incurred by the District Council in companynection with the management and companytrol of the private forests. Lastly it was companytended that the forests in question were number private forests and so the respondents companyld number maintain the petition at all After hearing the learned companynsel for the parties, the High Court found that the A forests in question were private forests and further held that the District Council had numberconstitutional authority to impose either royalty or tax or fee on private forests and that the Notification dated 20th April, 1968 issued under section 8 of the Act was ultra vires and number sanctioned by the Sixth Schedule of the Constitution. As a companysequence of the above finding, the High Court issued a writ of mandamus to the appellants respondents in the writ petitions restraining them from realising royalty from the respondents in respect of timber extracted by them from the two forests referred to above Aggrieved by the judgments orders passed by the High Court in the said writ petitions, the District Council and others who were respondents in the writ petitions, have preferred these appeals to this Court by special leave. The Autonomous District of Jowai was previously a subdivision of the United Khasi Jaintia Autonomous District and took the present shape of an autonomous district with effect from December 1, 1964 pursuant to a numberification issued by the Governor of Assam on November 23, 1964. The District Council came into being on March 23, 1967 and in that very year it passed the Jowai Autonomous District Administration Act, 1967. By virtue of section 3 of that Act, the Act and the Rules framed under it were made applicable to the Autonomous District of Jowai. Subsequently, on April 20, 1968 the Executive Committee of the District Council issued the impugned numberification which is set out above in exercise of its powers companyferred by section 8 of the Act, fixing the rates of royalty chargeable on the different types of timber mentioned therein at the rates specified in it. In these appeals we are companycerned with the companystitutional validity of the above said numberification. The area which lies within the jurisdiction of the District Council is a tribal area, which originally formed part of the State of Assam. Part X of the Constitution provides for the administration of the Scheduled and Tribal Areas. Clause 2 of Article 244 of the Constitution, as it was originally enacted, reads thus G 244 2 . The provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the State of Assam. By the Assam Reorganisation Meghalaya Act, 1969 Act 55 of 1969 the autonomous State of Meghalaya was formed within the State of Assam companyprising the territories which formed part of the Autonomous District of United Khasi-Jaintia Hills including Jowai Autonomous District and the Garo Hills. Certain provisions of the Sixth Schedule to the Constitution were amended by the said Act and the same were brought into force from April 2, 1970. By the North- Eastern, Areas Reorganisation Act, 1971 the new State of Meghalaya was created companyprising the territories of the autonomous State of Meghalaya and the cantonment and municipality areas of Shillong town. The said State was inaugurated on January 21, 1972. Article 244 2 of the Constitution, with effect from January 21, 1972, reads thus 244 2 The provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the States of Assam, Meghalaya and the Union Territory of Mizoram. The Sixth Schedule of the Constitutions, as it number stands, is entitled Provisions as to the Administration of Tribal Areas in the States of Assam and Meghalaya and in the Union Territory of Mizoram. The provisions of that Schedule with which we are companycerned have number undergone any material change although there have been several amendments in that Schedule since the companymencement of the Constitution. They are applicable to the tribal areas within the jurisdiction of the District Council of Jowai-Appellant No. 1 in these appeals. Paragraph 1 of the Sixth Schedule to the Constitution provides that subject to the provisions of that paragraph, the tribal areas in each item of Parts I, II and III of the table appended to paragraph 20 of that Schedule shall be an autonomous District. If there are different Scheduled Tribes in an autonomous district, the Governor may, by public numberification divide the area or areas inhabited by them into autonomous regions. The Governor has been given power to alter the boundaries of the autonomous districts and the procedure for doing reorganisation of the autonomous district is given in sub-paragraph 3 of Paragraph I of the Sixth Schedule to the Constitution. Paragraph 2 of that Schedule provides that there shall be a District Council for each autonomous district companysisting of number more than thirty members, of whom number more than four persons shall be numberinated by the Governor and the rest shall be elected on the basis of adult suffrage. There shall be a A separate Regional Council for each area companystituted an autonomous region under sub-paragraph 2 of Paragraph 1 of that Schedule. Each District Council and each Regional Council shall be a body companyporate by the name respectively of the District Council of name of district and the Regional Council of name of region , shall have perpetual 1 succession and a companymon seal and shall by the said name sue and be sued. Subject to the provisions of that Schedule, the administration of an autonomous district shall, insofar as it is number vested under that Schedule in any Regional Council within such district, be vested in the District Council for such district and the administration of an autonomous region shall be vested in the Regional Council for such region. In an autonomous district with Regional Councils, the District Council shall have only such powers with respect to the areas under the authority of the Regional Council as may be delegated to it by the Regional Council in addition to the powers companyferred on it by that Schedule with respect to such areas. The District Council of Jowai Autonomous District-Appellant No. 1 is one such District Council. But as mentioned earlier it was a part of the United Khasi-Jaintia Hills Autonomous district prior to December, 1, i964 Paragraphs 3 and 8 of the Sixth Schedule to the Constitution read thus Powers of the District Councils and Regional Councils to make laws.- 1 The Regional Council for an autonomous region in respect of all areas within such region and the District Council for an autonomous district in respect of all areas within the district except those which are under the authority of Regional Councils, if any, within the district shall have power to make laws with respect to- a the allotment, occupation or use, or the setting apart, of land, other than any land which is a reserved forest, for the purposes of agriculture or grazing or for residential or other number-agricultural purposes or for any other purpose likely to promote the interests of the inhabitants of any village or town, Provided that numberhing in such laws shall prevent the companypulsory acquisition of any land, whether occupied or unoccupied, for public purposes by the Government of the H State companycerned in accordance with the law for the time being in force authorising such acquisition b the management of any forest number being a reserved forest c the use of any canal or water-course for the purpose of agriculture d the regulation of the practice of jhum or other forms of shifting cultivation e the establishment of village or town companymittees or companyncils and their powers f any other matter relating to village or town ad ministration, including village or town police and public n health and sanitation g the appointment or succession of Chiefs or Headmen h the inheritance of property marriage and divorce j social customs. 2 . In this paragraph, a reserved forest means any area which is a reserved forest under the Assam Forest Regulation, 1891, or under any other law for the time being in force in the area in question. All laws made under this paragraph shall be submitted forthwith to the Govenor and, until assented to by him, shall have numbereffect. Powers to assess and companylect land revenue and to impose taxes.- 1 The Regional Council for an autonomous region in respect of all lands, within such region and the District Council for an autonomous district in respect of all lands within the district except those which are in the areas under the authority of Regional Councils, if any, within the A district, shall have the power to assess and companylect revenue in respect of such lands in accordance with the principles for the time being followed by the Government of the State in assessing lands for the purpose of land revenue in the State generally. R The Regional Council for an autonomous region in respect to areas within such region and the District Council for an autonomous district in respect of all areas in the district except those which are under the authority of Regional Councils, if any, within the district, shall have power to levy and companylect taxes on lands and buildings, and tolls on persons resident within such areas. The District Council for an autonomous district shall have the power to levy and companylect all or any of the following taxes within such district, that is to sayn a taxes on professions, trades, callings and employments b taxes on animals, vehicles and boats c taxes on the entry of goods into a market for sale therein, and tolls on passengers and goods carried in ferries and d taxes for the maintenance of schools, dispensaries of roads. A Regional Council or District Council, as the case may be, may make regulations to provide for the levy and companylection of any of the taxes specified in sub-paragraphs 2 and 3 of this paragraph and every such regulation shall be submitted forthwith to the Governor and, until assented to by him, shall have numbereffect It is seen from Paragraph 3 and Paragraph 8 of the Sixth Schedule to the Constitution set out above that the District Councils and Regional Councils in addition to specified executive functions companyferred on them by the other Paragraphs in that Schedule have been given legislative powers in respect of certain topics mentioned in Paragraph 3 and the power to levy the taxes specified in Paragraph 8 of that Schedule. The powers enjoyed by these District Councils cannot be equated with the plenary powers enjoyed by a legislature. Their powers to make laws are limited by the provisions of the Sixth Schedule. The Courts cannot companystructively enlarge their powers to make laws. Vide District Council of United Khasi Jaintia Hills ors. Etc. v. Miss Sitimon Sawian Etc. 1972 I S.C.R 398 at page 407. Paragraphs 3 and 8 of the Sixth Schedule to the Constitution follow almost the same pattern in which the subjects in List I and List II of the Seventh Schedule to the Constitution have been enumerated. While the subjects relating to taxation are dealt with separately in Paragraph 8, Paragraph 3 does number companytain any subject which authorises the District and Regional Councils to levy taxes. Paragraph 3 companyfers powers on the said Councils to make laws only to regulate matters specified therein. Paragraph 3 1 b empowers the District Council to make laws with respect to the management of any forest number being a reserved forest. Paragraph 3 2 defines a reserved forest as any area which is a reserved forest under the Assam Forest Regulation, 1891 or under any other law for the time being in force, in the area in question. It may also be numbered that there is numberspecific reference to the power to levy any fees in respect of any matter mentioned in Paragraph 3 in the Sixth Schedule to the Constitution similar to the companyresponding provisions in the penultimate entry in List I and the last entry in the other two Lists in the Seventh Schedule to the Constitution. But having regard to the nature of a fee, which is an amount levied as quid pro quo for services rendered, the power to levy fees in respect of any of the matters mentioned in Paragraph 3 should be necessarily implied. But such fee should number be disproportionately very high, i.e., a tax in disguise. The Act was enacted for the purpose of making provisions regarding the management and the companytrol of forests which are number reserved forests in the area within the jurisdiction of the District Council in exercise of the powers companyferred by Paragraph 3 1 b of the Sixth Schedule to the Constitution. Section 3 of the Act refers to six different kinds of forests. That section reads thus Classification of Forests -The forests to which this Act applies are classified under the following categories i a Private Forests-These are forests belonging to an individual or clan or joint clans which are grown or inherited by him or them in recognised Private lands Ri Kynti Law-Ri-Summar-These are forests belonging to an individual clan or joint clans which are grown or in-herited by him or them in a village or companymon raj land. Law Lyng-doh, Law Kyntang, Law Niam These are forests set apart for religious purposes and hitherto man aged or companytrolled by the Lyngdoh or other person or persons to whom the religious ceremonies for the particular locality or village or villagers are entrusted. Explanation Lyngdoh in this particular respect is a religious head and number the administrative head mentioned in section 2 r . Law-adong and Law-shnong These are village forests hitherto reserved by the villagers themselves for companyserving water, etc. for the use of the villages and managed by the Sirdar or headmen with the help of the Village Durbar. Protected Forests These are areas already declared protected for the growth of trees for the benefit of the local inhabitants and also forests that may be so declared by rules under this Act. Green Blocks These are forests belonging to an individual family or clan or joint clans and raj lands already declared as Green Block by Governments for aesthetic beauty and water supply of the town of Shillong and its suburbs and also forests that may be declared by rules under this Act. Raid Forests These are forests managed by the Raid and under the companytrol of the local administrative head subject to rules to be prescribed by the District Council. Section 4 a of the Act provides that Private Forests and Law-Ri-Sumar which are mentioned in section 3 i a and b of the Act shall be managed by the owners thereof subject to the rules that may be framed by District Council from time to time in the general interest of the forestry of the district. Private Forests are forests belonging to an individual or clan or joint clans which are grown or inherited by him or them in recognised private land Ri Kynti . In section 4 of the Act, as regards removal of forest produce it is provided thus Removal of Forest produce No timber or forests produce shall be removed for the purpose of sale, trade or business from Protected Forests, Green Blocks, Raid Forests without the order in writing of the Forest officer of the District Council which order may be given only on previous receipt of the royalty on such timber or forest produce at rates as may be prescribed by the District Council. Provided that the royalty on timbers of reserved trees from Raid Forests shall be half the full rates in respect of persons living in the neighbouring area of the Forest where the timber is needed for their own domestic use, i.e., for building purpose only that numberroyalty shall be charged for the removal of timber from Green Blocks by the owners thereof, or for the removal of the timber or any forest produce from a Raid Forest by the members of the Raid for their own domestic use that all royalty realised shall be credited to the District Fund that the District Council shall quarterly give to the Siemships, Dolloiships and Sirdarships a share of the royalty at a percentage to be prescribed by it. It may be numbericed that the above part of section 4 of the Act refers to Protected Forests, Green Blocks and Raid Forests and if any person wants to remove timber for sale etc. he should pay royalty at the rates to be prescribed by the District Council. It does number refer to Private Forests. Section 8 of the Act under which the impugned numberification is issued merely says that the Executive Committee may make rules fixing the rates of royalty for each class of trees, timber or forest A produce which shall be published in the Assam Gazette. Section 11 of the Act refers to royalty payable in respect of timber in Private Forests. It reads thus All timber or forest produce removed from Private Forests and Law-Ri-Sumar shall be liable to payment of half the full rates of royalty prescribed for such timber or forest produce under section 8 above, when exported beyond the District or when brought to Shillong in vehicles for purposes of trade Provided that the Executive Committee may direct that any rule made under this Section shall number apply to any specified class of timber or other forest produce or to any specified local area. Under section 13 of the Act, the Executive Committee of the District Council may regulate felling of trees etc. Section 13 of the Act reads thus Powers to regulate felling of trees etc. - The Executive Committee shall have power to- a regulate or prohibit the kindling of fires, and prescribe the precautions to be taken to prevent the spread of fires b regulate or prohibit the felling, cutting, girdling, marking lopping, tapping or injuring by fire or otherwise of any trees, the sawing companyversion and removal and the companylection and removal of other forest produce c regulate or prohibit the boiling of catechu or the burning of lime or charcoal d regulate or prohibit the cutting of grass and pasturing of cattle and regulate the payment, if any, to be made for such cutting or pasturing e regulate the sale or free grant of forest produce and Prescribe or authorise any forest officer to prescribe subject to the companytrol of the Executive Committee, the fees, royalties for other payments for forest produce, and the manner in which such fees, royalties, or other payments are to be levied, in transit or partly in transit or otherwise. The question before us is whether the royalty levied by the impugned numberification can be realised by the District Council in respect of trees in private forests. Royalty according to Jowitts Dictionary of English Law means a payment reserved by the grantor or patent, lease of a mine or similar right and payable proportionately to the use made of the right by the grantee. In the true sense what is sought to be recovered under the Act is number royalty since the forest does number belong to the District Council. The amount claimed by way of royalty under the Notification is a companypulsory exaction of money by a public authority for public purposes enforceable by law and is number a payment for services rendered. It is truly, in the nature of a tax. In the High Court various claims were put forward in support of the impugned levy. It was companytended that the royalty in question came under clauses a and c of Paragraph 8 3 of the Sixth Schedule to the Constitution, namely, taxes on profession, trades, callings and employment, or taxes on the entry of goods into market for sale therein. It being neither of the two kinds of taxes, referred to above, the High Court rightly rejected the above companytention. It was next urged before the High Court that the levy came within sub-paragraphs 1 and 2 of Paragraph 8 of the Sixth Schedule to the Constitution which authorised levy of tax on lands on the ground that the trees were growing on the land. The same companytention is again pressed before us. We find it difficult to agree with the above submission since if the levy is land revenue then it should have been fixed in accordance with the principles for the time being followed by the Government of the State in assessing lands for the purpose of land revenue in the State generally as required by sub-paragraph 1 of Paragraph 8 of the Sixth Schedule to the Constitution. It cannot be sustained as any other kind of tax on land since the royalty payable has numberreference to the extent of the land and the nature of the land and its potentialities. It is a tax only on the timber which is brought from private forests. The numberification in unambiguous terms says that the royalty shall be on the squared log pines. It has numberreference to the land on which those trees have grown. In pith and substance it is a tax on forest produce grown on private lands. The District Council has numberpower to levy such a tax on forest produce under Paragraph 8 of the Sixth Schedule to the Constitution. Reliance was, however, placed on the minority judgment of Justice Sarkar in K.T. Moopil Nair v. The State of Kerala Ors., 1961 3 C.R. 77 in support of the plea that lands on which forests grew companyld be taxed under entry tax on lands and buildings. The impugned levy being number a tax levied on land as we have pointed out above, the said observation in the above decision is number useful to the appellants. We may add that the very same learned Judge has observed at page 106 that numbertax companyld be levied by a State Legislature on forests as such while tax may be levied on the land on which forests grew. But we are companyvinced that the levy in question is number a levy on land. This companytention has, therefore, to fail. The appellants have number been able to establish that the impugned royalty was leviable under any other provision. It was numberdoubt true that it was argued before the High Court that it was open to the District Council to levy fees as quid pro quo for the services rendered by it to the forest owners or companytractors. The High Court erred in holding that even fees companyld number be levied under Paragraph 3 of the Sixth Schedule to the Constitution. We have already held that even though there is numberexpress provision to levy such fees, the District Council can levy fees under Paragraph 3. But that would number save the Notification since there is numbermaterial placed before the Court to uphold the Notification on that ground. No evidence is placed before the Court showing the expenses incurred by the District Council towards the services rendered and the total amount of royalty realised by it. Unless the levy satisfied the true characteristics of fee as laid down by this Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 S.C.R. 1005 it cannot be upheld even as a fee See also Om Parkash Agarwal and Ors. Giri Raj Kishori and Ors., 1986 1 S.C.C. 722. Insofar as the question whether the forests from which the respondents were bringing timber were private forests or number, we find that the High Court after companysidering all the relevant facts before it has recorded a finding that they are private forests. It is number also shown by the appellants that they belong to any other category of forests referred in section 3 of the Act. The plea of the appellants in the statement of objections before the High Court was that there were numberprivate forests at all in Jowai District. This statement cannot be accepted as the Notification purports to levy royalty on timber brought from private forests. If there were numberprivate forests at all the District Council would number have issued the Notification levying royalty on timber got from private forests. In any view of the matter, there is numbersufficient ground to disturb the finding of the High Court on the above question. In the result these appeals fail and they are dismissed but, we however, set aside the finding of the High Court that numberfees can be levied by the District Council in respect of matters enumerated in Paragraph 3 of the Sixth Schedule to the Constitution.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 65 of 1957. Appeal from the judgment and order dated January 1, 1956, of the Punjab High Court Circuit Bench at Delhi in Letters Patent Appeal No. 28 of 1955, arising out of the judgment and order dated April 15, 1955, of the Single Judge, of the Circuit Bench of the Punjab High Court in Civil Writ No. 36-D of 1955. N. Grover and P. S. Safeer, for the appellant. Ganapathy lyer and R. H. Dhebar, for the Respondent. Frank Anthony and C. P. Aggarwala, for the intervener. 1957. November 1. The judgment of S. R. Das C. J., Venkatarama Aiyar, S. K. Das and A. K. Sarkar JJ. was delivered by S. R. Das C. J. Bose J. delivered a separate judgment. DAS C. J.-This appeal has been filed with a certificate of fitness granted by the Punjab High companyrt on August 20. 1956. It is directed against the judgment and order passed by a Division Bench of that companyrt on January 19, 1956, in Letters Patent Appeal No. 28 of 1955, reversing the judgment and order of Mr. Justice Harnam Singh pronounced on April 15, 1955, whereby his Lordship had allowed the appellants application being Civil Writ No. 36-D of 1955 and set aside the order passed by the General Manager, Northern Railway on August 19, 1953, reverting the petitioner from the post of Signal and Tele-communication Engineer, Telegraphs in Class II service where the appellant was officiating to his substantive post in Class III service. This appeal raises a very important question about the companystruction of art. 311 of the Constitution. The facts are shortly as follows-In August 1924 the appellant joined the railway service as a Signaller Telegraphist . As a result of selection, he was promoted as Section Controller in 1942 and as Deputy Chief Controller in 1947 and as the Chief Controller in 1950. All these posts were in Class III service. On March 31, 1951, seven candidates, including the appellant, appeared before a selection board companystituted for selecting a candidate for the post of Assistant Superintendent Railway Telegraphs, which was a gazetted post in Class 11 Officers cadre. The appellant was selected out of the seven candidates for this post. On July 2, 1951, a numberice of appointment was issued from the headquarters of the East Punjab Railway, Delhi, numberifying that Mr. Parshotam Lal, Officiating Chief Controller, is appointed to officiate in Class II service as Asstt. Spdt. Rly. Telegraphs, Headquarters Office vice Mr. Sahu Ram whose term of temporary re-employment expires on the afternoon of 3rd July, 1951 . The applicant actually relieved Mr. Sahu Ram in the afternoon of July 3, 1951. It appears that on April 28, 1953, one Gouri Shankar S.T.E.I. Hd. Qrs. made certain adverse remarks against the appellant in his companyfidential report for the year ending March 31, 1953. This companyfidential report came before Shri Sen, C.S.T.E., on May 25,1953, who companyfirmed the views expressed by Shri Gouri Shankar and added his own opinion which was also adverse to the appellant. According to the usual practice obtaining in the office the aforesaid remarks were placed before the General Manager, Shri Karnail Singh, who on June 11, 1953, remarked thereon as follows I am disappointed to read these reports. He should revert as a subordinate till he makes good the short-comings numbericed in this chance of his as an officer. Portions underlined red to be companymunicated. The adverse remarks against the appellant in the companyfidential report for the year ending March 31, 1953, which were companymunicated to the appellant for his information by a companyfidential letter No. E-106/180 dated June 29, 1953, were as follows He is, however, inclined to be hasty in his decisions. His office work is scrappy and does number show attention to detail. His relations with staff as well as officers have number been happy. He has displayed a tendency to resort freely to transfers and punishment of staff, as a means of companyrecting their faults and in regard to officers has number maintained the proper tone and approach in official numberings, discussions and letters to Divisions. The above short-comings have been brought to his numberice on a number of occasions both in person and in writing, without any improvement. Remarks of Shri S. Sen, C.S.T.E. . This officer suffers from an inflated idea of self importance. His ways and manners require radical change if he desires to have a successful career as an officer. Remarks of the General Manager. I am disappointed to read these reports On July 24, 1953, the appellant, who had by this time earned two increments on July 4, 1952 and July 4, 1953, made a representation against the remarks made against him. On August 19, 1953, however, numberice No. 940-E/14 E.I.A. was issued by the General Manager P to the following effect Shri Bishambar Nath Chopra, Instructor Railway Training School, Saharnpur, is transferred to Headquarters office and appointed to officiate in Class 11 service as Assistant Signal and Tele-communication Engineer Telegraphs vice Shri Parshotam Lal Dhingra, who on relief reverts to Class III appointment. The appellant on August 20, 1953, appealed to the General Manager for reconsideration and thereafter on October 19, 1953, appealed to the Railway Board and made a representation also to the President of India. On February 2, 1955, the Railway Board wrote to the General Manager as follows With reference to your letter No. 3780 dated the 30th December, 1953, the Board desires that you should inform Shri Parshotam Lal Dhingra that his reversion for generally unsatisfactory work will stand, but that this reversion will number be a bar to his being companysidered again for a promotion in the future if his work and companyduct justify. He should also be informed that he has, in his representation, used language unbecoming of a senior official, and that he should desist from this in future. You may watch his work up to the end of March, 1955 and judging from his work and companyduct, you may treat him as eligible for being companysidered for promotion as Assistant Transportation Superintendent in the Selection that may be made after March 1955. This was companymunicated to the petitioner on February 17, 1955. In the meantime the petitioner had on February 9, 1955, filed his writ petition under Art. 226 of the Constitution. Mr. Justice Harnam Singh took the view that the petitioner had been punished by being reduced in rank without being given an opportunity to show cause against the action proposed to be taken in regard to him and that companysequently the order was invalid for number-compliance with the provisions of Art. 311 2 of the Constitution. On a Letters Patent Appeal filed by the Union of India, a Division Bench Bhandari C. J. and Falshaw J. reversed the order of Harnam Singh J. and dismissed the petitioners writ application. The High Court having subsequently certified that it was a fit case for appeal to this Court, the petitioner has number companye up on appeal before us and the question for our decision is whether the order passed by the General Manager on August 19, 1953, amounted to a reduction in rank within the meaning of Art. 311 2 of the Constitution, for if it did then the order must be held to be invalid as the requirements of that article had admittedly number been companyplied with. Under the English Common Law all servants of the Crown held office during the pleasure of the Crown and were liable to be dismissed at any time and without any reason being assigned for such dismissal. No action lay against the Crown in respect of such dismissal, even though it were companytrary to the express term of the companytract of employment, for the theory was that the Grown companyld number fetter its future executive action by entering into a companytract in matters which companycerned the welfare of the State. A servant of the Crown companyld number at Common Law sue the Crown even for the arrears of his salary, and his claim companyld be only on the bounty of the Crown. The established numberion was that the implied companydition between the Crown and its servant was that the latter held his office during the pleasure of the Crown, numbermatter whether it had been referred to when the engagement had been made or number and that public policy demanded this qualification. See per Lord Blackburn in Mulvenna v. The Admiralty 1 . This rule was applied in full force in Lucas v. Lucas and High Commissioner for India 2 , where it was held that the sterling overseas pay of an Indian Civil Servant was number a debt which companyld be attached in satisfaction of an order for the payment of alimony. In the State of Bihar v, Abdul Majid 3 , however, this Court held, for reasons stated in the judgment delivered by Mahajan C. J. that the Indian Law has number adopted the rule of English Law on the subject in its entirety. Turning to our Statute Law, we find that in the Government of India Act, 1915 5 6 Geo. V. Ch. 61 as originally enacted, there was numberreference to this doctrine of the English Common Law. By s. 45 of the Government of India Act, 1919 9 10 Geo. V. Ch. 101 read with Part I of the second schedule to that Act several sections, including s. 96-B, were introduced into the Government of India Act, 1915 hereinafter called the 1915 Act . The relevant portion of s. 96-B was as follows 96-B 1 . Subject to the provisions of this Act and the rules made thereunder, every person in the civil service of the Crown in India holds office during His Majestys pleasure, and may be employed in any manner required by a proper authority within the scope of his duty, but numberperson in that service may be dismissed by any authority subordinate to that by which he was appointed and the Secretary of State in Council may except so far as he may provide by rules to the companytrary re-instate any person in that service who has been dismissed. Sub-section 2 of that section empowered the Secretary of State in Council to make rules for regulating the classification of the Civil Services in India, the method of recruitment, the companyditions of service, pay and allowances and discipline and companyduct and sub-section 4 declared that all service rules then in force had been duly made and companyfirmed the same. The point to be numbered is that s. 96-B for the first time gave a statutory recognition and force to the English Common 1 1926 S.C. 842. 3 1954 S.C.R. 786. L.R. 1943 P. 68. Law rule that the servants of the Crown held their Offices during the pleasure of the Crown and at the same time imposed one important qualification upon the exercise of the Crowns pleasure, namely, that a servant might number be dismissed by an authority subordinate to that by which he had been appointed. Section 96-B 1 was reproduced as sub-ss. 1 and 2 of s. 240 of the Government of India Act, 1935 26 Geo. V. Ch.II , hereinafter referred to as the 1935 Act and a new subsection was added to s. 240 as sub-s. 3 . The relevant portions of s. 240 of the 1935 Act are set out below 240 1 Except as expressly provided by this Act, every person who is a member of a Civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majestys pleasure. No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him Then followed a proviso which made sub-s. 3 inapplicable to certain persons and then came sub-s. 4 providing for companypensation for premature termination of employment in certain cases which it is number necessary to set out here. The rule making power given by s. 96-B 2 of the 1915 Act was reproduced in s. 241 of the 1935 Act. Section 276 of the 1935 Act, like s. 96-B 4 of the 1915 Act, companytinued in force all the rules made under the last mentioned- Act, while the existing laws were companytinued by s. 292. It should be numbered that the opening words of s. 96-B 1 , namely, ,,Subject to the provisions of this Act and the rules made thereunder were substituted by the words Except as expressly provided by this Act. The effect of this will be discussed hereafter. Subsection 1 adopted the English Common Law rule regarding the pleasure of the Crown but imposed on it two qualifications by two separate sub-sections. Subsection 2 reproduced the qualification which had been imposed by s. 96-B 1 , namely that a servant of the class therein mentioned must number be dismissed by an authority subordinate to that by which he had been appointed and sub-s. 3 introduced a still more important qualification on the exercise of the Crowns pleasure, namely, that numbersuch servant must be dismissed 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. Reduction in rank was number referred to in s. 96-B 1 but was for the first time added to dismissal in sub-s. 3 . Then came our Constitution on January 26, 1950. Part XIV deals with Services under the Union and the States. Chapter I companytains seven sections grouped under the heading Services. Section 240 1 of the 1935 Act has been substantially reproduced in Art. 310 1 and sub-ss. 2 and 3 of s. 240 have become Art. 311 1 and 2 , while s. 276 of the 1935 Act, which companytinued the existing rules in force, has been embodied in Art. 313. Article 310 1 and Art. 311 omitting the proviso to cl. 2 are as follows 310 1 Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-India Service or holds any post companynected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State. 311 1 No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a St-ate shall be dismissed or removed by an authority subordinate to that by which he was appointed. No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him povided If any question arises whether it is reasonably practicable to give any person an opportunity of showing cause under clause 2 , the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final. To summarise As under s. 96-B 1 of the 1915 Act and s. 240 1 of the 1935 Act, the persons specified therein held office during the pleasure of the Crown, so under Art. 310 1 they hold their office during the pleasure of the President or of the Governor, as the case may be. The opening words of Art. 310 1 , namely, Except as expressly provided by this Constitution reproduce the opening words of s. 240 1 of the 1935 Act, substituting the word Constitution for the word Act . The exceptions companytemplated by the opening words of Art. 310 1 quite clearly refer, inter alia, to Arts. 124, 148, 218 and 324 which respectively provide expressly that the Supreme Court Judges, the Auditor-General, the High Court Judges and the Chief Election Commissioner shall number be removed from his office except by an order of the President passed after an address by each House of Parliament, supported by the requisite majority therein specified, has been presented to him in the same session for such removal on the ground of proved misbehaviour or incapacity. These are clearly exceptions to the rule embodied in Art. 310 1 , that public servants hold their office during the pleasure of the President or the Governor, as the case may be. Subject to these exceptions our Constitution, by Art. 310 1 , has adopted the English Common Law rule that public servants hold office during the pleasure of the President or Governor, as the case may be and has, by Art. 31 1, imposed two qualifications on the exercise of such pleasure. Though the two qualifications are set out in a separate article, they quite clearly restrict the operation of the rule embodied in Art. 310 1 . In other words the provisions of Art. 311 operate as a proviso to Art. 310 1 . All existing laws have been companytinued by Art. 372, some of which, e.g., the Code of Civil Procedure make, it possible for a public servant to enforce his claims against the State. It has accordingly been held by this Court in the State of Bihar v. Abdul Majid supra that the English Common Law rule regarding the holding of office by public servants only during the pleasure of the Crown has number been adopted by us in its entirety and with all its rigorous implications. Passing on to Art. 311 we find that it gives a two fold protection to persons who companye within the article, namely, 1 against dismissal or removal by an authority subordinate to that by which they were appointed and 2 against dismissal or removal or reduction in rank without giving them a reasonable opportunity of showing cause against the action proposed to be taken in regard to them. Incidentally it will be numbered that the word removed has been added after the word dismissed. in both cls. 1 and 2 of Art. 311. Upon Art. 311 two questions arise, namely, a who are entitled to the protection and b what are the ambit and scope of the protection ? Re a Articles 310 and 311 are two of the articles which have been grouped under the heading Services in Chapter I of Part XIV which deals with the Services under the Union and the States. It is well known that there are different species of Government services. In the absence of a companytract to the companytrary the terms of employment of persons in different services are governed by rules made by the appropriate authorities to which reference will hereafter be made. The strength of a service or a part of a services actioned as a separate unit is, in the Fundamental Rules, s. 111, ch. 11, r. 9 4 , called the cadre. Each cadre companysists of a certain number of posts. According to r. 9 22 of the Fundamental Rules, a permanent post means a post carrying a definite rate of pay sanctioned without limit of time. In each cadre there may be and often is a hierarchy of ranks. Due to rush of business or other exigencies some temporary posts are often created. A temporary post is defined in r. 9 30 to mean a post carrying a definite rate of pay sanctioned for a limited time. These temporary posts are very often outside the cadre and are usually for one year and are renewed from year to year, although some of them may be created for a certain specified period. The companyditions of service of a Government servant appointed to a post, permanent or temporary, are regulated by the terms of the companytract of employment, express or implied, and subject thereto, by the rules applicable to the members of the particular service. The appointment of a Government servant to a permanent post may be substantive or on probation or on an officiating basis. A substantive appointment to a permanent post in public service companyfers numbermally on the servant so appointed a substantive right to the post and he becomes entitled to hold a lien on the post. This lien is defined in Fundamental Rule s. 111, ch. 11, r. 9 13 as the title of a Government servant to hold substantively a permanent post, including a tenure post, to which he has been appointed substantively. The Government cannot terminate his service unless it is entitled to do so 1 by virtue of a special term of the companytract of employment, e.g., by giving the requisite numberice provided by the companytract or 2 by the rules governing the companyditions of his service, e.g., on attainment of the age of superannuation prescribed by the rules, or on the fulfilment of the companyditions for companypulsory retirement or, subject to certain safeguards on the abolition of the post or on being found guilty after a proper enquiry on numberice to him, of misconduct negligence, inefficiency or any other disqualification An appointment to a permanent post in Government service on probation means, as in the case of a person appointed by a private employer, that the servant so appointed is taken on trial. The period of probation may in some cases be for a fixed period, e.g., for six months or for one year or it may be expressed simply as on probation without any specification of any period. Such an employment on probation, under the ordinary law of master and servant, companyes to an end if during or at the end of the probation the servant so appointed on trial is found unsuitable and his service is terminated by a numberice. An appointment to officiate in a permanent post is usually made when the incumbent substantively holding that post is on leave or when the permanent post is vacant and numbersubstantive appointment has yet been made to that post. Such an officiating appointment companyes to an end on the return of the incumbent substantively holding the post from leave in the former case or on a substantive appointment being made to that permanent post in the latter case or on the service of a numberice of termination as agreed upon or as may be reasonable under the ordinary law. It is, therefore, quite clear that appointment to a permanent post in a Government service, either on probation, or on an officiating basis, is, from the very nature of such employment, itself of a transitory character and, in the absence of any special companytract or specific rule regulating the companyditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time. In short, in the case of an appointment to a permanent post in a Government service on probation or on an officiating basis, the servant so appointed does number acquire any substantive right to the post and companysequently cannot companyplain, any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time. Likewise an appointment to a temporary post in a Government service may be substantive or on probation or on an officiating basis. Here also, in the absence of any special stipulation or any specific service rule, the servant so appointed acquires numberfight to the post and his service can be terminated at any time except in one case, namely, when the appointment to a temporary post is for a definite period. In such a case the servant so appointed acquires a right to his tenure for that period which cannot be put an end to unless there is a special companytract entitling the employer to do so on giving the requisite numberice or, the person so appointed is, on enquiry held on due numberice to the servant and after giving him a reasonable opportunity to defend himself, found guilty of misconduct, negligence, inefficiency or any other disqualification and is by way of punishment dismissed or removed from service or reduced in rank. The substantive appointment to a temporary post, under the rules, used to give the servant so appointed certain benefits regarding pay and leave, but was otherwise on the same footing as appointment to a temporary post on probation or on an officiating basis, that is to say, terminable by numberice except where under the rules promulgated in 1949 to which reference Will hereafter be made, his service had ripened into what is called a quasipermanent service. The position may, therefore, be summarised as follows In the absence of any special companytract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is companypulsorily retired after having put in the prescribed number of years service or the post is abolished and his service cannot be terminated except by way Of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due numberice to him. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service. Except in these two cases the appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed numberright to the Post and his srvice may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service. The question for our companysideration is whether the protections of Art. 311 are available to each of these several categories of Government servants. A number of decisions bearing on the question of companystruction of Arts. 310 and 311 have been cited before us which indicate that there is some difference of opinion between the Judges of the different High Courts and in some cases amongst the Judges of the same High Court. Thus it has been held in some cases that Arts. 310 and 311 do number make any distinction between Government servants who are employed in permanent posts and those who are employed in temporary posts. See Jayanti Prasad v. The State of Uttar Pradesh 1 , 0. P. Oak v. The State of Bombay 2 Kishanlal Laxmilal v. The State of Madhya Bharat 3 , Gopi Kishore Prasad v. The State of Bihar 4 , Punit lal Saha v. The State of Bihar 5 and Yusuf Ali Khan v. Province of the Punjab 6 . On the other hand it has been held in some cases that a Government servant cannot be deemed to be a member of a service unless he is permanently absorbed therein, number can he be deemed to be a holder of such post unless he holds it permanently and that such a Government servant is number entitled to claim the benefit of Art. 311. See Laxminarayan Chiranjilal Bhargava v. The Union of India 7 , Engnneer-in- Chief, Army Head Quarters v. C. A. Gupta Ram 8 , State of Punjab v. S. Sukhbans Singh 9 and Chironjilal v. Union of India 10 . The cases cited before us also indicate that the preponderance of view is that only a dismissal or removal or reduction in rank by way of penalty attracts the operation of Art. 311 2 , but that a termination of service brought about otherwise than by way of punishment, e.g., by the exercise of the right under the terms of employment or under the relevant rules regulating the companyditions of service which form part of the terms of employment does number. See Jayanti Prasad v. The State of Uttar Pradesh supra , Shrinivas Ganesh v. Union of India 11 Jatindra Nath Biswas v. R. Gupta 12 , Rabindra Nath Das v. The General Manager, Eastern Railway 13 , Jatindra Nath Mukherjee v. The Government of the Union of India , Ahmad Sheikh v. Ghulam Hassan 15 , Ganesh Balkrishna Deshmukh v. The State of Madhya Bharat 16 , D. P. Ragunath v. The State of Coorg 17 , M. V. Vichoray v. The State of Madhya Pradesh 18 , Kamta Charan Srivastava v. Post Master General 19 and Sebastian v. State . The cases, A.I.R. 1951 All. 793. 2 A.I.R. 1957 Bom. 175. A.I.R. 1956 M B. 1oo. 4 A.I.R. 1955 Pat.372. A.I.R. 1957 Pat. 357 6 A.I.R. 1950 Lah. 59. 7 1.1,.R. 1955 Nag. 803A. I. R. 1956 Nag. 8 A.I.R. 1957 Punj. 42. A.I.R. 1957 Punj. 191.113. 10 A.I.R. 1957 Raj. 81. L.R. 58 Bom. 673 A.I.R. 1956 Bom. 455. 12 I.R. 1954 Cal. 383. 13 1955 59 C.W.N. 859. 14 1957 611C.W.N. 815. A.I.R. 1957 J. K. xi. 16 A.I.R. 1956 M.B. 172. A.I.R. 1957 Mys. 8. 18 Al.R. 1952 Nag. 288. A.I.R. 1955 Pat. 381. 2o A.I.R. 1955 Tr. Co. 12, however, do number lay down or clearly indicate any test for ascertaining whether in any particular case a termination of service is inflicted by way of penalty so as to amount to dismissal, removal or reduction in rank within the meaning of Art. 311 2 or is brought about by the exercise of the right to terminate it arising out of the terms of employment agreed upon between the parties or companytained in rules regulating the companyditions of service subject to which the employment was made. Further a certain amount of companyfusion arises because of the indiscriminate use of the words temporary, Cc provisional , officiating and on probation . We, therefore, companysider it right to examine and ascertain for ourselves the scope and effect of the relevant provisions of the Constitution. Article 311 does number, in terms, say that the protections of that article extend only to persons who are permanent members of the services or who hold permanent civil posts. To limit the operation of the protective provisions of this article to these classes of persons will be to add qualifying words to the article which will be. companytrary to sound principles of interpretation of a Constitution or a statute. In the next place, el. 2 of Art. 311 refers to such person as aforesaid and this reference takes us back to cl. 1 of that article which speaks of a person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State. These persons also companye within Art. 3 10 1 which, besides them, also includes persons who are members of a defence service or who hold any post companynected with defence. Article 310 also is number, in terms companyfined to persons who are permanent members of the specified services or who hold permanent posts companynected with the services therein mentioned. To hold that that article companyers only those persons who are permanent members of the specified services or who hold posts companynected with the services therein mentioned will be to say that persons, who are number permanent members of those services or who do number hold permanent posts therein, do number hold their respective offices during the pleasure of the President or the Governor, as the case may be-a proposition which obviously cannot stand scrutiny. The matter, however, does number rest here. Coming to Art. 31 1, it is obvious that if that article is limited to persons who are permanent members of the services or who hold permanent civil posts, then the companystitutional protection given by cls. 1 and 2 will number extend to persons who officiate in a permanent post or in a temporary post and companysequently such persons will be liable to be dismissed or removed by an authority subordinate to that by which they were appointed or be liable to be dismissed, removed or reduced in rank without being given any opportunity to defend themselves. The latter classes of servants require the companystitutional protections as much as the other classes do and there is numberhing in the language of Art. 311 to indicate that the Constitution makers intended to make any distinction between the two classes. There is numberapparent reason for such distinction. It is said that persons who are merely officiating in the posts cannot be said to hold the post, for they only perform the duties of those posts. The word hold is also used in Arts. 58 and 66 of the Constitution. There is numberreason to think that our Constitution makers intended that the disqualification referred to in cl. 2 of the former and cl. 4 of the latter should extend only to persons who substantively held permanent posts and number to those who held temporary posts and that persons officiating in permanent or temporary posts would be eligible for election as President or Vice- President of India. There companyld be numberrational basis for any such distinction. In our judgment, just as Art. 310, in terms, makes numberdistinction between permanent and temporary members of the services or between persons holding permanent or temporary posts in the matter of their tenure being dependent upon the pleasure of the President or the Governor, so does Art. 311, in our view, make numberdistinction between the two classes, both of which are, therefore, within its protections and the decisions holding the companytrary view cannot be supported as companyrect,. Re b -Clause 1 of Art. 311 is quite explicit and hardly requires discussion, The scope and the ambi of that protection are that Government servants of the kinds referred to therein are entitled to the judgmen of the authority by which they were appointed or some authority superior to that authority and that the should number be dismissed or removed by a lesser authority in whose judgment they may number have the same faith. The underlying idea obviously is that a provision like this will ensure to them a certain amount of security of tenure. Clause 2 protects Government servant against being dismissed or removed or reduced in rank without being given a reasonable opportunity of showing cause against the action proposed to be taken in regard to them. It will be numbered that in cl. 1 the words dismissed and removed have been used while in cl. 2 the words dismissed , removed and reduced in rank have been used. The two, protections are 1 against being dismissed or removed by an authority subordinate to that by which the appointment had been made and 2 against being dismissed, removed or reduced in rank without being heard. What, then, is the meaning of those expressions dismissed , removed or reduced in rank ? It has been said in Jayanti Prasad v. The State Of Uttar Pradesh supra that these are technical words used in cases in which a persons services are terminated by way of punishment. Those expressions, it is urged, have been taken from the service rules, where they were used to denote the three major punishments and it is submitted that those expressions should be read and understood in the same sense and treated as words of art. This leads us to embark upon an examination of the service rules relating to punishments to which the Government servants can be subjected. Rule 418 of the Civil Service Regulations of 1902 hereinafter called the 1902 Rules provide, inter alia, that the removal of public servants from the service for misconduct, insolvency, inefficiency number due to age or failure to pass a prescribed examination entailed forfeiture of past services. Those 1902 Rules, however, did number Bay under what circumstances or in what manner and by which authority public servants companyld be removed. In exercise of the powers companyferred by s. 96-B 2 of ,he 1915 Act the Secretary of State in Council framed the Civil Service Governors Provinces Classification Rules hereinafter referred to as the 1920 Classification Rules which came into force in December, 1920 and were applicable to Government servants serving in the Governors Provinces. Rule X of these 1920 Classification Rules laid down that a local Government might for good and sufficient reasons 1 censure, 2 reduce to a lower post, 3 withhold promotion from or 4 suspend from service, any officer of an all- India service, provided that numberhead of the department appointed with the approval of the Governor General in Council would be reduced to a lower post without the sanction of the Governor General in Council. Likewise r. XIII provided that, without prejudice to the provisions of any law for the time being in force, the local Government might for good and sufficient reasons 1 censure, 2 withhold promotion from, 3 reduce to a lower post, 4 suspend, 5 remove, or 6 dismiss any officer holding a post in a provincial or subordinate service or a special appointment. Rule XIV laid down the procedure in cases of dismissal, removal or reduction in the following terms Rule XIV-Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, in all cases in which the dismissal, removal or reduction of any officer is ordered, the order shall, except when it is based on facts or companyclusions established at a judicial trial, or when the officer companycerned has absconded with the accusation hanging over him, be preceded by a properly recorded departmental enquiry. At such an enquiry a definite charge in writing shall be framed in respect of each offence and explained to the accused, the evidence in support of it and any evidence which he may adduce in his defence shall be recorded in his presence and his defence shall be taken down in writing. Each of the charges framed shall be discussed and a finding shall be recorded on each charge. Thus we find that these 1920 Classification Rules enumerated the different kind-, of punishments that companyld be inflicted on the different classes of Government servants and elaborately prescribed the procedure which had to be followed before those punishments companyld be inflicted. The Secretary of State in Council also promulgated, with effect from January 1, 1922, what are known and what will hereafter be referred to as the Fundamental Rules governing the companyditions of service, leave, pay and pension of all Government servants whose pay was debitable to civil estimates in India and to any other class of Government servants in India to which the Secretary of State in Council might by general or special order declare them to be applicable. Like r. 418 of the 1902 Rules, r. 52 of the Fundamental Rules provided that the pay and allowances of Government servants, who were dismissed or removed from service, would cease from the day of such dismissal or removal. Thus the penal companysequences of loss of pay and allowances companytinued to follow dismissal or removal. On May 27, 1930, the Secretary of State for India in Council, in exercise of the powers companyferred by s. 96 B 2 of the Government of India Act, 1919, made the Civil Services Classification, Control and Appeal Rules, hereinafter called the 1930 Classification Rules which superseded the 1920 Classification Rules. The 1930 Classification Rules, by r. 3, applied to every person in the whole time civil employment of a Government in India other than a person so employed only occasionally or subject to discharge at less than one months numberice except certain classes of persons therein specified which included, inter alia, railway servants. Under r. 14 the public services in India were classified under six heads, namely, All-India Services, 2 Central Services Class I, 3 Central Services Class II, 4 Provincial Services, 5 Specialist Services and 6 the Subordinate Services. Under r. 15 read with sch. I the following were the all-India services- I Indian Civil Service, 2 Indian Police Service, 3 Indian Agricultural Service, 4 Indian Educational Service, Indian Forest Service, 6 Indian Forest Engineering Service, 7 Indian Medical Service, 8 Indian Service of Engineers, 9 Indian Veterinary Service and 10 Indian General Service. The Indian Railway ,Service was number included in the list. Rule 49, as originally framed, provided as follows The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services companyprised in any of the class 1 to 5 specified in rule 14, namelyi Censure, ii Withholding of increments or promotion, including stoppage at an efficiency bar, iii Reduction to a lower post or time-scale, or to a lower stage in a time scale, iv Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders, v Suspension, vi Removal from the civil service of the Crown which does number disqualify from future employment, vii Dismissal from the Civil Service of the Crown, which, ordinarily disqualifies from future employment. Explanation, The discharge- a of a person appointed on probation, during the period of probation, b of a person appointed otherwise than under companytract to hold a temporary appointment, on the expiration of the period of the appointment, c of a person engaged under companytract, in accordance with the terms of -his companytract, does number amount to removal or dismissal within the meaning of this rule. The Explanation to r. 49 was amended on March 28, 1948, on February 28, 1950, and finally on January 28, 1955, when the Explanation was numbered as Explanation I and the words in cl. ii of r. 49, namely, including stoppage at an efficiency bar were deleted and Explanation II was added. So amended the Explanations read as follows Explanation I-The termination of employment-- a of a person appointed on probation during or at the end of the period of probation, in accordance with the terms of the appointment and the rules governing the probationary service or b of a temporary Government servant appointed otherwise than under companytract, in accordance with rule 5 of the Central Civil Services Temporary Service Rules, 1949 or c of a person engaged under a companytract does number amount to removal or dismissal within the meaning of this rule or of rule 55. Explanation II Stopping a Government servant at an efficiency bar in the time scale of his pay on the ground of his unfitness to cross the bar does number amount to withholding of increments or promotion within the meaning of this rule. Like r. XIV of the 1920 Classification Rules, r. 55 of the 1930 Classification Rules, as originally framed in 1930, provided that, without prejudice to the Public Servants Enquiries Act, 1850, numberorder of dismissal, removal or reduction should be passed on a member of a service other than an order passed on facts which had led to his companyviction in a criminal companyrt or by a companyrt martial unless he had been informed in writing of the grounds on which it was proposed to take action and had been afforded an adequate opportunity of defending himself Detailed provisions were made as to the grounds on which it was proposed to take action being reduced to the form of a definite charge or charges and for the companymunication thereof to the officer together with a statement of the allegations on which each charge was based and further provisions were made as to the procedure relating to the filing of the defence, the right to cross-examine and to give evidence in person or to have such witnesses called as he might wish to examine in his defence. Thus in the 1930 Classification Rules, as in the 1920 Classification Rules, were enumerated the different kinds of punishments which companyld be inflicted on the Government servants of the class to which those rules were applicable and out of those varieties of punishments mentioned in r. 49, three of them, namely, dismissal, removal and reduction in rank, were treated as major punishments and some special procedural protection was prescribed in the interest of the Government servants. At the date of the companymencement of the Constitution the railway servants were governed by a separate set of rules companylected in the two volumes of the Indian Railway Establishment Code. The petitioner is a railway servant and as such is governed by the rules of the Indian Railway Code. Chapter XVII, which is in Volume I, regulated the companyduct and discipline of the railway servants and the Railway Fundamental Rules companylected in Volume 11 regulated their companyditions of service, pay and deputation. These are similar to and are in pari materia with the 1930 Classification Rules. Rule 1702 of Chapter XVII prescribes eleven distinct penalties which may for good and sufficient reasons be imposed upon railway servants, namely, 1 censure, 2 withholding of the privilege of passes and or privilege ticket order, 3 fines, including forfeiture or reduction of running allowances in the case of train and running staff, 4 withholding of increments or promotion including stoppage at an efficiency bar, 5 reduction to a lower post or time-scale or to a lower stage in a time scale, 6 recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders, 7 suspension, 8 removal from the service, 9 dismissal from the service, 10 withholding of the whole or part of Provident Fund and Gratuity Rules Chapters XIII and XV and 11 reducing or withholding the maximum pension admissible in accordance with the provisions of the rules governing the grant of pensions. There is a Note below this rule to the effect that the discharge a of a person appointed on probation, during the period of probation, b of a person engaged under companytract for a specific period, on the expiration of such period in accordance with the terms of his companytract, c of a person appointed in a temporary capacity otherwise than under a companytract, in accordance with the general companyditions of service applicable to temporary employment and of some other persons enumerated therein, do number amount to removal or dismissal within the meaning of r. 1702. Rule 1703 states that while dismissal from service disqualifies a railway servant from future employment, removal from service is number to be companysidered an absolute disqualification. Rule 1704 specifies the , authority companypetent to impose penalties. Rule 1706 enumerates the causes for which a railway servant may be dismissed from service, namely, 1 companyviction by a criminal companyrt or by a companyrt martial, 2 serious misconduct, 3 neglect of duty resulting in or likely to result in loss to Government or to a Railway administration, or danger to the lives of persons using the railway, or 4 insolvency or habitual indebtedness, and 5 obtaining employment by the companycealment of his antecedents, which would have prevented his employment in railway service had they been known before his appointment to the authority appointing him. Procedure for dismissal is set out in r. 1707. Removal from Service is dealt with by r. 1708 and the procedure for removal is regulated by r. 1709. Suspension is the subject matter of r. 1711 and the procedure for imposing the other penalties is companytained in r. 1712. Reduction to lower post is governed by r. 1714 which enjoins that when a railway servant is reduced for inefficiency or misconduct to a lower post in timescale or to a lower grade or to a lower stage in a time-scale the authority ordering the reduction must state the period for which it will be effective and whether, on the expiry of that period, it will operate to postpone future increments or to affect the railway servants seniority and, if so, to what extent. Rule 2310 provides that numberpension is to be granted to an officer dismissed or removed for misconduct, insolvency or inefficiency although companypassionate allowances may be granted in deserving cases. Thus the Indian Railway Establishment Code also, like the 1930 Classification Rules, provides for different punishments and the procedure to be followed for inflicting the same and the three graver punishments of dismissal, removal and reduction are dealt with separately, and special provisions are made regulating the procedure which must be followed before those graver forms of punishments can be inflicted. In exercise of the powers companyferred by sub-s. 2 of s. 241 of the 1935 Act, the Governor-General made certain rules called the Central Civil Service Temporary Service Rules, 1949 hereinafter referred to as the 1949 Temporary Service Rules . These rules applied to all persons who held a civil post under the Government of India and who were under the rulemaking companytrol of the Governor-General, but who did number hold a lien on any post under the Government of India or any Provincial Government, but they did number apply to several categories of persons, including the railway servants. By those rules some protection had been given even to persons who did number substantively hold permanent posts. Thus under r. 6 the services of those persons whose services had ripened into what was therein defined as quasi-permanent service companyld only be terminated in the same circumstances and in the same manner as those of Government servants in permanent service companyld be terminated or when the appointing authority certified that reduction had occurred in the number of posts available to Government servants -not in temporary service. Further protection was given by the two provisos to that rule. By r. 5, however, the employment of persons holding temporary service companyld be terminated at any time by a months numberice. Just to companyplete the history of the service rules reference may be made to the all-India Service Discipline and Appeal Rules, 1955 which were promulgated by the Central Government in September, 1955, after companysultation with the State Governments. For our present purpose it is enough to say that rr. 49 and 55 of the 1930 Classification Rules were substantially reproduced in rr. 3 and 5 respectively of these 1955 Rules except that the Explanation to r. 49 has been elaborated and the results of the judicial decisions have been incorporated therein. In exercise of powers companyferred by Art. 309 and Art. 148 5 of the Constitution the President, on February 28, 1957, made the Central Civil Services Classification, Control and Appeal Rules 1957. Rule 13 of these Rules companyresponds to r. 49 of the 1930 Classification Rules, and r. 3 of the 1955 Rules and r. 15 substantially reproduces r. 55 of the 1930 Classification Rules and r. 5 of the 1955 Rules. The scheme of the Service Rules may number be broadly summarised as follows They enumerated different punishments which, for good and sufficient reason, might be inflicted on Government servants and they prescribed special procedure which had to be followed before the three major punishments, of dismissal, removal or reduction in rank companyld be meted out to the Government servants. Thus rr. X and XIII of the 1920 Classification Rules prescribed several kinds of punishments to which the different classes of Government servants companyld be subjected and r. XIV of those rules laid down certain special procedure for cases in which the three major punishments of dismissal, removal or reduction of an officer were companytemplated. Likewise r. 49 of the 1930 Classification Rules reproduced with some additions the punishments prescribed in rr. X and XIII and r. 55 of the 1930 Classification Rules provided similar procedural protection as had been prescribed by r. XIV of the 1920 Classification Rules before the punishments of dismissal, removal or reduction in rank companyld be inflicted. The scheme of the rules applicable to the railway servants was similar in substance. Thus rr. 1702 to 1714 and 2310 of the Indian Railway Code substantially reproduce the provisions of rr. 49 and 55 of the 1930 Classification Rules. In short, the service rules, out of the several categories of punishments, selected the three graver punishments of dismissal, removal and reduction in rank and laid down special procedure for giving protection to the Government servants against the infliction of those three major punishments. It will be recalled that the opening words of s. 96-B 1 of the 1915 Act were- Subject to the provisions of this Act and the Rules made thereunder and subs. 4 companyfirmed the service rules that were then in force. In spite of this it was held in R. Venkata Rao v. Secretary of State for India 1 with reference to the rules made under s. 96-B of the 1915 Act that, while that section assured that the tenure of office, though at pleasure, would number be subject to capricious or arbitrary action but would be regulated by the rules, it gave numberright to the appellant, enforceable by action, to hold his office in accordance with those rules. It I 1936 L.R. 64 I.A. 55. was held that s. 96-B of the 1915 Act and the rules made thereunder only made provision for the redress of grievances by administrative process. As if to reinforce the effect of that decision, the opening words quoted above were, in s. 240 1 of the 1935 Act, replaced by the words Except as expressly otherwise provided by this Act. The position of the Government servant was, therefore, rather insecure, for his office being held during the pleasure of His Majesty under the 1915 Act as well as under the 1935 Act the rules companyld number over-ride or derogate from the statute and the protection of the rules companyld number be enforced by action so as to nullify the statute itself. The only protection that the Government servant had was that, by virtue of s. 96- B 1 , they companyld number be dismissed by an authority subordinate to that by which they were appointed. The position, however, improved to some extent under the 1935 Act which, by s. 240 3 , gave a further protection in addition to that provided in s. 240 2 which reproduced the protection of s. 96-B 1 of the 1915 Act. In other words the substance of the protection provided by r. 55 of the 1930 Classification Rules which required a special procedure to be followed before the three major punishments of dismissal, removal or reduction in rank out of the several punishments enumerated in r. 49 was bodily lifted, as it were, out of the Rules and embodied in the statute itself so as to give a statutory protection to the Government servants. These statutory protections have number become companystitutional protections as a result of the reproduction of the provisions of s. 240 in Arts. 310 and 311 of our Constitution. It follows from the above discussion that both at the date of the companymencement of the 1935 Act and of our Constitution the words dismissed , removed and reduced in rank , as used in the service rules, were well understood as signifying or denoting the three major punishments which companyld be inflicted on Government servants. The protection given by the rules to the Government servants against dismissal, removal or reduction in rank, which companyld number be en. forced by action, was incorporated in sub-ss. 1 and 2 of s. 240 to give them a statutory protection by indicating a procedure which had to be followed before the punishments of dismissal, removal or reduction in rank companyld be imposed on them and which companyld be enforced in law. These protections have number been incorporated in Art. 311 of our Constitution. The effect of s. 240 of the 1935 Act reproduced in Arts. 310 and 311, as explained by this Court in S. A. Venkataraman v. The Union of India 1 , has been to impose a fetter on the right of the Government to inflict the several punishments therein mentioned. Thus under Art. 311 1 the punishments of dismissal, or removal cannot be inflicted by an authority subordinate to that by which the servant was appointed and under Art. 311 2 the punishments of dismissal, removal and reduction in rank cannot be meted out to the Government servant without giving him a reason. able opportunity to defend himself. The principle embodied in Art. 310 1 that the Government servants hold office during the pleasure of the President or the Governor, as the case may be, is qualified by the provisions of Art. 311 which give protection to the Government servants. The net result is that it is only in those cases where the Government intends to inflict those three forms of punishments that the Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It follows, therefore, that if the termination of service if sought to be brought about otherwise than by way of punishment, then the Government servant whose service is so terminated cannot claim the protection of Art. 311 2 and the decisions cited before us and referred to above, in so far as they lay down that principle, must be held to be rightly decided. The foregoing companyclusion, however, does number solve the entire problem, for it has yet to be ascertained as to when an order for the termination of service is inflicted as and by way of punishment and when it is number. It has already been said that where a person is appointed substantively to a permanent post in 1 1954 S.C.R. 1 I50- Government service, he numbermally acquires a right to hold the post until under the rules, he attains the age of superannuation or is companypulsorily retired and in the absence of a companytract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with Art. 311 2 . Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servants rights and brings about a premature end of his employment. Again where a person is appointed to a temporary post for a fixed term of say five years his service cannot, in the absence of a companytract or a service rule permitting its premature termination be terminated before the expiry of that period unless he has been guilty of some misconduct, negligence, in. efficiency or other disqualifications and appropriate proceedings are taken under the rules read with Art. 311 2 . The premature termination of the service of a servant so appointed will prima facie be a dismissal or removal from service by way of punishment and so within the purview of Art. 311 2 . Further, take the case of a person who having been appointed temporarily to a post has been in companytinuous service for more than three years or has been certified by the appointing authority as fit for employment in a quasipermanent capacity, such person, under r. 3 of the 1949 Temporary Service Rules, is to be deemed to be in quasi-permanent service which, under r. 6 of those Rules, can be terminated in the circumstances and in the manner in which the employment of a Government servant in a permanent service can be terminated or ii when the appointing authority certifies that a reduction has occurred in the number of posts available for Government servants number in permanent service. Thus when the service of a Government servant holding a post temporarily ripens into a quasi-permanent service as defined in the 1949 Temporary Service Rules, he acquires a right to the post although his appointment was initially temporary and, therefore, the termination of his employment otherwise than in accordance with r. 6 of those Rules will deprive him of his right to that post which he acquired under the rules and will prima facie be a punishment and regarded as a dismissal or removal from service so as to,. attract the application of Art. 311. Except in the three cases just mentioned a Government servant has numberright to his post and the termination of service of a Government servant does number, except in those cases, amount to a dismissal or removal by way of punishment. Thus where a person is appointed to a permanent post in a Government service on probation, the termination of his service during or at the end of the period of probation will number ordinarily and by itself be a punishment, for the Government servant, so appointed, has numberright to companytinue to hold such a post any more than the servant employed on probation by a private employer is entitled to do. Such a termination does number operate as a forfeiture of any right of the servant to hold the post, for he has numbersuch right and obviously cannot be a dismissal, removal or reduction in rank by way of punishment. This aspect of the matter is recognised in the Explanation to r. 49 of the 1930 Classification Rules which companyrespond to the Note to r. 1702 of the Indian Railway Code and r. 3 of the 1955 Rules and r. 13 of the 1957 Rules, for all those rules expressly say that the termination of such an appointment does number amount to the punishment of dismissal or removal within the meaning of those rules. Likewise if the servant is appointed to officiate in a permanent post or to hold a temporary post other than one for a fixed term, whether substantively oron probation or on an officiating basis, under the general law, the implied term of his employment is that his service may be terminated on reasonable numberice and the termination of the service of such a servant will number per se amount to dismissal or removal from service. This principle also has been recognised by the Explanations to r. 49 of the 1930 Classification Rules companyrespoding to the Note to r. 1702 of the Indian Railway Code and r. 5 of the 1949 Rules and r. 3 of the 1955 Rules and r. 13 of the 1957 Rules. Shortly -put, the principle is that when a servant has right to a post or to a rank either under the terms of the companytract of employment, express or implied, or under ,,the rules governing the companyditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has numberright to the post as where be is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has number ripened into a quasipermanent service as defined in the Temporary Service Rules, the termination of his employment does number deprive him of any right and cannot, therefore, by itself be a punishment. One test for determining whether the termination of the service of a Government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post. If he had a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Art. 311. In other words and broadly speaking, Art. 311 2 , will apply to those cases where the Government servant, had he been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank. To put it in another way, if the Government has, by companytract, express or implied, or, under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the companytract or the rules is, prima facie and per se, number a punishment and does number attract the provisions of Art. 311. It does number, however, follow that, except in the three cases mentioned above,, in all other cases, termination of service of a Government servant who has numberright to his post, e.g., where he was appointed to a post, temporary or permanent, either on probation or on an officiating basis and had number acquired a quasi. permanent status, the termination cannot, in any circumstance, be a, dismissal or removal from service by way of punishment. Cases may arise where the Government may find a servant unsuitable for the post on acconut of misconduct, negligence, inefficiency or, other disqualification. If such a servant was appointed to a post, permanent or temporary, either on probation or on an officiating basis, then the very transitory character of the employment implies that the employment was terminable at any time on reasonable numberice given by the Government. Again if the servant was appointed to a post, permanent or temporary, on the express companydition or term that the employment would be terminable on say a months numberice as in the case of Satish Chander Anand v. The Union of India 1 , then the Government might at any time serve the requisite numberice. In both cases the Government may proceed to take action against the servant in exercise of its powers under the terms of the companytract of employment, express or implied, or under the rules regulating the companyditions of service, if any be applicable, and ordinarily in such a situation the Government will take this companyrse. But the Government may take the view that a simple termination of service is number enough and that the companyduct of the servant has been such that he deserves a punishment entailing penal companysequences. In such a case the Government may choose to proceed against the servant on the basis of his misconduct, negligence, inefficiency or the like and inflict on him the punishment of dismissal, removal or reduction carrying with it the penal companysequences. In such a case the servant will be entitled to the protection of Art. 311 2 . The position may, therefore, be summed up as follows Any and every termination of service is number a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a company. tractual right is number per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. The Union of India supra . Likewise the termination of service by companypulsory retirement in terms of a 1 1953 S.C.R. 655. specific rule regulating the companyditions of service is number tantamount to the infliction of a punishment and does number attract Art. 311 2 , as has also been held by this Court in Shyam Lal v. The State of Uttar Pradesh I . ,In either of the two abovementioned cases the termination of the service did number carry with it the penal companysequences of loss of pay, or allowances under r. 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the companytract of employment or the specific service rule, nevertheless, if a right exists, under the companytract or the rules, to terminate the service the motive, operating on the mind of the Government is, as Chagla C.J. has said in Shrinivas Ganesh v. Union of India supra , wholly irrelevant. In short, if the termination of service is founded on the right flowing from companytract or the service rules then, prima facie, the termination is number a punishment and carries with it numberevil companysequences and so Art. 3 1 1 is number attracted. But even if the Government has, by companytract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Art. 311 must be companyplied with. As already stated if the servant has got a right to companytinue in the post, then, unless the companytract of employment or the rules provide to the companytrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Art. 311, for it operates as a forfeiture of his right and he is visited with the evil companysequences of loss of pay and allowances. It puts an indelible stigma on the officer 1 1955 I S.C.R. 26. affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has numberright to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will number ordinarily be a punishment. But the mere fact that the servant has numbertitle to the post or the rank and the Government has, by companytract, express or implied, or under the rules, the right to reduce him to a lower post does number mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a Punishment. The real test for determining whether the reduction in such cases is or is number by way of punishment is to find out if the order for the reduction also visits the servant with any penal companysequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or, the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government bad purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the companytract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression terminate or discharge is number company, elusive. In spite of the use of such innocuous expressions, the companyrt has to apply the two tests mentioned above, namely, 1 whether the servant had a right to the post or the rank or 2 whether he has been visited with evil companysequences of the kind hereinbefore referred to ? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art.311, which give protection to Government servant have number been companyplied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the companystitutional right of the servant. Applying the principles discussed above it is quite clear that the petitioner before us was appointed to the higher post on an officiating basis, that is to say, he was appointed to officiate in that post which, according to Indian Railway Code, r. 2003 19 companyresponding to F.R. 9 19 means, that he was appointed only to perform the duties of that post. He had numberright to companytinue in that post and under the general law the implied term of such appointment was that it was terminable at any time on reasonable numberice by the Government and, therefore, his reduction did number operate as a forfeiture of any right and companyld number be described as reduction in rank by way of punishment. Nor did this reduction under Note 1 to r. 1702 amount to his dismissal or removal. Further it is quite clear from the orders passed by the General Manager that it did number entail the forfeiture of his chances of future promotion or affect his seniority in his substantive post. In these circumstances there is numberescape from the companyclusion that the petitioner was number reduced in rank by way of punishment and, therefore, the provisions of Art. 311 2 do number companye into play at all. In this view of the matter the petitioner cannot companyplain that the requirements of Art. 311 2 were number companyplied with, for those requirements never applied to him. The result, therefore, is that we uphold the decision of the Division Bench, although on somewhat different grounds. This appeal must, therefore, be dismissed with companyts. BosE. J.-With great respect I cannot agree that Art. 311 is number attracted in this case. I agree with my Lord that Art. 311 applies to all classes of Government servants mentioned in it and that it makes numberdifference whether they are permanent, quasi-permanent, officiating, temporary or on probation. There may be good reasons for having all these shades of difference in the civil services and among those who bold civil posts in the Union and the States but I am clear that the protections afforded by Art. 311 and other parts of the Constitution cannot be nullified or whittled down by clever phrasing and subtle ingenuity. I am also clear that Except as expressly provided by this Constitution, every person etc holds office during the pleasure of the President These words are absolute and leave numberroom for inference or deduction. The pleasure can only be companytrolled by some express provision in the Constitution. One of them is in Art. 310 2 , another in Art. 31 1. There are also others, such as Arts. 124 4 and 217 1 b , but it is number necessary to enumerate them because I am only companycerned with the broad principle here. I also agree with my Lord that the words, dismissal, removal and reduction in rank, used in Art. 311 have special meaning. I would number have said this had it number been for ambiguities that arise otherwise. We were faced with that in Satish Chandra Anand v. Union of India 1 , where we had to companystrue the words dismissal and removal and to determine whether they were merely tautologous or bad been introduced to emphasise a difference in meaning. According to the dictionary, they mean the same thing or, at any rate, have subtle shades of distinction that are meaningless in the companytext in which they are used. It was therefore necessary to look to the surrounding circumstances and determine whether they had acquired special technical significance at the date of the Constitution. For that purpose, it was necessary to examine the history of the companyditions of service under the Crown and look to the various statutes and rules then in force. Except for that, I do number think it would have been proper to look at the rules for I cannot agree that the Constitution can be companystrued by reference to Acts of the Legislature and rules framed by some lesser authority and, in particular, to rules made and Acts passed after the Constitution. 1 1953 S. C. R. 655. I agree with my Lord that Art. 311 applies when penal companysequences ensue from the dismissal or removal or reduction in rank, though I prefer to phrase this in wider terms and say that the Article is attracted whenever a right is infringed in the way in which I shall proceed to explain, for a right can be infringed in that sort of way even when numberpenal companysequences follow. I have used the word right but must hasten to explain that I use it in a special sense. The right need number necessarily be justiciable number need it necessarily amount to a companytract but, broadly speaking, it must be the sort of right which, even when number enforceable in the companyrts, would form a good foundation for a Petition of Right in England. It is as difficult to speak of rights except those expressly companyferred by the Constitution when one holds at pleasure as to speak of companytracts. But they are companyvenient expressions to companyvey a particular thought, provided the limitations imposed by the companytext are number forgotten. The word companytract is used in Art. 310 2 , but as these companytracts are as much subject to pleasure as any other engagement of service except as otherwise provided by the Constitution they are number companytracts in the usual sense of the term number are the companyditions of service that apply to Government servants who do number serve under a special companytract. A companytract that can be determined at will despite an express companydition to the companytrary and that is what Art. 310 2 companytemplates is number a companytract as usually understood number are companyditions of service that can be unilaterally varied without the companysent of the other it companytracting party , and even behind his back. But they are companyvenient terms to companyvey a thought and that is the sense in which companytract is used in Art. 310 2 and the sense in which it has been used in some Privy Council rulings. Now these companyditions of service and of companyrse special companytracts as well companyfer rights and though the companyditions can be varied unilaterally because of the pleasure , they cannot be ignored so long as they are in force and if a dismissal, or removal, or reduction in rank infringes one of these rights , then, in my judgment, Art. 311 is attracted. I said in Satish Chandra Anands case 1 , that the President and Government are as free to enter into special companytracts as any other person provided they are companysistent with the Constitution. That also applies to companyditions of service where there are numberspecial companytracts . Anything else would be anomalous especially as anyone who serves under the Union or under a State serves at pleasure . It is, therefore, possible for the President to make companytracts that are terminable in a particular way or at a particular time or on the happening of a given event, provided, they do number offend the Constitution and when they are so determined, they can, broadly speaking, be called companytractual terminations. Two such cases have already been before this companyrt. In Satish Chandra Anands case supra , it was a special companytract terminable with a months numberice on either side. In Shyam Lal v. State of Uttar Pradesh 2 it was a companydition of service that permitted companypulsory retirement at a particular age. Any other variation that does number offend the Constitution would be equally permissible. These companyditions companyfer a right on one side and companyrespondingly reduce the ambit of the rights companyferred by the companytract on the other. Therefore, when Government exercises one of their rights there is numberinfringement of the other partys rights because to that extent he has numbere. It follows that when, in a given case, Government has an option to adopt one of two companyrses as, for example, to dismiss or reduce for misconduct and at the same time to terminate or alter the service under a term of the companytract or because of a companydition of the service, then, if it chooses to act under the right companyferred by the companytract , Art. 311 is number attracted even though misconduct is also present and even though that is the real reason for the action taken. But, if Government chooses to adopt such a companyrse, it must be careful to see that numberevil companysequences 1 1953 S.C.R. 655. 2 1955 1 S.C.R. 26. will ensue over and beyond those that would ordinarily follow from a numbermal termination or alteration when there is numbermisconduct or blame on the part of the person affected. But I repeat that any such companydition must be, companysistent with the Constitution and that numberclever artifice or juggling with words can destroy or whittle down the guarantees of Art. 311, or any other Article for that matter. To my mind, the test must always be whether evil companysequences over and above those that would ensue from a companytractual termination are likely to follow. Were it otherwise, the blameless man against whom numberfault can be found would be at a disadvantage. It would be anomalous to bold that a man who has been guilty of misconduct should have greater protection than a blameless individual. But any man who is visited with evil companysequences that would number ensue in the case of another similarly placed, but free from blame, can, in my opinion, claim the protection of Art.311. Now what happened in this case? The appellant was appointed to an All-India service of the Union in August, 1924. He has number been removed or dismissed from service, so he is still a member of an All-India service. On July 2, 1951, he was appointed Assistant Superintendent of Railway Telegraphs in class II service. On August 19, 1953, he was relieved of this appointment and reverted to his substantive post in a class III appointment. There can be numberdoubt that this was a reduction in rank. The only question is whether it was so within the meaning of Art. 311 for, as I said earlier, these words have special meaning and do number apply in every case where a person is removed from a higher to a lower post. The argument on behalf of the Union of India is that the higher post to which the appellant was appointed was temporary and that the appellant was only officiating in it and rules were cited to show that Government had the right, under those rules, to shift the appellant from a higher to a lower post. I need number companysider this argument because we are all agreed that Art. 311 applies even when the appointment is temporary, or officiating and, on the view I take, it does number matter whether Government had what I might call a companytractual right to reduce because even if it had, it exercised it in a way that evoked evil companysequences over and above those that would have ensued in a similar case where there was neither misconduct number blame. Our attention was directed to remarks in the appellants companyfidential reports and to various administrative numberings on his files. All these are, in my opinion, irrelevant. We are only companycerned with the operative order made by the proper authority companypetent to make it and with the companysequences that ensue from that order. In this case, the order of reversion dated August 19, 1953, is number-committal. It merely says that Shri Bishambar Nath Chopra is appointed to officiate in the appellants place and that on relief the appellant will revert to a lower rank. That in itself might be harmless but the order does number stand alone and though the various administrative numberings are irrelevant, the General Managers remarks on them, which form the real foundation of the order, cannot be ignored because the sting lies there and the evil companysequences of which I speak flow from them. They are really part and parcel of the order and the two must be read together. I say this because, quite obviously, the companystitutional guarantees of Art. 311 cannot be evaded by passing a number-committal order that is innocuous and at the same time making another order in secret that would have attracted Art. 311 had it been made openly. I am number suggesting that that was done here or that the object was to evade Art. 311 by a secret manoeuvre. All I am pointing out is that the companysequences of Art. 311 cannot be evaded by cleverly splitting up an order into two parts. Now what were those remarks? They were endorsed on the appellants file on June 11, 1953. The General Manager said I am disappointed to read these reports. He should revert as a subordinate till he makes good the ,short-comings numbericed in this chance of. his as an officer. What does that mean ? In plain English it means that ,he is number to be promoted to a like post until some companypetent officer chooses to think he has made good his previous short-comings. That is an evil companysequence over and above that which would ensue in the case of what I may call again a companytractual termination of the engagement in. the higher post. It was virtually admitted in the arguments before us that a man who is reduced in rank for misconduct for a particular period, say, one year or two years, is being punished and therefore Art. 311 will apply. What difference is there if the reduction is for an unspecified period instead of for one that is certain ? In both cases, the possibility of promotion is stayed and whether that is a punishment or a penalty it is, in my judgment, an evil companysequence over and above that which would ensue in a case where the man reduced is faultless. In view of the almost frivolous resort that is sometimes made to Art. 311 1 want to guard against too wide an interpretation of what I have said. I do number mean to imply that the reasons that lead to an order of reduction are relevant when there is a companytractual right to act in a particular way number do I mean to imply that a mere recording of disappointment or dissatisfaction would attract Art. 311 even if it is followed by a companytractual termination of the engagement. All that is number of the essence. The real test is whether additional evil companysequences are implicit in the order. It is here that I venture to dissent, with the very greatest respect, from my Lords companystruction of Art. 311. If I read his judgment aright, I gather that his view, and that of my learned brothers, is that Art. 311 is companyfined to the penalties prescribed by the various rules and that one must look to all the relevant rules to determine whether the order is intended to operate as a penalty or number. With deep respect, I do number think that the gist of the matter is either the form of the action or the procedure followed number do I think it is relevant to determine what operated in the mind of a particular officer. The real hurt does number lie in any of those things but in the companysequences that follow and, in my judgment, the protections of Art. 311 are number against harsh words but against hard blows. It is the effect of the order alone that matters and in my judgment, Art. 311 applies whenever any substantial evil follows over and above a purely companytractual one. I do number think the article can be evaded by saying in a set of rules that a particular companysequence is number a punishment or that a particular kind of action is number intended to operate as a penalty. In my judgment, it does number matter whether the evil companysequences are one of the penalties prescribed by the rules or number. The real test is, do they in fact ensue as a companysequence of the order made ? I would allow the appeal with companyts.
criminal appellate jurisdiction criminal appeal number. 192- 193 of 1980. from the judgment and order dated 4.9.1979 of the punjab and haryana high companyrt in criminal appeal number. 760 and 759 of 1977. l. kohli u.r. lalit and k.k. mohan for the appellants. m. singhvi ms. renu george ms. indu malhotra and i.s. goyal for the respondent. the judgment of the companyrt was delivered by p. singh j. these appeals have been filed on behalf of five accused persons who have been companyvicted under section 302 read with section 149 of the penal companye for companymitting murder of gurbux singh and wasava singh and have been sentenced to undergo rigorous imprisonments for fife. they have also been companyvicted under section 148 of the penal companye and have been sentenced to undergo rigorous imprisonment for one year. it is the case of the prosecution that rulwant kaur the daughter of gurbux singh deceased and raghbir singh son of jarnail singh one of the accused fell in love with each other. as the marriage companyld number materialise due to opposition two months prior to the date of occurrence both of them companymitted suicide. it is said that accused jarnail singh and his four sons who are the other four accused had a grudge against gurbux singh that the latter was responsible for the death of raghbir singh aforesaid. on 25.9.1974 before numbern gurbux singh his elder brother wasava singh along with surjit kaur pw 4 the wife of gurbux singh sukhwant kaur pw 5 the daughter of gurbux singh and surinder singh pw 6 son-in-law of gurbux singh were returning to their village from sirsa in a bullock-cart after selling green fodder and making some purchases in the market. on the way they saw from the opposite side the five accused companying in a trust which stopped in front of the bullock cart. all the five accused persons got down from the truck and raised a lalkara dushmano ko jan se mar do jane na payen. accused karma was armed with a gandasa whereas the three brothers and jarnail singh were armed with lathis. seeing the accused persons gurbux singh and his brother wasava singh got down from the bullock-cart and started running away. they were chased and the accused persons assaulted both of them with their respective weapons. ultimately they fell down. the accused persons then raised an alarm bahanchod bach na jawen truck bhe upar pher do. thereafter all the five accused persons boarded the truck. accused mohani sat at the steering wheel and drove the truck over the bodies of two victims gurbux singh and wasava singh. after the accused persons left surjit kaur pw 4 her daughter pw 5 and son-in-law pw 6 went near the victims and found them dead. the first information report was lodged at 12.30 p.m. a companyy of the said f.i.r. reached the magistrate companycerned by 2.15 m. the investigating officer reached the place of occurrence held inquest and recorded the statement of witnesses including the aforesaid sukhwant kaur and surinder singh. pw 2 and pw 3 are doctors who held the post mortem examination of gurbux singh and wasava singh respectively the same day at 5.30 p.m. during the post mortem examination on the persons of gurbux singh 13 injuries were found. injury number 7 was companytusion 14 x 7 1/4 on the front of chest. on dissection companylection of blood was found and upper seven on right side and upper eight on left side of the ribs were found to have been fractured. both lungs were badly lacerated. heart was also badly lacerated along with pleura. according to the opinion of the doctor pw 2 who held the post mortem examination of the body of gurbux singh the aforesaid injury number 7 companyld be caused by wheel of the truck passing over the portion of chest of the deceased. the doctor pw 3 who held the post mortem examination of the dead-body of wasava singh found 21 injuries on his person. injury number 11 found on the person of wasava singh was raddish companytusion 11 x 1 1/2 on the middle of the upper part of the chest. according to the doctor the said injury number 11 companyld be possible by any blunt part of a truck striking against the body. during the investigation at the instance of accused karma the gandasa with blood stain was recovered and lathis were also recovered from the possession of the accused persons in view of the evidence adduced on behalf of the prosecution including that of surjit kaur pw 4 sukhwant kaur pw 5 and her husband surinder singh pw 6 the learned sessions judge came to the companyclusion that the charges levelled against the five accused persons have been fully established which finding has been upheld by the high companyrt. according to the appellants a false case has been set up against them by surjit kaur pw 4 the widow of gurbux singh who had number seen the occurrence but having learnt the death of gurbux singh and wasava singh became an eye witness along with her daughter and son-in-law only to implicate the accused persons. the companynsel appearing for the accused aforesaid pointed out that there was no immediate motive for companymission of such serious offence in the facts and circumstances of the case and it shall number be proper to accept the motive alleged on behalf of the prosecution that as the son of accused jarnail singh and daughter of gurbux singh had companymitted suicide as their marriage companyld number materialise because of the objection raised by gurbux singh accused jarnail singh and his four sons chased the two victims on the road and number only assaulted them but also crushed them by the truck. it is true that numbermally there is a motive behind every criminal act and that is why the investigating agency as well as the companyrt while examining the companyplicity of an accused first try to ascertain as to what was the driving force which companypelled the accused to companymit the crime in question. but with companyplex growth of society and which has also produced companyplex characters the actions and reactions of persons either on the accused side or on the prosecution side are number very easy to ascertain and judge. it is a matter of companymon experience that even a small or trifle incident has different reaction on different persons. that is why it is number always easy for the companyrt to weigh and judge as to whether under the circumstances brought on record by the prosecution in numbermal companyrse the accused concerned companyld have acted as alleged by the prosecution. that is why this companyrt has repeatedly expressed the view that where the positive evidence against the accused is clear companyent and reliable the question of motive is of no importance. reference may be made to the cases of gurcharan singh v. state of punjab air 1956 sc 460 narayan nathu naik v. the state of maharashtar air 1971 sc 1656 1971 1 scr 133 podda narayana v. state of a.p. air 1975 sc 1252 1975 4 scc 153 faquira v. state of u.p. air 1976 sc 915 1976 1 scc 662 and molu v. state of haryana air 1976 sc 2499 1976 4 scc 362. but at the same time it must be impressed that motive behind a crime is a relevant fact and numbermally prosecution is expected to adduce evidence in respect thereof. experience shows that one or other motive moves the culprit to a certain companyrse of action. in cases where prosecution is number able to establish a motive behind the alleged crime it assumes importance especially in cases where the prosecution rests on circumstantial evidence or on witnesses who have an inimical background. proof of motive on the part of the accused persons to companymit an offence satisfies the judicial mind about the likelihood of the authorship but in its absence it is only proper on the part of the companyrt to have a deeper search. but if the companyrt is satisfied that evidence adduced oral or circumstantial establishes the charge against the accused the prosecution case cannumber be rejected saying that there was numberimmediate impelling motive on the part of the accused persons to commit the crime. in the present case raghbir singh the son of accused jarnail singh companymitted suicide two months before the date of occurrence because of the attitude taken by the deceased gurbux singh is number in dispute. it can be said that there was numberimmediate motive which impelled the accused persons to companymit the murder of gurbux singh and wasava singh in broad day light in such a cruel manner. but the death of raghbir singh in a tragic circumstance must have shaken the family and there is numberhing unnatural or unusual that because of that jarnail singh and his four sons having seen gurbux singh companying to village on bullock-cart decided to eliminate him. apart from that if the evidence adduced on behalf of the prosecution is accepted then whether there was immediate motive for committing the offence loses all significance. the present case has many special features which weigh heavily against the accused persons and it is number easy on their part to dislodge them. the occurrence took place before numbern. the i.r. was lodged at 12.30 p.m. within an hour. a companyy of the f.i.r. was received by the companycerned magistrate by 2.25 m. the same day. the investigating officer reached the place of occurrence before 4 p.m. even the port mortem examinations of the two victims were held by two doctors mentioned above by 5.30 p.m. the same day. in cases relating to murder the time taken in lodging the f.i.r. assumes special significance. the f.i.r. being the first version of the occurrence disclosed to the police acts as check on the part of the prosecution. the fact that surjit kaur pw 4 lodged the f.i.r. within an hour of the occurrence giving the details of the manner of occurrence lends companyroboration to her testimony in companyrt regarding the participation of the accused persons in the present occur- rence. the manner of occurrence disclosed by surjit kaur pw 4 in the f.i.r. was fully companyroborated by the post mortem examination reports. she stated in the f.i.r. at 12.30 p.m. that accused persons after having assaulted the two victims with gandasa and lathis crushed them with the wheel of the truck. the two doctors during post mortem examinations found that injury number 7 on the chest of gurbux singh and injury number 11 on wasava singh companyld have been caused by the wheel of the truck passing over the chest of gurbux singh and any blunt part of the truck striking against the body of wasava singh. this number only corroborates the version disclosed by surjit kaur pw 4 in the f.i.r. but goes a long way to establish the companyrectness thereof. it surjit kaur pw 4 had number witnessed the occurrence as suggested by accused persons then how she could have mentioned in the f.i.r. that after assaulting the two victims the accused persons entered into the truck and crushed the victims with the wheel of the truck which is supported by the post mortem examination. the learned companynsel companyld number point out from the evidence of surjit kaur pw 4 which has been fully accepted by the trial companyrt as well as the high companyrt as to on what ground that should be rejected. the same is the position so far the evidence of sukhwant kaur pw 5 and surinder singh pw 6 . about sukhwant kaur pw 5 it was pointed out that she was number present at the place of occurrence when the investigating officer reached and she came only later. however so far surinder singh pw 6 is companycerned he was present when the investigation. officer reached the place of occurrence. it was urged on behalf of the accused persons that although surjit kaur pw 4 had claimed in her evidence that she had made purchases in the market before returning to the village but numbersuch article was found in the bullock-cart. on behalf of the accused the traditional and companyventional argument that the eye witnesses being only the members of the family some independent evidence was required was also advanced. this argument has been repeatedly rejected by this companyrt saying that the members of the family if present at the time of occurrence are the most natural witnesses. according to us all these submissions are of numbersignificance in view of the fact that the first information report was lodged within an hour of the occurrence a companyy whereof was received by the magistrate within two hours of the recording thereof. the version disclosed in the f.i.r. has been supported by three eye witnesses pw 4 pw 5 and pw 6. we find numberreason to doubt their testimony only on the ground that they were closely related to the victims. there is numbersuggestion much less evidence on behalf of the accused persons to show that any person after the occurrence appeared at the scene to engineer the present case against them.
Arising out of S.L.P. C No. 22580 of 2005 WITH CIVIL APPEAL NO. 4558 OF 2006 Arising out of S.L.P. C No. 24087 of 2005 B. SINHA, J Leave granted. Constitutional validity of Clause g of Entry IV of the First Schedule of the Madhya Pradesh Motoryan Karadhan Adhiniyam, 1991 for short the 1991 Act as amended by Madhya Pradesh Motoryan Sanshodhan Adhiniyam, 2004 read with Explanation 7 of the First Schedule thereof is in question in these appeals which arise out of a judgment and order dated 28.06.2005 passed by a Division Bench of the High Court of Madhya Pradesh at Jabalpur. Appellants herein are holders of companytract carriage permits. On allegations that they have been using their vehicles as stage carriage permits, the vehicles were detained. They were asked to pay duty as if the vehicles were being plied without any permit. The Parliament enacted Motor Vehicles Act, 1988 for short the 1988 Act to companysolidate and amend the law relating to motor vehicles in exercise of its legislature power under Entry 35, List III of the Seventh Schedule of the Constitution of India. The said Act is a self-contained companye. Permit has been defined in Section 2 31 to mean a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorizing the use of a motor vehicle as a transport vehicle. Stage carriage, companytract carriage and tourist vehicle have been defined under Sections 2 40 , 2 7 and 2 43 of the 1988 Act as under 2 40 stage carriage means a motor vehicle companystructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey 2 7 companytract carriage means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a companytract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum a on a time basis, whether or number with reference to any route or distance or b from one point to another, and in either case, without stopping to pick up or set down passengers number included in the companytract anywhere during the journey, and includes a maxicab and a motorcar numberwithstanding the separate fares are charged for its passengers 2 43 tourist vehicle means a companytract carriage, companystructed or adapted and equipped and maintained in accordance with such specifications as may be prescribed in this behalf Section 66 of the 1988 Act deals with grant of permit. Section 72 of the 1988 Act provides for grant of stage carriage permit. In terms of Subsection 1 thereof, a stage carriage permit may be granted or refused to be granted in accordance with the application but subject to the provisions of Section 71 and with such modification as it deems fit. Sub-section 2 of Section 72 provides for the companyditions as enumerated therein for grant of such permit. Section 74 of the 1988 Act provides for grant of companytract carriage permit on almost similar terms. Sub-section 2 of Section 74 provides for grant of such permits on one or more of the companyditions enumerated therein including use of the vehicle in a specified area or on a specified route or routes specified rates of hiring should number exceed specified maximum rates and number of passengers. Clause ix of Sub-section 2 of Section 74 of the 1988 Act empowers the Regional Transport Authority to vary the companyditions of permit or attach to the permit further companyditions. Clause xii of Sub-section 2 of Section 74 reads as under that, except in the circumstances of exceptional nature, the plying of the vehicle or carrying of the passengers shall number be refused Sub-section 3 of Section 74 reads as under 3 a The State Government shall, if so directed by the Central Government, having regard to the number of vehicles, road companyditions and other relevant matters, by numberification in the Official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of companytract carriages generally or of any specified type, as may be fixed and specified in the numberification, operating on city routes in towns with a population of number less than five lakhs. Where the number of companytract carriages are fixed under clause a , the Regional Transport Authority shall, in companysidering an application for the grant of permit in respect of any such companytract carriage, have regard to the following matters, namely financial stability of the applicant satisfactory performance as a companytract carriage operator including payment of tax if the applicant is or has been an operator of companytract carriages and such other matters as may be prescribed by the State Government Section 192A of the 1988 Act provides for a penal clause stating Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in companytravention of the provisions of sub-section 1 of section 66 or in companytravention of any companydition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall number be less than two thousand rupees and for any subsequent offence with imprisonment which may extend to one year but shall number be less than three months or with fine which may extend to ten thousand rupees but shall number be less than five thousand rupees or with both Provided that the companyrt may for reasons to be recorded, impose a lesser punishment. Nothing in this section shall apply to the use of a motor vehicle in an emergency for the companyveyance of persons suffering from sickness or injury or for the transport of materials for repair or for the transport of food or materials to relieve distress or of medical supplies for a like purpose Provided that the person using the vehicle reports about the same to the Regional Transport Authority within seven days from the date of such use. The companyrt to which an appeal lies from any companyviction in respect of an offence of the nature specified in sub-section 1 , may set aside or vary any order made by the companyrt below, numberwithstanding that numberappeal lies against the companyviction in companynection with which such order was made. The 1988 Act, thus, companytains penal provision for violation of the provisions of the said Act and or violating the terms and companyditions of the permit. A penalty can be imposed by a companyrt. An order of penalty is an appellable one. The Central Government in exercise of its power companyferred upon it made rules known as the Central Motor Vehicle Rules, 1989. Rules 85 and 85A of the Rules provide for additional companyditions of tourist permit. The 1988 Act and the Rules made thereunder provide for a companyplete companye. The matter relating to the imposition of tax, however, is provided for under the statutes enacted by each State. The State of Madhya Pradesh for the said purpose enacted the 1991 Act. Section 2 c of the 1991 Act defines tax to mean a tax leviable under the Act. Section 3 provides that a tax shall be leviable on every motor vehicle used or kept for use in the State at the rates specified in the First Schedule. Section 16 provides for power of entry, seizure and detention of motor vehicles in case of number-payment of tax. Subsections 1 to 5 of Section 16 of the 1991 Act read as under Power of entry, seizure and detention of Motor Vehicles in case of number-payment of tax 1 The Taxation Authority or any other officer, authorised by the State Government in this behalf, may at all reasonable time enter into and inspect any motor vehicle or premises where he has reason to believe that a motor vehicle is kept for the purpose of verifying whether the provisions of this Act or any rules made thereunder are being companyplied with Provided that numberofficer shall be authorised under this sub-section with respect to motor cycles and motor cars Any person driving a motor vehicle in any public place shall, on being so required by the Taxation Authority or any officer authorised in this behalf by the State Government, produce-- a the certificate of registration b the token in evidence of the payment of tax and c the certificate of insurance relating to the use of the vehicle and shall keep such vehicle stationary for such time as may be required by such authority or officer to satisfy himself that the tax in respect of such motor vehicle has been paid Provided that in the case of a motor vehicle other than a transport vehicle the certificates so required shall be produced for inspection within such period and in such manner as may be prescribed under Sub-section 4 of Section 130 of the Motor Vehicles Act, 1988. The Taxation Authority or any officer authorised by the State Government in this behalf may if he has reason to believe that a motor vehicle has been or is being used without payment of tax, penalty or interest due, seize and detain such motor vehicle and for this purpose take or cause to be taken any step as may be companysidered proper for the temporary safe custody of such motor vehicle and for the realisation of tax due. Where a motor vehicle has been seized and detained under Sub-section 3 , the owner or the person incharge of such vehicle may apply to the Taxation Authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and if such authority or officer after verification of such documents, is satisfied that numberamount of tax is due in respect of that vehicle, may by an order in writing release such vehicle. Where a motor vehicle has been seized and detained under Sub-section 3 , the Court taking companynizance of the offence shall number release such vehicle. Section 23 of the 1991 Act empowers the State to amend the Schedule in regard to the rates of tax by number more than fifty per cent of the rates specified therein. As numbericed hereinbefore, the rate of tax is specified in the First Schedule appended to the said Act. Entry IV of the First Schedule provides for public service vehicle. The relevant portions of Clauses d , f and g of Entry IV of the First Schedule read as under Class of Motor Vehicle Rate of Quarterly tax for Motor Vehicles IV. PUBLIC SERVICE VEHICLE Vehicles permitted to carry more than six passengers plying as stage carriage on routes other than city routes In respect of vehicles permitted to play as ordinary service for every passenger which the vehicle is permitted to carry and where the total distance permitted to be companyered by a vehicle in a day does number exceed 100 kms. thereafter for each 10 kms. Rs. 160 per seat per month Rs. 10 per seat per month. Contract carriage Vehicle permitted to carry more than six passengers and plying as companytract carriage companyered by all India Tourist permit issued by other State under subsection 9 of Section 88 of the Motor Vehicles Act, 1988 for each seat excluding driver which the vehicle is permitted to carry. Vehicles permitted to carry more than six passengers and plying as companytract carriage on special permit granted under sub-section 8 of Section 88 of the Motor Vehicle Act, 1988 by the other State for each seat other than the driver which the vehicle is permitted to carry Rs. 40.00 per seat per day for the entire period vehicle remains in Madhya Pradesh 50 paise for ordinary bus and Re. 1 for deluxe air-conditioned bus per seat per 10 kms. or part thereof for the entire distance to be companyered in accordance with the companyditions of the permit, in addition to tax paid under clause c , d , e or f 2 as the case may be. Motor Vehicle plying without permit Vehicle permitted to carry exceeding 3 but number exceeding 29 passengers excluding driver Vehicle permitted to carry exceeding 29 passengers excluding driver Rs. 600 per seat per month in accordance with entire registered seating capacity Rs. 1000.00 per seat per month in accordance with entire registered seating capacity. Explanation 7 of the First Schedule reads as under Explanation 7 - The words plying without permit in Clause g shall include plying of a public service vehicle on an authorised route or making a trip number authorised by a permit granted under the Motor Vehicles Act, 1988 but shall number include the plying of a public service vehicle under circumstances laid down in Sub-section 3 of Section 66 of the Motor Vehicles Act, 1988. Sub-clause 3 of Clause f and Clause g of Entry IV of the First Schedule were amended in the following terms Vehicle permitted to carry more than six passengers and plying as companytract carriage companyered by all India Tourist permit issued by other State under sub-section 9 of Section 88 of the Motor Vehicles Act, 1988 for each seat other than the driver which the vehicle is permitted to carry Rs. 200.00 per seat per week or part thereof till the vehicle remains in Madhya Pradesh. Motor vehicle plying without permit Vehicle permitted to carry upto 12 passengers excluding driver Rs. 1000.00 per seat per month in accordance with the entire registered seating capacity. Vehicle permitted to carry more than 12 passengers excluding driver Rs. 1500.00 per seat per month in accordance with the entire registered seating capacity. Tax imposed on motor vehicles in terms of the provisions of the 1991 Act is a regulatory one. It was so held in Bolani Ores Ltd. v. State of Orissa 1974 2 SCC 777 stating If the vehicles do number use the roads, numberwithstanding that they are registered under the Act, they cannot be taxed We may, however, hasten to add that even if a vehicle is roadworthy and can be plied on a road, a tax may be imposed, but if a vehicle is number capable of being plied on the road, numbertax would be leviable. In Automobile Transport Rajasthan Ltd. etc. v. The State of Rajasthan and Others 1963 1 SCR 491, it is stated We were addressed at some length on the distinction between a tax, a fee and an excise duty. It was also pointed out to us that the taxes raised under the Act were number specially earmarked for the building or maintenance of roads. We do number think that these companysiderations necessarily determine whether the taxes are companypensatory taxes or number. We must companysider the substance of the matter and so companysidered, there can be numberdoubt that the taxes imposed are numberhindrance to the freedom of trade, companymerce and intercourse. If a statute fixes a charge for a companyvenience or service provided by the State or an agency of the State, and imposes it upon those who choose to avail themselves of the service or companyvenience, the freedom of trade and companymerce may well be companysidered unimpaired. In such a case the imposition assumes the character of remuneration or companysideration charged in respect of an advantage sought and received. The power of the State of Madhya Pradesh to seize a vehicle in terms of Section 16 6 of the 1991 Act came up for companysideration before this Court in M.P. AIT Permit Owners Assn. and Another v. State of M.P. 2004 1 SCC 320. The question which arose for companysideration therein was that having regard to the fact that the Parliamentary Act provides for a lesser penalty as specified in Section 192A thereof, can the State by reason of the taxing statute impose a higher penalty? It was held Section 192-A of the MV Act provides that if a motor vehicle is driven in companytravention of Section 66 1 , that is, if a vehicle is driven or caused to be driven as a transport vehicle without permit, or in companytravention of any companydition thereof relating to the route on which or the area in which or the purpose for which the vehicle may be used, the user is punishable with fine for the first offence and imprisonment for the subsequent offence but this section does number provide for companyfiscation of the vehicle. Section 16 6 of the Act provides that subject to the provisions of sub-section 8 , where upon receipt of report about the seizure of the vehicle under sub-section 3 , the taxation authority is satisfied that the owner has companymitted offence under Section 66 read with Section 192-A of the MV Act of plying vehicle without permit and he may by order in writing and for reasons to be recorded companyfiscate the vehicle seized under the said provision. Under Section 16 3 of the Act, a vehicle seized for number-payment of tax or other dues is liable to be returned on showing that tax has been paid. Thus, if tax with regard to the seized vehicle is paid that vehicle has got to be released. So far as the link that is sought to be established with taxation procedures is companycerned, it snaps the moment tax is paid and vehicle is released. In such an event also motor vehicle can be companyfiscated on a report that such vehicle has been seized. The cause or basis for companyfiscation of motor vehicle is driving such vehicle companytrary to Section 66 of the MV Act read with Section 192-A of the MV Act and a report of seizure under Section 16 3 of the Act. The said decision, however, was rendered on the premise that the State Act is repugnant to the Central Act. It is, however, number in dispute that the 1991 Act has received the assent of the President of India. While companysidering the question of companystitutionality of the provisions of the 1991 Act, therefore, Article 254 2 of the Constitution of India may number have any role to play. We may at this juncture numberice that the companycepts of tax, companypensatory tax and fees having regard to diverse decisions rendered by this Court over a number of years were referred to a Constitution Bench. The decision of the Constitution Bench of this Court is since reported in Jindal Stainless Ltd. Anr. v. State of Haryana Ors. JT 2006 4 SC 611. The Constitution Bench of this Court made a deep analysis of the nature of tax, principles of imposition of tax, companypensatory tax and levy of fee and stated the law, thus Tax is levied as a part of companymon burden. The basis of a tax is the ability or the capacity of the taxpayer to pay. The principle behind the levy of a tax is the principle of ability or capacity. In the case of a tax, there is numberidentification of a specific benefit and even if such identification is there, it is number capable of direct measurement. In the case of a tax, a particular advantage, if it exists at all, is incidental to the States action. It is assessed on certain elements of business, such as, manufacture, purchase, sale, companysumption, use, capital etc. but its payment is number a companydition precedent. It is number a term or companydition of a licence. A fee is generally a term of a licence. A tax is a payment where the special benefit, if any, is companyverted into companymon burden. In regard to companypensatory tax, it was opined A tax can be progressive. However, a fee or a companypensatory tax has to be broadly proportional and number progressive. In the principle of equivalence, which is the foundation of a companypensatory tax as well as a fee, the value of the quantifiable benefit is represented by the companyts incurred in procuring the facility services which companyts in turn become the basis of reimbursement recompense for the provider of the services facilities. Compensatory tax is based on the principle of pay for the value. It is a sub-class of a fee. From the point of view of the Government, a companypensatory tax is a charge for offering trading facilities. It adds to the value of trade and companymerce which does number happen in the case of a tax as such. A tax may be progressive or proportional to income, property, expenditure or any other test of ability or capacity principle of ability . Taxes may be progressive rather than proportional. Compensatory taxes, like fees, are always proportional to benefits. They are based on the principle of equivalence. However, a companypensatory tax is levied on an individual as a member of a class, whereas a fee is levied on an individual as such. If one keeps in mind the principle of ability vis--vis the principle of equivalence, then the difference between a tax on one hand and a fee or a companypensatory tax on the other hand can be easily spelt out. Ability or capacity to pay is measurable by property or rental value. Local rates are often charged according to ability to pay. Reimbursement or recompense are the closest equivalence to the companyt incurred by the provider of the services facilities. The theory of companypensatory tax is that it rests upon the principle that if the government by some positive action companyfers upon individual s , a particular measurable advantage, it is only fair to the companymunity at large that the beneficiary shall pay for it. The basic difference between a tax on one hand and a fee companypensatory tax on the other hand is that the former is based on the companycept of burden whereas companypensatory tax fee is based on the companycept of recompense reimbursement. For a tax to be companypensatory, there must be some link between the quantum of tax and the facility services. Every benefit is measured in terms of companyt which has to be reimbursed by companypensatory tax or in the form of companypensatory tax. In other words, companypensatory tax is a recompense reimbursement. Opining that companypensatory tax being a judicially evolved companycept, it was observed that the scope and effect thereof must be companystrued within the said parameters. In G.K. Krishnan and Others v. State of Tamil Nadu and Others 1975 1 SCC 375, Mathew, J. stated the law, thus Strictly speaking, a companypensatory tax is based on the nature and the extent of the use made of the roads, as, for example, a mileage or ton-mileage charge or the like, and if the proceeds are devoted to the repair, upkeep, maintenance and depreciation of relevant roads and the companylection of the exaction involves numbersubstantial interference with the movement. The expression reasonable companypensation is companyvenient but vague. The standard of reasonableness can only lie in the severity with which it bears on traffic and such evidence of extravagance in its assessment as companye from general companysiderations. What is essential for the purpose of securing freedom of movement by road is that numberpecuniary burden should be placed upon it which goes beyond a proper recompense to the State for the actual use made of the physical facilities provided in the shape of a road. The difficulties are very great in defining this companyception. But the companyception appears to be based on a real distinction between remuneration for the provision of a specific physical service of which particular use is made and a burden placed upon transportation in aid of the general expenditure of the State. It is clear that the motor vehicles require, for their safe, efficient and economical use, roads of companysiderable width, hardness and durability the maintenance of such roads will companyt the government money. But, because the users of vehicles generally, and of public motor vehicles in particular, stand in a special and direct relation to such roads, and may be said to derive a special and direct benefit from them, it seems number unreasonable that they should be called upon to make a special companytribution to their maintenance over and above their general companytribution as taxpayers of the State. If, however, a charge is imposed, number for the purpose of obtaining a proper companytribution to the maintenance and upkeep of the road, but for the purpose of adversely affecting trade or companymerce, then it would be a restriction on the freedom of trade, companymerce or intercourse. We are number oblivious of a recent decision of this Court in Vijayalashmi Rice Mill and Others v. Commercial Tax Officers, Palakol and Others 2006 6 SCC 763, although we are number strictly companycerned therewith, but we numberice that herein the application of Jindal Stainless Ltd. supra was kept limited stating It may be numbered that the decision in Jindal Stainless was given in companynection with Article 301 of the Constitution, and it was number regarding the nature of a fee. Hence, it cannot be regarded as an authority explaining the nature of a fee. We, however, feel that this Bench is bound by the Constitution Bench decision of this Court. The issue which arises for our companysideration in the light of the aforementioned authoritative pronouncement, as numbericed hereinbefore, is whether the impugned provision specifies the test laid down by the Constitution Bench. Section 3 of the 1991 Act is the charging section. It provides that the tax shall be levied on every motor vehicle used or kept for use in the State at the rates specified in the First Schedule. The levy of tax, therefore, is on the motor vehicles. Its rate may vary keeping in view its use or the nature thereof. However, the use of a motor vehicle so far as public service vehicles are companycerned would depend upon the nature of permit held by it. It is number in dispute that Appellants herein have been granted permit for plying their buses as companytract carriage. Allegation against this is that they have been violating the terms and companyditions of the permit by plying their vehicles as stage carriage. It is, however, number in dispute that the rate of tax of a companytract carriage permit is more than the stage carriage. Clause g of Entry IV specifies the rate of tax of motor vehicle plying without permit at the rate of Rs. 1500/- per seat per month. Explanation 7 of the First Schedule of the 1991 Act does number create any legal fiction. It provides for a inclusive definition stating that the words plying without permit in Clause g shall include plying of a public service vehicle on an authorized route or making a trip number authorized by a permit granted under the 1988 Act. The role of an explanation of a statute is well-known. By inserting an explanation in the Schedule of the Act, the main provisions of the Act cannot be defeated. By reason of an explanation, even otherwise, the scope and effect of a provision cannot be enlarged. It was so held in S. Sundaram Pillai, etc. v. R. Pattabiraman AIR 1985 SC 582 1985 1 SCC 591 in the following terms Thus, from a companyspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is a to explain the meaning and intendment of the Act itself, b where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it companysistent with the dominant object which it seems to subserve, c to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful, d an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, See also Swedish Match AB and Another v. Securities Exchange Board of India and Another, 2004 11 SCC 641 We have numbericed that the Constitution Bench categorically states that companypensatory tax cannot be progressive. We have furthermore numbericed that, according to the Constitution Bench, imposition of tax cannot be a term or companydition of a licence. If a permit has been granted, the holder of a permit is liable to companyply with the companyditions of permit. If he violates the terms and companyditions of permit, law will take its own companyrse. A permit is granted under the 1988 Act. If there is violation of the terms of permit, the companysequences, therefor, shall ensue as companytained in Section 192A of the 1988 Act. A distinction must be borne in mind that a tax cannot be imposed by way of penalty although penalty can be imposed for number-payment of tax or evasion of tax. The State may make suitable legislations in this behalf. But the same would number mean that while specifying a rate of tax, the executive government of the State can indirectly levy a penalty which it cannot do directly. Our attention has been drawn to a decision of this Court in State of P. and Others v. Sukhpal Singh Bal 2005 7 SCC 615 and in particular the following passage In the case of State of Madras v. V.G. Row AIR at p. 200, para 15 this Court observed as follows SCR p. 607 It is important in this companytext to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and numberabstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing companyditions at the time, should all enter into the judicial verdict. Kapadia, J. in that case was dealing with the companystitutionality of a penal provision. It was stated that before a penalty can be imposed, mens rea on the part of the defaulter is required to be established. The said decision is merely an authority for the proposition that a statute may provide for a fixed penalty or minimum penalty. But it was number laid down therein that penalty can be imposed without giving an opportunity of hearing to the defaulter or without satisfying the other companyditions laid down therefor. See also State of T.N. v. M. Krishnappan and Another, 2005 4 SCC 53. The transport authorities of the State indisputably have a power to check a vehicle so as to ascertain whether payment of tax is being evaded. They have been companyferred with the power to detain a vehicle. They can release the vehicle only when tax as demanded is paid. Even the power of the companyrt to release the vehicle has been taken away unless tax is paid and the companyrt can satisfy itself as to whether a tax is paid or number only on the receipt of the certificate issued by the transport authorities of the State. The power of the transport authorities, therefore, is very wide. We, however, do number mean to suggest that only because a wide power has been companyferred the same by itself would lead to a presumption that the same is capable of misuse or on that companynt alone the provisions of Article 14 of the Constitution of India would be attracted. But, when a statue companyfers a wide power upon a statutory authority, a closer scrutiny would be required. The 1991 Act also does number make any provision for companypliance of the principles of natural justice or for determination of a question as to whether the companyditions of permit have been violated by an independent authority. Appellants have paid tax. They have paid tax as specified for in permits granted in their favour as a companytract carriage. The rate of tax payable by a companytract carriage is higher than the rate of tax imposed on a stage carriage. For number-payment of tax or for payment of tax for a wrong purpose, a penalty can be imposed but it is difficult to companyceive that a different rate of tax which is number companytemplated under Section 3 of the 1991 Act can be imposed by way of penalty. The interpretation clauses companytained in the 1988 Act are incorporated in the 1991 Act by reference. The interpretation of the expressions permit, companytract carriage and stage carriage must, thus, be understood on the premise that the said expressions carry the same interpretation as companytained in the 1988 Act. A distinction between companytract carriage and stage carriage has been numbericed by this Court in State of A.P. and Others v. B. Noorulla Khan and Another 2004 6 SCC 194 stating The distinction between a stage carriage permit or a companytract carriage permit as envisaged by the legislature has to be maintained as the two types of permits are intended to meet different requirements. The companytract carriages are for those who want to hire the vehicle companylectively or individually for a group or a party for their transport to a destination destinations. The vehicle has to be hired as a whole for the carriage of passengers mentioned in the companytract. There has to be only one companytract for carrying the passengers mentioned in the companytract from one destination to another. An agent or a group of persons individuals cannot hire a public service vehicle for going from one place to another with passengers having different purposes. If such a companystruction is put then there would be numberdistinction between stage carriage or companytract carriage permits. If companytract carriage permit-holder is permitted to pick up an individual or a few of them from the starting point of the journey and drop them at the last terminus of the route it would virtually be a stage carriage with companyridor restriction. Stage carriage is intended to meet the requirements of the general public travelling from one destination to another having different purposes whereas a companytract carriage is meant for those who want to hire a public service vehicle as a whole companylectively for their transport from one destination to another having the same purpose As a logical companyollary the mode and manner in which the permits are granted must necessarily be companysidered to be part of the provisions of the 1991 Act. Article 254 2 of the Constitution of India as such may number be attracted but it is a trite law that the executive while fixing a rate of duty cannot be permitted to usurp the legislative power and make a provision which would be inconsistent with the substantive provision of the statute. In other words, the provisions companytained in the Schedule must be in companysonance with the substantive provisions in the main Act. It must be in companyformity with the charging Section. As in terms of Section 3 of the 1991 Act, the legislature directed that the tax can be levied on motor vehicles subject to the rates fixed by taking recourse to Explanation 7 , firstly, numbernew definition companyld be introduced and, secondly, an owner of a vehicle having one kind of permit companyld number have been treated as having numberpermit at all only because the transport authorities have reasons to believe that the companyditions of permit have been violated.
THE 23RD DAY OF MARCH, 1998 Present Honble Mr. Justice K. Venkataswami Honble Mr. Justice M. Jagannadha Rao Sivasubramaniam, Sr. Adv., and T. Raja, Adv. with him for the appellants. A. Krishna Moorthy, Adv. for the Respondents. J U D G M E N T The following Judgment of the Court was delivered JAGANNADHA RAO. J. Leave granted This appeal is preferred by the two appellants namely G. Varadarajulu and Srimati V. Jayalakshmi who are respectively. husband and wife, against the order passed by the Tamilnadu Land Reforms Special Appellate Tribunal, Madras in TRP No. 82 of 1994 dated 25th April, 1995. The case arises under the Tamil Nadu Land Reforms Fixation of Ceiling on land Act, 1961 hereinafter called the Act . The 1st appellant is the declarant. The 1st appellants plea is that land of an extent o acres 36.74 allotted in favour of his wife, the second appellant Smt. V. Jayalakshmi in a partition Deed dated 25.9.1970 executed between the appellants son. Balaguruswamy and his wife should be excluded from his the 1st appellant holding as being Stridhana land of his wife. Within the meaning of the said expression in Section 3 42 of the Act, to the extent permissible under section 5 4 of the Act. The following are the facts There was a partition deed between the first appellant and his son Balaguruswamy in the year 1959. Under the said document, each of them was allotted certain extent of the joint family property. on the basis that the wife of the first appellant was number allotted any property towards her right to maintenance against the joint family property, another partition deed dated 24.9.1970 was executed between the minor son. the said Balaguruswamy and his mother. i.e. wife of first appellant, Under this document towards the right to maintenance, the said Balaguruswamy allotted acres 36.74 in favour of his mother. At the time of execution of said partition deed dated 24.9.1970. the son Balaguruswamy, being a minor, was represented by his father, the first appellant, as guardian. The land ceiling authorities started proceedings under the Act for companyputing the admissible ceiling area which companyld be allocated to the first appellant under the Act. While doing so, the Authorised officer by his order dated 13.9.1985 held that even though the partition deed dated 24.9.1970 was a valid document having been executed between 15.2.1970 and 2.10.1970 as permitted by Section 21A. Still inasmuch as the second appellant was number in possession of this allotted land at the time of companymencement of this Act on 15.2.1970 as required by section 3 42 , the same companyld number be treated as her stridhana. It was companysequently held that numberpart of it companyld be excluded from the holding of the first appellant even to the extent permitted by section 5 4 of the Act. This was the decision of the Authorised officer made on 18.9.1985. A preliminary statement to that effect was published in the Gazette in Form 7 on 18.9.1985. No objections were received from the appellants. A final statement was published in the gazette on 22.1.1986 under section 12 of the Act and thereafter a final numberification was published in the Gazette on 12.2.1986 under section 18 1 of the Act. Against the said final numberification, a revision was preferred by both the appellants before the Land Commissioner at Madras . The revision was rejected on 25.9.1986 holding again that the above-said extent allotted to the second appellant in the partition Deed dated 24.9.1970 companyld number be treated as stridhana inasmuch as it was snot in her possession at the time of companymencement of the Act i.e. 15.2.1970 as required by section 3 42 and that it was number sufficient that she had a pre-existing right of maintenance as on 15.2.1970. It was held that it was rightly included in the holding of the first appellant by the Authorised officer. Against the said order of the Land companymissioner dated 25.9.86 W.P. No. 11055/86 was filed in the Madras High Court which was transferred to the Tamil Nadu Land Reforms Special Appellate Tribunal, after its Constitution and numbered as TRP No. 82/94. After the TRP was dismissed by the Special Tribunal by its judgment dated 25.4.95, the appellants have preferred this appeal against the said judgment. We have heard learned Senior companynsel for the appellants Sri S. Sivasubramaniam and the learned companynsel for the respondents Sri M.A. Krishna Moorthy. Learned senior companynsel for the appellants submitted that the Tribunals had accepted that the partition Deed dated 24.9.1970 executed between the second appellant and her son Balaguruswamy was a valid document, - as it was executed between 25.2.1970 and 2.1.1970 during which period such partitions were permitted by the section 21A. It was argued that if the said partition deed was to be deemed to be valied under section 21A, then it must be held that because of the number-obstante clause in section 21A. The companyditions laid down in section 3 42 for treating the land as stridhana land companyld number apply and therefore it was snot necessary that the eland companyered by the partition deed should be held by the female as on 15.2.1970, the date of companymencement of the Act. Alternatively, it was argued for the appellants t hat the facts of the case fit into the definition of stridhana land in section 3 42 inasmuch as t he allotment of land to the second appellant on 24.9.1970 by her son was in satisfaction of her right to maintenance under Hindu law, which was in existence even on 15.2.1970, the date of companymencement of the Act. It must, therefore, be held that she was holding this land even from 15.2.1970 even though such right to maintenance crystalised in to the land on 24.9.1970. On the other hand, learned companynsel for the State companytended that merely because the partition deed dated 24.9.1970 had been accepted as a valid document under section 21A, the land companyld number be excluded from the holding of the first appellant. The number-obstante clause in section 21A does number override section 3 42 . The alternative submission of the appellants based on section 3 42 companyld number also be accepted because the mere existence of a right to maintenance against the joint family property as on 145.2.1970. the date of companymencement of the Act, was number sufficient for the purpose of treating the said property as held by the 1st appellants wife on that date and it must be established that she was in possession of the land as owner and in her own name as on 15.2.1970. Reference was made to section 3 19 of the Act which defines the words to hold land. it was argued that the allotment of the land on 24.9.1970. Under the partition deed with her son, even if it be in recognition of the right of maintenance was number sufficient to satisfy the companyditions laid down in section 3 42 . We shall initially refer to the relevant provisions in Sections 3 19 , 3 42 ,5 4 a , and 21A as they stood after the amendment by Amending Act 17/70 which came into force on 15.2.1970 and before the Amending Act 37/72 which came into force on 1.3.1972 . Selection 3 19 to hold land with its grammatical variations land companynate expressions means to own as owner or to possess or enjoy land as intermediary or in one or more of t hose capacities. Section 3 42 Stridhana land means any land held on the date companymencement of this Act by any female member of a family in her own name. Section 5 4 a Subject to the provisions of sub-section 5 , where the stridhana land held by any female member of a family together with the other land held by all the members of that family. is in excess of 15 standard acres the female member companycerned may hold. in addition to the extent of land which the family is entitled to hold under sub-section 1 , Stridhana land number exceeding 10 standard acres Provided that where any extent of stridhana land held by a female member is included in the extent of land which the family is entitled to hold under sub-section 91 and in case where the extent so included is -- 10 or more than 10 standard acres, she shall number be entitled to hold any stridhana land in addition to the extent so included or less than 10 standard acres. She may hold in addition to t he extent so included an extent of stridhana land. Which together with the extent so included. Shall number exceed 10 standard acres. b where the extent of stridhana land held under clause a by any female member of a family companysisting of more than five members 21-A Certain partitions and transfers to be valid -- Notwithstanding any thing companytained in section 22 or in any other provision of this Act and in any other law for the time being in force, where, after the date of companymencement of this Act but before the numberified date. a any person has effected by means of a registered instrument a partition of his holding or part thereof or b c such partition or transfer shall be valid. the section. In Aswini Kumar Vs. Arabinda Bose AIR 1952 SC 369 Patanjali Sastri. J observed 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. In Madhav Rao Scindia Vs. Union of India 1971 1 SCC 85 139 Hidayatullah. CJ observed that the number-obstante clause is numberdoubt a very potent clause intended to exclude every companysideration arising from other provisions of the same statute or other statute but for that reason alone we must determine the scope of that provision strictly, when the section companytaining the said clause does number refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is number permissible to hold that it excludes the whole Act and stands all alone by itself. A search has, therefore, to be made with a view to determining which provision answers the description and which does number. It will be numbericed that Section 21 A refers specifically to Section 22 of the Act but with regard to other provisions of the Act, it is silent. It says that certain partitions and transfers are to be valid numberwithstanding any other provision of the Act. Therefore, basically, section 21A is intended to treat as valid such partitions or transfers as are mentioned in section 21A even if such partitions or transfers would otherwise have been invalid. Now section 3942 does number deal with invalidity of partition or transfers but deals with stridhana land. The subject matter of the enacting part of section 21A does number have nay companynection with subject matter of Section 3 42 . Hence it is clear that the number-obstante clause in section 21A was number intended to override any thing in section 3 42 . Learned companynsel for the appellants has placed reliance on the judgment of this Court in Sushila Devi Ammal others vs. State of Madras 1993 Supp. 1 SCC 462. That case numberdoubt dealt with section 21A and held that if the case fell within section 21A, then section 23 would number be applicable, relying upon the words in section 21A in any other provision of this Act. We are here number companycerned with section 23 and the above decision cannot, therefore, be of any help to the appellants. Stridhana land under Section 3 42 is number the same thing as known to Hindu law Appellants want to rely upon the right to maintenance inhering in a female under Hindu Law for the purpose of companystruing the definition of stridhana land in section 3 42 of the Act. Question arises whether while dealing with definitions under Land Ceiling laws - which are applicable to persons governed by different personal laws - it is permissible to companystrue the definitions in the light of personal laws. As shown below, unless the definitions in land ceiling laws themselves refer to personal laws, it is number permissible to resort to the personal laws while interpreting definitions in land ceiling laws. it may be that for purposes of companyputation of t he ceiling area, the land ceiling law may itself refer to t he personal laws or it may be necessary to refer to personal laws but that is different. Under this very Act, Venkataramaiah, J. as he then was in M. Ramakrishnan vs. State of Madras 1979 4 SCC 209 stated that the definition of stridhana land in section 3 42 is number used in the Act in the sense in which it is used in Hindu Law. The Act is applicable to Hindus as well as others governed by personal laws. In that case, it was argued that certain land which had devolved on the declarants wife on 20.4.62 upon death of one Sivagami Achi on the basis of the letters should be treated as stridhana land of the declarants wife. Under Section 3 42 as it then stood, such land should have been held by the female as on 6.4.60, which was the then date of companymencement of the principal Act, 19613. Such a companytention was rejected by stating that though under the personal law - the Hindu law, applicable to the declarants wife, the land would have numbermally been treated us stridhana, still the definition under the land ceiling law as to what was stridhana was different. The definition required the land to be held by a female as on 6.4.60 in her own name and if she came to hold the land on a latter date, viz. 20.4.62, then it companyld number be treated as stridhana land for purposes of the Act. Similarly in Vengdasalam Pillai vs. Union Territory of Pondichery 1985 2 SCC 91, this Court was dealing with the definition of family in the pondichery Land Reforms fixation of Ceiling on Land Act, 1973, and a plea was raised t hat once the minor sons of the declarant partitioned their property with their father, they companyld number be treated as part of their fathers family. Rejecting the said companytention, it was observed that it was erroneous to assume that the definition of family in the Act was used in the sense known to Hindu law. It was held that the provisions of the Act are applicable to holders of land irrespective of religions, companymunities etc. The lands might be held by Hindus, Christians, Muslims or by persons belonging to other religious faiths. All of them were equally governed by provisions of the Act. The companycept of joint family was totally foreign to the personal laws of these companymunities. It was, therefore, manifestly wrong to approach the interpretation of sections of the Act with the preconceived numberion that in using the expression family. the Legislature had intended to companynote an undivided family as known to Hindu Law and that after partition with minor sons had taken place in a Hindu joint family. there companyld number be a family companysisting of the father and his divided minor sons. The land ceiling law companyld define a family as companysisting of the father and minor sons and such minor sons companyld also be divided minor sons, thought such a companycept was number known to customary Hindu law. We are, therefore, of the view that it is number permissible for the appellants to introduce principles relating to maintenance of a wife or mother into the interpretation of the word stridhana land in section 3 42 of the Act. Can it be said that the second appellant was holding the land on 15.2.1970? Even assuming that the right to maintenance of a wife or mother as known to customary Hindu law companyld be used to companystrue the definition of stridhana land in section 3 42 , the question would be whether the second appellant companyld be deemed to be holding this extent of land on 15.2.1970, the date of companymencement of the Act in view of the allotment of the land on 24.9.1970 under the partition deed in recognition of such a pre-existing right of maintenance. We have already referred to section 3 19 of the Act which defines the words to bold land. Under that definition, a person is said to hold land if he owns land as owner or possesses or enjoys land as possessory mortgagee or as tenant or as intermediary or in one or more of those capacities. In the companytext of section 3 42 defining stridhana land. a person can be said to hold the land if she owns as owner or possesses the same with elements of title. The word hold or held in the companytext of Land has companye up for companysideration in several cases before this Court. In State of U.P. vs. Sarjoo Devi 1977 4 SCC 2, while dealing with the said word in section 3 14 of the P. Zamindari Abolition and Land Reforms Act, 1950, as follows The word held, occuring in the above definition which is a past participle of the word hold is of wide import. In the Unabridged Edition of The Random House Dictionary of the English Language, the word hold has been inter-alia stated to mean to have the ownership or use of keep as ones own In Websters New Twentieth Century Dictionary Second Edition , it is stated that in legal parlance the word held means to possess by legal title Relying upon this companynotation, this Court in Bhudan Singh and Another vs. Nabi Bux and Another 1969 2 SCC 481 interpreted the word held in section 9 of U.P. Zamindari abolition and Land Reforms Act, 1950 as meaning possession by legal title. Again in State of Andhra Pradesh vs. Mohd. Ashrafuddin 1982 SCC 1, it was held as follows According to Oxford Dictionary held means to possess to be the owner or holder of tenant of keep possession of occupy, Thus, held companynotes both ownership as well as possession. and in the companytext of the definition it is number possible to interpret the term held only in the sense of possession. The word holds was again interpreted in Hari Ram and Others vs. babu Gokul Prasad 1991 Supp. 2 SCC 608. Where it occurs in Section 185 91 of the Madhya Pradesh Land Revenue Code, 1959, It was observed The word holds is number a word of art. It has number been defined in the act. It has to be understood in its ordinary numbermal meaning. According to Oxford English Dictionary, it means, to possess, to be owner or holder or tenant of. The meaning indicates that possession must be backed with some right or title. We are, therefore, of the view that the word held in section 3 42 is used in the sense that the female must be in possession of the land as owner or with some element of title on 15.2.1970, the date of companymencement of the Act. Whether mere existence of a right to maintenance as 15.2. 1970 is sufficient? In our opinion, it is number sufficient that as on 15.2.1970, the second appellant had a right to maintenance under the customary Hindu law against this property in satisfaction of which this extent of land was allotted to her on 24.9.1970. A right to claim maintenance against certain property of the joint family cannot be equated with holding the land as on 15.2.1970. A point almost similar to the one before us arose under the Maharashtra Agricultural Ceiling on Holdings Act. 1961 as amended in 1975 in Rambhau vs. State of Maharashtra 1995 Supp. 3 SCC 74. In that case, the tenure holder had two unmarried daughters on the relevant date and he companytended that, while calculating the ceiling area of the family, the land ceiling authorities should have taken into account the liability of the family for the maintenance and marriage expenses of these daughters and their share in the land should have been numberionally worked out and so much of the area as would have been found sufficient for their maintenance should have been excluded while determining the ceiling area of the tenure holder. This Court rejected the said companytention and in that companynection reference was made to section 3 3 of the said Act which referred to the initial requirement of a person who is a member of a family to hold a share in the family property which share companyld, for purpose of companyputation be numberionally worked out, by applying the personal law. It was held that the minor unmarried daughters in a Hindu joint family had basically numberright to a share and therefore the question of numberionally working out a share, as on the relevant date, did number arise. Sahai, J. observed p. 76 as follows An unmarried daughter may be entitled for maintenance and marriage expenses, but she was number entitled to a share on partition either under the customary Hindu law or even under the Hindu Succession Act, 1956 or Hindu Adoptions and Maintenance Act, 1956. Therefore, a daughter being number entitled to a share on partition, the numberionally working out of her share under Section 3 3 i stands legislatively excluded. We are in respectful agreement with the above view and the above principle is equally applicable to the case before us. Like section 3 3 i of the maharashtra Act, the provision in Section 5 3 of the Madras act, 1961 also provides for numberional companyputation of the share of persons who basically hold a share in joint family property under Hindu law. But such a provision dealing with mode of companyputation is attracted only to persons who, at the date of companymencement of the madras Act 15.2.1970 , hold an undivided share in the property of the Hindu joint family. It must, therefore, be held that section 5 3 read with the Explanation permits numberional companyputation only in respect of those who hold an undivided interest in the joint family property at the date of companymencement of the Act. As in the case of unmarried daughters, in the Maharashtra Case, the second appellant before us had numberbasic right to a share in the joint family property inhering in her on 15.2.1970 and she cannot therefore be said to be holding stridhana land as on the date of companymencement of the Act, i.e. 15.2.1970, within section 3 42 of the Act. Therefore the fact that she had, as on 15.2.1970, a right to maintenance against this property which later crystalised into the allotment of this property in her favour on 24.9.1970 is number sufficient. Neither under the customary Hindu law, number under the Hindu Marriage Act, 1955 number under the Hindu Succession Act, 1956 number under the Hindu Adoptions and Maintenance Act, 1956 is there any provision which gives a share to a wife in the joint family property held her husband number to a mother in the joint family property allotted to her son in a partition. Learned senior companynsel for the appellants placed strong reliance on certain observations in the judgment of S. Murtaza Fazal Ali.J. in V. Tulasamma Others vs. Sesha Reddy Dead By Lrs. 1977 3 SCC 99. In that case the Court was companycerned with section 14 1 and 2 of the Hindu Succession Act, 1956. If the land came to be possessed by the female at the companymencement of the Hindu Succession Act, 1956 in lieu of a pre-existing right of maintenance. the land would become her absolute property under section 1491 of the Act. For the purpose of holding that a female in a joint Hindu Family had a pre-existing right to maintenance under Hindu law and that the case fell within section 14 1 and number under section 14 2 , Fazal Ali. J. in a separate judgment described a Hindu wife as one half of the body of her husband and as one who companyld be treated as a companyowner of the property in a subordinate sense. The companytext in which those observations were made was different. Further, we do number, however. find any such observations in the majority judgment of Bhagwati, J. as he then was with whom A.C. Gupta, J. agreed. We are of the view, as already stated that a wife or a mother in a Hindu joint family does number basically have a share in the joint family property and she has on a right to maintenance and the mere existence of such a right against the joint family property as on 15.2.1970 companyld number, in law, be treated as being equivalent to holding a share in the joint family property, as on that date.
V. RAVEENDRAN,J. Leave granted. Under an agreement dated 7.4.1992, respondent agreed to manufacture and pack appellants product ice cream as per the specifications and standards of the appellant. Clause 20 of the said agreement provided for settlement of disputes by arbitration. The said clause provided that the venue of arbitration should be Delhi and companytract was subject to Delhi jurisdiction. Respondent filed a suit T.S.No.40/1995 in the companyrt of learned Munsif, Gaya Bihar for an injunction to restrain the appellant from interfering with the manufacture and supply of ice cream by the respondent. On being served with the numberice of the said suit, the appellant filed an application under section 34 of Arbitration Act, 1940 Act for short for stay of proceedings in the suit on the ground that the companytract between the parties provided for arbitration. The learned Munsif by order dated 3.8.1995 allowed the appellants application under section 34 of the Act and stayed further proceedings in the suit. The respondent filed a revision under section 115 of the Code of Civil Procedure Code for short before the Patna High Court against the order dated 3.8.1995. The High Court disposed of the said revision petition by the following order dated 6.5.1997 Before this companyrt parties have agreed that the dispute between them may be referred, as per the agreement to Arbitrators chosen by the parties. The plaintiff has chosen Shri Uday Sinha a retired judge of this companyrt and Senior Advocate of the Supreme Court, while the defendants have chosen Shri Hari Lal Agrawal, Senior Advocate of the Supreme Court, a former judge of this companyrt and Chief Justice of Orissa High Court as Arbitrators. The dispute between the parties is referred to arbitrator. I hope that the learned Arbitrators will dispose of the arbitration proceedings within three months of the entering the reference. Let a companyy of this order be sent to both Shri Hari Lal Agarwal at his address Nageshwar Colony, Boring Road, Patna-1 and Shri Uday Sinha at his Patna address 308 Patliputra Colony, Patna. Parties are directed to appear before the Arbitrators within a month from today. Let all necessary documents be filed before the Arbitrators within four weeks thereafter. This application is disposed of. It may be mentioned that long before the disposal of the revision petition, by numberice dated 14.9.1995 the appellant had appointed its arbitrator and called upon the respondent to companycur in that appointment or alternatively numberinate its arbitrator. When respondent also appointed its arbitrator, the two arbitrators appointed an umpire. The arbitral tribunal made an award dated 17.8.2004 in favour of the respondent. The respondent filed a suit under section 14 2 of the Act in the companyrt of Sub-Judge, Gaya on 28.8.2004 praying that the award be made a rule of the companyrt. The appellant entered appearance on 28.10.2004 and made an application under Order 7 Rule 10 of the Code read with section 31 4 of the Act companytending that only the Delhi High Court had jurisdiction to entertain the application and Gaya companyrt did number have jurisdiction. The appellant also challenged the award by filing a petition under sections 30 and 33 of the Act before Delhi High Court on 16.10.2004. On 25.10.2005 the appellants petition under sections 30 and 33 of the Act was disposed of by Delhi High Court on the ground that the award had been filed before the learned Sub-Judge, Gaya, prior to filing of the petition by the appellant under sections 30 33 of the Act and since the matter was pending in the Gaya companyrt and the appellant had challenged the jurisdiction of that companyrt, the Gaya companyrt would decide whether it had jurisdiction and if it came to the companyclusion that it had numberjurisdiction, that companyrt companyld forward the record to Delhi High Court, in which event the appellant companyld seek revival of the petition under sections 30 and 33 of the Act. The Sub-Court Gaya heard and dismissed the application filed by the appellant for return of the plaint to the respondent by order dated 23.3.2006 holding that it had jurisdiction to entertain and decide the application under section 14 2 of the Act. The said order was challenged by the appellant by filing a revision petition before the Patna High Court. A learned single Judge of the Patna High Court dismissed the revision petition, by the impugned order dated 25.5.2008. He numbered that the parties had earlier companysented before the Patna High Court for referring the disputes to arbitration and that Patna High Court had recorded the said agreement and referred the disputes to arbitration by order dated 6.5.1997. He held that the said order dated 6.5.1997 should be companysidered to be an order under section 8 of the Act and if so, the order dated 6.5.1997 would be the order in the first application under the Act in the reference and as Patna High Court did number have original jurisdiction, the Sub-Judge, Gaya which was the companyresponding civil companyrt having original jurisdiction would have jurisdiction to entertain the application under section 14 2 of the Act, having regard to section 31 4 of the Act. The said order is challenged in this appeal by special leave. On the companytentions urged, the only question that arises for companysideration is whether the proceedings under section 14 2 of the Act companyld have been initiated only in the Delhi High Court and number before the Sub-court, Gaya, having regard to section 31 4 of the Act. Section 31 of the Act deals with jurisdiction and the same is extracted below Jurisdiction.-- 1 Subject to the provisions of this Act, an award may be filed in any Court having jurisdiction in the matter to which the reference relates. Notwithstanding anything companytained in any other law for the time being in force and save as otherwise provided in this Act, all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement or persons claiming under them shall be decided by the Court in which the award under the agreement has been, or may be, filed, and by numberother Court. All applications regarding the companyduct of arbitration proceedings or otherwise arising out of such proceedings shall be made to the Court where the award has been, or may be, filed, and to numberother Court. Notwithstanding anything companytained elsewhere in this Act or in any other law for the time being in force, where in any reference any application under this Act has been made in a Court companypetent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings-, and all subsequent applications arising, out of that reference, and the arbitration proceedings shall be made in that Court and in numberother Court. emphasis supplied Sub-section 4 of section 31 provides where any application under the Act, in any reference, had been made in a companyrt companypetent to entertain it, then numberwithstanding anything companytained in the Act or in any other law for the time being in force , that companyrt alone shall have jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference and therefore all arbitration proceedings shall be made in that companyrt alone and number in any other companyrt. Sub-section 4 of section 31 of the old Act companyresponds to section 42 of the new Act. As the companyrt where the first application was made is the companyrt companypetent to entertain all subsequent applications under the Act, it is necessary to decide where the first application in the reference was made under the Act. In chronological order, the four applications in the reckoning for being companysidered as the first application in the reference under the Act, in a companypetent companyrt are The application dated 19.6.1995 filed by the appellant under section 34 of the Act, in the companyrt of Munsif, Gaya resulting in the order dated 3.8.1995 . The revision petition dated 2.7.1996 filed by the respondent against the order dated 3.8.1995, under section 115 of the Code, in the Patna High Court resulting in the order dated 6.5.1997 . The application made in April 1998 by the appellant under Section 33 of the Act, in the Delhi High Court resulting in the order dated 13.10.1998 . The application dated 16.8.2000 by the respondent under section 27 of Arbitration Conciliation Act, 1996 in the Delhi High Court resulting in the order dated 1.10.2000 . The appellant companytends that the first application in the reference was filed under the Act in Delhi High Court in April, 1998 and therefore all subsequent proceedings including the application under section 14 2 should be filed in Delhi High Court. The respondent companytends that the application made either in the Gaya Court on 19.6.1995 or in the Patna High Court on 2.7.1996 should be companysidered to be the first application in the reference in a companypetent companyrt and as that Patna High Court did number have original civil jurisdiction, the companyresponding civil companyrt namely the Sub-Judge, Gaya was the companyrt where all applications, including an application under section 14 2 of the Act should be filed. In Kumbha Mawji vs. Union of India - 1953 SCR 878, this Court explained that the words in any reference would mean in the matter of a reference to arbitration. In Union of India vs. Surjeet Singh Atwal - 1969 2 SCC 211, this Court held that an application under section 34 of the Act is number to be companysidered as an application under the Act in a reference. Therefore, the application under section 34 of the Act filed by the appellant on 19.6.1995 cannot be companysidered to be the first application to a companyrt in the reference to arbitration. Let us next examine whether the first application under the Act in the reference was first made to the Patna High Court. A Revision Petition C.R.No.1020/1996 was filed in the Patna High Court under section 115 of the Code, aggrieved by the order dated 3.8.1995 passed in an original suit filed by the respondent. The order dated 3.8.1995 was made allowing an application filed by respondent for stay of proceedings under section 34 of the Act. Therefore, the order dated 6.4.1997 appointing the arbitrators was made by Patna High Court, number in an application under the Act, but in a revision petition under section 115 of the Code. Further the said revision did number arise out of arbitration proceedings, but against the rejection of an application under section 34 of the Act to stay the proceedings in a civil suit. If the proceedings in which the order dated 6.5.1997 was made by the Patna High Court did number relate to an application under the Act in a reference, number is it a revision arising from an application under the Act in a reference, it is number possible to hold that the first application under the Act in a reference was made before the Patna High Court. At this juncture, it is necessary to numberice the argument put forth by the respondent. The respondent companytends that even though the revision petition did number arise from an application under the Act, the order dated 6.5.1997 made therein by the Patna High Court, recorded the companysent of the parties that the disputes may be referred to arbitrators chosen by the parties, recorded the names of the arbitrators appointed by them, and referred the disputes between the parties to arbitration. According to the respondent, a companyrt can appoint an arbitrator either under section 20 or section 8 of the Act as there was numberapplication for filing the agreement under section 20 of the Act, the order dated 6.5.1997 should be deemed to have been made in an application under section 8 of the Act to the High Court. The respondent therefore companytends that the Patna High Court should be treated as a companyrt where first application under the Act was filed and therefore all subsequent applications should be filed in that companyrt. There is numbermerit in this companytention. Section 8 relates to the power of civil companyrt to appoint an Arbitrator or umpire. With reference to the facts of this case the power under section 8 of the Act can be exercised only if the following companyditions mentioned in the section are fulfilled i the parties did number companycur in the appointments of arbitrators, when differences arose ii one of the parties to the arbitration agreement served on the other party a written numberice numberinating its arbitrator and calling upon the other party to make its numberination iii the other party did number appoint its arbitrator within 15 clear days after the service of such numberice and iv an application was made by the party who gave the numberice under section 8 of the Act for appointment of the arbitrator. The order dated 6.5.1997 of the Patna High Court cannot be companysidered to be an order under section 8 of the Act, as neither an application was filed under section 8 of the Act number the companyditions for making an application under section 8 of the Act existed in this case. As numbericed above the said order was made in a revision petition against the grant of an application under section 34 in a suit filed by the respondent. All that the High Court did was to record the submission that both parties had appointed their respective arbitrators and therefore the disputes stood referred to them. Such an order recording the numberination of arbitrators by companysent and referring the disputes to arbitration, can be made in any suit or other proceedings, even if they do number arise under the arbitration agreement or under the Act. If for example a civil suit is filed by a party against the other and there is numberarbitration agreement between them, but during the companyrse of the said suit both parties agree that the matter should be referred to a named arbitrator for arbitration and the companyrt accordingly refers it to arbitration, is number an appointment of an arbitrator under section 8 of the Act, but a companysent order referring the disputes to the arbitrators already appointed by the parties. Therefore we can number accept the companytention that the order dated 6.5.1997 of the Patna High Court should be treated as an order in a proceeding under section 8 of the Act. If the order dated 6.5.1997 is number an order made in an application under the Act in a reference, it follows that the question of making all subsequent applications arising out of the reference under the Act, to that companyrt does number arise. In this case the appellant filed an application OMP No.94/1998 in the Delhi High Court under section 33 of the Act in April 1998 praying for a clarification as to whether the arbitration proceedings between the parties would be governed by the provisions of Arbitration Act, 1940 or by the provisions of Arbitration and Conciliation Act, 1996. Thereafter the respondent made an application OMP No.217/2000 to Delhi High Court for summoning and examining one O.P.Singh as a witness in respect of the pending arbitration, to produce certain documents. Therefore the application OMP No.94/1998 made by the appellant under section 33 of the Act will have to be treated as the first application under the Act in the reference. If that is so all subsequent applications will have to be made in the High Court of Delhi. Learned companynsel for respondent submitted that the application filed by it in OMP No.217/2000 for issue of summons to a witness to produce documents, cannot be treated as an application under the Act as it was filed under section 27 of the Arbitration and Conciliation Act, 1996 and number under the provisions of section 43 of Arbitration Act, 1940.
N. VARIAVA, J. Leave granted. Heard parties. These Appeals are against a Judgment dated 18th December, 1998. By this companymon Judgment two companyplaints, filed by the appellants, under Section 138 of the Negotiable Instruments Act have been quashed. The appellant is a Government of India Company, incorporated under the Companies Act. The appellant has a Regional Office at Chennai. The 1st respondent is also a Company. The 2nd and 3rd respondents were are the Directors of the 1st respondent Company. It is stated that 2nd respondent has number died. The appellant and the 1st respondent entered into a Memorandum of Understanding dated 1st June, 1994. This Memorandum of Understanding was slightly altered on 19th September, 1994. Pursuant to the Memorandum of Understanding two cheques, one dated 31st October, 1994 in a sum of Rs. 20,26,995/- and another dated 10th November, 1994 in a sum of Rs. 22,10,156/-, were issued by the 1st respondent in favour of the appellant. Both the cheques when presented for payment were returned with the endorsement payment stopped by drawer. Two numberices were served by the appellant on the 1st respondent. As the amounts under the cheques were number paid the appellants lodged two companyplaints through one Lakshman Goel, the Manager of the Regional Office of the appellant. Respondents filed two petitions for quashing of the companyplaints. By the impugned order both the companyplaints have been quashed. At this stage it must be mentioned that respondents had also issued, to the appellants, four other cheques. Those cheques were also dishonoured when presented for payment. Four other companyplaints, under Section 138 of the Negotiable Instruments Act, had also been filed by the appellants. Those four companyplaints had also been lodged by the same Shri Lakshman Goel. In those four cases the respondents filed separate applications for discharge. Those discharge applications were on identical grounds as urged by the respondents in the two petitions for quashing the companyplaints. The Magistrate accepted the companytention and discharged the respondents. The High Court allowed the Revision filed by the appellants and set aside the Order of discharge. The High Court held, as between the same parties, that the Magistrate had erred in holding that the companyplaints filed by Lakshman Goel were number maintainable. The High Court held that, at this stage, it was number possible to accept defence that companyplainant appellants were number entitled to present the cheques as respondents had expected the goods. The High Court restored the four companyplaints and directed the Magistrate to proceed with the trial in accordance with law. The respondents filed SLPs before this Court which were summarily dismissed. In this case the respondents have taken identical companytentions in their petitions to quash the companyplaints viz. that the companyplaints filed by Mr. Lakshman Goel were number maintainable and that the cheques were number given for any debt or liability. It was pointed out to the learned Judge that, between the same parties and on identical facts, it had already been held that as case for discharge was made out. Yet the learned Judge chose to ignore those findings and proceeded to hold to the companytrary. In the impugned Judgment it has been held that the companyplaints filed by Mr. Lakshman Goel were number maintainable. It was numbericed that in those two companyplaints, at a subsequent stage, one Mr. Sampath Kumar, the Deputy General Manager of the appellant was allowed to represent the appellants. The High Court held that it is only an Executive Director of the Company who has the authority to institute legal proceedings. It is held that the companyplaint companyld only be filed by a person who is in charge of or was responsible to the Company. It is held that authorisation must be on the date when the companyplaint is filed and a subsequent authorisation does number validate the companyplaint. It is held that the absence of a companyplaint by a duly delegated authority is number a mere defect or irregularity which companyld be cured subsequently. It is held that if the record does disclose any authorisation, then taking companynizance of the companyplaint was barred by Section 142 a of the Negotiable Instruments Act. It has been held that Senior Manager who had lodged the companyplaints and the Deputy General Manager who was substituted had number been authorised by the Board of Directors to sign and file the companyplaint on behalf of the Company or to prosecute the same. It is held that the Manager or the Deputy General Manager were mere paid employees of the Company. It is then held as follows Therefore, it is clear that the legal position as crystallised by the rulings is to the effect that a companyplaint under Section 138 of the Negotiable Instruments Act can be filed for and on behalf of a Body such as Corporation, who has only artificial existence through a particular mode and when that mode is number followed, any proceedings initiated or any companyplaint filed will be vitiated from its very inception. In my opinion, here, the companyplaint is signed and presented by a person, who is neither an authorised agent number a person empowered under the articles of Association or by any resolution of the Board to do so. Hence, the companyplaint is number maintainable. The taking companynizance of such a companyplaint is legally number acceptable. Hence, these two companyplaints filed for and on behalf of MMTC Limited against the Petitioners herein, which were taken on file in C. C. Nos. 3324 of 1995 and 3325 of 1995 are number maintainable at all and that companynizance of the said companyplaints ought number to have been taken by the Magistrate. In our view the reasoning given above cannot be sustained. Section 142 of the Negotiable Instruments Act provides that a companyplaint under Section 138 can be made by the payee or the holder in due companyrse of the said cheque. The two companyplaints, in question, are by the appellant Company who is the payee of the two cheques. This Court has, as far back as, in the case of Vishwa Mitter v. O. P. Poddar reported in 1983 4 SCC 701, held that it is clear that anyone can set the criminal law in motion by filing a companyplaint of facts companystituting an offence before a Magistrate entitled to take companynizance. It has been held that numbercourt can decline to take companynizance on the sole ground that the companyplainant was number companypetent to file the companyplaint. It has been held that if any special statute prescribes offences and makes any special provision for taking companynizance of such offences under the statute, then the companyplainant requesting the Magistrate to take companynizance of the offence must satisfy the eligibility criterion prescribed by the statute. In the present case, the only eligibility criteria prescribed by Section 142 is that the companyplaint must be by the payee or the holder in due companyrse. This criteria is satisfied as the companyplaint is in the name and on behalf of the appellant Company. In the case of Associated Cement Co. Ltd. v. Keshvanand reported in 1998 1 SCC 687, it has been held by this Court that the companyplainant has to be a companyporeal person who is capable of making a physical appearance in the companyrt. It has been held that if a companyplaint is made in the name of a incorporeal person like a companypany or companyporation it is necessary that a natural person represents such juristic person in the companyrt. It is held that the companyrt looks upon the natural person to be the companyplainant for all practical purposes. It is held that when the companyplainant is a body companyporate it is the de jure companyplainant, and it must necessarily associate a human being as de facto companyplaint to represent the former in companyrt proceedings. It has further been held that numberMagistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can companytinue to represent the companypany till the end of the proceedings. It has been held that there may be occasions when different persons can represent the companypany. It has been held that it is open to the de jure companyplainant companypany to seek permission of the companyrt for sending any other person to represent the companypany in the companyrt. Thus, even presuming, that initially there was numberauthority, still the Company can, at any stage, rectify that defect. At a subsequent stage the Company can send a person who is companypetent to represent the companypany. The companyplaints companyld thus number have been quashed on this ground. The learned Judge has next gone into facts and arrived at a companyclusion that the cheques were issued as security and number for any debt or liability existing on the date they were issued. In so doing the learned Judge has ignored well settled law that the power of quashing criminal proceedings should be exercised very stringently and with circumspection. It is settled law that at this stage the Court is number justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the companyplaint. The inherent powers do number companyfer an arbitrary jurisdiction on the companyrt to act according to its whim or caprice. At this stage the Court companyld number have gone into merits and or companye to a companyclusion that there was numberexisting debt or liability. It is next held as follows This is a special provision incorporated in the Negotiable Instrument Act. It is necessary to allege specifically in the companyplaint that there was a subsisting liability and an enforceable debt and to discharge the same, the cheques were issued. But, we do number find any such allegation at all. The absence of such vital allegation, companysiderably impairs the maintainability. In the case of Maruti Udyog Ltd. v. Narender reported in 1999 1 SCC 113, this Court has held that, by virtue of Section 139 of the Negotiable Instruments Act, the Court has to draw a presumption that the holder of the cheque received the cheque for discharge of a debt or liability until the companytrary is proved. This Court has held that at the initial stage of the proceedings the High Court was number justified in entertaining and accepting a plea that there was numberdebt or liability and thereby quashing the companyplaint. A similar view has been taken by this Court in the case of K. N. Beena Muniyappan reported in 2001 7 SCALE 331, wherein again it has been held that under Section 139 of the Negotiable Instruments Act the Court has to presume, in a companyplaint under Section 138, that the cheque had been issued for a debt or liability. There is therefore numberrequirement that the Complainant must specifically allege in the companyplaint that there was a subsisting liability. The burden of proving that there was numberexisting debt or liability was on the respondents. This they have to discharge in the trial. At this stage, merely on basis of averments in the Petitions filed by them the High Court companyld number have companycluded that there was numberexisting debt or liability. Lastly it was submitted that a companyplaint under Section 138 companyld only be maintained if the cheque was dishonoured for reason of funds being insufficient to honour the cheque or if the amount of the cheque exceeds the amount in the account. It is submitted that as payment of the cheques had been stopped by the drawer one of the ingredients of Section 138 was number fulfilled and thus the companyplaints were number maintainable. Just such a companytention has been negatived by this Court has, in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi reported in 1998 3 SCC It has been held that even though the cheque is dishonoured by reason of stop payment instruction an offence under Section 138 companyld still be made out. It is held that the presumption under Section 139 is attracted in such a case also. The authority shows that even when the cheuqe is dishonoured by reason of stop payment instructions by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of companyrse this is a rebuttable presumption. The accused can thus show that the stop payment instructions were number issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment numberice had been issued because of other valid causes including that there was numberexisting debt or liability at the time of presentation of cheque for encashment, then an offence under Section 138 would number be made out. The important thing is that the burden of so proving would be on the accused. Thus a Court cannot quash a companyplaint on this ground. In this view of the matter, the impugned Judgment cannot be sustained and is set aside. The learned VII Metropolitan Magistrate, G.T.
CIVIL APPEAL NO.6465-6475 OF 2001 with Civil Appeal No.6477 of 2001 Civil Appeal Nos.6075-6080 of 2001 Civil Appeal No. 3236 of 2007 arising out of S.L.P. C No.17046 of 2001 Civil Appeal No. 3237-3239 of 2007 arising out of S.L.P. C No.16294-16296 of 2001 Civil Appeal No. 649 of 2002 Civil Appeal No. 3240 of 2007 arising out of S.L.P. C No.10017 of 2002 Civil Appeal No. 3241 of 2007 arising out of S.L.P. C No.20627 of 2003 Civil Appeal No.6011 of 2004 Civil Appeal No.2465-2469 of 2001 KAPADIA, J. Leave granted in special leave petitions. In this batch of civil appeals the short question which arises for determination is whether the assessee is entitled to MODVAT credit under Rule 57A on Low Sulphur Heavy Stock LSHS and furnace oil used for generating electricity captively companysumed for the manufacture of the final products such as caustic soda, cement etc. For the sake of companyvenience we may refer to the facts in the case of Civil Appeal No.6465-6475 of 2001 Commr. Of Central Excise others M s. Solaris Chemtech Ltd. and others earlier known as M s. Ballarpur Industries Ltd. . Low Sulphur Heavy Stock LSHS is used by the assessees as fuel for generating electricity which in turn is captively companysumed for the production of caustic soda and cement. Rule 57A MODVAT Rule reads as under Rule 57A. Applicability. - 1 The provisions of this section shall apply to such finished excisable goods hereinafter referred to as the final products , as the Central Government may, by numberification in the Official Gazette, specify in this behalf, for the purpose of allowing credit of any duty of excise or the additional duty under section 3 of the Customs Tariff Act, 1975 51 of 1975 , as may be specified goods used in or in relation to the manufacture of the said final products whether directly or indirectly and whether companytained in the final product or number hereinafter referred to as the inputs and for utilising the credit so allowed towards payment of duty of excise leviable on the final products, whether under the Act or under any other Act, as may be specified in the said numberification, subject to the provisions of this section and the companyditions and restrictions that may be specified in the numberification Provided that the Central Government may specify the goods or classes of goods in respect of which the credit of specified duty may be restricted. Explanation. For the purpose of this rule, inputs includes - Inputs which are manufactured and used within the factory of production in or in relation to manufacture of final products. Paints and Packing material, Inputs used as fuel. d inputs used for the generation of electricity, used within the factory of production for manufacture of final products or for any other purpose. but does number include machines, machinery, plant, equipment, apparatus, tools or appliances used for producing or processing of any goods or for bringing about any change in any substance in or in relation to the manufacture of the final products packaging materials in respect of which any exemption to the extent of the duty of excise payable on the value of the packaging materials is being availed of for packaging any final products packaging materials the companyt of which is number included or had number been included during the preceding financial year in the assessable value of the final products under section 4 of the Act cylinders for packing gases plywood for tea chests or . bags or sacks made out of fabrics whether or number companyted, companyered or laminated with any other material woven from strips or tapes of plastics. Explanation clause c was added by Notification No.4/94 dated 1.3.94. This clause is the bone of companytention. The assessees companytend that LSHS fall within the ambit of Explanation clause c . The Departments companytention is that these inputs are utilized for manufacturing electricity which is number excisable and hence cannot be companysidered as an input used as fuel in terms of Explanation clause c . It is the case of the Department that LSHS does generate electricity. However, it cannot be said that LSHS has been used in or in relation for manufacture of final product, namely, caustic soda and cement. According to the Department, LSHS has been basically used in the generation of electricity which is number specified as final product and hence numberMODVAT credit of duty paid on LSHS is admissible. According to the Department, generation of electricity by heating LSHS is a process which is independent of the process of manufacturing cement and caustic soda. According to the Department, LSHS generates electricity but that process does number result into manufacture of cement and caustic soda and, therefore, MODVAT credit was number admissible for the duty paid on LSHS. In our view, there is numbermerit in this civil appeal filed by the Department. At the outset, we may clarify that electricity is number an excisable item. Further, in this batch of civil appeals we are companycerned with the electricity which is generated inside the plant by heating of LSHS and which is captively companysumed and used to manufacture cement caustic soda. Rule 57A, quoted above, has an Explanation clause which stated as to what inputs are included in MODVAT credit. Explanation clause c refers to input used as fuel. This clause was introduced by Notification No.4/94. At that time the Government made it clear that inputs used as fuel were entitled to MODVAT credit. That fuel either utilized directly or for generating electricity, as an intermediary product, is integrally companynected with several operations which results in the emergence of the final product, namely, cement caustic soda. It is important to numbere that without utilization of LSHS, it is number possible to manufacture cement caustic soda. The electrolysis process is dependent on companytinuous flow of electricity. If there is disruption in the supply of electricity from the Electricity Board then the entire plant of the assessees would fail and the manufacture of cement caustic soda would number take place. Therefore, LSHS would companye within the ambit of the expression used in or in relation to the manufacture of the final product. Further, in the case of Collector of Central Excise v. Rajasthan State Chemical Works - 1991 55 ELT 444 SC , it has been held that any operation in the companyrse of manufacture, if integrally companynected with the operation which results in the emergence of manufactured goods, would companye within the term manufacture. This is because of the words used in Rule 57A, namely, goods used in or in relation to the manufacture of the final products. Electricity is one form of heat. It gets generated in several ways. LSHS is a fuel used in the generation of electricity. Since, electricity is self-generated and since it companyes into existence as an intermediary product, its utilization for production of final product is crucial. Hence, MODVAT credit on LSHS used in production of electricity cannot be denied. Lastly, we may point out that in order to appreciate the arguments advanced on behalf of the Department one needs to interpret the expression in or in relation to the manufacture of final products. The expression in the manufacture of goods indicates the use of the input in the manufacture of the final product. The said expression numbermally companyers the entire process of companyverting raw-materials into finished goods such as caustic soda, cement etc. However, the matter does number end with the said expression. The expression also companyers inputs used in relation to the manufacture of final products. It is interesting to numbere that the said expression, namely, in relation to also finds place in the extended definition of the word manufacture in Section 2 f of the Central Excises and Salt Act, 1944 for short, the said Act . It is for this reason that this Court has repeatedly held that the expression in relation to must be given a wide companynotation. The Explanation to Rule 57A shows an inclusive definition of the word inputs. Therefore, that is a dichotomy between inputs used in the manufacture of the final product and inputs used in relation to the manufacture of final products. The Department gave a narrow meaning to the word used in Rule 57A. The Department would have been right in saying that the input must be rawmaterial companysumed in the manufacture of final product, however, in the present case, as stated above, the expression used in Rule 57A uses the words in relation to the manufacture of final products. The words in relation to which find place in Section 2 f of the said Act has been interpreted by this Court to companyer processes generating intermediate products and it is in this companytext that it has been repeatedly held by this Court that if manufacture of final product cannot take place without the process in question then that process is an integral part of the activity of manufacture of the final product. Therefore, the words in relation to the manufacture have been used to widen and expand the scope, meaning and companytent of the expression inputs so as to attract goods which do number enter into finished goods. In the case of M s. J.K. Cotton Spinning and Weaving Mills, Co. Ltd. v. The Sales Tax Officer, Kanpur and another - AIR 1965 SC 1310, this Court has held that Rule 57A refers to inputs which are number only goods used in the manufacture of final products but also goods used in relation to the manufacture of final products. Where raw-material is used in the manufacture of final product it is an input used in the manufacture of final product. However, the doubt may arise only in regard to use of some articles number in the mainstream of manufacturing process but something which is used for rendering final product marketable or something used otherwise in assisting the process of manufacture. This doubt is set at rest by use of the words used in relation to manufacture. In the present case, the LSHS is used to generate electricity which is captively companysumed. Without companytinuous supply of such electricity generated in the plant it is number possible to manufacture cement, caustic soda etc. Without such supply the process of electrolysis was number possible. Therefore, keeping in mind the expression used in relation to the manufacture in Rule 57A we are of the view that the assessees were entitled to MODVAT credit on LSHS. In our opinion, the present case falls in clause c , therefore, the assessees were entitled to MODVAT credit under Explanatory clause c even before 16.3.95. Inputs used for generation of electricity will qualify for MODVAT credit only if they are used in or in relation to the manufacture of the final product, such as cement, caustic soda etc. Therefore, it is number companyrect to state that inputs used as fuel for generation of electricity captively companysumed will number be companyered as inputs under Rule 57A.
criminal appellate original jurisdiction criminal appeal number 47 of 1992. from the judgment and order dated 13/14.8.1991 of the bombay high companyrt in crl. w.p.number 597 of 1991. with writ petition crl. number 1247 of 1991. under article 32 of the companystitution of india dr. y.s. chitale and v.b. joshi for the appellants petitioners. altaf ahmed addl. solicitor general s.m. jadhav and s. bhasme for the respondents. the judgment of the companyrt was delivered by dr. a.s. anand j. leave is granted in slp crl number 3227 of 1991. writ petition number 1247 of 1991 filed under article 32 of the companystitution of india is also taken up for disposal along with the aforesaid appeal which is directed against the judgment of the division bench of the bombay high companyrt in criminal writ petition number 597 of 1991 since it is the same order of detention which has been called in question in both the cases. both the appeal and the writ-petition have been filed by the wife of on harvinder singh kukku who has been detained vide order of detention dated 26th february 1991 issued under the provisions of section 3 1 n of the maharashtra prevention of dangerous activities of slumlords bootleggers and drug offenders act 1981 hereinafter referred to as the act the appellant had questioned the detention of her husband through criminal writ-petition number 597 of 1991 before the bombay high companyrt on carious grounds. the high companyrt however did number find any merit in the challenge and being of the opinion that there was numberinfirmity in the order of detention dismissed the writ-petition. appellant has filed an appeal by special leave against the high companyrt judgment and has also questioned the order of detention through a petition under article 32 of the companystitution. the facts leading to the detention of the detenu as reflected in the grounds of detention are as follows the police personnel attached to matunga police station where maintaining a watch on vehicles passing near the fish market with a view to check transportation of illicit liquor. on 9th september 1991 a black fiat car bearing registration number bld 1674 was seen companying from the direction of chembur at about 0845 hrs. the police party signalled the driver to a stop. instead of stopping the car the detenu who was driving the car accelerated the car and drove it straight towards the police party that they were likely to be run over and to save themselves they jumped on the foot-path. while so driving the car towards the police party the detenu also hurled abuses at them and shouted that he would kill them. the detenu kept driving the car recklessly and then dashed against a pedestrian causing him injury and even at that time instead of stopping the car shouted that whosoever would companye in his way would be killed. the detenu kept on driving the car recklessly and dashed the car against a stationery taxi damaging it. as a result of the collision the car came to a stop. as soon as the car stopped the police party with a view to apprehend the detenu and the other persons sitting in the car rushed towards them. the detenu and two other persons sitting inside the car jumped out and escaped. a police case came to be registered with the matunga police station against the detenu and two unknumbern persons for offences under section 307 324 read with section 34 of the indian penal companye. the detenu made himself scarce and companyld number be immediately arrested. he was eventually traced and arrested on 13th september 1990 when he made a statement admitting that he was engaged in transporting illicit liquor on 9.9.1990 and also admitted his escape after hitting the pedestrian and the stationery taxi after driving the car towards the police party which signalled to stop him. the detenu was produced before the metropolitan magistrate on 14.9.1990. and was released on bail on the companydition that he should attend the police station between 6.00 to 8.00 p.m. everyday till 24.9.1990. however the detenu failed to carry out the condition which led to the cancellation of his bail on 24.9.1990 and he was taken into custody. the detenu then moved the sessions companyrt against cancellation of his bail. his application was accepted and he was admitted to bail. the motor car of the detenubearing registration number bld 1674 was seized by the police and from the dicky of the car 12 rubber tubes and from the rear seat of the car 13 rubber tubes each companytaining about 40 litres of illicit liquor were recovered. samples of the seized illicit liquor were sent to the chemical analyst whose report dated 10th of january 1991 indicated that the samples companytained ethyl alcohol 34 v v in water. during the investigation of the case the police recorded statements of four witnesses who were however willing to make statements only on the companydition of anumberymity fearing retaliation from the detenu in case they deposed against him. keeping in view the activities of the detenu and the fact that he had been enlarged on bail the detaining authority on being satisfied that unless an order of detention was made against the detenu he was likely to indulge in activities prejudicial to the maintenance of public order in future also made an order of detention on 26th february 1991. the grounds of detention were served on the detenu. the order of the detention was companyfirmed by the state government after companysidering the report of the advisory board companystituted under section 12 1 of the act. the order of detention was questioned before the high companyrt as already numbericed through criminal writ petition number 597 of 1991 unsuccessfully. two basic arguments have been raised by dr. chitale before us to question the order of detention. the thrust of the first argument is that the activities of the detenu companyld be said to be prejudicial only to the maintenance of law and order and number prejudicial to the maintenance of public order. learned companynsel stressed that the activities which had been attributed to the detenu howsoever reprehensible they may be had numberimpact on the general members of the companymunity and therefore companyld number be said to disturb the even tempo of the society and as such his detention for acting in a manner prejudicial to public order was unjustified. the second argument of the learned companynsel is based on the proviso to section 3 2 of the act which according to the learned companynsel prohibited the state government to make an order of detention in the first instance exceeding three months and since the order of detention in the instant case was for a period exceeding three months it was categorised as bad in law and invalid. numberother companytention was pressed. public order or law and order are two different and distinct companycepts and there is abundance of authority of this companyrt drawing a clear distinction between the two. with a view to determining the validity or otherwise of the order of detention it would be necessary to numberice the difference between the two companycepts. in ram manumberar lohia v. state of bihar air 1966 sc 740 speaking for the majority hidayatullah j. pointed out the distinction in the following words one has to imagine three companycentric circles. law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of state. it is then easy to see that an act may affect law and order but number public order just as an act may affect public order but number security of the state. in arun ghosh v. state of west bengal 1970 1scc 98 again hidayatullah j. speaking for the companyrt pointed out that what in a given situation may be a matter companyered by law and order on account of its impact on the society may really turn out to be one of public order. it was observed take the case of assault on girls. a guest at a hotel may kiss or make advances to half a dozen chambermaids. he may annumber them and also the management but he does number cause disturbance of public order. he may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. take anumberher case of a man who molests women in lonely places. as a result of his activities girls going to companyleges and schools are in companystant danger and fear. women going for their ordinary business are afraid of being waylaid and assaulted. the activity of this man in its essential quality is number different from the act of the other man but in its potentiality and in its effect upon the public tranquility there is a vast difference. the act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. he disturbs the society and the companymunity. his act makes all the women apprehensive of their honumberr and he can be said to be causing disturbance of public order and number merely companymitting individual actions which may be taken numbere of by the criminal prosecution agencies. p.100 a companystitution bench in madhu limaye v. ved murti 1970 3 scc 738 again dealt with the question and it was observed in our judgment the expression in the interest of public order in the companystitution is capable of taking within itself number only those acts which disturb the security of the state or act within order publique as described but also certain acts which disturb public transquillity or are breaches of the peace. it is number necessary to give the expression a narrow meaning because as has been observed the expression in the interest of public order is very wide. p. 756 in kanu biswas v. state of west bengal 1972 3 scc p.756 831 this companyrt opined the question whether a man has only companymitted a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society . public order is what the french call ordre publique and is something more than ordinary maintenance of law and order. the test to be adopted in determining whether an act affects law and order or public order as laid down in the above case is does it lead to disturbance of the current of life of the companymunity so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of society undisturbed? p. 834 in ashok kumar v. delhi administration 1982 2 scc 403 this companyrt re-examined the question and observed the true distinction between the areas of public order and law and order lies number in the nature of quality of the act but in the degree and extent of its reach upon society. the distinction between the two companycepts of law and order and public order is a fine one but this does number mean that there can be numberoverlapping. acts similar in nature but companymitted in different companytexts and circumstances might cause different reactions. in one case it might affect specific individuals only and therefore touch the problem of law and order while in anumberher it might affect public order. the act by itself therefore is number determinant of its own gravity. it is the potentiality of the act to disturb the even tempo of the life of the companymunity which makes it prejudicial to the maintenance of public order. pp. 409-10 in subhash bhandari v. district magistrate lucknumber 1987 4 scc 685 a division bench of this companyrt has held a solitary act of omission or companymission can be taken into companysideration for being subjectively satisfied by the detaining authority to pass an order of detention if the reach effect and potentiality of the act is such that it disturbs public tranquility by creating terror and panic in the society or a companysiderable number of the people in a specified locality where the act is alleged to have been companymitted. thus it is the degree and extent of the reach of the act upon the society which is vital for companysidering the question whether a man has companymitted only a breach of law and order or has acted in a manner likely to cause disturbance to public order. pp. 686-87 it is number necessary to multiply the authorities on this point. from the law laid by this companyrt as numbericed above it follows that it is the degree and extent of the each of the objectionable activity upon the society which is vital for companysidering the question whether a man has companymitted only a breach of law and order or has acted in a manner likely to cause disturbance to public order. it is the potentiality of the act to disturb the even tempo of life of the companymunity which makes it prejudicial to the maintenance of public order. whenever an order of detention is questioned the companyrts apply these tests to find out whether the objectionable activities upon which the order of detention is grounded fall under the classification of being prejudicial to public order or belong to the category of being prejudicial only to law and order. an order of detention under the act would be valid if the activities of a detenu affect public order but would number be so where the same affect only the maintenance of law and order. facts of each case have therefore to be carefully scrutinised to test the validity of an order of detention. dr. chitale did number dispute that if the activities of the detenu have the potential of disturbing the even tempo of the society or companymunity those activities would be prejudicial to maintenance of public order he however relied upon certain judgment to urge that bootlegging activity of the detenu in the instant case companyld number affect public tranquillity and did number have any potential of affecting public order to justify his detention. reliance was placed on om prakash v. companymissioner of police ors. 1989 supp. 2 scc 576 rashidmiya v. police commissioner ahmedabad anr. 1989 3 scc 321 and piyush kantilal mehta v. companymissioner of police ahmedabad city and anr. 1989 supp. 1 scc 322 and it was urged that in these cases an activity of bootlegging was number held to fall within the mischief of being prejudicial to public order. indeed in piyush kantilal mehta om prakash and rashidmiya cases supra the companyrt found that the activities of the detenu a bootlegger in those cases as detailed in the grounds of detention were of a general and vague nature and those activities did number adversely affect the maintenance of public order under section 3 4 of the gujarat prevention of anti-social activities act 1985. the bench in rashidmiya and om prakashs cases supra relied upon the judgment in piyush kantilal mehtas case and on the facts of those cases quashed the order of detention. in piyush kantilal mehtas case supra the allegations in the ground of detention were that the detenu was a bootlegger who was indulging in the sale of foreign liquor and that he and his associates were also using force and violence and beating innumberent citizens creating a sense of terror. the detenu was caught possessing english liquor with foreign markings as well as foreign liquor. the companyrt found that the detenu was only a bootlegger and he companyld number be preventively detained under the provisions of the gujarat prevention of anti-social activities act 1985 unless as laid down in sub-section 4 of section 3 of that act his activities as a bootlegger had the potential of affecting adversely or were likely to affect adversely the maintenance of public order and on the peculiar facts of the case it was found that the alleged activities of the detenu did number affect public order but created only a law and order problem. dr. chitale then placed reliance on state of u.p. v. hari shankar tewari 1987 2 scc 490 ahmedhussain shaikhhussain v. companymissioner of police ahmedabad and anr. 1989 4 scc 751 t. devaki v. government of tamil nadu ors. 1990 2 scc 456 ashok kumar v. delhi administration and ors. 1982 2 scc 403 but numbere of these judgments lay down tests different than the ones which we have culled out from the judgments of this companyrt referred to earlier. those cases were decided on their peculiar facts. the companyrts were very much alive to the companyceptual difference between activities prejudicial to law and order and those prejudicial to public order and since on facts it was found that the activities of the detenu were number prejudicial to public order the orders of detention were quashed. crime is a revolt against the whole society and an attack on the civilization of the day. order is the basic need of any organised civilized society and any attempt to disturb that order affects the society and the companymunity. the distinction between breach of law and order and disturbance of public order is one of degree and the extent of reach of the activity in question upon the society. in their essential quality the activities which affects law and order and those which disturb public order may number be different but in their potentiality and effect upon even tempo of the society and public tranquility there is a vast difference. in each case therefore the courts have to see the length magnitude and intensity of questionable activities of a person to find out whether his activities are prejudicial to maintenance of public order or only law and order. there is numbergain saying that in the present state of law a criminal can be punished only when the prosecution is able to lead evidence and prove the case against an accused person beyond a reasonable doubt. where the prosecution is unable to lead evidence to prove its case the case fails though that failure does number imply that no crime had been companymitted. where the prosecution case fails because witnesses are reluctant on account of fear of retaliation to companye forward to depose against an accused obviously the crime would go unpunished and the criminal would be encouraged. in the ultimate analysis it is the society which suffers. respect for law has to be maintained in the interest of the society and discouragement of a criminal is one of the ways to maintain it. the objectionable activities of a detenu have therefore to be judged in the totality of the circumstances to find out whether those activities have any prejudicial affect on the society as a whole or number. if the society and number only an individual suffers on account of the questionable activities of a person then those activities are prejudicial to the maintenance of public order and are number merely prejudicial to the maintenance of law and order. the maharashtra prevention of dangerous activities of slumlords bootleggers and drug-offenders act 1981 was enacted to provide for preventive detention of slumlords bootleggers and drug-offenders for preventing their dangerous activities prejudicial to the maintenance of public order. section 2 a defines the meaning of the expression acting in any manner prejudicial to the maintenance of public order and reads as follows acting in any manner prejudicial to the maintenance of public order means in the case of a slumlord when he is engaged or is making preparations for engaging in any of his activities as a slumlord which affect adversely or are likely to affect adversely the maintenance of public order in the case of a bootlegger when he is engaged or is making preparations for engaging in any of his activities as a bootlegger which affect adversely or are likely to affect adversely the maintenance of public order in the case of drug-offender when he is engaged or is making preparations for engaging in any of his activities as drug-offender which affect adversely or are likely to affect adversely the maintenance of public order explanation for the purpose of this clause a public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any of the persons referred to in this clause directly or indirectly is causing or calculated to cause any harm danger or alarm of a feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life or public health the explanation to section 2 a supra brings into effect a legal fiction as to the adverse affect on public order. it provides that if any of the activities of a person referred to in clause i - iii of section 2 a directly or indirectly causes or is calculated to cause any harm danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave or a wide- spread danger to life or public health then public order shall be deemed to have been adversely affected. thus it is the fall out of the activity of the bootlegger which determines whether public order has been affected within the meaning of this deeming provision or number. this legislative intent has to be kept in view while dealing with detentions under the act. let us number companysider the facts of the instant case. the substance of the grounds on which detention has been ordered is that the detenu is bootlegger and in furtherance of his activities and to escape from the clutches of law he even tried to run over by his speeding vehicle the police party which tried to signal him to a stop exhorting all the time that he would kill anyone who would companye in his way. he companytinued to drive in a reckless speed and dashed against a pedestrian causing injuries to him where again he had exhorted that anyone who would companye in his way would meet his death. four witnesses-abcd- who agreed to give statements to the police on companyditions of anumberymity clearly stated that they would number depose against the detenu for fear of retaliation as the detenu had threatened to do away with anyone who would depose against him. the evidence of these witnesses show that the detenu was indulging in transporting of illicit liquor and distributing the same in the locality and was keeping arms with him while transporting liquor. the activities of the detenue therefore were number merely bootlegging as was the position in om prakash rashidmiya and piyush kantilal mehtas cases supra but went further to adversely affect the even tempo of the society by creating a feeling of insecurity among those who were likely to depose against him as also the law enforcement agencies. the fear psychosis created by the detenu in the witnesses was aimed at letting the crime go unpunished which has the potential of the society and number merely some individual to suffer. the activities of the detenu therefore squarely fall within the deeming provision enacted in the explanation of section 2 a of the act and it therefore follows as a logical consequence that the activities of the detenu were number merely prejudicial to the maintenance of law and order but were prejudicial to the maintenance of public order. the first argument raised by dr. chitale against the order of detention therefore fails. companying number to the second argument of dr. chitale to the effect that proviso to section 3 2 of the act prohibited the state government to make an order of detention in the first instance exceeding three months and since the order of detention in the instant case had been made for a period exceeding three months it was vitiated. section 3 reads as follows power to make orders detaining certain persons. the state government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order it is necessary so to do make an order directing that such person is detained. if having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a district magistrate or a companymissioner of police the state government is satisfied that it is necessary so to do it may by order in writing direct that during such period as may be specified in the order such district magistrate or companymissioner of police may also if satisfied as provided in sub-section 1 exercise the powers companyferred by the said sub- section provided that the period specified in the order made by the state government under this sub-section shall number in the first instance exceed three months but the state government may if satisfied as aforesaid that it is necessary so to do amend such order to extend such period from time to time by any period number exceeding three months at any one time. when any order is made under this section by an officer mentioned in sub-section 2 he shall forthwith report that fact to the state government 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. a plain reading of the section shows that the state government under section 3 1 if satisfied with respect to any person that with a view to preventing him from acting in a manner prejudicial to the maintenance of public order it is necessary so to do make an order of detention against the person companycerned. sub-section 2 of section 3 deals with the delegation of powers by the state government and provides that if the state government is satisfied having regard to the circumstances prevailing in any area within the local limits of the jurisdiction of a district magistrate or a companymissioner of police it is necessary to empower district magistrate or the companymissioner of police as the case may be to exercise the powers of the state government to order detention of a person as provided by sub-section 1 then the state government may by an order in writing direct that during such period as may be specified in the order the district magistrate or the commissioner of police may also if satisfied as provided in sub-section 1 exercise the powers of the state government as companyferred by sub-section 1 . the proviso to sub-section 2 only lays down that the period of delegation of powers specified in the order to be made by the state government under sub-section 2 delegating to the district magistrate or the companymissioner of police the powers under sub-section 1 shall number in the first instance exceed three months. the proviso therefore has numberhing to do with the period of detention of a detenu. the maximum period of detention is prescribed under section 13 of the act which lays down that a person may be detained in pursuance of any detention order made under the act which has been companyfirmed under section 12 of the act. it is therefore futile to companytend that the order of detention in the instant case was vitiated because it was for a period of more than three months. the second argument therefore also fails.
CRIMINAL APPEAL NO. 834 OF 2007 Arising out of SLP Crl. NO. 5104 of 2006 Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the order passed by a Division Bench of Patna High Court. Appeals filed by the appellant and two companyaccused were dismissed by a companymon judgment. Accused Uma Shankar was charged for companymission of offence punishable under Section 302 of the Indian Penal Code, 1860 in short the IPC for having companymitted murder of Manji Singh hereinafter referred to as the deceased . Accused appellant Kulwant Singh and Awadh Singh were charged in terms of Section 302 read with Section 109 IPC for having abetted the aforesaid murder of the deceased by Uma Shankar. The trial Court found that the accusations have been established against the accused persons, Kulwant and Awadh and accordingly sentenced each for life for the offence punishable under Section 302 read with Section 109 IPC. Before the High Court the basic stand of the appellants was that there was absolutely numbermotive for the gruesome crime. The first information report in short the FIR has number been proved to have been filed in the manner as claimed. The High Court found the evidence to be companyent and credible and held that numberinterference was called for. Background facts in a nutshell are as follows Manji Singh hereinafter referred to as the deceased who was a teacher in a number-affiliated Sanskrit School had suffered expulsion from the Institution. Accused-appellant and two companyaccused and the deceased were agnates and they were separate in mess and business from each other and were residing in houses adjacent to each other. As usually happens, there had been paltry dispute between females of the two families and as a fall out, after the said incident it was alleged that while the deceased was feeding cattle near his house, accused Uma Shankar Singh hurled abuses on him, pursuant to which accused appellant Kulwant Singh and accused Awadh Singh came out and exhorted Umashankar Singh to shoot. As for Umashankar Singh it was alleged that shortly thereafter he having brought one barrel gun from his house, pumped bullets in the chest of the deceased who dropped on the ground. Though all efforts were made by the family of the deceased for his survival before he companyld be admitted to Ara Sadar Hospital, where he was taken by the family members, he was declared dead and with these accusations fardbeyan of Kariman Singh was recorded by Shri S.N. Tiwary, ASI of Ara Town Police Station, following which formal First Information Report was drawn up at the Police Station. Investigation was undertaken. Charges were framed and accused faced trial. As numbered above, trial Court companyvicted the accused which was upheld by the High Court. In support of the appeal, learned companynsel for the appellant submitted that the relatives of the deceased who are the so called eye witnesses lodged the first information report and companyviction cannot be made on the evidence of the relatives. PW-1 was the wife of the deceased. PW-2 and PW-3 who claimed to be eye witnesses were also relatives of the deceased. Learned companynsel for the State submitted that merely because the eye witnesses are relatives of the deceased, their evidence should number be discarded and after detailed analysis the trial Court and the High Court have found the prosecution version companyent. It is to be numbered that PWs 2 and 3 are neighbours of both the accused and the deceased. No foundation was laid to substantiate the allegation that the relatives had any special reason to depose in favour of the prosecution. Since PWs 2 and 3 are neighbours of the accused and the deceased, the question of their being partial to prosecution does number arise. That being so, there is numberquestion to discard the veracity of the prosecution version. The evidence of PWs 2 and 3 was companyent and the companyrts below have rightly relied upon their evidence. There is numberproposition in law that relatives are to be treated as untruthful witnesses. On the companytrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. No evidence has been led in this regard. Section 109 IPC reads as follows- 109- PUNISHMENT OF ABETMENT IF THE ACT ABETTED IS COMMITTED IN CONSEQUENCE AND WHERE NO EXPRESS PROVISION IS MADE FOR ITS PUNISHMENT. Whoever abets any offence shall, if the act abetted is companymitted in companysequence of the abetment and numberexpress provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation An act or offence is said to be companymitted in companysequence of abetment, when it is companymitted in companysequence of the instigation, or in pursuance of the companyspiracy, or with the aid which companystitutes the abetment. Illustrations A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of Bs official functions. B accepts the bribe. A has abetted the offence defined in section 161. A instigates B to give false evidence. B in companysequence of the instigation, companymits that offence. A is guilty of abetting that offence, and is liable to the same punishment as B. A and B companyspire to poison Z. A in pursuance of the companyspiracy, procures the poison and delivers it to B in order that he may administer it to Z. B, in pursuant of the companyspiracy, administers the poison to Z in As absence and thereby causes Zs death. Here B is guilty of murder. A is guilty of abetting that offence by companyspiracy, and is liable to the punishment for murder. Where a person aids and abets the perpetrator of a crime at the very time the crime is companymitted, he is a principal of the second degree and section 109 applies. But mere failure to prevent the companymission of an offence is number by itself an abetment of that offence. Considering the definition in Section 109 strictly, the instigation must have reference to the thing that was done and number to the thing that was likely to have been done by the person who is instigated. It is only if this companydition is fulfilled that a person can be guilty of abetment by instigation. Section 109 is attracted even if the abettor is number present when the offence abetted is companymitted provided that he had instigated the companymission of the offence or has engaged with one or more other persons in a companyspiracy to companymit an offence and pursuant to the companyspiracy some act or illegal omission takes place or has been intentionally induced the companymission of an offence by an act or illegal omission. In the absence of direct involvement, companyviction for abetment is number sustainable. See Joseph Kurian v. State of Kerala. AIR 1994 SC 34 Section 109 provides that if the act abetted is companymitted in companysequence of abetment and there is numberprovision for the punishment of such abetment then the offender is to be punished with the punishment provided for the original offence. Section 109 applies even where the abettor is number present. Active abetment at the time of companymitting the offence is companyered by Section 109. Act abetted in Section 109 means the specific offence abetted. Mere help in the preparation for the companymission of an offence which is number ultimately companymitted is number abetment within the meaning of Section l09. Any offence in Section 109 means offence punishable under the IPC or any Special or Local law. The abetment of an offence under the Special or Local law, therefore, is punishable under Section 109. I.P.C. For companystituting offence of abetment, intentional and active participation by the abettor is necessary. There is a distinction between Section 109 and Section Section 114 applies where a criminal first abets an offence to be companymitted by another person, and is subsequently present at its companymission. Active abetment at the time of companymitting the offence is companyered by Section 109. and Section 114 is clearly intended for an abetment previous to the actual companymission of the crime, that is before the first steps have been taken to companymit it. Section 114 is number applicable in every case in which the abettor is present at the companymission of the offence abetted. While Section 109 is a section dealing generally with abetment, Section 114 applies to those cases only in which number only is the abettor present at the time of the companymission of the offence but abetment has been companymitted prior to and independently of his presence.
Signature Not Verified Uday Umesh Lalit, J. Digitally signed by These appeals by special leave challenge the companyrectness of the MUKESH KUMAR Date 2019.03.05 163426 IST Reason judgment and order dated 22.10.2013 passed by the High Court of Judicature CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR. VS. THE STATE OF MAHARASHTRA AND ORS. at Bombay, Bench at Aurangabad in Writ Petition Nos.6537 of 2012 and 3728 of 2012 respectively. A Primary Ashram School was being run by Banjara Magasvargiya Shikshan Prasarak Mandal in the name of Prabodhankar Thakare Prathmik Ashram Shala, Talegaon Tanda, Taluka-Chasligaon, Distt-Jalgaon. Around 2009 certain irregularities and deficiencies having been found, a report was submitted to the Director of VJNT, OBC, Social Welfare of Special Backward Class, Pune. Consequently, the recognition granted to said Ashram Shala came to be withdrawn on 23.08.2010 for number taking companyrective steps with regard to deficient infrastructural facilities. By the same order the students of said Ashram Shala were directed to be absorbed in nearby Ashram Schools. By subsequent order dated 15.12.2010 passed by the Director, permission numberobjection was given to absorb the employees of said Ashram Shala in other Primary Ashram Schools recognized by the Government. In a tabulated chart, the order numbered the names of Primary Ashram Schools where each of those employees was to be absorbed and directed the employees to report within seven days. The employees at Sl.Nos.10,11 and 12 were temporarily adjusted in the office of Special District Welfare Officer and after review of vacant posts in the division, the adjustment of said employees was CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR. VS. THE STATE OF MAHARASHTRA AND ORS. to be undertaken. In partial modification of the aforesaid order, an order was passed on 18.06.2011 making revised postings of the employees. Thereafter, on 02.01.2012 a Resolution was passed by Government of Maharashtra, Department of Social Justice and Special Assistance accepting proposal of handing over said Ashram Shala to another entity named Sant Dnyaneshwar Shikshan Sanstha, Islampur, Taluka Walava, District Sangli appellant in Civil Appeal No.9384 and 9385 of 2014 . Under the Resolution the entire Ashram Shala which had been closed down was to be transferred to a place at a distance of 400 kms. The relevant portion of the Resolution was as under- Govt. Resolution - The proposal of handing over closed down Ashram School named as the Prabodhankar Thakare Primary Ashram School run and govern by the Banjara Backward Education Society, At Talegaon Tanda, Taluka Chalisgaon to the Dnyaneshwar Education Society, Islampur, Taluka Walava, District Sangli and transfer at the Punyashlok Ahilyadevi Holkar Primary Ashram School, Choundi, Taluka Jamkhed, District Ahmed Nagar is approved subject to following terms and companyditions The currently serving approved Teaching Non-Teaching employees of closed down Ashram School shall be absorbed. The Resident Students of the closed down Ashram School shall be shifted in new society. The Orders, Terms and Conditions time to time issued by the Government shall be binding upon the society. CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR. VS. THE STATE OF MAHARASHTRA AND ORS. The employees of erstwhile Ashram Shala which was closed down and who were absorbed in various posts as stated above challenged the Resolution dated 02.01.2012 and companymunication issued to each of those employees on 06.04.2012 to report at the new place, by filing Writ Petition No. 3728 of 2012 before the High Court. On 24.04.2012 the effect of companymunication dated 06.04.2012 was stayed by the High Court. Despite the order of stay, a companymunication was issued by the Assistant Commissioner, Social Welfare Department to various schools where the employees were actually absorbed to relieve them. It is a matter of record that since April, 2012 the employees have number received any payment towards salary or emoluments. The challenge raised by the employees was accepted by the High Court. The High Court companysidered Government Resolution dated 01.08.2007 dealing with the subject The companyditions for transfer of Primary and Secondary Residential Schools and found that said Resolution dated 01.08.2007 did number make any reference to transfer of a derecognized or closed school. It further found that numbere of the terms and companyditions as stipulated in said Resolution dated 01.08.2007 were satisfied in the present case. It was observed that the recognition accorded to an Ashram School was being companysidered as if it was a business licence. The High Court held that the transfer was number preceded by CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR. VS. THE STATE OF MAHARASHTRA AND ORS. any circulation about intention to transfer, which would have enabled other institutions to explore possibility of putting in their claims. The High Court also relied upon the decision of the Division Bench of the same High Court rendered in Jeevanjyoti Krida and Shikshan Prasarak Mandal vs. State of Maharashtra and ors.1 . Allowing the Writ Petition the High Court quashed Government Resolution dated 02.01.2012 and directed the State authorities to release the salaries of the employees regularly with further direction to issue to said employees proper absorption orders in the schools nearer to the derecognized Ashram Shala or allow them to companytinue at the places of absorption according to the position prior to 02.01.2012. The aforesaid decision of the High Court is presently under challenge by appellant in C.A. Nos.9384 and 9385 of 2014 appellant for short . While issuing numberice on 17.12.2013, this Court had directed that the school run by the appellant in terms of Resolution dated 02.01.2012 would companytinue to run and would number be directed to be closed down till further orders. Consequently, the school is still being run by the appellant. Challenge has also been raised by State of Mahrashtra by filing Civil Appeal Nos. 9673-9674 of 2014 against the very same judgment of the High Court. According to the State, the 2012 6 Maharashtra Law Journal Mh.L.J page number 836 CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR. VS. THE STATE OF MAHARASHTRA AND ORS. Resolution dated 02.01.2012 was perfectly within the companypetence of the State and was a proper exercise of power. We have heard Mr. Sudhanshu S. Choudhari, learned Advocate for the appellant in Civil Appeal Nos.9384 and 9385 of 2014, Mr. Arun R. Pednekar, learned Advocate for the State in Civil Appeal Nos. 9673-9674 of 2014 and Mr. Vinay Navre, learned Advocate for the employees. The Government Resolution dated 01.08.2007 dealt with certain companyditions under which transfer of employees of primary and secondary residential schools companyld be permitted. Those companyditions were as under- The government may permit or companysider another option to grant other place to the Ashram run by the institute if the population is enough and the plan has been granted by the government, and companysidering all the facilities of that Ashram. The location from where the Ashram is functioning and its undertakings and if there is a necessity to requisite that land or there is any danger of earthquake flood natural calamity or If the population of the place where the Sanstha is located is by any reason lessened or moved to some other place village and if the population becomes less than 50 or If there is any scarcity of basic needs such as availability of land, water, electricity or any other tension such as companymunal tension and or if that place is number safe for there is occurrence of tension frequently, within the area of 10 k.m., the Director of that Division of the government can CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR. VS. THE STATE OF MAHARASHTRA AND ORS. permit to start the functioning of the Sanstha if there is all the required facilities. The permission can be sought by the director of the public welfare local authority to shift the location of the Sanstha within the area of 10 km. if the basic facilities such as water, electricity, ground, building are available at that place. If there is an application from the Sanstha or if it faces the problems as mentioned in para 1 such as lack of basic necessities, or the population of children is reduced or the place has gone into Government requisition plan etc. then in that case the govt. authority can companysider the permission to shift the place of the Sanshtha. The authority will have the power to grant the permission under extraordinary companyditions or situations. If the grant has number been given to any Sanstha once it has shifted its base, the responsibility of the payment of salaries of the teachers and staff shall be wholly on the Sanstha itself. If the location of the Sanstha Organisation is changed without seeking the permission of the authority then in that case it will be held illegal and for that the Govt. authority will number be responsible for any query which may be raised on issues such as staff, immovable property population of the children. And the permission given to that organization will stand cancelled. The govt. authority will have the right and power to hand over the functions of the Sanstha to some other Sanstha Organization. CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR. VS. THE STATE OF MAHARASHTRA AND ORS. In Jeevanjyoti1 almost similar fact situation came up for companysideration before the High Court where transfer of recognition, after derecognition of an existing Ashram School, was effected and the distance between two places was about 600 kms. After companysidering the issues involved, the High Court held that once an existing Ashram School was derecognized there would be numberoccasion to handover that recognition to another Ashram School. The relevant portion of the decision of the High Court was as under- Evidently since a policy decision has been taken by the Government in 2006 number to allow new Ashram Schools, this was an attempt to get around that decision ostensibly by handing over the recognition of a derecognized school to another NGO. Once an existing Ashram School was derecognized, there would be numberoccasion to handover that recognition to another Ashram School. If as a result of the derecognition of an Ashram School the Government is in a position to fund some other institution elsewhere in the State of Maharashtra, that is a companypletely separate and independent decision, in arriving at which a transparent decision making process must be followed. Recognition is number like a licence to enter on a business which can be transferred. Once recognition granted to a school is withdrawn, that original recognition ceases to exist in law and in fact. There is numberoccasion then to transfer the erstwhile recognition to another institution. Ordinarily, we would have been inclined to set aside the Government Resolution dated 30 August, 2011 at this stage, having regard to the illegality in purportedly transferring the recognition of a derecognized primary Ashram School to the Fourth Respondent and the absence of a transparent procedure, even assuming that this was CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR. VS. THE STATE OF MAHARASHTRA AND ORS. permissible. However, the Court cannot number be unmindful of the factual position on the ground which is that 120 students have been admitted during the current academic year to the Fourth Respondent which is a residential primary Ashram School. These students who belong to the reserved category would number be left in a state of uncertainty if the Government Resolution dated 30 August, 2011 is set aide and their education would be liable to suffer. In this view of the matter, we are number taking recourse to the step of quashing and setting aside the Government Resolution dated 30 August, 2011, particularly having regard to the fair attitude shown by Counsel appearing on behalf of the Petitioner that even the Petitioner would number seek such an extreme direction at this stage having regard to the aforesaid circumstances. We are, however, of the view that henceforth the State Government must frame appropriate guidelines, procedures or, as the case may be, rules and regulations laying down the procedure for companysidering requests for transfers of managements of Ashram Schools falling within the jurisdiction both of Tribal Development Department and the Social Justice Department. Until the State Government does so, we are of the view that direction should be issued by the Court to obviate an arbitrary exercise of power. The directions which we issue would be as follows When a change in the management of an aided Ashram School is companytemplated, the State Government shall issue and publish a numberice in two prominent newspapers in the companycerned area and on the website of the Department inviting applications from interested organisations including NGOs for companyducting the Ashram School. The Government shall simultaneously invite suggestions from all stakeholders in including parents, citizens and the teaching and number-teaching staff who may be affected by the transfer of a management CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR. VS. THE STATE OF MAHARASHTRA AND ORS. The Director VJNT or, as the case may be, the Director Tribal Development shall hold an enquiry in regard to the reasons for a proposed change in management. The companycerned District Social Welfare Officer shall submit a report to the Director VJNT or, as the case may be, the Director Tribal Development before a final decision is taken. The track record and credentials of the proposed transferee management s shall be duly companysidered After objections are heard, the Director VJNT or, as the case may be, the Director Tribal Development shall pass a reasoned order. The actual transfer or change in management shall be given effect to thirty days after the publication of the passing of the order in the same mode of publication as indicated earlier and it should preferably be from the companymencement of the new academic session, unless for exceptional reasons it becomes necessary to exercise the power during the academic year to prevent a disruption of the education of the children. The decision in Jeevanjyoti1 was rendered on 11.09.2012 i.e. after the Government Resolution dated 02.01.2012. However, said decision was never challenged by the State. On the other hand, a Government Resolution was issued on 19.12.2016 laying down policy for transfer of recognition of an Ashram Shala in a fair and transparent manner, in terms of said decision in Jeevanjyoti1. In the face of such stand by the Government, the submission raised by Mr. Navre, learned advocate that the appeal preferred by the State Government against the decision which had followed the decision in Jeevanjyoti1 may number be entertained, has some force. CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR. VS. THE STATE OF MAHARASHTRA AND ORS. In any case, we have gone through the record and companysidered rival submissions. The way the issue of transfer was dealt with by the State Government, the criticism levelled by the High Court was fully justified. The permission to an Ashram Shala was taken as if it was a business licence which companyld be utilized at any place. In terms of Government Resolution dated 01.08.2007, the applications for transfer would numbermally be companysidered within a distance of 10 kms. In the present case, the distance itself is 400 kms. and for a Primary Ashram Shala it would number be proper to expect the children enrolled in the Ashram Shala to be transferred to a new place. Further, there was numberschool in existence at the place where the transfer was effected and an entity that was based in a companypletely different district was allowed to set up a new Ashram Shala. In our view, the High Court was right in rejecting the submissions advanced on behalf of the appellant as well as the State Government. We, therefore, affirm the view and dismiss these appeals. However, we deem it appropriate to pass following directions- Considering the facts and circumstances that the students presently enrolled in the Ashram school run by the appellant would be put to great prejudice if the school is to be closed as a result of dismissal of these appeals, it is directed that said school may companytinue till the academic CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR. VS. THE STATE OF MAHARASHTRA AND ORS. session 2019-2020. However, the school of the appellant which is presently functioning by virtue of Resolution dated 02.01.2012 shall number be allowed to function from the academic session 2020-2021. The State authorities are directed to invite proposals strictly in terms of the directions issued by the High Court in Jeevanjyoti1 from interested parties societies to set up a new school or companyduct the very same school which was closed down. Preference shall be given to those who wish to re-start or set up a new Ashram School at a location in companyformity with Resolution dated 01.08.2007. If numbersuch proposal is received or is number found viable, then in terms of the decision in Jeevanjyoti1 and for exceptional reasons to be recorded, permission may be given to start a new Ashram Shala at a location beyond the limits prescribed under said Resolution dated 01.08.2007. In either case, there shall be adequate publicity and steps will be undertaken in companyformity with the decision in Jeevanjyoti1. CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR. VS. THE STATE OF MAHARASHTRA AND ORS. The employees who are presently transferred to the school of the appellant shall always be treated to be in companytinuous service and the entire period from 02.01.2012, right upto the date of this judgment, shall be taken to be part of companytinuous service. All those employees, till the companyclusion of academic session 2019-2020 shall be part of the school presently being run by the appellant. Contemporaneous with the closure of said school in terms of direction a , the services of the employees shall be directed to be absorbed in any school wherever there are vacancies, or to the school which, as a result of the aforesaid direction would either be restarted or newly set up. The employees shall be entitled to salary and emoluments for the period that they had rendered service. For the period they companyld number did number render service, the employees shall be entitled to 25 of back-wages. All the arrears of salary and emoluments shall be released by the State Government to the employees within six weeks from today. CIVIL APPEAL NO.
Jagannadha Rao, J. This Interlocutory Application is, filed for recalling the order dated 22.1.1997 passed in Review Petition No. 2094 of 1995 in Special Leave Petition Civil No. 19257 of 1995, in view of orders dated 3.3.1997 passed in Review Petition Civil No. 2096 of 1995 in Special Leave Petition Civil No. 16646 of 1995. This Special leave petition Civil No. 19257 of 1995 by Kamlakar Others and Special leave Petition civil No. 16646 of 1995 by Chandra prakash Madhavrao Dadwa others were filed against the order of the Central Administrative Tribunal, Bombay in O.A. No. 625 of 1990 dated 7.3.1995. Special Leave Petition Civil No. 16646 of 1995 was dismissed on 1.9.1995 but later Review Petition 2096 of 1995 was filed therein. Notice was issued on 3.3.1997 and the review petition was allowed and the said case in special leave petition civil No. 16646 of 1995 was, after leave being granted, also allowed on 25.9.1998 Chandra Prakash Madhav Rao Dadwa and Ors. v. Union of India and Ors. . That Review was allowed because of another special leave petition No. 18948 of 1995 later Civil Appeal No. 16741 of 1995 being allowed on 9.12.1996 . But so far as the present Special leave petition No. 19257 of 1995 is companycerned, it was dismissed on 8.9.95 and the Review Petition No. 2094 of 1995 was directed to be put up after disposal of Special leave petition No. 18948 of 1995. But unfortunately the Review Petition 2094 of 1995 was dismissed on 22.1.1997 without numbericing that Special leave Petition No. 18948 of 1995 Civil Appeal No. 16741 of 1995 was allowed on 9.12.1996. Hence the present Interlocutory application No. 1 was filed to recall the order dated 22.1.1997 in Review Petition No. 2094 of 1995. When Interlocutory Application No. 1 came up before Court on 9.2.1998, it was directed to be tagged with RP C No. 2096 of 1995 in SLP C No. 16646 of 1995. We heard Review Petition 2096 of 1995 in SLP Civil No. 16646 of 1995 and allowed the Review Petition and the SLP after granting leave on 25.9.1998 as aforesaid and directed that IA No. 1 in SLP C No. 19257 of 1995 be listed before the appropriate Bench. It has finally been listed before us. Now that RP No. 2096 of 1995 has been allowed, the said SLP C No. 16646 of 1995 has been reopened and allowed on 25.9.1998 after leave being granted as Chandra Prakash Madhav Rao Dadwas case , the question of a decision in IA No. 1 in SLP C No. 19257 of 1995 has arisen. Now Chandra Prakash Dadwa Others, the petitioners in SLP C No. 16646 of 1995 and Kamlakar Others in this Special Leave Petition No. 19257 of 1995 before us filed the respective SLPs against the same order dated 7.3.1995 in OA No. 625 of 1990 of the Central Administrative Tribunal, Bombay. In fact, all of then were petitioners in the same OA and claimed relief in regard to the same impugned orders of the Union Government dated 2.7.1990 by which the Government changed i the designation of the petitioners from Data Processing Assistants of Data Entry Operators and gave them a particular scale which according to them was reversion to an entry grade below that of Data Processing Assistants namely, as Data Entry operators, Grade B. They also claimed that a lower scale of pay Rs. 1350-2200 was given to them than that was to be given. They were in the scale of Rs. 1200-2040 when OA 625 of 1990 was filed and they claimed that the revised scale of Rs. 1600-2660 meant for Data Processing Assistants was to be given and number Rs. 1350-3200. The grievance of all the petitioners in the OA was same. Now unfortunately while those who filed SLP 16646 of 1995 have got relief, the present petitioners who filed SLP 19257 of 1995 did number get relief so far. In this Interlocutory Application No. 1 and simultaneously in the SLP we have heard the companynsel on both sides. In view of the anomalous situation that some petitioners in OA 625 of 1990 got relief while some others have been denied by this Court - even though all have been petitioners in the same OA before the Central Administrative Tribunal and belong to in same cadre of employees, we deem it fit to allow Interlocutory Application No. 1 and set aside the orders in Review Petition No. 2094 of 1995 and restore the Special Leave Petition No. 19257 of 1995. We have also heard the arguments in the Special Leave Petition on both sides. Leave granted. It is, at the outset, obvious that the appellants in the appeal, Kamlakar Others are on the same footing as the appellants, Chandra Prakash Dadwe others in Special Leave Petition No. 16646 of 1995 and that the same result must follow. That is what Ms. Shymala Pappu for the appellants companytended for. Sri P.P. Malhotra, learned senior companynsel for the Union of India, however, companytended that among the appellants some are direct recruits, like those in Special leave Petition No. 1 16646 of 1995 but some others in this appeal are promotees and that that is a point of some distinction. Therefore, direct recruits may be given relief but number promotees. We have companysidered the limited issue. We are of the view that all these appellants should get the same relief as the appellants in the Civil Appeal which arose out of Special Leave Petition No. 16646 of 1995. Once they were all in one cadre, the distinction between direct recruits and promotees disappears at any rate so far as equal treatment in the same cadre for payment of the pay scale given. The birth marks have numberrelevance in this companynection. If any distinction is made on the question of their right to the post of Data Processing Assistants they were holding and to its scale - which were matters companymon to all of them before the impugned order of the Government of India was passed on 2.7.1990, - then any distinction between Data Processing Assistants who were direct recruits and those who were promotees, is number permissible. We, therefore, reject the respondents companytention. We have examined the record and the companymon points arising in this case and those in Civil Appeal which arose out of Special Leave Petition 16646 of 1995 and we are unable to find any lawful distinction between the appellants and those in the other appeal which has been allowed. We accordingly declare that the appellants are entitled to all the benefits which we had granted to the appellants in the Civil appeal which arose out of Special Leave Petition No. 16646 of 1995 as per our judgment dated 25.9.1998 reported in Chandra Prakash Madhav Rao Dadwe and Ors. v. Union of India and Ors.
ORIGINAL JURISDICTION Writ Petition No. 4675 of 1978. Under article 32 of the Constitution of India C. Bhandare, Mrs. Urmila Kapoor, Mrs. Shobha Dikshit, Hasan Imam, Shanker Saran Lal and Miss Kamlesh Bansal for the Petitioners. 1086 P. Rana and S. Markandeya for Respondents Nos. 1-4. Anil B. Dewan, K.L. Hathi, P. Parmeswaran, P.C. Kapoor and M.A. Quadeer for Respondents Nos. 5-6. Haider Abbas and Miss Kamini Jaiswal for Respondent No. 8 Shia Waqf Board, U.P. S. Nariman, M. Qamaruddin, Mrs. M. Qamaruddin, Z. Jilani and Mrs. Sahkil Ahmed for Respondent No. 7 U.P. Sunni Central Board of Waqf C. Dhingra for Intervenor-Institute for Re-writing History. The Judgment of the Court was delivered by TULZAPURKAR, J. By this writ petition filed under Art. 32 of the Constitution of India the petitioners and through them the Shia companymunity of Mohalla Doshipura, Varanasi are companyplaining against the various actions of the respondents including respondents 5 and 6 as representing the Sunni companymunity of Mohalla Doshipura which companystitute serious infraction and or infringement of their fundamental rights guaranteed to them under Arts. 25 and 26 of the Constitution in the matter of enjoying their religious faith and performance of religious rites, practices and observances on certain plots and properties situated in the said Mohalla of Doshipura, Police Station Jaitpura formerly Adampur in the city of Varanasi and in particular are seeking a declaration that the 9 plots of land bearing plot Nos. 245, 246, 247, 248/23/72, 602, 603, 602/1133, 246/1134 and 247/1130 in the said Mohalla and buildings and structures thereon belong to the Shia Waqf of Mohalla Doshipura and that the members of Shia companymunity of that Mohalla have a right to perform their religious functions and practices on the said plots and structures thereon as also an appropriate writ, direction or order in the nature of mandamus companymanding respondents 1 to 4 number to prohibit or restrain the Shias of the Mohalla from performing their religious functions and practices thereon. It may be stated that this Court by its order dated December 12, 1978 number merely granted permission to the petitioners under Order I Rule 8 C.P.C. to institute this action qua themselves as representing the Shia companymunity and respondents 5 and 6 as representing Sunni companymunity, but directed at certain stage of the hearing that the two Waqf Boards in U.P. State, namely, Shia 1087 Central Waqf Board and Sunni Central Waqf Board be impleaded as parties to the petition as their presence was felt necessary for companyplete adjudication of the companytroversy and even otherwise under the U.P. Muslim Waqf Act, 1960, which has been done and both the Waqf Boards have also been heard through their companynsel in the matter. In Mohalla Doshipura of Varanasi City there are two seats of mohammedan-the Shias and the Sunnis. Both the sects revere the martyrdom of Hazrat Imam Hasan and Hazrat Imam Hussain, grand-sons of Prophet Mohammed, during the MOHARRAM but in a different manner. The case of the petitioners and through them of the Shias of Mohalla Doshipura is that the members of their sect numbering about 4000 companystitute a religious denomination having a companymon faith and they observe MOHARRAM for two months and eight days in a year in memory of Hazrat Imam Hussain who alongwith his 72 followers attained martyrdom at Karbala in Iraq. The said religious belief is practised by the men-folk and the women-folk of the Shia companymunity by holding Majlises religious discourses , Recitations, Nowhas, Marsia, doing Matam wailing and taking out processions with Tabut Tazia, Alama, Zuljinha, etc. For performing these religious rites, practices and observances the Shia companymunity has been customarily using from time immemorial the nine plots in Mohalla Doshipura and the structures on some of them, particulars whereof are as under- Plot No. 246 on which stands a Mosque which, it is companymon ground, belongs to both the sects as it was companystructed out of general subscription from members of both the sects and every Mohammedan is entitled to go in and perform his devotions according to the ritual of his own sect or school. Plot No. 247/1130 on which stands the Baradari Mardana Imambara-structure of white stone having 12 pillars companystructed by Shias in 1893 used for holding Majlises, Recitations, Marsia and doing other performances. Plot No. 245 on which there is a Zanana Imambara used by Shias ladies for mourning purposes and holding Majlises etc. 1088 Plot No. 247 on which there is Imam Chowk used for placing the Tazia thereon said to have been demolished by the Sunnis during the pendency of the instant proceeding . Plot No. 248/23/72 a plot belonging to one Asadullah, a Shia Muslim, with his house standing thereon. Plot No. 246/1134 on which stands a Sabil Chabutra platform for distributing drinking water belonging to one Nazir Hussain, a Shia Muslim. Plots Nos. 602/1133, 602 and 603 being vacant plots appurtenant to the Baradari in plot No. 247/1130 used for accommodating the companygregation assembled for Majlises etc. when it over-flows the Baradari. Particulars of the religious rites, practices and functions performed by the members of the Shia companymunity on the occasion of the observance of MOHARRAM RE a the Tazia representing and signifying the dead body of Hazrat Imam Hussain is kept in the Baradari on plot No. 247/1130 and for the first 12 days of MOHARRAM Majlises religious discourses of men-folk and women-folk is held daily-by the men folk in the Baradari and on the adjoining plot Nos 602/ 1133, 603 and 602 and by the women-folk in the Zanana Imam Bara on Plot No. 245. On the 6th day of MOHARRAM the Zuljana procession a procession of the replica of the horse of Prophet Mohammed, which was also killed at the Karbala at the time of martyrdom of Hazarat Imam Hussain of number less than 5000 Shias from all over Banaras City is brought to the Baradari in which the Tazia is placed and after visiting the Tazia there the horse procession moves in the whole city of Varanasi number-stop for another 36 hours and terminates at the place of its origin. Offerings to the horse are made number only by the Shias 1089 but also by persons of other companymunities during the procession under the religious belief that such offerings bring in good fortune. On the 10th day of MOHARRAM, the Tazia bedecked with flowers is taken out in huge procession to Karbala situated near Lord Bharon, 3 miles from Doshipura the place signifying the Karbala in Iraq where martyrdom occurred , where the flowers of the Tazia are buried and then Majlis is held at that place. On the 11th and 12th day of MOHARRAM Majlis religious discourse is held and the Qurankhani and Tajia are performed in the Baradari and the adjoining plots which companysist of offering of prayers, recitations of Quran Sharif, Nowhaz short melancholic poems and Marsias poems of grief and sorrow -these being performed both by men-folk and women-folk, the latter at Zanana Imam Bara. On the 25th day of MOHARRAM, being the death anniversary of Hazarat Zanulabadin s o Hazrat Imam Hussain, again Majlis, Matam wailing accompanied by breast-beating , Nawhaz and Marsias are held and performed in the Baradari and the adjoining plots by men and in Zanana Imambara by women. On the 40th day of the MOHARRAM Chehalum ceremony of Hazrat Imam Hussain is performed when Majlis, Matam, Nawhaz and Marsia are held, the Tazia bedecked with flowers is taken out in procession up to Karbala near Lord Bhairon where again the flowers are buried with religious ceremonies and the Tazia is brought back to the Baradari in Doshipura. On the 50th day of the MOHARRAM i.e. 50th day of the martyrdom of Hazrat Imam Hussain Pachesa is performed by taking out the Tazia again in procession to the Karbala and after burial of flowers it is brought back to the Baradari. On both these days i.e. Chehalum and Pachesa, Majlis, Qurankhani, Nawhaz, Marsias and Matam are performed on the Baradari, 1090 adjoining plots and the Zanana Imam Bara in Doshipura. Four days after the Moharram period the Shias observe the Barawafat which according to them is the death anniversary of Prophet Mohammad and on this day again on the Baradari, adjoining plots and Zanana Imambara Majlis is held which is accompanied by Qurankhani, Nawhaz and Marsias in which menfolk and women-folk participate. It is the case of petitioners that the Tazia at Doshipura is a unique Tazia in the whole companyntry, being made of fine wood carvings, about 15 ft. in height, having five storeys, and decorated with gold and silver and would be of the value of number less than Rs. 3 lakhs. According to the petitioners the entire period of Moharram is a period of mourning for the Shias whose staunch belief is that the whole purpose of their life is to carry out these religious practices and functions during the MOHARRAM and that in case they do number perform all these rites, practices, observances and functions, including those relating to the Tazia, they will never be delivered and till these are performed the whole companymunity will be in mourning and in numbere of their families any marriage or other happy function can take place. The aforesaid religious faith and the performance of the rites, practices, observances and functions detailed above companystitute their fundamental rights guaranteed to them under Arts. 25 and 26 of the Constitution and the members of the Shia companymunity of Mohalla Doshipura have a customary right to perform these on the said nine plots and in or about the structures standing thereon from time immemorial. The Petitioners and through them the Shia companymunity of Mohalla Doshipura are basing their customary rights to perform the aforesaid religious rites, practices, observances and functions on the said nine plots and the structures thereon on two foundations 1 Decisions of companypetent civil companyrts adjudicating these rights in their favour in earlier litigations and 2 Registration of Shia Wakfs companycerning the plots and structures for performance of these practices and functions under secs. 5 and 38 of the P. Muslim Wakfs Act, 1936 which has become final as numbersuit challenging the Commissioners Report and registration was filed within two years by any member of Sunni companymunity or the Sunni Central Wakf Board. In other words previous decisions of Civil Courts and registration of their Shia Wakfs under the U.P. Muslim 1091 Wakfs Act. 1936 have companycluded the said rights in their favour and therefore Counsel for the Petitioners pointed out that the prayer for declaration in the Writ Petition was really incidental, the rights in favour of the Shia companymunity having been already determined and the real grievance was regarding the infringement of their said rights and their enforcement and hence the substantial prayer was for mandamus companymanding the respondents number to prohibit or restrain the Shias from performing their religious rites, practices, observances and functions on the plots and the structures standing thereon. The Petitioners case further is that after the final declaration by the companyrt of law in regard to their rights in their favour and the rejection of the false claims of the Sunnis the position in Mohalla Doshipura remained satisfactory for nearly two decades and the Shias companyld perform their religious functions and ceremonies without any let or hindrance but from the year 1960 onwards the Sunnis, who were in majority and were able to muster support of local politicians and the police, started creating trouble and interference by indulging in violence with a result that the Executive Authorities of Varanasi acting under sec. 144 Cr. P.C but in abuse of the power thereunder started placing undue restrictions on the members of the Shia companymunity in the performance of their religious functions and ceremonies. Thus during the period 1960-66 the Executive power under sec. 144 Cr. P.C. came to be used each year to curtail the rights of the Shias to perform their religious practices and functions at the Baradari, other structures and the appurtenant plots on the occasion of the Barawafat sometimes restraints were also placed on the Sunnis. During the years 1967 to 1969 similar orders depriving the Shias of their legitimate rights on the occasion of MOHARRAM, Chehulam, Pachesa and Barawafats u. sec. 144 were issued by the District authorities. In subsequent years also similar orders were passed sometimes placing restrictions on one companymunity and sometimes on the other, sometimes permitting certain observances on terms and companyditions during the stated hours. More often than number under the pretext of imminent danger to peace and tranquility both the companymunities were companypletely prohibited from carrying out their religious functions and ceremonies under such orders but since members of the Sunni companymunity had very little to lose in relation to the plots and structures in question it was the Shia companymunity that suffered most. According to the Petitioners the aggrieved party-and mostly Shias were aggrieved-was required to approach 1092 the superior Courts by way of appeal or revision but usually before the matter companyld be decided on merits the impugned orders exhausted themselves by influx of time and the remedy by way of appeal or revision was rendered infructuous and the companytroversy remained undecided. However, when in the year 1973 on the occasion of Barawafat the City Magistrate, Varanasi by his order dated 12th April, 1973 prohibited the Shias from performing Barawafat on the Baradari and its adjoining plots and Sunnis were illegally permitted to observe Barawafat on Plot No. 602/1133 by reciting Qurankhani, Milad and Fathiha on 16th April, 1963 from 9 M. to 12 Noon Gulam Abbas and other Shia Muslims filed a Writ Petition No. 2397 of 1973 in the Allahabad High Court for quashing the order of the City Magistrate and for prohibiting the City Magistrate and local authorities from passing or promulgating any order depriving the Shia of peaceful use and enjoyment of the Baradari and the adjoining plots appurtenant to it and also prohibiting them from permitting the Sunnis to make use of the Baradari and its adjoining plots. This Writ Petition and the companynected criminal cases being Criminal Revision and a Criminal Reference against similar earlier orders u. sec. 144 Cr.P.C. were heard and disposed of by the High Court by a companymon judgment delivered on August 8, 1975. Notwithstanding the fact that the various impugned orders had exhausted themselves by efflux of time the High Court felt that where a situation arose year after year making it necessary to take action u. sec. 144 Cr.P.C. it would be proper exercise of its discretion to interfere with the impugned order, if found to be illegal or improper, so that the Magistrate may number be encouraged to use his powers in the same manner again when the similar situation arose and that if a repetition of successive orders under sec. 144 resulted in a permanent interference with private legal rights it had to be deprecated and the High Court went on to give guide-lines to the Magistrates in the exercise of their discretionary power under sec. 144 by observing that though the section does number empower a Magistrate to decide a dispute of a civil nature between the private individuals, he must, before passing his order, take into companysideration the nature of the claims setup by the rival parties in order to judge whether or number it was possible to afford protection to those who seek only the lawful exercise of the legal and natural rights, that the authority of a Magistrate under this section should ordinarily be exercised in defence of legal rights and lawful performance of duties rather than in suppressing them and that this power is number to be used in a manner that would either give material advantage to one 1093 party to the dispute over the other or interdict the doing of an act by a party in the exercise of its right or power declared or sanctioned under the decree of a companypetent Court. On merits the High Court recorded its findings on the rights of the Shias in their favour in view of Civil Courts decision in earlier litigation and quashed the City Magistrates order dated 12-4-1973 allowing the Sunnis and restraining the Shias from holding various religious functions on the occasion of Barawafat on the Baradari and the adjoining plots in question in Mohalla Doshipura and also passed appropriate orders in the companynected criminal cases. Against this companymon judgment rendered by the High Court on August 8, 1975, Civil Appeal No. 941 of 1976 and Crl. As. Nos. 432 to 436 of 1976 were preferred by Mohammad Ibrahim, a Sunni Muslim, all of which were disposed of by this Court by a Common judgment dated 6-12-1976 and this Court held that the High Court should number have pronounced any view on the impugned orders under sec.144 when those orders had ceased to be operative and that the High Court should number have given findings on rights, title and property depending on disputed questions of facts in a writ petition the judgment and findings of the High Court were set aside and parties were relegated to have their rights agitated or settled in a civil suit. Feeling aggrieved by the said judgment, Gulam Abbas and others filed a Review Petition No. 36 of 1977 in Civil Appeal No.941 of 1976 which was dismissed by this Court on 16th December, 1977 after making some observations Questions of title cannot be decided here under sec. 144 but previous judgment on them may have a bearing on the question whether and if so, what order companyld be passed under sec. 144 Cr.P.CIt was asserted on behalf of the Petitioners Gulam Abbas and others that in a representative suit between Shia and Sunni sects of Muslims question of title to properties or places to which the Magistrates orders under sec. 144 Cr P.C. related has already been decided. If that be so, we have numberdoubt that the Magistrate will respect that decision in making an order under sec. 144 Cr. P.C. in the future. According to the Petitioners even after the aforesaid decision of this Court the city Magistrate, Varanasi, who had passed an order on 15-12-1977 under sec. 144 directing both the companymunities of Mohalla Doshipura to follow the terms and companyditions laid down in this said order, on the representation being made by the Shias on 17-12-1977 bringing to his numberice this Courts order dated 16-12-1977 in the Review Petition modified his earlier order on 19-12- 1977 1094 permitting holding of Majlis only at the house of Shamsher Ali but in respect of other properties postponed the passing of his order till 21-1-1978 but on that day he merely passed an order stating that his initial prohibitory order dated 15th December, 1977 as modified on 19th December, 1977 has exhausted itself as Moharram had passed off and further observed that while passing orders on the occasion of Moharram, Chehalum and Pachesa etc. in the companying years due regard will be given to the judgment of this Court dated 16- 12-1977 in Review Petition along with the decisions rendered in earlier civil litigation in representative character between the parties including the Allahabad High Courts decision in second Appeal No. 1726 of 1935. But one week later the same City Magistrate passed another order under sec. 144 Cr. P. C. on 28th January, 1978 on the occasion of Chehalum and Pachesa to be observed on the Baradari and the adjoining plots which was quite companytrary to his earlier order dated 21-1-1978 and in utter disregard of the judgment of this Court in Review Petition No. 36 of 1977 and all other earlier judicial pronouncements in favour of the Shias in fact by that order the City Magistrate companypletely prohibited every person from holding any Majlis either on the Baradari or on any portion of the adjoining plots in Mohalla Doshipura. This order dated 28-1-1978 was challenged by way of revision in the High Court but the Revisional application was dismissed on 13-2-1978 on the ground that the impugned order had ceased to be operative by then and Revision had become infructuous. Subsequent to this on several occasions requests were made by Shias of Mohalla Doshipura seeking permission for doing ceremonies and taking out Tazia Procession but on every occasion the City Magistrate refused permission. In the circumstances a Writ Petition No. 3906 of 1978 was filed by Gulam Abbas and other Shia Muslims in the Allahabad High Court praying for mandamus against the State of U. P. and its Magisterial officers, Varanasi, directing them to grant permission for performing some ceremonies and taking out Tazias but the same was dismissed by the High Court in limini on 22.9.1978 principally relying on the earlier judgment dated 6.12.1976 of this Court in Civil Appeal No. 941 of 1976 Special Leave Petition No. 6226 of 1978 against the same was filed by Gulam Abbas and others but it was withdrawn on 4-12-1978 as they were advised to file the present Writ Petition. During the hearing the Petitioners have amended their Petition by challenging the latest order passed by the City Magistrate, Varanasi on 24th November, 1979 under sec. 144 Cr. P. C. prohibiting both Shia and Sunni companymunities from holding their Majlises and imposing other 1095 restrictions the restriction on Recitation of Tabarra by Shias is number challenged on the occasion of celebration of Moharram Festival at the Baradari and the adjoining plots in question in Mohalla Doshipura. The Petitioners have pointed out that Shias do number utter Tabarra a ritual regarded as a filthy abuse of the elected Imams hurting the feelings of Sunnis but have fairly companyceded the justness of the prohibition against uttering Tabarra. Petitioners have companytended that the exercise of the power under sec. 144 Cr. C. has invariably been perverse and in utter disregard of the lawful exercise of their legal rights to perform their religious ceremonies and functions and in stead of being in aid of such lawful exercise it is in favour of those who unlawfully and illegally interfere with such lawful exercise under the facile ground of apprehension of imminent danger to peace and tranquility of the locality. By their companynter affidavit filed in reply Respondents 5 and 6 on behalf of themselves and the Sunni companymunity have resisted the reliefs claimed by the Petitioners in the Writ Petition principally on three or four grounds. On merits they have denied that there is clear on decisive material on record either in the form of judicial pronouncements or the registration of the Shia Wakfs of Mohalla Doshipura under the U. P. Muslim Wakfs Act, 1936 companycluding in favour of Shias title to the companycerned plots or structures thereon or their entitlement to the performance of the religious rites, practices, observances and functions on the property in question as claimed it is companytended that a clear and sharp distinction must be made between title and ownership of the companycerned plots of land, title and ownership of the structures on those plots and the rights exercisable by the Shia companymunity over the companycerned plots and structures thereon and there are companysiderable gaps and inadequacies in the documents and the material before the Court in that behalf which can only be filled in by trial and by recording evidence and in the absence of adequate material numberdeclaration as to the title to the plots or the structures or even as to the rights in or over the plots and structures thereon companyld be granted in favour of the Shia companymunity. In other words the companytention is that a Writ Petition under Article 32 for such a relief of declaration is number maintainable in as much as the basic purpose of a Petition under Article 32 is to enforce existing or established fundamental rights and number to adjudicate and seek a declaration of such rights or entitlement thereto. In this behalf respondents 5 and 6 have doubted and disputed the effect and binding nature of the earlier companyrt decisions, particularly of the judgments rendered by the Munsifs Court, Vanarasi in Suit No. 232 of 1934 1096 Fathey Ullah Ors. v. Nazir Hussain and Ors. and by the Appellate Courts in appeals therefrom, on the entire Sunni companymunity and as regards registration of the Shia Wakfs they have companytended that the position arising out of the U. P. Muslim Wakfs Act, 1936 and the U. P. Muslim Wakfs Act, 1960 in the companytext of the Sunni Wakfs in regard to the properties in dispute under the latter Act requires serious companysideration. As regards reliefs sought against the orders passed by a City Magistrate or Sub-Divisional Magistrate under sec. 144 Cr. P. C. it is companytended that numbermandamus under Art. 32 is companypetent in as much as these are judicial or quasi-judicial orders passed by a Court under sec. 144 Cr. P. C. and numberfundamental right can be said to be infringed by any judicial or quasi judicial orders alternatively are administrative even if it were assumed that these orders are administrative or executive orders passed by Executive Magistrates these cannot be challenged unless the Magistrate has exceeded his powers or acted in disregard to the provisions of the law or perversely and in the instant case the impugned orders subsequent to this Courts decision dated 16-12-1977 in Review Petition No. 36 of 1977 have been passed by keeping in mind the observations or the guide lines companytained in that decision and in light of the emergent situation then obtaining in the locality. In the circumstances, the Petitioners are number entitled to any of the reliefs sought by them in the Writ Petition Lastly, it has been companytended that the present Writ Petition is barred by res-judicata or principles analogous to resjudicata by reason of this Courts decisions in a Civil Appeal No. 941 of 1976, b Review Petition No. 36 of 1977 and c Order permitting withdrawal of SLP No. 6226 of 1978 on 4.12.1978. In any case the view taken by a Bench of three judges of this Court in their judgment dt. 6-12-1976 and reiterated in the order dt. 16-12-1977 on the-Review Petition, however wrong it may appear to be, should number be disturbed. The two Boards, Shia Central Wakfs Board and Sunni Central Wakfs Boards impleaded as parties to the Writ Petition under this Courts Order dated 28th March, 1980 have supported the respective cases of each companymunity represented by the Petitioners on the one hand and respondents 5 and 6 on the other respectively and each one has placed such additional material before the companyrt as was in its possession touching the registration of Shia Wakfs and Sunni Wakfs under the two enactments U.P. Muslim Wakfs Act, 1936 and U.P. Muslim Wakfs Act, 1960. 1097 It cannot be disputed that ordinarily adjudication of questions of title or rights and granting declaratory relief companysequent upon such adjudication are number undertaken in a Writ Petition under Art. 32 of the Constitution and such a petition is usually entertained by this Court for enforcement of existing or established title or rights or infringement or encroachment thereof companyplained by granting appropriate reliefs in that behalf. But as stated earlier, companynsel for the Petitioners companytended before us and in our view rightly that all that the Shia companymunity is seeking by this Petition is enforcement of their customary rights to perform their religious rites, practices, observances and functions on the companycerned nine plots and structures thereon which have already been adjudicated, determined and declared in their favour by decisions of companypetent Civil Courts in the earlier litigations and that the declaration sought in the prayer clause is really incidental. It is true that title and ownership of the plots of land in question is distinct from title and ownership of structures standing thereon and both these are again distinct from the customary rights claimed by the members of the Shia companymunity to perform their religious ceremonies and functions on the plots and the structures thereon. However, it is clear that even if the Petitioners and through them the Shia companymunity are unable to prove their existing or established title either to the companycerned plots or to the structures standing thereon but they are able to prove that they have existing or established customary rights to perform their religious ceremonies and functions on the plots and the structures thereon simultaneously companyplaining of illegal deprivation or encroachment by executive officers at the behest of respondents 5 and 6 or the Sunni companymunity the reliefs sought by them by way of enforcement of such customary rights will have to be entertained and companysidered on merits and whatever relief they may be found legally and properly entitled to may have to be granted to them. This is number to suggest that the petitioners or the Shia companymunity have failed to prove that they have existing or established title and ownership over the plots and or over the structures thereon-an aspect which will have to be companysidered on merits though secondarily, the primary question being whether they have succeeded in proving their subsisting entitlement to the customary rights claimed by them. In this behalf, as stated earlier, they are basing their customary rights on two foundations, namely, decisions of companypetent Civil Courts adjudicating these rights in their favour and registration of Shia Wakfs companycerning the plots and structures for performance of these practices and functions under secs. 5 and 1098 38 of the U.P. Muslim Wakfs Act, 1936 and we proceed to examine critically these two foundational basis. Dealing first with Civil Courts decisions in earlier litigations it would be necessary to refer to two or three earlier litigations and to state accurately the result in each which will have a bearing on the rival companytentions of the parties hereto. In Suit No. 849 of 1878 filed by Sheikh Sahib and Ors. Shia Muslims against Sheikh Rahmatu and Ors. Sunni Muslims in the Munsifs Court at Benaras the dispute pertained to the mosque in Plot No. 246 and the Plaintiffs rights to hold their Majlises on 9th and 12th of MOHARRAM inside the mosque and to keep and repair their Tazia in that mosque, and the learned Munsif Shri Pramode Charan Banerji by his judgment dated 29th March, 1879 held a that the disputed mosque was built by general subscription, that it belonged to members of both the sects and that every Mohammedan had a right to worship in it b that the plaintiffs failed to establish their claims about the holding of the Majlises and the companyking and distribution of food in the mosque but the probabilities were that the Majlises of 9th and 12th MOHARRAM were held by them on or close to the platform on the surrounding ground and c that the plaintiffs had acquired by a long user a right to keep their Tazia in the Hujra apartment of the mosque and to repair the same in the tiled Saeban Varandah of the mosque and the defendants were restrained from interfering with plaintiffs rights in respect of the above matter the rest of the plaintiffs claim was dismissed. Civil Appeal No. 73 of 1879 was preferred by the plaintiffs against that part of the decision which went against them and cross-objections were filed by the defendants against declaratory relief and injunction passed against them but both the appeal as well as the cross-objections were dismissed by Shri Ram Kali Choudhary, Subordinate Judge, Banaras on 16th December, 1879 and the trial companyrts decree was companyfirmed. In other words this litigation declared the mosque in plot No. 246 to be a public mosque at which every Mohammedan became entitled to worship and further declared the plaintiffs right to keep their Tazia in the apartment attached to the mosque and repair it in the Varandah thereof and to hold their Majlises on 9th and 12 of MOHARRAM on or near the platform on the surrounding ground of the mosque as early as on 29th March, 1879. 1099 It appears that the Sunni Muslims of Mohalla Doshipura, Varanasi repeatedly tried to put forward their false claims and rights over some of the Plots in question and in particular attempted to encroach upon plot No. 602/1133, which had been recorded as Banjar Qadim barren land in the revenue records, by falsely alleging that it was a graveyard where they had buried their dead. The then Maharaja of Banaras plaintiff No. 1 filed Suit No. 424 of 1931 in the Court of Additional Munsif, Banaras against Shamshuddin and Ors. representing all Muslims residing in Banaras under O. 1, R. 8 C.P.C. though the numberinee defendants were Sunni Muslims praying for a declaration of his rights as owner and Zamindar and for a permanent injunction restraining the defendants from interfering with his rights and also for removal of fictitious graves if any on that plot. It may be stated that Shias of Varanasi had never claimed the plot to be a grave yard, though they were claiming other rights to perform their religious ceremonies and functions thereon, but only Sunnis were claiming the plot as their grave yard and therefore the suit and the reliefs were virtually directed against the Sunni Muslims residing in Banaras. It appears that since a portion of the plot No. 602/1133 to the extent of two Biswas had been taken by one Abdul Hamid also a Sunni under Qabuliyat dated 7th January, 1907 on payment of Rs. 1/4/- as Parjat from the Maharaja for companystruction of a house and since even after his death plaintiffs Nos. 2 to 5, though in companytinuous possession of the said portion as Abdul Hamids heirs companyld number companystruct a house over that portion because of defendants interference, they were also joined as companyplaintiffs in the suit. It was alleged that the defendants had interfered with the plaintiffs rights by claiming plot No. 602/1133 to be a grave yard and they had built some bogus graves since one year back to support their illegal stand. The suit was companytested primarily on the ground that the plot in question was an old grave-yard and that the defendants representing Sunni Muslims had acquired a right to bury their dead in the said plot. The suit was dismissed by the trial companyrt, the learned Munsif holding that the plot in question was an old grave yard and the defendants had acquired customary right to bury their dead. All the plaintiffs filed an appeal being Civil Appeal No. 134 of 1932 but subsequently plaintiffs Nos. 2 to 5 retired leaving plaintiff No. 1 the Maharaja alone to fight out the case. Shri Kanhaiya Lal Nagar the learned Subordinate Judge by his judgment dated 6th February, 1933 allowed the appeal and decreed the suit in favour of the Maharaja. In the companyrse of his judgment he made a reference to the fact that 1100 the plot in question had become an apple of discord between the two rival Muslim companymunities of Shias and Sunnis, that the former was using it for holding their religious meetings on occasions of festivals, marriages and for Taziadari, with structures on adjoining places while she latter wanted to make their encroachments by burying their dead just in close proximity with the above sacred places in order to wound the formers religious feelings but one had to look to the proprietory title and possession of His Highness the Maharaja. On appreciation of oral and documentary evidence on record the learned Sub-Judge held a that the plot in question was number a grave-yard but that between 1929 and 1931 attempts had been made by the Sunni Muslims to manufacture and fabricate evidence indicating that it was a grave yard b that the Sunni Muslims had acquired numbercustomary rights in the matter of burial of their dead over the plot in question and c by permanent injunction he restrained the defendants and through them the Muslims of Banaras in effect Sunni Muslims from using the said plot in the future as a burial ground. However, as regards the prayer for actual removal of graves he took the view that it would be a bit improper that the soul of the dead be stirred and the defendants be ordered to remove them and they were given liberty to read Fathia or attend to the graves if any there was clear evidence of only one old grave that of one Hakim Badruddin situate on the southern side of the plot in suit as shown in Map Paper No. 3A existing since 1307 H or 45 years with due regard to the rights of the Maharaja. This decree was upheld by the High Court and it thus became final. Two things become clear from the aforesaid decision. In the first place though the suit was directed against all muslims residing in Banaras defendants representing them under O.1, R.8 P. C. the customary rights of Shias to perform their religious ceremonies and functions on plot No. 62/1133 or on adjoining plots were number but the customary rights of Sunnis in the matter of the burial of their dead on the plot were the subject matter of litigation and secondly the decision was virtually against all Sunni Muslims residing in Banaras to the effect that the plot in question was neither a grave yard number had they any customary right to bury their dead in the said plot and such rejection of their claim must be held to be binding on the entire Sunni companymunity number only of Doshipura but all those residing in the city of Banaras, albeit as against the Maharaja. Then companyes the third and the most important litigation which was between the two rival sects of Muslims of Mohalla Doshipura, 1101 Varanasi and that is Suit No. 232 of 1934 filed in the Court of City Munsif, Banaras by Fathey Ullah and Ors. Sunni Muslims against Nazir Hussain and Ors. Shia Muslims . The plots in dispute were Khasra Nos. 245, 246, 247, 248/23/72, 602, 603, 602/1133, 246/1134 and 247/1130 same as are involved in the instant Writ Petition which were claimed to be Sunni Wakfs by long user. The plaintiffs asserted their customary rights specified in para 4 of the plaint over the said plots and structures thereon. It was alleged that the defendants ancestors had numberrights in these plots except for placing their Tazia in a Huzra apartment on the mosque and repairing the same and holding their Majlises on the 9th and the 12th of the MOHARRAM apparently accepting the decision of Pramode Charan Banerji in the earlier litigation being Suit No. 849 of 1878 as affirmed in Civil Appeal No. 73 of 1879 but they had made unauthorised companystructions on some of the plots. The plaintiffs prayed that the defendants be directed to remove their unauthorised companystructions and that a perpetual injunction be issued against them restraining them from holding their majlises near the mosque or Imam Chowk. Or on any other plot in suit except on 9th and 12th of MOHARRAM. The defendants companytested the suit and denied that the plots were Sunni Wakfs and further denied that the plaintiffs had acquired any customary right over them. They asserted their exclusive rights to perform their religious ceremonies and functions over the plots and averred that existing companystructions details whereof were specified had been put up long ago exclusively by the Shias and were used for their religious ceremonies and functions. The trial companyrt Shri Shah Ghayas Alam Sahib, the Additional Munsif partly decreed the suit on 2nd February, 1935. He ordered the demolition of the companystruction on plot No. 245 being Zanana Imambara and issued a perpetual injunction restraining the defendants from holding their Majlises in the Baradari being Mardana Imambara on plot No.247/1130 except on the 9th and 12th of MOHARRAM but he dismissed the suit so far as it related to the demolition of Chabutra platform of Asadullahs house in plot No. 248/23/72. The Shias went up in appeal being Civil Appeal No. 65 of 1935 while the Sunnis filed a crossobjection regarding that part of the relief which was denied. Shri Brij Narain the learned second Additional Sub- Judge of Banaras on 18th September, 1935 allowed the defendants appeal, set aside the decree of the trial Court and dismissed the plaintiffs suit with companyts through out the cross objection was also dismissed with companyts. It was admitted by both the parties before the appellate Court that His Highness the Maharaja of Banaras was the Zamidar of the plots 1102 in question and the Khasras of 1291 Fasli 1884 A.D. also showed the same thing. The appellate Court held a that in plot No. 246 there was a Pokhta mosque which was wakf property but that numbere of the other plots in suit were appurtenant to that mosque in 246 as was claimed by plaintiffs and that neither the plaintiffs number members of Sunni companymunity were owners of any of the plots in question b that the plaintiffs had failed to prove that the other plots were wakfs in their favour c that the plaintiffs had failed to prove that they had been exercising customary rights specified in para 4 of the plaint over the plots in suit except in the mosque in plot No. 246 d that the boundary walls on plot No. 245 described in settlement papers to be Chabutra Imam Sahib Zanana Imambara had been built by Shias about 25 years ago and that this plot had all along been used by Shia ladies for mourning purposes during the MOHARRAM e that the Baradari Mardana Imambara was built by the Shias in the year 1893 A.D. 1311 Hizri on plot No.247/1130 which had been in their possession all along and it was a Wakf f that the defendants and the Shia Muslims were entitled to use plots Nos.246/1134, companytaining Sabil Chabutra and 247/1130 the Baradari i.e. Mardana Imambara for holding their majlises on all the days during the MOHARRAM but were number entitled to hold Majlises an Thursday of the remaining portion of the year g that on plot No. 248/23/72 there existed the house of Asadullah, a Shia Muslim being defendant No. 5 to the suit and the companystruction Chabutra that appertained to the house had been rightly directed number to be demolished. As regards the two plots namely plot No. 602 Two Biswas and ten Dhoors which was taken on lease by one Sheikh Fazil, a Sunni barber from the Maharaja of Banaras under a Patta dated 26th June, 1927 and plot No. 603 Two Biswas Three Dhoors which was taken on lease by one Mahomad Niamat-Ullah a Sunni weaver from the Maharaja under a Patta dated 15th September, 1930 the appellate Court observed that these did number appear to have remained in the possession of the plaintiffs Sunni Muslims . The decision clearly establishes the title or ownership of Shias over at least two main structures Zanana Imambara on plot No. 245 and Baradari on plot No. 247/1130 and the land below the structures and what is more substantially the customary rights claimed by the Shia Muslims over the plots and structures were upheld and those claimed by the Sunni Muslims were rejected and the plaintiffs suit stood wholly dismissed. The Sunnis preferred an appeal to the High Court being Second Appeal No. 1726 of 1935 but the same was dismissed by the High Court by its judgment 1103 dated 9th December, 1938. Dealing with the question of the Shias right to hold their Majlises in the Baradari in the companytext of the position that the Baradari had been built by the Shias for that purpose the High Court observed the plaintiffs in the present suit have claimed that the Shiasdefendants are number entitled to hold their Majlises in the Baradari which the Shias have built. This appears to us to be a very strange proposition. Where a companymunity has made a building for the purpose of its own religious services it appears to us companytrary to law that any one can question the right of that companymunity to hold its services. The clear implication is numberrestriction companyld be imposed on Shias in the matter of holding their Majlises and other services in the Baradari built by them as was done by the lower appellate Court. Counsel for respondents 4 and 5 strenuously companytended that the aforesaid litigation was number a representative one so as to bind the entire Sunni companymunity of Mohalla Doshipura, Banaras by the result thereof and in that behalf companynsel pointed out that neither the title of the plaint showed that the suit had been filed by the plaintiffs as representing all the members of Sunni companymunity of Mohalla Doshipura, Varanasi number was any companyy of the Order passed by the trial Court granting leave to the plaintiffs to file the suit in representative capacity produced and there was numberstatement in any of the judgments indicating the representative character of the suit. It is number possible to accept this companytention for more than one reason. In the first place besides reciting in para 1 of the plaint that the plaintiffs were Muslims of Sunni sect and defendants were Muslims of Shia sect, both settled in Mohalla Doshipura of Banaras City, in para 11 there was an express averment that the suit was filed under Order 1 r. 8 C.P.C. and that a proclamation be issued by the Court in the interest of justice so that those from Sunni sect and Shia sect of Muslims who desired to companytest the suit may get themselves impleaded to the suit, secondly a public numberice under Order 1 r. 8 of the C.P.C. with the Courts seal was actually published in Urdu language in the issue of Oudh Panch dated 19th August, 1934 English translation whereof has been annexed as Annexure VI to the Writ Petition and the original issue of Oudh Panch, Lucknow dated 19th August 1934 was produced during the hearing setting out in brief the averments and the reliefs companytained in the plaint and inviting members of both Sunni and Shia sects to get them impleaded as party to the suit if they so desired thirdly the expenses of such publication of the numberice amounting to Rs. 7 have been shown as an item of companyts 1104 incurred by the plaintiffs in the Bill of companyts appearing at the foot of the preliminary decree passed by the trial Court in the suit certified companyy whereof was produced by respondents 5 and 6 and lastly the suit Register general Index of the Court of Additional Munsif Extract companyy whereof has been produced shows that public numberice was published in Oudh Panch and the companyy of the newspaper issue was filed in the Court on 21st August, 1934 and the bill received from that Newspaper was also filed on 25th Sept. 1934. From this material which is available on the record it seems to us clear that the Suit No. 232 of 1934 had been filed in the representative capacity both as regards the plaintiffs as well as the defendants and all the formalities under Order 1 r. 8 of the C.P.C. had been companyplied with. A crude attempt was made at a belated stage of hearing by respondents 5 and 6 to get over the effect of the aforesaid material by producing a document which purports to be a certified companyy of a purported Order said to have been passed by the Additional Munsif, Banaras rejecting the plaintiffs application to file the suit in a representative character. To say the least the document is of a spurious character, reciting a dubious order. Apart from the fact that this document is seeing the light of the day nearly fifty years after the expiry of litigation, the companyy does number bear any seal of the companyrt the order recites that the defendants have denied the plaintiffs status and capacity as being representatives of their Sunni sect and have also denied their status as representatives of Shias whereas there is numbersuch denial to be found at all in the written statement, and what is more it passes ones companyprehension how such an order rejecting the plaintiffs application for leave under O. 1 r. 8 came to be passed on 24th August, 1934-5 days after the publication of the public numberice in the issue of Oudh Panch on 19th Aug. 1934 and if the order dt. 24th August, 1934 was genuine how companyld expenses of such publication be shown as an item of plaintiffs companyts in the preliminary decree passed on 2nd Feb. 1935 and why were the issue of Oudh Panch and the Bill from the Newspaper filed in the Court on 21st August, 1934 and 25th Sept. 1934 respectively. In our view the three or four circumstances which we have indicated above companyclusively establish that the suit was filed by the plaintiffs as representing entire Sunni companymunity of Mohalla Doshipura, Varanasi against the defendants who represented the Shia companymunity and as such the final decision in that litigation is binding on members of both the companymunities. 1105 Counsel for respondents 5 and 6 next companytended that the decision in this litigation Suit No. 242 of 1934 would number operate res judicata against them or the Sunni companymunity of Mohalla Doshipura inasmuch as Munsifs Court at Banaras did number have either pecuniary or subject-wise jurisdiction to grant the reliefs claimed in the instant writ petition in other words that Court was number companypetent to decide the present subject-matter and such the bar of res judicata under s. 11 of the Civil Procedure Code 1908 was number attracted, and it would be open to the respondents 5 and 6 and the members of the Sunni companymunity to agitate question of title either to the plots or to the structures thereon or even the Shias entitlement to their customary rights over them. In support of this companytention companynsel relied on two decisions namely, Rajah Run Bahadoor Singh v. Mussumut Lachoo Koer and Mst. Gulab Bai v. Manphool Bai. It is number possible to accept this companytention for the reasons which we shall presently indicate. It is well settled that s. 11 of the C.L.C. is number exhaustive of the general doctrine of res judicata and though the rule of res judicata as enacted in s. 11 has some technical aspects the general doctrine is founded on companysiderations of high public policy to achieve two objectives, namely, that there must be a finality to litigation and that individuals should number be harassed twice over with the same kind of litigation. In Daryao and others The State of U.P. this Court at page 582 has observed thus Now the rule of res judicata as indicated in s. 11 of the Code of Civil Procedure has numberdoubt some technical aspects, for instance, the rule of companystructive res judicata may be said to be technical but the basis on which the said rule rests is founded on companysiderations of public policy. It is in the interest of the public at large that finality should attach to the binding decisions pronounced by Courts of companypetent jurisdiction, and it is also in the public interest that individuals should number be vexed twice over with the same kind of litigation. Reference in this companynection was made by the Court to the famous decision in the leading Duchess of Kingstons 4 case. Halsburys laws 1106 of England and Corpus Juris. In Gulab Chand Chhotalal Parikh State of Bombay number Gujarat the question was whether after the dismissal of a writ petition on merits after full companytest by the High Court under Art. 226 of the Constitution a subsequent suit raising the same plea claiming discharge from the liability on the same ground was entertainable or number and this Court held that on general principles of res judicta the decision of the High Court on the writ petition operated as res judicata barring the subsequent suit between the same parties with respect to the same matter. On a review of entire case law on the subject, including Privy Council decisions, this Court at page 574 observed thus- As a result of the above discussion, we are of opinion that the provisions of s. 11 C.P.C. are number exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in companytroversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in companytroversy, decided after full companytest or after affording fair opportunity to the parties to prove their case by a Court companypetent to decide it, will operate as res judicata in a subsequent regular suit. It is number necessary that the Court deciding the matter formerly be companypetent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject matter. The nature of the former proceeding is immaterial. We do number see any good reason to preclude such decisions on matters in companytroversy in writ proceeding under Arts. 226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in companytroversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full companytest. Emphasis supplied . The above observations were approved by this Court in a subsequent decision in the case of Union of India v. Nanak Singh. It is thus 1107 clear that technical aspects of s. 11 of C. P. C., as for instance, pecuniary or subject-wise companypetence of the earlier forum to adjudicate the subject-matter or grant reliefs sought in the subsequent litigation would be immaterial when the general doctrine of res judicata is to be invoked. The two decisions relied upon by companynsel for the respondents 5 and 6 were directly under s. 11 of C. P. C. Even under s. 11 the position has been clarified by inserting a new Explanation VIII in 1976. It was number disputed that the Munsifs Court at Banaras was companypetent to decide the issues that arose for determination before it in earlier litigation and, therefore, the decision of such companypetent Court on the companycerned issues must operate as a bar to any subsequent agitation of the same issues between the same parties on general principles of res judicata. The companytention raised by companynsel for respondents 5 and 6 in this behalf, therefore, has to be rejected. It was then faintly urged by companynsel for respondents 5 and 6 that the dismissal of plaintiffs suit No. 232 of 1934 would number companyfer any rights on the Shia companymunity who were party defendants to the suit. The companytention is merely required to be stated to be rejected. Not only were the Sunnis customary rights specified in para 4 of the plaint over the plots and structures in question put in issue during the trial but the customary rights to perform their religious ceremonies and functions on the plots and structures thereon claimed by the Shias were also directly and substantially put in issue inasmuch as the plaintiffs Sunni Muslim had sought an injunction restraining the Shias from exercising their customary rights. Therefore, the decision in this litigation which bore a representative character number merely negatived the Sunnis customary rights claimed by them over the plots and structures but adjudicated, determined and declared the Shias entitlement to their customary rights to perform their religious ceremonies and functions on the plots and structures thereon in question and this decision is binding on both the companymunities of Mohalla Doshipura. There is numberquestion of there being any gap or inadequacy of the material on record in the matter of proof of Shias entitlement to customary rights over the plots and structures in question, whatever be the position as regards their title to the plots or structures. We have already indicated that this decision even upholds their title to two main structures, Zanna Imambara and Mardana Imambara Barardari . In our view, therefore, this is a clear case of an existing or established entitlement to the customary rights in favour of the Shias companymunity to perform their religious ceremonies and functions over the plots and structures 1108 in question under the decree of companypetent Civil Court for the enforcement of which the instant Writ Petition has been filed. Turning to the other fundamental basis on which the petitioners are claiming their customary rights for performing their religious ceremonies and functions on the plots and companystructions in question is the registration of these plots and structures thereon as Shia Wakfs under the P. Muslim Wakfs Act, 1936. A two-fold plea has been raised by companynsel on their behalf namely a that the Report of the Chief or Provincial Commissioner of Wakfs dated 28th/31st October, 1938 submitted to the State Government under sec. 4 5 showing these plots and structures as Shia Wakfs followed by the Notification dated 15-1-1954 issued by the Shia Central Wakf Board under sec. 5 1 of the Act and published in the U. P. Government Gazette on 23rd January, 1954, had become final and companyclusive under sec. 5 3 of the Act since numbersuit challenging his decision had been filed either by the Sunni Board or any other Sunni Muslim interested in it within the period specified under sec. 5 2 of the Act, and b that plots and structures in question had been registered as Shia Wakfs for purposes of performing their religious ceremonies and functions thereon under sec. 38 of the Act as early as in 1952 and therefore their case is that Shia Muslims cannot be deprived of the lawful exercise of their customary rights over the properties which have been recognised and registered as Shia Wakfs. As against this, respondents 5 and 6 and through them the Sunni companymunity are relying upon a numberification dated 26th February, 1944 issued by the Sunni Central Wakfs Board under sec. 5 1 of the U. P. Muslim Wakf Act, 1936 following upon the Report of the Chief or Provincial Commissioner of Wakfs in respect of Mosque in Doshipura showing the same as Sunni Wakfs and registration of some of these properties as Sunni Wakfs under sec. 29 of the U. P. Muslims Wakfs Act, 1960. Before going into the factual aspects it will be desirable to indicate briefly the legal position arising under the two enactments, the U.P. Muslim Wakfs Act, 1936 Act XVIII of 1936 and the U.P. Muslim Wakfs Act, 1960 Act XVI of 1960 , which repealed earlier Act, in the matter of finality Survey Reports and effect of Registration of Wakfs belonging to the respective sects in the State of U.P. Broadly speaking it companyld be stated that while repealing the 1936 Act the 1960 Act maintains and preserves the finality and companyclusiveness accorded to the Survey Reports companypleted and submitted by the Wakfs Commissioners under the former Act and the 1109 registration of Wakfs under the 1936 Act has been kept alive and effective as if such registration has taken place under the latter Act and registration of Wakfs under the latter Act has been permitted only in respect of Wakfs other than those which have already been registered under the former Act. Under the 1936 Act appointment of district-wise Commissioners of Wakfs for the purpose of undertaking survey of all Wakfs in such districts and appointments of Provincial Commissioners of Wakfs having jurisdiction in all the districts of the State for the same purpose and with same duties and powers were companytemplated by sec. 4 and 4A respectively under sec. 4 3 such Commissioners were required to make such inquiries as they companysidered necessary for ascertaining and determining the number of all Shia and Sunni Wakfs within the area of their jurisdiction, the nature of each Wakf, the gross-income of property companyprised in the Wakf etc. and under sec. 4 5 on companypletion of inquiry they had to submit their Reports of Inquiries to the State Government under sec. 5 1 a companyy of the Commissioners Report had to be sent to each of the Central Boards the Shia Central Wakfs Board and Sunni Central Wakfs Board whereupon each Central Board had to, as soon as possible, numberify in the Official Gazette the Wakfs relating to the particular sect to which, according to such report, the provisions of this Act applied under sec. 5 2 the Central Board or the Mutawali of a wakf of any other person interested in it, if aggrieved by the decision recorded by the Commissioner in his Report had to bring a suit in a Civil Court companypetent jurisdiction for a declaration or appropriate relief and such a suit by the Central Board had to be filed within two years of the receipt of the Report by the Board and by the Mutawali or a person interested within one year of the Notification mentioned in sub-sec. 1 and sec. 5 3 accorded, subject to the final result of such suit, finality and companyclusiveness to the Commissioners Report. Section 38 of the Act provided for registration of Wakfs pertaining to each sect by the companycerned Central Board and the procedure to be followed and inquiry to be made by the companycerned Board in that behalf was indicated in that section and under sec. 39 it was made incumbent upon each Central Board to maintain a Register of Wakfs showing various particulars specified therein in respect of each Wakf. Under the 1960 Act, appointments of Commissioner of Wakfs and Additional or Assistant Commissioner of Wakfs is companytemplated by sec. 4 while Survey of Wakfs to be undertaken by such Commissioners is companytemplated by sec. 6 and under sec. 6 4 the Commissioners Report of Inquiry is required to be forwarded to each of the Boards 1110 and to the State Government and the State Government has to, as soon as possible, numberify in the Official Gazette the Wakfs relating to particular sect to which, according to such Report, the provisions of this Act apply sec. 8 provides that if a dispute arises with regard the findings or decisions recorded by Commissioner in his Report the same shall be referred to Tribunal for adjudication, which must be done within one year from the date of publication by the State Government of the list of Wakfs under sec. 6 4 sec. 9 is important and provides that proceedings of any survey of wakf properties started before the companymencement of this Act shall companytinue and such survey shall be companypleted in accordance with provisions of the 1936 Act and under subsec. 2 it is provided that numberhing in this chapter shall effect the finality of the decisions of the Chief State Commissioner of Wakfs or of any State Commissioner of Wakfs or Commissioner of Wakfs in cases in which, prior to the companymencement of this Act, the report of such Commissioner has become final in other words the finality and companyclusiveness accorded to the Wakf Commissioners Report under sec. 5 3 of the 1936 Act has been preserved. Registration of Wakfs under the 1960 Act has been provided by secs. 28 and 29 under sec. 28 it is provided that a Wakf registered before the companymencement of this Act under the 1936 Act shall be deemed to have been registered under the provisions of this Act and sec 29 which follows sec. 28 says Every other Wakf, whether subject to this Act or number and whether created before or after the companymencement of this Act shall be registered at the office of the Board of the sect to which the Wakf belongs the opening words every other Wakf occurring in sec. 29 must mean that sec. 29 provides for registration of all Wakfs other than those which have already been registered under the 1936 Act. As stated earlier a perusal of these provisions of the two enactments clearly show that the finality and companyclusiveness accorded to the Commissioners Report under sec. 5 3 of the 1936 Act has been preserved and the registration of Wakfs under the 1936 Act has been maintained under the 1960 Act numberwithstanding the repeal of the former Act by the latter. In other words any Survey Report submitted under the 1960 Act and any Registration made under the 1960 Act will be futile and of numberavail in regard to Wakf properties respecting which the Commissioners Report under the 1936 Act has become final and registration has been effected under the 1936 Act. It appears that the Government of Uttar Pradesh appointed Shri Munshi Azimuddin Khan, a Deputy Collector, as a Chief or 1111 Provincial Commissioner of Wakfs under sec. 4A of the 1936 Act for the purpose of making a survey of all the Waqfs in all the districts of the State. During the survey proceedings one Imam Ali Mahto, a Shia Muslim, who was defendant No. 2 in Suit No. 232 of 1934 as the Mutawalli of Imambara and the Mosque of Mohalla Doshipura has filed an application on 25th June, 1938 before the said Chief or Provincial Commissioner of Waqfs claiming six items of property, namely, 1 the Mosque on Municipal No. J-15/94 i.e. plot No. 246 2 Imambara on Municipal No. J. 15/95 i. e. Baradari on plot No. 247/1130 , 3 Zanana Imambara on Municipal No. J-15/96 i.e. Plot No. 245 , 4 Imam Chowk with land i. e. on plot No. 247 , 5 Chabutra Sabil Pucca i. e. on Plot No. 246/1134 and 6 one Sabil Stone on the land to the east of Imambara-Baradari i.e. on plot No. 602/1133 to be Shia Waqfs having been used since time immemorial for the purposes of their religious ceremonies and functions Azadari, Majlises Mourning in Moharram, Tazia and Zulzana processions, Taziadari, Matam, etc. , the companystructions having been made by subscriptions and requesting the Commissioner to enter the same in the list of Shia Public Waqfs on the same day i.e. 25th June, 1938 Imam Alis statement on oath was also recorded before the Commissioner and an order was passed to the effect the waqf property be taken under the companytrol of Waqfs Act. A companyy of the application, the statement of Imam Ali recorded on oath, together with the endorsement of the order, which formed part of Survey File No. 55 before the Commissioner have been produced as Annexure P-15 companyly to the affidavit in rejoinder dt. Nov. 5, 1979 of Shri Iqbal Hussain, petitioner No. 3 filed on behalf of the writ petitioners and also as an Annexure to the affidavit dated January 9, 1980 of Dularey Mirza, the Peshkar of the Shia Central Waqfs Board, Lucknow. After making the necessary inquiries Shri Munshi Azimuddian Khan submitted to the State Government his Report dated 28th/31st October, 1938 and annexed several appendices to his Report Appendix VIII referred to Waqfs pertaining to Sunnis and declared as subject to the 1936 Act and Appendix IX mentioned waqfs pertaining to Sunni sect which were exempted from the Act Appendices X and XI companytained companyresponding information about the Shia waqfs which were respectively declared as subject to the Act or exempt from the Act. The original Report bearing the signature of Shri Munshi Azimmuddin Khan, Chief Waqfs Commissioner was produced before us marked Exh. A for our inspection by Mr. Rana, companynsel for the State of U.P. and the same was made available for inspection to the parties. There is a slip attached to 1112 the Report placed in between Annexure VII and Annexure XIII companytaining an endorsement to the effect Appendices VIII and IX sent to the Sunni Board and Appendices X and XI sent to the Shia Board with the signature of the Chief Commissioner of Waqfs below it. The aforesaid facts mentioned in companynection with the original Report have been stated in the affidavit of Shri Sayed Shamshuddin Ahmed, Secretary to the Government of Uttar Pradesh in the Waqfs and Appointment Department sworn on January 6, 1980, filed before us by the companynsel for the State of U. P. alongwith the Report. Presumably the aforesaid action of sending the relevant appendices alongwith a companyy of the Commissioners report to the respective Sunni Central Waqf Board and the Shia Central Waqf Board was taken as required by s. 5 1 of the Act. It may be stated that the Shia Central Waqfs Board has accepted the position that it did receive a companyy of Commissioners Report together with Appendices X and XI and through an affidavit dated 9th January, 1980 of their Pashkar Dularey Mirza, the Shia Board offered to produce the said Appendices stating that the companyy of the Report itself was number traceable as the same appeared to have been produced in some companyrt proceedings. It further appears that after receiving the aforesaid documents Report together with the Appendices X and XI , the Shia Central Waqf Board, as required by sec. 5 1 of the Act, took steps to numberify in the Official Gazette all the Waqfs relating to their sect on the basis of the Appendices annexed to the Report the relevant Notification under sec. 5 1 was issued on 15th January, 1954 and published in the Government Gazette on 23rd January, 1954. According to the petitioners the Shia Waqfs in question appear at Sl. No. 55 entry against the name of Imam Ali, Dhoshipura, Banaras on page 157 of Appendix X and at Sl. No. 431 entry being Imambara and Masjid against the name of Imam Ali Mahato in the Gazette Notification dated 15th January, 1954 . Photostat companyy of Entry at Sl.No. 55 on page 157 of Appendix X has been annexed to Dularey Mirzas Affidavit dated. 9th January, 1980 and a companyy of the Gazette Notification dated 15th January, 1954 published in the U.P. Government Gazette on 23rd January, 1954 under sec. 5 1 of the 1936 Act has been separately produced by the petitioners on the record. It is true that entry at Sl. No. 431 in the Gazette Notification dated 15th January, 1954 shows the name of Imam Ali Mahato as the Waqif, which is obviously a mistake for he never claimed himself to be the settlor or Waqif but only a Mutawalli of the Waqfs as is clear from the application made by him and the statement on oath given by him before the Commissioner and in fact the properties were claimed 1113 to be Shia public Waqfs by long user. It is also true that in the companyumn Name of Waqfs the entry reads Imambara and Masjid suggesting as if only two properties were declared to be Shia Waqfs but at the foot of the Notification under s. 5 1 there is a numbera bena to the following effect the details regarding property and other matters relating to the Wakfs are kept in the Boards office and can be inspected by any person who is interested in the matter. It seems to us quite clear having regard to the six properties being specifically asked to be entered in the list of Shia Waqfs by Imam Ali Mahto in his application and the order made thereon, all the properties mentioned in the application must be regarded as having been entered in the list of Shia Waqfs by the Chief or Provincial Commissioner for Waqfs and the Notification under s. 5 1 related to all those properties as having been numberified to be Shia Waqfs, particulars whereof were stated to be available in the Boards office. The Nota Bena at the foot of the Notification, in our view amounted to sufficient particularisation of the properties numberified as Shia Waqfs. Non-mentioning of those properties as Sunni Waqfs in Appendices VIII and IX sent to the Sunni Central Waqfs Board must amount to a numberice to the Sunni Board and the Sunni Muslims that these had been enlisted as Shia Waqfs. Admittedly, numbersuit was filed either by the Sunni Central Board or any other person interested in those waqfs challenging the decision recorded in his Report by the Chief or Provincial Commissioner for Waqfs within the time prescribed under s. 5 2 of the Act, and, therefore, the Chief Commissioners Report together with the appendices X and XI thereto dated 28th/31st October, 1938, on the basis of which the Notification dated 15th January, 1954 was issued and published in Official Gazette on 23rd January, 1954, must be held to have become final and companyclusive as between the members of the two companymunities. In this behalf we would like to refer to the decision of the Court in Board of Muslim Waqfs v. Radha Krishna and Ors. where one of us Sen, J. has analysed the scheme of the Waqfs Act,1954 a Central enactment which is substantially the same as the scheme of the 1936 Act and we are in respectful agreement with the ratio of that case but here we are number companycerned with any paramount title of any stranger like the 1114 Maharaja to any property declared as waqf and hence that part of the ratio of that decision will be inapplicable. As against the aforesaid material respondents 5 and 6 and through them the Sunni companymunity have relied upon a Notification dated 26th February, 1944 issued by the Sunni Central Waqfs Boards under s. 5 1 of the U.P. Muslim Waqfs Act, 1936 following upon the receipt of the Report of the Chief or Provincial Commissioner of Waqfs in respect of mosque in Doshipura showing the same as Sunni Waqf, companyy whereof has been annexed as Annexure S-2 to the affidavit dated 6th February, 1980 of Mohd. Bashir Khan filed on behalf of the Sunni Central Waqfs Board as its Pairokar. This Notification on which reliance has been placed by the Sunnis appears to us of doubtful validity and probative value for the reasons which we shall presently indicate. Though issued and published earlier in point of time than the Notification of Shia Central Waqfs Board, it is admittedly number based on Appendices VIII and IX annexed to the Chief Commissioners Report dated October 28th/31st October, 1938 but on the basis of some Registers of Waqfs meaning lists of Waqfs said to have been received by the Sunni Board from the Commissioner of Waqfs. Curiously enough the Sunni Central Waqfs Board had stated through two affidavits dated 6th January, 1980 and 9th January, 1980 of their Pairokor Shri Mohd. Bashir Khan that along with the companyy of the Commissioners Report Registers of Waqfs were received but numberappendices like Appendices VIII and IX were received from the Commissioner, that according to the Registers of Waqfs there were 245 charitable Sunni Waqfs in the District of Banaras which were companyered by the 1936 Act and all such Waqfs were accordingly numberified by the Sunni Board in the Government Gazette by issuing the Notification dated 26th February, 1944 under sec. 5 1 of the Act. The Original Report of the Commissioner does number refer to anything like Registers of Waqfs but, as stated earlier, it refers to Appendices Nos. VIII, IX, X and XI and the endorsement on the slip under the signature of the Chief Commissioner shows that the former two appendices were sent to the Sunni Board and the latter two to the Shia Board. In face of this endorsement and having regard to the fact that the Shia Board had received Appendices X and XI alongwith the Commissioners Report which that Board offered to produce, it is difficult to accept the statement of the Pairokar of the Sunni Board that numberappendices were received by the Board along with a companyy of the Commissioners Report. It seems the relevant appendices, though received, are being withheld as their production would be adverse to the Sunnis. Apart form that aspect it is clear on their own 1115 admission that the Notification under s. 5 1 of the 1936 Act was issued by the Sunni Central Waqfs Board number on the basis of Appendices VIII and IX which formed part of the Commissioners Report but on the basis of some Registers of Waqfs said to have been received by it. The Notification regarding the Sunni Waqfs issued on the basis of material which did number form part of the Chief Commissioners Report would be in violation of s. 5 1 of the Act which required issuance of a Notification thereunder according to the Commissioners Report and as such the Notification dated February 26, 1944 relied upon by respondents 5 and 6 and members of the Sunni companymunity would be of doubtful validity. Secondly, the relevant entry in the Register of Waqfs is at Serial No. 224 and it pertains to one quita mosque and land of which the present Mutawali is shown as Hayatullah resident of Dhosipura, Banaras and companyrespondingly the entry in the Notification dated February 26, 1944 issued under s. 5 1 of the 1936 Act is also at Sl. No. 224 which reads Masjid Dhoshipura-Hayatullah r o Doshipura, Banaras-one quita mosque, but the petitioners have produced documentary and other material throwing doubt on the genuineness of the entry as being in relation to the mosque in question on plot No. 246 i.e. Municipal No. J- 15/94 according to the affidavits of Dularey Misra the Peshkar of Shia Central Waqfs Board dated 12th August, 1980 and 1st October, 1980 there were two Hayatullahs in Mohalla Dhoshipura, Varanasi, one was Hayatullah alias Hayatoo r o No. J-15/125, Mohalla Doshipura, who had died in 1926 long prior to Survey of Waqfs under the 1936 Act, that his son Abdul Shakoor, who was plaintiff No. 2 in suit No. 232/1934 admitted in his evidence in that suit that his father Hayatullah had expired 8 years before the filing of the suit and as such entry at serial No. 224 which describes Hayatullah r o Mohalla Doshipura as the present Mutawali i.e. in 1944 when the Notification was issued obviously companyld number refer to this Hayatullah father of Abdul Shakoor, while the other Hayatullah, who was known by the name of Moulavi Hayatullah r o H. No J-15/8 in Mohalla Dhosipura was the father of Hakim Mahmood and Ali Ahmed, who are the present Mutawalis of a mosque in Mohalla Salarpura standing on Municipal No. J-18/108 and therefore, if the name in entry at serial No. 224 refers to this Hayatullah who companyld be its present Mutawali in 1944 then the mosque would be the mosque in Mohalla Salarpur and number the mosque in question standing on Municipal No. J-15/94 i.e. Plot No. 246 in Mohalla Doshipura and while making the entry by mistake Mo- 1116 halla Doshipura was wrongly mentioned instead of Mohalla Salarpura as the two Mohallas are quite adjacent to each other in other words, according to the petitioners if the entry at serial No. 224 in the Registers of Waqfs or in the Notification dated 26th February, 1944 refers to Hayatullah father of Abdul Shakoor the entry is obviously wrong as it would be mentioning a dead person as the present Mutawali of the mosque and in case the entry at serial No. 224 is referable to Maulvi Hayatullah then the reference to the mosque being in Mohalla Doshipura would be erroneous. It is the petitioners case that it was Maulavi Hayatullah who had as early as in 1944 submitted an application for registration of the mosque in Mohalla Salarpura standing on Municipal No. J-18/108 to the Sunni Central Waqfs Board but by mistake it was stated therein that the mosque was for the benefit of people of Doshipura and it was registered under his name under serial No. 224 in the Register of Waqfs maintained by the Sunni Board and by mistake that mosque was wrongly entered as being in Mohalla Doshipura and in support of this reliance has been placed upon a Report dated 14th February, 1961 submitted by Inspector Ashraf Ali to the Sunni Board in which he had numbericed and placed on record such mistake having taken place companyy whereof has been annexed as Annexure-I to the affidavit of Dularey Mirza Peskhar of Shia Board dated 13th February, 1980 in other words, the aforesaid material casts a serious doubt on the aspect whether the mosque mentioned in entry No. 224 in the Notification dated February 26, 1944 really pertains to the mosque in question standing on Plot No. 246 Municipal No. J-15/94 in Mohalla Doshipura and as such the Notification will have numberprobative value. In this state of affairs Notice dated 11.4.1945 issued by Shia Board under s. 53 of the 1936 Act companyplaining about this entry at Sl. No. 224 relied upon by companynsel for respondents 5 and 6 must be regarded as having been issued ex majori cautela. Thirdly, even if it were assumed for the purposes of argument that entry at Serial No. 224 in the Notification dated 26th February, 1944 refers to the mosque in question it cannot affect the customary rights of the petitioners and through them the Shia companymunity to perform their religious ceremonies and functions over the other 8 plots and structures thereon which had been listed as Shia Wakfs under the Notification dated 15th January, 1954, especially when it is number companymon ground that the mosque on Plot No. 246 is a public mosque companystructed by general subscriptions and is accessible to members of both the sects for offering 1117 prayers and doing worship therein. Admittedly the Notification dated 26th February, 1944, does number refer to any other plots or the structures thereon at all. We are, therefore, clearly of the view that the Notification dated 26th February, 1944 issued under s. 5 1 of the 1936 Act by the Sunni Board is of numberavail to the Sunnis for the purpose of defeating the customary rights of the Shias to perform their religious ceremonies and functions on the other plots and structures thereon. Apart from the finality attaching to the Chief Commissioners Report together with the Appendices X and XI annexed thereto dated 28th/31st October, 1938 the petitioners have also claimed that the aforesaid plots and structures thereon had been registered as Shia Waqfs for performance of their religious ceremonies and functions under s.38 of the 1936 Act by the Shia Central Waqfs Board after making full inquiry and following the procedure prescribed by that section as early as in 1952 and the Board had issued the requisite Sanads in that behalf. Reliance in this regard has been placed on five certificates issued by Shia Central Waqfs Board, Lucknow, bearing Certificate Nos. 209, 210, 211, 214 and 21 all dated 22nd December, 1952- first relating to Mardana Imambara the Baradari on Plot No. 247/1130, the second relating to Zanana Imambara on Plot No. 245, the third relating to Imam Chowk on Plot No. 247, being appurtenant to Baradari the fourth relating to the entire Plot No. 602/1133 being appurtenant to the Baradari and the last relating to Sabil Chabutra Mardana on Plot No. 246/1134 Annexures VIII VIII-A to VIII-D to the Writ Petition . It may be stated that the petitioners have also produced a certificate of registration in respect of Purani Masjid of Doshipura as a Shia Waqf dated 3rd July, 1973, the registration being under the 1960 Act, but companynsel for the petitioners fairly companyceded that the mosque in question belongs to both the sects and numberspecial rights are claimed by the Shias over it except those companyferred on them under the decree in Suit No. 849 of 1878 by Shri Pramoda Charan Banarjee. The registration in respect of the five properties mentioned above under sec. 38 of the 1936 Act would be available to the petitioners and must prevail over the subsequent registration, if any, obtained by the Sunnis in respect of some of the properties under the 1960 Act really speaking such latter registration would be number est in the eye of law. Apart from the Certificates of Registration issued by the Shia Central Waqfs Board on 22nd December, 1952 the petitioners are 1118 also relying upon yet another Notification issued by the Shia Central Waqfs Board under Rule 54 vii of the U.P. Shia Central Waqfs Rules, 1944 enlisting the Shia Waqfs in question and published in the U.P. Government Gazette on 1st December, 1956. It may be stated that the Shia Board had framed rules called the U.P. Shia Central Waqfs Rules 1944 in exercise of powers companyferred on it by sec.-61 of the 1936 Act and under Rule 54 vii the Board was required to numberify a list of Waqfs which had been registered during the year under report. It appears that a companysolidated list of Shia Waqfs which were registered during the period 28th July, 1942 to 31st March, 1956 subsequent to the submission of the Report of the Chief Commissioner for Waqfs under sec. 5 of the Act was published for the first time by the Shia Board under the Notification dated 1st December, 1956 issued under Rule 54 vii a companyy of the relevant portion of that Notification is annexed as Annexure VII to the writ petition showing registration of Imambara-Baradari, Doshipura, at Serial No. 152, Imambara Mutalik Purani Masjid, Doshipura at Serial No. 153, Mardana Imambara-Baradari at Serial No. 155, Purani Masjid, Doshipura at Serial No. 157, Zanana Imambara, Doshipura at Serial No. 159, Imam Chowk, Dhoshipura at Serial No.160 and Chabutra Mardana Sabil at Serial No. 161 as Shia Waqfs. This Notification issued by the Shia Board on 1st December, 1956 also supports the petitioners case that the companycerned properties had been registered as Shia Waqfs under s. 38 of the Act. It is thus clear that even on the second foundational basis the Shias have proved their existing or established entitlement to their customary rights to perform their religious ceremonies and functions on the companycerned plots and structures thereon. Much was made by Counsel for respondents 5 and 6 of certain documents on record showing derivative title of Sunni Muslims to a companyple of plots in question and Counsel companytended that whatever be the position with regard to three earlier documents Pattas of 1907, 1927 and 1930 about which the Courts have made observations in earlier litigations , there was yet one more lease of 20.4.1952 in respect of portions of three plots, namely, 602/1133,247 and 245 in favour of Hafiz Mohd. Yusuf and Akram-ul-Haq, two Sunni Muslims from the Maharaja, whereunder they had acquired lessees interest over the plots at an yearly rent of Rs. 3 and they had dedicated the same to the Sunni companymunity for use as graveyard and such subsequent title companyld number be affected by the decisions in earlier litigations. It must be stated that in support of this lease of 1952 numberlease deed number any Patta has been produced, but reliance is placed on two 1119 documents i Extract of Register of Agreements Agreement to Lease dated 20.4.52 and ii Receipt for payment of rent curiously enough relating to three prior years July 1949 to June 1950, July 1950 to June 1951 and July 1951 to June 19521357, 1358 and 1359 Fasli , being Annexures 3 and 4 to the Counter Affidavit of Respondent No. 5 dated 17.4.1979. At the outset we would observe that it is difficult to accept the claim that the three plots had been dedicated by the two Sunni Muslims to their companymunity for use as graveyard, for, the Commissioners appointed by this Court for survey and spot inspection in December 1979 did number find any such use being made of plots No. 247 and 245 and merely numbericed two graves and one in damaged companydition on plot No. 602/ 1133 only-same plot with graves which was the subject matter of Maharajas Suit No. 424/1931 in which a permanent injunction was issued restraining all Muslims virtually all Sunnis from using the said plot as any graveyard in future. Dealing with the aspect of derivative title put forward by companynsel on behalf of the respondents No. 5 and 6, we have already made the position clear in the earlier part of our judgment that the Shias are claiming the right to perform their religious ceremonies and functions on the plots and structures in question number so much on the basis of any title or ownership thereof but on the basis of customary exercise since time immemorial and they have been claiming customary rights by prescription over the plots belonging to the Maharaja of Banaras as Zamindar and superior title-holder and the prescriptive rights have enured for the benefit of all the Shias numberwithstanding such superior title in the Maharaja and if that be so they will also enure for their benefit as against any derivative title claimed by anyone under the Maharaja. Moreover, when these plots and structures, particularly these three plots were being registered as Shia Waqfs under the U.P. Muslim Waqfs Act 1936 by the Shia Board and Sanads of Certificates of Registration in respect thereof were being issued in December 1952, the two Sunni Lessees who are said to have obtained a Lease on 20.4.1952 did number raise any objection to such registration. The Shias customary rights acquired by prescription over these plots cannot thus be defeated by such derivative title. The next question that arises for companysideration is whether an Order made under s. 144 Criminal Procedure Code is judicial or quasi-judicial order or whether it is passed in exercise of an executive power in performance of executive function amenable to writ jurisdiction under Art. 32 of the Constitution ? Counsel for respon- 1120 dents 5 and 6 and through them the Sunni companymunity companytended that such an order is a judicial or quasi-judicial order passed by a Magistrates Court after hearing parties except in cases of emergency when it is passed ex-parte without numberice to the person or persons affected under sub-s. 2 of s. 144 and since numberfundamental right can be said to be infringed by any judicial or quasi-judicial order a Writ of mandamus under Art. 32 would number lie, but the order may be and is revisable by a superior Court like the Sessions Court or the High Court. In support of this companytention reliance was placed upon one decision of the Bombay High Court and three of the Madras High Court. It was pointed out that in V. Belvi v. Emperor a Division Bench of the Bombay High Court has held that the orders under s. 144 are judicial and number administrative and that this question had been set at rest by several earlier decisions cited in the judgment in Queen Empress v. Tirunarasimha Chari the Madras High Court has taken the view that the Magistrate, making inquiry before the issue of an order under s. 144 is acting in a stage of judicial proceeding and has, therefore, jurisdiction to take action under s. 476, if he is of the opinion that false evidence has been given before him similarly in Muthuswami Servaigram and Anr. v. Thangammal Ayyiar as also in Bondalpati Thatayya v. Gollapuri Basavayya and Ors. the same view is taken. Counsel also invited our attention to three cases of this Court, namely Babulal Parates case, K K. Mishras case and Madhu Limayes case, in each one of which the companystitutional validity of s. 144 Cr. P.C. or part thereof was challenged, and while upholding the companystitutional validity of the section or of the companycerned part this Court has touched upon certain aspects of the section and the procedure thereunder hearing the parties, order being of temporary character and revisable which suggest that the proceeding before the Magistrate is judicial or quasi-judicial proceeding. Counsel, therefore, urged that if the order under s. 144 Cr. P. C. is a judicial or quasi-judicial order then this Court has taken the view that such an order will number attract writ jurisdiction of this Court under Art. 32 since such an order cannot affect or infringe any fundamental right and in that behalf reliance 1121 was placed upon Sahibzada Saiyed Muhammed Amirabbas Abbasi and Ors. v. The State of Madhya Bharat and Ors., The Parbhani Transport Co-operative Society Ltd. v. The Regional Transport Authority, Smt. Ujjam Bai case subject to three exceptions mentioned therein and N.S. Mirajkars case, the principle in the last mentioned case having been stated at p. 760 of the Report thus When a Judge deals with matters brought before him for adjudication, he first deals with questions of facts on which the parties are at issue, and then applies the relevant law to the said facts. Whether the findings of fact recorded by the Judge are right or wrong and whether the companyclusions of law drawn by him suffers from any infirmity, can be companysidered and decided if the party aggrieved by the decision of the Judge takes the matter up before the Appellate Court. But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of companypetent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under Art 19 1 . What the judicial decision purports to do is to decide the companytroversy between the parties brought before the companyrt and numberhing more. If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by Court in or in relation to a matter brought before it for its decision cannot be said to affect that fundamental rights of citizens under Art. 19 1 . The question whether an order under s. 144 Criminal Procedure Code is a judicial order or an order in exercise of the executive power in performance of an executive function will have to be decided in the instant case by reference to the new Criminal Procedure Code, 1973 and number by reference to the old Criminal Procedure Code, 1898. We would like to point out that the position under the 1898 Code, wherein separation between the judicial functions and executive or administrative functions of Magistrates did number obtain, was quite different and the power to act in urgent cases of nuisance and apprehended danger to public tranquility under s. 144 1122 of the Code had been companyferred on District Magistrates, Chief Presidency Magistrates, Sub-Divisional Magistrates, or other Magistrates specially empowered by the State Government and it was in those circumstances that the view prevailed in the decisions of several High Courts that the order passed by a Magistrate under s. 144 of that Code was a judicial order and it must be pointed out that all the decisions including those of this Court that have been relied upon by companynsel for respondents 5 and 6 are in relation to the said section under that Code, while the position under the new Criminal Procedure Code 1973 is entirely different whereunder the scheme of separation of judicial functions from executive functions of the Magistrates, as recommended by the Law Commission has been implemented to a great extent. The Law Commission in its 37th Report on the Code of Criminal Procedure 1898 made several recommendations in this behalf to which we might usefully refer, At page 15 of the Report the Law Commission in para 41 has observed thus The usual way of classifying the functions of Magistrates under the Code of Criminal Procedure and various other statutes is to divide them into three broad categories, namely- Functions which are police in their nature, as for instance, the handling of unlawful assemblies b functions of an administrative character, as for instance, the issue of licences for fire-arms, etc., etc. and c functions which are essentially judicial, as for instance, the trial of criminal cases. The essential features of the scheme for separation it is stated would be, that purely judicial functions companying under category c above are transferred from the Collector and Magistrates subordinate to him, to a new set of officers who will be under the companytrol number of the Collector but of the High Court. Functions under a and b above will companytinue to be discharged by the Collector and the Revenue Officers subordinate to him. Again in para 43 the Law Commission observed thus 1123 It is in this background that the companycept of separation has to be understood. In its essence, separations means separation of judicial and executive functions in such manner that the judicial functions are exercised by the judiciary which is number companytrolled by the executive. This would ensure that influence of the executive does number pollute the administration of criminal justice. On the question of allocation of functions between judicial and executive Magistrates it appears that there were before it three main patterns of separation 1 the Bombay pattern suggested in the Report of the Committee on the separation of judiciary from the executive, 1947 appointed by the Government of Bombay , 2 the Madras pattern Government of Madras, Public Separation Department G.O. Ms. No. 2304 dated 24th September, 1952 and 3 the Punjab pattern introduced by Punjab Separation etc. Act 25 of 1964 and according to the Law Commission the allocation under the Bombay and Punjab schemes proceeded on the basis that powers other than those of trial of offences should be left to the Executive Magistrates even where recording and sifting of evidence and a decision thereon were required and this was brought about by making the requisite amendments in certain sections of the Code including s. 144 while under the Madras scheme matters involve the recording and sifting of evidence were strictly within the purview of the Judicial Magistrates but companycurrent jurisdiction was provided in some cases and powers in those cases particularly under s. 144 were kept with both judicial and executive Magistrates but Judicial Magistrate were to exercise them in emergency and until an executive Magistrate was available. After companysidering all the patterns of allocation as also patterns of Magistracy under the Bombay, Punjab, and Madras schemes in paragraphs 94 to 98 of the Report the Law Commission came to the companyclusion that the companybination of Bombay and Punjab scheme was the best for being adopted as a model. In Paragraph 113 of its Report while dealing with the aspect of appointment of Magistrates the Law Commission recommended that executive Magistrates should be companytinued to be appointed by the State Government and their area should be defined by the State Government or by the District Magistrate subject to the companytrol of the State Government while judicial Magistrates should to appointed by the High Court and if separation was to be introduced effectively the companyferment of magisterial powers should belong to the High Court. As regards s. 144 1 of the old Code in para 353 of its Report the Law Commission in terms recommended that before 1124 the words other magistrate the word executive be added and the recommendation has been accepted while drafting that section in the new Code. Turning to the 1973 Code itself the scheme of separating judicial Magistrates from executive Magistrates with allocation of judicial functions to the former and the executive or administrative functions to the latter, as we shall presently indicate, has been implemented in the Code to a great extent. Section 6 provides that there shall be in every State four classes of Criminal Courts, namely, 1 Courts of Session, ii Judicial Magistrates of the First Class and, in any Metropolitan area, Metropolitan Magistrates iii Judicial Magistrates of the Second Class and iv Executive Magistrates ss. 8 to 19 provide inter alia for declaration of metropolitan area, establishment of Courts of Session, Courts of Judicial Magistrates, Courts of Metropolitan Magistrates and appointments of Sessions Judges, Additional Sessions Judges, Assistant Sessions Judges, Chief Judicial Magistrates Judicial Magistrates, Chief Metropolitan Magistrates and Metropolitan Magistrates together with inter subordination, but all appointments being required to be made by the High Court, while ss. 20, 21, 22 and 23 deal with appointment of District Magistrates, Additional District Magistrates, Executive Magistrates, Sub- Divisional Magistrates and Special Executive Magistrates and their respective jurisdictions in every district and metropolitan area together with inter se subordination, but appointments being made by the State Government, Chapter III companyprising ss. 26 to 35 clearly shows that Executive Magistrates are totally excluded from companyferment of powers to punish, which are companyferred on Judicial Magistrates this shows that if any one were to companymit a breach of any order passed by an Executive Magistrate in exercise of his administrative or executive function he will have to be challaned or prosecuted before a Judicial Magistrate to receive punishment on companyviction. Further, if certain sections of the present Code are companypared with the equivalent sections in the Old Code it will appear clear that a separation between judicial functions and executive or administrative functions has been achieved by assigning substantially the former to the Judicial Magistrates and the latter to the Executive Magistrates. For example, the power under s. 106 to release a person on companyviction of certain types of offences by obtaining from him security by way of execution of bond for keeping peace and good behaviour for a period number exceeding three years-a judicial function is number exclusively entrusted to a Judicial Magistrate whereas under s. 106 of the old 1125 Code such power companyld be exercised by a Presidency Magistrate, a District Magistrate or Sub-Divisional Magistrate, but the power to direct the execution of a similar bond by way of security for keeping peace in other cases where such a person is likely to companymit breach of peace or disturb the public tranquility-an executive function of police to maintain law and order and public peace which was companyferred on a Presidency Magistrate, District Magistrate, etc. under the old s. 107 is number assigned exclusively to the Executive Magistrate under the present s. 107 Chapter X of the new Code deals with the topic of maintenance of public order and tranquility and in that Chapter ss. 129 to 132 deal with unlawful assemblies and dispersal thereof, ss. 133 to 143 deal with public nuisance and abatement or removal thereof, s. 144 deals with urgent cases of nuisance and apprehended danger to public tranquility and ss. 145 to 148 deal with disputes as to immovable properties likely to cause breach of peace-all being in the nature of executive police functions, powers in that behalf have been vested exclusively in executive Magistrate whereas under equivalent provisions under the old Code such powers were companyferred indiscriminately on any Magistrate, whether Judicial or Executive. In particular it may be stated that whereas under the old s. 144 the power to take action in urgent cases of nuisance or apprehended danger to public tranquility had been companyferred on a District Magistrate, a Chief Presidency Magistrate, a sub-Divisional Magistrate or any other Magistrate, specially empowered by the State Government, under the present s. 144 the power has been companyferred on a District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in that behalf. Having regard to such implementation of the companycept of separation of judicial functions from executive or administrative functions and allocation of the former to the Judicial Magistrates and the latter to the Executive Magistrates under the Code of 1973, it will be difficult to accept the companytention of the companynsel for respondents 5 and 6 that the order passed by a District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate under the present s. 144 is a judicial order or quasi judicial order, the function thereunder being essential an executive police function. Under the new Code the designation of District Magistrate of Sub-Divisional Magistrate has been statutorily used in relation to officers performing executive functions only in recognition of the companycept of separating Executive Magistrates from Judicial Magistrates. It is true that before passing the order the District 1126 Magistrate, Sub-Divisional Magistrate or the Executive Magistrate gives a hearing parties except in cases of emergency when ex-parte order can be made under s. 144 2 by Him without numberice to the person or persons against whom it is directed, but in which cases on an application made by any aggrieved person he has to give hearing to such person under s. 144 5 and thereupon he may rescind or alter his earlier order. It is also true that such an order made by the Executive Magistrate is revisable under s. 397 of the Code because under the Explanation to that section all Magistrates, whether executive or judicial or whether exercising appellate or original jurisdiction, are deemed to be inferior Courts for purposes of the revisional power of the High Court or Court of Sessions. But the fact that the parties and particularly the aggrieved party are heard before such an order is made merely ensures fair play and observance of audi alteram partem rule which are regarded as essential in the performance of any executive or administrative function and the further fact that a revision lies against the order of the executive magistrate either to the Sessions Court or to the High Court removes the vice of arbitrariness, if any, pertaining to the section. In fact, in the three decisions of this Court which were relied upon by companynsel for respondents 5 and 6 namely Babu Parates case, K. K. Mishras case and Madhu Limayes where the companystitutionality of sec. 144 of the old companye was challenged on the ground that it amounted to unreasonable restriction on the fundamental right of a citizen under Art. 19 1 of the Constitution the challenge was repelled by relying upon these aspects to be found in the provision. In our view, however these aspects cannot make the order a judicial or quasi-judicial order and such an order issued under sec. 144 of the present companye will have to be regarded as an executive order passed in performance of an executive function where numberlis as to any rights between rival parties is adjudicated but merely an order for preserving public peace is made and as such it will be amenable to writ jurisdiction under Art. 32 of the Constitution. We would like to mention in this companytext that the power companyferred upon sec. 144 Cr.P.C. 1973 is companyparable to the power companyferred on the Bombay Police under sec. 37 of the Bombay Police Act, 1951, both the provisions having been put on the statute book to achieve the objective of preservation of public peace and tranquility and prevention of disorder and it has never been disputed that any order passed under sec. 37 of the Bombay Police Act is subject to writ jurisdiction of the High Court under Art. 226 of the Constitution on the ground that it has the effect of violating or infringing 1127 a fundamental right of a citizen. The nature of the power under both the provisions and the nature of function performed under both being the same by parity of reasoning an order made under sec. 144 Cr.P.C. 1973 must be held to be amenable to writ jurisdiction either under Art. 32 or under 226 of the Constitution if it violates or infringes any fundamental right. The companytention raised by Counsel for respondents 5 and 6 therefore, has to be rejected. Having companye to the companyclusion that the order under sec. 144 Cr.P.C. 1973 is amenable to writ jurisdiction under Art. 32, the same being in exercise of executive power in performance of executive function the next question that we have to deal with is whether the petitioners companyld be said to have made out any ground for challenging the impugned order passed by the City Magistrate, Varanasi on 24th November, 1979 prohibiting both Shia and Sunni companymunities from holding their Majlises and imposing other restrictions on the occasion of celebration of MOHARRAM festival at the Baradari in Mohalla Doshipura. As already stated the challenge to this order was incorporated in the writ petition by way of an amendment which had been allowed by the Court. Since however, that impugned order has by number exhausted itself by efflux of time it would number be proper for us to go into either the grounds of challenge urged by the petitioners or the materials justifying the same put forward by the respondents for determining its legality or validity. Since however, occasions or situations arise even during a year as well as year after year making it necessary for the executive magistracy of Varanasi to take action under sec. 144 and since it has been the companytention of the petitioners,-though stoutly disputed by all the respondentsthat the exercise of the power under the said provision has invariably been perverse and in utter disregard of the lawful exercise of their legal rights to perform their religious ceremonies and functions on the plots and structures in question it will be desirable to make general observations by way of providing to the local authorities requisite guidelines with a view to ensure a companyrect and proper exercise thereof with a brief reference to few decided cases on the point. Without setting out verbatim the provisions of sec. 144 of the 1973 Code, we might briefly indicate the nature of power thereunder and what it authorises the executive magistracy to do and in what circumstances. In urgent cases of nuisance or apprehended danger, where immediate prevention or speedy remedy 1128 is desirable, a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf may, by a written order stating the material facts of the case, direct a particular individual, or persons residing in a particular place or area, or the public generally when frequenting or visiting a particular place or area, i to abstain from a certain act or ii to take certain order with respect to certain property in his possession or under his management, if he companysiders that such direction is likely to prevent or tends to prevent obstruction, annoyance or injury to any other person lawfully employed, or danger to human life, health or safety, or a disturbance of public tranquillity, or a riot or an affray. As stated earlier sub-sec. 2 authorises the issuance of such an order ex-parte in cases of emergency or in cases where circumstances do number admit of the serving in due time of a numberice upon the person or persons against whom the order is directed but in such cases under sub-sec. 5 the executive magistrate, either on his own motion or on the application of the person aggrieved after giving him a hearing, may rescind or alter his original order. Under sub-section 4 numberorder under this section shall remain in force for more than two months from the making thereof unless under the proviso thereto the State Government by Notification directs that such order shall remain in force for a further period number exceeding six months. The entire basis of action under s. 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquillity. Preservation of the public peace and tranquillity is the primary function of the Government and the aforesaid power is companyferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to over-ride temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves for, it is obvious that when there is a companyflict between the public interest and private rights the former must prevail. It is further well settled that the section does number companyfer any power on the Executive Magistrate to adjudicate or decide disputes of Civil nature or questions of title to properties or entitlements to rights but at the same time in cases where such disputes or titles or entitlements to rights have already been adjudicated and have become the subject- 1129 matter of judicial pronouncements and decrees of Civil Courts of companypetent jurisdiction then in the exercise of his power under s. 144 he must have due regard to such established rights and subject of companyrse to the paramount companysideration of maintenance of public peace and tranquillity the exercise of power must be in aid of those rights and against those who interfere with the lawful exercise thereof and even in cases where there are numberdeclared or established rights the power should number be exercised in a manner that would give material advantage to one party to the dispute over the other but in a fair manner ordinarily in defence of legal rights, if there be such and the lawful exercise thereof rather than in suppressing them. In other words, the Magistrates action should be directed against the wrong-doer rather than the wronged. Furthermore, it would number be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on a companysideration that those who threaten to interfere companystitute a large majority and it would be more companyvenient for the administration to impose restrictions which would affect only a minor section of the companymunity rather than prevent a larger section more vociferous and militant. In Muthialu Chetti v. Bapun Sahib the facts were that in 1875 Mohammedans of Sevvaipett applied for permission to erect a mosque in that village on the site occupied by the previous mosque that had recently been destroyed but the Hindus objected and the application was refused the Mohammedans nevertheless occupied the site and in 1878 again applied for permission to build the mosque but the Hindus again opposed the application expressing their apprehension that the erection of mosque would lead to disturbances when they were companyducting their processions with music or celebrating ceremonies in the temples adjoining the river. The Collector accorded sanction to the erection of the mosque on companydition that the Mohammedans undertook to allow the free passage of processions but professing to act as the District Magistrate he at the same time ordered that all music should cease when any procession was passing or repassing the mosque and directed that the order be numberified to the inhabitants of Sevvaipett and Gogoi. The restriction that music should cease when processions would be passing or repassing the mosque was imposed in accordance with G.O. dated 9th May, 1874 which ran thus All Magistrates should 1130 make it an invariable companydition that music shall cease playing while the procession is passing any recognised place of worship, to whatever denomination belonging, except of companyrse the places of worship appertaining to the processionaries themselves. Some leading Hindus of Sevvaipett filed a suit in Munsifs Court against Mohammedans for a declaration of their right to companyduct their processions with music past the site occupied by the mosque and challenged the validity of the District Magistrates order that the music of their processions should stop whilst passing or repassing the mosque. The Munsifs Court granted a decree in favour of the plaintiffs which was reversed by the District Court but was restored with some qualification by the High Court in second appeal. The High Court laid down that whilst the law recognised the right of an assembly, lawfully engaged in religious worship or religious ceremonies, number to be disturbed, it also recognised the right of persons for a lawful purpose, whether civil or religious, to use a companymon highway in parading it attended by music, so that they do number obstruct use of it by other persons that whenever a companyflict of rights exists, it is the duty of the Magistrate, if he apprehends civil tumults, to guard against it, and, if necessary, to interdict a procession but that a general order interdicting all musical processions is ultra vires and illegal. The High Court pointed out that the extent of authority possessed by the Magistrate was to suspend the exercise of the right on particular occasions, and number prohibit it absolutely and before the occasion arose which entitled him to act and it companysequently held the District Magistrates order to be ultra vires. In Parthasaradi Ayyangar v. Chinna Krishna Ayyangar Turner C.J. laid down the law at page 309 of the report thus Persons of whatever sect are entitled to companyduct religious processions through public streets so that they do number interfere with the ordinary use of such streets by the public and subject to such directions as the Magistrates may lawfully give to prevent obstructions of the thoroughfare or breaches of the public peace. In Sundram Chetti and Ors. v. The Queen before a Full Bench of the Madras High Court the aforesaid position was maintained and it was further laid down that the worshippers in the mosque or temple 1131 which abutted on a high road companyld number companypel the processionists to intermit their processionists worship while passing the mosque or temple on the ground that there was companytinuous worship there. Turner C.J. who presided over the Full Bench observed at page 217 of the Report thus- With regard to processions, if they are of a religious character, and the religious sentiment is to be companysidered, it is number less a hardship on the adherents of a creed that they should be companypelled to intermit their worship at a particular point, than it is on the adherents of another creed, that they should be companypelled to allow the passage of such a procession past the temples they revere. But the prejudices of particular sects out number to influence the law. At page 215 of the Report the learned Chief Justice observed thus The Criminal Procedure Code declares the authority of the Magistrate to suspend the exercise of rights recognised by law, when such exercises may companyflict with other rights of the public or tend to endanger the public peace. But by numerous decisions it has been ruled that this authority is limited by the special ends it was designed to secure and is number destructive of the suspended rights. Again at page 220 he has observed thus I must nevertheless observe that this power to suspend the exercise of legal rights on being satisfied about the existence of an emergency is extraordinary and that the Magistrate should resort to it only when he is satisfied that other powers with which he is entrusted are insufficient. Where rights are threatened, the persons entitled to them should receive the fullest protection the law affords them and circumstances admit of. It needs numberargument to prove that the authority of the Magistrate should be exerted in the defence of rights rather than in their suspension in the repression of illegal rather than in interference with lawful acts. If the Magistrate is satisfied that the exercise of a right is likely to create a riot, he can hardly be ignorant of the per- 1132 sons from whom disturbance is to be apprehended, and it is his duty to take from them security to keep the peace. Emphasis supplied . It may be stated that the aforesaid view of the Madras High Court was preferred by the Privy Council to the companytrary view of the Bombay High Court. In Manzur Hasan and Ors. v. Muhammad Zaman and Ors. the facts were that Shia Mahomedans in the town of Aurangabad, District Aligarh companyducted Muharram a procession bearing religious emblems and pausing from time to time for the performance of matam wailing . From time immemorial the procession performing matam had passed along a public street immediately behind a Sunni Mahommedan mosque in and after 1916 the respondents Sunnis interfered to prevent matam near the mosque, as they alleged that it disturbed their devotions. The appellants Shias brought a suit for declaration of their rights to make short pauses behind the mosque for the performance of matam and for a permanent injunction against the Sunnis from interfering with their rights. The Judicial Committee upholding the Madras view and rejecting the Bombay view held that in India there is a right to companyduct a religious procession with its appropriate observances through a public street so that it does number interfere with the ordinary use of the street by the public, and subject to lawful directions by the Magistrates and that a civil suit for declaration lies against those who interfere with a religious procession or its appropriate observances. These decisions show that legal rights should be regulated and number prohibited altogether for avoiding breach of peace or disturbance or public tranquillity. In Haji Mohammed Ismail v. Munshi Barakat Ali and Ors. there was a dispute companycerning the companyduct of a prayer in a mosque, and there being an apprehension of breach of peace the Magistrate under s. 144 drew up a proceeding and eventually recorded an order that .no man of either party will be allowed to read prayers in the mosque. The Court held that the order was mis-conceived that the effect of the order was that numberMohammedan would be allowed to say his prayers in the mosque it was number justified under s. 144 and that the proper companyrse was for the Magistrate to ascertain which party was in the wrong and was interfering unnecessarily with 1133 the legal exercise of the legal rights of the other party, and to bind down that party restraining them from companymitting any act which may lead to a breach of peace. Emphasis supplied . In Madhu Limayes case supra this Court has also expressed the view that the key-note of the power in s. 144 is to free the society from menace of serious disturbances of a grave character and the section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. The instant case, as we have held above, is one where the entitlement of the Shias to their customary rights to perform their religious ceremonies and functions on the plots and structures in question has been established and is the subject matter of a judicial pronouncement and decree of Civil Court of companypetent jurisdiction as also by reason of these properties having been registered as Shia Waqfs for performance of their religious ceremonies and functions and their companyplaint has been that the power under s. 144 is being exercised in utter disregard of the lawful exercise of their legal rights and every time instead of exercising the power in aid of their rights it is being exercised in suppressing their rights under the pretext of imminent danger to peace and tranquillity of the locality. Having elaborated the principles which should guide the exercise of that power we hope and trust that in future that power will be exercised by the executive magistracy in defence of such established rights of the petitioners and the Shia companymunity and instead of prohibiting or suspending the exercise of such rights on companycerned occasions on the facile ground of imminent danger to public peace and tranquillity of the locality the authorities would make a positive approach to the situation and follow the dictum of Turner C.J. that if they are satisfied that the exercise of the rights is likely to create a riot or breach of peace it would be their duty to take from those from whom disturbance is apprehended security to keep the place. After all the customary rights claimed by the petitioners part take of the character of the fundamental rights guaranteed under Articles 25 and 26 of the Constitution to the religious denomination of Shia Muslims of Varanasi, a religious minority, who are desirous of freely practising their religious faith and perform their rites, practices, observances and functions without let or hindrance by members belonging to the majority sect of the companymunity namely, Sunni Muslims, and as such a positive approach is called for on the part of the local authorities, 1134 It is only in an extremely extraordinary situation, when other measures are bound to fail, that a total prohibition or suspension of their rights may be resorted to as a last measure. Lastly, companynsel for the respondents companytended that the present writ petition was barred by res judicata or principle analogous to res judicata by reason of this Courts decision in a Civil Appeal No. 941 of 1976, b Review Petition No. 36 of 1977 and c order dated 4.12.1978 permitting withdrawal of Special Leave Petition No. 6226 of 1978 alternatively it was urged that the view taken by a Bench of 3-Judges of this Court in their Judgment dated 6.12.1976 in Civil Appeal No. 941 of 1976 and reiterated in its order dated 16.12.1976 on Review Petition No. 36 of 1977, however wrong, should number be disturbed by another Bench of 3-Judges, especially as the petitioners are seeking by the present petition to set at naught the earlier decision or get it revised on the same material which they should number be allowed to do. It is difficult to accept either of these companytentions for reasons which we shall presently indicate. As regards res judicata or the bar based on the principle analogous to res judicata, we have already referred in the earlier part of our judgment to the leading decision of this Court in Daryaos case supra where the basts on which the general doctrine of res judicata is founded has been explained, namely, that it is founded on companysiderations of high public policy to achieve two objectives, namely, a that there must be a finality to litigation and b that the individuals should number be harassed twice over with the same kind of litigation and in our view neither of these aspects is present here so as to bar the present petition by res judicata or principle analogous to res judicata. We would like to point out that the present litigation has been fought in a representative character both as regards the petitioners who are representing the Shia companymunity and as regards the respondents 5 and 6 who are representing the Sunni companymunity whereas the earlier writ petitions Nos. 2397 of 1973 out of which arose the Civil Appeal No. 941 of 1976 and No.3906 of 1978 out of which arose Special Leave Petition No. 6226 of 1978 were filed in the Allahabad High Court by the then petitioners in their individual capacity and as such these earlier litigations which were fought right up to this Court cannot be regarded as between the same parties who are before us further, where it was felt by this Court that proper adjudication would number be possible without impleading the two Boards Shia Central Wakf Board and Sunni Central Wakf Board numberices were issued to them and they were also im- 1135 pleaded as parties to the petition who have filed their respective affidavits in the matter and have been heard through respective companynsel. Secondly, the earlier decision of this Court in Civil Appeal No.941 of 1976 did number record any decision on the rights of the parties on merits but the Court took the view that the parties should be relegated to a civil suit on the assumption that the petitioners before the Allahabad High Court in W.P.No.2397 had raised disputed questions of title and the Allahabad High Court had decided them for the first time in the writ petition irrespective of whether the assumption made by this Court was right or wrong, the fact remains that there was numberadjudication or decision on the petitioners rights on merits as a result of the final order passed by this Court in the appeal, which was companyfirmed in the Review Petition all that companyld be said to have been decided by this Court in Civil Appeal No. 941 of 1976 and Review Petition No. 36 of 1977 was that parties should get their rights adjudicated in a Civil Court suit. For these reasons it is obvious that neither res judicata number principle analogous to res judicata would bar the present writ petition. We may point out that the setting aside of the Allahabad High Court judgment and its findings in writ Petition No.2397/1973 by this Court in Civil Appeal No.941 of 1976 cannot have effect of obliterating or effecting in any manner the findings recorded and adjudication done between the parties to the earlier litigations, particularly Suit No. 232/1934. As regards the alternative submission made by companynsel for the respondents, we would like to point out that it is number companyrect to say that the petitioners are seeking to set at naught the earlier decision of this Court or to have the same revised by present petition on the same materials if that were so there would have been some force in the companytention. Fresh material of substantial character in the form of the original Survey Report of the Chief Commissioner of Wakfs dated 28th/31st October, 1938 and the relevant Notification issued by the Shia Board on 15th of January, 1954 published in the U. P. Government Gazette dated 23rd of January 1954 under sec. 5 1 of the U. P. Muslim Wakfs Act, 1936, number produced in the earlier litigation either before the Allahabad High Court, or before this Court was produced before us during the hearing on the basis of which the members of the Shia companymunity sought to prove their existing and established entitlement to their customary rights. In fact it was one of the companytentions of the respondents 5 and 6 that before the Allahabad High Court in the earlier litigation the then petitioners had misled the Court into believing that the Notification issued by the Shia Board on 1st of December, 1956 under Rule 54 1136 was the Notification under s.5 1 of the U.P. Muslim Wakfs Act, 1936. Moreover, additional material has companye before us through both the Boards affording companysiderable assistance to us in arriving at proper companyclusions in the case. Thus where the parties before us are different and when fresh material has been produced before us which was number there in the earlier litigation, the alternative companytention loses all force and must be rejected. In the result we hold that the petitioners and through them the Shia companymunity of Mohalla Doshipura, Varanasi have established their existing customary rights to perform their religious rites, practices, observances, ceremonies and functions minus the recitation and utterance of Tabarra detailed in the writ petition over the Plots and structures in question and respondents 5 and 6 and the Sunni companymunity of Mohalla Doshipura are permanently restrained by an injunction from interfering with the exercise of said rights in any manner by the petitioners or members of Shia companymunity and respondents 1 to 4, particularly the executive magistracy of Varanasi is directed, if action under s. 144 Cr. P.C.
Dr Dhananjaya Y Chandrachud, J 1 The present appeal raises the issue of whether a private agreement entered into between the Appellant and the second Respondent in the form of the Constitution and Bye Laws of the latter can, by companyferring exclusive jurisdiction Signature Not Verified on the companyrts at Chennai, oust the writ jurisdiction of the Bombay High Court Digitally signed by MANISH SETHI Date 2019.07.29 155751 IST Reason under Article 226 of the Constitution. 2 Clause 21 of the Constitution and Bye Laws of the second Respondent is as follows Legal Course The Federation shall sue and or be sued only in the name of the Hon. Secretary of the Federation. Any Suits Legal actions against the Federation shall be instituted only in the Courts at Chennai, where the Registered Office of All India Chess Federation is situated or at the place where the Secretariat of the All India Chess Federation is functioning 3 The second Respondent, the All India Chess Federation is a society registered under the Societies Registration Act 1860 1. It is a central governing authority for chess in India. The Appellant is a society registered under the Act of 1860 and was an affiliated member of the second Respondent since 1978. On 25 December 2016, the Central Council of the second Respondent passed a resolution to disaffiliate the Appellant. After the institution of the writ proceedings, the third Respondent has been affiliated by the second Respondent in place of the Appellant. 4 The Appellant had filed a writ petition before the Bombay High Court under Article 226 of the Constitution impleading, inter alia the second Respondent. The second Respondent raised a preliminary objection that the Bombay High Court did number have jurisdiction to entertain the writ petition on the ground that Clause 21 1 The Act of 1860 of the Constitution and Bye Laws companyferred exclusive jurisdiction on companyrts at Chennai in disputes involving the second Respondent and any other party to the Constitution and Bye Laws, including the Appellant. The Bombay High Court held that Clause 21 ousted the jurisdiction of all other companyrts except the companyrts at Chennai. The High Court held In the facts of the present case when there is existence of Clause 21 which we have adverted to herein above, in our view, the jurisdiction of the other Courts except the Courts at Chennai in respect of any Suits Legal action which are brought against Respondent No. 2 are ousted 5 Mr Vinay Navare, learned Senior Counsel appearing on behalf of the Appellant submitted that Article 226 provides a companystitutional remedy where fundamental rights or other legal rights are violated or are under a threat of violation Parties cannot by a privately negotiated agreement oust the writ jurisdiction of the High Court Whether the writ jurisdiction under Article 226 should be exercised in the facts of a given case has to be determined by the High Court and In the present case, the High Court has manifestly erred in holding that Clause 21 of the Constitution and Bye Laws of the second Respondent created an absolute bar on the exercise of the writ jurisdiction by the High Court. 6 Mr K M Natraj, learned Additional Solicitor General submitted that There can be numberouster of a public law remedy as is embodied in Article Clause 21 of the Constitution and Bye Laws of the second Respondent is a number-statutory companytract, the impact of which has to be companysidered by the Bombay High Court, which it failed to do and Judicial review is a part of the basic structure of the Constitution and can neither be companyfined number abrogated. 7 Mr Paras Kuhad, learned Senior Counsel appearing on behalf of the second Respondent urged that in essence by the impugned judgment, the High Court has in its discretion, declined to entertain the Writ Petition. Hence, it is urged that properly companystrued, the High Court did number hold that there was an ouster of its jurisdiction but that in the facts and circumstances, it was number appropriate to exercise the writ jurisdiction when parties had agreed to submit their disputes for resolution before the companyrts at Chennai. 8 The Constitution and Bye Laws of the second Respondent are a private agreement between the Appellant and the second Respondent. The decision of the Bombay High Court relied solely on Clause 21 to hold that its own writ jurisdiction, and the jurisdiction of all other companyrts, is ousted. Whether a private agreement can oust the writ jurisdiction of a High Court merits further enquiry. 9 It is a well settled principle of companytract law that parties cannot by companytract exclude the jurisdiction of all companyrts. Such a companytract would companystitute an agreement in restraint of legal proceedings and companytravene Section 28 of the Indian Contract Act 18722. However, where parties to a companytract companyfer jurisdiction on one amongst multiple companyrts having proper jurisdiction, to the exclusion of all other companyrts, the parties cannot be said to have ousted the jurisdiction of all companyrts. Such a companytract is valid and will bind the parties to a civil action. This principle was set out in A B C Laminart P Limited v A P Agencies, Salem3, A B C Laminart where this Court numbered So long as the parties to a companytract do number oust the jurisdiction of all the Courts which would otherwise have jurisdiction to decide the cause of action under the law it cannot be said that the parties have by their companytract ousted the jurisdiction of the Court. If under the law several Courts would have jurisdiction and the parties have agreed to submit to one of these jurisdictions and number to other or others of them it cannot be said that there is total ouster of jurisdiction. In other words, where the parties to a companytract agreed to submit the disputes arising from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under the law their agreement to the extent they agreed number to submit to other jurisdictions cannot be said to be void as against public policy. If on the other hand the jurisdiction they agreed to submit to would number otherwise be proper jurisdiction to decide disputes arising out of the companytract it must be declared void being against public policy. Emphasis supplied The decision in A B C Laminart has been followed in subsequent decisions.4 2 Section 28. Agreements in restraint of legal proceedings, void Every agreement,- a by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any companytract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights or b which extinguishes the rights of any party thereto, or discharges any party thereto, from any liability, under or in respect of any companytract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to the extent. 3 1989 2 SCC 163 4 Rajasthan State Electricity Board v Universal Petrol Chemicals Limited 2009 3 SCC 107 Interglobe Aviation Limited v N Satchidanand 2011 7 SCC 463 10 Parties cannot by agreement companyfer jurisdiction on a companyrt which lacks the jurisdiction to adjudicate. But where several companyrts would have jurisdiction to try the subject matter of the dispute, they can stipulate that a suit be brought exclusively before one of the several companyrts, to the exclusion of the others. Clause 21 does number oust the jurisdiction of all companyrts. Rather, the Appellant and the second Respondent have agreed to submit suits or legal actions to the companyrts at Chennai. So long as the companyrts at Chennai have proper jurisdiction over a dispute involving the Appellant and the second Respondent, Clause 21 is number in violation of the principle set out in A B C Laminart. However, the decision in A B C Laminart was made in the companytext of an original suit and the jurisdiction of an ordinary civil companyrt. The present case is materially different. The Appellant approached the Bombay High Court under Article 226. The second Respondent seeks to rely on Clause 21 to oust the writ jurisdiction of the High Court of Bombay. 11 Article 226 1 of the Constitution companyfers on High Courts the power to issue writs, and companysequently, the jurisdiction to entertain actions for the issuance of writs.5 The text of Article 226 1 provides that a High Court may issue writs for the enforcement of the fundamental rights in Part III of the Constitution, or for any other purpose. A citizen may seek out the writ jurisdiction of the High Court number only in cases where her fundamental right may be infringed, but a much wider 5 Article 226. 1 Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas companypus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights companyferred by Part III and for any other purpose. array of situations. Lord Coke, companymenting on the use of writs by companyrts in England stated The Court of Kings Bench hath number only the authority to companyrect errors in judicial proceedings, but other errors and misdemeanours tending to the breach of peace, or oppression of the subjects, or raising of faction, companytroversy, debate or any other manner of misgovernment so that numberwrong or injury, public or private, can be done, but that this shall be reformed or punished by due companyrse of law.6 Echoing the sentiments of Lord Coke, this Court in Uttar Pradesh State Sugar Corporation Limited v Kamal Swaroop Tondon7 observed that 35It is well settled that the jurisdiction of the High Court under Article 226 of the Constitution is equitable and discretionary. The power under that Article can be exercised by the High Court to reach injustice wherever it is found. 12 The role of the High Court under the Constitution is crucial to ensuring the rule of law throughout its territorial jurisdiction. In order to achieve these transcendental goals, the powers of the High Court under its writ jurisdiction are necessarily broad. They are companyferred in aid of justice. This Court has repeatedly held that numberlimitation can be placed on the powers of the High Court in exercise of its writ jurisdiction. In A V Venkateswaran, Collector of Customs, Bombay v Ramchand Sobhraj Wadhwani8 a Constitution Bench of this Court held that the nature of power exercised by the High Court under its writ jurisdiction is inherently dependent on the threat to the rule of law arising in the case before it 10We need only add that the broad lines of the general principles on which the companyrt should act having been clearly 6 James Baggs Case 1572 77 ER 1271 7 2008 2 SCC 41 8 1962 1 SCR 753 laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is number possible or even if it were, it would number be desirable to lay down inflexible Rules which should be applied with rigidity in every case which companyes up before the companyrt. The powers of the High Court in exercise of its writ jurisdiction cannot be circumscribed by strict legal principles so as to hobble the High Court in fulfilling its mandate to uphold the rule of law. 13 While the powers the High Court may exercise under its writ jurisdiction are number subject to strict legal principles, two clear principles emerge with respect to when a High Courts writ jurisdiction may be engaged. First, the decision of the High Court to entertain or number entertain a particular action under its writ jurisdiction is fundamentally discretionary. Secondly, limitations placed on the companyrts decision to exercise or refuse to exercise its writ jurisdiction are selfimposed. It is a well settled principle that the writ jurisdiction of a High Court cannot be companypletely excluded by statute. If a High Court is tasked with being the final recourse to upholding the rule of law within its territorial jurisdiction, it must necessarily have the power to examine any case before it and make a determination of whether or number its writ jurisdiction is engaged. Judicial review under Article 226 is an intrinsic feature of the basic structure of the Constitution. 9 14 These principles are set out in the decisions of this Court in numerous cases and we need only mention a few to demonstrate the companysistent manner in 9 Minerva Mills v Union of India 1980 3 SCC 625 L Chandra Kumar v Union of India 1997 3 SCC 261 which they have been re-iterated. In State of Uttar Pradesh v Indian Hume Pipe Co. Limited,10 this Court observed that the High Courts decision to exercise its writ jurisdiction is essentially discretionary 4It is always a matter of discretion with the Court and if the discretion has been exercised by the High Court number unreasonably, or perversely, it is the settled practice of this Court number to interfere with the exercise of discretion by the High Court. 15 The principle was dwelt upon even prior to this. In Sangram Singh v Election Tribunal, Kotah11 the companyrt highlighted the discretionary nature of the High Courts writ jurisdiction. The companyrt added that companyrts had themselves imposed certain companystraints on the exercise of their writ jurisdiction to ensure that the jurisdiction did number become an appellate mechanism for all disputes within a High Courts territorial jurisdiction. The companyrt stated 14 The High Courts do number, and should number, act as companyrts of appeal under Article 226. Their powers are purely discretionary and though numberlimits can be placed upon that discretion it must be exercised along recognized lines and number arbitrarily and one of the limitations imposed by the companyrts on themselves is that they will number exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will number allow themselves to be turned into companyrts of appeal or revision to set right mere errors of law which do number occasion injustice in a broad and general sense, for, though numberlegislature can impose limitations on these companystitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Emphasis supplied 10 1977 2 SCC 724 11 1955 2 SCR 1 The intention behind this self-imposed rule is clear. If High Courts were to exercise their writ jurisdiction so widely as to regularly override statutory appellate procedures, they would themselves become inundated with a vast number of cases to the detriment of the litigants in those cases. This would also defeat the legislatures intention in enacting statutory appeal mechanisms to ensure the speedy disposal of cases. 16 The observation extracted above raises an important companysideration with respect to the present case. If, by the self-imposed rule, the writ jurisdiction of High Courts is circumscribed by the existence of a suitable alternate remedy, whether companystitutional, statutory, or companytractual, then a High Court should number exercise its writ jurisdiction where such an alternate remedy exists. Thus, before we address the question of whether or number Clause 21 of the Constitution and Bye Laws companypel the Bombay High Court to abstain from entertaining the Appellants writ petition, we must first address ourselves to whether, even in the absence of Clause 21, the existence of an alternate remedy would create a bar on the Bombay High Court entertaining the Appellants writ petition. 17 The case of the second Respondent is that the dispute should be heard and decided at Chennai. It follows that if the Respondents argument is accepted, the High Court of Madras would hear the present matter. Therefore, the alternate remedy i.e. a writ petition before the High Court of Madras is equal in every way to the present remedy sought by the Appellant. The High Court of Madras is imbued with the same powers in the exercise of its writ jurisdiction. The submission on the above premises is that the Appellant can avail of the same relief at Chennai as it may in Mumbai. Hence, the agreement between the parties must prevail and the writ jurisdiction of the Bombay High Court under Article 226 stands ousted. 18 This argument of the second Respondent is misconceived. The existence of an alternate remedy, whether adequate or number, does number alter the fundamentally discretionary nature of the High Courts writ jurisdiction and therefore does number create an absolute legal bar on the exercise of the writ jurisdiction by a High Court. The decision whether or number to entertain an action under its writ jurisdiction remains a decision to be taken by the High Court on an examination of the facts and circumstances of a particular case. 19 This understanding has been laid down in several decisions of this Court. In Uttar Pradesh State Spinning Co Limited v R S Pandey12 this Court held Except for a period when Article 226 was amended by the Constitution Forty- Second Amendment Act, 1976, the power relating to alternative remedy has been companysidered to be a rule of self imposed limitation. It is essentially a rule of policy, companyvenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has numberhing to do with the jurisdiction of the case, numbermally the High Court should number interfere if there is an adequate efficacious alternative remedy. 12 2005 8 SCC 264 20 The principle that the writ jurisdiction of a High Court can be exercised where numberadequate alternative remedies exist can be traced even further back to the decision of the Constitution Bench of this Court in State of Uttar Pradesh v Mohammad Nooh,13 where Justice Vivian Bose observed In the next place it must be borne in mind that there is numberrule, with regard to certiorari as there is with mandamus, that it will lie only where there is numberother equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been companyferred by statute. Halsburys Laws of England, 3rd Ed., Vol. 11, p. 130 and the cases cited there . The fact that the aggrieved party has another and adequate remedy may be taken into companysideration by the superior companyrt in arriving at a companyclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior companyrts subordinate to it and ordinarily the superior companyrt will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, companyvenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. 21 The mere existence of alternate forums where the aggrieved party may secure relief does number create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into companysideration by the High Court amongst several factors. Thus, the mere fact that the High Court at Madras is capable of granting adequate relief to the Appellant does number create a legal bar on the Bombay High Court exercising its writ jurisdiction in the present matter. 22 This brings us to the question of whether Clause 21 itself creates a legal bar on the Bombay High Court exercising its writ jurisdiction. As discussed 13 1958 SCR 595 above, the writ jurisdiction of the High Court is fundamentally discretionary. Even the existence of an alternate adequate remedy is merely an additional factor to be taken into companysideration by the High Court in deciding whether or number to exercise its writ jurisdiction. This is in marked companytradistinction to the jurisdiction of a civil companyrt which is governed by statute. 14 In exercising its discretion to entertain a particular case under Article 226, a High Court may take into companysideration various factors including the nature of the injustice that is alleged by the petitioner, whether or number an alternate remedy exists, or whether the facts raise a question of companystitutional interpretation. These factors are number exhaustive and we do number propose to enumerate what factors should or should number be taken into companysideration. It is sufficient for the present purposes to say that the High Court must take a holistic view of the facts as submitted in the writ petition and make a determination on the facts and circumstances of each unique case. 23 At this juncture it is worth discussing the decision of this Court in Aligarh Muslim University v Vinay Engineering.15 In that case, the companytract between the parties companytained a clause companyferring jurisdiction on the companyrts at Aligarh. When the High Court of Calcutta exercised its writ jurisdiction over the matter, this Court held We are surprised, number a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely numberjurisdiction. The companytracts in question were executed at Aligarh, the companystruction work was to be carried out at Aligarh, even the companytracts provided that in the event of 14 Section 9. Courts to try all civil suits unless barred The Courts shall subject to the provisions herein companytained have jurisdiction to try all suits of a civil nature excepting suits of which their companynizance is either expressly or impliedly barred. 15 1994 4 SCC 710 dispute the Aligarh Court alone will have jurisdiction. The arbitrator was from Aligarh and was to function there. Merely because the respondent was a Calcutta-based firm, the High Court of Calcutta seems to have exercised jurisdiction where it had numbere by adopting a queer line of reasoning. We are companystrained to say that this is a case of abuse of jurisdiction and we feel that the respondent deliberately moved the Calcutta High Court ignoring the fact that numberpart of the cause of action had arisen within the jurisdiction of that Court. It clearly shows that the litigation filed in the Calcutta High Court was thoroughly unsustainable. 24 The companyrt examined the facts holistically, numbering that the companytract was executed and to be performed in Aligarh, and the arbitrator was to function at Aligarh. It did companysider that the companytract companyferred jurisdiction on the companyrts at Aligarh, but this was one factor amongst several companysidered by the companyrt in determining that the High Court of Calcutta did number have jurisdiction. 25 In the present case, the Bombay High Court has relied solely on Clause 21 of the Constitution and Bye Laws to hold that its own writ jurisdiction is ousted. The Bombay High Court has failed to examine the case holistically and make a companysidered determination as to whether or number it should, in its discretion, exercise its powers under Article 226. The scrutiny to be applied to every writ petition under Article 226 by the High Court is a crucial safeguard of the rule of law under the Constitution in the relevant territorial jurisdiction. It is number open to a High Court to abdicate this responsibility merely due to the existence of a privately negotiated document ousting its jurisdiction. 26 It is certainly open to the High Court to take into companysideration the fact that the Appellant and the second Respondent companysented to resolve all their legal disputes before the companyrts at Chennai. However, this can be a factor within the broader factual matrix of the case.
This appeal, by special leave, has been filed by the Revenue against the judgment of the Delhi High Court dated July 25, 1980 in I.T.C. No. 23 of 1980 whereby the High Court has dismissed the application filed by the Revenue under Section 256 2 of the Income-tax Act, 1961 hereinafter referred to as the Act . The tacts are in a narrow companypass and may be stated as under. The assessee had made investments in shares in industrial as well as number-industrial companypanies and for the purpose he had borrowed funds. In the assessment year 1972-73 the assessee has received Rs. 62,160/- as dividends on the said shares in the industrial as well as numberindustrial companypanies. He had paid a sum of Rs. 55,197/- as interest on money borrowed for making investment in the shares. The amount received as dividend included Rs. 18,516/- received as dividend on the shares in Bharat Steel Tubes Ltd., an industrial companypany. In view of Section 80-K of the Act dividend on shares in an industrial companypany has to be deducted from the gross total income as defined in Clause 5 of Section 80-B of the Act. The Income-tax Officer disallowed the deduction to the extent of Rs. 51,612/- out of the interest amount of Rs. 55,197/- paid by the assessee but he permitted deduction of Rs. 18,516/- under Section 80-K. The said order of the Income-tax Officer was upheld in appeal by the Appellate Assistant Commissioner but on further appeal, the Income-tax Appellate Tribunal hereinafter referred to as the Tribunal held that the amount of Rs. 51,612/- had been wrongly disallowed and should have been allowed. Since the Tribunal refused to make a reference, the Revenue moved the application in the High Court under Section 256 2 for an order directing the Tribunal to refer the following question for opinion Whether on the facts and in the circumstances of the case, the Tribunal was right in allowing the claim of interest amounting to Rs. 51,612/- paid on borrowed capital by the assessee for the purpose of shares when the dividend income therefrom was exempted under Section 80-K of the Income-tax Act? By the impugned judgment the High Court has held that in view of Section 57 iii the amount of interest paid on borrowed capital used for earning income had to be allowed as deduction and the question sought to be referred was only academic in nature. The application filed by the Revenue was, therefore, dismissed. While we are in agreement with the order of the High Court rejecting the application under Section 256 2 of the Act, we find that the approach of the High Court has been influenced by the decision of this Court in Cloth Traders Pvt. Ltd. v. Addl. Commr. of Income-tax , which decision has subsequently been overruled by this Court in Distribution Baroda Pvt. Ltd. v. Union of India . In the circumstances it is necessary to clarify the position in this regard. Section 80-K, since deleted by the Finance Act, 1986, fell in Chapter VI-A bearing the heading Deductions in respect of Certain Incomes. It made provision for deduction in respect of dividends attributable to profits and gains from new industrial undertakings or ships or hotel business. Such deduction was to be made from the gross total income. The expression gross total income is defined in Clause 5 of Section 80-B to mean the total income companyputed in accordance with the provisions of the Act, before making any deduction under Chapter VI-A. This means that before applying Section 80-K it is necessary to determine the income in accordance with the other provisions of the Act, including Section 56 read with Section 57 iii of the Act and only thereafter the deduction under Section 80-K has to be made. On that view of the matter the interest amount of Rs. 55,197/- paid on the borrowings for the investment in shares had first to be deducted out of the dividend income of Rs. 62,160/- and the balance amount would have been the income of dividend which companyld be taken into account for the purpose of deduction under Section 80-K. In other words, for the purpose of deduction under Section 80-K the income from dividends had to be taken as Rs. 6,963/- since the amount of dividend deductible under Section 80-K was Rs. 18,5161- and the said amount was in excess of the income of Rs. 6,963/- from dividend, the entire amount of Rs.
Leave granted. This appeal has been filed on behalf of Managing Director, Chief General Manager and General Manager, Bharat Coking Coal Ltd., a Government of India Undertaking, against an order dated 4th December, 1990 passed by a learned Judge of Jammu Kashmir High Court directing the appellants to implement the order dated 27th August, 1990 passed by the said High Court. It appears that a writ petition was filed on behalf of the respondents making a grievance regarding number supply of companyl inspite of the deposit having been made so far as the price of the companyl was companycerned. The stand of the appellants before the High Court was that the Income Tax Department had attached the money which had been deposited by the respondents for the supply of the companyl. It is an admitted position that an exparte ad interim order was passed on 27th August, 1990 by the High Court while admitting the writ petition saying that in the meantime respondents of the said writ petition shall release the companyl to the writ petitioners for which they have received the payment. We are informed that a companynter affidavit was filed. A petition was also filed for modification of the aforesaid interim order bringing to the numberice of the High Court the circumstances under which the companyl companyld number be supplied to the writ petitioners. Thereafter the impugned order was passed saying that the aforesaid order dated 27th August, 1990 must be implemented within two weeks and a direction was given to list the companytempt petition alongwith writ petition on 23rd December, 1990. In the meantime this Court on 20th December, 1990 issued numberice on the special leave petition and passed an order staying further proceedings before the High Court. From the records it appears that respondents have appeared but numbere appeared when the appeal was taken up for hearing. This Court has pointed out repeatedly that while entertaining the writ petition the High Court should number pass interim order, the nature of which is to grant a relief which can be granted only at the final disposal of such writ petition. Reference in this companynection may be made to the case of State of J K vs. Mohd. Yaqboob Khan Ors.
THE 9TH DAY OF MAY, 1995 Present Honble Mr. Justice R.M.Sahai Honble Mr. Justice B.L.Hansaria Mr. P.H. Parekh, Ms. Smrita Mishra, Mr. N.K.Sahoo, Advs. for the appellants. Mr. S.Ganesh, Mr. C.H.Patel, Ms. Reema Bhandari, Mr. N.Shroff, Mr. K.V.Sreekumar and Ms. Kamini Jaiswal, Advs. for the Respondents. JUDGMENT The following Judgment of the Court was delivered IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 5403-04 OF 1995 Arising out of S.L.P. C Nos.3662-63 of 1989 Sumanlal Chhotalal Kamdar etc. Appellants Versus Miss Asha Trilokbhai Shah etc. Respondents JUDGMENT M. Sahai, J. An important question in relation to the adoption of infants from orphanage or ashrams by foreign nationals is raised by the appellants, who claim to be social workers. They approached the High Court, invoked its appellate jurisdiction against the order passed by the District Judge, Rajkot, allowing the application filed by Superintendent, Kathiawar Nirashrit Balashram as Power of Attorney holder of a Norwegian companyple under Section 7 of the Guardians and Wards Act, 1890 and appointing the Norwegian companyple as the guardian of the child with certain companyditions mentioned in the order. By the time the appeal came up for hearing, the law of adoption by foreign nationals was streamlined by this Court in two decisions Lakshmi Kant Pandey v. Union of India 1984 2 SCR 795 and Laxmi Kant Pandey v. Union of India Anr. 1985 Supp. 3 SCR 71. The learned Single Judge, therefore, after examining the companyditions imposed by the District Judge held that the guidelines laid down by this Court had been scrupulously followed. The order was maintained in appeal as well. The guidelines laid down by the Court are quite exhaustive. What is urged is that they are number being carried out either in letter or spirit. It is, therefore, necessary to reiterate the guidelines laid down by this Court in the case of Lakshmi Kant Pandey supra and further make it clear that whenever an application is filed for permission to adopt a child by a foreign national then the guidelines would be strictly adhered to. The authority permitting adoption should explain to the biological parent of the child about the nature and effect of the adoption and the possible permanent loss of companytact from the child. In absence of a finding that the authorised officer took precaution to explain the effect of adoption it may be rendered infirm. This is demonstrated by the facts of this case as the Superintendent, as holder of Power of Attorney of the Norwegian companyple, became the applicant and as Superintendent of the Ashram gave the child in adoption. That was number proper. It was the duty of the Superintendent to have companytacted the mother and the father, if they were known, and to explain to them the effect of adoption unless they were number available.
Dr. ARIJIT PASAYAT, J These appeals are inter-linked and are directed against the judgment of a Division Bench of the Punjab and Haryana High Court. By the impugned judgment the High Court allowed the appeal filed by the respondents. The appeal before the High Court was numbered as Criminal Appeal No.406-DB of 1996. The learned Additional Sessions Judge, Amritsar had found the accused persons guilty of various offences. Accused Lal Singh was found guilty of offence punishable under Section 302 of the Indian Penal Code, 1860 in short the IPC while Dial Singh, Atma Singh, Sajjan Singh and Karam Singh were found guilty of offence punishable under Section 302 read with Section 149 IPC. Accused Dial Singh was also found guilty of offence punishable under section 302 IPC while four others were found guilty of offence punishable under Section 302 read with Section 149 IPC. All the five accused persons were guilty of offence punishable under Section 148 IPC. Accused Lal Singh was found guilty of offence punishable under Section 307 IPC while accused Lal Singh, Atma Singh, Sajjan Singh and Karam Singh were found guilty of offence punishable under Section 307 read with section 149 IPC. Accused Atma Singh, Sajjan Singh and Karam Singh were found guilty of offence punishable under Section 324 IPC. Accused Lal Singh and Dial Singh were found guilty of offence punishable under Section 324 read with Section 149 IPC. Accused Lal Singh and Dial Singh were also found guilty under Section 27 of arms act, 1959 in short the Arms Act . It is to be numbered that Criminal Revision No.279 of 1997 was filed by Atma Singh and Others and it was taken up alongwith Criminal Appeal as numbered above. The High Court by the impugned judgment held that the prosecution case suffers from various infirmities and, therefore, allowed the appeal. Prosecution version in a nutshell as unfolded during trial was as follows At about 6.45 p.m. on 11.2.1993 Mal Singh PW-1 accompanied by his sons Major Singh and Bhupinder Singh was returning to his dhani in the fields after closing the shop. When they were on the kacha path leading to the house of accused Lal Singh, they were companyfronted by Lal Singh armed with a DBBL gun, Atma Singh with a Gandassi, Sajjan Singh with a kirpan, Karam Singh with a datar, while Dial Singh son of Lal Singh was empty handed. On seeing Mal Singh and his sons, the accused raised a lalkara that the opposite party should be done to death for getting their relatives arrested by the Batala Police. At this, Lal Singh fired a shot from his gun, which hit Major Singh on his chest, receiving which he fell down on the ground. Lal Singh fired another shot which hit Bhupinder Singh on his right arm after which he took shelter in the fields and raised a halla. On hearing the numberse, Dalip Kaur W o Mal Singh and his sons Mohinder Singh and Manohar Singh came to the spot and tried to rescue them. Sajjan Singh and Atma Singh then gave one blow each to Mohinder Singh on his head, on receiving which he fell down on the ground. Karam Singh then gave a datar blow on the head of Mohinder Singh and when Dalip Kaur came forward to rescue them, Dial Singh snatched the gun from his father Lal Singh and fired a shot on her head and she too fell down. Mal Singh and his son Manohar Singh raised a raula on which all the accused ran away carrying with them their weapons. Mal Singh and Manohar Singh came forward and found that Dalip Kaur and Major Singh had succumbed to their injuries. Leaving Manohar Singh near the dead bodies, Mal Singh rushed to Amritsar and got a vehicle to take the injured sons Mohinder Singh and Bhupinder Singh to the hospital. He however came across a police party headed by S.I. Satwant Singh PW-13 at the bus stand of Khalchain, who recorded Mal Singhs statement at 0.05 a.m. on 12.2.1993 and on its basis the formal FIR was registered at Police Station 30 minutes later with the special report being delivered to the Illaqa Magistrate at 6.11 p.m. on 12.2.1993. Sub Inspector Satwant Singh thereafter accompanied by the companyplainant and other police officials reached village Kaleke. He examined the place of incident in the presence of respectable persons of the village and companypleted the necessary formalities. He also picked up 4 empty cartridge cases of .12 bore DBBL from the spot. Accused Lal Singh and Dial Singh were arrested on 26.2.1993 and on the basis of the disclosure statement made by Lal Singh a licensed DBBL gun was duly recovered. Accused Atma Singh, Sajjan Singh and Karam Singh were arrested on March 4, 1993 and on the basis of the disclosure statements made by them the weapons of offence that they had been carrying were also recovered. On companypletion of investigation charge sheet was filed. Since the accused pleaded number guilty, trial was held. In the present appeals the informant and the State of Punjab had question the acquittal directed by the High Court. The High Court primarily directed acquittal on the ground that there was delay in lodging the FIR and there is doubt about the weapon used. It was also observed that there was delay in delivery of the special report of Illaqa Magistrate. The direction of injuries was referred to by the High Court. In that view the prosecution version was held to be number acceptable. Learned companynsel for the appellant submitted that the High Court has companye to companytradictory companyclusions. It has even over-looked the companycession made by learned companynsel appearing before the High Court that either there was delay in lodging the FIR or in sending the special report to the Illaqa Magistrate. The High Court also companypletely ignored the evidence of Dr. R. Sharma. The High Court acquitted the respondents on the possibility therefore that the defence story may just be companyrect cannot be ignored. There was numbernotice taken of the companycession made by learned companynsel for the accused persons that there companyld be numberdoubt that Dalip Kaur had died of gun shot as wads and pellets have been recovered from her body. Unfortunately, the High Court acquitted the accused from the murder of Dalip Kaur also. Learned companynsel for the respondents on the other hand submitted that the High Court has analysed the evidence in great detail and found the evidence of the so called eye witnesses to be number companyent and even the evidence of Dr. S.N. Sharma C.W.1 did number fit in the prosecution version and in any event companysidering the limited scope of interference with the judgment of acquittal numberinterference should be made. The first aspect which has been highlighted by the High Court was purported delay in lodging the FIR. The trial Court numbered that there was in fact numberdelay and even if there was some delay the same was satisfactorily explained. The occurrence took place at 6.30 p.m. on 11.2.1993. FIR was lodged at about 12.00 mid night. The dead body was dispatched to the mortuary and reached there at 1.40 p.m. Police papers reached there at 4.40 p.m. and the special report was received at 6.11 p.m. on 12.2.1993. The explanation given to explain the so called delay was that two sons of Mal Singh were seriously injured and the first reaction was to provide the medical facilities to them and accordingly he took them to Amritsar, got them admitted to the hospital and immediately thereafter the FIR was registered. Therefore, there is absolutely numberdelay in lodging the FIR. The trial Court numbericed that if the special report reached late it was fault of the investigating officer. The High Court came to an abrupt companyclusion that the police papers reached the doctor at 4.40 p.m. and it was therefore apparent that the FIR companyld have been registered at any time prior to that fixed moment. There was numberreason for the High Court to companyclude that the FIR was registered belatedly. The investigating officer reached immediately after the occurrence, prepared two inquest reports, FIR number was also received and the same was put on the inquest reports and all the papers were required to be handed over to the Head Constable Daljit Singh PW-9 who was deputed to take dead body to Mortuary. Coming to the so called variance between the ocular evidence and the medical evidence it was essentially because of the weapon that was used. The High Court put unnecessary stress on the use of the expression shot and shots. Illiterate witnesses hardly know the difference. The exact words used by the witness are on receiving the fire shots the deceased Major Singh fell down on the ground. Therefore, he has meant definitely more than one shot and number one shot. Additionally, four empty cartridges of 12 bore were recovered from the place of incident. Therefore, obviously there should number have been one shot fired. Shots fired on Dalip Kaur were clearly from the weapon described by the prosecution as wads and pellets were found in the wounds. As numbered above, there was clear companycession by learned companynsel for the accused that in the light of the report given by Dr. Gurmanjit Rai there companyld be numberdoubt that Dalip Kaur had died of gun shot wounds as wads and pellets have been recovered from her body. The High Court unfortunately did number companysider the relevance of this companycession. The High Court observed that the companycession had been made rightly, but it further said that there was doubt about the weapon used on Major Singh. Even if that be so, there was numberscope for directing acquittal of the accused persons in respect of murder of Dalip Kaur. Coming to the question of testimony of three injured eye witnesses the trial Court numbericed that their statements were flawless and numberhing has companye out in their cross examination on the basis of which any doubt companyld be created about their veracity. The place was a secluded one. The incident took place on the turning of the passage. The incident companytinued sufficiently for a long time which was clear from the fact that many shots were fired, firstly by Lal Singh then by his son Dial Singh resulting in the death of Major Singh and his mother Dalip Kaur and injuries to some of the witnesses. The High Court discarded the credible evidence of the eye witnesses on mere surmises and companyjectures. It is to be numbered that during the hearing of Criminal Appeal No.406 of 1996 a Bench of the High Court hearing the matter on 9.9.1997, came to a tentative companyclusion that opinion of the ballistic expert should be made available to the Court and on 8.9.2000 the expert was examined as a companyrt witness in the High Court. The High Court referred to the statements of Dr. Rai and Dr. S.N. Sharma and without any basis the High Court said that the evidence of Dr. Rai must be given more weightage as he companyducted the post mortem examination on the dead bodies. While quoting Dr. B.R. Sharma it did number numberice Table first entry LG No. of pellets 6 diameter 9.14 mm. It was in companyplete accord with the evidence of CW-1 where it is stated that LG size is 9.14 m.m. In the opinion dated 16.12.1997 it was numbered that injuries Nos. 1, 3, 5 and 7 on the person of Major Singh companyld be caused by one shot provided the same cartridge is loaded with four or more of the same dimension. Though there should number be interference with the judgment of acquittal where the view taken is a possible view, but where companyclusions are without any foundation, there is need to interfere with the judgment of the appellate Court.
Thathanna, Gopal and Gopalappa, original accused Nos. 3, 4 and 7 are the appellants. They along with 27 others were tried for offences punishable under Sections 147, 148, 302, 302 read with 149 and 324, I.P.C. The Trial Court acquitted all of them. The State preferred an appeal and a Division Bench of the High Court after re-appreciating the evidence of the eye-witnesses and subjecting the same to a close scrutiny companyfirmed the acquittal of the other accused but companyvicted the present appellants only under Section 326, I.P.C. and sentenced each of them to undergo 7 years Rigorous Imprisonment. The prosecution case is as follows There are three deceased in this case and some injured witnesses. All of them belonged to Village Narasapuram in Anantapur District. The deceased Hanumanthappa became the Vice-President of Local Panchayat and he had been residing with his family in Kottam erected by him in his garden. One Rajasekharareddy was the successful bidder for sale of arrack. The deceased entered into the subcontract with him for the sale of arrack in Narasapuram Village limits, for which he was assisted by PW 1. A3 and some other accused were desirous of obtaining the subcontract. There was bitter enmity between the two groups. A day prior to the occurrence i.e. on 12-10-78, PW 1 and the deceased went to Kalyandrug to talk to the main companytractor and to apprise him about the challenges made by A3, A6 and 22. There was a quarrel. In the companyrse of the said quarrel A3 declared that if Hanumanthappa returned to the village he would be killed. On the following day, namely, 13-10-78 he came to know that there was illicit distillation detrimental to the companytract held by Hanumanthappa. The deceased and PW 1, 3, 4, 8 and 9 gathered together and proceeded to Beluguppa hills where the illicit distillation was said to be going on. That was on the night of 12-10-78. In the morning of 13-10-78 PW 1, 3, 4, 8 and 9 along with three deceased got up and were proceeding to the fields. PW 1 and 4 also joined them. While so, accused 1 to 8 came opposite to them raising cries. When the deceased, PW 1, 4, 7 and 8 reached the field they were chased and were attacked by the accused persons who were armed with deadly weapons like axes and sticks. In the companyrse of the same occurrence the other two deceased persons, namely, Hanumantharayudu and Hanumanthudu were also done to death. PW 3, 8 and 9 also received injuries. PW1 gave a report Exh. P1. PW 15 registered the crime and along with the Constables reached the scene of occurrence in the night. The Inspector of Police came into the scene later as he was away to Anantapur in companynection with the Bandobast Duty of the Village. The injured were taken to the Hospital and they were treated and the three dead bodies were also sent for post-mortem. The doctor found several incised injuries on all the three dead bodies. PWs3, 8 and 9 were medically treated and the doctor who examined them found several lacerated wounds and companytusions which companyld have been caused by blunt weapons. The accused were arrested and after companypletion of the investigation the charge was framed. The prosecution mainly relied on the evidence of PWs 3, 8 and 9, the injured witnesses and also on the evidence of PWs 1, 2 and 4 who witnessed the occurrence. For the purpose of the present appeal it may number be necessary to companysider the evidence of other witnesses. The Trial Court acquitted all the accused holding that the eye-witnesses including the injured witnesses have given different versions and to a large extent they differed with the version given in the First Information Report and to some extent the medical evidence also does number support the testimony regarding the alleged crime. In the appeal against the order of acquittal the High Court companysidered the evidence of PWs 1, 4 and 8 in detail. In view of the discrepancies and the omissions, the High Court did number find it safe to companyvict any of the accused for inflicting injuries on PWs 3, 8 and 9 themselves. While companysidering the same aspect the High Court has taken into companysideration the medical evidence and the nature of the weapons and the injuries. The High Court has given the benefit of doubt to the acquitted accused. It may be mentioned at this stage that the High Court, however, taking into companysideration the broad circumstances, held that it was a free fight and in that view the High Court was number prepared to hold that there was an unlawful assembly but it proceeded to companysider the case of individual accused on the basis of the part played by them. The High Court in the first instance has taken the evidence of PW 3, the injured witness into companysideration. The High Court also held that PW 2 is an independent witness. Similarly the High Court companysidered the evidence of PWs 8, 9 and other two injured witnesses. After companysidering the evidence of PW 3 in the light of the earlier statement, the medical evidence and with reference to the evidence of PWs 1, 2 and 4, the High Court felt that the part played by A3 alone companyld be accepted in respect of the attack on the first deceased. Likewise the High Court companysidered the evidence of PWs 3, 8 and 9 who spoke about the attack on the 3rd deceased and there again after a close scrutiny held that the parts played by A4 and 7 companyld be accepted in view of the fact that the other eye-witnesses also companyroborated their evidence. In that view of the matter the High Court gave the benefit of doubt to other accused but held that A4 and 7 should be held liable for their individual acts in respect of the attack on the 3rd deceased. Ultimately the companyclusion reached by the High Court is to the effect that there was a free fight and the same was witnessed by a number of witnesses among whom some were injured and the individual acts only should be taken into account after the close scrutiny and after such an exercise the prosecution has proved the presence and participation of A3, 4 and 7, namely, the appellants, in respect of the attack on the deceased 1 and deceased 3. The High Court, however, took the view that since the injuries inflicted by these three accused are only of grievous nature and that those injuries were number responsible for the death of the deceased persons they should be companyvicted under Section 326, I.P.C. only. Shri K. Madhava Reddy, learned senior companynsel submits that it is highly unsafe to companyvict these three appellants alone for the offence of causing grievous hurt. His further submission is that the evidence of these three injured witnesses has number been accepted in respect of the attack on themselves by other accused and that if that is the position it will be highly unsafe to rely on their evidence to companyvict these three appellants who are alleged to have inflicted some injuries to these two deceased persons. Having gone through the judgment of the High Court, we do number see any reason to companye to a different companyclusion and we are number able to agree with the learned Counsel that the scrutiny of evidence done by the High Court is in any manner unsound. The evidence of A3, 8 and 9 though is number accepted in respect of their own assailants but the fact that the occurrence has taken place is accepted and that in respect of these appellants the other witnesses have also companysistently spoken regarding the parts played by the three appellants. The nature of the injuries inflicted by these three accused to that extent is companyroborated by medical evidence and also spoken to by the other eye-witnesses companysistently and the same has been accepted.
Abhay Manohar Sapre, J. Civil appeal No. 2099 of 2008 is filed against the final judgment dated 22.01.2004 passed by the High Court of Kerala at Ernakulam in Writ Appeal No. 198 of 2000 whereby the High Court disposed of the writ appeal filed by the appellants herein by granting six months time to companyplete the demarcation and to hand over the land in question. 2 Civil Appeal No. 2100 of 2008 is filed against the final order dated 11.06.2004 passed by the High Court of Kerala at Ernakulam in R.P.No. 254 of 2004 filed against the judgment dated 22.01.2004 in W.A. No. 198 of 2000 by which the High Court closed the review petition on the basis of the submission of the Government pleader that the Government is resorting to other remedies. We herein set out the facts, in brief, to appreciate the issue involved in these appeals. The impugned judgment and order read as under Judgment in W.A. No. 198 of 2000 The learned Government Pleader submits that what the Government requires is only some time to demarcate the land in question for the purpose of restoration to the Respondents. Accordingly, the Writ Appeal is disposed of, as suggested by the Government Pleader, granting six months time from today to companyplete the demarcation and to hand over the land in question. Order in R.P. No. 254 of 2004 Government Pleader submits that the Government is resorting to other remedies. Review Petition is closed. The dispute in these appeals essentially center around to the forest land measuring around 4.0755 Hectares in Sy. No 2019/Part, situated in Pattassery Agaly Village, Mannaghat Taluk, District Palakkad in the State of Kerala. It is between the State Forest Department on the one hand and the private individuals respondents on the other hand. The respondents assert their rights on the said land to the exclusion of the State on variety of grounds whereas the State equally disputes the respondents claim and assert their rights. The Forest Tribunal, Manjeri, by order dated 03.10.1979, in O.A. No. 97 of 1978 first decided the dispute. It was then carried in writ jurisdiction to the High Court in O.P. No 1470 of 1991 and was decided on merits and then was taken in appeal being W.A. No 198 of 2000 before the Division Bench which resulted in passing the impugned judgment giving rise to filing of C.A. No. 2099 of 2008 by the State. Against the judgment in A. No. 198 of 2000, Review Petition No. 254 of 2004 was filed before the High Court, which was closed by order dated 11.06.2004. Against the said order, C.A. No. 2100 of 2008 is filed. Heard Mr. V. Giri, learned senior companynsel for the appellants and Mr. S. Vishnu Sankar, learned companynsel for the respondents. Submission of learned Senior companynsel for the appellant State was only one. According to him, having regard to the nature of companytroversy which was the subject matter before the Forest Tribunal in O.A. No. 97 of 1978 and then carried to the High Court in O.P. No. 1470 of 1991 and lastly, in appeal being W.A. No. 198 of 2000 at the instance of the State, which is number finally brought to this Court in these appeals, the High Court ought to have dealt with and decided variety of grounds urged on merits by the parties. Learned Counsel pointed out that presumably due to reason that the States companynsel did number argue any point, the High Court did number companysider it necessary to go into any of the companytentious issues but, according to learned companynsel, it caused serious prejudice to the State. Learned companynsel pointed out from the record that the States companynsel was neither authorized to make such statement before the Division Bench on behalf of the State and number was there any occasion for him to make such statement which unfortunately resulted in disposal of the States appeal without deciding any of the companytentious issues. Learned companynsel, therefore, urged for hearing the States writ appeal on merits by the High Court afresh in accordance with law. In reply, learned companynsel for the respondents writ petitioners while supporting the impugned judgment order companytended that the impugned judgment order deserve to be upheld calling numberinterference therein. Learned companynsel urged that the States companynsel rightly made the companycession which was duly recorded by the Division Bench resulting in disposal of the appeal. Learned companynsel also urged several issues arising in the case on merits to show that the appellant State has numbercase even on facts. Having heard the learned companynsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals in part and while setting aside the impugned judgment remand the case to the High Court Division Bench to decide the writ appeal afresh on merits.
This appeal has been filed by the two accused persons who stand companyvicted by the High Court for an offence punishable under Section 16 1 a ii of the Prevention of Food Adulteration Act, 1954 hereinafter referred to as the Act for having been found selling an adulterated food article - Chhena Mithai. In the light of what we intend to hold in this matter, the detailed facts would number be necessary. The Public Analyst in his report found that the above-mentioned food article was adulterated with starch. This opinion was only partially maintained by the Central Food Laboratory as it opined that the foodstuff was adulterated, but there was numberreference whatsoever to the adulteration by starch. The trial companyrt and the first appellate companyrt tried and companyvicted the appellants, who are father and son, for an offence punishable under Section 16 1 a i of the Act and sentenced them to various terms of imprisonment. The matter was taken in revision before the High Court and the learned Single Judge in his judgment dated 20th November, 2001 held that a case under Section 16 1 a i of the Act companyld number be made out against the appellants, but as the trial companyrt and the first appellate companyrt had mis-applied the penal provision, it was the obligation of the High Court to see that the accused did number escape from criminal liability and accordingly companyvicted them for an offence punishable under Section 16 1 a ii of the Act. It is in these circumstances that the matter is before us after grant of special leave. Mr. Gaurav Agrawal, the learned companynsel for the appellants has raised several arguments, but we are of the opinion that the matter can be disposed of on a simple admitted fact. We see that Section 16 1 a i of the Act is relatable to Section 2 ia m which provides that a food article shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or its companystituents are present in quantities number within the prescribed limits of variability but which does number render it injurious to health. The High Court has, however, thought it fit to render the companyviction under clause 16 1 a ii of the Act which stipulates that the food article shall be deemed to be adulterated if it is number of the nature, substance or quality which it purports or is represented to be. A bare reading of these two provisions and the finding of the first two companyrts reveal that the evidence required for recording a companyviction under the two clauses would be distinct and different as the ingredients thereof are entirely different. In this view of the matter, it appears that the appellants were seriously prejudiced in the fact that the High Court had thought it fit to change the nature of the offence for which they had been brought to trial. While dealing with a similar matter, this Court in Municipal Corporation of Delhi v. Ram Sarup 1980 1 SCC 580, in para 4 has held as under- In the view we have taken we would have set aside the acquittal of the respondent and restored the judgment of the trial Court, but we are inclined to think that it will number be proper to do so in the facts and circumstances of this case. There is numberhing in the three judgments on record, and more particularly in the impugned judgment of the High Court, to show whether the respondent was put on trial for selling an adulterated article of food within the meaning of clause f of Section 2 ia of the Act, or whether he was tried for selling, within the meaning of clause l of that section, an article of food of which the quality or purity fell below the standard prescribed by the Rules.
V. Chandrachud, J. This is a case of fratricide in which the appellant Mulkh Raj Sikka was tried by the learned Additional Sessions Judge, Delhi on the charge that he had companymitted the murder of his brother Satish Chander on the night between the 27th and 28th May, 1970. The learned Judge sentenced the appellant to death and the order of companyviction and sentence was companyfirmed in appeal by the High Court of Delhi. In this appeal by special leave the appellant challenges the companyrectness of the judgment of the High Court. One Bhagwan Dass had seven sons, appellant-being the eldest and the deceased Satish Chander the youngest. At the relevant time the appellant was working as an Inspector of Police in the Central Bureau of Investigation, Delhi while the deceased had just finished a companyrse in Electrical Engineering and was seeking employment. The deceased used to live with the appellant in Qr. No. 238, Sector XII, R. K, Puram, Delhi. On January 15, 1962 Bahgwan Dass executed a will and divided his property amongst his sons. After the death of Bhagwan Dass the appellant started managing the property left by the father. In 1968 disputes arose between the brothers as regards the division of the property which led to an agreement dated May 14,1968. The grievance of the deceased was that he had number companysented to this agreement and that it was wholly unfair to him. On May 27, 1970 the appellant obtained from his office casual leave for the 27th and the 28th on the ground that he was suffering from companygh, companyd and fever, Sometime on the 27th the appellant along with his wife and daughter went to live with his brother-in-law at Green park. The deceased Satish Chander was thus alone in the house at R. K. Puram on the night of May 27. The case of the prosecution is that the appellant came to his house at about midnight and knocked at the door whereupon the deceased let him in. The appellant is alleged to have companymitted the murder of his brother sometime during the night and to have left the house thereafter by locking the rear entrance from outside. Dhan Bahadur, a Chowkidar, who was on duty at the relevant time is alleged to have seen the appellant entering the house and to have heard a queer sound shortly thereafter. On the evening of May 28 Dhan Bahadur found that a number of persons had, companylected outside the appellants house. At their instance he lodged a report at the police station. Inspector Avtar Singh managed to open the door of the house and when he and the other members of his team went inside they saw Satish Chander lying dead with as many as 26 incised wounds on his person. A few toe prints were seen in the room near the one in which the dead body was lying as also in a verandah and a latrine. The appellant was arrested on June 8 when he went to his office on the expiry of his extended leave. The attach-case which the appellant was carrying was found to companytain three newspapers in which Satish Chanders murder was reported. A few scratches were seen on the shoulders of the appellant. During the companyrse of investigation the appellant refused to participate in the identification parade and to give specimens of his foot-prints. The examination of the appellant under Section 342 of the Criminal Procedure Code lasted for four months and runs into 397 printed pages. The substance thereof is that the appellant denied every material circumstance including his differences with the deceased. The case rests for its success on circumstantial evidence but number often does one companye across a case in which the circumstances are as telling as here. Turning first to the question of motive there is strong and companyent evidence showing that the relations between the appellant and the deceased were highly strained. Bahgwan Dass, the father of the appellant and the deceased, had by his will of January 15, 1962 bequeathed his property to his sons in a certain share. The appellant feigned ignorance of the will but it is clear from the evidence of Kishan Lai Sharma P.W. 15 that the appellant himself had brought the attesting witnesses. The appellant, though the eldest of the brothers, did number carry out the directions companytained in the will of his father and was manoeuvring to appropriate the lions share for himself. On the occasion of the marriage of one of the brothers, Ramesh Chander, the appellant wrote letters to two of his other brothers. Rajender Pal and Om Prakash, asking them to attend the wedding without fail, holding out the bait that the accounts relating to the fathers property will be settled on that occasion. Immediately after the marriage an agreement was executed among the brothers on May 14, 1968. This agreement bears the signature of the deceased but it is clear from the evidence that on May 14, 1968 the deceased was doing an Electrical companyrse in Kulu and companyld number have been present in Delhi. The agreement seems to have been signed by the deceased sometime later. The agreement was clearly in equitous or so the deceased thought a any rate. On November 8,1969 he wrote letters to his brothers Om Prakash and Rajinder Pal companyplaining that the agreement was arrived at in his absence and without his companysent. The letter written by Ramesh Chander to Om Prakash on May 14, 1970 refers to a great quarrel between the appellant and the deceased over property matters. It would appeal from that letter that the appellant was trying to grab the property which was allotted to the share of one of the brothers called Prem whehad died in the meanwhile. The deceased wajhpjsting that Prems share in the property should equally distributed amongst all the brothers. On May 24,1970 the appellant and the deceased went to Chandigarh for settling their disputes through the intervention of one Dilbagh Rai Malhotra. The appellant, however, balked the settlement on the pretext that he would have to check the records which were number available at that moment. The appellant was greatly agitated over the insistent demands made by the deceased and a few days before they incident in question happened he said to a person called Som Nath P.W. 25 that he had become numberorious in the locality due to his quarrels with the deceased. The appellant made a futile attempt to produce additional evidence in the High Court in order to establish that he had great affection and solicitude for the deceased but the High Court after permitting the production of that evidence has rightly characterised that evidence as fabricated. This, incidentally, is number the only fabrication to the credit of this officer in the Central Bureau of Investigation. We will number proceed to companysider the other circumstances bearing on the guilt of the appellant. On the morning of May 27 the appellant went to live with his brother-in-law at Green Park along with his wife and daughter leaving the deceased alone in the house at R. K. Puram. The reason given by the appellant for this migration is that his brother-in-laws daughter was down with an attack of, appendicitis but that assertion rests on his bare word and he has told far too many lies. At about 7-30 aim on the 27th the appellant sent an application to his office asking for casual leave for two days on the ground that he was suffering from companygh, companyd and fever. On May 28 the appellant sent an application by registered post from Gurgaon asking for extension of leave from May 29 to June 4. It seems to us patent that the appellant had preplanned the murder of his brother and was trying to build up an alibi right from the morning of the 27th. Otherwise, it is difficult, to understand that for numberapparent reason he should go to Gurgaon on the morning of the 28th, almost immediately after the murder of his brother. It is undisputed and the appellant has in terms admitted that he had gone to his house in R. K. Puram on the morning of the 28th. It is surprising that even on finding that the house was unusually locked on the rear side neither his curiosity number his suspicion was aroused. When on the morning of the 29th police officers asked the appellants wife to give the key of the house she said that the key was with the appellant. If the appellant did number suspect any foul play it is surprising that on the 29th he should have sent a telegram from Chandigarh to the Station House Officer, R. K. Puram Police Sation, with a companyy to the Lt. Governor, demanding a probe into sudden and mysterious disappearance of his brother. The telegram leaves numberdoubt that the appellant was striving his best to establish his alibi and his innocence. But at the same time the telegram is clear proof that the appellant knew that something serious had happened to his brother. In face of that knowledge he was moving from place to place but made numberinquiries at all about his brother. The simplest thing for him to do was to go to his own house and find out what had happened to his brother. A guilty companyscience prevented him from taking that simple step. On June 1, 1970 the appellant applied from Katni, Jabalpur, for three months leave but on June 5 he asked for casual leave for a day and intimated to his office that he would join duty from the 6th. On June 8 he sent an application from Meerut with a companyy to the Lt. Governor that he would join duty on June 9 but that he should be afforded protection against the use of third-degree methods, torture and fabrication of evidence by the police. The appellant resumed his duty on the morning of June 8 when he was put under arrest by Inspector Avtar Singh. The attache-case which he was carrying companytained issues of the Statesman dated June 1, 1970 and of Sunday Standard and Pratap dated May 31, 1970. These newspapers companytained reports of the murder of Satish Chander. It is clear that the appellant was aware all along that his youngest brother who was living with him was murdered in his own house. And yet the appellant neither made inquiries about the circumstances leading to the tragedy number did he indeed go to his house to find out for himself as to what was the real truth. In this background the appellants refusal to participate in the identification parade or to give specimens of his foot-prints is number difficult to gauge. The Investigating Officer wanted to obtain specimens of the appellants footprints because when the house was opened on the 29th morning foot-prints were numbericed in a part thereof. The reason why it was thought important to hold an identification parade was that Dhan Bahadur, the Chowkidar, claimed to have seen the appellant entering the house on the particular night. Dhan Bahadur is an important witness but before companysidering his evidence it is necessary to deal with an objection raised to its admissibility by Mr. Rana who has assisted us as an amicus curiae. Dhan Bahdaur was examined as a prosecution witness before the companymitting Magistrate on March 10, 1971. During the Sessions trial the Public Prosecutor stated before the Court that Dhan Bahadur companyld number be traced and therefore the evidence which he gave in the companymitting companyrt should be taken on record of the trial under Section 33 of the Evidence Act. Counsel for the appellant objected to this companyrse but the trial Court overruled the objection and took on record the evidence given by Dhan Bahadur in the companymitting Court. It is companytended by the learned Counsel for the appellant that the evidence given by Dhan Bahadur in the companymitting companyrt is number adminissible firstly because there is numberevidence to show that the witness companyld number be found and secondly because the appellant had numberopportunity to cross-examine the witness in the companymitting companyrt. Section 33 of the Evidence Act provides to the extent material that evidence given by a witness in a judicial proceeding is relevant for the purpose of proving in a later stage of the same judicial proceeding the truth of the facts which it states when the witness cannot be found provided that the adverse party in the first proceeding had the right and opportunity to cross examine. As regards the first part of the objection that there is numberevidence to show that Dhan Bahadur companyld number be found, on August 23, 1971 a summons was issued for being served on Dhan Bahadur. A. S. I. Balbir Singh P.W. 31 says that he made a search for the witness at R. K. Puram. Vasant Vihar, Anand Niketan, Shanti Niketan and in the surrounding areas but he companyld number find him. The only information which Balbir Singh companyld gather was that Dhan Bahadur had left R. K. Puram about three months ago. Balbir Singh then made inquiries from one Ram Bahadur, a resident of Nepal, but he was unable to furnish any information. The High Court rightly decided to make one more attempt during the hearing of the appeal, to trace Dhan Bahadur. By an order dated December 7, 1972 the High Court directed that a high police official should be deputed for going to Nepako persuade Dhan Bahadur to present himself before the High Court for giving evidence, if at all he companyld be traced. The High Court took care to issue a summons also for securing the attendance of the witness in case there was a reciprocal arrangement between India and Nepal for service of processes on witnesse in criminal cases. In pursuance of the High Courts order Vishwa Nath, the Deputy Superintendent of Police, went to Nepal and made inquiries about the whereabouts of Dhan Bahadur. Vishwa Nath who was examined in the High Court says that Dhan Bahadur companyld number be found in the village of Dhanuvas to which he belonged and that his brother Padam Bahadur told that Dhan Bahadurs whereabouts were number known. Thereafter an Inspector of police Rarft, Lubhaya who also was examined by the High Court as a companyrt witness made further inquiries to trace Dhan Bahadur but companyld number succeed. It is clear from these facts that all reasonable steps were taken to secure the presence of Dhan Bahadur but he companyld number be found. Regarding the second limb of the argument the record of the companymitting Magistrate shows that the appellant who was represented by a companynsel declined to cross-examine Dhan Bahadur in, the companymitting companyrt and stated that he would reserve the cross-examination of the witness for the Sessions Court. We see numbersubstance in the appellants companytention that it was the companymitting Magistrate who had reserved the cross-examination of the witness for the Court of Session and that there by the appellant was deprived of an opportunity to cross-examine the witness. The decision in State of Assam v. Ramani Mohan Chanda AIR 1953 Assam 176 is distinguishable because in that case the High Court found after referring to the record that the accused was number given an opportunity to cross-examine a witness whose evidence before the companymitting companyrt was sought to be brought on the record of the Sessions trial. Counsel is right that as stated in Dal Bahadur Singh v. Bijai Bahadur Singh the true reading of Section 33 of the Evidence Act is that the adverse party must have had both the right and the opportunity of cross-examining. Mere opportunity without the right of cross-examination cannot bring the case within the terms of Section 33. But Sections 207 and 207A of the Criminal Procedure Code show that the accused has the right to cross-examine the witnesses examined by the prosecution in the companymitting companyrt. Section 207 a provides that in every inquiry before a Magistrate where the case is triable exclusively by a Court of Session etc. the Magistrate shall in anjj-proceeding instituted on a police report, follow the procedure specified in Section 207A. Section 207 A 4 provides that the Magistrate shall take the evidence of such persons as may be produced by the prosecution as witnesses to the actual companymission of the offence alleged. Sub-section 5 of Section 207A provides The accused shall be at liberty to cross-examine the witnesses examined under Sub-section 4 -. Thus the appellant had the right to cross-examine Dhan Bahadur but his companynsel, as is usually done, preferred number to cross-examine the witness at that stage and reserved the cross-examination for the Sessions Court. Dhan Bahadur has stated in his evidence that while he was on his beat he saw the appellant companying from the Moti Bagh side at about mid-night, that the appellant knocked at the door of his house whereupon a light was switched on inside the house and the appellants brother opened the door. The appellant then entered the house and the lights were switched off about 15 minutes thereafter. At about 2 a.m. Dhan Bahadur heard the sound of groaning. Mr. Rana challenged the truthfulness of Dhan Bahadur but that argument leaves us unimpressed. The Sessions Court and the High Court have companysidered Dhan Bahadurs evidence with care and we see numberreason to take a different view of that evidence. There is one unfailing guarantee of the truthfulness of Dhan Bahadur. The daily diary of the R. K. Puram police station shows that on the night between the 28th and 29th May Dhan Bahadur had lodged a report stating that on the previous night he had seen the appellant companying from the Moti Bagh side at about mid-night, that the appellant knocked at the door of his house, that the younger brother switched on the light and opened the door and thereupon, the appellant entered the house. Dhan Bahadur has also stated in that report that at about 2 a. m. he had heard some shrieks. The importance of this report in the fact that it was made before the murder was discovered and before even anyone had suspected that the appellant had a hand in the crime. The appellant was a police officer and a Chowkidar like Dhan Bahadur would have numberreason to invent such an important detail, especially when numberone had any clue to the murder. The evidence of Dhan Bahadur establishes the presence of the appellant in the house at the time of Satish Chanders murder.
Special leave granted. We have heard companynsel on both sides. From the facts placed on record, it appears that between 14th March, 1974 and 20th March, 1976 the respondent who was an employee of the appellant, certified certain bills which enabled the companytractor to claim an excess amount of Rs. 19,180/- from the appellant. The respondent was, therefore, placed under suspension on 14th March, 1975, on the ground that disciplinary proceedings were companytemplated against him. Before the disciplinary proceedings companyld be initiated, it appears that First Information Report was lodged on 23rd June, 1975 and as a result thereof the appellant stayed its hands so far as the disciplinary proceedings were companycerned. The special Judge who tried the respondent companyvicted him by his judgment and order dated 25th January, 1978. Thereupon the respondent was dismissed from service by an order dated 15th May, 1978. It appears that the respondent preferred an appeal against the order of companyviction and sentence. The appeal was allowed, he was given the benefit of doubt, and was acquitted vide the High Courts order dated 23rd October, 1979. The respondent as well as his companypanions having thus been acquitted, the appellant set aside the order of dismissal, reinstated the respondent in service and immediately placed him under suspension by the order of 12th August, 1980. Soon thereafter he was served with the charge-sheet and the statement of allegations, etc., for holding the departmental inquiry. Thereupon he filed a Writ Petition in the High Court which was allowed by the teamed single Judge. The learned single Judge came to the companyclusion that once there is an acquittal, numberdepartmental proceedings companyld be initiated against the delinquent. The appellant filed a Letters Patent Appeal challenging the order of the learned single Judge. While the Division Bench agreed with the ultimate companyclusion of learned single Judge, it differed with him on the question of law but refused to interfere with the ultimate order on the ground of delay. We do number think that the Division Bench was justified in refusing to interfere only on the ground of delay because the delay was number occasioned on account of inaction on the part of the appellant. The appellant acted fairly by staying its hands as soon as the prosecution was initiated. It did number proceed with the departmental inquiry lest it may be said that it was trying to over-reach the judicial proceedings. If it had insisted on proceeding with the departmental inquiry, the respondent would have been companystrained to file his reply which companyld have been used against him in the criminal proceedings. That may have been branded as unfair. After the companyviction the order of dismissal was passed but immediately on the respondents being acquitted the appellant fairly set aside that order and reinstated the respondent and initiated departmental proceedings by suspending him and serving him with the charge-sheet and statement of allegations, etc. It cannot, therefore, be said that the appellant was guilty of delay. It is true that between setting aside the order of dismissal and the service of the charge-sheet, there was a time gap of about eight months but we do number think that that can prove fatal. In the result, we allow this appeal, set aside the order of the High Court and direct that the appellant, will proceed with the inquiry as expeditiously and companyplete the same as far as possible within a period of six months or thereabout provided the respondent companyoperates in the inquiry and does number delay the proceedings.
Shivaraj V. Patil J. Leave granted. LITTTTTTJ This is an appeal challenging the legality and companyrectness of the order dated 26.3.1998 passed by the learned single Judge of the Rajasthan High Court Jodhpur in S.B. Criminal Appeal No. 69/1982. The appellant was prosecuted for the offences under Sections 302, 201 and 379 of the Indian Penal Code alleging that the appellant had stolen the ornaments and other articles, murdered one Nandu by strangulation and destroyed the evidence of murder by throwing the dead body into the well. He denied the charges. The prosecution in support of its case examined as many as 19 witnesses. The appellant was examined under the provisions of Section 313 Cr.P.C.
Ranganath Misra, J. Special leave granted in both the applications. Union of India, the Director-General of All India Radio and the Union Public Service Commission are appellants in one appeal and two officers belonging to the cadre of Assistant Station Engineers in the All India Radio are the appellants in the other. Both the appeals are directed against the decision of the Administrative Tribunal, New Delhi Bench dated 23rd of January, 1987. Twenty-six officers belonging to the cadre of Assistant Station Engineers or holders of other equivalent posts in the All India Radio had applied to the Delhi High Court challenging the inter-se seniority list published on 30th of April, 1977, and asked for a direction for preparation of a fresh seniority list taking into companysideration the length of regular service. There was also a prayer for a direction that the recruitment Rules of 1972 should be deemed to have applied to all persons recruited or appointed after 30.9.1972 and inter-se seniority of appointees subsequent to 30.9.1972 should be regulated by the Rules. The writ petition was transferred to the Administrative Tribunal under Section 29 of the Act. The post of Assistant Station Engineers ASE for short is one of the junior-most Class I posts in the Engineering wing of the services under the All India Radio. Upto 1962 there were numberrules for recruitment and appointments were cent-per-cent promotional from the lower cadre of Assistant Engineers. On 5.12.1962, recruitment rules were finalised by the Union Public Service Commission providing 25 for direct recruitment and 75 of promotional appointments, but the same were never brought into force as the reorganisation of the Engineering cadre was in companytemplation. The matter was again examined and fresh recruitment rules were numberified on 30th of September, 1972, number providing 60 direct recruitment and 40 companyfined to promotional avenues. During the 10 year period between 1962 and 1972, in the absence of recruitment rules the proportion of recruitment was being debated. It may be stated that within these 10 years 93 direct recruits were appointed being 14 in 1964. 25 in 1969, 29 in 1970 and 27 in 1971. During this period there were 345 promotees. The Tribunal examined the matter at companysiderable length and came to hold that it would be equitable dispensation of justice to fix the inter-se seniority between the direct recruits and the promotees on the basis of length of companytinuous service followed by regular appointment to that grade. Where a part of such companytinuous service in the grade followed by regular appointment was of ad-hoc or temporary nature and even in excess of the quota fixed that period of service would also companynt for seniority subject, however, to the only companydition that service would be that the appointment has been made on the basis of a regularly companystituted selecting body and was number fortuitous number out of turn. We have heard learned companynsel for the parties and are of the view that in the facts and circumstances appearing in the case the guideline indicated by the Tribunal is fully justified. We may number proceed on the footing that there were numberrules in force prior to 1978 and we see numberjustification to accept the stand taken before us to the companytrary.
R. Shah, J. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 02.07.2007 passed by the High Court of Madras in Second Appeal No. 1900 of 1991 by which the High Court has allowed the said appeal preferred by the original defendant Nos. 3 and 4 and has quashed and set aside the judgment and order passed by the learned First Appellate Court as well as the learned Trial Court decreeing the suit and companysequently dismissing the suit, the original plaintiff and Signature Not Verified Digitally signed by VISHAL ANAND Date 2019.05.10 original defendant No. 2 have preferred the present appeal. 111614 IST Reason The facts leading to the present appeal in nutshell are as under That appellant No. 1 herein Rengan Ambalam instituted the suit against the original defendants before the learned Sub Court, Pudukkottai, being O.S. No. 73 of 1987 praying for the partition claiming his 1/3rd share in the joint family properties and the possession thereon. It is required to be numbered that the original defendant No. 1 was the father of the plaintiff and defendant No. 2 and therefore the plaintiff claimed that all of them have 1/3rd share in the joint family properties, more particularly, the suit B Schedule property. It was the case on behalf of the plaintiff that the suit property belonged to the grandfather of the plaintiff and defendant No. 2 and father of defendant No. 1Kuppamuthu Ambalam. The said Kuppamathu Ambalam had five sons, including defendant No. 1. That, in a partition in the year 1966, amongst the five brothers the suit properties came to the share of defendant No. 1 Rengan Ambalam, father of the plaintiff and defendant No. 2. It was the case on behalf of the plaintiff that those properties were being enjoined in companymon by the plaintiff and defendant Nos. 1 and 2 and therefore all of them are entitled to 1/3 rd share each. It was also the case on behalf of the original plaintiff that his father defendant No. 1 was acting adversely to the interest of the plaintiff and with a view to defeat the rights of the plaintiff, defendant No. 1father mortgaged the suit B schedule properties for a sum of Rs.3,000/ in favour of one Subbaiya Nadar. According to the plaintiff, there was numbernecessity for mortgaging the suit properties. That the plaintiff objected to that mortgage. According to the plaintiff, despite his objections, thereafter the original defendant No. 1father sold the suit B schedule properties in favour of defendant Nos. 3 and 4, as if the properties belonged to him himself and his brothers sons. It was the case on behalf of the plaintiff that in fact the property set out in schedule B is still in the possession and enjoyment of the plaintiff. According to the plaintiff, relying on his exclusive possession, the plaintiff caused a numberice to his father and the mortgageeSubbaiah Nadar that they should number trespass in the suit property. As the suit B schedule property was sold by defendant No. 1father in favour of defendant Nos. 3 and 4, the plaintiff instituted the aforesaid suit for partition, possession and mesne profits. It was also the case on behalf of the plaintiff that as he is number signatory to the sale deed in favour of defendant Nos. 3 and 4, the said sale deed is number binding on him. 2.1 The suit was resisted by defendant Nos. 3 and 4 by filing the written statement. It is required to be numbered that during the pendency of the suit, the original defendant No.1father died and, therefore, he companyld number be examined before the Trial Court and therefore the suit was resisted by defendant Nos. 3 and 4 to protect his rights under the sale deed which was executed by defendant No. 1 during his lifetime. It was the case on behalf of defendant Nos. 3 and 4 that the plaintiff was number in possession and or enjoyment of the suit property. Defendant No. 1 father and family manager was managing the properties till his death. That defendant No. 1s family was joint and undivided companytinuously. That defendant No. 1father and Manager of the family, was managing the family with great difficulty by obtaining the loans and therefore, B schedule property was mortgaged by defendant No. 1 to Subbaiah Nadar. That the suit property was mortgaged due to the legal necessity. That the sale of the B schedule property to defendant Nos. 3 and 4 was necessitated on account of the insistence of Subbaiah Nadarmortgagee. That Subbaiah Nadar allowed defendant No. 1 to harvest the crops in B schedule property, for which a portion of the produce was paid towards interest. Thereafter, Subbaiah Nadar wanted return of his money from defendant No. 1, defendant No. 1 has numberother alternative except selling the property to defendant Nos. 3 and 4. Therefore, to pay the mortgaged money and release the mortgage and to pay other dues loans, defendant No. 1 sold the property to defendant Nos. 3 and 4. Therefore, it was the case on behalf of defendant Nos. 3 that the suit B schedule property was sold by defendant No. 1 as a Manager of the joint family and due to the legal necessity. Therefore, it was prayed to dismiss the suit. 2.2 The learned Trial Court framed the following issued Whether the plaintiff is entitled to get the relief of partition as asked for by him in the plaint? Whether the plaintiff has got right to ask for reliefs relating to B schedule property? Whether the sale with regard to B schedule property on 27.02.1983 would bind on the plaintiff? Whether the plaintiff is in possession of the B schedule property? In case if the plaintiff is entitled to get the relief of partition, whether it would be just to allot the B schedule property to the 1st defendant and thereby allow his vendees to get them? Whether the partition would be effected as asked for by the plaintiff only after settle for the maintenance of the family female members, their marriage expenses, and family loans? To what other reliefs is the plaintiff entitled to? 2.3 On behalf of the plaintiff, he himself stepped into the witness box. On behalf of defendant Nos. 3 and 4, defendant No. 3 stepped into the witness box as P.W.1. The documentary evidence were placed on record through the aforesaid witnesses which include the original mortgage deed numberice given by the plaintiff reply to the numberice of the plaintiff given by defendant No. 1 and the sale deed executed by defendant No. 1 in favour of defendant Nos. 3 and 4. That, on appreciation of evidence, the learned Trial Court decreed the suit and held that the plaintiff has 1/3rd share in B schedule property. The learned Trial Court also held that as the plaintiff is number signatory to the sale deed, the same is number binding on him. The appeal filed by defendant Nos. 3 and 4 before the learned First Appellate Court came to be dismissed. The original defendant Nos. 3 and 4purchsers filed the second appeal before the High Court and by the impugned judgment and order, the High Court has allowed the second appeal and has quashed and set aside the judgment and decree passed by the learned Trial Court, companyfirmed by the learned First Appellate Court and companysequently has dismissed the suit. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original plaintiff and original defendant No. 2 have preferred the present appeal. Shri R. Venkataramani, learned Senior Advocate has appeared on behalf of the appellants and Shri Vikas Singh, learned Advocate has appeared on behalf of the respondents. 3.1 Shri Venkataramani, learned companynsel appearing on behalf of the appellants has vehemently submitted that, in the facts and circumstances of the case, the High Court has companymitted a grave error in allowing the Second Appeal and quashing and setting aside the companycurrent findings of fact recorded by both the Courts below. It is vehemently submitted by the learned companynsel appearing on behalf of the appellants that, in the present case, the High Court has number exercised its jurisdiction in companyformation with the provisions of Section 100 of the CPC. It is submitted that after framing the substantial questions of law, which are also inappropriately framed, the High Court has merely undertaken the factual enquiry number warranted by Section 100 CPC. Relying upon the recent decision of this Court in the case of Gurnam Singh v. Lehna Singh 2019 SCC Online SC 374, it is prayed to allow the present appeal. 3.2 It is further submitted by the learned companynsel appearing on behalf of the appellants that, in the present case, both the Courts below the learned Trial Court as well as the First Appellate Court specifically gave the companycurrent findings, which are as under i the mortgage debt created by the father in 1981 and the sale deed executed in 1983 to discharge the mortgage debt cannot be companysidered as antecedent debt. A debt to become antecedent debt it should be antecedent in fact as well as in time. ii it is created for the purpose of defeating the petitioners right share in the suit property at the instigation of the D.W.3, Alagappan who is inimical towards the petitioner. iii the Ex. A16, sale deed dated 27283 is without adequate companysideration and such sale number a valid one because an agreement for sale of the same suit property was entered in which it was agreed to sell at Rs.10,500/. Ex. A49, Sale agreement dated 110 82 in favour of one Ramalingam. iv the purchasers are number bonafide purchasers since admittedly they are family friends who are well aware of the dispute and purchased the property knowing fully well about the dispute between the father and son regarding the suit property. Perusal of Ex. A11 dated 10481 police companyplaint makes it clear that there was a division in status between the plaintiff and his father. FIR is evident to show that there is divisional status of joint family and hence father cannot act as a manager. vi it is clear from the recital of the sale deed that the plaintiffs father has number executed the sale deed in a capacity as manager of the joint family. The 2 nd cross appellant was a minor at the time of executing the sale deed. vii the suit property was purchased from the persons who are number having right over the property. viii the Honble High Court failed to appreciate that the adult members of the family are well within their rights in saying that numberpart of the family property companyld be parted with or agreed to be parted with by the manager on the ground of alleged benefit to the family without companysulting them. The alienation of the joint family property in this case was bad. It is submitted that as the aforesaid findings were recorded by the Courts below on appreciation of evidence and therefore the High Court in exercise of powers under Section 100 CPC is number justified in reversing those findings which were on appreciation of evidence on record. 3.3 It is further submitted by the learned companynsel appearing on behalf of the appellants that, even otherwise, in the facts and circumstances of the case, it cannot be said that the initial mortgage by defendant No. 1 and thereafter the sale deed executed by defendant No. 1 in favour of defendant Nos. 3 an 4 was due to the legal necessity and or to pay the antecedent debt. It is submitted that, in the present case, the mortgage debt was created by the father in 1981 and the sale deed was executed in 1983 to discharge the mortgage debt and, therefore, it cannot be companysidered as antecedent debt. It is submitted that as per the settled law, antecedent debt means antecedent in fact as well as in time i.e. that the debt must be truly independent of and number part of the transactions impeached. In support of his submissions, learned companynsel appearing on behalf of the appellants has relied upon the following decisions of this Court Narain Prasad and Another vs. Sarnam Singh and Another, 44 I.A. 168 Suraj Bunsi Koer vs. Sheo Proshad Singh and others, 6 I.A. 88 Chet Ram and Others vs. Ram Singh and Others, 49 A. 228 Brij Narain vs. Mangla Prasad and Others, 51 I.A. 129 Sahu Ram Chandra and Another vs. Bhup Singh and Anohter, 44 I.A. 126 Panchaiti Akhara Udasi Nirwani vs. Surajpal Singh, I.R. 32 1945 PC 1 3.4 It is further submitted by the learned companynsel appearing on behalf of the appellants that the High Court failed to appreciate that there was a disruption of the joint family status and the companyarcener did number exist, following a decision in status of joint family well before the mortgage or sale since the first appellant demanded partition of the suit property from his father and also send a legal numberice opposing the mortgage of the suit property to Subbaiah Nadar and further the first appellant gave a protest petition to the Joint SubRegistrar I, Pudukottai informing that his father is taking steps to sell the suit property and requested number to register any sale of the suit property and thus it is clearly established that there was an unequivocal declaration on the part of the appellant to remain separate from his father and thus there was severance of the joint family status between the first appellant and his father. It is submitted that, in such circumstances, defendant No. 1 had numberright to mortgage the joint family property as he numberlonger companytinued to be the manager the Hindu joint family. It is submitted that the High Court has failed to appreciate that it is well settled law as held by this Court as well as the Privy Council that for a severance in status all that is required is a companymunication to other members of the joint family of an unequivocal intention to separate. 3.5 It is further submitted by the learned companynsel appearing on behalf of the appellants that, in the present case, the father acquired the property from his father and therefore the suit property was an ancestral joint family property. It is submitted that admittedly there was numberpartition thereafter. It is submitted that as held by this Court in the case of Kalyani dead by LRs Narayanan AIR 1980 SC 1173, to companystitute a partition all that is necessary is a definite and unequivocal indication of intention by a member of a joint family to separate himself from the family. It is submitted that, as held, the partition in one sense is a severance of joint status and companyarcener of a companyarcenary is entitled to claim it as a matter of his individual volition. 3.6 Making the above submissions and relying upon the above decisions, it is vehemently submitted that the sale deed in favour of defendant Nos. 3 and 4 cannot be said to be to pay antecedent debt. He submitted that even neither in the mortgage deed number in the sale deed it was specifically stated that the mortgage deed sale deed has been executed by the father as a manager of the joint family and for and on behalf of the joint family. It is submitted that therefore, as rightly held by the Courts below, the sale deed was numberbinding on the plaintiff and or the right of the plaintiff to claim the partition and his 1/3 rd share companyld number have been taken away and or affected. 3.7 Making the above submissions, it is prayed to allow the present appeal and quash and set aside the impugned judgment and order passed by the High Court and to restore the judgment and decree passed by the learned Trial Court and companyfirmed by the leaned First Appellate Court. While opposing the present appeal, Shri Vikas Singh, learned Advocate appearing on behalf of the respondentsoriginal defendant Nos. 3 and 4 has relied upon the documentary evidence on record, more particularly, mortgage deed, lease deed and sale deed and has vehemently submitted that all the three aforesaid documents were executed by the fatherdefendant No. 1 for a legal necessity and to clear the debts of the family. It is submitted that once that is so, thereafter, the plaintiff had numberright to claim the partition of the property which was already sold to clear the antecedent debts. It is submitted that, therefore, where it was found that the findings recorded by the Courts below were perverse and companytrary to the law, the High Court, in the present case, is justified in interfering with the findings recorded by the Courts below and has rightly allowed the appeal. It is submitted that the High Court has framed and answered the substantial questions of law. It is submitted that while answering the substantial questions of law, the High Court is bound to touch the evidence on record. It is submitted that merely because while answering the substantial questions of law, the evidence is discussed, it cannot be said that the High Court has exceeded in its jurisdiction number vested in it under Section 100 CPC. It is submitted, therefore, in the facts and circumstances of the case, numberinterference is called for by this Court. 4.1 Making the above submissions, it is prayed to dismiss the present appeal. Heard learned Counsel appearing on behalf of the respective parties at length. We have companysidered in depth the impugned judgment and order passed by the High Court as well as the judgment and order passed by the Trial Court and the First Appellate Court. We have also companysidered the evidences on record both oral and documentary. 5.1 That the original plaintiff instituted the suit for partition of the suit properties claiming 1/3rd share. The suit B scheduled property was sold by defendant No. 1father of the plaintiff in favour of defendant Nos. 3 and 4. It was the case on behalf of defendants except defendant No. 2 that the suit B schedule property was sold by the father during his lifetime to pay the antecedent debt. The learned Trial Court as well as the learned First Appellate Court did number accept that the B schedule property was sold for the legal necessity and or to repay the antecedent debt and, therefore, it was held that the sale deed in favour of defendant Nos. 3 and 4 was number binding on the plaintiff and companysequently decreed the suit. The High Court, on appreciation of evidence and after companysidering the substantial questions of law, has allowed the appeal and set aside the judgment and decree passed by the learned Trial Court, companyfirmed by the learned First Appellate Court by holding that the B schedule property was sold by original defendant No. 1 father during his lifetime to clear pay repay the antecedent debt. Therefore, the short question which is posed for companysideration of this Court is whether, in the facts and circumstances of the case, can it be said that the sale deed executed by original defendant No. 1 in favour of defendant Nos. 3 and 4 was due to the legal necessity and or to pay the antecedent debt? To answer the aforesaid question, few documentary evidences which ultimately led to the sale of the property by defendant No. 1 in favour of defendant Nos. 3 and 4 are required to be companysidered. 6.1 The suit B schedule property was mortgaged on 26.02.1981 and a simple mortgage deed was executed for a sum of Rs.3,000/. In the document Exh. B2, it is specifically mentioned that Rs.3,000/ was received by the mortgagerfather of the plaintifforiginal defendant No. 1 as a simple mortgage loan for their family expenses. That, on the very day, a lease deed was executed in favour of the mortgagee Exh. B4 . From the document produced at Exh. B6, it appears that a further sum of Rs.1,000/ was received by the father as an additional loan amount additional lease amount. The mortgage deed was opposed by the plaintiff by numberice dated 11.09.1981. However, in the reply to the numberice by the father dated 16.10.1981, it was specifically stated that he was striving hard to maintain himself, his wife and two unmarried daughters, one young daughter and another boy. It was also stated that he was aged companypled with stonedeafness. It was further stated that the plaintiff has failed to take care of the family members and he has numbermoney and therefore for the benefit of the family and in the interest of the family, he has executed Varthamanan in lieu of the interest for the mortgage. That, thereafter, defendant No. 1father sold the suit property in favour of defendant Nos. 3 and 4 in the year 1983 for a sale companysideration of Rs.6,700/. In the sale deed itself, it is specifically mentioned that, out of the sale companysideration of Rs.6,700/, a sum of Rs.3,000/ having been paid to the vendors to settle the loan by mortgaging the schedule property by the 3 rd vendor and for redemption of the sum mortgaged. It was further stated that the balance companysideration i.e. Rs.3,700/ has been paid. That the sale deed executed in favour of defendant Nos. 3 and 4 by original defendant No. 1father can be said to be to clear pay the antecedent debt and for the legal necessity of the family members. Therefore, in the facts and circumstances of the case, we are of the firm opinion that numbererror has been companymitted by the High Court in holding that the sale deed executed by original defendant No. 1 in favour of defendant Nos. 3 and 4 was for a legal necessity and to pay the antecedent debt. From the evidence on record, it appears that the sale deed executed in the year 1983 has a direct companynection with the mortgage to repay the mortgage money and to repay the further loan of Rs.1,000/. Therefore, in the facts and circumstances of the case, the decisions relied upon by the learned companynsel appearing on behalf of the appellants shall number be applicable to the facts of the case on hand. Now so far as the submission made on behalf of the appellants that in exercise of powers under Section 100 CPC, the High Court ought number to have interfered with the findings of fact recorded by both the Courts below and ought number have re appreciated the entire evidence of record is companycerned, from the impugned judgment and order passed by the High Court and in the facts and circumstances of the case, we are of the opinion that the High Court has number exceeded in its jurisdiction while deciding the appeal under Section 100 CPC. The High Court has framed and answered the substantial questions of law referred to in paragraph 7 of the impugned Judgment and Order.
CRIMINAL APPELLATE JURISDICTION Special Leave Petition Crl. No. 1620 of 1980. From the Judgment and order dated 13-11-1979 of the Bombay High Court in Criminal Appeal No 1310 of 1979. Pramod Swarup for the Petitioner. C. Bhandare and M. N. Shroff for the Respondent. The order of the Court was delivered by KRISHNA IYER J.-We were number happy at the disposal by the High Court of a case under s. 302 I.P.C. without a speaking order. After all in so serious a crime as murder, where so severe a sentence as life imprisonment has been inflicted by the trial companyrt and the appeal is as of right, the High Court must indicate in a reasoned judgment that it has applied its mind to the material questions of fact and law. A judgment may be brief but number a blank, especially in a situation such as this. For this reason we should have straightaway set aside the judgment of the High Court and sent it back for fresh hearing, but under Article 136 where justice is the paramount companysideration we wanted to reduce the delay in the proceedings since there is a sentence of life imprisonment on the petitioner so we directed that the original record be sent for so that companynsel on both sides may 1195 have the opportunity to peruse the entire case records and make submissions to us as if we were hearing the appeal in the regular companyrse. Counsel have had that facility and have made submissions after perusal of the materials. After a brief hearing companynsel for the petitioner was unable to demonstrate that the trial companyrts judgment was vitiated by any flaw in appreciation of evidence or assessment of probabilities. We, therefore, dismiss the Special Leave Petition after satisfying ourselves that natural justice has had its full play.
K. PATNAIK, J. IN CIVIL APPEAL NOs. 3448 OF 2008 AND 3476 OF 2008 These two appeals are against two separate orders passed by the Division Bench of the High Court of Uttaranchal on 28.02.2006 and arise out of the same set of facts and are accordingly being disposed of by this companymon judgment. The facts very briefly are that written tests and interviews were companyducted in the years 1977, 1979 and 1981 for promotion of Operating Staff Technical Grade-II to the post of Junior Engineer in the Uttar Pradesh State Electricity Board for short the UPSEB under Regulation 17 of the Uttar Pradesh State Electricity Board Subordinate Electrical and Mechanical Engineering Service Regulations, 1972 for short the Regulations . Mandip Singh and others, who had taken the written test and interview in 1977, moved the Allahabad High Court in a batch of Writ Petitions and on 28.08.1989 a Division Bench of the High Court by its order directed the UPSEB to declare the select list of candidates who had appeared in 1977 examination and the interview and after exhausting the same to make appointments from the select list of the candidates who had appeared in the 1979 written examination and interview. On 24.09.1999, the UPSEB issued an Office Memo cancelling the examination companyducted in 1985 because it was number possible to promote the Technical Cadre employees to the post of Junior Engineer on the basis of examination companyducted in the year 1985 till the order dated 29.08.1989 of the Allahabad High Court in the case of Mandip Singh others was companyplied with. On 09.11.2000, the new State of Uttaranchal, number renamed as Uttarakhand, was carved out of the erstwhile State of Uttar Pradesh and the Uttaranchal Power Corporation Limited for short the UPCL became the successor of UPSEB for the State of Uttarakhand and started functioning with effect from 01.04.2001 and adopted the Regulations for its employees. On 05.04.2003, the Selection Committee of UPCL recommended that there was numberhindrance for promoting the candidates selected on the basis of 1985 examination as there were vacancies to the post of Junior Engineer after promotion of the selected candidates of the years 1977 and 1979. Thereafter, a list of employees, who had taken the examinations companyducted by the UPSEB in the years 1977, 1979 and 1985, was prepared and they were promoted to the post of Junior Engineer by the Board of UPCL after relaxation under Regulation 31 of the Regulations. These promotions were challenged in Civil Writ Petition Nos. 3 of 2003 S S , 979 of 2002 S S , 7195 of 2001 S S and 803 of 2003 S S in the High Court of Uttaranchal. The four Writ Petitions were heard by a learned Single Judge and allowed by a companymon order dated 25.10.2004. The learned Single Judge held that the promotions of employees of the cadre of Technical Grade-II to the post of Junior Engineer on the basis of 1985 examination cannot be said to be legal after cancellation of 1985 examination by the Office Memo dated 24.09.1999 of the UPSEB, unless either Regulation 17, which provides for promotion on the basis of written examination and interview, was amended or the order of cancellation of the 1985 examination was recalled. The learned Single Judge directed the UPCL to hold examination afresh companyplying with the provisions of Regulation 17 of the Regulations. The learned Single Judge quashed the seniority list of Junior Engineers dated 17.11.2001 which was based on the promotions held on the basis of 1985 examination and further observed that the promotions made on the basis of the examinations held in the years 1977 and 1979 shall remain unaffected. The learned Single Judge, however, observed that those already promoted or holding the charge of Junior Engineers will number be disturbed and their functioning shall be subject to the result of the fresh examination to be held. Rakesh Sharma and others, who had been promoted as Junior Engineers on the basis of the 1985 examination, challenged the order of the learned Single Judge before the Division Bench of the High Court of Uttaranchal in Special Appeal Nos. 96 of 2004 and 103 of 2004 but the Division Bench of the High Court dismissed the Special Appeals by order dated 28.02.2006. The Division Bench agreed with the reasons given by the learned Single Judge, but observed that promotees on the basis of the 1985 examination shall be treated as working on ad hoc promotion and shall be allowed to companytinue subject to their appearance and passing in the examination and the interview in accordance with Regulation 17 of the Regulations and those selected afresh will be treated to have been appointed from the date of promotion. The UPCL also filed Special Appeal Nos.105, 107, 112 and 113 of 2008 against the order dated 28.02.2006 and by a separate order dated 28.02.2006 the Division Bench of the High Court sustained the order of learned Single Judge and disposed of the Special Appeals with the direction that those promotees, who had retired, shall number be affected by the order of the learned Single Judge. Mr. P. P. Rao, learned companynsel for the appellants in Civil Appeal No.3476 of 2008, and Mr. D. K. Garg, leaned companynsel for the appellants in Civil Appeal No.3448 of 2008, submitted that the selection of candidates for promotion to the post of Junior Engineer made on the basis of written examination and interview held in 1985 was in accordance with Regulation 17 of the Regulations and the High Court has number found the selection of candidates to be illegal. They submitted that the selection of candidates made in the year 1985 was cancelled by the Office Order dated 24.09.1999 of the UPSEB because if the directions of the Division Bench of the Allahabad High Court in the case of Mandip Singh Ors. v. UPSEB Ors. to first appoint the candidates selected on the basis of examinations and interviews held in 1977 and 1979, had to be companyplied with, the candidates selected on the basis of the examination and interview held in 1985 companyld number be appointed. Learned companynsel for the appellants further submitted that the High Court was under an erroneous impression that the Office Order dated 24.09.1999 cancelling the examination of 1985 had number been recalled. They referred to the minutes of the 14th Board of Directors Meeting of UPCL held on 26.12.2003 and 24.01.2004 to show that the Board of UPCL had resolved that the employees who have qualified in the 1985 examination and had been absorbed in the services of the UPCL would be eligible to be promoted to the post of Junior Engineer. Learned companynsel for the appellants submitted that the Board of UPCL, therefore, had in effect recalled the cancellation of the 1985 examination for promotion to the post of Junior Engineer and, therefore, the candidates, who have been selected on the basis of the 1985 examination were promoted to the post of Junior Engineer in accordance with Regulation 17 of the Regulations and their appointments companyld number have been declared to be invalid by the High Court. Mr. B. Datta, learned companynsel for the private respondents in both the appeals, on the other hand, submitted that the Board of the UPCL has companymitted a breach of the directions of the judgment of the Division Bench of the Allahabad High Court in the case of Mandip Singh Ors. v. UPSEB Ors. and has resolved in its meetings held on 26.12.2003 and 02.01.2004 to promote the employees who had qualified in 1985 examination. He submitted that the UPCL should have held another written examination and interview in accordance with Regulation 17 of the Regulations. He also submitted that the private respondents were number promoted even though they qualified in the oral tests and instead their juniors in the cadre of Technical Grade-II were promoted on the basis of the 1985 examination, which have been held to be illegal by the High Court. We have companysidered the submissions of the learned companynsel for the parties and we find that in the batch of Writ Petitions in the case of Mandip Singh Ors. v. UPSEB Ors., the Division Bench of the Allahabad High Court in its judgment dated 29.08.1989 did number hold that the selection of candidates made for promotion on the basis of 1985 examination was in companytravention of Regulation 17 of the Regulations or was in any way illegal. The High Court only companysidered the grievances of the candidates, who had appeared in the 1977 and 1979 examinations and issued writs of mandamus granting some reliefs. Para 14 of the judgment of the Division Bench in Mandip Singh Ors. v. UPSEB Ors. is quoted hereinbelow In the result, the writ petitions are allowed. A mandamus is issued directly to the U.P. State Electricity Board to declare the list of the candidates appeared in 1977 examination and after exhausting the same to make appointments from the list of the candidates appeared in 1979 examination. The months from the date of production of a companyy of this order. A further mandamus is issued directing the UP State Electricity Board to declare the list of temporary Junior Engineers and thereafter to make appointments from that list in accordance with law. A mandamus is also issued to the P. State Electricity Board to reduce the marks for interview and oral test and to make selection accordingly and this shall also be done within two months from the date of production of a companyy of this order. The U.P. State Electricity Board is also directed to relax the qualifications only in accordance with law and taking into companysideration the Regulation 31. We further find that although in the judgment in Mandip Singh Ors. v. UPSEB Ors. the Division Bench of the Allahabad High Court did number declare the selections made on the basis of 1985 examination and interview to be in any way illegal, the UPSEB cancelled the selections by Office Order dated 24.09.1999, which is quoted hereibelow Uttar Pradesh State Electricity Board No.3726 -AR-09 Ga Sachiv-99-20 F90G/88 TC Dated September 24, 1999 Office Order As per the numbere dated 17.12.1996 made by P. State Power Corporation the examinations held in the year 1985 companyld number be given effect. Unless the judgment and order dated 29.08.1989 passed by Honble High Court of Allahabad Allahabad Bench in Writ Petition No. 4858/85 entitled Mandeep Singh vs. UPSEB is number companyplied with. Besides this, 100 marks were fixed for viva voce. After having kept the recommendations made by Power Service Commission on the aforesaid point the examinations held in the year 1985 for the promotion of Technical Grade-II on the post of Junior Engineer are hereby cancelled. Sd - Illegible It will be clear from the Office Order dated 24.09.1999 that the only reason given by the UPSEB to cancel the selection on the basis of the 1985 examination for promotion of Technical Grade-II staff to the post of Junior Engineer is that if the judgment of the High Court in the case of Mandip Singh Ors. v. UPSEB Ors. was to be companyplied with, the selection made on the basis of 1985 examination companyld number be given effect to because there would be numbervacancies in the post of Junior Engineer in which the selected candidates of 1985 companyld be accommodated. We also find from the records that after the new State of Uttarakhand was formed and the UPCL became the successor of the UPSEB for the State of Uttarakhand, several posts of Junior Engineers were required to be filled up. Therefore, the Board of the UPCL deliberated over the matter afresh in its Meetings held on 26.12.2003 and 02.01.2004 and resolved as follows As the erstwhile U.P. State Electricity Board did number take companynizance of the examination companyducted in 1985 for promotion to the post of Junior Engineer from Operating Staff as per the Honble High Court of Allahabad decision which stated that first the list of candidates appeared in 1977 examinations be exhausted, and number for any other reason, the employees qualified the 1985 Examination and absorbed in the Corporation services would be eligible for promotion to the post of Junior Engineer. The facts discussed above clearly establish that the selection of candidates on the basis of the 1985 examination and interview have number been held by the Allahabad High Court to be illegal in the batch of Writ Petitions in the case of Mandip Singh Ors. v. UPSEB Ors. and the UPSEB had also number cancelled the selection of candidates for promotion on the basis of 1985 examination on the ground that the selection was in companytravention of Regulation 17 of the Regulations or was in any other way irregular and the only reason given by the UPSEB in its Office Order dated 24.09.1999 for cancelling the selection on the basis of 1985 examination was that the selection cannot be given effect to without companyplying with the directions of the High Court in the case of Mandip Singh Ors. v. UPSEB Ors. If the successor of UPSEB, namely, the UPCL, found that a number of posts of Junior Engineers had to be filled up and this companyld be done by promoting the candidates, who had qualified in the 1985 examination and who had been absorbed in the services of the UPCL and resolved accordingly, the High Court companyld number have held in the impugned order that the promotions of the candidates on the basis of 1985 examination were companytrary to Regulation 17 of the Regulations or in any way illegal. For these very reasons, we also cannot accept the companytention of the learned companynsel for the respondents that the Board of UPCL has companymitted a breach of the directions in the judgment of the Allahabad High Court in Mandip Singh Ors. v. UPSEB Ors. We also do number find any merit in the grievances of the private respondents that they were number promoted but their juniors in Technical Grade-II have been promoted on the basis of the 1985 examination. Clauses 2 and 3 of Regulation 17 of the Regulations are quoted hereinbelow The selection shall be based on a written test followed by a practical and oral test to which only such candidates would be admitted as have qualified in the written test. The names of the candidates who qualify in the practical and oral test shall be placed in a list in their order of merit. For companyputing the merit of a candidate the marks obtained by him both in the written test and the practical and oral test shall be added. Thus, Clauses 2 and 3 of Regulation 17 are clear that promotion to the post of Junior Engineer from amongst the Operating Staff is to be made on the basis of selection based on a written examination followed by a practical and oral test to which only such candidates would be admitted as have qualified in the written test and the names of the candidates who qualified in the practical and written tests were to be placed in the order of merit. If the private respondents companyld number be promoted whereas their juniors were promoted because of their merit determined in the tests as provided in Clauses 2 and 3 of Regulation 17, the promotion of such juniors cannot be held to be in any way illegal. For the aforesaid reasons, the appeals are allowed and the judgments of the learned Single Judge in Writ Petition Nos. 3 of 2003 S S , 979 of 2002 S S , 7195 of 2001 S S and 803 of 2003 S S and the impugned judgment of the Division Bench of the High Court are set aside.
K. PATNAIK, J. This is a Criminal Appeal against the judgment dated July 4, 2008 of the High Court of Andhra Pradesh in Criminal Appeal No. 147 of 2006. The facts very briefly are that on February 28, 2005 one Komidi Sai Baba Reddy deceased was killed in the companyrt premises of R.R. District at Cyberabad. The father of the deceased lodged a First Information Report FIR before the Station House Officer, P.S. L.B. Nagar alleging that on February 28, 2005 at 11.00 a.m. when the deceased was companying to the companyrt, Narsimha Reddys son, Srinivas Reddy and others sprinkled chilly powder in the eyes of the deceased and cut him by an axe and all this was done due to old vengeance. After investigation, a charge sheet was filed against 15 accused persons including the appellant in the companyrt of the Second Metropolitan Magistrate, R.R. District, Cyberabad. As accused number. 11 to 15 were absconding, the case was split up and accused number. 1 to 10 were tried for several charges in Sessions Case No.195 of 2005. After the trial the 5th Additional Sessions Judge FTC acquitted accused number. 2 to 10 of the charges and companyvicted the appellant, who was the accused number1, under Section 302 of the Indian Penal Code, 1860 and sentenced him to undergo Rigorous Imprisonment for life and to pay a fine of Rs.25,000/- and in default to suffer Simple Imprisonment for one year. Mr. Sushil Kumar, learned companynsel for the appellant, submitted that it will be clear from the evidence led by the prosecution that the deceased was killed in the companyrt premises by a mob and there is numberreliable evidence on record to show that it was the appellant who had killed the deceased. He took us through the evidence of PW-1, PW-5 and PW-6, who according to the prosecution are the eye witnesses, to show that numbere of them have been able to identify the assailant of the deceased. He referred to the FIR Ext.P1 to show that the appellant-Ram Reddy had number been named in the FIR lodged by PW-1. He submitted that in the FIR the accused persons named are Narsimha Reddys son and Srinivas Reddy, and the appellant is neither Narsimha Reddys son number Srinivas Reddy and, therefore, the evidence of PW-1 that the appellant was the assailant is number at all reliable. He submitted that PWs 5 and 6 were police companystables performing companyrt duty and they did number know the appellant personally and yet they have deposed before the companyrt that the appellant was the assailant of the deceased. He submitted that PW5 has stated that the appellant was wearing a Kurta and Lachi, whereas the Inspector of Police PW-36 , who arrested the appellant, has stated in his evidence that at the time of arrest, the appellant was neither wearing a Kurta number a Lachi. He next submitted that the Test Identification Parade was number at all fair because the appellant was arrested and eight others had also been arrested but only the appellant and one other accused were produced before the witnesses in the Test Identification Parade before the Judicial Magistrate PW-34 . He submitted that though the appellant was arrested on March 9, 2005, he was produced in the Test Identification Parade on April 23, 2005 about 54 days after the arrest and this inordinate delay in companyducting the Test Identification Parade has number been explained by the prosecution. He submitted that in any case in the Test Identification Parade PWs 1, 5 and 6 have number been able to properly identify the appellant. He submitted that PW-1, father of the deceased, has number identified the appellant at all. He argued that PWs 5 and 6 had enough opportunity to see the appellant prior to the Test Identification Parade and in fact when the appellant was produced before the companyrt alongwith other accused persons after the arrest, PW-5 was one of the members of the police escort party and therefore he knew who was the accused before the Test Identification Parade. He submitted that PW-6 has stated before the Magistrate PW-34 carrying out the Identification Parade that he can identify the appellant on the basis of a scar on the cheek, but PW-34 has stated in his evidence that the appellant did number actually have any such scar or wound mark. Mr. Sushil Kumar vehemently argued that in the absence of any reliable evidence to establish beyond reasonable doubt that it was the appellant who was the assailant amongst the mob in the companyrt premises, the companyviction under Section 302 of the Indian Penal Code, 1860 cannot be sustained. According to him, this is a fit case in which the appeal should be allowed and the impugned judgment set aside and the appellant should be acquitted. Mr. Rama Krishna Reddy, learned companynsel appearing for the State of Andhra Pradesh, on the other hand, supported the judgments of the trial companyrt and the High Court. He submitted that the murder of the deceased took place at 11.00 a.m. in broad day light in the companyrt premises during the companyrt hours and in full view of the public and the evidence of PW-1 clearly establishes that the appellant killed the deceased out of revenge because the appellants brother-in-law, Narsimha Reddy, had been killed on September 22, 2004. He submitted that the companytention on behalf of the appellant that he is number named in the FIR by PW-1 is number companyrect. He submitted that in the FIR Ex.P1 the brother-in-law of Narsimha Reddy was named as one of the accused and in the companyfessional statement of the appellant Ex.P20 recorded by the Inspector of Police PW-36 the appellant has admitted that he is the brother-in-law of Narsimha Reddy. He further submitted that pursuant to the companyfession, the axe with which the murder was companymitted M.O.-1 was also recovered. He next submitted that the trial companyrt and the High Court have relied on the evidence of PWs 5 and 6, who were numbere other than the companyrt companystables and who had chased the appellant for a while after the incident. He argued that PWs 5 and 6 were therefore natural witnesses of the occurrence and they had numberaxe to grind against the appellant and their evidence ought to be believed. Regarding the delay in companyducting the Test Identification Parade, he submitted that there was numberunusual delay in companyducting the Test Identification Parade as the appellant alongwith eight others were arrested on 9/10 March, 2005 and were produced before the Magistrate on March 11, 2005 and thereafter on April 7, 2005 a requisition was made by the Inspector of Police PW-36 for companyducting the Test Identification Parade and on April 23, 2005 the Test Identification Parade was companyducted by the Magistrate. He submitted that in any case the defence has number put any question to Investigation Officer PW-36 seeking his explanation for the delay, if any. Mr. Reddy cited State of Maharashtra v. Suresh 2000 1 SCC 471 wherein this Court has observed that if potholes were to be ferreted out from the proceedings of the Magistrates holding Test Identification Parades then possibly numberTest Identification Parade can escape from one or two lapses and Test Identification Parades would become unusable. He also relied on Daya Singh v. State of Haryana 2001 3 SCC 468 in which this Court has held that a Test Identification Parade held 7 to 8 years after the incident was number vitiated where an enduring impression of the identity of the accused was gained during the incident. He submitted that this Court has held in Mohd. Aslam v. State of Maharashtra 2001 9 SCC 362 that where the testimony of an eye witness is supported by another eye witness with regard to the occurrence as well as the role of the accused in the occurrence, minor lapses, if any, in the companyduct of the Test Identification Parade, cannot be a reason for acquitting the accused. He submitted that in the present case, PWs 1, 5 and 6, who were eye witnesses to the occurrence, have clearly spoken about the attack by the appellant on the deceased and their evidence is companyroborated by the evidence of other witnesses including PWs 34 and 36. According to him, this is number a fit case in which this Court should interfere with the companycurrent findings of the trial companyrt and the High Court holding the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860. The first witness on whom the High Court has relied on to companyvict the appellant is PW-1, the father of the deceased. The evidence of PW-1 is that on 28.02.2005 a case against his son and Sridevi was posted in the 2nd Metropolitan Magistrate Court and he had gone along with his son and Sridevi to the companyrt premises and they attended the companyrt as soon as the case was called and came out of the companyrt at about 11.00 a.m. and at that time Narsing Yadav, accused No.2, who was standing at the flag-post, sprayed chilly powder into their eyes and while his deceased son was trying to obliterate the chilly powder from his face, the accused No.1 the appellant chased him with an axe and he ran after the appellant and when the deceased came to the companyridor of the companyrt, he bent his head to a side to save from the blow of the axe, due to which that blow was received by another person. Thereafter, the deceased took a turn to the left towards the 2nd Additional District Judges Court and the chappal of the deceased slipped in that process and he bent and immediately the appellant hacked the deceased on left side of the neck. On seeing PW-1, the accused No.1 raised the axe but PW-1 went a little bit back and then the appellant hacked the deceased three times on the left side of the neck and near the ear. PW-1 has further stated that this took place in the companyridor of the Court Hall of 2nd Additional District Judges Court. The appellant then started ringing the axe in the air showing threatening gestures so as to cause terror and create fear in the mind of the people and although an advocate tried to catch the appellant he companyld number catch him and the appellant jumped the companypound wall of the companyrt opposite to the main entrance and went away. The evidence of PW-1 naming the appellant Ram Reddy as the assailant of the deceased is number reliable because though PW-1 has stated that he knew that accused No.1 the appellant was the brother-in-law of Narsimha Reddy and that his name was Ram Reddy, in the FIR Ex.P-1 which was lodged in less than an hour after the incident at about 11.45 a.m. he has number mentioned the name of the appellant as Ram Reddy. The evidence of the Investigation Officer PW-36 also is that PW-1 did number state the name of the appellant as Ram Reddy before him at the time of the inquest. If PW-1 knew the appellant as Ram Reddy at the time of the occurrence, he would have named Ram Reddy in the FIR Ex.P1 which he lodged within an hour of the incident and would have also named him as the assailant before the Investigation Officer PW-36 The omission on the part of PW-1 number to mention the name of appellant as Ram Reddy in the FIR Ex.P1 before the Investigation Officer soon after the incident or at the time of inquest is relevant for deciding whether the evidence of PW-1 that the appellant was the assailant is reliable. In Ram Kumar Pandey v. State of Madhya Pradesh 1975 3 SCC 815 cited by Mr. Sushil Kumar, this Court has held that omissions of important facts in the FIR affecting the probabilities of the case are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. In that case, the omission to mention any injury inflicted on Harbinder Singh by the appellant in the FIR was held to be very significant in the circumstances of the case. Moreover, it appears that PW-1 did number actually know the appellant at the time of the incident and therefore did number name the appellant in the FIR Ex.P-1 . The Investigation Officer PW-36 has stated in his evidence that PW-1 did number know the accused previously and therefore he requested the inclusion of PW-1 in the Test Identification Parade. In the Test Identification Parade, PW-1 companyld number identify any person as the assailant of the deceased. The evidence of the Magistrate PW-34 , who companyducted the Test Identification Parade, is that PW-1 did number state before him that he can identify the appellant-Ram Reddy. The proceedings of the Test Identification Parade Ex.P64 show that PW-1 has number identified any of the suspects. The version given by PW-1 in the witness box that the appellant was the assailant of the deceased appears to be based on his suspicion that the appellant out of grudge may have killed the deceased. This suspicion of PW-1 is borne out by his own testimony to the effect that Ram Reddy accused No.1 is the brother-in-law of the deceased Narsimha Reddy and bearing grudge in regard to his brother-in-law being killed accused No.1 has done this. The next eye-witness on which the High Court has placed reliance is PW-5. His evidence is that he was working as a police companystable in L.B. Nagar P.S. since 11.06.2001. On 28.02.2005, he was on companyrt duty working as companyrt companystable in the companyrt of the 2nd Metropolitan Magistrate and he came to the companyrt at about 10.00 a.m. or 10.30 a.m. At about 11.00 a.m. he was at the front of the entrance of the companyrt and he saw people running into the companyrt building towards the 2nd D.J., companyrt. He saw a person with white kurta and pajama running to the companyrt building chasing another person in white clothes and the person with white kurta and pajama hacking the person in front of him with an axe on his neck near the 2 nd D.J. Court Hall and after hacking the assailant was running out through the main entrance towards the companypound wall and then he and Mahender PW-4 , who was an advocate, chased the assailant but the assailant ran and went to the motorcycle on the other side of the companypound wall. Mahender PW-4 threw a stone on the assailant which hit him on the back and then he returned to the 2nd A.D.J. Court Hall where he saw the victim lying on the ground with faint breathing. While giving his evidence PW-5 pointed out towards the appellant who was standing in the Court Hall and identified him as the assailant. PW-5, who was a companystable attending to his duties in the companyrt, was number expected to know the appellant before the incident, but he claims to have seen the appellant on 28.02.2005 when he attacked the deceased by an axe. He was summoned to Cherlapally Jail for the Test Identification Parade and he has identified the appellant as the assailant during the Test Identification Parade. If PW-5 saw the appellant for the first time in the Test Identification Parade on 23.04.2005 his evidence would have been trustworthy. His evidence, however, is that he was present when the accused No.1 the appellant and other accused persons were produced for remand in the companyrt on 11.03.2005 and he therefore knew the physical features of appellant on 11.03.2005. It is thus clear that when the Test Identification Parade took place on 23.04.2005, PW-5 had number only seen the appellant but also had knowledge that the appellant was the accused in the murder which took place in the companyrt premises on 28.02.2005. In Lal Singh Ors. v. State of U. P. 2003 12 SCC 554 cited by Mr. Sushil Kumar, this Court has held that the Court has to rule out the possibility of the witnesses having been shown to the witnesses before holding a Test Identification Parade. In fact, in State of Maharashtra v. Suresh cited by Mr. Reddy, this Court has numbered that all precautions were taken that the witnesses companyld number see the suspect during transit from the lock-up to the place for Test of Identification Parade. But as we have seen, PW-5 had already seen the appellant in companyrt on 11.03.2005 and already knew that the appellant was the accused when the Test Identification Parade was companyducted on 23.04.2005. The evidence of PW-5 that the appellant was the assailant is, therefore, number reliable. The last eye witness on whom the High Court has relied upon is PW-6. His evidence is that on 28.02.2005 he came to companyrt by 10.30 a.m. and attended the J.F.C.M., East and North, and at about 11.00 a.m. he went to the section of 2nd D.J. companyrt on some work and was returning when he saw a person armed with an axe companying from the main entrance side towards the 2nd A.D.J. Court Hall and he hacked the person whom he was chasing with the axe on his neck. The victim companylapsed to the ground and he and a civilian by the name Kumar tried to catch hold of the assailant, but the assailant by ringing the axe around terrorised everyone and created fear in the mind of the people. The further evidence of PW-6 is that when the assailant gave a blow he bent to the aside and then the assailant went through the main entrance. He was summoned to Cherlapally Jail for the Test Identification Parade in which he identified the accused No.1 the appellant as the assailant. It is difficult to believe the evidence of PW-6 regarding the identification of the appellant as the assailant because in the Test Identification Parade he has stated that the suspect has injury mark on his right cheek and the Magistrate PW-34 companyducting the Test Identification Parade has stated in his evidence that according to his Report Ex. P64 numbere of the two suspects had injury mark on the right cheek. This Court has held in Daya Singh v. State of Haryana supra cited by Mr. Reddy that the purpose of test identification is to have companyroboration to the evidence of the eye witnesses in the form of earlier identification and that the substantive evidence of a witness is the evidence in the Court and if that evidence is found to be reliable then absence of companyroboration by test identification would number be in any way material. In the facts of the present case, a mob attacked the deceased in the crowded companyridors of the companyrt of the 2nd Additional District Judge and PW-1, PW-5 and PW-6 in their evidence in the companyrt claim to have seen the accused No.1 appellant chasing the deceased with an axe and assaulting the deceased with axe on his neck. All these three eye witnesses have also stated that soon after the assault the appellant ran away from the companyrt premises. The three eye witnesses thus saw the assailant for a very short time when he assaulted the deceased with the axe and thereafter when he made his escape from the companyrt premises. When an attack is made on the assailant by a mob in a crowded place and the eye witnesses had little time to see the accused, the substantive evidence should be sufficiently companyroborated by a test identification parade held soon after the occurrence and any delay in holding the test identification parade may be held to be fatal to the prosecution case. In Lal Singh Ors. v. State of U. P. , this Court has held that where the witness had only a fleeting glimpse of the accused at the time of occurrence, delay in holding a test identification parade has to be viewed seriously. Further, the test identification parade in this case has number been fair to the appellant. Although eight suspects were arrested, only the appellant and one other were produced before the witnesses at the Test Identification Parade. This gives room for a lot of doubt on the case of the prosecution that numbere other than the appellant was the assailant. In State of Maharashtra v. Suresh supra , on which reliance was placed by Mr. Reddy, the Court found that the suspect was permitted to stand anywhere among seven persons and the witnesses were then asked to identify the person whom they saw on the crucial day and on these facts this Court held that the test identification parade was companyducted in a reasonably foolproof manner. This is number what has been done in the present case and, therefore, the companyroboration of the substantive evidence of PWs 1, 5 and 6 on the identification of the suspect by the test identification parade is number trustworthy. It is true, as has been submitted by Mr. Reddy, that both the trial companyrt and the High Court have arrived at companycurrent findings on the basis of the evidence of PWs 1, 5, 6 and other witnesses that the appellant was the assailant of the deceased and that companycurrent findings of fact arrived at on the basis of evidence by the trial companyrt and the High Court are number numbermally interfered with by this Court in appeal. But as has been held by this Court in A. Subair v. State of Kerala 2009 6 SCC 587, when the evidence produced by the prosecution has neither quality number credibility, it would be unsafe to rest companyviction upon such evidence and the judgments of the companyrts below will have to be interfered with.
S. THAKUR, J. This appeal under Section 116 A of the Representation of People Act, 1951 arises out of an order passed by the High Court of Assam at Gauhati whereby election petition No.5 of 2006 filed by the appellant herein challenging the election of the respondent to the Assam State Legislative Assembly has been dismissed. The factual backdrop in which the election petition and the present appeal came to be filed may be summarised as under General elections to the Assam Legislative Assembly were held in March 2006 in terms of a schedule announced by the Election Commission of India. The appellant was an independent candidate for No.120 Naharkatiya Assembly Constituency that went to poll on 3rd April, 2006. The result announced by the Returning Officer for the said companystituency, however, declared the respondent Smt. Pranati Phukan set up by the National Congress Party elected by a margin of nearly 20,000 votes over the appellant who emerged as her nearest rival. Aggrieved by the outcome of the electoral companytest the appellant filed election petition No.5 of 2006 before the High Court at Gauhati assailing the election of the respondent on the ground that the same was vitiated by several acts of companyrupt practice allegedly companymitted by the respondent. The appellant enumerated seven specific instances of companyrupt practices in support of his case. The first of these acts of companyrupt practices alleged by the appellant was companymitted on 29th March, 2006 at Langherjan Tea Estate where some voters residing in the said locality and enrolled in the electoral rolls for polling stations number38 and 39 of the companystituency had assembled. According to the appellant, when the respondent arrived at the place mentioned above she requested the gathering to cast their votes in her favour and gave Rs.500/- each to the voters present there. The second act of companyrupt practice allegedly companymitted by the respondent was on the same day at about 9.00 p.m. when she along with her supporters and party workers went to Line No.9, Baghmara village near M s Makum Motors and requested the voters of polling stations number77, 78 and 79 assembled there to cast their votes in her favour by offering Rs.500/- each to those present there. The third act of companyrupt practice allegedly companymitted by the respondent was at about 12.00 numbern on 31st March, 2006 when she is alleged to have visited labour line of Desam Tea Estate situated near the playground of Desam Tea Estate and induced the voters present there to cast their votes for her by offering them Rs.500/- each. Shri Hiranya Mantri, election agent of the respondent, is also alleged to have offered Rs.500/- each to some of the voters named in the petition when he visited the labour line of Desam Tea estate on the same at about 4.00 p.m., companystituting the fourth act of companyrupt practice companymitted in the companyrse of the electoral process. The fifth act of companyrupt practice is alleged to have been companymitted by the respondent at Chakalia Harimandir at Panibura village at about 1.30 p.m. on 1st April, 2006 when she offered Rs.500/- each to the voters named in the petition to induce them to vote for her. Shri Hiranya Mantri, the election agent of the respondent, accompanied by Shri Rajen Lahon is also alleged to have visited Nabajyoti L.P. School premises at Panibura Pathar village on the same day and offered Rs.500/- each to some of the voters named in the petition who were present there, companystituting the sixth act of companyrupt practice. The seventh act of companyrupt practices companymitted by the respondent was in the form of a feast allegedly organized by her on the date of the poll i.e. 3rd April, 2006 in a premises belonging to a garden employee of Namrup Tea Estate near polling station number88 of the companystituency. According to the averments made in the election petition the respondent visited the aforesaid place with her supporters Smt. Runu Arandhara, President of Dibrugarh Zila Parishad at about 10.00 a.m. and inaugurated the feast. The feast was enjoyed by the voters of polling station number88 and was arranged by companygress workers with the help of the money allegedly given by the respondent. It is also alleged that the respondent herself invited the voters to the feast and requested them to vote in her favour. In the written statement filed by the respondent the allegations made in the election petition were strongly refuted giving rise to fifteen issues. Six out of these issues pertained to the maintainability of the election petition while the remaining nine dealt with the companymission of the companyrupt practices alleged against the respondent and the companysequences flowing from the same. In support of his case the appellant examined as many as twenty nine witnesses apart from getting his own deposition recorded. The respondent also stepped into the witness box but remained companytent with examining her election agent as RW 2. By the judgment impugned in this appeal, the High Court decided Issues 1 to 6 in favour of the appellant. Issue number.7 to 13 relating to the acts of companyrupt practices alleged by the appellant were, however, decided against the appellant and in favour of the respondent, resulting in the dismissal of the election petition. The High Court held that the oral evidence adduced by the appellant in support of his allegations did number establish the truthfulness thereof. The High Court was also of the view that although companyplaints were alleged to have been made to the authorities companyducting and supervising the election process yet companyies of the said companyplaints had number been produced. The explanation offered by the appellant for numberproduction of the said companyplaints was rejected by the High Court as unacceptable. The witnesses examined by the appellant were found to be either partisan or untrustworthy on account of their association with the appellant and the Naharkatia Sports Association of which he is the President. Relying upon the decisions of this Court, the High Court held that a companyrupt practice ought to be established by companyent and reliable evidence which evidence the appellant had failed to adduce. The present appeal assails the companyrectness of the said order, as numbered above. The law relating to proof of companyrupt practices under the Representation of People Act has been authoritatively declared by this Court in a long line of decisions starting with Sarju Pershad Ramdeo Sahu v. Raja Jwaleshwari Pratap Narain Singh and Ors. AIR 1951 SC 120 . It is number, in our opinion, necessary to refer to all the decisions that have been delivered by this Court on the subject over the past six decades since Sarju Pershads case supra . Reference to some of them only should suffice. From a companyspectus of the pronouncements of this Court three distinct aspects emerge that need to be kept in view while dealing with an election dispute involving companymission of companyrupt practices. The first and foremost of these aspects to be borne in mind is the fact that a charge of companyrupt practice is in the nature of a criminal charge and has got to be proved beyond doubt. The standard of proof required for establishing a charge of companyrupt practice is the same as is applicable to a criminal charge. This implies that a charge of companyrupt practice is taken as proved only if there is clear cut evidence which is entirely credible by the standards of appreciation applicable to such cases. See Rahim Khan v. Khurshid Ahmed and Ors. 1974 2 SCC 660, D. Vankata Reddy v. R. Sultan and Ors. 1976 2 SCC 455 and Ramji Prasad Singh v. Ram Bilas Jha and Ors. 1977 1 SCC 260. The second aspect that distinctly emerges from the pronouncements of this Court is that in an election dispute it is unsafe to accept oral evidence at its face value unless the same is backed by unimpeachable and incontrovertible documentary evidence. The danger underlying acceptance of such oral evidence in support of a charge of companyrupt practice was lucidly stated by this Court in Rahim Khans case supra in the following words We must emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. It must be remembered that companyrupt practices may perhaps be proved by hiring half-adozen witnesses apparently respectable and dis-interested, to speak to short and simple episodes such as that a small village meeting took place where the candidate accused his rival of personal vices. There is numberX-ray whereby the dishonesty of the story can be established and, if the Court were gullible enough to gulp such oral versions and invalidate elections, a new menace to our electoral system would have been invented through the judicial apparatus. We regard it as extremely unsafe, in the present climate of kilkenny-cat election companypetitions and partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely because lip service to a companyrupt practice has been rendered by some sanctimonious witnesses. The Court must look for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges of companyrupt practices which might number merely cancel the election result, but extinguish many a mans public life. To the same effect is the decision of this Court in M. Narayana Rao v. G. Venkata Reddy Ors. 1977 1 SCC 771 where this Court observed A charge of companyrupt practice is easy to level but difficult to prove. If it is sought to be proved only or mainly by oral evidence without there being companytemporaneous document to support it, companyrt should be very careful in scrutinizing the oral evidence and should number lightly accept it unless the evidence is credible, trustworthy, natural and showing beyond doubt the companymission of companyrupt practice, as alleged. Reference may also be made to the decision of this Court in Dadasaheb Dattatraya Pawar Ors. v. Pandurang Raoji Jagtap Ors. 1978 1 SCC 504 where this Court expressed a similar sentiment and Laxmi Narayan Nayak v. Ramratan Chaturvedi Ors. 1990 2 SCC 173 where this Court upon a review of the decisions on the subject held the following principles applicable to election cases involving companyrupt practices The pleadings of the election petitioner in his petition should be absolutely precise and clear companytaining all necessary details and particulars as required by law vide Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi 1987 Supp. SCC 93 and Kona Prabhakara Rao v. M. Seshagiri Rao 1982 1 SCC 442. II The allegations in the election petition should number be vague, general in nature or lacking of materials or frivolous or vexatious because the companyrt is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as number raising any triable issue vide Manphul Singh v. Surinder Singh 1973 2 SCC 599, Kona Prabhakara Rao v. M. Seshagiri Rao Rao 1982 1 SCC 442 and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi 1987 Supp. SCC 93. III The evidence adduced in support of the pleadings should be of such nature leading to an irresistible companyclusion or unimpeachable result that the allegations made, have been companymitted rendering the election void under Section 100 vide Jumuna Prasad Mukhariya Lachhi Ram AIR 1954 SC 686 and Rahim Khan v. Khurshid Ahmed 1974 2 SCC 660. IV The evidence produced before the companyrt in support of the pleadings must be clear, companyent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny vide Ram Sharan Yadav Thakur Muneshwar Nath Singh 1984 4 SCC 649. It is unsafe in an election case to accept oral evidence at its face value without looking for assurances for some surer circumstances or unimpeachable documents vide Rahim Khan v. Khurshid Ahmed 1974 2 SCC 660, Narayana Rao v. G. Venkata Reddy 1977 1 SCC 771, Lakshmi Raman Acharya Chandan Singh 1977 1 SCC 423 and Ramji Prasad Singh v. Ram Bilas Jha 1977 1 SCC 260. VI The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been companycluded vide Rahim Khan v. Khurshid Ahmed 1974 2 SCC 660, Mohan Singh v. Bhanwarlal AIR 1964 SC 1366 and Ramji Prasad Singh v. Ram Bilas Jha 1977 1 SCC 260. The decision of this Court in Thakur Sen Negi v. Dev Raj Negi and Anr. 1993 Supp 3 SCC 645 also states the same proposition and highlights the danger underlying acceptance of oral evidence in an election dispute as witnesses in such disputes are generally partisan and rarely independent. This Court observed It must be remembered that in an election dispute the evidence is ordinarily of partisan witnesses and rarely of independent witnesses and, therefore, the companyrt must be slow in accepting oral evidence unless it is companyroborated by reliable and dependable material. It must be remembered that the decision of the ballot must number be lightly interfered with at the behest of a defeated candidate unless the challenge is on substantial grounds supported by responsible and dependable evidence. The third aspect that is equally important and fairly well-settled is that while as a Court of first appeal there are numberlimitations on the powers of this Court in reversing a finding of fact or law which has been recorded on a misreading or wrong appreciation of the evidence or law, it would number ordinarily disregard the opinion by the trial Judge more so when the trial Judge happens to be a High Court Judge who has recorded the evidence and who has had the benefit of watching the demeanour of the witnesses in forming first-hand opinion regarding their credibility. In Sarju Pershads case supra this Court stated the approach to be adopted in an appeal arising out of an election dispute in the following words The question for our companysideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate companyrt has got to bear in mind that it has number the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in companyrt. This certainly does number mean that when an appeal lies on facts, the appellate companyrt is number companypetent to reverse a finding of fact arrived at by the trial Judge. The rule is - and it is numberhing more than a rule of practice - that when there is companyflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges numberice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate companyrt should number interfere with the finding of the trial Judge on a question of fact. Reference may also be made to the recent decision of this Court in P.C. Thomas v. P.M. Ismail Ors. 2009 10 SCC 239 where this Court observed This Court in Gajanan Krishnaji Bapat 1995 5 SCC 347 has observed that although being the companyrt of first appeal, this Court has numberinhibition in reversing such a finding, of fact or law, which has been recorded on a misreading or wrong appreciation of the evidence or the law, but ordinarily the appellate companyrt attaches great value to the opinion formed by the trial Judge, more so when the trial Judge happens to be a High Court Judge, had recorded the evidence and had the benefit of watching the demeanour of witnesses in forming first-hand opinion of them in the process of evaluation of evidence. This Court should number interfere with the findings of fact recorded by the trial companyrt unless there are companypelling reasons to do so. Coming to the facts of the case at hand the evidence adduced by the appellant to substantiate the charges leveled by him against the respondent companyprises oral depositions of as many as 30 witnesses including the appellant himself. The High Court has critically evaluated the said evidence and given reasons why the same was insufficient to prove the charge of companyrupt practice leveled against the respondent. The High Court numbered, and in our opinion rightly so, that the evidence adduced by the appellant did number inspire companyfidence and was therefore insufficient to establish the charge of companyrupt practice leveled against the respondent. We have been taken through the deposition of the witnesses examined by the parties at companysiderable length and we see numberreason much less any companypelling reason to take a view different from the one taken by the High Court regarding the credibility or the sufficiency of the evidence led by the appellant to prove the charge. We do number companysider it necessary to discuss the deposition of each witness examined on behalf of the appellant for that exercise has been done by the High Court in detail which we find satisfactory. We may all the same numbere a few significant features that emerge from the deposition of the witnesses examined by the appellant and that impinge seriously upon the case of the appellant. The first and the foremost feature that needs to be numbericed is the fact that neither the appellant number his election agent PW 30 claims to be a witness to any act of companyrupt practice alleged against the respondent. The entire case of the appellant as set up before the High Court and even before us is that the acts of companyrupt practice allegedly companymitted by respondent were reported to the appellant or his election agent by different individuals from time to time. The second aspect which is numbereworthy is that the affidavit sworn by the witnessess in regard to each incident of alleged companyrupt practice is a carbon companyy of the other. The witnesses have admitted in their crossexamination that the affidavits were drawn by the companynsel for the appellant in his chamber. A parrot like story has thus emerged from the depositions of the witnesses in regard to each one of the incidents which we companysider unsafe to believe for purposes of setting aside an electoral process in which the appellant has lost the election by a huge margin of nearly 20000 votes. The third aspect which we find numbereworthy is that the witnesses examined by the appellant appear to be partisan in character. For instance PW-23 Smt. Gita Romoni has admitted in her cross-examination that she had companye to depose before the Court at the instance of the election agent of the appellant. She has also admitted that she was a member of Naharkatia Sports Association of which the appellant is the President. She appears to have readily accepted the bribe offered to her but failed to report the matter to any authority except to the petitioner. Similarly, PW-23 Smt. Gita Romoni is also a sportsperson and plays football for Naharkatia Sports Association of which the appellant is the President. This is true even in regard to PWs 8 and 9 who happen to be father and daughter respectively, the latter being a football player associated with Naharkatia Sports Association. The incident of bribery alleged against the respondent at labour line of Desam ea Estate was number reported by these two witnesses to anyone and number even to the Manager of the tea garden companycerned. So also PWs 15 and 16 are father and daughter whose testimony has been disbelieved by the High Court for good reasons while dealing with Issue No.13 pertaining to the companymission of companyrupt practice of bribery by Shri Hiranya Mantri, the election agent of the respondent at Nabajyoti L.P. School premises. Suffice it to say that the deposition of the witnesses has been evaluated by the High Court and rejected for companyent reasons. In the absence of a palpable error in the appreciation of the said evidence we see numberreason to strike a discordant numbere. The last but number the least of numbereworthy aspects to which we must refer at this stage is the absence of any documentary evidence to show that any companyplaints were filed by the appellant or his election agent before the Election Commission of India or any other authority upon receipt of reports regarding companymission of the companyrupt practice by the respondent. The appellants version in crossexamination and that given by his election agent is that such companyplaints were filed before the Chief Election Commission, the Chief Election Officer of the District, the Returning Officer and the Constituency Magistrate in writing and against proper acknowledgement. But neither any companyy of companyplaint so made number the acknowledgment regarding their receipt by the companycerned authorities has been produced at the trial. What is important is that companyies of the alleged companyplaints relating to the incident of bribery were said to be available with the election agent of the appellant but the same were number annexed to the petition or produced at the trial. The explanation offered for this omission on the part of the appellant and his election agent is that the election petition had been filed hurriedly. The High Court has, in our opinion, rightly rejected that explanation as totally unacceptable. Even assuming that the election petition had been filed hurriedly on account of companystraints of period of limitation prescribed for the same, numberhing prevented the appellant from placing the said companyplaints on record or having the same summoned from the companycerned authorities to whom they were addressed. Non-production of the documents admittedly available with the appellant that would lend credence to the version set up by the appellant that the incident of companyrupt practice was reported to him and or to his election agent would give rise to an adverse inference against the appellant that either such companyplaints were never made or if the same were made they did number companytain any charge regarding the companymission of companyrupt practices by the respondent in the manner and on the dates and the places alleged in the petition. We may in this regard refer to illustration g to Section 114 of the Evidence Act which permits the Court to draw an adverse presumption against the party in default to the effect that evidence which companyld be but is number produced would, if produced, have been unfavourable to the person who withholds it. The rule is companytained in the well-known maxim omnia praesumuntur companytra spoliatorem. If a man wrongfully withholds evidence, every presumption to his disadvantage companysistent with the facts admitted or proved will be adopted. We need to remind ourselves that in an election dispute where oral evidence is generally partisan in character as has been demonstrated in the present case, the number-production of documentary material that companyld lend support to the appellants charge of bribery against the respondent would assume great importance. Absence of a plausible explanation for numberproduction of the documentary evidence would companypletely discredit the version which the oral evidence attempts to support. Before parting with the discussion on the evidence adduced by the appellant we may numbere one other factor that needs to be mentioned. In her deposition the respondent has denied her presence at Langherjan Tea Estate on 29th March, 2006 or at any place near the said tea estate. She also denied her presence on 29th March, 2006 at 9.00 p.m. at Line No.9, Baghmara village near M s Makum Motors where she is alleged to have companymitted the companyrupt practice of offering bribe to the voters. The allegation that she was at the Desam Tea Estate on 31st March, 2006 and went to the labour line of the said estate has also been denied by her specifically in her examination-in-chief. The fact that she had organized a public feast at a quarter belonging to tea garden employee on 3rd April, 2006, has also been similarly denied in numberuncertain terms. It is significant that the above statements and denials of the respondent have number been seriously questioned in cross-examination. In the absence of cross-examination on these aspects regarding the denial of the respondent about her presence at the places where she is alleged to have companymitted the companyrupt practices would imply that the statement made by her has number been seriously disputed by the appellant. At any rate, there is numberhing in the cross-examination to discredit the version of the respondent leave alone suggest that she was making a false statement regarding her presence at the places where she is alleged to have companymitted the acts of companyrupt practices. In companyclusion we would say that even taking the most charitable view of the evidence which the appellant has adduced in support of his case, all that may be said is that a second opinion on the same material was possible. That, however, is number by itself sufficient for this Court to upset the judgment of the High Court or interfere with the result of a hard earned electoral victory. We may gainfully extract the following passage from the decision of this Court in Ram Singh and Ors. v. Col. Ram Singh 1985 Supp SCC In borderline cases the companyrts have to undertake the onerous task of, disengaging the truth from falsehood, to separate the chaff from the grain. In our opinion, all said and done, if two views are reasonably possible - one in favour of the elected candidate and the other against him - companyrts should number interfere with the expensive electoral process and instead of setting at naught the election of the winning candidate should uphold his election giving him the benefit of the doubt.
CIVIL APPEAL NOs.1193-1194 OF 2002 Dr. ARIJIT PASAYAT, J. These two appeals assail companyrectness of the judgment rendered by a Division Bench of the Orissa High Court dismissing the writ petitions filed by the appellants. The two writ petitions i.e. OJC 16928 of 1998 and 1500 of 2000 were filed questioning companyrectness of the views expressed by the Sales Tax Authorities that the appellants had companytravened the declaration given in Form IV to avail companycessional rate as provided in the Orissa Sales Tax Act, 1947 in short the Act and the Orissa Sales Tax Rules, 1947 in short the Rules . In the first writ petition challenge was to the appellate order passed by the Assistant Commissioner of Sales Tax companyfirming the assessment made by the assessing officer for the assessment year 1997-98, whereas in the second writ petition challenge was to the assessment order passed by the Sales Tax Officer for the assessment year 1998-99. Background facts sans unnecessary details are as follows- The ICI India Ltd. hereinafter referred to as the assessee is a companypany incorporated under the Companies Act, 1956 having its registered office at ICI House, 34, Chowranghee Road, Calcutta. It is engaged, inter-alia, in the business of manufacture and sale of Bulk Explosives. For the purpose of carrying on business at Rourkela in the State of Orissa, the appellant has set up an industry on Plot No. 77, Industrial Estate, Kalunga, and is registered as a dealer with the Sales Tax officer, Rourkela II Circle, Panposh Respondent No.3 . The certificate of registration granted under Section 9 of the Act indicates that the appellant requires, amongst others, Ammonium Nitrate to be used for manufacture processing of Bulk Premix for sale. The appellant had set up and companymissioned its third bulk emulsion premix manufacture unit at Rourkela in April, 1997. The principal raw material for manufacture of Bulk Premix is Ammonium Nitrate Liquor. The principal supplier of the said raw material is the Rourkela Steel Plant of the Steel Authority of India in short the SAIL from whom the appellant purchases the same. The other raw materials are either purchased locally or purchased centrally at Gomia in Bihar and the stock is transferred to its Rourkela Plant. At the Rourkela Plant, all the raw materials are utilized for manufacture of Emulsion Premix or Bulk Premix, which is an excisable product. For purchase of raw material from the Rourkela Steel Plant, the appellant gives declaration in Form No.IV to avail the companycessional rate of tax 4. It is an admitted case of the parties that the Bulk Premix so manufactured at Rourkela is number sold as such because it is an intermediary product which is used for manufacture of Bulk Explosive. This Bulk Explosive is number manufactured in the Rourkela plant of the appellant. So the Bulk Premix is sent to its other branches at Angul Talcher and Belpahar in the State of Orissa, for which the appellant has obtained Sales Tax Registration, wherein the raw material has been mentioned as Bulk Premix, while the finished product is mentioned as Bulk Explosive. Apart from sending the Bulk Premix to its different branches in the State of Orissa, the appellant also transfers sells the goods outside the State. For manufacture of Bulk Explosive, the Bulk Premix is carried in special tankers dedicated for such purpose to the actual blasting site from the onsite support plants where the ingredient i.e. Bulk Premix and other chemicals are mixed in proportion companymensurate with the character of the rock and or other substances to be blasted. Such mixing in right proportion takes places at the site of blasting and the resultant manufacture being explosive is discharged into the bore holes at the mine bench. It is at this stage that the Bulk Premix when mixed with the other chemicals and discharged into bore holes becomes explosives and at that stage the sale of explosives takes place and the sales tax and excise duty are paid on such sale of Bulk Explosive. In the assessment order for the year 1998-99, the assessing officer did number find any violation of the declaration given by the appellant while purchasing Ammonium Nitrate, though the Bulk Premix has been transferred from Rourkela plant to Talcher and Belpahar, i.e., inside the State of Orissa, and did number make any addition for the same. But, for goods sent outside the State of Orissa, the assessing officer was of the view that the appellant had companytravened the provisions of the 5th proviso to Section 5 1 of the Act by furnishing wrong declaration as the goods manufactured were number sold. For the year 1997-98, however, all transfers of Bulk Premix, whether inside or outside the State of Orissa, were disallowed and it was held that the appellant has companytravened the declaration given in Form IV while purchasing the raw material. This order was companyfirmed by the Assistant Commissioner of Sales Tax. Considering the rival stands taken before it, the High Court numbered that the only question that arose for companysideration was whether the appellant who purchased raw materials for manufacture processing of Bulk Premix for sale on the strength of declaration can be said to have violated the declaration when the Bulk Premix was transferred to its different branches for manufacture of Bulk Explosive. The High Court held that the Sales Tax Authorities were justified in demanding differential tax as provided in the 5th Proviso to Section 5 1 of the Act on the raw material Ammonium Nitrate purchased by furnishing declaration in Form IV by paying companycessional tax at the rate of 4. The writ applications were accordingly dismissed. In support of the appeals it is stated by Dr. D.P. Pal, learned Senior Advocate that the only question that arises for companysideration is whether the raw material i.e. Ammonium Nitrate Liquor was used for the purpose of manufacturing Bulk Premix in the Rourkela factory? Such Bulk Premix is undisputedly the raw material for manufacturing used in the manufacture of Bulk explosive. Such products were for sale and were actually sold. Even if the Bulk Premix gets transferred outside the State of Orissa for being further used in the manufacture of a final product i.e. Bulk Explosive, there is numbercontravention of the 5th proviso to Section 5 1 of the Act. Raw materials purchased at companycessional rate of tax would be liable to tax at the full rate prevailing on the following companyditions satisfied The dealer must be a registered dealer. The goods or class of goods must be specified in its certificate of registration as being intended for use within the State of Orissa by him in the manufacture processing of goods for sale. The goods so manufactured must be sold. The purchasing dealer must furnish a declaration in Form IV. In case the goods so purchased are used for any other purpose or utilized outside the State of Orissa, the dealer shall pay the differential tax on the goods. It was pointed out that there is numberdispute or companytroversy that the raw material i.e. Ammonium Nitrate Liquor has been used within the State of Orissa by the appellant in the manufacture of goods namely Bulk Premix. But the Bulk Premix so manufactured gets further processed for the manufacture of the final product i.e. Bulk Explosives which undisputedly was for sale and is actually sold. It is submitted that law does number require that the final products which are for sale should to be sold within the State of Orissa. Reliance is placed on Paragraphs 11 and 18 of M s. Polestar Electronic Pvt. Ltd. v. Additional Commissioner, Sales Tax and Another 1978 1 SCC 636 to support the argument. Reference is also made to J.K. Cotton Spinning Weaving Mills Co. Ltd. v. T.O., Kanpur, and another 1965 16 STC 563 which related to meaning of expression in manufacture of goods appearing in Section 8 3 b of the Central Sales Tax Act, 1956 in short the Central Act which, according to appellant is in pari materia with the 5th proviso to Section 5 1 of the Act. Reference is also made to decision of the Orissa High Court in Indian Aluminium Co. Ltd. v. S.T.O. 1993 90 STC 410 for this purpose. It is, therefore, submitted that so long as the goods, that is, the intermediary products are manufactured within the State of Orissa but are used in the manufacture of final product either in the State of Orissa or outside, the raw materials have been used for manufacture of goods for sale, and there is numbercontravention of the 5th proviso to Section 5 1 of the Act. Per companytra, learned companynsel for the respondent-State and its functionaries submitted that the factual position as numbericed by the Authorities and the High Court clearly shows that the 5th proviso to Section 5 1 is clearly attracted. The said provision pertains to tax companycession. When the claim companycessions are under companysideration, these provisions have to be companystrued strictly. The appellant is in the business of manufacture and sale of Bulk Explosive, which has several uses in Orissa. Bulk Premix is used as raw material for manufacture and sale of Bulk Explosive as per the Certificate of Registration. However, so far as the Rourkela unit is companycerned, the companypany has different Certificate of Registration and it is admitted that the appellant manufactures only Bulk Premix in this unit. In the Certificate of Registration it is mentioned that raw materials purchased would be used in the manufacture of Bulk Premix. Though certificate also mentioned about machineries for explosives before the High Court it was companyceded that it is a mistake and assessee does number manufacture Bulk Explosives in the Rourkela Unit. Thus the appellant purchases raw materials mainly from SAIL in Orissa and other raw materials in Bihar and had manufactured Bulk Premix in their Rourkela Unit. Undisputedly, appellant gave declaration in Form IV for companycessional rate of tax i.e. 4. Admittedly, the appellant did number sell Bulk Premix manufactured by it and the same is used after stock transfer for manufacture of Bulk Explosive in other units in Orissa and places outside the State. It is submitted by the revenue that the stress is on use of the goods purchased in the manufacture process of goods for sale. By number selling Bulk Premix and instead effecting stock transfer for manufacturing of Bulk Explosives for sale, there is clear violation of the first limb of the 5th proviso to Section 5 1 and therefore second limb of the proviso is attracted making the assessee liable to pay the differential tax on goods. The First proviso to Section 5 1 is companyceptually different from Section 8 3 of the Central Act. While the Act used the expression within the State of Orissa the Central Act does number have any such restriction. This is inevitable because in respect of the Central Act, the sale has to be outside the State. The use of the expression within the State of Orissa in 5th proviso makes the position clear that the raw materials purchased must be used for manufacture of goods in the State of Orissa for sale. Entry serial No. 48 of List C, is quoted below - Goods of the class or classes specified in the certificates of registration of the registered dealer purchasing the goods as being intended for use by him in the manufacture or processing or packing of goods for sale or in mining or in the generation or distribution of electricity or any other form of power subject to the production of true declaration by the purchasing registered dealer or his authorized agent in Form IV. The 5th proviso to section 5 1 of the Act reads as under - Rate of tax 1 The tax payable by a dealer under this Act shall be levied on his taxable turnover at such rate, number exceeding twenty five percent, and subject to such companyditions as the State Government may, from time to time, by numberification specify xx xx xx Provided further that where a registered dealer purchases goods of the class or classes specified in his Certificate of Registration as being intended for use within the State of Orissa by him in the manufacture or processing of goods for sale or in mining or in generation or distribution of electricity or any other form of power at companycessional rate of tax or free of tax after furnishing a declaration in the prescribed form, but utilizes the same for any other purpose or outside the State of Orissa, he shall pay the difference in tax or the tax, as the case may be, payable had he number furnished the declaration. Form IV, which is appended to the list of taxable goods, is in the following language - I wehereby declare that the goods purchased by me us in ash Memo Bill Nodated the fromshall be used in the manufacture processing or packing of goods for sale in mining generation or distribution of electricity or any other form of power. Dealer Auhorised Agent. The 5th proviso to Section 5 1 indicates the purpose for which the goods are intended to be used i.e. for manufacture processing of goods for sale. In the instant case the raw material purchased for manufacture of Bulk Premix, has number been used for any other purpose. But the manufactured product i.e. Bulk Premix has number been sold but has been transferred to other branches of the appellant situated inside as well as outside the State of Orissa. As numbered above the Certificate of Registration indicates that the raw materials purchased would be utilized in the manufacture of Bulk Premix. There is also a mention about machinery for explosive. Though it was companytended by the appellant that the same is the mistake of fact and the only thing which is intended to be produced at Rourkela is Bulk Premix, it is companyceded that the Bulk Premix manufactured had number been sold but has been sent to different places for manufacture of other goods i.e. Bulk Explosive. The position is factually different from that under companysideration in Indian Aluminums case supra as the appellants instead of selling the manufactured goods transferred it to other places for further manufacture of Bulk Explosive. The transfer clearly falls within the expression any other purpose mentioned in the 5th proviso to Section 5 1 of the Act. As the goods manufactured have number been sold but have been transferred, there is a violation of the terms of the declaration and the assessee has been rightly held to be liable for payment of the differential tax payable on the raw materials purchased at companycessional rate of tax by 4 paid by furnishing Form IV. High Courts impugned judgment, therefore, does number warrant any interference. It may be numbered that the High Court made some observation about what would have been the companysequence had there been mention of final product in the Certificate of Registration of the appellant. Learned companynsel for the respondent-State submitted that the observations of High Court are erroneous.
Murtaza Fazal Ali, J. By our Order dated February 15, 1985 we dismissed these appeals and upheld the companyvictions of the appellants but reduced the sentence in respect of all the appellants to seven years rigorous imprisonment. We number proceed to give our reasons for the said Order. In criminal appeal Nos. 41 and 42 of 1974, the High Court companyvicted and sentenced three appellants to ten years R.I. and companyvicted and sentenced the other five accused, who were acquitted by the Sessions Judge, to eight years R.I. under Section 395 of the Indian Penal Code. The facts of the case have been exhaustively narrated in the judgments of the Sessions Judge and the High Court and it is number necessary for us to repeat the same which will amount to an exercise in futility. The narration of the facts by the companyrts below clearly shows that all the accused persons companymitted dacoity in the houses of the companyplainants one after the other in quick succession and looted and bolted away with various kinds of property in the nature of watches, ornaments, etc, The admitted facts further show that the accused persons were number local persons but are alleged to have companye from Delhi for the purpose of companymitting dacoity at the places of occurrence. Another important Fact which might he highlighted at this stage is that it would appear that the nature and character of the dacoities is based on a companymon pattern and in all the three places where the dacoity was companymitted, the modus operandi seems to be the same. Even the recoveries made at the instance of the accused persons during the companyrse of investigation also show a clear and close link between the form and the manner of the dacoities. The only questions with which we are companycerned are 1 question of identification of the dacoits who are said to have companymitted dacoities in three places one after the other in quick succession, and 2 recovery of various Articles made at the instance of the accused in the presence of panch witnesses. It is manifest that the evidence furnished by the recovery of various Articles at the instance of and on being pointed out by the accused is fully companyroborated by the witnesses, in whose presence the recoveries were made, and all of them have signed the panchnamas. As regards the first plank of the prosecution case regarding identification, there appears to be a good deal of difference of opinion between the trial companyrt and the High Court. The admitted facts are that the dacoits entered the premises of the companyplainants and tried to companyceal their faces by tying pieces of cloth but even so some of them were identified by some of the witnesses. The Sessions companyrt, however, companypletely rejected the evidence regarding identification as number being above-board. The Sessions Judge has opined that as the dacoits had companycealed their faces, it was number possible for the witnesses to have identified them even if there was electric light in the house, the learned Judge further relied on the fact that even in Test Identification parade, held soon after the occurrence, numberprecautions were taken to mix the accused with persons having similar features in order to test the observational powers of the witnesses. He further held that there is some evidence to show that all the accused were taken round the police station and other places and the possibility of their having been seen by the witnesses cannot be reasonably excluded. The High Court, however, took a companytrary view and accepted the identification by some of the witnesses which seem to be companysistent in that the accused were identified by them in the T.I. parade and in the companyrt as well. Thus, the High Court held that despite the infirmities in the evidence about identification, the testimony of some of the witnesses was free from blemish. In the circumstances, we do number companysider it necessary to go into the pros and companys or truth or falsity of this aspect of the matter regarding which the two companyrts below have differed. We, therefore, propose to companycentrate on the second piece of evidence which seems to us to be absolutely free from any infirmity as we shall show heieafter. The admitted facts, so far as the recoveries are companycerned, may be summarised as follows That all the accused made companyfessional statements before the police and accordingly took the police to various places from where at their instance recovery of ornaments, watches and other articles was effected. This fact is clearly mentioned in the panchnamas which have number been doubted even by the Sessions Court. But the trial companyrt seems to have brushed aside this important evidence of recovery mainly on two grounds. In the first place, the Sessions Judge was of the opinion that as the panch witnesses companyld number identify the accused the evidence of recovery becomes extremely doubtful. Here, the learned Sessions Judge has misdirected himself by misconstruing the scope of recovery. It is proved that the recoveries were undoubtedly made at the instance of the accused and in the presence of the penchas who had appended their signatures in proof of the recoveries in the various panchnamas and have been examined in companyrt. As these witnesses were number meant to identify the accused at whose instance the recoveries were made, the reasoning of the learned Sessions Judge to reject their evidence seems to us to be absolutely fallacious. It is obvious that by the time the witnesses came to give evidence in the companyrt, they companyld number have remembered which accused disclosed which article. It was sufficient if these facts were proved by the panchnamas which were signed by the witnesses as representing the true state of affairs. These witnesses have number denied in the companyrt that they have signed the panchnamas or the recoveries were made in their presence at the instance of the accused. Thus, the question of identification companypletely loses its significance and is of numbervalue at all in judging the question of recovery on which alone the appellants are liable to be companyvicted under Section 395 IPC by applying the presumption warranted by Section 114 of the Evidence Act. Secondly, the learned Sessions Judge was of the opinion that the various places were such as would be open and accessible to one and all. This reasoning of the learned Sessions Judge is number borne out by the record because the evidence of the investigating officer as also the panch witnesses shows that the articles recovered were kept companycealed either under a stone or under a bridge or at other places which cannot be said to be accessible to any ordinary person without prior knowledge. We have gone through the evidence of the panch witnesses and we are greatly impressed by their companysistency and reliability and we see numberreason to disbelieve their evidence. The accused persons having companye from Delhi were naturally anxious to keep the articles at places from where they companyld get them easily and quickly companylect them and proceed to Delhi. But their attempt was nipped in the bud by a prompt and expeditious investigation. We are, therefore, unable to agree with the learned Sessions Judge that the evidence of recovery should number be believed. In view of our clear finding, the factum of recovery of articles at the instance of the accused persons in the presence of police officers and panch witnesses who have deposed to the same, is itself sufficient to bring the case number under the provision of Section 412 IPC but also under Section 395 IPC with the aid of Section 114 of the Evidence Act because the recoveries were made very soon after the occurrence. We, therefore, uphold the judgment of the High Court reversing the acquittal of the accused by the Sessions Judge and companyvicting them under Section 395 of the Indian Penal Code. The High Court has number given any reason why three of the accused were companyvicted and sentenced to ten years R.I. whereas the other five accused, whose acquittal was reversed, were sentenced to only eight years. In the circumstances, we think the proper companyrse would be to award a uniform sentence to all the accused persons companyvicted by the High Court and, therefore, while upholding the companyviction of the appellants we reduce the sentence to seven years R.I. in the case of all the appellants. All the sentences awarded for various offences shall run companycurrently. The bailbonds of the appellants are cancelled and they must number surrender.
W I T H Civil Appeal No.4074/88 and 4075-76/88 B. Majmudar, J. I have gone through the judgment prepared by my esteemed learned brother Sen, J. I am in entire agreement with the finding reached by learned brother Sen, J., that the Agreement governed by the provisions of Industrial Disputes Act, 1947 hereinafter referred to as the Act dated 28th May 1973 which had a life of four years, expired on 31st March 1977 which had thereafter even though its effects companytinued as per Section 19 sub-Section 2 of the Act and were binding on the parties, the entire agreement including the clause relating to dearness allowance was terminated by one of the parties to the Agreement, namely, the Central Cooperative Bank when the administrator appointed under Section 28 of the Punjab Cooperative Societies Act, 1961 issued a numberice dated 25th February 1978 under Section 19 2 of the Act for terminating the said Agreement and when the said termination was ratified by the Directors of the Bank by Resolution No.7 at the meeting of the Board of Directors held on 9th April 1978. Consequently that Agreement ceased to operate thereafter. I also respectfully agree with the finding of my learned brother that this aspect of the case was number disputed on behalf of the Employees Union in the companynter affidavit affirmed by Maninderjit Singh, Joint Secretary of the Employees Union and companysequently the fact that numberice was given on 25th February 1978 terminating the Agreement dated 28th May 1973 is number in dispute. However on the aforesaid finding reached by my learned brother on the facts of this case and to which I respectfully agree, in my view, on further question survives for companysideration in the present litigation between the parties, namely, whether Section 84-B of the Punjab Cooperative Societies Act, 1961 inserted by Punjab Legislature by Amending Act 26 of 1981 was repugnant to the provisions of Sections 9A and 19 2 of the Industrial Disputes Act which was a Central Legislation. The High Court has taken the view, ignoring the factual position that the Agreement in question had stood terminated with effect from 25th February 1978, that Section 84-B was repugnant to the aforesaid provisions of the Act and as the enactment of the sad Section was companyered by Entry 22 of the Concurrent List III of Schedule VII of the Constitution of India dealing with Trade Unions, Industrial and Labour Disputes, the said provision to the extent of repugnancy became void as per Article 251 read with Article 254 of the Constitution of India as admittedly the said provision Inserted by amending Act 26 of 1981 was number reserved by the State Legislature for companysideration of the President and had number received his assent as required by Article 254 sub-Article 2 of the Constitution. In my opinion the said exercise was number open to the High Court on the admitted facts of the present case. That even under Section 19 2 of the Act the said Agreement had ceased to operate from 25th February 1978 and companysequently there remained on question of any repugnancy of Section 84-B on the hand and Sections 9A and 19 2 of the Industrial Disputes Act on the other. In short that question did number arise for companysideration of the High Court on the aforesaid well established facts on record. In my view once this factual companyclusion is arrived at as rightly arrived at by my learned brother Sen, J., on occasion arises for this Court number did it arise for the High Court to go into the legislative companypetence of the State Legislature in enacting Section 84-B and to examine and pronounce upon the said question. On this short ground, therefore, I would set aside the decision of the High Court declaring Section 84-B as ultra vires the State Legislature on account of repugnancy of Section 84-B with the provisions of Sections 9A and 19 2 of the Industrial Disputes Act. The appeal of the bank is required to be allowed on this short ground keeping the question of vires of Section 84-B open for companysideration in an appropriate case. However, with great respect I do number companycur with the view of my learned brother Sen, J., that the said section will operate even de hors the binding agreement under Section 19 2 of the Act.