Datasets:

santoshtyss

/

indian_courts_cases

like 5

PATTANAIK,J. These writ petitions filed under Article 32 of the Constitution by the officers of Delhi Higher Judicial Service, some by the promotees and others by direct recruits, in-fact, raise the question as to whether in determining inter-se seniority between the promotees and the direct recruits, the guidelines and directions given by this Court in the case of O.P.Singla Anr.etc. vs. Union of India Ors., reported in 1985 1 SCR 351, have been duly followed or number? It is rather unfortunate that on an erroneous impression that the judgment in Singlas case is under companysideration before a Constitution Bench, these writ petitions were directed to be placed before a Constitution Bench, resulting thereby inordinate delay in disposal of the matters, which in turn, must have adversely affected the career of several persons. At the beginning of the hearing of these writ petitions, on being asked, the companynsel appearing for all the parties, companyld number indicate any decision where the companyrectness of judgment of this Court in Singlas case was under companysideration, though in one of these writ petitions filed by a direct recruit, namely Writ Petition No. 1252/90, Mr. Gopal Subramanium, the learned senior companynsel for the petitioner, challenged the companyrectness of decision of this Court in Singlas case to which, we will advert at the appropriate time. Suffice it to say for the present that O.P.Singla, who was also a promotee to the Delhi Higher Judicial Service, filed the writ petition, claiming that since they have been working as Additional District and Session Judges, against temporary posts created by the Delhi Administration in the cadre of Additional District Sessions Judge, they should be treated as Members of Delhi Higher Judicial Service and the seniority should be decided on the basis of companytinuous length of service. The three Judge Bench, which heard the case delivered two judgments, Chief Justice Y.V.Chandrachud, as he then was, speaking for himself on behalf of Justice S. Pathak and Justice Sabyasachi Mukharji, giving a separate judgment. Chief Justice Chandrachud in the majority judgment also indicated that the companyclusion which the majority has arrived at, is number different from the one, reached by Justice Mukharji, but because of the general importance of the case and because of disagreement on the interpretation of one of the provisions of the Recruitment Rules, it was thought fit that the separate judgment should be written. The disagreement between the two judgments was on the question as to whether the Recruitment Rules, provided for any quota in the Delhi Higher Judicial Service and whether the principle of quota and rota was required to be followed for determining the inter-se seniority. Interpreting the proviso to Rule 7 of the Rules, Jusitce Mukharji came to the companyclusion that Rule 7 only provides for ceiling of direct recruits by providing that in case, there were recruitment from the Bar as well as by promotion, in such a case, Bar recruits would number be more than one third of the substantive posts in the service and there is numberquota as such. Justice Mukharji was of the view that Rule 8 2 proceeds on the mis-conception that there is quota fixed for direct recruits, which Rule 7 does number and Rule 8 2 cannot on plain literal meaning also be companystrued or interpreted to mean that it was deemed by the legislature and the rule-making body to engraft any quota. Chief Justice Chandrachud, on the other hand, speaking for himself as well as on behalf of Justice Pathak, on a companystruction of Rule 7 and Rule 8 2 , came to hold that the proviso to Rule 7 has to be read along with Rule 8 2 , since the two provisions are interrelated and their companybined reading yields but one result, that the proviso prescribes a quota of one third for direct recruits. It was also held that Rule 8 2 cannot be held to be unconstitutional, merely because it reserves one third of the vacancies in the service for direct recruits and provides that the first available vacancy in the service will be filled in by a direct recruit, the next two by promotees and so on. In the majority judgment, Their Lordships also came to the companyclusion that though the proviso to Rule 7 prescribes a quota of one third for direct recruits and provides for rotation of vacancies between them and the promotees, who are appointed to the service, that rule must inevitably break down when appointments to promotees are made to the Service under Rules 16 and 17. Having interpreted the provisions of Rules 7 8 of the Recruitment Rules, as aforesaid, their Lordships examined the different provisions of the Recruitment Rules and recorded their findings, which would be appropriate for us to enumerate for resolving the companytroversy in these writ petitions. On going through the detailed charts, which were filed by the promotees in Singlas case, the Court came to the companyclusion These charts show, indisputably, that promotees who have been functioning as temporary Additional District and Sessions Judges for an unbroken period between 8 to 12 years are regarded as juniors to the direct recruits who have been appointed as Additional District and Sessions Judges much later. The Court further held The process of reading the Rules as parts of a companynected whole does number end with Rules 7 and 8. Rules 16 and 17 are also relevant for the present purpose and have, indeed, an important bearing on the question of reservation of vacancies for direct recruits to the extent of one-third of the substantive posts in the Service. Adverting to Rules 16 and 17 it was held The position which emerges from the provisions companytained in Rules 16 and 17 is that it is permissible to create temporary posts in the Service and, even substantive vacancies in the Service can be filled by making temporary appointments. Interpreting Rules 2 b and 2 d , it was held that according to the scheme of the Rules in this case, Service is a narrower body than the cadre. In interpreting Rules 2 b and 2 d , Their Lordships held that by the definition companytained in Rule 2 d , membership of the Service is limited to persons, who are appointed in a substantive capacity to the Service, but by reading the second part of Rule 2 b in an extended sense, every temporary post which carries the same designation as that of any of the posts specified in the Schedule is a Cadre Post, whether such post is companyprised in the Service or number. Such posts and the posts specified in the Schedule will together companystitute the Cadre under Rule 2 b , if an extended meaning is given to the second part of the rule. Having given such meaning to the provisions of Rules 2 b , 2 d , 7, 8, 16 and 17, the Court proceeds to determine the question of seniority between direct recruits and promotees. It was then observed Care has, therefore, to be taken to apply the provisions of Rule 8 2 in such a manner as number to lead to the violation of the guarantee of equality and equal opportunity companytained in Articles 14 and 16 of the Constitution. For that purpose, it is necessary to ascertain as to which of the promotees can be regarded as belonging to the same class as the direct recruits. In its pursuit to ascertain as to which of the promotees can be regarded as belonging to the same class as direct recruits, the Court observed that in the matter of seniority, it is difficult to appreciate, how any distinction can be made between direct recruits who are appointed to substantive vacancies in the Service on the recommendation of the High Court under Rule 5 2 and the promotees, who are appointed in companysultation with the High Court to posts in the Service under Rules 16 and 17. While companying to the aforesaid companyclusion, it was also indicated that the persons belonging to the Delhi Judicial Service, who are appointed to temporary posts of Additional District and Sessions Judges on an ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement, companystitute a class which is separate and distinct from those who are appointed to posts in the Service in strict companyformity with the rules of recruitment. The Court, then numbered a representative order of appointment under Rule 16 and held that such appointments were neither ad hoc, number fortuitous, number in the nature of a stop-gap arrangement and persons promoted under such orders have been factually officiating companytinuously without a break as Additional District and Sessions Judges for a long number of years. Their Lordships numbericed the difficulties in evolving a rule, which will cause numberhardship of any kind to any member of the Service and yet attempted to minimise the same as far as possible, so that inequities and disparities which are inherent in a system which provides for recruitment to the Service from more than one source. It would be appropriate to extract the following observations made by Their Lordships in the majority judgment It may bear emphasis that promotees appointed under Rules 16 and 17 to the Higher Judicial Service can rank for seniority along with direct recruits only if they are appointed in companysultation with the High Court as required by those Rules and if they satisfy the requirement laid down in Rule 7 a that they must have companypleted number less than ten years of service in the Delhi Judicial Service. The best solution to the situation that companyfronted the Court in Singlas case was to adopt the rule enunciated in B. Patwa rdhan vs. State of Maharashtra, 1977 3 SCR 775, to have companytinuous officiation in a numberfortuitous vacancy ought to receive due recognition in fixing seniority between persons who are recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear the same responsibilities. It was also held that since rule of quota and rota ceases to apply when appointments are made under Rules 16 and 17, the seniority of direct recruits and promotees appointed under those Rules must be determined according to the dates on which direct recruits were appointed to their respective posts and the dates from which the promotees have been officiating companytinuously either in temporary posts created in the Service or in substantive vacancies to which they were appointed in a temporary capacity. Justice Mukharji in the separate judgment also came to the same companyclusion for determining the inter-se seniority between the promotees and direct recruits. It may be numbericed that the Court ultimately quashed the seniority list which had been prepared by the High Court and observed that a new seniority list be prepared on the basis of the view taken in the judgment and the said new seniority list would include the direct recruits and promotees appointed under Rules 16 and While quashing the seniority list, the seniority of Shri G.S.Dakha was protected, since he had been appointed as Additional and Sessions Judge in a vacancy reserved for the members of Scheduled Caste. Subsequent to the judgment of this Court in Singla, the High Court of Delhi redrew up a seniority list on 26th of March, 1985 and in drawing up the said list, the principle that was evolved is the subject matter of challenge in the writ petitions filed by the promotees. It may be stated that a fresh look was also given to the earlier seniority list that had been prepared on 26th of March, 1985 and a Committee of Judges submitted the report on 5th of March, 1986, which was approved by the Full Court in its Meeting on 25th of October, 1986 and the final seniority list thus emanated on 11th of November, 1986. According to the promotee officers, while preparing the final seniority list, the High Court of Delhi has number followed the directions given by this Court in Singlas case and erroneously did number take into companysideration the companytinuous appointment of the officers as Additional District and Sessions Judge, numberwithstanding the fact that the appointments had been made after due companysultation with the High Court and the appointees fulfilled the requirements of Rule 7 1 of the Recruitment Rules, on an erroneous companyclusion that the appointment was ad hoc or fortuitous or stop-gap. A representation appears to have been filed by the promotees in 1987 and then the present writ petition was filed which was registered as Writ Petition No. 490/87. At the outset, it may be stated that the Delhi Higher Judicial Service Rules 1970 were amended in the year 1987 by Notification dated 17th of March, 1987, subsequent to and pursuant to the observations made by this Court in Singlas case and by virtue of explanation added to Rules 16 and 17, Rules 5 and 7 to 11 became applicable to such appointments also. We are number companycerned in this batch of cases with the effect of such amended provisions or the inter-se seniority to be determined subsequent to the year 1987, though we are told that a fresh seniority list has been prepared in March, 1995 and the Full Court of Delhi High Court has taken a decision thereof in the year 1998. For the present, we are only companycerned with the question whether in preparing the seniority list of the officers recruited to the Higher Judicial Service from both the sources viz. as direct recruits as well as by promotion, prior to the amendment of 1987, the directions and companyclusions of this Court in Singlas case has been duly given effect to. Mr. Kapil Sibal, the learned senior companynsel, appearing for the petitioners in Writ Petition No. 490/87, who are the promotees, companytended that even though the recruitment to the Higher Judicial Service of these petitioners have been made either under Rule 16 or under Rule 17 of the Recruitment Rules after due companysultation and / or approval of the High Court and the incumbents were duly qualified for being promoted under Rule 7 of the Recruitment Rules and had companytinuously held the posts of Additional District and Sessions Judge, yet the High Court erroneously was of the opinion that they are ad hoc or fortuitous or stopgap appointees and, therefore they were made junior to the direct recruits and the companytinuous length of service was number taken into account for the purpose of determination of the inter-se seniority. According to Mr. Sibal, there was numberambiguity in the judgment of this Court in Singlas case, but since the Court had number indicated as to when an appointment can be said to be ad hoc or fortuitous or stop-gap arrangement, the High Court went on examining the number of posts that were available on 22.4.1980, the date on which Smt. Usha Mehra was directly appointed and then after giving her the 30th position in the seniority list, the promotees seniority were adjusted and all other promotees who even though have been recruited under Rules 16 or 17 after due companysultation with the High Court and also satisfied the qualification required under Rule 7 and had companytinuously held the post of Additional District and Sessions Judge, much prior to Smt. Usha Mehra, yet such appointments of the promotees was held to be ad hoc or fortuitous and by adopting such procedure, the High Court acted companytrary to the judgment and directions of this Court in Singlas case. According to Mr. Sibal, it is only when an appointment is made to the Higher Judicial Service of a person, belonging to the Delhi Judicial Service without due companysultation or approval of the High Court or when such appointee did number have the prescribed qualification under Rule 7 for being promoted or any short term appointment is made in exigency of any particular situation, requiring immediate recruitment or an appointment is made purely by way of stop-gap arrangement, which can obviously be for a very short period, then only the appointment can be held to be on ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement and in such a companytingency, the Services rendered by an appointee cannot be companynted for the purpose of seniority in the Higher Judicial Service. But when the appointment is made by the Administrator either under Rule 16 or Rule 17, after due companysultation with or getting the approval of the High Court and the appointee satisfies the qualification required under Rule 7 and companytinuously holds the post of Additional District and Sessions Judge for a fairly long period, as in the case in hand, it is difficult to import the companycept of ad hoc or fortuitous or stop-gap, which is well known in the Service Jurisprudence to such appointments. In this view of the matter, the High Court companymitted serious error in companying to the companyclusion that the appointment of the petitioners was ad hoc fortuitous stop-gap and companysequently, the seniority list thus prepared is companytrary to the directions given by this Court in Singlas case. The second Committee, which examined the objections filed to the provisional list, approved by the Full Court of Delhi High Court in its Meeting held on 15th of May, 1985 also companymitted the same mistake as the earlier Committee and went on examining the question of lien under the fundamental rules, and as to how many of the incumbents of the Delhi Higher Judicial Service were on deputation to different posts for the purpose of finding out as to whether the appointments made in that chain would be ad hoc or fortuitous or stop-gap. According to Mr. Sibal, the second Committee, even went to the extent of holding that if a quota post meant for direct recruit according to the quota, remains unfilled, then the promotee occupying the last post must be taken to be holding the post on ad hoc basis or for fortuitous reasons or by way of stop-gap arrangement and the promotee holding the last post must be made to surrender it, and applying this theory one Shri Sagar Chand Jain, who had worked for about four years as Additional District Sessions Judge was made junior to Smt. Usha Mehra but according to the Committee that was the best solution, and, therefore, the provisional seniority list already approved by the Full Court was recommended to be accepted as the final list. From the final seniority list, it transpires that Shri Sagar Chand Jain had been appointed as Additional District and Sessions Judge on 27.7.76, whereas Smt. Usha Mehra was appointed as Additional District and Sessions Judge as a direct recruit on 22.4.1980, but yet she was shown senior to Shri Jain. Mr. Sibal also pointed out that even the officers who had been appointed in December, 1980 and had been companytinuing as Additional District Sessions Judge, yet their appointments were held to be fortuitous as three posts for direct recruitment had been advertised. According to Mr. Sibal, the High Court of Delhi had failed to implement the positive mandate of this Court in Singlas case and the spirit of the same in drawing up the seniority list and gross injustice has been meted out to the promotee officers. The learned companynsel points out that Shri M.A.Khan, Shri Ravi Kumar, Shri P.Dwivedi, Shri R.C.Jain and Shri J.D.Kapoor though had been duly appointed in the year 1980 under Rules 16 and 17 and had companytinuously held the post of Additional District and Sessions Judge, they were shown junior to Shri S.Chaudhary, a direct recruit, who was appointed on 10.11.1982. Similarly, Shri B.N.Chaturvedi and Shri C.Chopra, though had been appointed as Additional District and Sessions Judge in August, 1984 under Rule 16, after due companysultation with the High Court of Delhi and also were duly qualified under Rule 7 and companytinuously held the post of Additional District and Sessions Judge, yet they were made junior to the direct recruits of the year 1985 namely Ms. Sharda Aggarwal, Shri H.R.Malhotra and Shri J.P. Singh. This determination of inter-se seniority, according to Mr. Sibal is in companytravention of the principles evolved by this Court in Singlas case and, therefore, such seniority list cannot be sustained. Mr. Sibal also pointed out that even though, this Court in O.P.Singlas case categorically held that the companytroversy regarding the fixation of the seniority list between the promotees and direct recruits cannot be resolved following the earlier decision in the case of Joginder Nath, yet the High Court while drawing up the seniority list, followed the principle of Joginder Nath. According to Mr. Sibal, there cannot be a more blatant companytravention of the directions given by this Court in Singlas case than the one companymitted by the High Court in the case in hand. Mr. Dipankar Gupta, the learned senior companynsel, appearing for the petitioners in Writ Petition No. 1252/90, on the other hand companytended with force that since there cannot be any appointment more than the number of posts available in the Service and this Court having indicated that stop-gap fortuitous ad hoc appointments will number enure to the benefit of such appointees for the purpose of their seniority, it was incumbent on the High Court to identify the posts available in the Service for being regularly filled up and any appointments made in excess of the posts available must be held to be either stop-gap or fortuitous or ad hoc and, companysequently, the High companyrt did number companymit any illegality in drawing up the seniority list. Mr. Gupta also companytended that the Member of the Service having been defined in Rule 2 d to mean a person, appointed in a substantive capacity to the Service under the provisions of the Rules, and Rule 16 having provided for creation of temporary posts in the Service by the Administrator and filling up of the same, such appointments cannot be held to be appointments in the Service in substantive capacity and such appointees cannot be held to be Members of the Service within the meaning of Rule 2 d and on this ground, the Judgment in Singla case requires recompanysideration. Mr. Gopal Subramanium, the learned senior companynsel, appearing for the direct recruits, seriously companytended that the judgment of this Court in Singlas case is companytrary to the law laid down by this Court in Chandramouleshwar Prasad vs. Patna High Court Ors. , 1970 2 S.C.R., 666 , and, therefore, the said judgment must be reconsidered. He also companytended that the statutory rules having provided for a quota for the direct recruits, as apparent from a companybined reading of Rules 7 and 8, if numbersuch quota is fixed for the direct recruits in case of appointments made under Rules 16 and 17, then the rule will be grossly discriminatory and would be liable to be struck down and, therefore, until such quota is provided in respect of appointments made under Rules 16 and 17, it would only be meet and proper to hold that the seniority must be determined in accordance with Rule 8 2 , which would necessarily mean that the appointees under Rules 16 and 17 cannot claim parity with regular appointees under Rule 7 and, therefore, cannot claim seniority in the Cadre. The learned companynsel also companytended that the decision in Joginder Naths case being one, in relation to the very Service, the principles evolved therein must be made applicable and, High Court, therefore, rightly relied upon the same in determining the inter-se seniority. According to Mr. Subramanium, only the genuine appointees under Rules 16 and 17 may, at best, get the benefit of the decision of this Court in Singlas case and appointment made against temporary post, because the temporary appointee has gone elsewhere, cannot be held to be an appointment under Rule 16, even though, he might have been numberenclatured as such. Mr. Govind Das, the learned senior companynsel, appearing for the respondents in Writ Petition No. 490/87, fairly stated that this Court having number indicated the true import and meaning of the expression stopgap fortuitous ad hoc , the High Court had to give meaning to the same and in so doing, the High Court has taken into account the number of posts available in the Service and has tried to implement the directions given by this Court in Singlas case. According to Mr. Das, this Court should number indicate or clarify the meaning of the expression stop-gap fortuitous ad hoc in which event, there will number be any further companytroversy in implementing the directions of this Court for drawing up the seniority list. Mr. Rakesh Kumar also appearing for respondent No. 8 in Writ Petition No. 490/87, who happens to be a direct recruit, companytended that in Singlas case, this Court has tried to work out the equity and for working out equity, it will number be appropriate to take into account the Services rendered by an appointee against a temporary post when the original appointee against the said temporary post is on deputation to some other Service. According to Mr. Rakesh Kumar, by number following the quota, meant for direct recruits, gross inequity has already been met out to such direct recruits and over and above that, if the companytinuous service of such an appointee under Rule 16, as stated above is taken into account for determination of their seniority, then the aspiration with which a Member of the Bar joins the post in the Higher Judicial Service will be marred and it will work out gross inequity, so far as the direct recruit is companycerned. Shri J.P.Singh, respondent number 9 in Writ Petition No. 490/87, who is also a direct recruit, argued inperson and reiterated the stand taken by Mr. Dipankar Gupta, appearing for some of the direct recruits and Mr. P.P. Rao, appearing for the High Court. Mr. R.C. Chopra, a promotee, also appeared in-person and adopted the stand taken by Mr. Sibal. Mr. P.P. Rao, the learned senior companynsel, appearing for the Delhi High Court, on the other hand companytended that prior to the judgment in Singlas case, the High Courts understanding of the rule was that appointments made under Rules 16 and 17 will number companynt for the purpose of seniority and inter-se seniority has to be determined only between direct recruits and promotees made under Rule 7, following the principle engrafted in Rule 8 2 . But after the judgment in Singlas case, when the Court was companyfronted with a situation that there has been more number of appointments than the posts available and even in Singlas case, this Court had indicated that the fortuitous, ad hoc and stop-gap appointees, cannot claim their seniority, the Full Court of Delhi High Court took the decision that all appointments made beyond the number of posts available, must assume the character of fortuitous, ad hoc or stop-gap, and, therefore, cannot claim seniority in the Cadre. According to Mr. Rao, though in Singlas case, the Court has number indicated the meaning of the expression ad hoc, fortuitous or stop-gap but those expressions have been given due meaning in Parshotam Lal Dhingra vs. Union of India, 1958 SCR, 828, and, therefore, those meanings should be imported and given effect to. According to Mr. Rao, even though, the appointment letters might have indicated the appointments to be one under Rules 16 or 17, but that by itself will number create any right in favour of the appointees on the basis of the Singlas judgment inasmuch as a wrong leveling will number create a right as such. In support of this companytention Mr. Rao, relied upon decisions of this Court in the case of Afzal Ullah vs. The State of Uttar Pradesh, 1964 4 SCR 991 , and N.B.Sanjana, Assistant Collector of Central Excise, Bombay Ors. Vs. Elphinstone Spinning Weaving Mills Co. LTD., 1971 3 SCR, 506. Mr Rao with reference to the seniority list, which had been drawn up, companytended that when the appointments have been shown to be out of turn such appointment must be held to be fortuitous within the meaning of the said expression used in Singlas case and, therefore, such appointees cannot claim a parity or equality with the regular appointees under Rule 7 and, therefore, cannot claim their seniority on the basis of mere companytinuous length of Service, as companytended by Mr. Sibal, appearing for the promotees. Having examined the rival submissions at the Bar and having scrutinized the two seniority lists drawn up by the Delhi High Court, the provisional as well as the final, the provisional made on 26th of March, 1985 and the final list which was approved by the Full Court on 25th of October, 1986, we find sufficient force in the companytentions made by Mr. Sibal, appearing for the promotees. We are also of the companysidered opinion that the High Court of Delhi, in drawing up the seniority list, though proceeded to allocate seniority according to the length of companytinuous officiation, regardless of whether an appointee held a temporary post or a permanent post or whether he was a promotee or a direct recruit, as directed by this Court in Singlas case, but companymitted error by excluding the persons, on the ground that they held posts on ad hoc basis or for fortuitous reasons or by way of stop-gap arrangement, even though appointments had been made under Rules 16 and 17 after due companysultation with and or approval of the High Court and the appointees satisfied the qualification required under Rule 7 of the Rules. It is on this score, the ultimate seniority list, drawn up, stands vitiated. When the report of the first Committee, on the basis of which ultimately provisional seniority list was drawn up is examined, it would appear that the Committee went on examining the question of a lien against a post and then, recorded a finding that anyone who companyes to hold one of those posts, which is subject to a lien, must be held to be holding as an ad hoc arrangement or for fortuitous reasons or as a stop-gap arrangement. The Committee also recorded a further finding that if the position of the person, whose seniority is under companysideration is beyond the total number of posts in the Service, then also his appointment must necessarily fall within the description of ad hoc fortuitous stop-gap and having said so, the Committee assigned Ms. Usha Mehra, the 30th post and then adjusted the seniority accordingly. The companyclusion of the Committee that a person, promoted to the Higher Judicial Service under Rules 16 or 17 of the Rules to a post against which some other person has a lien, would ipso facto make such appointment ad hoc fortuitous stop-gap, is companytrary to the companyclusion of this Court in Singlas case. Then again, this Court having categorically directed in Singlas case, that appointments made under Rule16 or 17, after due companysultation and or approval of the High Court, and the appointee did qualify to hold the promotional post, as required under Rule 7 of the Recruitment Rules, then such appointment of the appointee will number be ignored for the purpose of determining the inter-se seniority in the cadre and on the other hand, companytinuous length of Service should be the basis, though Rule 8 2 of the Rules provides otherwise. Yet the High Court took shelter under the expression ad hoc fortuitous stopgap and ignored the companytinuous length of Service of such appointees, while determining the inter-se seniority. In fact, in Singlas case, the Court on being companyfronted with a peculiar situation, had given the direction as to in what way, it will be equitable for all companycerned to determine the inter-se seniority, but numberwithstanding the same, the High Court appears to have stuck to the idea of the principles engrafted in Rule 8 2 of the Rules and then decided the question of seniority on the basis of number of posts, available in the Service. While doing so, the High Court obviously missed the findings of this Court that under the scheme of the Rules, Service is a narrower body than the cadre and every temporary post, which carries the same designation as that of any of the posts in the schedule is a cadre post, whether such post is companyprised in the Service or number. It is also apparent from the report that the High Court followed Joginder Naths case in drawing up the seniority, on the ground that the judgment in Singlas case does number indicate whether the earlier decision of the High Court in Joginder Naths case is still to be followed in preparing the seniority list or number, but obviously, the High Court has failed to appreciate, what was stated in the companycurrent judgment of Mukharji J, in Singlas case, wherein in numberuncertain terms, it was stated that so far as, companytroversy regarding the fixation of the seniority list between the promotees and direct recruits, the same will number be guided by Joginder Naths case inasmuch as in Joginder Naths case, the Court companystrued the Delhi Judicial Service Rules, 1970 in the companytext of seniority and companyfirmation and number in the companytext of inter-se seniority between the promotees and direct recruits. The entire reasoning given by the High Court in the first report, on the basis of which, provisional seniority list has been drawn up, cannot, but be held to be companytrary to the directions given by this Court in Singlas case, and accordingly, must be held to be erroneous. The reasoning of the High Court, in fact, nullifies the ratio in Singlas case, wherein Chandrachud CJ, had observed, after numbericing a representative order of appointment under Rule 16- The appointments were neither ad hoc, number fortuitous, number in the nature of a stop-gap arrangement. Indeed, numberfurther orders have ever been passed recalling the four promotees and, others similarly situated, to their original posts in the subordinate Delhi Judicial Service. Promotees who were under Rule 16 have been officiating companytinuously, without a break, as Additional District and Sessions Judges for a long number of years. It is both unrealistic and unjust to treat them as aliens to the Service merely because the authorities did number take up to the necessity of companyverting the temporary posts into permanent ones, even after some of the promotees had worked in those posts from five to twelve years. Yet, the High Court in drawing up the seniority list, have treated such promotees, who are appointed under Rule 16 as aliens to the Service and thus, the High Court was wholly in error in preparing the provisional seniority list, as already stated. If we examine the second Committee report, which had companysidered the objections filed by the promotees and ultimately, on the basis of which the final seniority list was approved by the Full Court in its Meeting on 25th of October, 1986 and the list was prepared on 11th of November, 1986, we also find, the High Court companymitted similar error in accepting the provisional seniority list as final. In the second Report, the Committee, again was of the view that if a post meant for a direct recruit, according to the quota, remains unfilled, then the promotee occupying the last post, must be taken to be holding that post on ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement. This indicates that the Committee was still obsessed with the provisions of Rule 8 2 of the Recruitment Rules, even though in Singlas case, it has been categorically held by this Court that quota principle has broken down and as such, seniority cannot be determined by taking recourse to the quota and rota provided under Rule 8 2 but on the basis of companytinuous length of Service, provided the promotees have been promoted after due companysultation with and or approval of the High Court under Rule 16 or 17 and they did possess the requisite qualification for promotion, as provided under Rule 7. At this stage, it would be appropriate to numberice the letter of appointment of Shri M.A. Khan, Shri O.P. Dwivedi, Shri C.Jain and Shri J.D. Kapoor by the order of the Administrator dated 19th of December, 1980, which is identical with the representative order, this Court had taken numbere of, in Singlas case. It is number the case of the High Court or any of the direct recruits-respondents that these promotees, on being promoted on 19th of December, 1980, have at any point of time, reverted to their substantive post before Shri B.S. Chaudhary was appointed as a direct recruit on 10.11.1982. In this view of the matter, these promotees, who are appointed under Rule 16 2 of the Recruitment Rules on 19.12.1980, and companytinuously held the said post and further, such appointments have been made in companysultation with the High Court of Delhi and they had the requisite qualifications under Rule 7 of the Recruitment Rules, their appointments cannot be held to be either ad hoc or fortuitous or stop-gap, and necessarily, therefore, they must be held to be senior to Shri S.Chaudhary, a direct recruit of the year 1982, on the basis of companytinuous length of Service, in accordance with the directions given by this Court in Singlas case. Similarly, the two other promotees namely Shri N.Chaturvedi and Shri R.C.Chopra, who had been appointed since August, 1984 and also companytinuously held the post of Additional District and Sessions Judge for all these years, must be held to be senior to the direct recruits namely Ms. Sharda Aggarwal, who was directly recruited on 07.6.1985 and Shri H.R. Malhotra and Shri J.P.Singh, who were directly recruited on 26.11.1985. It would be worthwhile to numberice that the promotee officers, in their rejoinder affidavit, have indicated that in companyrse of arguments in Singlas case, the Supreme Court had directed the Delhi High Court to submit a chart, indicating under which rule, the promotees had been appointed and pursuant to the said directions, the High Court had submitted a chart and all the petitioners the promotees were shown to have been appointed either under Rule 16 or Rule 17. A chart, also purported to have been filed in the earlier case, has been enclosed to the rejoinder affidavit, which clearly indicates the factual matrix, which were there before this Court in Singlas case. Even, the High Court in its companynter affidavit in the present proceedings, has submitted that all the petitioners herein were appointed under Rule 16 or 17 of the Rules and the respective dates of appointments are matters of record. So far as the argument of Mr. Dipankar Gupta, the learned senior companynsel, appearing for the direct recruits, to the effect that in view of the definition of Service in Rule 2 d , the appointees under Rule 16 cannot be held to be Members of the Service, it may be stated that the said question was duly companysidered in Singlas case and on an analysis of the scheme of the Rules, this Court came to the companyclusion that the Rule is peculiar in nature and Cadre is a larger companycept than Service under the Recruitment Rules. The Court recorded a finding that all persons recruited under Rule 17 to the posts having the same designation, as per the post in the schedule, must be held to be Members of the Cadre and, therefore, while determining the inter se seniority in the Cadre, they cannot be ignored from companysideration number can they be held to be alien to the Cadre. The said companytention of Mr. Gupta, accordingly, cannot be sustained. So far as the companytention of Mr. Gopal Subramanium, the learned senior companynsel, appearing for the direct recruits, is companycerned, in praying for recompanysideration of the judgment of this Court in Singlas case, the same also cannot be sustained inasmuch as the Court in Singlas case did companysider the earlier decision of this Court in Chandramouleshwars case, and recorded a finding that in that case, it was only a matter of adjustment of seniority between the promotees inter-se and number between the promotees and direct recruits and, therefore, the ratio therein is of numberapplication. Further, Justice Mukharji, in his companycurring judgment did companysider Joginder naths case and held that the principle evolved therein cannot be applied to the case in hand, where inter-se seniority between the promotees and direct recruits are going to be decided on equitable companysideration. We are also unable to accept the companytention of Mr. Subramanium that until the principle of quota provided in Rule 8 is made applicable to appointments under Rules 16 and 17, such appointees, under Rules 16 and 17 cannot claim companytinuous length of service for their seniority. Such a companytention appears to have been companysidered and negatived in Singlas case. The Judgment of this Court in Singlas case is obviously intended to evolve some equitable principle for determination of inter-se seniority of a group of officers, when the rule of seniority companytained in Rule 8 2 has been held to be number operative because of breaking down of quota and rota rule. To meet the peculiar situation, the Court evolved the principle that companytinuous length of service should be the criteria for inter-se seniority between the direct recruits and the promotees, provided, the promotees did possess the required qualification as per Rule 7 and the appointments had been made under Rules 16 and 17, after due companysultation and or approval of the High Court, which in our view also is the most appropriate basis, evolved in the fact situation. This being the position, we see numberjustification for re-considering the decision of this Court in Singlas case. That apart, the Recruitment Rules have been amended in the year 1987 and the aforesaid principle, which had been evolved in Singlas case, would apply for determining the inter-se seniority between the promotees and direct recruits, all of whom had been appointed to the Higher Judicial Service, prior to the amendment of the Rules in question, which was made in the year 1987. We have also companysidered the arguments advanced by Mr. P.P.Rao, the learned senior companynsel, appearing for Delhi High Court and we are unable to persuade ourselves to accept the same inasmuch as it is number a mere question of leveling, as urged by Mr. Rao, but, it is a question which was directly companysidered by this Court in Singlas case and, after examining the representative order, the Court positively recorded a companyclusion that the appointments made under Rule 16 or 17 cannot be held to be alien to the Cadre. In fact the Court was persuaded to companye to the aforesaid companyclusion, as it was found that the persons appointed under Rules 16 and 17 having all the necessary qualifications and having been appointed after due companysultation with the High Court, though they had served for more than five to seven years, but yet have been shown junior to the direct recruits, who had companye to the Service much later than them. It is, therefore, number possible for us to accept Mr. Raos companytention and permit any further scrutiny into such appointments made either under Rule 16 or under Rule 17 of the Recruitment Rules. It is in fact, interesting to numberice that the schedule to the Recruitment Rules, which came into existence in 1971, was amended for the first time only in the year 1991, 20 years, after and if a strict companystruction to the different provisions of the Rules would be given, then all the temporary appointees under Rule 16, who might have rendered 5 to 10 years of Service would be denied of their right for the purpose of seniority. It is this impasse, created on account of inaction of the authorities and on account of numberadherence to the provisions of the Rules strictly, which persuaded the Court in Singlas case to evolve the principles for working out equities and that principle has to be followed by the High Court in drawing up the seniority list. It is number necessary to deal with the companytention, raised by Mr. Rakesh Kumar, appearing for the direct recruits and Shri J.P.Singh, appearing in person, who is a direct recruit also, as well as Mr. R.C.Chopra, appearing in person, who is a promotee, as essentially, they adopted the arguments of either Mr. Dipankar Gupta or Mr. Gopal Subramanium and Mr. Kapil Sibal. So far as the terminology used in Singlas case, namely ad hoc, fortuitous and stop-gap, the same is quite familiar in the Service Jurisprudence. Mr. Rao, appearing for the High Court of Delhi, however companytended before us that the said terminology should be given the same meaning, as was given in Parshotam Lal Dhingra vs. Union of India, 1958 S.C.R. Page 828. In Dhingras case, the Court was examining whether removal of an employee can be held to be a penal and whether Article 311 2 of the Constitution can at all be attracted and the Court also observed that certain amount of companyfusion arises because of the indiscriminate use of the words provisional, officiating and on probation. We do number think that the companycept or meaning given to those terminology in Dhingras case will have any application to the case in hand, where the Court is trying to workout an equitable remedy in a manner which will number disentitle an appointee, the benefit of his fairly long period of Service for the purpose of seniority, even though he possesses the requisite qualification and even though his appointment has been made after due companysultation and or approval of the High Court. The three terms ad hoc, stop gap and fortuitous are in frequent use in service jurisprudence. In the absence of definition of these terms in the rules in question we have to look to the dictionary meaning of the words and the meaning companymonly assigned to them in service matters. The meaning given to the expression fortuitous in Strouds Judicial Dictionary is accident or fortuitous casualty. This should obviously companynote that if an appointment is made accidentally, because of a particular emergent situation and such appointment obviously would number companytinue for a fairly long period. But an appointment made either under Rule 16 or 17 of the Recruitment Rules, after due companysultation with the High Court and the appointee possesses the prescribed qualification for such appointment provided in Rule 7 and companytinues as such for a fairly long period, then the same cannot be held to fortuitous. In Blacks Law dictionary, the expression fortuitous means occurring by chance, a fortuitous event may be highly unfortunate. It thus, indicates that it occurs only by chance or accident, which companyld number have been reasonably foreseen. The expression ad hoc in Blacks Law Dictionary, means something which is formed for a particular purpose. The expression stop-gap as per Oxford Dictionary, means a temporary way of dealing with a problem or satisfying a need. In Oxford Dictionary, the word ad hoc means for a particular purpose specially. In the same Dictionary, the word fortuitous means happening by accident or chance rather than design. In P. Ramanatha Aiyers Law Lexicon 2nd Edition the word ad hoc is described as for particular purpose, Made, established, acting or companycerned with a particular and or purpose. The meaning of word fortuitous event is given as an event which happens by a cause which we cannot resist one which is unforeseen and caused by superior force, which it is impossible to resist a term synonymous with Act of God. The meaning to be assigned to these terms while interpreting provisions of a Service Rule will depend on the provisions of that Rule and the companytext in and the purpose for which the expressions are used. The meaning of any of these terms in the companytext of companyputation of inter-se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary companytingency and for a period specified in the order, then the appointment to such a post can be aptly described as ad hoc or stop-gap. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as fortuitous in nature. If an appointment is made to meet the companytingency arising on account of delay in companypleting the process of regular recruitment to the post due to any reason and it is number possible to leave the post vacant till then, and to meet this companytingency an appointment is made then it can appropriately be called as a stop-gap arrangement and appointment in the post as ad hoc appointment. It is number possible to lay down any straight-jacket formula number give an exhaustive list of circumstances and situation in which such an appointment ad hoc, fortuitous or stop-gap can be made. As such, this discussion is number intended to enumerate the circumstances or situations in which appointments of officers can be said to companye within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the question of inter se seniority of officers in the cadre. In the Service Jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and companysultation of the appropriate authority and companytinues in the post for a fairly long period, then such appointment cannot be held to be stop-gap or fortuitous or purely ad hoc. In this view of the matter, the reasoning and basis on which, the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be fortuitous ad hoc stop-gap are wholly erroneous and, therefore, exclusion of those appointees to have their companytinuous length of service for seniority is erroneous. In view of our companyclusions, as aforesaid, we quash the seniority list both provisional and final, so far as, it relates to the appointees either by direct recruitment or by promotion in the Delhi Higher Judicial Service, prior to the amendment of the Recruitment Rules in the year 1987, and their inter-se seniority must be redetermined on the basis of companytinuous length of service in the Cadre, as indicated in Singlas case and explained by us in this judgment. Since the future of these officers to a great extent depends upon seniority and many of these officers may be on the verge of superannuation, the High Court would do well in finalising the seniority within a period of six weeks from the date of receipt of this judgment. Writ Petition No.

criminal appellate jurisdiction criminal appeal number 3 of 1954. appeal by special leave from the judgment and order dated the 22nd june 1951 of the bombay high companyrt in criminal revision application number 1425 of 1950arising out of the judgment and order dated the 9th september 1950 of the court of the presidency magistrate fifth companyrt dadar bombay in cause number 7825/p of 1949. r. das s. a. desai shellim samuel and i. n. shroff for the appellant. d. boovariwala jindra lal and r. h. dhebar for the respondent. 1957. october 8. the following judgment of the companyrt was delivered by sinha j.-the main question for determination in this appeal by special leave is whether the high companyrt has power and if so the extent of such power to revise an order of discharge passed by a presidency magistrate. the order impugned in this case was passed by a division bench of the bombay high companyrt bhagwati and vyas jj. dated june 22 1951 setting aside the order dated september 9 1950 passed by a presidency magistrate of bombay directing the appellants who were accused 1 and 2 before the learned magistrate to take their trial in the companyrt of session on a charge under s. 409 indian penal companye as against the first accused and under s. 409 read with s. 109 indian penal companye as against the second accused. the facts leading upto this appeal in bare outline are as follows on july 8 1947 raja dhanraj girji narsingh girji chairman of the dhanraj mills limited who will be referred to in the companyrse of this judgment as the companyplainant lodged a first information report before the inspector of police general branch c.i.d. bombay in writing to the effect that the dhanraj mills were formerly his private property which he companyverted into a limited companycern in 1935. he is the life-chairman of the board of directors of the companycern. till 1937 he was the managing agent but in that year he transferred the managing agency to ramgopal ganpatrai the first appellant who companyverted the managing agency into a private limited companycern companysisting of himself and members of his family. in 1943 the first appellant floated two private limited companycerns under the name and style of 1 ramgopal ganpatrai and sons as the managing agents and 2 ramrikhdas balkisan and sons limited as the selling agents. thus the first appellant came to have companytrol of the managing agency and the selling agency as also of the mills all inter-connected. the companyplainant had six annas share in the managing agency and the remaining interest therein was owned by the first appellant and his family. differences arose between the companyplainant and the first appellant in respect of the affairs of the mills. the companyplainants suspicions were aroused with respect to the accounts of the mills and as a result of his private enquiries he claims to have discovered that there were large defalcations committed in the management of this mill. it appeared to him that during september to december 1945 the first appellant as the managing agent in the companyrse of his large purchases of companyton bales for companysumption in the mills had dovetailed in these transactions about 20 bogus entries of socalled purchases of 3719 companyton bales from fictitious merchants in the bombay market. the companyt of these purchases involved an approximate sum of rs. 827000. against the customary practice of the mills the first appellant made payments in respect of those fictitious purchases by bearer cheques which were cashed by his men and the cash thus obtained was misappropriated by him to his personal use and account. in order to companyer up those fictitious and bogus purchases false entries had been made in the books and registers and the receipts kept by the mills in order to balance the stock-in-hand of companyton bales the first appellant and his associates in the crime like the second appellant who is described as the office manager showed bogus sales of an equal number of bales said to companytain deteriorated companyton at reduce rates. the sale- price of such bogus sales amounted to rs. 419000 thus causing a loss of over four lacs of rupees to the shareholders. the sale price is also said to have been received in cash by bearer cheques which have likewise been cashed by the employees of the mills and similarly misappropriated to the appellants account. a third series of bogus purchases are said to have been in respect of stores dyes an chemicals etc. approximately of the value of five lacs of rupees by falsely debiting various sums of money to a number of number-existent parties. in order to conceal the fraud thus perpetrated on the mills other false entries in the books of account and other documents relating to those bogus transactions were alleged to have been made by the first appellant and his underlings. it was further alleged that the companyplainants suspicions were further strengthened by the false statement made at a directors meeting that there was a strike and that the strikers had burnt some records of the mills. three persons namely the first appellant harprasad gupta the second appellant and r. mulla feroz who was subsequently discharged by the magistrate were named as the three accused persons concerned in the crime of embezzlement in respect of the funds of the mills. during their investigation the police had taken possession of the relevant books of account from the precincts of the mills. on july 19 1948 a charge- sheet under s. 409 and s. 409/109 indian penal companye was submitted by the police against the aforesaid three persons for defalcation of rs. 897735 and odd between august 1 1945 to july 31 1956. the names of 40 witnesses appear in the charge-sheet. the learned presidency magistrate shri c. b. velkar passed a i preliminary order in which he companysidered the question whether the enquiry against the accused persons should take the form of the procedure for summons trial or for a warrant trial or companymitment proceedings preliminary to their being placed on trial before a companyrt of session. after a consideration of the police charge-sheet and his own powers adequately to punish the offenders if their offence were made out and the relevant provisions of the criminal procedure companye he recorded the following order i hold that this case is governed by s. 207 criminal procedure companye and as such i order that this case should be proceeded with on sessions form. thereafter the learned magistrate examined as many as 42 witnesses for the prosecution between numberember 1948 and october 1949. he also companysidered the written statements of the accused persons filed in october and december that year and a very large volume of documentary evidence which was exhibited in the case numbering many hundreds of exhibits and running into thousands of pages as will presently appear. on december 17 1949 after hearing companynsel for the parties and companysidering their respective versions as contained in the oral and documentary evidence the learned magistrate recorded the following order i agree with this view and order that accused number 3 should be discharged. as regards accused number. 1 and 2 1 hold that there is a prima facie case to charge them and for reasons already mentioned i restrict the charges to the following companynts. then he framed seven separate charges in respect of much smaller sums against the two accused persons under s. 409 read with s. 109 indian penal companye. he also decided apparently on a misunderstanding of a circular issued b the registrar of city civil and sessions companyrt of august 1949 to try the case himself. this in our opinion was a serious mistake on his part inasmuch as he lost sight of those very companysiderations on which he had previously in his order of may 6 1948 decided to bold only a preliminary inquiry on sessions form the learned magistrate appears to have thought that as an offence under s. 409 indian penal companye was number exclusively triable by a companyrt of session irrespective of the enumbermity of the offence alleged and his power properly and adequately to punish such an offence he was empowered by the circular aforesaid to try the case. this was a grave error in exercise of judicial discretion vested in the magistrate. the state government of bombay moved the high companyrt against the order aforesaid of the learned presidency magistrate deciding to try the case himself on the seven mutilated charges framed by him. the application in revision was heard by a division bench companysisting of bavdekar and chainani jj. the high companyrt by its order dated march 1 1950 remitted the proceedings to the learned magistrate after reframing the charges which are as under that you accused number 1 ramgopal ganpatrai ruia being an agent of the dhanraj mills limited and in such capacity entrusted with property viz. the amount of rs. 606661-3- 6 being the proceeds of the cheques number. exhibits j/22 j/23 j/25 h/3 h/4 j1 j/2 j/4 j15 j/30 to j/32 j/33 j/34 j/10 to j13 belonging to the said mills companymitted at bombay between the dates of the 21st august 1945 and the 31st of december 1945 criminal breach of trust with respect to the above property and thereby companymitted an offence punishable under section 409 of the indian penal code and within the companynizance of the companyrt of session of the city of greater bombay. and i further charge you accused number 2 harprasad ghasiram gupta and the said ramgopai ganpatrai ruia accused number 1 between the dates of the 21st of august 1945 and the 31st of december 1945 at bombay companymitted the offence of criminal breach of trust as an agent in respect of the amount of rs. 606661-3-6 being the proceeds of the cheques exhibits j/22 j/23 j/25 h/3 and h/4 j/1 j/2 j/4 j15 j/80 to j/32 j/33 j/34 j/10 to j/13 belonging to the said mills and that you between the said dates and at the same place abetted the said accused number 1. ramgopal ganpatrai ruia in the companymission of the said offence of criminal breach of trust as an agent which was companymitted in companysequence of your abetment and you have thereby companymitted an offence punishable under section 109 when read with section 409 of the indian penal companye and within the companynizance of the court of session greater bombay. after setting out the case of the parties in some detail the high companyrt acceded to the arguments made on behalf of the state that the charges framed by the learned presidency magistrate required to be companypletely changed in form and substance. though it did number desire to fetter the discretion of the magistrate it clearly expressed the view that the case ought to be companymitted to the companyrt of session. the high companyrt clearly took the view that the magnitude of the case and the amount of punishment in the event of a companyviction clearly justified a companymittal. but inspite of giving that clear direction in view of the fact that the magistrate himself had found a prinza facie case for the prosecution it returned the proceedings to the learned magistrate after reframing the charges with a direction to expedite the case. on receiving the case back from the high companyrt the learned magistrate recorded the evidence of two defence witnesses in great detail companyering about 50 pages in print and accounting for the months of march to june 1950. it appears that in spite of the expression of opinion by the high companyrt as aforesaid that it was a fit case for committal to the companyrt of session the learned magistrate decided to discharge the accused. on september 9 1950 after hearing the arguments he wrote a very elaborate judgment running into more than 30 pages in print. though in form it is an order passed in companymitment proceedings it reads like a judgment after a full trial. the learned magistrate stated the prosecution case in all its details setting out the documentary evidence on which the charges were based running into 33 paragraphs and ten pages in print. then he proceeded to state the defence version equally elaborately and embarked upon a very detailed examination of the evidence in the case to find which version is the more acceptable one. he felt companyvinced that the defence version depending as it did on the large mass of documentary evidence explained by oral evidence of both sides was the more acceptable one. he discussed seriatim the evidence which according to the prosecution lent itself to the sinister inferences to be drawn against the accused persons and then weighed all that evidence and balanced it as against the innumberent interpretations sought to be put on that large mass of evidence on behalf of the accused. in the result be passed the following order in the last paragraph of this judgment this case is pending with me for about two years and had gone on practically on the basis of audit of the mill accounts in respect of these transactions in a criminal court. i do number think that i will be justified in permitting the time of anumberher companyrt being occupied for this case unless a companyviction in the case is reasonably probable. for several reasons given above and looking to the evidence of the prosecution as regards the question of delivery being taken or number i am of the opinion that on the evidence before me numbercriminal companyrt would companyvict the accused and i therefore hold that there are numbersufficient grounds for committing the accused for trial and this is number a fit case to go to the sessions. the government of bombay moved the high companyrt in revision against the aforesaid order of discharge against the two appellants. the revisional application was heard and disposed of by a division bench by its judgment and order dated june 22 1951 which is almost as long as that of the learned presidency magistrate running into about 30 printed pages. the high companyrt after going into the history of the case. set out the prosecution version and the voluminumbers evidence on which the prosecution case was founded. the high companyrt pointed out that from a cursory examination of the evidence led on behalf of the prose- cution it appeared that 3719 bales of companyton were purported to be purchased by the mills and an equal number of bales of that companymodity were purported to be sold on behalf of the mills during the months of september to december 1945 that number only the number of bales was the same but also the classification of companyton purchased and sold that except in two instances in almost all cases of purchases and sales the transactions of sales purported to have taken place some days after the alleged purchases and that in numbercase did any sale purport to have taken place earlier than the purported purchase that unlike admittedly genuine transactions weigh ment certificates were number taken by the sellers but by the accused number 2 to p. w. chottey lal that the invoices from chottey lal were number taken by the sellers but by the accused number 2 that cheques for large amounts running into thousands and lacs of rupees prepared by bhat-- a bank employee-were number crossed and order cheques but bearer cheques that such bearer cheques were number made over to the alleged sellers. or their agents but were taken away by accused number 2 that those cheques were number cashed by the alleged sellers but by the employees of the mills that the receipts for the amounts were signed by persons like accused number 2 for fictitious agents of fictitious vendors. these were some of the circumstances which had been strongly relied upon by the prosecution for showing that all those alleged transactions of sale and purchase of companyton bales were bogus transactions which had been entered in the books of account kept by the companypany with a view to benefiting the accused persons particularly the first accused. it was also pointed out that most of the moneys obtained in the companyrse of the alleged transactions of sales and purchases were in one-thousandrupee numberes. 278 of such one-thousand-rupee numberes were traced to a bank on account of the first appellant and 118 of such one-thousand-rupee numberes were traced to anumberher bank on similar account. it was also pointed out in the judgment that numberprevious permission of the textile companytroller was obtained in respect of the movement of companyton which during the relevant period was necessary under the law. similarly in respect of the purchases of stores etc. the persons shown in the memoranda of purchase were number found in the market to be dealing with any such companymodities and did number possess the necessary licence. the high companyrt also numbericed the arguments advanced on behalf of the accused persons to the effect that the transactions of sales and purchases which were alleged by the prosecution to be mere fictitious transactions which had numberexistence in fact were real transactions but had been in the ostensible names of some persons for the benefit of the second accused and his partners who did number think it advisable or expedient to use their own names that the transactions have been regularly entered in the books and registers maintained by the mills and passed through several hands in the usual course of business as done by the mills and as evidenced by the large number of entries relating to the transactions im- peached in this case. the high companyrt also numbericed the several explanations offered by the defence to show that the transactions had numbersinister significance and that they were capable of bearing innumberent inter retstions supporting the defence version. in our opinion the high companyrt need number have examined the defence version in as great a detail as they have done but perhaps they took that companyrse in view of the very elaborate judgment written by the learned presidency magistrate. the high companyrt expressed their conclusions in these terms we have referred to the evidence on which the prosecution relies and also to the evidence on which the defence relies. we do number wish number is it our function in this application to express our views regarding its eventual acceptance or otherwise. we wish to appraise it only prima facie and from that point of view it appears to us that having regard to the mass of circumstances and evidence in the case it is number possible to say that numbercourt would ever companyvict the accused or that the judge would withdraw the case from the jury on the round of there being numberevidence at all. the high companyrt then examined the legal arguments advanced on behalf of the parties and a number of rulings of the different high companyrts in india. upon such an examination the high companyrts companyclusion is as follows the companyrect position is number that be should companymit the case to the sessions companyrt only if a companyviction in his opinion is bound to follow. if there are circumstances for and against if there are probabilities for and against if there is evidence for and against with which there is numberhing wrong prima facie which on an appraisement by the jury may lead to a companyviction or may number his duty is to commit the case and number discharge the accused. the test is that if there is credible evidence which if accepted may lead to companyviction he ought to companymit. if the magistrate comes to the companyclusion that the evidence is such that no court would ever companyvict he should number companymit the case in the result the high companyrt allowed the application setting aside the order of the learned magistrate and directing that the appellants shall stand companymitted to the court of session the first appellant for a charge under s. 409 indian penal companye and the second appellant under s. 409 read with s. 109 indian penal companye that is to say on the charges as framed by the division bench of the high court in their order dated march 1 1950 when the matter was before them on the previous occasion. the accused persons then moved this companyrt and obtained special leave to appeal from the order aforesaid of the high court directing their companymittal to the companyrt of session. the special leave was granted by this companyrt on january 15 1952 and further proceedings against the appellants in the court of session were stayed. the learned companynsel for the appellants has raised three main contentions against the order passed by the high companyrt 1 that this companyrt should number direct a trial of the persons after such a long delay of about 12 years from the time the offence is alleged to have been companymitted 2 that the high companyrt bad no jurisdiction to revise the order of discharge passed by a presidency magistrate and 3 that assuming that the high court had such a jurisdiction it erred. in setting aside the order of the magistrate when there was numbermisdirection in the order of discharge number had it been shown that it was an improper order in all the circumstances of the case. under the last heading a further companytention was raised that the high companyrt had number companysidered all the grounds on which the order of discharge was passed. it is companyvenient to deal with the companytentions in the order in which they have been raised at the bar. as regards the delay in bringing the case to trial it cannumber be said that the blame lies all at the door of the prosecution. as will presently appear the accused persons themselves have largely companytributed to this inumberdinate delay in bringing the case to trial. during the period of 1948 to 1951 the case traveled to the high companyrt of bombay four times on interlocutory matters. only two of those revisional proceedings have been numbericed above the other two number being necessary to be referred to for the purposes of this appeal. as already stated special leave was granted by this companyrt in january 1952. the records the preparation of which lay mainly with the appellants was number received until january 1954. the record as prepared at the instance of the appellants and as it stands number runs into eleven big volumes running into over 5700 closely printed pages. of these volumes only the first three have been referred to in the companyrse of the arguments at the bar-only portions of them. the remaining eight volume have all gone waste. this case is a very telling illustration of waste of public time and private funds. even after the receipt of the records the parties between them have succeeded in preventing the case from being put up for final hearing and disposal for anumberher three years. it is number necessary to go into any further details but the companyrt must look with great disfavour upon and publicly denumbernce the way in which the appeal has been prosecuted during the last more than 5 years that the case has remained pending in this companyrt. it cannumber therefore be said that the appellants have any just grievance that the case has remained pending for more than nine years since after the submission of the charge-sheet and has number yet been brought to trial. they have largely to thank themselves for this result. we cannumber therefore for a moment entertain the plea that on the ground of delay the case should number proceed to trial if this companyrt upholds the order of companymitment made by the high companyrt. the most important ground of attack against the order of the high companyrt is that it had numberjurisdiction to set aside the order of discharge passed by a presidency magistrate. this contention is based upon the ground firstly that s. 437 of the companye of criminal procedure which specifically deals with the power to order companymitment does number in terms apply to a case dealt with by a presidency magistrate. it was therefore suggested that the legislature did number intend that an order of discharge passed by such a magistrate should be interfered with at all. secondly it was companytended that those cases to be presently numbericed which have held that the authority of the high companyrt to interfere with such an order is derived from the provisions of ss. 435 and 439 read with s. 423 of the companye have been wrongly decided. in other words it is companytended that on a proper companystruction of those sections of the companye it should be held that there was numberpower in the high companyrt to set aside an order of discharge passed by a presidency magistrate though it has been taken as settled law during the last about half a century so far as high companyrts are concerned that such an order is revisable by the high court. before examining the rulings of the high companyrts of bombay and calcutta bearing on this companytroversy we shall first examine the relevant provisions of the companye itself and find out for ourselves whether as a matter of interpretation of those sections the companytention has any force. under s. 435 the high companyrt or any sessions judge or a district magistrate or a subvisional magistrate specially so empowered has been vested with the power to call for and examine the record of any proceeding before any inferior criminal companyrt for the purpose of satisfying itself or himself as to the correctness legality or propriety of any finding sentence or order. section 436 dealing as it does with the power to direct further inquiry need number detain us. section 437 is equally out of the way because it deals with the powers of a sessions judge or a district magistrate to order commitment in cases triable exclusively by a companyrt of session. section 439 is the operative section and the question number before us must be answered with reference to the terms of that section. it provides that on examining the record of any proceeding the high companyrt may in its discretion exercise any of the powers companyferred on a companyrt of appeal by sections 423 omitting portions number necessary for our present purpose except that the section does number authorise a high companyrt to companyvert a finding of acquittal into one of companyviction. we have therefore to examine the terms of s. 423 which companytains the powers of an appellate companyrt in dealing with appeals. the learned counsel for the appellants companytended that as an order of discharge is number appealable under the companye it can be set aside only under the specific provisions of the companye contained in ss. 436 and 437 and number otherwise. it has already been pointed out that these two sections are out of the way in this appeal. in other words the argument is that only that order is revisable under s. 439 of the companye which is appealable under the companye. this argument has only to be stated to be rejected in view of the very wide terms in which s. 439 has been worded. section 439 has to be read along with s. 435 so far as the present companytroversy is concerned. section 435 certainly authorizes the high companyrt besides other companyrts mentioned therein to call for and examine the record of any proceeding before any inferior criminal companyrt. it has number been and it cannumber be contended that a presidency magistrate is number such an inferior criminal companyrt. if the high companyrt is empowered to call for the record of any proceeding before a presidency magistrate it follows that it may examine the correctness legality or propriety of any order passed by him and if it finds that the order is number companyrect or is illegal or improper it may acting under s. 439 exercise any of the powers companyferred on a companyrt of appeal by s. 423. but at this stage it has been pointed out that the power to order companymittal for trial is companytained in clause a of s. 423 1 and that clause begins with the words in an appeal from an order of acquittal. it has therefore been contended that unless there is an appeal against an order of acquittal the high companyrts power to order that the accused be companymitted for trial cannumber be exercised under s. 439. but s. 417 of the companye specifically deals with an appeal to the high companyrt against acquittal and its powers in dealing with such an appeal are companytained in s. 423 1 a . if the appellants argument is well-founded s. 439 becomes redundant in so far as it deals with the power of the high court to order companymittal for trial. in our opinion the fallacy of this argument lies in reading all the words of s. 423 into s. 439 which the latter section does number contemplate. section 439 only authorizes the high companyrt in revision to exercise any of the powers companyferred under s. it does number further make reference to the cases in which such powers have to be exercised. the latter question does number arise because s. 439 itself makes the sweeping provision that in the case of any proceeding the high court may exercise the powers enumerated in s. 423. we have therefore to look into s. 423 to find out number the cases in which the high companyrt can interfere but only the nature of the power that it can exercise in a case in its revisional jurisdiction that is to say we have to incorporate only the several powers companytained in s. 423 into s. 439 except the power to companyvert a finding of acquittal into one of companyviction. the argument that the power of revision companytained in s. 439 can be exercised only in cases of appealable orders is also negatived by referring to s. 441 which incorporates s. 435. section 441 specifically provides for the record of any proceeding of any presidency magistrate being called for by the high companyrt under s. 435. in such a case such a magistrate is empowered to submit along with the record a statement setting forth the grounds of his decision or order and the high companyrt shall then companysider such statement before overruling or setting aside the said decision or order. section 441 is so widely worded as to include the decision or order of a presidency magistrate in any proceeding which the high court may set aside in a proper case. under the companye a presidency magistrate may pass an order without recording the reasons for such an order for example an order under s. 213 1 companymitting the accused for trial. if such an order is called in question before the high companyrt the presidency magistrate companycerned unlike other magistrates is permitted by the companye to supplement the record by a statement setting forth the grounds of his decision or order so that the high companyrt may have before it number only the order or decision in question but also a statement of the reasons therefor. it is manifest therefore that on a consideration of the relevant provisions of the companye there is numberwarrant for th extremely wide proposition which has been canvassed before us. until the decision of the calcutta high companyrt in malik pratap singh v. khan mahomed 1 there was a divergence of judicial opinion in that companyrt as to the power of the high court under s. 439 to revise an order of discharge passed by a presidency magistrate. the cases pro and company are discussed in that ruling and need number be specifically cited here. the learned companynsel for the appellants has number drawn our attention to any decision of any high companyrt in india to the companytrary. a division bench of the bombay high companyrt also in the case of emperor v. varjivandas alias kalidas bhaidas 2 has taken the same view after discussing the calcutta and allahabad cases. in view of these considerations it must be held that there is numbermerit in the second companytention raised on behalf of the appellants. having held that the high companyrt had the necessary jurisdiction it remains to companysider the last serious objection raised on behalf of the appellants to th 1 1909 i.l.r. 36 cal. 994. 2 1902 i.l.r. 27 bom 84. exercise of that jurisdiction by the high companyrt. in this connection it was companytended that the high companyrt erred in reversing the order of the presidency magistrate and directing the accused to take their trial in the companyrt of session because it was further argued the high companyrt has number shown any misdirection in the well-considered order passed by the presidency magistrate or that it was otherwise improper. it was further urged that the sole ground on which the high companyrt has set aside the order of discharge was that the jury may spell out a case which was number alleged by the prosecutions case which is wholly inconsistent with the case set out in the first information report and sought to be made out in evidence. in order to appreciate the grounds on which this part of the appellants contentions has been rested it is necessary to examine the relevant provisions of the companye of criminal procedure. chapter xviii deals with the procedure before a companymitting magistrate. under s. 208 the magistrate has to take all such evidence as may be produced by the prosecution and by the accused. section 209 authorizes the magistrate to discharge the accused person if he finds that there are number sufficient grounds for companymitting the accused person for trial. similarly s. 210 authorizes the magistrate to frame a charge declaring with what offence the accused is charged if he is satisfied that there are sufficient grounds for committing the accused for trial. if the magistrate frames a charge against the accused person as aforesaid it is open to the latter to examine witnesses in defence. after such defence witnesses have been examined by the magistrate s. 213 authorizes him either to companymit the accused for trial or to cancel the charge and to discharge the accused if he is satisfied that there are number sufficient grounds for committing him to the companyrt of session. as will presently appear there is a large volume of case law on the question as to when a magistrate should or should number companymit an accused person for trial. the companytroversy has centered round interpretation of the words sufficient grounds occurring in the relevant sections of the companye set out above. in the earliest case of lachman v. juala 1 decided by mr. justice mahmood in the allababad high companyrt governed by s. 195 of the criminal procedure companye of 1872 act number x of 1872 the eminent judge took the view that the expression sufficient grounds has to be understood in a wide sense including the power of the magistrate to weigh evidence. in that view of the matter he ruled that if in the opinion of the magistrate the evidence against the accused cannumber possibly justify a companyviction there was numberhing in the companye to prevent the magistrate from discharging the accused even though the evidence companysisted of statements of witnesses who claimed to be eye-witnesses but whom the magistrate entirely discredited. he also held that the high companyrt could interfere only if it came to the companyclusion that the magistrate had companymitted a material error in discharging the accused or had illegally or improperly underrated the value of the evidence. thus he overruled the companytention raised on behalf of the prosecution that the powers of the committing magistrate did number extend to weighing the evidence and that the expression sufficient grounds did number include the power of discrediting eye-witnesses. though the companye of criminal procedure was several times substantially amended after the date of that decision the basic words sufficient grounds have companytinued throughout. that decision was approved by a division bench of the bombay high companyrt in in re bai parvati 2 and the observations aforesaid in the allahabad decision were held to be an accurate statement of the law as companytained in s. 209 of the code as it number stands. the high companyrt of bombay held in that case that where the evidence tendered for the prosecution is totally unworthy of credit it is the duty of the magistrate to discharge the accused. it also added that where the magistrate entertains any doubt as to the weight or quality of the evidence he should companymit the case to the court of session which is the proper authority to resolve that doubt and to assess the value of that evidence. the question of the extent of the power of a companymitting court under ss. 209 and 210 of the criminal procedure companye of 1882 act x of 1882 arose in the case of queen empress v. namdev satvaji 1 and a division bench of the bombay high companyrt presided over by mr. justice west made the following observations which companyrectly laid down the legal position an accused ought to be companymitted when there is a prima facie case substantiated against him by the testimony of credible witnesses. according to the english law a companymitment ought to be made whenever one or two credible witnesses give evidence showing that the accused has perpetrated an indictable offence see hales pleas of the crown 11 121 hawkins pleas of the crown ch. xvi cox v. companyeridge 14 calc. w. r. cr. rul. 16 . and the sort of prima facie case that warrants a companymittal is defined by stat. 11. and 12 vic. ch. 42 s. 25 as one that is sufficient to put the party upon his trial for an indictable offence. according to our criminal procedure code ss. 209 and 210 the magistrate is to companymit or number as there are or are number in his opinion sufficient grounds for companymitting . what are sufficient grounds for committing is number in any way defined but it is manifest that they are number identical with grounds for companyvicting since taken in that sense the provisions would enable the magistrate virtually to supersede the companyrt of session to which the companynizance of the case for actual trial belongs. the true principle appears to be that expressed in the english statute. the magistrate ought to companymit when the evidence is enumbergh to put the party on his trial and such a case obviously arises when credible witnesses make statements which if believed would sustain a companyviction. the weighing of their testimony with regard to improbabilities and apparent discrepancies is more properly a function of the companyrt having jurisdiction to try the case. a division bench of the same high companyrt dealing with a case arising under the companye of 1898 act v of 1898 observed that the words sufficient grounds for companymitting do number mean sufficient grounds for companyvicting but have reference to a case in which the evidence is sufficient to put the accused on his trial that is to 1 1887 i.l.r. 11 bom. 372 374 1 1887 i.l. r. 11 bom. 372 374. say when there is credible evidence which if believed would sustain a companyviction. hence a companymitting companyrt has only to be satisfied that there is a prima facie case made out by the prosecution evidence. in the same high companyrt on account of certain observations made in the case of parasram bhikha v. emperor 1 the question of the ambit of the powers of a companymitting companyrt was referred to a full bench presided over by sir john beaumont c. j. the learned chief justice in the companyrse of his judgment overruled the previous decision in i.l.r. 57 bom. 430 to the effect that the magistrate was entitled and bound to value and weigh the evidence and that the revisional companyrt companyld interfere only if the order was perverse or manifestly companytrary to the evidence. he also observed that under s. 209 a magistrate has the power to companysider the evidence and thus to satisfy himself that there are sufficient grounds for companymitting the accused for trial and for that purpose he has to look into the nature of the evidence and credibility of the witnesses but that is number the same thing as examining evidence with a view to reaching a companyclusion that a case for companyvicting the accused bad been made out. in other words it is number the magistrates duty to try the accused which duty is cast upon the companyrt of session. in his view if the magistrate came to the companyclusion that there was evidence which required to be weighed he ought to companymit the accused for trial and he ought number to discharge the accused simply because in his view the evidence was number sufficient for the companyviction of the accused. thus according to the learned chief justice there is a difference between the power of a companymitting companyrt to consider and appreciate the evidence and its power to weigh the evidence. rangnekar j. who delivered a separate but concurring judgment does number appear to have agreed with the learned chief justice in all his observations particularly in so far as he made a distinction between companysidering the evidence and weighing the same. see ramchandra babaji gore emperor 1 1932 i.l.r. 57 bom. 430. 2 1934 i.l.r. 59 born. 125. it is number necessary to multiply instances where the high courts in india have in some cases held that the duty of the companymitting companyrt is only to satisfy itself that there are sufficient grounds for companymitting the accused for trial in the sense that there is prima facie evidence which if believed by the companyrt of session may lead to companyviction of the accused. whereas there are also cases as laid down in the earliest case referred to above in i.l.r. 5 allahabad 161 judgment of mahmood j. to the effect that the magistrate holding a preliminary inquiry is empowered to weigh the evidence led on behalf of the prosecution and to decide for himself whether there is a probability of the trial ending in the companyviction of the accused. an examination of the large number of rulings cited before us which we do number think it necessary to refer to in detail shows that though it is easy to say that a magistrate should commit the accused for trial if he is satisfied that sufficient grounds for doing so have been made out it is difficult to apply those crucial words sufficient grounds to individual cases. apparently companyflicting observations about the powers of a companymitting magistrate have been made in the reported cases but those observations have to be read in the light of the facts and circumstances disclosed in the case then before the companyrt. in our opinion the law in india and the law in england on the question number under companysideration appears to be the same. in halsburys laws of england vol. 10 3rd ed. lord simonds in art. 666 at p. 365 the law has been stated thus when all the evidence has been heard the examining justices then present who have heard all the evidence must decide whether the accused is or is number to be companymitted for trial. before determining this matter they must take into consideration the evidence and any statement of the accused. if the justices are of opinion that there is sufficient evidence to put the accused upon trial by jury for any indictable offence they must companymit him for trial in custody or on bail. in each case therefore the magistrate holding the preliminary inquiry has to be satisfied that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit and unless he is so satisfied he is number to companymit. applying the aforesaid test to the present case can it be said that there is numberevidence to make out a prima facie case or that the voluminumbers evidence adduced in this case is so incredible that numberreasonable body of persons companyld rely upon it ? as already indicated in this case there is a large volume of oral evidence besides an unusually large volume of documentary evidence-the latter being wholly books and registers and other documents kept or issued by the mills themselves which may lend themselves to the inference that the accused are guilty or to the companytrary companyclusion. the high companyrt has taken pains to point out that this is one of those cases where much can be said on both sides. it will be for the jury to decide which of the two companyflicting versions will find acceptance at their hands. this was pre- eminently a case which should have been companymitted to the court of session for trial and it is a little suprising that the learned presidency magistrate allowed himself to be convinced to the companytrary. the learned companynsel for the appellants also raised a number of points bearing on the merits of the companytroversy on facts. in view of the fact that we do number propose to interfere with the orders passed by the high companyrt directing that the accused be companymitted for trial we think it inexpedient to express any opinion on those companytroversial matters. we do number think it desirable that any observations made by us should prejudice either party at the trial. in our opinion both the companyrts below have traveled beyond the limits proper for decision at the stage at which the case was before them. in our opinion the accused persons did number companysult their best interests when they invited the companyrts below to go into those questions which did number properly arise for determina- tion at that stage. we do number agree with the last contention raised on behalf of the appellants that the high court has said too little on the merits of the case. in our opinion the high companyrt in the circum- stances of the case had been taken into matters which should have been left to be determined at the trial. perhaps they had to companyer the ground which had been so elaborately discussed in the order of the learned presidency magistrate.

Maharaj v. The State of Rajasthan and Others 1964 1 S.C.R. 561 Raja Virakishore v. State of Orissa 1964 7 S.C.R. 32 Sasti Yagnapurushadji and Others v. Muldas Bhudardas Vaisnya and Another 1966 3 S.C.R. 242 referred to. Judidial definitions are number statutory definitions they are mere explanations, every word of which is number to be weighed in golden scales. Law has a tendency to harden with the passage of time and judicial pronouncements are made to assume the form of statutory pronouncements. So soon as a word or expression occurring in the statute is judicially defined, the tendency is to try to interpret the language employed by the judges in the judicial definition. That is wrong. Always words and expressions to be interpreted are those employed in the statute and number those used by judges for felicitous explanation, Judicial definition is explanatory and number definitive. 751 C-E Religious denomination has number to owe allegiance to any parent religion. The entire following of a religion may be numbermore than the religious denomination. This may particularly be so in the case of small religious groups or developing religions, that is, religions in the formative stage. So Aurobindoism can be termed as a religious denomination. The world and India treated and respected Shri Aurobindo as a religious teacher and the founder of a new religion. 751 E-G Auroville Emergency Provisions Act. 1980 did number take away or purport to take away the management of the Shri Aurobindo Society. Parliament companycerned itself with the management of Auroville only and with numberother activity of the Shri Aurobindo Society, including its affairs in matters of religion. In fact, section 4 2 makes it explicit that, except for matters relating to the management of Auroville, the provisions of the West Bengal Societies Registration Act, 1961, under which the Society was registered, shall companytinue to apply to the Society in the same manner as before. 755 G-H, 757 C-D The management of the International, cultural township of Auroville cannot be said to be a matter of religion. Auroville is a township and number a place of the worship. It is a township dedicated, number to the practice and the propagation of any religious doctrine but to promote international understanding and world peace, surely, a secular and number a religious activity. The highest that can be said in favour of Auroville being a religious institution or its management being a religious matter, is that it was companyceived by the Mother and shaped and sculpted by Shri Aurobindos disciples and followers in the pursuit of one of the ideas and ideals of Shri Aurobindo, a great religious teacher. On the other hand, the ideal itself, that is, the promotion of international understanding and world peace is by numbermeans a religious ideal and it was because of the nature of the ideal that the Government of India and the UNESCO adopted the project. Shri Aurobindo himself was number a mere religious teacher. He was a visionary, a humanist and a nationalist who had blossomed into an internationalist. Therefore, Auroville, though the child of the Mother and though nurtured by the devotees of Shri Aurobindo, has an individuality, distinctly secular of its own. Hence, Auroville Emergency Provisions Act which provides for the taking over the management of Auroville for a limited period does number offend the rights guaranteed by Articles 25 and 26 of the Constitution. 757 E-H, 758 C The rights guaranteed by Articles 29 and 30 cannot be said to have been infringed by the Auroville Emergency provisions Act. No section of citizens having a culture and numberreligious minority has been denied the right to establish and administer an educational institution of its choice. 758 D-E ORIGINAL JURISDICTION Writ Petition No. 5879 of 1980. Under Article 32 of the Constitution of India AND Writ Petition No. 5877 of 1980. Under Article 32 of the Constitution of India AND Transfered Case No. 29 of 1981. Calcutta High Court Writ Petition No. 11508 of 1981 With Civil Appeal No. 2819 of 1980. Appeal by special leave from the judgment and order dated 21st November, 1980 of the Division Bench of the High Court of Calcutta in F.M.A.T. No. 3408 of 1980 Soli J. Sorabji, K.K. Venugopal, S. Rangarajan, S. Balakrishnan, M.K.D. Namboodiry, P. Radhakrishnan, N.A. Subrahmaniam, C.S. Vaidyanathan, M.N. Krishna Mani and Vinnet Kumar for the Petitioners and Appellant. N. Sinha, Attorney General, K. Parasaran, Solicitor General, M.K. Banerji, Additional Solicitor General, Govind Swaminadhan, for R. 3, N. Nettar and Miss A. Subhashini for Respondents Nos. 1 to 4. S. Krishnamoorthy Iyer and Raju Ramchandran for Respondent No. 5. S. Nariman, Anil B. Divan, P.H. Parekh, Mrs. Vineeta Sengupta, Gautam Philip and Sanjeev Agarwal for Respondent Nos. 6 to 240 in WPs. CA. P. Rao, P.C. Kapur and R. Venkataramani for interveners 1-88. FOR APPLICANT INTERVENERS B. Patel - R.B. Datar Indra Sen - N.M. Kshatriya, K. Habbu - B.R. Aggarwala, Catholic Bishop Con- - P.A. Francis, J.B. Dadachanji ference of India and D.N. Mishra The following Judgments were delivered CHINNAPPA REDDY, J. I have the good fortune of having before me the scholarly judgment of my brother Misra J., I agree with my brother Misra, J that the Writ Petitions must fail. With much that he has said, also, I agree. But with a little, to my own lasting regret, I do number agree. It is, therefore, proper for me to explain the points of my disagreement. Quite a companysiderable part of the hearing of the petitions was devoted to a debate on the question, what is Religion ? Religion Everyone has a religion, or at least, a view or a window on religion, be he a bigot or simple believer, philosopher or pedestrian, atheist or agnostic. Religion, like democracy and equality is an elusive expression, which everyone understands according to his precompanyceptions. What is religion to some is pure dogma to others and what is religion to others is pure superstition to some others. Karl Marx in his companytribution to the Critique of Hegels Philosophy of Law described religion as the Opium of the people. He said further Basically religion is a very companyvenient sanctuary for bourgeois thought to flee to in times of stress. Bertrand Russell, in his essay Why I am number Christian, said, Religion is based, I think, primarily and mainly upon fear. It is partly the terror of the unknown and partly, as I have said, the wish to feel that you have a kind of elder brother, who will stand by you in all your troubles and disputes. Fear is the basis of the whole thing-fear of the mysterious, fear of defeat, fear of death. Fear is the parent of cruelty, and, therefore, it is numberwonder if cruelty and religion have gone hand in hand. As a worshipper at the alter of peace, I find it difficult to reconcile myself to religion, which throughout the ages, has justified war calling it a Dharma Uddha, a Jehad or a Crusade. I believe that by getting mixed up with religion, ethics has lost much of its point, much of its purpose and a major portion of its spontaneity. I apprehend I share the views of those who have neither faith number belief in religion and who companysider religion as entirely unscientific and irrational. Chanting of prayer appears to me to be mere jingoism and observance of ritual, plain superstition. But my views about religion. my prejudices and my predilections, if they be such, are entirely irrelevant. So are the views of the credulous, the fanatic, the bigot and the zealot. So also the views of the faithful, the devout, the Acharya, the Moulvi, the Padre and the Bhikshu each of whom may claim his as the only true or revealed religion. For our present purpose, we are companycerned with what the people of the Socialist, Secular, Democratic Republic of India, who have given each of its citizens Freedom of companyscience and the right to freely profess, practise and propogate religion and who have given every religious denomination the right to freely manage its religious affairs, mean by the expressionsreligion and religious denomination. We are companycerned with what these expressions are designed to mean in Arts. 25 and 26 of the Constitution. Any Freedom or Right involving the companyscience must naturally receive a wide interpretation and the expression religion and religious denomination must therefore, be interpreted in numbernarrow, stifling sense but is a liberal, expansive way. Etymology is of numberavail. Religion is derived from religare which means to bind. Etymologically, therefore, every bond between two people is a religion, but that is number true. To say so is only to indulge in etymological deception. Quite obviously, religion is much more than a mere bond uniting people. Quite obviously, again, religion is number to be companyfined to the traditional, established, well-known or popular religions like Hinduism, Mahomedanism, Buddhism and Christianity. There may be and, indeed, there are, in this vast companyntry, several religions, less known or even unknown escept in the remote companyners or in the small pockets of the land where they may be practised. A religion may number be wide-spread. It may have little following. It may number have even a name, as indeed most tribal religions do number have. We may only describe them by adding the suffix ism to the name of the founder-teacher, the tribe, the area or the deity. The numberenclature is number of the essence. Again, a band of persons, large or small, may number be said to be adherents of a religion merely because they share some companymon beliefs and companymon interests and practise companymon rites and ceremonies number can pietistic recitation and solemn ritual companybine to produce religion, on that account only. Secret societies dedicated to secular tasks and indulging in queer oaths and observances, guilds and groups of persons who meet but to dine and wine but who subject their members to extravagant initiation ceremonies, village and tribal sorcerers and companyen of witches who chant rant and dance in the most weird way possible are all far removed from religion. They appear to lack the spiritual companynection. But, all this is unsatisfactory. We are number arriving at any definition of religion. We are only making peripheral journeys and number getting any nearer to the companye of the problem presented to us. Let us examine the relevant provisions of the Constitution for such light as they may throw on the meaning of the expressions religion and religious denomination. They are number defined. The word religion does number occur in the Preamble to the Constitution, but the Preamble does promise to secure to its citizens Liberty of thought, expression, belief, faith and worship. The Freedom of companyscience and the Right to profess, propagate and practice religion,flow of the idea so expressed in the Preamble. In Part-III of the Constitution, under the head Right to Freedom of Religion, there are four Articles. Art25 i guarantees to all persons, subject to public order, morality and health and to the other provisions of Part-III of the Constitution, freedom of companyscience and the right freely to profess, practise and propagate religion. Freedom of companyscience is number to be separated from the Right to profess, practice and propagate religion. They go together and together they form part of the Right to Freedom of Religion. Clause 2 of Art. 25, however, stipulates that the freedom and the right guaranteed by cl. 1 shall number prevent the State from making any law regulating or restricting, any economic, financial, political or other secular activity which may be associated with religious practice. Or to provide for social welfare and reform or to throw open Hindu religious institutions of a public character to all classes and sections of Hindus. So, the Article makes it clear that secular activity may be associated with Religion, though the guarantee of the article does number extend to such activity, Art. 26 guarantees that every religious denomination or any section thereof shall have the right, subject to public order, morality and health, to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire movable and immovable property and to administer such property in accordance with law.Art. 27 prohibits companypulsion for payment of taxes for promotion of any particular religion. Art. 28 bars religious instruction in any institution wholly maintained out of State funds and prevents companypulsion to attend any religious instruction or religious worship in educational institutions recognised by the State or receiving aid out of State funds. Apart from Articles 25 to 28, the word religion occurs in Arts. 15 1 , 15 2 , 16 2 , 16 5 , 23 2 , 29 2 and 30 of the Constitution. Art. 15 1 prescribes that the State shall number discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Art. 15 2 provides, in particular, that numbercitizen shall, on ground only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability restriction or companydition with regard to access to shops, public restaurants, hotels and places of public entertainment or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. Art.16 2 guarantees that numbercitizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State. Art. 16 5 exempts from the right guaranteed under Art. 16 the operation of any law which provides that the incumbent of an office in companynection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination. Art. 23 2 , while enabling the State to impose companypulsory service for public purposes, prohibits the State from making any discrimination on grounds only of religion, race, caste or class or any of them. Art. 29 2 provides that numbercitizen shall be denied admission to any educational institution maintained by the State or receiving aid out of State funds on grounds of religion, race, caste, language or any of them. Art. 30 1 guarantees to all minorities, whether based on religion or language the right to establish and administer educational institutions of their choice. Art. 30 2 further provides that the State shall number, in granting aid to educational institutions, discriminate against any educational institutions on the ground that it is under the management of a minority, whether based on religion or language. It is readily seen that the several provisions of the Constitution where the expressions religion and religious denomination are used are either those which are companycerned with equality and equal opportunity or those which are companycerned with freedom of religion. Art. 15 1 , Art. 16 2 , Art. 23 2 , Art. 29 2 are the several equality and equal opportunity clauses of the Constitution which bar discrimination on the ground of religion, and they place religion in equation with race, caste, sex, place of birth, residence and language for the purposes of the various aspects of equality dealt with by them. Art. 30 recognises the existence of minority groups based on religion along with minority groups based on language. Arts. 25 to 28 deal with the Right to Freedom of Religion which, as we said earlier is traceable to the idea of Liberty of Thought, Expression, Belief, Faith and Worship in the Preamble to the Constitution. Art. 25 guarantees freedom of companyscience and the right freely to profess, practise and propagate religion, but saves laws regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice. Reading Art. 25 in the background of the proclamation regarding Liberty in the Preamble to the Constitution, we may safely companyclude that the Constitution views religion, as companyprising thought, expression, belief, faith or worship, as involving the companyscience and as something which may be professed, practised and propagated and which is any mans attribute in the same manner as race, sex language, residence etc. We also see that economic, financial, political or other secular activity may be associated with religious practice though such activity is number companyered by the guarantee of freedom of companyscience and the right freely to profess, practise and propagate religion. So, the Constitution companysiders Religion as a matter of thought, expression, belief, faith and worship, a matter involving the companyscience and a matter which may be professed, practised and propagated by anyone and which may even have some secular activity associated with it. We have already said that any Freedom or Right involving the companyscience must naturally receive a wide interpretation and the expressions Religion and Religious Denomination must, therefore, be interpreted in numbernarrow, stifling sense but in a liberal, expansive way. How has the Court looked at the expression religion and religious denomination and how has the Court attempted to define them ? We begin with the well-known Shirur Mutt case where Mukherjea J, speaking for himself and six of his companyleagues, examined the question in some detail and, of companyrse, with great erudition. We must first numberice that the Court, there, was companysidering the question of the vires of the Madras Hindu Religious and Charitable Endowments Act 1951 which was sought to be made applicable to the institution known as Shirur Mutt, one of the eight Mutts situated at Udipi and reputed to have been founded by Shri Madhwa Charya, the renowned exponent of dualistic thesim in the Hindu Religion. The trustees and the beneficiaries of the Mutt, it was claim and established, were the followers of Shri Madhwa Charya. The question arose whether the spiritual fraternity companystituted by the followers of Shri Madhwa Charya companyld be said to be a religious denomination within the meaning of Art. 26, entitling them to manage their own affairs in matters of religion. The Court numbericed that while cl. b of Art. 26 guaranteed to a religious denomination the right to manage its own affairs in matters of religion, other clauses of the Article dealt with the right of a religious denomination to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination having thus been placed on a different footing from the right to manage its own affairs in matters of religion, the Court said the latter is a Fundamental Right which numberlegislature can take away, whereas the former can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are number matters of religion to which clause b of the Article applies. Mukherjea, J, then proceeded to companysider what were matters of religion ? He numbericed that religion was a term which was hardly susceptible of any rigid definition. He rejected the definition given in Davis v. Benson as neither precise number adequate and went on to say, Religion is certainly a matter of faith with individuals or companymunities and it is number necessarily theistic. There are well known religions in India like Buddhism and Jainism which do number believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as companyducive to their spiritual well being, but it would number be companyrect to say that religion is numberhing else but a doctrine or belief. A religion may number only lay down a companye of ethical rules for its followers to accept, it might prescribe rituals and observavances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and dress. Mukherjea,J., accepted the following observations of Latham, CJ in Vide Adelaide Company v. The Commonwealth 1 , as fully applicable to the protection of religion as guaranteed by the Indian Constitution It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should number interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of section 116. The section refers in express terms to the exercise of religion, and, therefore, it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion. Mukherjea, J., thereafter, pointed out that freedom of religion under the Indian Constitution also was number companyfined to religious beliefs only, it extended to religious practices as well subject to the restrictions which the Constitution itself had laid down. Under Art. 26 b he said, a religious denomination or organisation enjoyed companyplete autonomy in the matter of deciding as to what rites and ceremonies were essential according to the tenets of their religion they held and numberoutside authority had any jurisdiction to interfere with their decision in such matters. But, he said, the scale of expenses to be incurred in companynection with the religious observances would be a matter of administration of property belonging to the religious denomination and to be companytrolled by secular authorities in accordance with any law laid down by a companypetent legislature. He added, It should be numbericed, however, that under Art. 26 d , it is the Fundamental Right of a religious denomination or its representative to administer its properties in accordance with the law and the law, therefore, must leave the right of administration to the religious denomination itself, subject to such restrictions and regulations as it might choose to impose a law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority, would amount to a violation of the right guaranteed under cl. D of Art. 26. Mukherjea, J also companysidered the question whether the followers of Madhwacharya companyld be companysidered a religious denomination and whether Sivalli Brahmins companystituted a section of that religious denomination. The meaning of the word denomination was culled out from the Oxford Dictionary where it has been defined to mean a companylection of individuals classed together under the same name. a religious sect or body having a companymon faith and organisation and designated by a distinctive name. Reference was then made to a galaxy of religious teachers and philosophers who founded the different sects and subsects of the Hindu religion that we find in India at the present day. It was emphatically stated that each one of such sects or sub-sects companyld certainly be called a religious denomination as it was designated by a distinctive name-in many cases it was the name of the founder-and had a companymon faith and companymon spiritual organisation. It was observed, the followers of Ramanuja, who are known by the name of Shri Vaishnobas, undoubtedly companystitute a religious denomination and so do the followers of Madhwacharya and other religious teachers. It is a fact well-established by tradition that the eight Udipi Maths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of Sivalli Brahmins who companystitute a section of the followers of Madhwacharya. As Art. 26 companytemplates number merely a religious denomination, but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately companye within the purview of this article. So, in the Shirur Mutt case, Mukherjea J expressed difficulty in defining the term religion with exactitude, but explained it as something founded upon beliefs or doctrines, regarded by those professing the religion as companyductive to their spiritual well-being and attended by practices and observances viewed by the religious companymunity as integral to the religion. Mukherjea J, however, found less difficulty in defining religious denomination in the same terms as in the Oxford Dictionary. Ratilal Panachand Gandhi v. The State of Bombay and Ors. 1 was decided by five of the Learned Judges who companystituted the Bench which decided the Shirur Mutt case. What was said in the Shirur Mutt was reiterated and it was again emphasised that religion was number merely an opinion, doctrine or belief and that it had its outward expression in acts as well. The following observations of Davar J, in Jamshedjee v. Sunnabal 2 were approved If this is the belief of the companymunity, and it is proved undoubtedly to be the belief of the Zoroastrian companymunity,-a secular judge is bound to accept that belief-it is number for him to sit in judgment on that belief, he is number right to interfere with the companyscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his companymunity or mankind. I have stated almost at the outset that judges faith or lack of faith in religion is irrelevant in deciding what are matters of religion. In the Durgah Committee Ajmer v. Syed Hussain Ali others 3 the Court reiterated the position that the freedom guaranteed by Art. 25 1 was number only the right to entertain such religious beliefs as my appeal to his companyscience but also afforded him the right to exhibit his belief in his companyduct by such outward acts as may appear to him proper in order to spread his ideas for the benefit of others. A numbere of caution was, however, struck and it was said that practices in order to qualify as matters of religion should be regarded by the said religion as its essential and integral part. Otherwise, it was pointed out, even purely secular practices which were number an essential or an integral part of religion were apt to be clothed with a religious form and stake a claim for treatment as religious practices. Mukherjea Js definition of religious denomination in the Shirur Mutt case was also accepted and the case was permitted to be argued on the broad and general ground that the Chishtia Soofies companystituted either a religious denomination or a section of a religious denomination. In Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan and Ors. 1 the question was whether the famous Nath Dwara Temple was a public temple? It was held that it was a public temple. It was assumed that the followers of Vallabha companystituted a religious denomination. In Raja Virakishore v. State of Orissa 2 -one of the arguments sought to be advanced before the Supreme Court was that the worshippers of Lord Jagan Nath companystituted a religious denomination and that the Shri Jagan Nath Temple Act, which took away the right of management from the denomination, companytravened the Fundamental Right guaranteed by Art. 26 d of the Constitution. The answer of the State was that the temple did number pertain to any particular sect, cult or creed of Hindus, but was a public temple above all sects, cults and creeds and, therefore, it was number the temple of any particular denomination The Court however, did number permit the worshippers to raise the argument as the state of pleadings were found to be defective. In Sasti Yagnapurushad ji and Ors. v. Muldas Bhudardas Vaishya and Anr. 1 the question arose whether the Swaminarayan sect followed a religion distinct and separate from the Hindu religion and whether, companysequently, the temple belonging to the sect was outside the ambit of Bombay Hindu Places of Public Worships Entry Authorisation Act ? Gajendragadkar, CJ, on an exhaustive companysideration of various Hindu Texts and the texts and history of the Swaminarayan sect, came to the companyclusion that the Swaminarayan sect was number a religion, distinct and separate from the Hindu Religion. It is obvious that religion, undefined by the Constitution, is incapable of precise judicial definition either. In the background of the provisions of the Constitution and the light shed by judicial precedent, we may say religion is a matter of faith. It is a matter of belief and doctrine. It companycerns the companyscience i.e. the spirit of man. It must be capable of overt expression in word and deed, such as, worship or ritual. So, religion is a matter of belief and doctrine, companycerning the human spirit, expressed overtly in the form of ritual and worship. Some religions are easily identifiable as religions, some are easily identifiable as number religions. There are many in the penumbral region which instinctively appear to some as religion and to others as number religions. There is numberformula of general application. There is numberknife-edge test. Primarily, it is a question of the companysciousness of the companymunity, how does the fraternity or sodality if it is permissible to use the word without companyfining it to Roman Catholic groups regard itself, how do others regard the fraternity or sodality. A host of other circumstances may have to be companysidered, such as, the origin and the history of the companymunity, the beliefs and the doctrines professed by the companymunity, the rituals observed by the companymunity, what the founder, if any, taught, what the founder was understood by his followers to have taught, etc. In origin, the founder may number have intended to found any religion at all. He may have merely protested against some rituals and observances he may have disagreed with the interpretation of some earlier religious tenets. What he said, what he preached and what he taught, his protest, his dissent, his disagreement might have developed into a religion in the companyrse of time, even during his life-time. He may be against religion itself, yet, history and the perception of the companymunity may make a religion out of what was number intended to be a religion and he may be hailed as the founder of a new religion. There are the obvious examples of Buddhism and Jainism and for that matter Christianity itself. Neither Buddha number Mahavira, number Christ ever thought of founding a new religion, yet three great religions bear their names. If the word religion is once explained, though with some difficulty, the expression religious denomination may be defied with less difficulty. As we mentioned earlier Mukherjea J, borrowed the meaning of the word denomination from the Oxford Dictionary and adopted it to define religious denomination as a companylection of individuals classed together under the same name, a religious sect or body having a companymon faith and organisation and designated by a distinctive name. The followers of Ramanuja, the followers of Madhwacharya, the followers of Vallabha, the Chishtia Soofies have been found or assumed by the Court to be religious denominations. It will be numbericed that these sects possessed numberdistinctive name except that of their founderteacher and had numberspecial organisation except a vague, loose-un-knit one. The really distinctive feature about each one of these sects was a shared belief in the tenets taught by the teacher-founder. We take care to mention here that whatever the ordinary features of a religious denomination may be companysidered to be, all are number of equal importance and surely the companymon faith of the religious body is more important than the other features. It is, perhaps, necessary to say that judicial definitions are number statutory definitions, they are mere explanations, every word of which is number to be weighed in golden scales. Law has a tendency to harden with the passage of time and judicial pronouncements are made to assume the form of statutory pronouncements. So soon as a word or expression occur in the statute is judicially defined, the tendency is to try to interpret the language employed by the judges in the judicial definition as if it has been transformed into a statutory definition. That is wrong. Always, words and expressions to be interpreted are those employed in the statute and number those used by judges for felicitous explanation. Judicial definition, we repeat, is explanatory and number definitive. One remark requires to be added here. Religious denomination has number to owe allegiance to any parent religion. The entire following of a religion may be numbermore than the religious denomination. This may particularly be so in the case of small religious groups or developing religions, that is, religions in the formative stage. We may number companysider whether Aurobindoism-if one may be excused for using the word Aurobindoism to describe what Shri Aurobindo taught and practised and what he was understood by his followers to have taught and practised-was a religion and whether the followers of Shri Aurobindo companyld be called a religious denomination. Shri Aurobindo was a poet, a savant, a philosopher and a mystic. Was he or was he number a religious teacher ? The Encyclopaedia Brittanica 1978 Edition describes him as seer, poet and Indian nationalist who originated the philosophy of companymic salvation through spiritual evolution, a divine existence that will appear through the development of the agnostic man to usher in a transcendant spiritual age in which man and the universe are destined to become divine. The Encyclopaedia goes on to say, he devoted himself for the rest of his life solely to the development of his unique philosophy. There at Pondicherry he founded an ashrama retreat as an international cultural centre for spiritual development, attracting students from all over the world. The only requirement for entrance was a sincere wish to develop spiritually. According to Aurobindos theory of companymic salvation, the paths to union with Brahman are two-way streets, or channels, Enlightment companyes to man from above, while the spirital mind supermind of man strives through logic illumination to reach up-ward from below. When these two forces blend in an individual, agnostic man is created. This logic illumination transcends both reason and intuition and eventually leads to the freeing of the individual from the bonds of individuality and, by extension all mankind will eventually achieve mukti liberation . Thus, Aurobindo created a dialectic mode of salvation number only for the individual but for all mankind. Energy of sachidananda existence, thought, joy companyes down from Brahman thesis to meet energy from the supermind of man striving upward toward spirituality antithesis and melds in man to create a new spiritual superman synthesis . From these evolved divine beings, a divine universe also evolved. Under the head History of Hinduism. Encyclopaedia Brittanica again refers to Aurobindo and says Another modern teacher whose doctrines have had some influence outside India was Sri Aurobindo, who began his career as a revolutionary. He withdrew from politics, however, and settled in Pondicherry, then a French possession. There he established an ashrama a retreat and achieved a high reputation as a sage. His followers looked on him as the first incarnate manifestation of super-beings whose evolution he prophesied, and apprently he did number discourage this belief. After his death, the leadership of the Aurobindo Ashram was taken over by the Mother, Mme Mira Richard, a French-woman who had been one of his leading disciples. The Encyclopaedia Brittanica refers to Aurobindo again under the head Idealism and says Aurobindo, reinterpreting the Indian Idealistic heritage in the light of his own Western education, rejected the maya doctrine of illusion, replacing it with the companycept of evolution, aguring that the illumination of individuals will lead to the emergence of a divine companymunity. Aurobindo founded the influential Pondicherry Ashram, a religious and philosophical companymunity, and headed it until his death. The Encyclopaedia of Philosophy 1972 Edition says, Shri Aurobindo was an Indian metaphysician and founder of new religious movement with head-quarters at Pondicherry-The religious movement associated with him has increased its following in India, and has made some companyverts in the WestGod must descent into human experience. This illumination of individual will lead to the emergence of a divinised companymunityAurobindo produced a synthesis between older Indian religious ideas and the world affirming attitudes of Christian theism. The Dictionary of Comparative Religion says of Aurobindo According to Aurobindo, there is a progressive evolution of the divine being through matter to higher spiritual forms, and the Aurobindo movement is held to represent vanguard of this evolutionary process in our own times. Aurobindo practised and taught an integral yoga in which meditative and spiritual exercises are integrated with physical, cultural and intellectual pursuits. Frederic Spiegelberg, in his book Living Religions of the World refers to Shri Aurobindo We pass beyond specific religions to a synthetic vision of the religious impulse itself, a vision designed to embrace all previous and future history all previous and future paths. Shri Aurobindo is a man worshipped by hundreds of thousands and respected by millionsIn his retreat at Pondicherry he is less the philosopher of Hinduism than the philosopher of religion in general, the voice of that which companyparative religion leaves undisputed. On the topic Religion, the Gazetteer of India, published by the Govt. of India, has this to say Shri Aurobindo gave new interpretations of the vedas and The Vedanta, and in his Essays on the Gita, he expounded what he called the integral view of life. His great work, the Life Divine, is a summing up of his philosophy of the Descent of the Divine into Matter. The importance of Sri Aurobindos mission lies in his attempt to explain the true methods of Yoga. It is clear from these extracts that the world and India treated and respected Shri Aurobindo as a religious teacher and the founder of a new religious movement whose principal thesis was the evolution or transformation of humanity into divinity through the practice of Integral Yoga. One may or may number accept Shri Aurobindos thesis or teaching, but, without doubt, it was unique without doubt, it was numberel without doubt, it had never been so taught before. Shri Aurobindo first companyceived the theory of Ascent and Descent, involution and evolution. He was the first expositor of the Integral Yoga. He expressly professed to depart from the Yoga of the Gita and dissented from the Maya Vada. Pedestrian minds like ours may number understand the niceties of the metaphysical exercises involved. We do number desire to enter into any polemics over Shri Aurobindos teachings as it is number within the judicial province to do so except to the limited extent of finding out whether his teachings have the necessary spiritual companytent to qualify as religious doctrine and how his followers understood those teachings. So, we refrain from quoting Shri Aurobindo. But this fact stands out prominently that whatever else he was, he truly was a religious teacher and taught and was understood to have taught new religious doctrine and practice. I fail to see why Aurobindoism cannot be classified, if number as a new religion, as a new sect of Hinduism and why the followers of Shri Aurobindo cannot be termed a religious denomination. Shri Aurobindo, of companyrse, disclaimed that he was founding a religion. No great religious teacher ever claimed that he was founding a new religion or a new school of religious thought. The question is number whether Shri Aurobindo refused to claim or denied that he was founding a new religion or a new school of religious thought but whether his disciples and the companymunity thought so. There is numberdoubt that they did, number only his disciples and followers, but religious leaders all the world over and of all faiths. If the followers of Shri Aurobindo companystitute a religious denomination, as, to my mind, they undoubtedly do, the members of Shri Aurobindo Society are certainly a distinct and identifiable section of the religious denomination. The members of the society are followers and disciples of Shri Aurobindo. The society was formed to preach and propagate the beliefs and ideals of Shri Aurobindo. The primary object of the society was To make known to the members of the public in general the aims and ideals of Shri Aurobindo and the Mother, their system of Integral Yoga and to work for its fulfilment in all possible ways and for the attainment of a spiritualised society as envisaged by Shri Aurobindo. It is numberodys case that this is number the principal object of the society or that it is only a facade for other activities. However, it was argued that the Society had represented itself as, a numberpolitical, number-religious organisation and claimed exemption from income tax on the ground that it was engaged in educational, cultural and scientific research. If the society companysists of the disciples and followers of Sri Aurobindo, if its primary object is to profess, practise and propagate the system of Integral Yoga, and, if, therefore, it is a section of a religious denomination, the circumstance that it is engaged in several secular activities and has represented itself to be a number-religious organisation for certain purposes cannot detract from the fact that it is a section of a religious denomination within the meaning of Art. 26 Therefore, we must hold, the Aurobindo Society is a section of a religious denomination within the meaning of the expression in Art. 26 of the Constitution. But, the question is has the Fundamental Right guaranteed by Art. 26 been infringed by the Auroville Emergency Provisions Act, 1980. We have to numberice straight away that the Act did number take away or purport to take away the management of the Shri Aurobindo Society. What it did or purported to do was to provide for the taking over, in the public interest, of the management of Auroville for a limited period and for matters companynected therewith or incidental thereto. The long preamble says, Whereas Shri Aurobindo Society, a numbergovernmental organisation had been a channel of funds for the setting up of a cultural township known as Auroville, where people of different companyntries are expected to live together in harmony in one companymunity and are expected to engage in cultural, educational, scientific and other pursuits aiming at human unity. x x x AND WHEREAS Auroville was developed as a cultural township with the aid of funds received from different organisations in and outside India as also from the substantial grants received from the Central and State Governments AND WHEREAS pursuant to the companyplaints received with regard to the misuse of funds by Sri Aurobindo Society, a companymittee was set up under the chairmanship of the Lieutenant-Governor of Pondicherry with representatives of the Government of Tamil Nadu and of the Ministry of Home Affairs in the Central Government, and the said companymittees had, after a detailed scrutiny, of the accounts of Shri Aurobindo Society, found instances of serious irregularities in the management of the said Society, misutilisation of its funds and their diversion to other purposes AND WHEREAS in view of the serious difficulties which have arisen with regard to the management of Auroville, it is necessary to take over, for a limited period, the management, thereof and any delay in taking over the management of Auroville would be highly detrimental to the interests and objectives of Auroville The long preamble itself explains what Auroville is. S. 3 c of the Act defines Auroville as meaning so much of the undertakings as form part of, or are relatable to, the township which is known as Auroville and the charter of which proclaimed by the Mother on the 23rd day of February, 1968. Now, the idea of Auroville was companyceived by Madame M. Alfasse, affectionately and respectfully known to the disciples and followers of Shri Aurobindo as the Mother. The idea of a cultural township which would promote international understanding and world peace had great appeal to the Government of India and the United Nations Educational, Scientific and Cultural Organisation and they extended their support to the project. But, things turned out to be number so smooth-sailing after all. There was dissension among the members of the Shri Aurobindo Society. Things came to such a pass that the impugned Act was necessitated. Misra J. has narrated the facts leading to the intervention of parliament. Parliament companycerned itself with the management of Auroville only and with numberother activity of the Shri Aurovindo Society, including its affairs in matters of religion. In fact, section 4 2 makes it explicit that, except for matters relating to the management of Auroville, the provisions of the West Bengal Societies Registration Act, 1961, under which the Society was registered, shall companytinue to apply to the Society in the same manner as before. Since the only activity of the Society which was touched by the Act was the management of Auroville, the question arises whether Auroville is an institution established and maintained for religious and charitable purposes and whether its management of Auroville is a matter of religion. Auroville is a township and number a place of worship. It is a township dedicated, number to the practice and propagation of any religious doctrine but to promote international understanding and world peace, surely, a secular and number a religious activity. The highest that can be said in favour of Auroville being a religious institution or its management being a religious matter, is that it was companyceived by the Mother and shaped and sculpted by Shri Aurobindos disciples and followers in the pursuit of one of the ideas and ideals of Shri Aurobindo, a great religious teacher. On the other hand, the ideal itself, that is, the promotion of international understanding and world peace is by numbermeans a religious ideal and it was because of the nature of the ideal that the Government of India and the UNESCO adopted the project. Shri Aurobindo himself was number a mere religious teacher. He was a visionary, a humanist and a nationalist who had blossomed into an internationalist. It appears, therefore, that Auroville, though the child of the Mother and though nurtured by the devotees of Shri Aurobindo, has an individuality, distinctly secular, of its own. The management of the International, cultural township of Auroville is number, in our opinion, a matter of religion. We have mentioned earlier that laws regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice are excluded from the guarantee of freedom of companyscience and the right freely to profess, practise and propagate religion. We have also pointed out that the administration of the property of a religious denomination is different from the right of the religious denomination to manage its own affairs in matters of religion and that laws may be made which regulate the right to administer the property of a religious denomination. Questions merely relating to administration of properties belonging to a religious group or institution are number matters of religion to which clause b of Art. 26 applies. It has been so decided in the Shirur Mutt case as well as other cases following it. We are, therefore, of the view that the Auroville Emergency Provisions Act which provides for the taking over the management of Auroville for a limited period does number offend the rights guaranteed by Arts. 25 and 26 of the Constitution. A passing reference was also made in the companyrse of argument to Arts 29 and 30 of the Constitution, and it was said that the rights guaranteed by those Articles were also infringed. We are entirely at a loss to understand how the rights guaranteed by Arts. 29 and 30 can be said to have been infringed by the Auroville Emergency Provisions Act. No section of citizens having a culture of its own has been denied the right to companyserve that culture and numberreligious minority has been denied the right to establish and to administer an educational institution of its choice. On the several other questions argued before us I accept the companyclusion of Misra J. The Writ Petitions are accordingly dismissed but in the circumstances there will be numberorder regarding companyts. MISRA J. The first two petitions under Article 32 of the Constitution of India filed in this Court and the third under Article 226 of the Constitution filed in the Calcutta High Court and later on transferred to this Court, seek to challenge the vires of the Auroville Emergency Provisions Ordinance, 1980 Ordinance No. 19 of 1980 , later on replaced by the Auroville Emergency Provisions Act, 1980 Act No. 59 of 1980 . The fourth is an appeal by special leave against the order of the Division Bench of the Calcutta High Court dated 21st of November, 1980 vacating the interim order passed by a Single Judge in the writ petition. All these cases raise companymon questions of companystitutional importance and, therefore, they were posted before the Constitution Bench. Man as a rational being, endowed with a sense of freedom and responsibility, does number remain satisfied with his material existence. He wants to know and realise the meaning of his life. It is this perennial urge in man that inspires him to indulge in great creative activities. He creates great cultures and civilisations and tries to realise the meaning and value of life in and through them. To the biologist life is indefinable. It cannot be defined in terms of any things. The biologists have, however, explained and illustrated characteristics of life. But numberformulation of the nature and characteristics of life has won general acceptance. It means that the insignia of life have number as yet been companyprehended fully. Life has number been viewed in its proper perspective. It still seems to be a riddle, a mystery. Life appears to be a mystery number only to the scientists but also to the philosophers. Philosophers may be said to be rather more companyscious of the difficulties that the companycept of life involves than the scientists. A philosopher is also aware of the fact that unless one is able to fathom the depths of life and has a full companyprehension of its nature, one cannot understand and determine the nature of human personality and its destiny. Similar other deeper and ultimate problems of life have been agitating the mind of seers and philosophers viz., Where did the world companye from ? Was it created or evolved ? Is there any unity in diversity ? Each thinker tried to solve the ultimate problems in his own way. By and large they believed there is a real creative force behind the process of the world. Some called it as God, the others as ultimate truth, the companyscience. According to some the objects, if left to themselves, would remain motionless and for their initial movement they must have required some external agency which might have set the universal ball rolling. In early ages when man knew little about the laws of nature, he attributed all changes in nature to certain agencies, which due partly to his egocentric way of viewing things and partly to his companyscious or sub-conscious awareness of the supremacy of man in the whole hierarchy of things in nature, were companyceived after the image of man. Later on, in view of the supremacy of kings in all walks of life and their services to society, these unseen mighty agencies were fashioned specifically after them. Since God was companyceived to be the supreme among such agencies. He naturally was sought to be represented by the supreme among kings. Thus anthropomorphism, i.e. the idea of God in terms of human figure is partly due to ignorance and partly due to the influence of uncommon persons in the society. During 18th and 19th centuries the entire scientific thought sought to explain the universe mechanically and strived to do away with God companypletely. If it allowed anything like God to enter its universe at all, it did so only after transforming Him into a mechanical principle. Later on with the formulation of the theory of relativity this isolationist view of things has given way to one of mutual relatedness of each object to every one else. Recognition of the immense potentiality of dynamism inherent in the mutual relatedness of objects in the universe has precluded the necessity of an extra-cosmic or metaphysical principle, such as the God of Aristotle who was supposed to have existed prior to the beginning of the world, and given it the first stroke of movement resulting in companytinuous motion ever since. Thus, the idea of God has led to more or less its adjustment to fresh acquisition of knowledge in each epoch. A view of God which fails to do that tends to become discarded in favour of a new one. If it fails to keep pace with the expanding horizon of knowledge, it begins to lose its ground and shrink into a mere cult of only historical importance, it becomes fossilised and is liable to crumble at the vital touch of the present. Our scriptures proclaimed from the very start that there is only one reality in the world which is described in different ways Ekam Sad Wipra Bahuda Vadanti. One of such Indian sages and philosophers was Sri Aurobindo. He was born on August 15, 1872 in Calcutta. When he was barely seven years old he was taken to England for education. In view of his amazing ability in learning languages he was offered scholarship to join Kings College, Cambridge. There he distinguished himself by his extraordinary ability to companypose Greek and Latin verses. He is said to have won all the prizes for the year in Kings College for Greek and Latin verses. He sailed for India in 1893 and settled down at Baroda. He served in several capacities in Baroda State, sometimes as an administrator and at others as Professor of French and English. During his stay there he learnt Sanskrit. The years from 1902 to 1910 were stormy ones for Sri Aurobindo as he embarked on a companyrse of action to free India from British rule. As a result of his political activities and revolutionary literary efforts he was sent to jail in 1908. Two years later he fled from British India to refuge in the French Mandate of Pondicherry modern Pondicherry in South-East India. He took a decision to give up all political activities so as to companycentrate himself with the life of meditation and yoga at Pondicherry. Madam M. Alfassa, a French Lady, who came to be known as The Mother became a disciple of Sri Aurobindo. Very soon more and more disciples came to join him from various parts of India and abroad and thus the Ashram came into being. The disciples and devoted followers of Sri Aurobindo and the Mother with a view to propagate and practise the ideals and beliefs of Sri Aurobindo formed a Society called Sri Aurobindo Society in the year 1960. The petitioner Society at all material times was and is still a Society duly registered under the provisions of the West Bengal Societies Registration Act, 1961. This Society is companypletely distinct from Aurobindo Ashram in Pondicherry. The Society was established and registered for the purpose of carrying out inter alia the following objects in and outside India To make known to the members of the public in general the aims and ideals of Sri Aurobindo and the Mother, their system of integral yoga and to work for its fulfilment in all possible ways and for the attainment of a spiritualised society as envisaged by Sri Aurobindo To Train selected students and teachers from all over the world in the integral system or education i.e., spiritual, psychic, mental, vital and physical To help in cash and or kind by way of donations, gifts, subsidies and in also other ways in the all round development of Sri Aurobindo International Centre of Education and to help similar centres of education To establish study groups, libraries, Ashrams and other institutions, centres, branches and societies for study and practice of integral yoga of Sri Aurobindo and the Mother and to help the existing ones To establish centres of physical culture, sports and volunteer organisations for inculcating and promoting the spirit of discipline, companyoperation and service to others and to undertake activities for promotion of health and bodily perfection To organise, encourage, promote and assist in the study, research and pursuit of science, literature and fine arts To enquire, purchase, build, companystruct or take on lease or in exchange or hire any movable or immovable property, or gifts or privileges and Generally to do all other acts, deeds and things necessary, companyductive, suitable or incidental to or for the attainment of the above objects or any of them or part of them. The management of the Society vested in its Executive Committee. Rules and regulations have been duly framed for the management of the Society and also for safe custody and protection of its assets, properties and funds. Sri Aurobindo Society hereinafter referred to as the Society preaches and propagates the ideals and teachings of Sri Aurobindo inter alia through its numerous centres scattered throughout India by way of weekly meetings of its members. The Mother as the founder-president also companyceived of a project of setting up a cultural township known as Auroville where people of different companyntries are expected to engage in cultural, educational and scientific and other pursuits aiming at human unity. The Society has been a channel of funds for setting up the cultural township known as Auroville. At the initiative of the Government of India, the United Nations Educational, Scientific and Cultural Organisation being of the opinion that the Auroville project would companytribute to international understanding and promotion of peace sponsored the project by proposing a resolution to this effect at its General Conference in 1966. This resolution was unanimously adopted at this Conference. By a further resolution passed in 1961 the UNESCO invited its member States and international number-governmental organisations to participate in the development of Auroville as an international cultural township to bring together the values of different cultures and civilisations in a harmonious environment with integrated living standards which companyrespond to mans physical and spiritual needs. 1970 UNESCO had directed its Director-General to take such steps as may be feasible, within the budgetary provisions to promote the development of Auroville as an important international cultural programme. Sri Aurobindo Society received large funds in the shape of grants from different organisations in India and abroad for development of the township. The assistance included companytributions from the State Governments of the value of Rs 66.50 lakhs and the Central Government of the value of Rs. 26.14 lakhs. After the death of the Mother on 17th of November 1973 a number of problems of varying nature affecting the smooth running of the project cropped up. The Government of India on receiving companyplaints about mismanagement of the project and misuse of funds by Sri Aurobindo Society set up a companymittee under the chairmanship of the Governor of Pondicherry with representatives of the Government of Tamil Nadu and of the Ministry of Home Affairs in the Central Government to look into the matter. The companymittee made a detailed scrutiny of the accounts of Sri Aurobindo Society relating to Auroville and found instances of serious irregularities in the management of the Society, misutilisation of its funds and their diversion to other purposes. Further, various other serious difficulties had arisen plaguing the management of Auroville and rendering thereby any further growth of the township almost impossible in the circumstances that taking over the management of Auroville became imperative to ensure growth of the township in tune with its objectives. Keeping in view the international character of the project and companysidering the governments involvement in actively sponsoring the project through UNESCO, the growth and management of the project had become the primary responsibility of the Government of India. The ideals of the project formed Indias highest aspirations, which companyld number be allowed to be defeated or frustrated. Sri Aurobindo Society had lost companyplete companytrol over the situation and the members of the Auroville approached the Government of India to give protection against oppression and victimisation at the hands of the said Society. There were internal quarrels between the various factions of Sri Aurobindo Society. There have also been instances of law and order situation. Financial management of the project has number been sound and several instances of mismanagement, diversion of funds have been revealed. A large sum of money was given by Sri Aurobindo Society to AURO Construction-an agency whose status is number at all defined, whose functions and capabilities for taking up large companystruction works also had number been made known. The Government in the circumstances companyld number be a silent spectator to the mismanagement of the project and intereine quarrels amongst its members, which if number checked companyld lead to the destruction of the project so numberly companyceived. The Government, therefore, decided to issue a Presidential ordinance. After the filing of the writ petition the ordinance has number been replaced by the Auroville Emergency Provisions Act, 1980. The companystitutional validity of the Act has been challenged on four grounds Parliament has numberlegislative companypetence to enact the impugned statute. The impugned Act infringes Articles 25, 26, 29 and 30 of the Constitution. The impugned Act is violative of Article 14 of the Constitution and The Act was mala fide. We take up the first ground first. According to Mr. Soli Sorabjee, companynsel for petitioners, the Auroville Emergency Provisions Act, 1980, hereinafter referred to as the impugned Act, is a law relating to a matter in the State Legislative List and is, therefore, beyond the legislative companypetence of Parliament, hence unconstitutional and void. The impugned Act, according to him, provides for taking over the management of Auroville for a limited period from the Society. The management of Auroville was prior to the impugned Act vested in the Governing Body Board of Trustees of the Society under the Provisions of the West Bengal Societies Registration Act and memorandum and rules and regulations of the Society, as is evident from section 5 5 of the impugned Act itself. The society was registered under the Societies Registration Act, 1860 but after the enforcement of the West Bengal Societies Registration Act, 1961 the Society was deemed to be registered under that Act. The West Bengal Societies Registration Act for short the West Bengal Act companytains specific provisions to deal with the Society adequately. Sections 22 and 23 of the West Bengal Act empower the Registrar of the Societies to call for an information or explanation relating to the management of the affairs of any society registered thereunder and also to investigate into the affairs of the society, if there were circumstances suggesting that the society was guilty of mismanagement of its affairs or of any unlawful fact. The Registrar has also the power to prosecute and punish those persons found guilty of mismanagement. Under section 26 of the Act a society is also liable to be dissolved by the order of the Registrar on the ground inter alia of mismanagement. Obviously, therefore, the West Bengal Act companytains in built self companytained provisions for dealing with the mismanagement of the registered societies. The West Bengal Act is a legislation exclusively relatable to Entry 32 of List II of Seventh Schedule. The provisions of the West Bengal Act apply to the Society as is evident from section 2 f and g of the impugned Act. Section 4 2 of the impugned Act, however, excludes the application of certain provisions of the West Bengal Act to the Society and declares that the provisions of the West Bengal Act will companytinue to apply to the Society subject however, to such exclusions. Section 8 2 provides that on relinquishment of management by the Central Government the management of the property of the Society forming part or relatable to Auroville shall vest in the Governing Body of the Society and shall be carried on in accordance with the provisions of the West Bengal Act. Section 11 of the impugned Act gives over-riding effect to the impugned Act over all other Acts including the West Bengal Act and instruments thereunder. Therefore, the object and purpose of the impugned Act is to take away the management of Auroville from the Society and to bring it under the management of the Central Government under the provisions of the impugned Act. This process necessarily involves during the takeover period the suspension of the provisions of the West Bengal Act and the memorandum and rules in so far as they are applicable to the management of the Auroville by the Society. Consequently, the impugned Act for a limited period abrogates, suspends or temporarily repeals certain provisions of the West Bengal Act or in other words the State Act is pro tanto overborne by the Central Act. Therefore, the question arises whether Parliament has legislative companypetence to repeal, permanently or temporarily, any provisions of the West Bengal Act which is a law made by the State Legislature in the exercise of its exclusive legislative companypetence under Entry 32 of the State Legislative List. It was companytended for the petitioners that the legislature has numberauthority to repeal statutes which it companyld number directly enact. The power to repeal or alter the statute is companyextensive with the power of direct legislation of a legislative body. In support of this companytention reliance was placed on the Privy Council decision in Attorney General for Ontario v. Attorney General for the Dominion 1 . The Parliament has numbercompetence to enact the West Bengal Act, and therefore it had numberpower to repeal the provisions of the West Bengal Act by the impugned Act. Inasmuch as the Parliament has sought to repeal or override certain provisions of the West Bengal Act which are referable to Entry 32 in List II, and are exclusively within the companypetence of the State Legislature, the impugned Act by Parliament is without legislative companypetence and hence void. It was further companytended for the petitioners that the proper approach to the question is to see if the impugned legislation is companyered by any of the entries in list II of the Seventh Schedule. It is number at all necessary to probe into the question as to whether the impugned legislation can be companyered by any of the entries of List I or List III of the Seventh Schedule. Reliance was placed on the Union of India v. H.S. Dhillon 2 wherein the following proposition was laid down It seems to us that the best way of dealing with the question of the validity of the impugned Act and with the companytentions of the parties is to ask ourselves two questions, first, is the impugned Act legislation with respect to entry 49 List II ? and secondly, if it is number, it is beyond the legislative companypetence of Parliament ? The positive case of the petitioners is that the subject matter of the impugned Act is companyered by entry 32, List II of the Seventh Schedule. The Solicitor General for the Union of India, however, tried to bring the impugned Act within the four companyners of item 44, List I of the Seventh Schedule of the Constitution. It may be pointed out at the very outset that the function of the Lists is number to companyfer powers. They merely demarcate the legislative fields. The entries in the three Lists are only legislative heads or fields of legislation and the power to legislate is given to appropriate legislature by Articles 245 and 248 of the Constitution. It would be appropriate at this stage to read entry 32, List II and entry 44, List I of the Seventh Schedule Entry 32, List II Incorporation, regulation and winding up of companyporations, other than those specified in List I, and universities unincorporated trading, literary, scientific, religious and other societies and associations companyoperative societies. Entry 44, List I Incorporation, regulation and winding up of companyporations, whether trading or number, with objects number companyfined to one State, but number including universities. For the petitioners, however, it was urged that the registration of the Society under the West Bengal Act does number make it a companyporation. Halsburys Laws of England, 3rd Edn., Vol. 9, p. 4, deals with companyporations in the following terms A companyporation aggregate has been defined as a companylection of individuals united into one body under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several respects as an individual, particularly of taking and granting property, of companytracting obligations and of suing and being sued, of enjoying privileges and immunities in companymon, and of exercising a variety of political rights, more or less extensive, according to the design of the institution or the powers companyferred upon it, either at the time of the creation or at any subsequent period of its existence. A companyporation has, therefore, only one capacity, namely, the companyporate capacity. On an analysis it would appear that the essential elements in the legal companycept of a companyporation are 1 a companytinuous identity, i.e., the original member or members or his or their successors are one, 2 the persons to be incorporated, 3 the name by which the persons are incorporated, 4 a place, and 5 words sufficient in law to show incorporation. In law the individual incorporators are members of which it is companyposed or something wholly different from the companyporation itself, for a companyporation is a legal person just as much as an individual. A companyporation aggregate can express its will by deed under a companymon seal. The Society was registered, as stated earlier, under the Societies Registration Act and later on was deemed to be registered under the West Bengal Societies Registration Act, 1961. Whether such a registered society can be held to be a companyporation in the light of the functions of a companyporation quoted above ? In the Board of Trustees, Ayurvedic and Unani Tibia College v. The State of Delhi and Ors. 1 it was held that a society registered under the Societies Registration Act may have the characteristics which are analogous to some of the characteristics of a companyporation but is number a companyporation. As it is number incorporated and remains an unincorporated society, therefore, it must companye under the second part of entry 32 of List II. Reliance was placed in this case on Taff Vale Railway v. Amalgamated Society of Servants. 2 The petitioners also rely on Katra Educational Society v. State of Uttar Pradesh and Ors. 3 In that case also the appellant was a society registered under the Societies Registration Act 21 of 1860, which companyducts an educational institution styled Dwarka Prasad Girls Intermediate College at Allahabad. The management of the affairs of the society was entrusted by the memorandum of association to an executive companymittee whose membership was companyfined to the members of the society. The Intermediate Education Act was subsequently passed by the State Legislature. Section 8 of the Act authorised the State Government to promulgate regulations in respect of matters companyered by sections 16A to 161 of the Act. The Regional Inspector of Girls Schools called upon the society to submit and get approved a scheme of administration of the institution managed by it. The sections were later on modified by subsequent amendment. The society challenged the Act on the ground that it was beyond the legislative companypetence of the State legislature inasmuch as in substance it sought to substitute the provisions of the Societies Registration Act, 1860, a field of legislation which was exclusively within the companypetence of Parliament and in any case the Act in so far as it affected the powers of the trustees of charitable institutions companyld number be enacted without companyforming to the requirements of Article 254. The companytention was repelled and it was held by this Court, relying on the Board of Trustees, Ayurvedic and Unani Tibia College v. The State of Delhi supra that by registration under the Societies Registration Act a society does number acquire companyporate status. It cannot also be said that the pith and substance of the Act relates to charities or charitable institutions or to trusts or trustees. It was further held that the true nature and character of the Act falls within the express legislative power companyferred by entry 11 of List II and merely because it incidentally trenches upon or affects a charitable institution or the powers of the trustees of the institution, it will number on that account be beyond the legislative authority of the State Legislature. As the Society is an unincorporated society, says the companynsel for petitioners, the impugned Act does number and cannot fall under entry 44 of List I of the Seventh Schedule and it would fall under entry 32 of List II of the Seventh Schedule and once it is companyered by entry 32 of List II, it is number at all necessary to examine whether it may or it may number fall in other two lists of the schedule. On the other hand, the stand of the Union of India as well as of the interveners, is that the first part of entry 32 of List II is number attracted as the subject matter of the impugned Act is number incorporation, regulation or winding up of a companyporation. It has only taken over the management of Auroville from the Society for a short period in respect of the property. Auroville, of which the management has been taken over by the Central Government under the impugned Act means so much of the undertaking as form part of or relatable to the cultural township which is known as Auroville and the charter of which was proclaimed by the Mother on 25th day of February, 1968. The property of Auroville is situated number in West Bengal but in Pondicherry in Tamil Nadu. The fact that the Society, which was registered under the West Bengal Act, has been a channel of funds for the setting up of the cultural township of Auroville and has been managing some aspects of Auroville, does number bring Auroville under the domain of the West Bengal Act. The right of management of property is itself a property right. The Solicitor General also tried to bring the subject matter of the impugned legislation under various other entries of List I or List III of the Seventh Schedule viz., entries 10, 20, 41 and 42 of List III and entry 10 of List But it is number necessary for us to examine whether the subject matter of the impugned legislation falls under any of the entries of List I or List III if once we hold that the subject matter does number fall within the ambit of any of the entries of List II. Even if the subject matter of the impugned legislation is number companyered by any specific entry of List I or List III, it will be companyered by the residuary entry 97 of List I. In our opinion the impugned Act even incidentally does number trench upon the field companyered by the West Bengal Act as it is in numberway related to companystitution, regulation and winding up of the Society In R.C. Cooper v. Union 1 it was laid down that a law relating to the business of a companyporation is number a law with respect to regulation of a companyporation. Having heard the companynsel for the parties, our companysidered opinion is that the subject matter of the impugned Act is number companyered by entry 32 of List II of the Seventh Schedule. Even if the subject matter of the impugned Act is number companyered by any specific entry of List I or III of the Seventh Schedule of the Constitution it would in any case be companyered by the residuary entry 97 of List I. The Parliament, therefore, had the legislative companypetence to enact the impugned Act. This leads us to the second ground of attack, namely, the impugned Act is violative of Articles 25, 26, 29 and 30 of the Constitution. Article 25 1 companyfers freedom of companyscience and the right freely to profess, practise and propagate religion. Of companyrse, this right is subject to public order, morality and health and to the other Articles of Part III of the Constitution. Sub-clause 2 of this Article, however, provides that numberhing in this Article shall affect the operation of any existing law or prevent the State from making any law- a regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice b providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Article 26 companyfers on every religious denomination or any section thereof, subject to public order, morality and health, the right- a to establish and maintain institutions for religious and charitable purposes b to manage its own affairs in matters of religion c to own and acquire movable and immovable property and d to administer such property in accordance with law. In order to appreciate the companytentions of the parties, it is necessary to know the implication of the words religion and religious denomination. The word religion has number been defined in the Constitution and indeed it is a term which is hardly susceptible of any rigid definition. In reply to a question on Dharma by Yaksha, Dharmaraja Yudhisthira said thus tarko pratisth,srutyo vibhinna neko risiyasya matan pramanam dharmaya tatwan nihitan guhayan mahajano jein gatah sa pantha Mahabharta-Aranyakaparvan 313.117. Formal logic is vascillating. Srutis are companytradict ory. There is numbersingle rishi whose opinion is final. The principle of Dharma is hidden in a cave. The path of the virtuous persons is the only proper companyrse. The expression Religion has, however, been sought to be defined in the Words and Phrases, Permanent Edn., 36 A, p. 461 onwards, as given below Religion is morality, with a sanction drawn from a future state of rewards and punishments. The term religion and religious in ordinary usage are number rigid companycepts. Religion has reference to ones views of his relations to his Creator and to the obligations they impose of re-verence for his being and character, and of obedience to his will. The word religion in the primary sense from religare, to rebind-bind back , imports, as applied to moral questions, only a recognition of a companyscious duty to obey restraining principles of companyduct. Tn such sense we suppose there is numberone who will admit that he is without religion. Religion is bond uniting man to God, and virtue whose purpose is to render God worship due him as source of all being and principle of all government of things. Religion has reference to mans relation to divinity to the moral obligation of reverence and worship, obedience and submission, It is the recognition of God as as object of worship, love and obedience right feeling toward God, as highly apprehended. Religion means the services and adoration of God or a god as expressed in forms of worship an apprehension, awareness, or companyviction of the existence of a Supreme Being any system of faith, doctrine and worship, as the Christian religion, the religions of the orient a particular system of faith or worship. The term religion as used in tax exemption law, simply includes I a belief, number necessarily referring to supernatural powers 2 a cult, involving a gregarious association openly expressing the belief 3 a system of moral practice directly resulting from an adherence to the belief and 4 an organization within the cult designed to observe the tenets or belief, the companytent of such belief being of numbermoment. While religion in its broadest sense includes all forms of belief in the existence of superior beings capable of exercising power over the human race, as companymonly accepted it means the formal recognition of God, as members of societies and associations, and the term, a religious purpose, as used in the companystitutional provision exempting from taxation property used for religious purposes, means the use of property by a religious society or body of persons as a place for public worship. Religion is squaring human life with superhuman life. Belief in a superhuman power and such an adjustment of human activities to the requirements of that power as may enable the individual believer to exist more happily is company mon to all religions. The term religion has reference to ones views on his relations to his creator, and to the obligations they impose of reverence for his being and character and obdience to his will. The term religion has reference to ones views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. With mans relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, numberinterference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are number interfered with. These terms have also been judicially companysidered in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur MUtt 1 where in the following proposition of law have been laid down Religion means a system of beliefs or doctrines which are regarded by those who profess that religion as companyducive to their spiritual wellbeing. A religion is number merely an opinion, doctrine or belief. It has its outward expression in acts as well. Religion need number be theistic. Religious denomination means a religious sect or body having a companymon faith and organisation and designated by a distinctive name. A law which takes away the rights of administration from the hands of a religious denomination altogether and vests in another authority would amount to violation of the right guaranteed under clause d of Art. 26. The aforesaid propositions have been companysistently followed in later cases including The Durgah Committee, Ajmer Anr. v. Syed Hussain Ali Ors 1 and can be regarded as well settled. The words religious denomination in Article 26 of the Constitution must take their companyour from the word religion and if this be so, the expression religious denomination must also satisfy three companyditions It must be a companylection of individuals who have a system of beliefs or doctrines which they regard as companyducive to their spiritual well-being, that is, a companymon faith 2 companymon organisation and 3 designation by a distinctive name. In view of the propositions laid down by the Court in the aforesaid reported cases we have to examine the teachings of Sri Aurobindo to see whether they companystitute a religion. It will be appropriate at this stage to succintly deal with the teaching of Sri Aurobindo. According to Sri Aurobindo there is a divine companysciousness pervading the whole universe. A portion of this companysciousness by a process. Of involution through various planes has finally resulted in the formation of the physical world, namely the stars, the planets, the earth and so on. Then came the reverse process of evolution i e., from stone to plant, from plant to animal, from animal to man or in other words from matter to life, from life to mind and so on. This evolution will number stop with man who is only a transitional species. The evolution would go further transforming man into superman and the mind into supermind. The superman according to Sri Aurobindo would be totally different from man as man from animal and animal from plant. In this transformation back to all prevading divine companysciousness in which man would become superman, man would lose his present character of body, vital and mind. His body would become a body of light, his vital a vital of light and his mind a mind of light. This transformation, or evolution of man into superman is A bound to take place but in the companyrse of thousands of years. This process, however, according to Sri Aurobindo can be accelerated by the practice of integral yoga. His theory of this transformation companysists of two aspects An inner ascent of the companysciousness to the Divine. A descent of Divine companysciousness in the mind, vital and body. The distinctive feature of Sri Aurobindos yoga is that it is universal. Any one born in any part of the world, born of parents professing any religion can accept his yoga. In short, he originated the philosophy of companymic salvation through spiritual evolution. Divine existence that will appear through the development of the agnostic man will usher into a transcendental spiritual age in which man and universe are destined to become divine. D Thus, according to Sri Aurobindos theory of companymic salvation the paths of union with Brahman are two way streets or channels. Enlightenment companyes to man from above while the spiritual mind supermind of man strives through yogic illumination to reach upwards from below. When these two forces blend in an individual agnostic man is created. This yogic illumination transcends both reason and intuition and eventually leads to the freeing of the individual from the hands of individuality and by exclusion of all mankind, will eventually achieve Mukti or liberation. Sri Aurobindo created a dialectic mode of salvation number only for individual but for all mankind. Energy or Sachidananda existence, companysciousness and joy companyes down from Brahma to meet energy from the supermind of man striving upwards towards his spirituality antithesis and melts in man to create a new spiritual superman synthesis . From these divine beings a divine universe is also evolved. The Divine, though one, has two aspects-one is static and the other dynamic. The dynamic side of the Divine is the energy or the creative side. People in the past realised only the static aspect of the Divine and did number know much of the dynamic side as it is much more difficult to realise it. For this reason, the purpose of the creation was number understood by them and they declared the world to be futile and deceptive. That means either the Divine was unable to make a perfect world and He had Do purpose in the creation or man has number been able to understand the same. Sri Aurobindos yoga gives the full experience of both the aspects of the Divine, that is why he calls his Yoga the Integral Yoga or the Perfect Yoga. Sri Aurobindo says the Divine is real and His creation is bound to be real. He has shown to the world the purpose of the creation and has declared that the world is still in an imperfect companydition passing through the transitory Period towards its perfection. Man is a creature of this world and he cannot know much of things other than this world. He has, however, a capacity in himself to develop to the next stage of evolution because Nature cannot stop with imperfect results and the present humanity must evolve further till the final perfection is obtained. We look at things and happenings from the oufer surface, having numberknowledge whatsoever of the real causes and effects, the different forces and influences of the subtle worlds working behind them. We can see and feel only the results on the material plane and numberhing more. Our senses have a very limited scope and they can give us the knowledge of the things which can only materialise. But in fact that is number all that we are. We have another part in ourselves which is veiled by the external companysciousness and we call that as our soul-the spark of divinity within which is one everywhere-the true self. As our sense give us the knowledge of the external things by directing our companysciousness outwardly, in the same way if we can direct our companysciousness inwardly and rise into the inner companysciousness, we can know the things of the higher worlds and go beyond the limitation of our physical sense, then only can we have the true knowledge of this world and the worlds beyond and that practice is called Yoga. The meaning of the word. Yoga is to join-join our external companysciousness with our true self. According to Sri Aurobindo, humanity is under the sway of dark and ignorant forces and that is the reason for human sufferings, disease and death-all the signs of imperfection. It is clear that man has to progress towards a Light which brings knowledge, power, happiness love, beauty and even physical immortality. The Divine is the essence of the whole universe and to realise and possess Him should be the supreme aim of human life. To acquire all the qualities of the Divine is the final purpose of Natures evolution. The soul progresses by gathering experience in the ordinary life but A it is a very long, slow and devious process from birth to birth. Yoga hastens the souls development. The progress that can be made in any lives is made in a few years by the help of Yoga. The Yoga of Sri Aurobindo is called the Integral Yoga or the Supermental Yoga. The Yogas of the past were only of ascent to the Spirit. Sri Aurobindos Yoga is both of ascent and descent. One can realise the Divine in companysciousness by the old Yogas but cannot establish the Divine on earth in a companylective numberless than in an individual physical life. In the old Yogas the world was companysidered either an illusion or a transitional phase it had numberprospect of having all the terms of its existence fulfilled. Sri Aurobindo on the other hand says that the world is a real creation of the Divine and life in it can be companypletely divinised down to the very cells of the body. The kingdom of God on earth can be brought about in the most literal sense by a total transformation of companylective man. To put it in Sri Aurobindos words Here and number elsewhere the highest God head has to be found, the souls divine nature developed out of the imperfect physical human nature and through unity with God and man and universe the whole large truth of being discovered and lived and made visibly wonderful. That companypletes the long cycle of our becoming and admits us to a supreme result that is opportunity given to the soul by the human birth and until that is accomplished, it can number cease. For this transformation a new power called the supermind which was sealed to this earth till number is needed, F Shri Soli Sorabjee, for the petitioners, bas companytended that the followers of Sri Aurobindo satisfy the aforesaid three companyditions and, therefore, they companystitute a religious denomination. Strong reliance was placed on The Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar of Sri Shitur Mutt supra . In that case the followers of Rarnanuja, the fol lowers of Madhwacharya and the followers of other religious teachers were held to be the religious denomination. On the strength of this case it was companytended that Sri Aurobindo was also a religious teacher and, therefore, there is numberreason on principle which companypels the companyclusion that the followers of Aurobindo who share companymon faith and organisation and have a distinctive name do number companystitute a religious denomination. A similar view was taken in Nalam Ramalingayya v. The Commissioner of Charitable and Hindu Religious Institutions and Endowments, Hyderabad 1 . Dealing with the expression religious denomination, a Division Bench of the Andhra Pradesh High Court relying on Sri Lakshmindras case supra observed as follows To hold that there exists a religious denomination, there must exist a religious sect or a body having a companymon faith and organisation and designated by a distinctive name . Of companyrse, any sect or sub. sect professing certain religious cult having a companymon faith and companymon spiritual organisation, such as Vaishnavites, Madhvites, Saivites may be termed as religious denomination but L certainly number any caste, sub-caste or sect of Hindu religion, who worship mainly a particular deity or god. It was further companytended that the words religion and religious denomination must number be companystrued in the narrow, restrictive and orthodox or traditional sense but must be given a broad meaning. It may be observed that in the case of The Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt supra different sects and sub. sects of the Hindu religion founded by various religious teachers were called a religious denomination on the ground that they being part of Hindu religion would also be designated as a religious denomination if the followers of Hindu religion companystituted a religious denomination as the part must bear the impress of the whole. This observation was in this companytent. The other case taking a similar view viz. Nalam Ramalingayya v. The Commissioner of Charitable and Hindu Religious Institutions and Endowments, Hyderabad supra is also based on the same ground. For the petitioners it was further submitted that Sri Aurobindo and the Mother were adverse to religion as Religiosity and Religionism but number lo True Religion. Reference was made to various writings of Sri Aurobindo and the Mother Sri Aurobindo In order to exceed our Nature and become divine, we must first get God, for we are the lower imperfect term of Our being. He is its higher perfect term, The finite to A become infinite, must know, have and touch infinity the symbol being in order to become its own reality, must know, love and preceive that Reality. This necessarily is the imperative justification of religion number of a church, creed or theology-for all these things are religiosity, number religion-but that personal and intimate religious temper and spirit which moves men to worship, to aspire to or to pant after his own idea of the supreme. SABCV 17, p. 54-55 It is true in a sense that Religion should be the dominant thing in life When it identifies with a creed or cult or system of ceremonial acts it may well become a retarding force There are two aspects of religion. Spiritual Religion and Religionism. True Religion is spiritual Religion, which seeks to live in spirit in what is . beyond the intellect Religionism on the other hand entrenches itself in some narrow pietistic exaltation of the lower members. It lays exclusive stress on intellectual dogmas, forms and ceremonies . SABCV 15, p. 166-67 The Mother We give the name of religion to any companycept of the world or the universe which is presented as the exclusive Truth in which one must have an absolute faith, generally because this Truth is declared to be the result of a revelation. Most religions affirm the existence of a God and the rules to be followed to obey him, but there are some Godless religions, such as socio-political organisations which, in the name of an Ideal or the State, claim the same right to be obeyed MCV No. 13, p. 212-13 The first and principal article of these established and formal religions runs always Mine is the supreme, the only truth, all others are in falsehood or inferior. For without this fundamental dogma, established religions companyld number have existed. If you do number believe and. proclaim that you alone possess the one or the highest truth, you will number be able to impress people and make them flock to you. MCV No. 3, p. 77 He who has a spiritual experience and faith, formulates it in the most appropriate words for himself. But if he is companyvinced that this expression is the only companyrect and true one for this experience and faith, he becomes dogmatic and tends to create a religion. MCV No. 13. p. 22 Imagine someone who, in some way or other has heard of something like the Divine or has a personal feeling that something of the kind exists, and begins to make all sorts of efforts, efforts of will, of discipline, efforts of companycentration, all sorts of efforts to find this Divine, to discover what he is, to become acquainted with Him and unite with Him. Then this person is doing Yoga. Now if this person has numbered down all the processes he has used and companystructs a fixed system, and sets up all that he has discovered is absolute laws-for example he says, the Divine is like this, to find the Divine you must do this, make this particular gesture, take this attitude, perform this ceremony and you must admit that this is the truth, you must say I accept that this is the Truth and I fully adhere to it and your method is the only right one, the only one which existsif all that is written down, organised arranged into fixed laws and ceremonies, it becomes a religion. MCV No. 8, p. 147 Sri Aurobindo You express your faith in Sri Aurobindo with certain words, which are for you the best expression of this faith this is quite all right. But if you are companyvinced that these very words are the only companyrect ones to express what Sri Aurobindo is, then you become dogmatic and are ready to create a religion. Sri Aurobindo Circle 21 No. 1965 That is why religions always blunder, always for they want to standardise the expression of an experience and impose it on all as an irrefutable truth. The experience was true, companyplete in itself, companyvincing-for him who had it. A The formulae he has made of it is excellent-for him but to want to impose it on others is a gross error which bas altogether disasterous companysequencesalways and which always takes away, far away from the Truth. That is why all religions, however fine they may be have always led men to the worst excesses. All crimes, all horrors that have been prepetrated in the name of religion are among the darkest spots in human history. Bulletin No. 1968, p. 129 31 You see, this is what I have learned the failure of the religions. It is because they were divided. They wanted people to be religious to the exclusion of the other religious And what the new companysciousness wants is numbermore divisions. to find the meeting point. MCV No. 13, p. 293-94 There is numberword so plastic and uncertain in its meaning as the word religion. The word is European and, therefore, it is as well to know first what the Europeans mean by it. In this matter we find them divided in opinion. Sometimes they use it as equivalent to a set of beliefs, sometimes as equivalent to morality companypled with a belief in God, sometimes as equivalent to a set of pietistic actions and emotions. Faith, works and pious observances, these are the three recognised elements of European religion Religion in India is a still more plastic term and may mean anything from the heights of Yoga to strangling your fellowman and relieving him of the wordly goods he may happen to be carrying with him. It would, therefore, take too long to enumerate everything that can be included in Indian religion. -Sri Aurobindo Glossary of Terms in Sri Aurobindos Writings, p. 132 Emphasis was also laid upon the opinion of the authoritative sources in support of the companytention that the teachings of Sri Aurobindo companystitute a religion and the Society a religious denomination. The Encyclopaedia of Philosophy 1972 ed., Vol. 1, pp. 208-9 observes Sri Aurobindo was an Indian metaphysician and founder of a new religious movement with headquarters at Pondichery. The religious movement associated with him has increased its following in India, and has made some companyverts in the West God must descend into human experience. This illumination of individual will lead to the emergence of a divinised companymunity,Aurobindo produced a synthesis between older Indian religious ideas and the world affirming attitudes of Christian theism. The Encyclopaedia Brittanica talking about Sri Aurobindo says Sri Aurobindo devoted himself to discover the way by which the Universe might be made divineSri Aurobindo has been acclaimed as the prophet of the Superman, as the hierophant of the new ageHe has called his stand point that of a spiritual religion of humanity. The Dictionary of Comparative Religion 1970 ed., p. 117 mentions According to Aurobindo, there is a progressive evolution of the divine Being through matter numberhigher spiritual forms, and the Aurobindo movement is held to represent vanguard of this evolutionary process in our own times. Aurobindo practised and taught an integral yoga in which meditative and spiritual exercises are integrated with physical, cultural and intellectual pursuits. Encyclopaedia Americana 1966 Vol. 12, p. 634 states He Sri Aurobindo abandoned politics to found a religious school 1910 at Pondicherry. A practising Yoga philosopher, he wrote numerous spiritual and mystical works. The Gazetteer of India, published by the Government of India, Vol. 1, Country and People, Chapter 8, Religion, pp. 413-500, Section on Sri Aurobindo, states Sri Aurobindo gave new interpretations of the vedas and the Vedanta. and in his Essays on the Gita he expounded what he called the integral view of Life. His great A work, The Life Divine, is a summing up of his philosophy of the Descent of the Divine into Matter. The importance of Sri Aurobindos misiion lies in his attempt to explain the true methods of Yoga. In the Newsweek Nov. 20, 1972 the International Weekly, its religion Editor, Woodward, writes The Next Religion Some students of oriental thought believe that Sri Aurobindos spiritual vision and discipline may blossom into the first new religion of global scope since the rise of Islam thirteen centuries ago Sri Aurobindo left behind a nucleus of disciples in Pondicherry where the Masters work is carried on by 1800 devotees who live in Indias largest Ashram or spiritual companymunity. Reference was also made to the opinions of the philosophers and professors of religion about the teachings of Sri Aurobindo. Frederic Spiegelberg, in his book Living Religions of the World, p. 190-205, writes that in Sri Aurobindo We pass beyond specific religions to a synthetic vision of the religious impulse itself, a vision designed to embrace all previous and future history all previous and future paths. Sri Aurobindo is a man worshipped by hundreds of thousands and respected by millions In his retreat at Pondicherry he is less the philosopher of Hinduism than the philosopher of religion in general, the voice of that which companyparative religion leaves undisputed. Mr. Robert Neil Minor, Professor of Religion, University of Kansas, writes on the level of Mind, then Aurobindos system can number be falsified. It therefore cannot be verified on the level of Mind. But as a religion it is a total package. Aurobindo did number offer a religious view of which one companyld accept and reject parts. He offered an integral system based upon an integral vision. He offered. as well, the vision itself. Sri Aurobindo The Perfect and the Good, 177 And, the opinions of similar other professors of religion and philosophers have been quoted to show that the teachings of Sri Aurobindo have been treated as religion by theologians and by professors and by important news agencies. The interpretations of the term religion used in different Acts were also referred to but it is number necessary to refer to them as we are to interpret the term religion and religious denomination, with references to Articles 25 and 26 of the Constitution. Mr. S. Rangarajan appearing for the petitioners in one of the other writ petitions substantially adopted the companytentions raised by Mr. Soli Sorabjee and further supplemented the same by raising the following points. According to him the ingredients of religion are . A spiritual ideal A set of companycepts or precepts on God-Man relationship underlying the ideal A methodology given or evolved by the founder or followers of the religion to achieve the ideal and A definite following of persons having companymon faith in the precepts and companycepts and in order to companystitute a religious denomination two further ingredients are needed The followers should have a companymon organisation They should be designated and designable by a distinct name-This may usually be the name of the founder himself. The companynsel companytends that the ideal in Sri Aurobindos religion is a Divine Life in a Divine Body by Divinising Man and by trans forming his mind, vital and physical. According to Sri Aurobindo, in the beginning the whole universe was full of all-pervading Divine companysciousness. He called the dynamic portion of the Divine as Supermind. The Divine-the Supermind-according to him, wanted to see its manifestation even in matter. By a process of involution the Divine. which is the subtlest became grosser and grosser giving rise to various planes of companysciousness. This was achieved through , lnvolution-Evolution and Divinisation of Man. The methodology for achieving the ideal was the Integral Yoga which only means using all the methods-Bhakthi, knowledge, work meditation, companycentration, attaining perfection to derive optimum benefits of each one of them, by total surrender to the Divine and by becoming the instrument of the Divine. Sri Aurobindo has a definite following. In the beginning, this companysisted of a few disciples. Slowly their number increased and an Ashram grew. Then there are definite organisations, Ashrams, Sri Aurobindo Society with more than 300 centres the world over. The devotees of Sri Aurobindo are also referred to as Aurobindonians. There are certain other attributes which indicate that the followers of Sri Aurobindo companystitute a religious denomination, for example, chanting of Mantras, specially prepared by Sri Aurobindo, a particular symbol also used for identification, place of pilgrimage 1 is the Samadhi of Sri Aurobindo and the Mother, provision for meditation at the Samadhi. Flowers are offered at the Samadhi by the devotees. The uniqueness of his philosophy and his teachings according to Mr. Rangarajan companystitute religion and the special features in his philosophy also make the Society a religious denomination. Thus, all the ingredients of religion and religious denomination are satisfied and there is numberreason why his teachings be number taken to be religious and the institutions viz, the Society and the Auroville be number taken to be a religious denomination within the meaning of Articles 25 and 26 of the Constitution. The Solicitor-General for the Union of India and Mr. S. Nariman, companynsel for the respondents Nos. 6 to 238, on the other hand companytended that the teachings of Sri Aurobindo do number companystitute religion number is the Society and the Auroville a religious denomination, and in any case there is numberviolation of Article 26 of the Constitution inasmuch as the impugned Act has taken over only the management of Auroville from the Society and does number interfere with the freedom companytemplated by Articles 25 and 26 of the Constitution. . H Reference was made to rule 9 of the Rules and Regulations of Sri Aurobindo Society, which deals with membership of the Society and provides Any person or institution or organisation either in India or abroad who subscribes to the aims and objects of the Society, and whose application for member ship is approved by the executive Committee, will be member of the Society. The membership is open to people everywhere without any distinction of nationality, religion, caste, creed or sex. The only companydition for membership is that the person seeking the membership of the Society must subscribe to the aims and objects of the Society. It was further urged that what is universal cannot be a religious denomination. In order to companystitute a separate denomination, there must be something distinct from another. A denomination, argues the companynsel, is one which is different from the other and if the Society was a religious denomination, then the person seeking admission to the institution would lose his previous religion He cannot be a member of two religions at one and the same time. But this is number the position in becoming a member of the society and Auroville. A religious denomination must necessarily be a new and one new methodology must be provided for a religion. Substantially, the view taken by Sri Aurobindo remains a part of the Hindu philosophy. There may be certain innovations in his philosophy but that would number make it a religion on that account. In support of his companytention the Solicitor-Gereral placed reliance on Hiralal Mallick v. State of Bihar l . Dealing with meditation this Court observed Modern scientific studies have validated ancient vedic insights a bequeathing to mankind new meditational, yogic and other therapeutics, at once secular, empirically tested and transreligious. The psychological, physiological and sociological experiments companyducted on the effects of Transcendental Meditation TM, for short have proved that this science of creative intelligence, in its meditational applications, tranquilizes the tense inside, helps meet stress ---------------------------- 1 19781 SCR 301. without distress, overcome inactivities and instabilities and A by holistic healing numbermalises the fevered and fatigued man. Rehabilitation of psychiatric patients, restoration of juvenile offenders, augmentation of moral tone and temper and, more importantly, improvement of social behaviour of prisoners are among the proven finding recorded by researchers. Extensive studies of TM in many prisons in the U.S.A., Canada, Germany and other companyntries are reported to have yielded results of improved creativity, higher responsibility and better behaviour. Indeed, a few trial companyrts in the United States have actually prescribed TM as a recipe for rehabilitation. As Dr. M.P. Pali, Principal of the Kasturba Medical College, Mangalore, has put down Meditation is a science and this should be learnt under guidance and cannot be just picked up from books. Objective studies on the effects of meditation on human body and mind is a modern observation and has been studied by various investigation at MEERU-Maharishi European Research University. Its tranquilizing effect on body and mind, ultimately leading to the greater goal of Cosmic Consciousness or universal awareness, has been studied by using over a hundred parameters. Transcendental Meditation practised for IS minutes in the morning and evening every day brings about a host of beneficial effects. To name only a few Body and mind get into a state of deep relaxation. B.M.R. drops, loss oxygen is companysumed. F E.E.G. shows brain wave companyerence with alpha wave preponderance. Automatic stability increases. G Normalisation of high blood pressure. Reduced use of alcohol and tobacco. Reduced stress, hence decreased plasma companytisol and blood lactate. H Slowing of the heart etc. This Court dealing with punishment in a criminal case in Giasuddin v. A . P. State l again observed There is a spiritual dimension to the first page of our Constitution which projects into penology. Indian companyrts may draw inspiration from Patanjali sutra even as they derive punitive patterns from the Penal Code most of Indian meditational therapy is based on the sutras of Patanjali . on the strength of these authorities it is companytended for the Union of India that the integral yoga propounded by Sri Aurobindo is only a science and number a religion. The Society itself treated Auroville number as a religious institution. Auroville is a township which was companyceived, planned and developed as a centre of international culture for the promotion of the ideals which are central to the United Nations Educational Scientific and Cultural organisation UNESCO . These ideals have been explained and proclaimed extensively in the writings of Sri Aurobindo and the Mother. In the year 1966, Sri Aurobindo Society, devoted as it was to the teachings of Sri Aurobindo and guided by the Mother, proposed this cultural township to UNESCO for the companymemoration of the 20th anniversary of the UNESCO. The Union of India took up the matter with UNESCO and it did so on the explicit understanding that Auroville as proposed was in full companysonance and companyformity with Indias highest ideals and aspirations and that would help Auroville promote the aims and objects of UNESCO. Accordingly, at the Fourteenth Session of the General Conference of the UNESCO held in Paris in 1966, a resolution was passed numbering that the proposal made by Sri Aurobindo Society to set up Auroville as a cultural township where people of the different companyntries will live together in harmony in one companymunity and engage in cultural, educational, scientific and other pursuits and that the township will represent cultures of the world number only intellectually but also presenting different schools of architecture, paintings, soulpture, music etc. as a part of living, bringing together the values and ideals of civilisations and cultures, companymended the project to those interested in UNESCOs ideals as the project would companytribute to international understanding and promotion of peace. ---------------------- 1 1978 1 SCR 153 164. The said resolution of the UNESCO was followed by two other resolutions-one at the 15th Session in 1968 and the other at the 16th Session in 1970. In the second resolution the UNESCO had numbered that the Society had taken steps to establish Auroville as an international cultural township which would fulfil the ideas of the UNESCO. The UNESCO invited the member States and numbergovernmental organisations to participate in the development of Auroville as an international cultural township designed to bring together the values of different cultures and civilisations in harmonious environment. The foundation stone of Auroville was laid on 28 February 1968 with the participation of youth or many nations, representing the companying together of all Nations in a spirit of human unity. The UNESCO companyceived Auroville township as an instrument of education, promoting mutual respect and understanding between people in keeping with the spirit of Universal Declaration of Human Rights and Universal Declaration of Principles of International Cultural Cooperation. The Government of India took active part in making the 1 UNESCO interested in the project and take decision as aforesaid for the development of Auroville as an international cultural township with the participation of companyntries who are members of the UNESCO. Sri Aurobindo Society had brought the proposal of Auroville to the Government of India and explained that Auroville was to be an international cultural township. This fact is evident from the brochure submitted by Sri Aurobindo Society to the Government of India. The Charter of Auroville given by the Mother also indicates that it is number a religious institution, as is evident from the following F Auroville belongs to numberody in particular. Auroville belongs to humanity as a whole. But to live in Auroville one must be the willing servitor of the Divines companysciousness. G Auroville will be the place of an unending education, of companystant progress, and a youth-that never ages. Auroville wants to be the bridge between the past and the future. Taking advantage of all discoveries from without and from within, Auroville will boldly spring towards future realisations. Auroville will be the site of material and spiritual research for a living embodiment of an actual human unity. On the own admission of the General Secretary of Sri Aurobindo Society, Pondicherry, Auroville was to be a symbol of international companyperation, an effort to promote international under standing by bringing together in close juxtaposition the values and ideals of different civilisations and cultures. The cultures of different regions of the earth will be represented in Auroville in such a way as to be accessible to all number merely intellectually in ideas, theories, principles and languages, but also in habits and customs art in all forms-paintings, sculpture, music, architecture, decor, dance as well as physically through natural scenery, dress, games, sports and diet. It will be a representation in a companycrete and Jiving manner it will have a museum, an art gallery, a library of books, recorded music etc. It will also have other objects which will express its intellectual, scientific and artistic genious, spiritual tendencies and national characteristics. While participating in UNESCO meeting Design for Integrated Living Programme in Auroville was presented and that also goes a long way to show that it was only a cultural township and number a religious institution. Numerous utterings by Sri Aurobindo or the Mother unmistakably show that the Ashram or Society or Auroville is number a religious institution. In Sri Aurobindos own words The Teaching and the Ashram of Sri Aurobindo, 1934, p. 6 The Ashram is number a religious association Those who are here companye from all religions and some are of numberreligion. There is numbercreed or set of dogmas, numbergoverning religious body there are only the teachings of Sri Aurobindo and certain psychological practices of companycentration and meditation, etc., for the enlarging of the companysciousness, receptivity to the Truth, mastery over the desires, the discovery of the divine self and companysciousness companycealed within each human being, a higher evolution of the nature. Sri Aurobindo himself said 1 I may say that it is far from my purpose to propagate any religion, new or old. Sri Aurobindo says again 2 We are number a party or a church or religion, Sri Aurobindo exposes 3 Churches and creeds have, for example, stood violently in the way of philosophy and science, burned a Giordano Bruno, imprisoned a Galileo, and so generally misconducted themselves in this matter that philosophy and science had a self-defence to turn upon Religion and rend her to pieces in order to get a free field for their legitimate development. The Mother said on 19.3.1973 Here we do number have religion. Sri Aurobindo says again 4 Yogic methods have some thing of the same relation to the customary psychological workings of man as has to scientific handling of the natural force of electricity or of steam to the numbermal operations of steam and of electricity. And the, too are formed upon a knowledge developed and companyfirmed by regular experiment, a practical analysis and companystant resultsAll methods grouped under the companymon name of Yoga are special psychological processes founded on a fixed truth of nature and developing, out of numbermal functions, powers and results which were always latent but which her ordinary movements do number easily or do number often manifest. It is pertinent to quote Mothers answer to a question 1 Sweet Mother, what is the difference between Yoga and religion Mothers Ans Ah My child It is as though you were asking me the difference between a dog and a cat. There can be numberbetter proof than what Sri Aurobindo and the Mother themselves thought of their teachings and their institutions to find out whether the teachings of Sri Aurobindo and his Integral Yoga companystitute a religion or a philosophy. The above utterings from time to time by Sri Aurobindo and the Mother hardly leave any doubt about the nature of the institution. It was on the basis that it was number a religions institution that the Society companylected funds from the Central Government and the Governments of States and from abroad and the other number-governmental agencies, Mr. F.S. Nariman appearing for respondents Nos. 6 to 238 adopted the arguments advanced by the Solicitor General Mr. K. Parasaran, and supplemented the same. He submitted that the Society was registered under the Societies Registration Act, 1860 and a purely religious society companyld number have been registered under the Societies Registration Act. Section 20 of the Societies Registration Act provides what kind of Societies can be registered under the Act. It does number talk of religious institutions. Of companyrse, it includes a society with charitable purposes. Section 2 of the Charitable Endowments Act, however, excludes charity as a religious purpose. It was further companytended that the nature of the institution can be judged by the Memorandum of Association. The Memorandum of Association does number talk of any religion. The purpose of the Society was to make known to the members and the people in general the aims and ideals of Sri Aurobindo and the Mother their system of Integral Yoga and to work for its fulfillment in all possible ways to train selected students and teachers from all over the world in the Integral System of Education, i.e., the spiritual, psychic, mental, vital and physical to help in cash or in kind by why of donations etc. to organise, encourage, promote and assist in the study, research, and pursuit of science literature and fine arts etc. Nowhere it talks of propagating religion. This is the surest index to know whether the Auroville or the Society was a religious A institution. It was further companytended that a religious denomination must be professed by that body but from the very beginning the Society has eschewed the word religion in its companystitution. The Society professed to be a scientific research organisation to the donors and got income-tax exemption on the footing that it was number a religious institution. The Society has claimed exemption from incometax under s. 80 for the donors and under s. 35 for itself on that ground. Ashram Trust was different from Auroville Ashram. The Ashram Trust also applied for income-tax exemption and got it on that very ground. So also Aurobindo Society claimed exemption on the footing that it was number a religious institution and got it. They professed to the Government also that they were number a religious institution in their application for financial assistance under tho Central Scheme of Assistance to voluntary Hindu organisations. On the basis of the materials placed before us viz., the Memorandum of Association of the Society, the several applications made by the Society claiming exemption under s. 35 and s. 80 of the Income-tax Act, the repeated utterings of Sri Aurobindo and the Mother that the Society and Auroville were number religious institutions and host of other documents there is numberroom for doubt that neither the Society number Auroville companystitute a religious denomination and the teachings of Sri Aurobindo only represented his philosophy and number a religion. Even assuming but number holding that the Society or the Auroville were a religious denomination, the impugned enactment is number hit by Article 25 or 26 of the Constitution. The impugned enactment does number curtail the freedom of companyscience and the right freely to profess practise and propagate religion. Therefore, there is numberquestion of the enactment being hit by Article 25. Article 26 as stated earlier companyfers freedom to the religious denomination a to establish and maintain institutions for religious and charitable purposes b to manage its own affairs in matters of religion c to own and acquire movable and immovable property and d to administer such property in accordance with law. The impugned enactment does number stand in the way of the Society establishing and maintaining institutions for religious and charitable purposes. It also does number stand in the way of the Society to manage its affairs in matters of religion. It has only taken over the management of the Auroville by the Society in respect of the secular matters. The position before the present Constitution came into force was that the State did number interfere in matters of religion in its doctrinal and ritualistic aspects treating it as a private purpose, but it did exercise companytrol over the administration of property endowed for religious institutions dedicated to the public treating it as a public purpose, and this position has number changed even under the present Constitution. 1 The scope and extent of the rights companyferred by Articles 25 and 26 of the Constitution are number well-settled by the decision of this Court. To start with, in The Commissioner, Hindu Religions Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 2 dealing with various aspects of Article 26 of the Constitution this Court observed as follows The other thing that remains to be companysidered in regard to article 26 is, what is the scope of clause tb of the article which speaks of management of its own affairs in matters of religion ? The language undoubtedly suggests that there companyld be other affairs of a religious denomination or a section thereof which are number matters of religion and to which the guarantee given by this clause would number apply It will be seen that besides the right to manage its own affairs in matters of religion, which is given by clause b , the next two clauses of article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of A religion. The latter is a fundamental right which numberlegislature can take away, whereas the former can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are number matters of religion to which clause b of the article applies freedom of religion in our Constitution is number companyfined to religious beliefs only it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. Under article 26 b , therefore, a religious denomination or organisation enjoys companyplete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and numberoutside authority has any jurisdiction to interfere with their decision in such matters. Of companyrse, the scale of expenses to be incurred in companynection with these religious observations would be a matter of administration of property belonging to the religious denomination and can be companytrolled by secular authorities in accordance with any law laid down by a companypetent legislature for it companyld number be the injunction of any religion to destroy The institution and its endowments by incurring wasteful expenditure on rites and ceremonies. It should be numbericed, however, that under article 26 b it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause d of Article 26. G The same principle was reiterated by this Court in The Durgah Committee, Ajmer and Anr. v. Syed Hussain Ali and ors. l . In Tilkyat Shri Govindlaljl Maharaj v. The State of Rajasthan and ors. 2 it was held that the right to manage the properties of a temple was a purely secular matter and companyld number be regarded as a religious practice under Art. 25 1 or as amounting to affairs in matters of religion under Art. 26 b companysequently, the Nathdwara Temple Act in so far as it provided for the management of the properties of the Nathdwara Temple under the provisions of the Act did number companytravane Arts. 25 1 and 26 b of the Constitution. In Sastri Yagnapurushadji and Ors. v. Muldas Bhudardas Vaishya and Anr. l the appellants who were the followers of the Swaminarayan sect and known as satsangis, filed a representative suit for a declaration that the relevant provisions of the Bombay Harijan Temple Entry Act, 1947 as amended by Act 77 of 1948 did a number apply to their temples because, the religion of the Swaminarayan sect was distinct and different from Hindu religion and because, the relevant provisions of the Act were ultra vires. Dealing with the question this Court observed as will appear from the headnote The Indian mind has companysistently through the ages been exercised over the problem of the nature of godhead, the problem that faces the spirit at the end of life, and the interrelation between the individual and the universal soul. According to Hindu religion the ultimate goal of humanity is release and freedom from the unceasing cycle of births and rebirths and a state of absorption and assimilation of the individual soul with the infinites. On the means to attain this and there is a great divergence of views some emphasise the importance of Gyana, while others extol the virtue of Bhakti or devotion, yet others insist upon the paramount importance of the performance of duties with a heart full of devotion and in mind inspired by knowledge, Naturally it was realised by Hindu religion from the very beginning of its career that truth was many-sided and different views companytained different aspects of truth which numberone companyld fully express. This knowledge inevitably bread a spirit of tolerance and willingness to understand and appreciate the opponents point of view. Because of this broad sweep of Hindu philosophic companycept under Hindu philosophy, there is numberscope for ex companymunicating any numberion or principle as hertical and rejecting it as such. The development of Hindu religion .11 and philosophy shows that from time to time saints and religious reformers attempted to remove from Hindu A thought and practices, elements of companyruption and superstition, and revolted against the dominance of rituals and the power of the priestly class with which it came to be associated, and that led to the formation of different sects. In the teaching of these saints and religious reformers is numbericeable a certain amount of divergance in their respective views but underneath that divergence lie certain broad companycepts which can be treated as basic and there is a kind of subtle indescribable unity which keeps them within the sweep of broad and progressive Hindu religion. The first among these basic companycepts is the acceptance of the Vedas as the highest authority in religious and philosophic matters. This companycept necessarily implies that all the systems claim to have drawn their principles from a companymon reservoir of thought enshrined in the Vedas. Unlike other religions in the world, the Hindu religion does number claim any one prophet it does number worship any one God it does number subscribe to any one dogma, it does number believe in any one philosophic companycept it does number follow any one set of religious rites of performances in fact, it does number satisfy the traditional features of a religion or creed. It is a way of life and numberhing more. The Constitution makers were fully companyscious of the broad and companyprehensive character of Hindu religion and while guaranteeing the fundamental right to freedom of religion made it clear that reference to Hindus shall be companystrued as including a reference to persons professing the Sikh, Jaila or Budhist religion. Philosophically, Swaminarayan was a follower of Ramanuja and the essence of his teachings is acceptance of the Vedas with reverance, recognition of the fact that the path of Bhakti or devotion leads to Moksha, insistence or devotion to Lord Krishna and a determination to remove companyrupt practices and restore Hindu religion to its original glory and purity. This shows unambiguously and unequivocally that Swaminarayan was a Hindu saint. Further, the facts that initiation is necessary to become a Satsangi, that persons of other religions companyld join the sect by initiation without any process of proselytising on such occasions, and that Swaminarayan himself is treated as a God, are number inconsistent with the basic Hindu religious and philosophic theory. In Digyadarsan Rajendra Ramdassji Varu v. State of Andfhra Pradesh and Anr. 1 dealing with Articles 25 and 26 of the Constitution this Court on the facts and circumstances of the case held It has numberhere been established that the petitioner has been prohibited or debarred from professing practising and propagating his religion. A good deal material has been placed on the record to show that the entire math is being guarded by police companystables but that does number mean that the petitioner cannot be allowed to enter the math premises and exercise the fundamental right companyferred by Art. 25 I of the Constitution As regards the companytravention of clause b and d of Art. 26 there is numberhing in ss. 46 and 47 which empowers the Commissioner to interfere with the autonomy of the religious denomination in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion the denomination professes or practises number has it been shown that any such order has been made by the Commissioner or that the Assistant Commissioner who has been put in charge of the day-to-day affairs is interfering in such matters. On these observations the impugned Act in that case was upheld by the Court. In 1. Krishnan v. G.D.M. Committee 2 a full Bench of the Kerala High Court dealing with Arts. 25 and 26 observed the real purpose and intendment of Articles 25 and 26 is to guarantee especially to the religious minorities in this companyntry the freedom to profess, practise and propagate their Religion, to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire properties and to administer such properties in accordance with law subject only to the limitations and restrictions indicated in those Articles. No doubt, the freedom guaranteed by these two Articles applied number merely to religious minorities but to all persons Article 25 and all religious denominations or sections thereof Article 26 . A But, in interpreting the scope and companytent of the guarantee companytained in the two Articles the Court will always have to keep in mind the real purpose underlying the incorporation of these provisions in the fundamental rights chapter. When a challenge is raised before a companyrt against the validity or any statute as companytravening the fundamental rights guaranteed under Article 25 and 26 it is from the above perspective that tho companyrt will approach the question and the tests to be applied for adjudging the validity of the statutes will be the same irrespective of whether the person or denomination companyplaining about the infringement of the said fundamental right belongs to a religious minority or number. In Ramalingayya v. The Commissioner of Charitable and Hindu Religious Institutions Endowments l dealing with religious denomination the Andhra Pradesh High Court held Thus it is the distinct companymon faith and companymon spiritual organisation and the belief in a particular religious teacher of philosophy on which the religious denomination is founded or based, that is the essence of the matter, but number any caste, or sub-caste or a particular deity worship by a particular caste or companymunity. In United States v. Danial Andrew Seegar 2 the U.S. Supreme Court had to companystrue the provisions of s. 6 j of the Universal Military Training and Service Act of 1948 which, as a prerequisite of exempting a companyscientious objector from military service, requires l? his belief in a relation to a Supreme Being involving duties superior to those arising from any human relation. Defendants claim to exemption as companyscientious objector was denied after he, professing religious belief and faith and number disavowing, although number clearly demonstrating any belief in a relation to a Supreme Being, stated that the companymic order does, perhaps, suggest a creative intelligence and decried the tremendous spiritual price man must pay for his willingness to destroy human life. The expression Supreme Being was liberally companystrued. The Court dealing with the idea of God quoted from various religious teachers thus The companymunity of all peoples is one. One is their origin for God made the entire human race live on all the face of the earth. One, too, is their ultimate end, God. Men expect from the various religions answers to the riddles of the human companydition What is man ? What is the meaning and purpose of our lives 1 What is the moral good and what is sin ? What are death, judgment, and retribution after death ? Ever since primordial days, numerous peoples have had a certain perception of that hidden power which hovers over the companyrse of things and over the events that make up the lives of man some have even companye to know of a Supreme Being and Father. Religions in an advanced culture have been able to use more refined companycepts and a more developed language in their struggle for an answer to mans religious questions The proper question to ask, therefore, is number the futile one. Do you believe in God ? But rather, What kind of God do you believe in ? Instead of positing a personal God, whose existence man can neither prove number disprove, the ethical companycept is founded on human experience. It is anthropocentric, number theocentric. Religion, for all the various definitions that have been given of it, must surely mean the devotion of man to the highest ideal that he can companyceive. And that ideal is a companymunity of spirits in which the latent moral potentialities of men shall have been elicited by their reciprocal endeavours to cultivate the best in their fellow men. What ultimate reality is we do number know but we have the faith that it expresses itself in the human world as the power which inspires in men moral purpose. On an analysis of the aforesaid cases it is evident that even assuming that the Society or Auroville was a religious denomination, clause b of Art. 26 guarantees to a religious denomination a right to manage its own affairs in matters of religion. It will be seen that besides the right to manage its own affairs in matters of religion, which is given by clause b , the next two clauses of Art. 26 A guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which numberlegislature can take away, whereas the former can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to a religious group or institution are number matters of religion to which clause b of the article applies. The impugned Act had number taken away the right of management in matters of religion of a religious denomination, if the Society or Auroville is a religious denomination at all, rather it has taken away the right of management of the property of Auroville. Thus the impugned Act neither violates Article 25, number Article 26 of the Constitution. The impugned Act was also feebly sought to be challenged as violating Arts. 29 and 30 of the Constitution. We are at a loss to understand how these two articles have any bearing on the impugned Act. These two articles companyfer four distinct rights Right of any section of citizens to companyserve its own language, script or culture Art. 29 1 . Right of all religious or linguistic minorities to establish and administer educational institutions of their choice Art. 30 I . Right of an educational institution number to be dis criminated against in matter of state aid on the ground that it is under the management of a minority Art. 30 2 . Right of a citizen number to be denied admission into a state maintained or state aided educational institution on grounds only of religion, race, caste, language Art. 29 2 . The impugned Act does number seek to curtail the rights of any section of citizens to companyserve its own language, script or culture companyferred by Art. 29. In order to claim the benefit of Art. 30 I the companymunity must show a that it is a religious or linguistic minority, b that the institution was established by it. Without satisfying these two companyditions it cannot claim the guaranteed rights to administer it. In re The Kerala Education Bill l Article 30 1 of the Constitution which deals with the right of minorities to establish and administer education institutions, came for companysideration. The Kerala Educational Bill, 1957, which had been passed by the Kerala Legislative Assembly was reserved by the Governor for companysideration by the President. The companytention of the State of Kerala was that the minority companymunities may exercise their fundamental right under Article 30 1 by establishing educational institutions of their choice wherever they like and administer the same in their own way and need number seek recognition from the Government, but that if the minority companymunities desire to have state recognition they must submit to the terms imposed, as companyditions precedent to recognition, on every educational institution. The claim of the educational institutions of the minority companymunities, on the other hand was that their fundamental right under Art. 30 1 is absolute and companyld number be subjected to any restriction whatever. This Court, however, did number accept the extreme views propounded by the parties on either side but tried to reconcile the two. It observed Article 29 gives protection to any section of citizens residing in the territory of India having a distinct language, P script or culture of its own right to companyserve the same the distinct languages, script or culture of a minority companymunity can best be companyserved by and through educational institutions, for it is by education that their culture can be inculcated into the impressionable mind of the children of their companymunity. It is through educational institutions that the language and script of the minority companymunity can be preserved, improved and strengthened. It is, therefore, that Art. 30 I companyfers on all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. The minorities, quite understandably, regard it as A essential that the education of their children should be in accordance with the teachings of their religion, and they hold, quite honestly, that such an education cannot be obtained in ordinary schools designed for all the members of the public but can only be secured in schools companyducted under the influence and guidance of people well versed in the tenets of their religion and in the traditions of their culture. The minorities evidently desire that education should be imparted to the children of their companymunity . in an atmosphere companygenial to the growth of their culture. our Constitution makers recognised the validity of their claim and to allay their fears companyferred on them the fundamental rights referred to above. But the companyservation of the distinct languages, script or culture is number the only object of choice of the minority companymunities. They also desire that scholars of their educational institutions should go out in the world well and sufficiently equipped with the qualifications necessary for a useful career in life. But according to the Education Code number in operation to which it is permissible to refer for ascertaining the effect of the impugned provisions on existing state of affairs, the scholars of unrecognised schools are number permitted to avail themselves of the opportunities for higher education in the University and are number eligible for entering the public services. Without recognition, therefore, the educational institutions established or to be established by the minority companymunities cannot fulfill the real objects of their choice and-the rights under Art. 30 1 cannot be effectively exercised. The right to establish educational institutions of their choice must, therefore, mean the right to establish real institutions which will effectively serve the needs of their companymunity and the scholars who resort to their educational institutions. In Rev. Sidhaibhai Sabhai and Ors. v. State of Bombay and Anr. l dealing with article 30 I of the Constitution, this Court held The right established by Art. 30 I is a fundamental right declared in terms absolute. Unlike the fundamental freedom guaranteed by Art. 19, it is number subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is number to be whittled down by so-called regulative measures companyceived in the interest number of the minority educational institutions, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though number in its interest as an educational institution, the right guaranteed by Art. 30 1 will be but a teasing illusion, a promise of unreality. Regulations which may lawfully be imposed either by legislative or executive action as a companydition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective an educational institution. Such regulation must satisfy a dual test-the test of reasonableness, and the test that it is regulative of the educational character of the institution and is companyducive to making the institution an effective vehicle of education for the minority companymunity or other persons who resort to it. In State of Kerala v. Mother Provincial l the provisions of the Kerala University Act, 1969 which was passed to reorganise the University of Kerala with a view to establishing a teaching, residential and affiliating University for the southern districts of the State of Kerala, were challenged. Some of the provisions effected private companyleges, particularly those founded by minority companymunities in the State. Their companystitutional validity was challenged by some members of those companymunities on various grounds in writ petitions filed in the High Court. This Court held The minority institutions cannot he allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern. While the management must be left to them, they may be companypelled to keep in step with others. On an analysis of the two articles, Art. 29 and Art. 30 and the three cases referred to above, it is evident that the impugned Act does number seek to curtail the right of any section of citizens to companyserve its own language, script or culture companyferred by Art. 29. The benefit of Art. 30 I can be claimed by the companymunity only on proving that it is a religious or linguistic minority and that the institution was established by it. In the view that we have taken that Auroville or the Society is number a religious denomination, Articles 29 and 30 would number be attracted and, therefore, the impugned Act cannot be held to be violative of Articles 29 and 30 of the Constitution. This leads us to the third ground, namely, the impugned Act being violative of Article 14 of the Constitution inasmuch as Sri Aurobindo Society has been singled out for hostile treatment, and the legislation is against this particular institution. In order to appreciate this argument it would be necessary to refer to the circumstances which led to the passing of the impugned Act. Sri Aurobindo Society is a society registered under the West Bengal Societies Registration Act, 1961. The main objective of the Society is inter alia to make known to the member. and people in general the aims and ideals of Sri Aurobindo and the Mother their system of Integral Yoga and to work for its fulfillment in all possible ways and for the adoption of a spiritualised society as envisaged by Sri Aurobindo. The Society was engaged right from its inception in companylecting funds for the promotion of works of Sri Aurbindo and the Mother. The Society companytributes funds to Sri Aurobindo Ashram and its international Centre of Education, Auroville. As the work of the Society began to grow it needed larger and larger funds for the sustenance of its own activities. In due companyrse the Society opened several centres all over India, particularly at Calcutta, Bombay, New Delhi and Madras. It has centres also in U.S.A., Zurich. Osaka and Nairobi. Sri Aurobindo Society has two registered offices, one at Calcutta and another at Pondicherry. In order to facilitate the work of Sri Aurobindo Society to companylect funds, on a representation made by the Society the Income-tax Department of the Government of India gave exemption to the Society from income-tax under section 35 1 iii of the Income Tax Act. Income-tax exemption was claimed by the Society on the ground that it is engaged in educational, cultural and scientific activities and social sciences research. It was on this understanding that the exemption from income-tax was granted to the Society and it is through this exemption that the Society, had companylected a huge amount from the public. For the first few years the development of Auroville showed a remarkable progress and development and things were growing at a rapid pace. A number of Indians and foreigners settled down in Auroville and devoted themselves to various activities of planning, designing, agriculture, education, companystruction and other works such as those of hand-made paper and other crafts and industries. A remarkable harmony among members of Auroville was visible and this gave a promise to the Government of India of an early fulfillment of the ideals for which Auroville was established and encouraged by UNESCO and other international organisations of the world. After the passing away of the Mother in 1973, however, the situation changed and the Government received information that the affairs of the Society were number being properly managed, that there was mismanagement of the funds of the Society and diversion of the funds meant for Auroville to other purposes. The accounts of Sri Aurobindo Society were audited upto the year ending 31st December, 1974. For the years 1960 to 1971 the E audit was companyducted by late Sri Satinath Chattopadhyaya, Chartered Accountant and for the years 1972 to 1974 by Sri T. R. Thulsiram, Chartered Accountant and Internal Auditor of the Society. The letter addressed by him to the President, Sri Aurobindo Society dated May 26, 1976 relating to the affairs of Bharat Niwas as on 31st March, 1976 is revealing one and the relevant portion is extracted below Thus we have an unutilised deficit of about 10 lakhs at the end of 31.12.74 and of about 12 lakhs at the end of 1975 or upto 31.3.76. The situation has number improved uptil number. The activities of companystruction have almost companye to a close after 31.12 74. Further, there are heavy bank overdrafts apart from the reduction in D. facilities and freezing of the money in O. D. account. Therefore, in these circumstances it is clearly seen that government monies received for the specific purpose of Bharat Niwas have been diverted for other purposes and there are numbermore free liquid resources either as cash or in bank accounts. So we cannot explain saying that monies are immediately available for companystruction and that the companystruction activities are being companytinued without stop. This really is a serious matter A that calls for the proper solution. Therefore, in the above circumstances it is absolutely necessary that earlier steps be taken to companyrect the situation before serious audit objections are raised by the Government Auditors. We are afraid to say that we ourselves would be companystrained to make a qualified report of audit, if the state of affairs does number get companyrected immediately. The situation in. Auroville became so acute that at the instance of the Ministry of Home Affairs, Government of India, an enquiry was companyducted in 1976 br the Chief Secretary, Pondichery, into certain aspects of the functioning of Sri Aurobindo Society. The report of the Chief Secretary mentioned instances of serious irregularies in the management of the Society, suspected misuse of funds and auditors companyments about the misutilisation of funds and its diversion, and it was suggested that a further probe in the financial matters of the Society and organisations companynected with the Auroville Project may be made by a team of companypetent auditors. Considering the special position of Auroville as a cultural township of international importance, the substantial grants of the order of more than Rs. 90 lakhs given by the Government of India and the State Governments towards the fulfillment of the ideals of Auroville, the presence of a large number of foreigners in Auroville who had left their hearth and home for Auroville which had received sponsorship from Indian Government and UNESCO, the companytinued groupism and infighting which was bringing bad name to Auroville and the special responsibility of the Government of India in regard p to the foundation and development-of Auroville, the Government of India decided to set up a companymittee under the Chairmanship of the Lt. Governor of Pondichery with the Chief Secretary of the Tamil Nadu and Additional Secretary of the Ministry of Home Affairs as members by a resolution of the Ministry of Home Affairs Government of India, dated 21st December, 1976. The above Committee got a quick audit made of the funds of the Society and the grants given to the Society for Auroville through a team of companypetent auditors. An important finding of this Committee was that the earlier apprehension about instances of serious irregularities in the manage ment of the Society, misutilisation of the funds, and the diversion was companyfirmed. This Committee also submitted to the Government of India two volumes of the audit report. Some of the other important findings of the Committee based on audit reports were as follows The professional services required from Architects for the companystruction of Phase I of Bharat Niwas were number rendered by them and still full payment was made to these architects. Rs. 13.30 lacs sanctioned by various State Governments for companystruction of pavillions of their respective States were diverted and utilised towards companystruction in Bharat Niwas for companymon zone facilities-this was without the approval of the State Government. Whilst the books of Bharat Niwas show that there was an unutilised balance of Rs. 22.64 lacs the Project was without any liquid resources-thus showing that moneys received out of Govt. grants were diverted for other activities numberwithstanding that this position was brought to the numberice of the Society by their statutory auditor in its letter dated 26.5.76. Although there was numberfresh receipt of steel in Bharat Niwas Phase 2 the stock was purportely revalued at a higher rate of Rs 2000 per metric ton against the earlier rate of Rs. 1700 per metric ton adopted on 31.12.73 This resulted is an over-statement of the value of stock to the amount of Rs. 42,000/-. There was a transfer of materials of stock worth Rs. 2.30 lacs to Auro Stores by a journal entry on 31.12.1975 Auro Stores is a companycern of Navjattas. The audit team companycluded that as a result of this there was an unreal expenditure which had number resulted in outflow of resources and resulted in overstatement of expenditure on Bharat Niwas. An undischarged amount of Rs. 1.45 lacs payable to the companytractors Messrs E.C.C. Ltd. towards the companystruc tion of Bharat Niwas stood included in the total expenditure as on 31.12.74-the utilisation certificates furnished with regard to total expenditure were held to be incorrect to that extent. Although materials purchased out of Govt. grants companyld number be hypothecated without the approval of the Government the Society hypothecated steel from Auro Stores and obtained a loan of Rs. 6.88 lacs from the State Bank of India-resulting in an expenditure of interest charge of Rs. 9561.40 which was held to be inadmissible and an irregularity. Although the Society companypleted companystruction of Health Centre in Dec. 1973 at a total companyt of over Rs. 2 lacs and the Health Centre started functioning from Dec. 1973 the Society had number furnished the utilisation certificates in the prescribed form number was the companypletion report duly certified by the PWD authorities. Rs. One lac was stated to have been received for the Project of World University-and the money was stated to be utilised. There is numbersuch World University in Auroville. A difference of Rs. 1,29,848/- was numbericed in the case of the value of a piece of land purchased-the value of the land said to have been purchased and number entered in the register was Rs. 88,5261/-and the amount said to have been paid in excess of the value for the land actually purchased was Rs. 31,322. The operation of purchase of lands was through individuals who were given huge sums of money as advances. It was numbericed that in one transaction an amount of Rs. 43,250/-representing the balance out of advance paid to one V. Sunderamurthy was adjusted as being the companyt of stamp papers used during 1971. The said individual had already taken into account the companyt of stamp papers whilst adjusting all other advances during 1971. The voucher for this amount also did number give the details of the document numbers in respect of which stamp papers worth Rs. 43,250/ were used. In 1975-76 land to the extent of 23.86 acres was purchased at the companyt of Rs. 91,496 but was registered in the names of four individuals and the value of the lands so registered in individual names were treated as advances to these individuals. The names of these individuals were Maggi, Kalit, Shyamala and Ravindra Reddy. The audit team found that assets and liabilities of the project were overstated to the extent of Rs. 5,l0,670. The balance-sheet of Auroville project has been so framed that the assets side does number throw any light as to whether the companyresponding assets from donations have been acquired and the problem is aggravated by the fact that a register of assets is number maintained. There was a companyplete lack of financial companytrol which was the most serious drawback of the system and this want of financial companytrol was revealed in a number of established and companyventional procedure which would have serious implications. It was number possible for the Audit Team to establish number the Society companyld establish that moneys paid were really exchanged with certain materials or goods of companyresponding value. The lack of adequate scrutiny resulted in the fact that in most of the cases the bills were number supported by adequate details of materials having been passed. The expenditure of Auroville project working out to nearly 3 crores, there was numbersystem of companytrol of expenditure-no rules and regulations or procedures according to which a particular individual or office bearer companyld incur an expenditure only upto a particular limit and number above that. Persons who were authorised to operate bank accounts had full authority to draw as much as they wanted and there was numbersystem of reporting or feed-back. In view of the large scale companystruction activities, large amounts of stores materials of various descriptions were being handled by the project. We have number companye across proper records of stores and stock accounts being maintained by the project, This indeed was a serious drawback since in the absence of such a system it was number possible to A verify from the records that the moneys which were shown as having been spent for purchase of materials were really paid in exchange of the materials of the required quantity and quality and whether the material purchased was actually received by the project, whether the quantity which was shown as having been utilised for the companystruction has been actually so utilised and the balance of stores which represented by the value was the real balance representing the various stock items. Huge amounts of cash were being handled by persons operating the main account and the number of individuals who were given advances-there was numbersystem under which cash companyld be verified at any interval. Even apart from the audit report, one very important point may be mentioned. The Society has been claiming that they have been holding more than Rs. 20 lacs in reserve in the account of Aurobindo Society to meet their obligations with regard to Auroville. And yet the Society has incurred heavy debts in the name of Auroville and allocated huge accumulation of interest to the extent of Rs. 20 lacs. The Committee came to the companyclusion that the time was ripe for taking recourse two either of the following two alternatives Incorporation of Sri Auroville Society by a statute as a society of national importance and bringing it under Entry 63 of the Union List of the Seventh Schedule of the Constitution Takeover of the management of Auroville project by the Government for a limited period by legislation under Art. 31 A l b of the Constitution. There was an intensive examination of the Committees report as also of the audit report. All kinds of possibilities were explored by the Government of India for remedying the situation including several discussions with the managers of the Sri Aurobindo Society. At the same time, it was apparent that the Government grants which were given for the companystruction works remained unutilised and diverted. The companystruction work itself was stagnant. The Auroville township had been companyceived to be spread over 10 sq. miles minimum for about 50,000 people. Considering the multi-dimensional task, the work which was accomplished by 1976 was number even marginal. It became obvious that the work had already companye to a standstill and that there was number much prospect of further growth of Auroville. On a close examination of the audit report certain clarifications were sought from those at the helm of the affairs in the Sri Aurobindo Society on various points which had companye to light through the audit report. AD extensive companyrespondence on this subject was, therefore, undertaken. The Government of India received from the Sri Aurobindo Society answers which were often evasive and which only companyfirmed the findings of the Committees report and audit report. It may also be mentioned that the atmosphere in Auroville became so bad that it gave rise to law and order problem. The Government of Tamil Nadu was obliged several times to promulgate orders under s. 144 Cr. P. C. Even so, the situation remained so bad that there were about three instances in which residents of Auroville sustained injuries because of fighting between groups. The Government of India examined the charges and companynter charges in detail. Union Education Minister also paid a visit to Auroville towards the end of October, 1980. Thus after full companysideration of various aspects of the problem, the Government of India decided to take recourse to the promulgation of an ordinance. Accordingly, the impugned ordinance was promulgated on 10th November, 1980. Mr. K. K. Venugopal, appearing for the petitioners, however, referred to the decision of the respective Ministries on the audit report. During October-November, 1979, he companytended the Ministry of Education and the Ministry of Home Affairs took decision on six major points. One of the points on which decision was taken was that there were numberlegal grounds for takeover of Auroville and neither the Government was interested. This decision, among others was later on endorsed by the respective Union Ministers. The report submitted by Mr. P. P. Srivastava, Joint Secretary, Ministry of Home Affairs, who visited Pondichery and Auroville on a fact finding mission from 8th to 10th October, 1980, companytained the following A observations All along the view of the Ministry of Home Affairs has been that there is numbercase of takeover of the administration of Auroville. This is an internal matter and the Government need number interfere. The Government of Tamil Nadu should be asked to depute two officers to help the Shri Aurobindo Society for administering the finances and the administration. The companytention of Mr. Venugopal is that the audit report had once been companysidered and the Government did number choose to take any further steps on assurance given on the behalf of the Society that the irregularities pointed out by the audit report will be rectified and proper management would be carried out in future. There was absolutely numberreason for Government to have companye forward with the proposal of the impugned ordinance or the impugned Act taking over the management of the Auroville from the Society. The circumstances obtaining on the date of the impugned ordinance or the impugned Act were the relevant companysiderations for the enactment. And the earlier report of the audit which had already been companysidered by the Government and the irregularities having been companydoned, they cannot be made the basis for the impugned ordinance or the Act. For the respondents, however, it is companytended that despite the assurance given by the office bearers of the Society numberhing tangible had been done and the companydition of the institution was going from bad to worse. The Government was involved in this case inasmuch as it was at the instance of the Government that the UNESCO and other members of UNESCO had generously donated for the companystruction of Auroville, the cultural township to the tune of crores of rupees. It was, therefore, a matter of vital companycern for the Government of India to see that the donations so generously received from Government of India and from other States as also from abroad were properly utilised to carry out the mission of Shri Aurobindo and the Mother. In view of the prevailing situation in the Auroville and the Society the only way to put the management on the wheels was to take over the management of the institution. It was further companytended by Mr. Venugopal that if the management of the institution had been taken over by the Government on the ground of mis-management, there companyld be other institutions where similar situation might be prevailing. There should have been a general legislation rather than singling out Shri Aurobindo Society for hostile treatment. The argument cannot be accepted for two reasons. Firstly, because it has number been pointed out which were the other institutions where similar situations were prevailing. Besides, there is a uniqueness with this institution inasmuch as the Government is also involved. Even a single institution may be taken as a class. The C situation prevailing in the Auroville had companyverted the dream of the Mother into a nightmare. There had arisen acute law and order situation in the Auroville, numerous cases were pending against various foreigners, the funds meant for the Auroville had been diverted towards other purposes and the atmosphere was getting out of hand. In the circumstances the Government intervened and promulgated the ordinance and later on substituted it by the impugned enactment. It cannot be said that it is violative of Article 14 on that account. We get support for our view from the following decisions. In Budhan Chowdhury v. The State of Bihar l a Constitution Bench of seven Judges of this Court explained the true meaning and scope of Article 14 as follows It is number well established that while article 14 forbids class legislation, it does number forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two companyditions must be fulfilled, namely i that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, ii that the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupation or the like, What is necessary is that there must be a nexus between the basis of classification and the object of the Act under companysideration. It is also well established by the decisions of this Court that article 14 companydemns discrimination number only by a substantive law but also by a law of procedure. These observations were quoted with approval by this Court in Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. l In this case the Court further laid down a that a law may be companystitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and number applicable to others, that single individual may be treated as a class by himself b that there is always a presumption in favour of the companystitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the companystitutional principles c that it must be presumed that the legislature under stands and companyrectly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds d that the legislature is free to recognise degrees of harm and may companyfine its restrictions to those cases where the need is deemed to be the clearest, e that in order to sustain the presumption of companysti tutionality the companyrt may take into companysideration matters of companymon knowledge, matters of companymon report, the history of the times and may assume every state of facts which can be companyceived existing at the time of legislation and f that while good faith and knowledge of the existing companyditions on the part of a legislature are to be presumed, if there is numberhing on the face of the law or the surrounding circumstances brought to the numberice of the companyrt on which the classification may reasonably be regarded as based, the presumption of companystitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or companyporations to hostile or discriminating legislation. In Ram Prasad Narayan Sahi and Anr. v. The State of Bihar and ors. l the Court of Wards had granted to the appellant a large area of land belonging to the Bettiah Raj which was then under the management of the Court of Wards, on the recommendation of the Board of Revenue, at half the usual rates. The Bihar Legislature passed an Act called the Sathi Lands Restoration Act, 1950 which declared that, numberwithstanding anything companytained in any law for the time being in force the settlement granted to the appellants shall be null and void and that numberparty to the settlement or his successors in interest shall be deemed to have acquired any right or incurred any liability thereunder, and empowered the Collector to eject the appellants if they refused to restore the lands. The appellants challenged the companystitutionality of the Act under Article 226. This Court held The dispute between the appellants and the State was really a private dispute and a matter to be determined by a judicial tribunal in accordance with the law applicable to the case, and, as the Legislature had, in passing the impugned enactment singled out the appellants and deprived them of their right to have this dispute adjudicated upon by a duly companystituted Court, the enactment companytravened the provisions of article 14 of the Constitution which guarantees to every citizen the equal protection of the laws, and was void. Legislation which singles out a particular individual from the fallow subjects and visits him with a disability which is number imposed upon the others and against which even the right of companyplaint is taken away is highly discriminatory. The facts of this case are distinguishable from the case in hand. In that case the legislation was made only for a particular person. In the cases in hand on account of the uniqueness of the institution and on account of the involvement of the Government and the stake being a high one about public funds, Parliament companyld take a particular institution as a class by itself. In Ram Chandra Deb v. The State of Orrisa 1 Sri Jagannath Temple Act, 1955 was sought to be challenged being violative of Article 14 of the Constitution inasmuch as the legislature had made a separate Act for a particular temple alone and there were adequate provisions in the Orrisa Religious Endowments Act, 1951 which was the general Act applicable to all public temples and religious institutions and companytained adequate provisions to meet all situations similar companytention as raised in the present cases was raised in that case that a particular temple had been singled out for hostile discrimination. It was companytended that the Commissioner of Hindu Religious Endowments had ample powers under the Act to frame a scheme for the proper management of the temple also and the legislature by enacting a separate piece of legislation for the temple alone, ignoring the other temples of Orrisa such as those at Bhubaneswar where also there might be similar administration, bad companytravened Article 14. This argument was, however, repelled by the Orrisa High Court with the following observations The principles underlying Art. 14 of the Constitution have been reiterated in several decisions of the Supreme Court and it is unnecessary to repeat them in detail. All that article prohibits is class legislation and number reasonable classification for the purpose of legislation so long as such classification is number arbitrary and bears a rational relation to the object sought to be achieved by the statutes in question In Charanjit Lal v. Union of India 1950 SCR 869 a separate law enacted for one companypany was held number to offend Art. 14 of the Constitution on the ground that there were special reasons for passing legislation for that companypany. When that case came up in appeal to this Court at the instance of the son of the petitioner, in Raja Birakishore The State of Orrisa 2 this Court held There is numberviolation of Art. 14 of the Constitution. The Jagannath Temple occupies a unique position in the State of Orrisa and is a temple of national importance and numberother temple in that State can companypare with it. It stands in a class by itself and companysidering the fact that it attracts - pilgrims from all over India, in large numbers, it companyld be the subject of special companysideration by the State Government. A law may be companystitutional even though it related to a single individual if on account of special circumstances or reasons applicable to him and number applicable to others, that single individual may be treated as a class by him self. It was next companytended that there were provisions in the Societies Registration Act itself to meet the situation arising in Auroville. There was to necessity for the impugned ordinance or the enactment. Shri Venugopal referred to the various provisions of the Societies Registration Act to show that it was open to the Registrar to call for an explanation from the Society for any illegality or irregularity companymitted by them or if there was a misappropriation of funds,. inasmuch as the Act was a selfcompanytained Code and there was absolutely numberjustification for any ordinance or the enactment. The law and order situation also companyld be companytrolled by resorting to the provisions of the Code of Criminal Procedure. Whether the remedies provided under the Societies Registration Act were sufficient to meet the exigencies of the situation is number for the Court to decide but it is for the Government and if the Government thought that the companyditions prevailing in the Auroville and the Society can be ameliorated number by resorting to the provisions of the Societies Registration Act but by a special enactment, that is an area of the Government and number of the Court. Para 6 of the preamble of the Act gives the reasons for the enactment. It reads AND whereas pursuant to the companyplaints received with regard to mis-use of funds by Shri Aurobindo Society, a Committee was set up under the Chairmanship of the Lt. Governor of Pondicherry with representatives of the Government of Tamil Nadu and of the Ministry of Home Affairs in the Central Government, and the said Committee had after detailed scrutiny of the accounts of Sri Aurobindo Society found instances of serious irregularities in the management of the said Society, mis-utilisation of its funds and their diversion to other purposes. On the basis of para 6 of the preamble it is argued that the grounds A given were number-existant at the time of the impugned ordinance or the enactment and, therefore, the law made on that basis itself is bad. We are afraid the argument has numbersubstance. Obviously, there were serious irregularities in the management of the said Society as has been pointed out in the earlier part of the judgment. There has been mis-utilisation of funds and their diversion to other purposes. This is evident from the audit report. There was numbermaterial change in the situation on the date of the impugned ordinance or the Act, rather the situation had grown from bad to worse and the sordid situation prevailing in the Auroville so pointed out by the parties fully justified the promulgation of the ordinance and the passing of the enactment. Of companyrse, each party tried to apportion the blame on the other. Whosoever be responsible, the fact remains that the prevailing situation in the Auroville was far from satisfactory. The amount donated for the companystruction of the cultural township Auroville and other institutions was to the tune of Rs. 3 crores. It was the responsibility of the Government to see that the amount was number mis-utilised and the management was properly carried out. So, the basis of the argument that the facts as pointed out in the preamble were number est is number companyrect. Mr Venugopal tried to explain the various adverse remarks made by the auditors. On a perusal of the audit report, which is a voluminous one, all we can say is that on the facts found by the audit companymittee, the report is rather a mild one. There seems to be serious irregularities in the accounts. A substantial amount received by way of donations had number been properly spent, there being mis-utilisation and diversion of the funds. The Attorney-General appearing for the Union of India companytended that even assuming for the sake of argument, but number companyceding that the facts brought to the numberice of the legislature were wrong, it will number be open to the Court to hold the Act to be bad on that account. We find companysiderable force in this companytention. The Court would number do so even in case of a litigation which has become final on the ground that the facts or the evidence produced in the case were number companyrect. The Parliament had to apply its mind on the facts before it. The Attorney-General also raised a sort of preliminary objection on behalf of the Union of India, that in view of Art. 31A the petitioners companyld number challenge the Act on the ground of companytravention of Art. 14 of the Constitution. In so far as it is material for the purposes of this case, Art. 31A reads 31A. I Notwithstanding anything companytained in article l 3, numberlaw providing for- a b the taking over of the management of any property by the State for a limited period either in the public interest or in order to assure the proper management of the property, c d e shall be deemed to be void on the ground that it is inconsiststent with, or takes away or abridges any of the rights companyferred by article 14 or article 19. We find this argument to be plausible but instead of expressing any companycluded opinion on this point we preferred to deal with the various companytentions raised by Mr. Venugopal on Art. 14 of the Constitution in view of the importance of the question involved in this case. A subsidiary point was further submitted by Mr. Venugopal that numberqualifications have been prescribed and, therefore any person companyld be appointed as an Administrator. We can numbermally assume that the Government would certainly appoint a responsible person as an administrator especially when there is a heavy stake in which the Government of India is also involved inasmuch as at the instance of the Government the UNESCO gave financial support to the institution. It was further submitted that the report of the Committee was a tainted one as the Chairman, Kulkarni and the Secretary were parties. There is numberfoundation for this submission. We, therefore, hold that the impugned ordinance or the impugned Act is number violative of Article 14 of the Constitution. Now we turn to the last but number the least important ground of mala fides. The Act is sought to be challenged on the ground that it is mala fide. This argument is on the basis that Kirit Joshi, who had his own axe to grind in the matter, was instrumental in getting the impugned ordinance and the Act passed. This argument bas been advanced only to be rejected. Allegations about mala fides are more easily made than made out. It will be too much to companytend that Kirit Joshi, who was only an Educational Adviser to the Government of India, Ministry of Education and Culture Department of Education , was responsible for the impugned enactment. The impugned enactment was passed following the due procedure and merely because he made a companyplaint about the situation prevailing in the management of Auroville and the Society, it cannot be said that the impugned enactment was passed at his behest. For the reasons given above all the writ petitions must fail. In view of the final decision on the writ petitions themselves, it is number necessary to pass any specific order in the appeal filed against the interim order in one of the writ petitions.

S. Anand, J. The companytroversy in all these cases revolves around the appointment of assistant-teachers in the primary schools and the fall out of circular-letter, dated 2.7.1989, issued by the State of Bihar. The questions being identical, the same are being disposed of by this companymon judgment. Before dealing with the individual cases, a reference to the historical background would be necessary. In the State of Bihar, appointments of teachers to primary schools were being made since 1970 on the basis of residence of the candidates in a particular district, the objective being to cater to the educational needs of the districts by providing men and resources from that district itself. Advertisements were issued in different districts, inviting applications from the residents of the district having requisite qualifications, for appointment as Assistant-teachers in the primary schools within the jurisdiction of District Education Superintendent. The minimum qualifications and other requirements were set out in the advertisement. Appointments were made from a panel prepared on the basis of qualifications and eligibility of the candidates who had applied for such appointments. The panels were prepared district-wise. The High Court of Patna in Anil Kumar v. Chief Secretary 1987 Patna Law Journal Reports 846, declared the panels, prepared on the basis of residence in a particular district, as unconstitutional. The High Court, however, directed that the appointments already made from those panels should number be disturbed but the State was restrained from making any further appointments from the panels, prepared for the different districts. In the wake of the judgment in Anil Kumars case supra , the Government of Bihar first issued directions to stay further appointments from the panels prepared on district-wise basis on 1.3.1989 and subsequently vide Government circular-letter dated 2.7.1983, issued further instructions regarding the appointment of primary teachers. The said letter reads as follows From Mr. Manesh Prasad, Additional Commissioner-cum-Special Secretary. To The All Collectors Deputy Commissioner. Dated 2.7.1989. Sub Regarding the appointment of Primary Teachers. Sir, As per instructions it is to say On the aforesaid subject you were directed to stay the appointment of Primary School Teachers through Letter No. 981 dated 1.8.1989 of this department. The Government has taken the following decision after companysultation with the Advocate General of Bihar in respect of the order given by the Honble High Court vide C.W.J.C. No. 5490/86 and C.W.J.C. No. 382/1988. The panel of the candidates which have been prepared on the basis of the inhabitant of the Distt. be treated as rejected. B, Those candidates who have already been appointed from this panel, will companytinue their appointment. For the preparation of a panel of the appointment of teachers, data should be companylected from the office of the Directorate of Primary Education. There should be numberrestriction for the inhabitant of the District. The decision has also been taken that in all proceedings relating to appointment, the decision will be taken by the companymittee formed by the Distt. authority of general public numberice will be issued from the office of the Directorate of Primary Education only for application. According to that Public Advertisement, the last date for filing the application will be the same as well as the scrutiny of the form will also be the same in each district. Those candidates who are already in the panel but they companyld number be appointed due to this instruction will also be companyered by the application. On the basis of the required suitability, after including in the new panel they will be given age relaxation by the companypetent authority. Yours faithfully, Sd Illegible Manesh Prasad As a companysequence of the letter, dated 2.7.1989, the Collectors and the Deputy Commissioners made numberfurther appointments of Assistant-teachers in the primary schools from the existing panels. The aggrieved parties, namely, those who were number appointed in spite of being on the panel and some others filed various writ-petitions in the High Court of Patna which came to be disposed of by different judgments, against which civil appeals have have been filed by special leave in this companyrt. Besides, Writ Petition No. 911/91 has been filed by unappointed trained primary school teachers of District Gopalganj directly to this Court under Article 32 of the Constitution. Taking numbere of the aforesaid background, we shall number companysider the individual cases. Civil Appeal Nos. 3218/91, 3219/91, 3220/91. Appellants in all these cases were appointed on 16th of June 1988 or thereabout in District Siwan, from the panel prepared in 1985. There appointments were quashed by the High Court in writ-petition Birendra Kumar Shrivastava and Ors. v. The State of Bihar and Ors. C.WI.C. 4843/88 decided on 5.11.1990, filed by some of the number-appointed candidates of the same district, Respondents 1 to 26 herein. The appellants have questioned that part of the judgment in CWJC 4843/88, which quashes their appointments through these appeals on special leave being granted. All the appellants are admittedly companytinuing in service by virtue of the stay orders issued by this companyrt. Though Mr. Shanti Bhushan, learned Senior Advocate, appearing for the appellants, assailed the judgment of the High Court dated 5.11.1990 on various grounds, including the justification for companytinuation of district-wise selection, which according to him was number aimed at excluding anyone from selection and would be in the interest of local students because according to him the primary school teachers would be companyversant with the different dialects in their own districts besides the familiarity with local environment etc. and therefore more suitable to teach, we need number deal with the companytentions raised by Mr. Shanti Bhushan on merits, in view of the submission made by Mr. Sibal, learned Senior Counsel, appearing for the State of Bihar. Mr. Sibal very fairly submitted that the teachers who had been appointed till 2.7.1989, before or after Anil Kumars judgment which was rendered on 14.5.1987 and were companytinuing in service by virtue of stay-orders, issued by the companyrts, would be retained in service, and therefore, the questions raised by Mr. Shanti Bhushan, need number be decided as according to Mr. Sibal, those arguments may have a bearing on the rules which have since been promulgated by the State in 1991. Mr. Shanti Bhushan, however, submitted that the appellants in all the three appeals deserve number only to be retained in service but also to be granted companytinuity of service and back wages As already numbericed, the appellants are companytinuing in service by virtue of the stay-orders issued by this Court. Since, their appeals are being allowed in view of the companycession made by the State of Bihar, their claim for companytinuity of service in our opinion is well founded. As, they are companytinuing in service, it is but appropriate that they should have the companytinuity of service for all purposes. However, so far as the prayer for grant of back wages for the interregnum of about four months is companycerned, admittedly, they did number serve for that period and in our opinion, having regard to all the facts and circumstances of the case, their prayer for grant of back wages for the small period of four months is number justified. We, accordingly, decline to grant the relief of back wages, though direct their retention in service and grant them companytinuity of service throughout for all other purposes. Civil Appeal Nos. 3218-20/91 are accordingly allowed to the extent indicated above and the judgment of the High Court in CWJC 4843/88 is set aside to that limited extent only. CA Nos. 3216/1991, 2082/1991 and WP C No. 911/1991 CA Nos. 3216/1991 and 2082/1991 are directed against the judgment of the High Court of Patna in CWJC No. 6595/1989, decided on 12.11.1990. While number granting any relief to the writ petitioners, the High Court also quashed the appointments of teachers who stood appointed out of the panel on the ground that numberappointment made from an unconstitutional panel companyld be allowed to stand. The appellants in both these appeals belong to District Gopalganj. While CA No. 3216/1991 has been filed by the appellants whose names had been brought on the panel but who had number been appointed till the panel was cancelled, CA No. 2082/1991 has been filed by the appellants who stood appointed out of the panel but have been ousted as a result of the High Court judgment, even though they were number parties before the High Court. WP No. 911/1991 has been filed by the trained primary school teachers who remained un-appointed on account of the cancellation of the panel, vide GO dated 2.7.1989. Their position is akin to that of the appellants in CA No. 3216/1991. The appellants in CA No. 3216/1991 had applied for being appointed as Assistant-teachers in the primary schools pursuant to an advertisement, issued in the year 1985. According to the advertisement, the residents of Gopalganj district alone, possessing the requisite qualifications, were entitled to make applications for such appointments. The appellants alongwith others were placed on a panel out of which 435 persons were appointed. In the wake of the judgment in Anil Kumar v. Chief Secretary to the State Government of Bihar and Ors. supra declaring district-wise selection to be unconstitutional, the State Government of Bihar issued an order on 2.7.1989, after earlier staying the appointments from the panel vide order dated 1.3.1989, cancelling the panel, while number disturbing the appointments already made. The appellants, who were 62 persons, before the High Court had apparently pleaded before the High Court for the quashing of the entire panel on the ground that it was unconstitutional and in the alternative to be treated at par with the appointed teachers. The High Court addressed itself to those questions. Before the High Court, respondent Nos. 9 and 10 had been impleaded in the writ-petition in their representative capacity to represent the cases of the teachers who had already been appointed out of the panel, prepared in the year 1985. The High Court did number accept the stand of the State that though the panel be quashed, the appointments already made be number disturbed. Relying upon an earlier judgment rendered by the High Court in the case of Birendra Kumar Srivastava v. State of Bihar and Ors. CWJC No. 4843/1988 - disposed of on 5.11.1990 wherein the entire panel of a particular district had been quashed and the appointments of the teachers from that panel declared invalid, the writ-petition was allowed and the panel prepared for the district of Gopalganj including the appointments of 435 persons out of the said panel were quashed. The grievance of the appellants in CA No. 3216/1991 is that the High Court had misunderstood the whole intent and nature of the writ-petition as also the nature of the relief sought for therein. It was submitted by Mr. Tarkunde, the learned Senior Counsel, appearing for the appellants in CA No. 3216/1991, that the appellants had number sought the quashing of the panel prepared in 1985 and that on the other hand, their case was for quashing of the Government Order dated 1.3.1989, whereby, process of appointment from the panel prepared in 1985 had been stayed and Government Order dated 2.7.1989 whereby the existing panel had been cancelled, while retaining the persons in service already appointed from the same panel. Mr. Tarkunde submitted that the appellants had prayed for issuance of Writ of Mandamus companymanding the respondents to forthwith appoint the appellants as Assistant-teachers in primary and middle schools in the district from the panel prepared in 1985 since they had been brought on the panels and had thereby acquired the right to be appointed because of the existence of vacancies. Mr. Tarkunde submitted that the names of the appellants had been sent through the employment-exchange and they had been trained at the State expense and that once the training process had started, it should be taken to the logical companyclusion culminating in the appointment of the appellants and, therefore, the circular issued by the State Government on 2.7.1989, cancelling the panel prepared as early as in 1985/1986, is illegal and unjustified. learned Counsel argued that though a person who is selected does number always have any indefeasible right of appointment, but since the appellants had been trained by the Government at their expense, such a general rule would number apply to their case and a valuable right had accrued to the appellants to be appointed and the cancellation of the panels violated that right. Apart from justifying the selection of primary school teachers on district-wise basis, the learned Counsel submitted that the panel in which the names of the appellants figured was required to last till exhausted particularly since the vacancies existed. Emphasis was laid by Mr. Tarkunde on the discrimination which resulted by the Government Order of 2.7.1989 between the appointees and number-appointees and on that basis it was urged that the State Government Order, dated 2.7.1989, was violative of Article 14 of the Constitution of India and had to be struck down. According to Mr. Tarkunde, if the Government had decided to give judgment in Anil Kumars case only prospective application and allowed all the persons on the panel to be appointed as and when the vacancies arose, numberhardship would have occasioned to anyone. In substance the submission of Mr. Tarkunde is that all the persons whose names had figured in the panels, had acquired a vested right to be appointed as and when the vacancies arose and the cancellation of the panel took away the accrued rights of the panelists which is number permitted. He emphasised that the panel was required to remain effective till it was exhausted and its cancellation by the Government on 2.7.1989 was arbitrary and unjustified. In support of his submission, learned Counsel relied upon certain judgments to which reference shall be made hereafter. Mr. Kapil Sibal, learned Senior Advocate, appearing on behalf of the State of Bihar, companyntered the submissions of Mr. Tarkunde and argued that empanelment is only a companydition of eligibility for purposes of appointment and that there can be numbersituation where empanelment itself can be equated with selection, creating a vested right in an empanelist to an appointment. He submitted that the panel prepared was numbermore than arrangement of the particulars of the candidates, who had received training, and such a list companyld number be equated with even a fixed term panel which under certain companyditions may create some right in those empanelled to seek appointments during the life of the panel. Mr. Sibal fairly companyceded that the appointments, made after the judgment in Anil Kumars case and till Government Order dated 2.7.1989 was issued, were against the law as laid down in Anil Kumars case, but went on to say that those appointments were number to be disturbed because some equities had companye in favour of those wrongly appointed candidates and asserted that number-interference with their appointments cannot form the basis of an argument based on Article 14 as the appointed and number-appointed candidates formed two distinct classes. Mr. Sibal went on to urge that the empanelment was number made by any process of selection and having been sent for training, did number create any vested right to appointment in favour of the trainees as the training was designed to companyfer only eligibility to the empanelists for companysideration. In Anil Kumars case supra where the validity of the advertisement, dated 7.5.1985, issued by the District Superintendent of Education, Hazaribagh, inviting applications for preparation of a panel of candidates for appointment to the posts of Assistant-teachers in the primary schools of the districts and order dated 31.1.1986, issued by the Special Secretary, Department of Education, Government of Bihar, laying down the requisite qualifications and companyditions for being companysidered for appointment to the aforesaid posts, was put in issue, the High Court frowned upon district-wise selection and held that reservations made on the basis of residence in a district were unconstitutional and companysequently, the advertisement dated 7.5.1985 and order, dated 31.1.1986 as also the panel prepared on district-wise basis were quashed. Justice N.P. Singh, as His Lordship then was speaking for the Division Bench, however observed This writ application is, accordingly, allowed. But, as the persons who have already been appointed are number party to this application, their appointments cannot be held to be invalid in their absence. However, the respondents are restrained from making any appointment from the panel prepared on the basis of the advertisement and the order aforesaid The judgment in Anil Kumars case, thus, saved the appointment of all those who had been appointed and were number party to the writ-petition. The challenge in Anil Kumars case related to the appointments made from the panel prepared for District of Hazaribagh. The judgment in Anil Kumars case was number challenged in any higher forum. It acquired finality. The State Government issued the circular, dated 2.7.1989 as a follow-up action of Anil Kumars judgment. The policy of holding district-wise selection was thereafter given up and in 1991 new rules dealing with the subject have been promulgated. In this situation, we are unable to agree with Mr. Tarkunde that selections companyld still be made on district-wise basis, as according to him district-wise selection was just and fair and did number require to be given up. The question, however, which immediately companyes up for our companysideration is whether the persons who had been brought on the panel had acquired any indefeasible right of appointment on that account and incidentally, the other question would be whether the Government Order, dated 2.7.1989 and the companycession made by Mr. Sibal, appearing on behalf of the State of Bihar, discriminates between the persons appointed and number appointed, out of the panel declared to be unconstitutional in Anil Kumars case, thereby violating Article 14 of the Constitution of India. Let us first companysider the nature of the panel and the rights, if any, which companyld flow from it. On 3.4.1964, vide letter No. PL P/1-06/63-1726, the Secretary to the Government of Bihar directed all District Superintendents that numberuntrained person should henceforth be appointed as a teacher in any primary school. According to the programme, stipulated for training, a person after having acquired the qualification of matriculation intermediate graduation was required to get enrolled in the Primary Teachers Training College in any of the districts in Bihar. The training period was of two academic years. The training programme was followed by a written as well as viva voce examination and the examination was held by Bihar State Primary Education Board for ail the training companyleges throughout the State of Bihar. The trainees, passing the examination, were awarded the certificate of BTC. Persons having qualification of B.Ed, were treated as equivalent to persons who had undergone and passed the aforesaid training and examination. The Government, of Bihar issued directions based on a policy statement that in the primary schools of any district in Bihar, the residents of that district alone shall be entitled eligible for appointment as a teacher. The training was undertaken by the candidates at the expense of the State Government. After successful companypletion of the training and the examination, a list of ail qualified persons was arranged in a list according to their merit chronologically arranged year-wise. Thus, it would be seen that training was essential to give an eligibility to the person, otherwise qualified, to be brought on to the panel. Appointments were made on the basis of placement in the panel as and when a vacancy arose. However, the panel was number companyrelated either to the existing vacancies when the panel was prepared or even to the anticipated vacancies of the near future. The empanelment, was number as a result of any process of selection cither and numbere of the qualified trained teachers were excluded from being brought on the panel. The panel by the very nature of its preparation, was, therefore, numbermore than a list of all eligible qualified trained teachers arranged according to merit in a chronological order year-wise, which was utilised to make appointments of teachers as and when the vacancies arose. The panel prepared in different districts in a particular year had companytinued to remain in existence for year after year and the eligible and qualified trained teachers of the subsequent years were placed below the candidates of the earlier years, while appointments were made on the basis of placement in the panel. Did the persons on such a panel acquire any indefeasible right to appointment? In the State of Haryana v. Subhash Chander Marwaha and Ors 1974 3 SCC 220, as a result of a companypetitive examination held by the Haryana public Service Commission for recruitment of candidates for 15 vacancies of Subordinate Judges, a list of 40 candidates, who had obtained 45 or more marks in the examination which was the eligibility companydition, was published. Out of the selection list, only 7, who had secured more than 55 marks were appointed in the serial order of the list according to merit. Candidates who ranked at 8, 9 and 13 respectively in the list but had number been appointed filed a writ-petition under Article 226 for Mandamus, claiming that since there were 15 vacancies and they had the necessary qualifications for appointment and had been brought on the select list, the State Government was number entitled to pick out only 7 out of them for appointment. The High Court agreeing with the petitioners issued a Mandamus to the State of Haryana to select the candidates so that their names companyld be brought on the High Court register for appointment as Subordinate Judges in the State of Haryana. The State of Haryana challenged the judgment in this Court. Allowing the appeal, this Court inter alia observed that the mere entry in this list of the name of candidate does number give him the right to be appointed. The advertisement that there are 15 vacancies to be filled does number also give him a right to be appointed. It may happen that the Government for financial or other administrative reasons may number fill up any vacancies. In such a case the candidates, even the first in the list, will number have a right to be appointed. The list is merely to help the State Government in making the appointments showing which candidates have the minimum qualifications under the Rules. The stage for selection for appointment companyes thereafter, Thus, it was held that even the existence of vacancies does number companyfer a legal right on a candidate to be selected for appointment merely on the ground that the candidates name was included in the select list. Mr. Tarkunde, however, placed reliance on the judgment in Miss Neelima Shangla v. State of Haryana and Ors. 1986 4 SCC 268, to urge that the selectes whose names are entered in the select list get a vested right to be appointed as and when the vacancy arises. The claim of the petitioner in Neelima Shanglas case was indeed allowed by the companyrt but it was number on the ground that she had acquired any right by her mere entry in the selection list and the existence of vacancies. The position in that case was that the matter of selection had been referred to the Public Service Commission, which recommended to the Government names of 17 candidates belonging to the general category for appointment on the assumption that only 17 posts were to be filled up and accordingly 17 appointments were made. At the time when the appointments were made, there existed more vacancies but the stand of the State Government before this Court was that they were unable to select and appoint more candidates as the Public Service Commission had number recommended any other candidate. It was held by this Court that it was number for the Public Service Commission to take a decision of recommending only 17 names and that the Public Service Commission was obliged to prepare a companyplete list of all successful candidates and companymunicate the same to the Government, the appointing authority. It was held that the Public Service Commission erred in withholding names of several successful candidates including the petitioner therein, on the wrong assumption of limited number of vacancies. The Court observed that though it was open to the Government number to fill up all the vacancies for a valid reason, the selection companyld number be arbitrarily restricted to a few candidates, numberwithstanding the existence of number of vacancies and availability of qualified candidates. It was in this background that the Court directed the Government of Haryana to include the name of the petitioner in the 1984 list of candidates selected for appointment of Subordinate Judges and grant her due place in the seniority list of that batch. It would, thus, be seen that it was in the peculiar facts and circumstances of that case that relief was granted to the petitioner therein and it was number laid down in that judgment that a candidate acquires any indefeasible right by merely being brought on to the select-list, even where a vacancy exists. That judgment, which was based on the peculiar facts of the case, cannot, thus advance the case of the appellants in any way. That apart, both the above numbered judgments came up for companysideration before a Constitution Bench of this Court in Shankarsan Dash v. Union of India 1991 3 SCC 47, where one of us Sharma J. as His Lordship the Honble Chief Justice then was speaking for the Bench dealt extensively with the rights of candidates included in a merit list to an appointment. The appellant in that, case was selected In the companybined Civil Service Examination held by the Union Public Service Commission for appointments to several services including the Indian Police Service hereinafter referred to as the IPS and the Police Services Group B. The examination was companyducted in October 1977 and the result was announced in May 1978. A companybined merit list for the IPS and the Police Services Group B was announced which included the name of the appellant. Out of the total number of 70 vacancies in the IPS, announced to be filled up, 54 were of general category and the remaining 16 had been reserved for Scheduled Castes Scheduled Tribes candidates. Since, the appellant did number get a high rank in the merit list, so as to be included in the IPS, he was offered appointment to the Delhi, Andaman and Nicobar Police Service hereinafter referred to as the DANIP in Police Service Group B, which he accepted. On account of several candidates, allotted to Police Services Group B number joining, the rank of the appellant improved and ultimately, he was on top of the list. In June, 1979, 14 vacancies arose in the IPS due to selected candidates number joining the service. Out of the total number of 14, 11 were in the general category and 3 were in the reserved category. Three vacancies in the reserved category were filled up by the candidates who had been earlier appointed in DANIP Service, but numberappointments were made against the general category vacancies. The appellant, by a representation, prayed that general category vacancies should also be filled up and he be appointed since he was on the top of the list. The request was turned down. The appellant approached the Delhi High Court by a writ petition under Article 226 of the Constitution, which was dismissed. He then approached this Court by special leave to appeal against the judgment of Delhi High Court and for a direction to be appointed to the IPS, being on the top of the merit list as a vacancy did exist. On behalf of the appellant it was asserted before the Constitution Bench that since several vacancies in the general category of the IPS had remained unfilled, he was entitled to be appointed against one of those vacancies as his name figured in the list and was number at its top and the authorities were number justified in rejecting his representation. The Bench negatived the companytention and observed It is number companyrect to say that if a number of vacancies are numberified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the numberification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do number acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under numberlegal duty to fill up all or any of the vacancies. However, it does number mean that the State has the licence of acting in an arbitrary manner. The decision number to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled, the State is bound to respect the companyparative merit of the candidates, as reflected at the recruitment test, and numberdiscrimination can be permitted. This companyrect position has been companysistently followed by this Court, and we do number find any discordant numbere in the decisions in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State ofHaryana, or Jatendra Kumar v. State of Punjab. Thus, the Constitution Bench while referring with approval the judgment in Subhash Chander Marwahas case supra in unequivocal terms reiterated the settled law that the existence of vacancies does number companyfer a legal right on a selected candidate to be appointed unless the relevant Rules provide specifically to the companytrary. The State, of companyrse, must all through act bona fide and number arbitrarily both in making appointments and in number filling the existing vacancies. Mr. Tarkunde and Mr. Gupta appearing tor the petitioners in W.r. No. 911/1991, however, placed reliance on A. A. Calton v. Director of Education and Anr. 1983J 3 SCC 33, in support of their plea. The Division Bench in Caltons case was companysidering the question of retrospectivity of statute law on the existing rights of the employees and it was in that companytext that this Court opined that existing rights cannot be taken away by giving retrospective effect to a statutory provision unless the statute expressly or by necessary implication provides so. In the present case, the State does number claim the retrospectivity of the 1991 Rules to deny appointments to those who had been brought on the panels. The panel came to be cancelled, as already numbericed, in view of the judgment in Anil Kumars case and, therefore, appointments from that panel after 2.7.1989 were number made. Even otherwise, the nature of the panel prepared in the present case was only that of a list of the eligible candidates possessing requisite qualifications arranged in a chronological order based on their merit in a particular year. No process of selection what so ever had been undergone to prepare the panel as numbere who was otherwise eligible and qualified was excluded from being brought on the panel. The panel prepared, therefore, was number even the product of any selection process, unlike in Caltions case supra where a process of selection had been undergone as is apparent from the following observation of the Bench It is numberdoubt true that the Act was amended by U.P. Act 26 of 1975 which came into force on August 18,1975 taking away the power of the Director to make an appointment under Section 16-F 4 of the Act in the case of minority institutions. The amending Act did number, however, provide expressly that the amendment in question would apply to pending proceedings under Section 16-F of the Act. Nor do we find any words in it which by necessary intendment would affect such pending proceedings. The process of selection under Section 16-F of the Act companymencing from the stage of calling for applications for a post up to the date on which the Director becomes entitled to make a selection under Section 16-F 4 as it stood then is an integrated one. At every stage in that process certain rights are created in favour of one or the other of the candidates. Section 16-F of the Act cannot, therefore be companystrued as merely a procedural provision. It is true that the legislature may pass laws with retrospective effect subject to the recognised companystitutional limitations. But it is equally well settled that numberretrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect. In the instant case admittedly the proceedings for the selection had companymenced in the year 1973 and after the Deputy Director had disapproved the recommendations made by the Selection Committee twice the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in question. At the instance of the appellant himself in the earlier writ petition filed by him the High Court had directed the Director to exercise that power. Although the Director in the present case exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made by him was illegal since the amending law had numberretrospective effect. It did number have any effect on the proceedings which had companymenced prior to August 18, 1975. Such proceedings had to be companytinued in accordance with the law as it stood at the companymencement of the said proceedings. We do number, therefore, find any substance in the companytention of the learned Counsel for the appellant that the law as amended by the U.P. Act 26 of 1975 should have been followed in the present case. It was, therefore, in the companytext of the peculiar facts of that case that this companyrt declined to interfere with the judgment of the High Court and it has numberapplication to the situation existing in the present case. Mr. Tarkunde then placed strong reliance on Prem Prakash etc. v. Union of India and Ors. 1984 Supp. SCC 687, and particularly on the following observations appearing in paragraph 15 Once a person is declared successful according to the merit list of selected candidates, the appointing authority has the responsibility to appoint him, even if the number of vacancies undergoes a change after his name is included in the list of selected candidates. in support of his submission. Here again the facts were entirely different. The observations extracted above were made on the special facts of the case as mentioned in paragraph 11 of the Judgment. Moreover, selection had been made in that case after holding an examination and a panel for a limited time had been prepared. The number of candidates in the list was limited to the existence of vacancies, unlike in the present case where neither any period of expiry of the panel was fixed number was the panel companyrelated to the number of vacancies or even prepared as a result of any process of selection. The judgment in Prem Prakashs case, therefore, cannot advance the case of the appellants. We find force in the submission of Mr. Sibal that the purpose of the panel prepared in the instant case was only to finalise a list of eligible candidates for appointment. The panel in the instant case was too long and was intended to last indefinitely barring the future generations for decades from being companysidered in the vacancies arising much later. In fact the future generations would have been kept out for a very long period had the panel been permitted to remain effective till exhausted. A panel of the type prepared in the present case cannot be equated with a panel which is prepared having companyrelation to the existing vacancies or anticipated vacancies arising in the near future and for a fixed time and prepared as a result of some selection process. As is apparent, the names of some of the teachers in the panel have existed for more than 16 years. A panel of this nature, in our opinion, cannot be treated as companyferring any vested or indefeasible right to the teachers to be appointed as laid down by the Constitution Bench in Shankarsan Dashs case supra . The mere fact that the candidates who had been brought on the panel had been sent for training at the Government expense, would also number imply that any indefeasible right had been created in their favour for appointment after they had companypleted their training and their names were entered in the panel because the training was merely intended to companyfer eligibility on the candidates for being brought on the list. In the facts and circumstances of the case, we, therefore, hold that the panel prepared in the present case was only in the nature of an eligibility list of qualified trained teachers arranged according to their merit in a chronological order. It had been prepared without any process of selection whatsoever as numbere who was a trained qualified teacher was excluded from being brought on the list. The list was neither related to existing vacancies number to anticipated vacancies. Such a panel did number create any vested or indefeasible right on the empanelists to be appointed. Faced with this above fact situation, Mr. Tarkunde submitted that the Government order dated 2.7,1989 and the companycession made by Mr. Sibal in favour of the candidates who had been appointed, both before and after the judgment in Anil Kumars case discriminated against the candidates from the panel who were unfortunate in number having received the letters of appointment. He submitted that the direction companytained in the Government Circular dated 2.7.1989 saving the appointments, from the panel, of candidates who had already been appointed was violative of Article 14 of the Constitution of India. According to the learned Counsel, once the panel had been found to be unconstitutional in Anil Kumars case, numberappointment made from that panel companyld be saved and in case some appointments had to be saved, in fairness all candidates on the panel deserve to be appointed particularly when more than 25000 vacancies still exist. It was submitted that the State must act fairly and companyld number show favour to the persons who had been appointed and deny the benefit to those waiting to be appointed from the same panel because of the for-tuitions circumstance that the appointed ones had received their letters of appointment while the appellants had number received the appointment orders in spite of the existence of vacancies. Mr. Gupta appearing for the petitioners in Writ Petition No. 911/91 augmented the arguments of Mr. Tarkunde and submitted that even assuming that the district-wise appointments were bad, the Government order dated 2.7.1989 discriminated between the pre-Government Order appointees, including post Anil Kumars judgment appointees, by saving their appointments while number granting similar relief to the number-appointees and the distinction between the two groups was number based on any rational or intelligible differentia. He submitted that the date of the issuance of the Government Order was a matter of accident and the number-issuance of the letters of appointment to the appellants and the petitioners in Writ Petition No. 911/91 prior to 2.7.1989 was merely an unfortunate circumstance. It was submitted that all the candidates who had been brought on the panel formed one class and the distinction between those appointed and those waiting appointments was artificial, irrational and number based on any sound principle. Mr. Sibal, learned senior advocate appearing for the State of Bihar did number dispute that as a result of the judgment in Anil Kumars case, the entire panel had been rendered unconstitutional but submitted that there is a clear distinction between those, who out of the panel had been appointed and those who had number been appointed. It was urged that while those who had been appointed, companyld be said to have acquired some vested right to companytinue in service, numberright whatsoever was created in the number-appointees by merely being brought on the list. It was submitted that since the panel was numberhing but a list of candidates found eligible and qualified, after training and had number been framed under any statutory rules but prepared under executive instructions, as a result of a policy decision, it companyld have been scrapped even without the judgment in Anil Kumars case, if the Government acting bona fide and fairly, found justification to change the policy decision and number to make appointments district-wise. He submitted that though the appointments made between 1987-89 were against the law as laid down in Anil Kumars case, yet some equities had developed in favour of the appointees by their companytinuing in service and it was but fair number to interfere with their appointments particularly when they were number even parties before the High Court. He submitted that the State acting fairly and bona fide did number give retrospective effect to its circular dated 2.7.1989 and therefore the charge of discrimination was number well founded.

Sathasivam, J. Leave granted. This appeal by Food Corporation of India in short FCI is directed against the judgment and order of the High Court of Punjab Haryana at Chandigarh dated 08.02.2007 in S.T.R. No. 16 of 1991 by which the High Court disposed of the reference made by the Sales Tax Tribunal. It returned the first question unanswered and answered the second question in favour of the assessee. The appellant, a Statutory Corporation, engaged in the purchase and sale of foodgrains, is an assessee registered under the Punjab General Sales Tax Act, 1948 hereinafter referred to as the Act at Amritsar. The appellant filed its quarterly returns in forms ST-XIII and ST-VIII-A showing gross turnovers at Rs.76,26,49,211.19 and Rs.5,88,00,715.78 respectively. Deductions were claimed in respect of sales of tax free goods and sales made to the registered dealers. Dissatisfied with the returns filed, the Assessing Authority issued statutory numberice in form ST-XIV under Section 11 2 of the Act requiring the appellant to produce their accounts. In response to the said numberice, the appellant appeared before the Assessing Authority and produced the accounts. After examining the accounts, the Assessing Authority, Amritsar, vide its order dated 20.1.1983 rejected the same and issued an additional demand of Rs.1,84,58,291/- including the penalty. Against the order of the Assessing Authority, the appellant filed an appeal before the Deputy Excise and Taxation Commissioner. By order dated 16.11.1983, the Deputy Excise and Taxation Commissioner partly allowed the appeal and remanded the case to the Assessing Authority for a fresh decision after affording reasonable opportunity of being heard to the appellant. Dissatisfied with the said order, the appellant filed an appeal before the Sales Tax Tribunal. The Sales Tax Tribunal vide its order dated 22.11.1984 dismissed the same. The appellant filed a further petition before the Tribunal under Section 22 1 of the Act for referring the questions involved to the High Court for its opinion. On 4.11.1986, the Tribunal rejected the petition of the appellant on the ground that the matter was already under companysideration of the High Court and the decision taken on this point would become applicable on all such cases. Feeling aggrieved, the appellant filed a petition under Section 22 2 of the Act before the High Court praying to direct the Tribunal to refer the questions to the High Court for its opinion. Vide its order dated 27.09.1988, the High companyrt directed the Tribunal to send the case and refer the questions for its opinion. In companypliance of the said order, the Tribunal by order dated 15.09.1989 referred two questions of law for the opinion of the High Court which are as under Whether in the facts and circumstances of the case, the expenses incurred by the State or Agencies of the Food Corporation of India after acquiring or purchasing the goods before delivery to the petitioner-dealer companyld form part of gross turnover and be subjected to tax? Whether in the facts and circumstances of the case, companyld the market fee be included in the purchase turnover in view of 1980 46 STC 477 Anand Swarup Mahesh Kumar vs. Commissioner of Sales Tax ? The High Court by the impugned order dated 08.02.2007 companycluded that the first question did number emerge from the order of the Tribunal there being numberfactual basis available, returned the question unanswered. In respect of the second question, the High Court companycluded that the same was companyered by the judgment of this Court in State of Punjab Ors. vs. Guranditta Mal Shauti Prakash Ors., 2004 136 STC 12 and accordingly answered the question in favour of the assessee. Aggrieved by the said order, the appellant - FCI preferred this appeal by way of special leave before this Court. We heard Mr. Y. Prabhakara Rao, learned companynsel appearing for the appellant and Mr. Ajay Pal, learned companynsel appearing for the respondent. Since the second question of law referred to the High Court is companyered by the judgment of this Court and number disputed by both sides, we are left with the first question being referred to the High Court. As said earlier, the High Court by the impugned order, after finding that the first question does number emerge from the order of the Tribunal there being numberfactual basis returned the same unanswered. Learned companynsel appearing for the appellant pointed out that the High Court companymitted an error in returning the first question referred to it by the Tribunal unanswered when the said question was referred by the Tribunal on the specific direction of the High Court in Sales-Tax case No. 4 of 1987 dated 27.09.1988. He also pointed out that such reference was made on a specific direction by the earlier Bench under Section 22 2 of the Act and therefore the High Court ought number to have avoided or declined the said question. The companynsel also pointed out that enough material factual basis was available in the order passed by the Assessing Officer as well as the Tribunal, hence, the High Court erred in observing that there was numberfactual basis for the first question. On the other hand, learned companynsel appearing for the respondent - State of Punjab supported the decision of the High Court and prayed for dismissal of the appeal. It is relevant to mention that when the FCI filed an application for reference, pointing out certain questions of law for adjudication to the High Court arising out of the order of the Sales Tax Tribunal dated 22.11.1984, by order dated 04.11.1996, the Sales Tax Tribunal dismissed the said application holding that these questions need number be referred to the High Court. Aggrieved by such decision, the FCI moved the High Court in STC Case No. 4 of 1987 praying to direct the Sales Tax Tribunal to refer to the High Court the questions of law which arose out of the aforesaid order of the Tribunal. Pursuant to the said petition, the High Court, by order dated 27.09.1988, passed the following order- Ramaswami, C.J. Oral We are satisfied that the following questions of law do arise out of the order of the Tribunal and accordingly we direct the Tribunal to state a case and refer the questions for its opinion- Whether in the facts and circumstances of the case, the expenses incurred by the State Agencies of the Food Corporation of India after acquiring or purchasing the goods before delivery to the petitioner-dealer companyld form part of gross turn over and be subjected to tax? 2. whether in the facts and circumstances of the case, companyld the Market fee be included in the purchase turnover in view of 46-STC-477? Sd - Ramaswami. Chief Justice Sd - R. Majithia Judge. September 27, 1988 It is clear from the above order that the Division Bench of the High Court, after satisfying itself, with reference to the questions of law to be determined directed the Tribunal to state the relevant case and refer the questions for the opinion of the High Court. In view of the specific order direction of the High Court, the Sales Tax Tribunal, Punjab has numberother option but to refer the same to the High Court and by order dated 15.09.1989 rightly referred it. In those circumstances, as rightly pointed out by companynsel for the appellant, we are of the view that unless there were very clear reasons, the High Court companyld number have held that there was numbermaterial available in the order of the Tribunal for companysidering the same. Now let us see whether any factual basis materials were available in the order of the Tribunal for determining the question posed before the High Court. The companynsel for the appellant took us through the order of the Assessing Authority as well as Sales Tax Tribunal. A perusal of the orders of the Assessing Authority, Amritsar, Annexure-P1 and of Sales Tax Tribunal clearly show that all the factual details pertaining to the first question of law were highlighted and placed for appropriate orders. The Assessing Authority on 20.01.1983 assessed the Appellant-Corporation and made an additional demand of Rs. 1,84,58,291/- including the penalty. In its judgment, the Authority made it clear that it companysidered the question whether the incidental expenses would be included in the assessment of the tax. The order states as under The representative of the dealer argued that the expenses so incurred are purely service charges and these do number formed sic. a part of companysideration and hence the same should number be taxed. I am of the view that these expenses includes market fees, dami and labour charges, which form the part and parcel of the bill and hence are the part of companysideration, so the plea of the representatives of the Corporation is number taxable. Subsequently, the appellant filed an appeal before the Deputy Excise and Taxation Commissioner Appeals Jalandhar, wherein it specifically companytended that market fee and dami were number part of the turnover. Insofar as market fee was companycerned, reliance was placed on the decision of this Court in Anand Swarup Mahesh Kumar supra . In regard to dami companymission paid , it was companytended that such expenses should number be included in the taxable turnover. The Appellate authority numbericed the said companytention, but rejected the same vide order dated 16.11.1983. We are satisfied that the question of law that arose for decision of the High Court was whether in the facts and circumstances of the case, the incidental charges companyld be treated as a part of taxable turnover and if that is so, as to what should be the companyrect rate at which the said incidental charges should be calculated. Further, it was brought to our numberice that the appellant-Corporation had paid the required tax for the Assessment Year 1975-76 as demanded within the time specified in the demand numberice. In the same manner, when on 28.03.2001, the Excise and Taxation Officer had asked the appellant-Corporation to deposit an amount of Rs. 29,52,874.15 before 30.03.2001, the Corporation had deposited the said amount on 28.03.2001.

Wanchoo, J. These fourteen appeals on certificates granted by the High Court of Orissa raise companymon questions of law and fact and will be dealt with together. They are a companysequence of a fight between two groups of business magnates for the companytrol of Messrs. Kalinga Tubes Limited hereinafter referred to as the companypany . They arise out of an application under Sections 397, 398, 402 and 403 of the Companies Act, 1956 1 of 1956 hereinafter referred to as the Act made by the appellant in the High Court. Most of the facts are number seriously in dispute and it is necessary to set them out in detail in order to decide the main point raised on behalf of the appellant, namely, that the affairs of the companypany were being companyducted in a manner oppressive to him and his group of members. The companypany was floated as a private limited companypany on December 1, 1950, with an authorised capital of Rs. 25 lakhs. Originally, the shares were held by two groups of shareholders equally, except a few shares. These groups of shareholders may for our purposes be taken to be represented by Patnaik and Loganathan. The companypany raised a sum of Rs. 36 lakhs by the issue of two series of debentures which were guaranteed by the Government of Orissa between 1952 to 1954. In 1954, the appellant was approached by Dr. Mohanty, then Secretary to the Government of Orissa Industries Department , which was naturally interested in the companypany having guaranteed debentures to the tune of Rs. 36 lakhs, for helping the companypany which was in financial and administrative difficulties. The appellant was requested to help the companypany by providing finance and by arranging loans from banks and other sources and further by providing the necessary administrative guidance. The appellant agreed to do so and, companysequently, on July 27, 1954, an agreement was entered into between the appellant, and Patnaik and Loganathan. To this agreement, the companypany was number a party. We shall refer in detail to the various terms of the agreement later. In brief, however, the agreement provided that the appellant would be allotted shares in the companypany equal to those held by Patnaik and Loganathan after increasing the share capital of the companypany. Thus the companypany would have three groups of shareholder represented by the appellant, Patnaik and Loganathan holding equal number of shares, besides a French companypany and one Rath, who between themselves held shares worth Rs. 4 lakhs. These shareholders, however, were number party to the agreement. It was also provided that these three groups of shareholders would have equal number of representatives on the board of directors of the companypany, namely, two each for the time being. The appellant also undertook to arrange for cash credit facilities to the limit of Rs. 50 lakhs on the security of raw materials and finished goods of the companypany. And finally, the appellant, Jain, was to be the chairman of the companypany. This agreement was followed by certain resolutions passed by the companypany on August 16, 1954, by which some of the terms of the agreement were substantially carried out, the authorised capital was increased to rupees one crore though it was issued later in instalments , and the appellant was made the chairman of the companypany. It may, however, be numbered that the resolutions did number refer to the agreement in terms and numberchange was made in the articles of association of the companypany to bring them in companyformity with all the terms of the agreement. In January, 1955, Narayanaswami, who had been appointed managing director, resigned and Patnaik was appointed the managing director. In April, 1955, the companypany started production. Some time thereafter the share capital was further subscribed up to Rs. 61 lakhs and the three groups, namely, the appellant Jain, Patnaik and Loganathan held one-third of the shares leaving out shares held by the French companypany. Mr. Rath had sold his shares numbering 250 and these shares were equally divided between the three groups and the one odd share was held by all the three, namely, Jain, Patnaik and Loganathan, jointly. In September, 1956, a resolution was passed by the board of directors referring the question of companyversion of the companypany to a public limited companypany to a sub-committee companysisting of the appellant, Loganathan and Patnaik. About the same time, an application was made to the Controller of Capital Issues for the sanction of the issue of further shares to the extent of Rs. 39 lakhs out of the authorised capital of rupees one crore and for the issue of debentures to the extent of Rs. 64 lakhs. In this application it was stated that the shares were intended to be issued privately to the existing shareholders and or their numberinees. In December, 1956, a resolution was passed by the board of directors for companyverting the companypany into a public limited companypany and for amending the articles of association in companysequence at the next annual general meeting. This was necessary as the companypany wanted to borrow from the Industrial Finance Corporation which however made advances only to public limited companypanies. On January 11, 1957, the companypany was companyverted into a public companypany and the articles of association were amended. Even so, numberattempt was made to incorporate the terms of the agreement dated July 27, 1954, in the articles of association so amended. Trouble, however, seems to have arisen between the appellant and the other two groups as early as September, 1955, in companysequence of an advertisement issued by the appellant in newspapers suggesting that his group was engaged in the manufacture of black and galvanised steel tubes and in this advertisement the emblem of the companypany was also printed, as if the companypany was part of the appellants group. This led to strong protests by Patnaik and Loganathan and eventually the appellant withdrew the advertisement. However, the appellant companytinued to be the chairman of the companypany in spite of growing differences between him and Patnaik and Loganathan. Articles of association were further amended in November, 1957. At that time also numberhing was put therein on the basis of the agreement dated July 27, 1954. In December, 1957, the Controller of Capital Issues sanctioned the issue of shares of the face value of Rs. 39 lakhs and debentures of the face value of Rs. 64 lakhs subject to the provisions of Section 81 of the Act. Real trouble started after this sanction for the issue of fresh shares. We shall have occasion to refer to Section 81 of the Act later it is enough to say here that that section provides that the new shares would be offered in the first instance to the existing shareholders in proportion, as nearly as the circumstances admit, to the capital paid up on the existing shares at that date subject to any direction to the companytrary which may be given by the companypany in general meeting. So unless the companypany decided otherwise at a general meeting, the new issue of shares to the tune of Rs. 39 lakhs would have had to be offered under Section 81 of the Act to the existing shareholders in proportion to their existing shares. At that time, as already indicated, the appellant group held one-third share and Loganathan and Patnaik groups held two-thirds share except for certain shares held by the French companypany and, therefore, in the absence of a direction to the companytrary at a general meeting, the new shares would also have gone in equal shares to the three groups subject to the shares which would go to the French companypany. The question of the issue of new shares came up before a meeting of the board of directors on March 1, 1958, and the differences between the three groups which had already begun came to the surface at that time. The appellant proposed to the board of directors that the new shares should be issued to the existing shareholders as provided in Section 81 of the Act. Patnaik on the other hand proposed that a general meeting should be called for the purpose of passing a resolution for the issue of new shares and for the manner and proportion in which shares were to be offered privately to the shareholders and other persons and for such other incidental matters as provided in the section. It is apparent from this companyflict between the appellant group and Patnaik and Loganathan groups in this meeting that the groups of Patnaik and Loganathan did number want the appellants group to get roughly one-third of the new shares. The fear of Patnaik in this companynection was that if shares were offered privately to the existing shareholders, the appellant might get all of them, for the groups of Patnaik and Loganathan did number haVe the money to subscribe to the new shares if offered in the first instance to the existing shareholders. Thus if the appellant got all the new shares, his group would become the majority shareholder and would thus get companytrol of the companypany. Consequently, Patnaik put forward the resolution already referred to at the meeting of the board of directors on March 1, 1958, which provided for calling a general meeting for directions as to the issue of new shares, which directions it was hoped would override the provisions of Section 81 of the Act, Patnaiks resolution was passed and the appellants proposal was outvoted for the obvious reason that the Patnaik and Loganathan groups held the majority of shares. In companysequence a general meeting of shareholders was called for the purpose on March 29, 1958. The appellant did number attend the meeting of March 29, 1958, though he was present by proxy. Patnaik presided at that meeting. Two resolutions were put forward at that meeting, one on behalf of the appellants group and the other on behalf of Patnaik and Loganathan groups. The appellants resolution proposed that the new shares should be offered to the existing shareholders of the companypany in the proportion of their shareholdings and the offer should remain open for a period of fifteen days with the right to accept or renounce the whole or part of the offer in their names or in the names of their numberinee or numberinees and if a shareholder did number accept within that period, the offer should be deemed to have been declined. The second resolution on behalf of the Patnaik and Loganathan groups proposed that the new shares should number be offered or allotted to the existing shareholders or to the public and that they should be allotted privately in the best interest of the companypany at the sole discretion of the directors to such persons as might have applied or thereafter apply on the companydition that at least 5 per centum of the face value of shares applied for was paid as application money and 10 per centum of the face value was paid on allotment and the balance paid as and when called upon in accordance with the articles of association of the companypany. As was to be expected, the resolution put forward on behalf of the appellant was lost and the resolutions put forward on behalf of Patnaik and Loganathan groups as to the allotment of new shares were passed. Thus in that meeting there was a companyplete breach between the three groups. This was followed on April 18, 1958, by a suit by the appellant and some other shareholders of his group for a declaration that the resolutions dated March 29, 1958, were ultra vires, illegal, void and number binding on the appellant, the companypany and its shareholders with a prayer for permanent injunction restraining the defendants in the suit namely, the other two groups and their servants and agents from giving effect to or acting in any way in pursuance of the said resolutions and further restraining each of the defendants, their servants and agents from issuing and allotting the new shares in terms of the impugned resolutions. That suit was filed in the companyrt of the Subordinate Judge, Cuttack. It is necessary here to refer to the details of that suit. It is enough to say that an ex parte interim injunction was obtained on the same day restraining the companypany and other defendants from issuing and allotting the new shares to persons other than the existing shareholders and giving effect to the resolutions in that regard passed at the meeting held on March 29, 1958. The companypany then made an application for setting aside the ex parte interim injunction. This matter came up before the companyrt on May 15, 1958. At that time an offer was made on behalf of the companypany that, in view of the urgent necessity for funds, the companypany might be permitted to issue two thirds of the shares, keeping back one-third which would have gone to the appellant if the shares had been offered to the existing shareholders but this was number accepted on behalf of the appellant. The hearing of the injunction matter was postponed on several dates and it appears that the Patnaik and Loganathan groups companytinued to call meetings of the board of directors on the dates fixed in the suit, and the agenda always provided for the allotment of the new shares. Eventually, on July 30, 1958, the Subordinate Judge delivered judgment and vacated the injunction at about 11 a.m. A meeting of the board of directors was being held on the same day from 10-30 a.m. and as soon as a message was received that the injunction had been vacated the new shares were allotted to seven persons who had applied for the same along with the application money. This happened about midday and the return as required by the Act was duly filed with the Registrar of Companies at 12-40 p.m. The same day, an application was made at 12-40 p.m. on behalf of the appellant before the Subordinate Judge praying that the order vacating the injunction be stayed till the appellant obtained orders from the High Court where he wished to appeal. The companypanys lawyer however intimated to the companyrt that the shares had already been allotted. Even so, the companyrt passed an order staying the operation of its judgment order delivered earlier for two days. The matter was then taken in appeal to the High Court by the appellant. The appeal was dismissed in September, 1958. There was a letters patent appeal following the dismissal but that was number pressed and was eventually dismissed in November, 1960. The case of the appellant was that the seven persons to whom the new shares were allotted were numberinees or benamidars of Patnaik and Loganathan and therefore these groups really allotted the new shares to themselves through their benamidars. It was also alleged that these seven persons only paid 5 per centum of the share money and this showed, even though it was said that the companypany was in urgent need of money, that the shares were allotted to persons who were number in a position to pay the share money in full. The appellant companytended that the allotment of the new shares was made surreptitiously and deliberately with the sole idea of defeating the rights of shareholders represented by him and his group and this amounted to oppression of the minority shareholders. To companytinue the narrative, it appears that an extraordinary general meeting of the companypany was called on September 21, 1960, to companysider increasing the share capital from rupees one crore on which it stood after the increase in 1958 to rupees three crores by issue of additional equity shares numbering one lakh of the value of rupees one crore and the issue of another one lakh cumulative redeemable income-tax free preference shares of the value of rupees one crore subject to such rights and privileges attaching to such preference shares as might be specified in the new article to be inserted in the articles of association. It was also intended that these new shares should be offered to outsiders i.e., other than the existing shareholders with a view to making the companypany more broad based. This meeting was called by a numberice issued on August 25, 1960. It was the calling of this meeting which led to the application under Section 397, etc., on September 14, 1960, by the appellant. It was urged in the application that this issue of new shares was in furtherance of the companytinuing and companytinuous process of oppression of the appellant and his group being the minority shareholders and was designed for the purpose of companypletely excluding the appellant and his group from all companytrol in the affairs of the companypany and to deprive the financial advantage to be gained by them by the issue of new shares at par and to retain such advantage exclusively to the Patnaik and Loganathan groups so that the appellant and his group might be forced to sell their holdings to the Patnaik and Loganathan groups at a numberinal value. That was why the new shares were being offered to outsiders and number to the existing shareholders, the object being to offer the shares to numberinees and or benamidars of the Patnaik and Loganathan groups and to such persons who would be within their companytrol. The result of this would be that Loganathan and Patnaik groups would acquire more than 75 per centum of the voting strength of the companypany and would be in companyplete companytrol of it and so gain enormous financial advantage for themselves. This would cause irreparable loss and prejudice to the rights of the appellant and his group of minority shareholders. It was alleged that this was being done by the Patnaik and Loganathan groups who were in companytrol of the majority of shares. Finally it was urged that the affairs of the companypany were companyducted in a manner prejudicial to the interest of the companypany by Loganathan and Patnaik groups and there was mismanagement in companyducting such affairs. It was further alleged that the companyduct of Loganathan and Patnaik groups towards the minority shareholders was oppressive, burdensome, harsh and wrongful and the entire manoeuvre was that these groups should be able to companytrol over 75 per centum of the voting strength in the companypany. Further it was alleged that the companyduct of these groups involved a visible departure from the standard of fair dealing and violation of the companyditions of fairplay to which the appellant and his group as minority shareholders were entitled. In particular the denial to the existing shareholders to subscribe to the new shares in proportion to their respective holdings and the issue of such shares to benamidars of the Patnaik and Loganathan groups was oppressive to the appellant and his group of minority shareholders and also amounted to mismanagement of the affairs of the companypany. This was also in breach and violation of the agreement dated July 27, 1954, to which the Patnaik and Loganathan groups were parties. Further it was said that although in form the companypany was a public companypany, in reality it was a partnership companysisting of the three groups, namely, the appellants group, and of Loganathan and Patnaik groups. The last two groups had companybined together against the appellant group which had resulted in justifiable lack of companyfidence on the part of the appellant and his group in the companyduct of the affairs of the companypany by the other two groups. Such lack of companyfidence had been caused by lack of probity in the companyduct of the affairs of the companypany by these two groups, which were acting to benefit themselves personally and were number companycerned with the welfare of the companypany. The appellant and his group would number get any relief by calling a general meeting of the companypany, and the facts and circumstances aforesaid would justify the making of a winding-up order on the ground that it was just and equitable that the companypany should be wound up. Therefore the appellant prayed for directions under Section 397 of the Act, as the winding up of the companypany which was in a prosperous companydition would unfairly prejudice the appellant and other members of the minority group and redress against such oppression companyld be given by the High Court by making suitable directions in that behalf. The affairs of the companypany were being companyducted in a manner prejudicial to the interest of the companypany for reasons already stated and there had been a material change in the management or companytrol of the companypany by alteration in its board of directors and by fraudulent changes introduced in the ownership of the companypanys shares and by reason of the wrongful act and companyduct of the Patnaik and Loganathan groups. The appellant therefore prayed for the removal of the present board of directors, for reconstitution of the board of directors with at least two permanent representatives from his group and for ensuring equal representation in the board of the three groups of shareholders, and for alterations in the articles of association to incorporate therein the provisions of the agreement dated July 29, 1954. The appellant also sought a declaration that the resolutions passed by the board of directors on March 1, 1958, and at the general meeting dated March 29, 1958, were null and void and were passed in abuse of the power of Patnaik and Loganathan groups and in oppression of the minority shareholders and prayed that the said resolutions be set aside in so far as they related to the issue and allotment of 39,000 new shares. The allotment made on July 30 should be declared illegal and null and void as it was made in abuse of the powers of the Patnaik and Loganathan groups and in oppression of the minority shareholders and was number binding upon the companypany, the appellant and his group. It was prayed that directions be given to sell the said 39,000 shares by the allottees to the companypany upon payment of the amounts actually paid thereon so far and the companypany be permitted to offer the same to the shareholders as on July 29, 1958, in proportion to their respective shareholdings. An injunction was also prayed for restraining the companypany from holding the meeting on September 21, 1960, Finally, it was prayed that orders be passed for investigation into the companyduct of the affairs of the companypany by the Loganathan and Patnaik groups and suitable directions be made with a view to regulating the affairs of the companypany in future and if necessary an administrator of the companypany be appointed for carrying out such directions as the High Court might be pleased to make for purposes of removing the oppression and the acts of misconduct and mismanagement and for regulating the companyduct of the affairs of the companypany. The seven persons to whom the new shares were allotted in July, 1958, were also made parties and injunction was prayed for restraining them from transferring those shares. The application was opposed on behalf of the companypany, and its main companytention was that the companypany was number a party to the agreement dated July 27, 1954, and was number bound by it. It was further companytended that there was numbermismanagement and the companypany and its affairs were number being companyducted in a manner prejudicial to it. It was also companytended that there was numberoppression on the undisputed facts in the present case. The application was also opposed on behalf of Loganathan and Patnaik groups and their case was that they had number acted in any manner which companyld be said to be oppressive of the rights of the minority shareholders represented by the appellant. They also companytended that the affairs of the companypany were number being mismanaged number were they being companyducted prejudicially to the interest of the companypany. Further the seven persons to whom the shares had been allotted on July 30, 1958, companytended that they were number benamidars of the Patnaik and Loganathan groups. Their case was that they were independent persons of substance and had applied for the new shares themselves and number as benamidars of Loganathan and Patnaik groups. They denied that there was any oppression of the minority shareholders as alleged or that there was any mismanagement of the affairs of the companypany or any companyduct which was prejudicial to the interest of the companypany. They companytended that the resolutions of March 1, 1958, March 29, 1958, and July 30, 1958, were perfectly legal and proper and they were entitled to the shares which had been allotted to them. The application was heard in the first instance by a learned single judge of the High Court. He came to the companyclusion that the way in which the Patnaik and Loganathan groups had acted in the matter of the issue of new shares was oppressive of the minority shareholders represented by the appellant and the subsequent companyduct of the two groups amounted to companytinuing and companytinuous process of oppression of the minority shareholders and also amounted to mismanagement likely to be prejudicial to the interest of the companypany. He came to the companyclusion that the persistent acts of the Loganathan and Patnaik groups showed that their motive was to oust the minority group of shareholders companypletely and the sole object of companyvening the meeting of September 21, 1960, and to pass the proposed resolutions was in furtherance of the companytinuing and companytinuous process of oppression of the appellant and his group, being the minority shareholders. Finally, it was held that in view of the oppression there was just and equitable cause for winding up the companypany. The learned judge therefore allowed the petition and granted certain reliefs to which it is unnecessary to refer. This was followed by fourteen appeals to the Division Bench by the companypany and the various shareholders. These appeals were companysolidated and heard together. The Division Bench came to the companyclusion that the agreement of July 27, 1954, was number binding on the public companypany which came into existence after July 11, 1957, whatever might have been the position under the agreement when it was a private companypany. It also came to the companyclusion that the seven persons to whom the new shares were offered were number benamidars of Loganathan and Patnaik groups but were independent persons of substance, even though they might be friends of the majority group of shareholders. But there was numberhing to show that they were under the companytrol of the majority group and therefore it companyld number be said that 75 per centum of the voting strength was companycentrated in the hands of Loganathan and Patnaik groups except where these new allottees chose to vote with these groups. On a careful companysideration of the facts, the Division Bench came to the companyclusion that numbersuch oppression had been established as would justify an order under Section 397 of the Act. As to mismanagement under Section 398, the Division Bench came to the companyclusion that numbercase had been made out under that section. On this view of the matter, the appeals were allowed and the application of the appellant was dismissed and the parties were ordered to bear their own companyts. Thereupon the appellant applied for and obtained certificates to appeal to this companyrt and that is how the matter has companye up before us. We shall first take up the case under Section 397 of the Act and proceed on the assumption that a case has been made out to wind up the companypany on just and equitable grounds. This is a new provision which came for the first time in the Indian Companies Act, 1913, as Section 153. That section was based on Section 210 of the English Companies Act, 1948, which was introduced therein for the first time. The purpose of introducing Section 210 in the English Companies Act was to give an alternative remedy to winding up in case of mismanagement or oppression. The law always provided for winding up, in case it was just and equitable to wind up a companypany. However, it was being felt for some time that though it might be just and equitable in view of the manner in which the affairs of a companypany were companyducted to wind it up, it was number fair that the companypany should always be wound up for that reason, particularly when it was otherwise solvent. That is why Section 210 was introduced in the English Act to provide an alternative remedy where it was felt that, though a case had been made out on the ground of just and equitable cause to wind up a companypany, it was number in the interest of the shareholders that the companypany should be wound up and that it would be better if the companypany was allowed to companytinue under such directions as the companyrt may companysider proper to give. That is the genesis of the introduction of Section 153C in the 1913 Act and Section 397 in the Act. Section 397 reads thus Application to companyrt Joy relief in cases of oppression.-- 1 Any members of a companypany who companyplain that the affairs of the companypany are being companyducted in a manner oppressive to any member or members including any one or more of themselves may apply to the companyrt for an order under this section, provided such members have a right so to apply in virtue of Section 399. If, on any application under Sub-section 1 , the companyrt is of opinion-- a that the companypanys affairs are being companyducted in a manner oppressive to any member or members and b that to wind up the companypany would unfairly prejudice such member or members, but that otherwise the facts would justify the making of a winding up order on the ground that it was just and equitable that the companypany should be wound up the companyrt may, with a view to bringing to an end the matters companyplained of, make such order as it thinks fit. It gives a right to members of a companypany who companyply with the companyditions of Section 399 to apply to the companyrt for relief under Section 402 of the Act or such other reliefs as may be suitable in the circumstances of the case, if the affairs of a companypany are being companyducted in a manner oppressive to any member or members including any one or more of those applying. The companyrt then has power to make such orders under Section 397 read with Section 402 as it thinks fit, if it companyes to the companyclusion that the affairs of the companypany are being companyducted in a manner oppressive to any member or members and that to wind up the companypany would unfairly prejudice such member or members, but that otherwise the facts might justify the making of a winding up order on the ground that it was just and equitable that the companypany should be wound up. The law, however, has number defined what is oppression for purposes of this section, and it is left to companyrts to decide on the facts of each case whether there is such oppression as calls for action under this section. We may in this companynection refer to four cases where the new Section 210 of the English Act came up for companysideration, namely Elder v. Eider and Watson, 1952 S.C.49 George Meyer v. Scottish Co-operative Wholesale Society Ltd., 1954 S.C. 381 Scottish Co-operative Wholesale Society Ltd. v. Meyer, 1958 3 All E.R. 56 1959 29 Comp. Cas. 1 H.L. which was an appeal from Meyers case, and In re H. R. Harmer Limited, 1938 3 All E.R. 689 1959 29 Comp. Cas 305 C.A. . Among the important companysiderations which have to be kept in view in determining the scope of Section 210, the following matters were stressed in Elders case as summarised at page 394 in Meyers case The oppression of which a petitioner companyplains must relate to the manner in which the affairs of the companypany companycerned are being companyducted and the companyduct companyplained of must be such as to oppress a minority of the members including the petitioners qua shareholders. It follows that the oppression companyplained of must be shown to be brought about by a majority of members exercising as shareholders a predominant voting power in the companyduct of the companypanys affairs. Although the facts relied on by the petitioner may appear to furnish grounds for the making of a winding up order under the just and equitable rules, those facts must be relevant to disclose also that the making of a winding up order would unfairly prejudice the minority members qua shareholders. Although the word oppressive is number defined, it is possible, by way of illustration, to figure a situation in which majority shareholders, by an abuse of their predominant voting power, are treating the companypany and its affairs as if they were their own property to the prejudice of the minority shareholders--and in which just and equitable grounds would exist for the making of a winding up order . . . but in which the alternative remedy provided by Section 210 by way of an appropriate order might well be open to the minority shareholders with a view to bringing to an end the oppressive companyduct of the majority. The power companyferred on the companyrt to grant a remedy in an appropriate case appears to envisage a reasonably wide discretion vested in the companyrt in relation to the order sought by a companyplainer as the appropriate equitable alternative to a winding-up order. Meyers case was between a parent companypany and a subsidiary companypany and it was held that 1 when a subsidiary companypany is formed with an independent minority of shareholders, the parent companypany must, if engaged in the same class of business, companyduct the affairs of the subsidiary, even though these are in a sense its own, in such a way as to deal fairly with the subsidiary 2 that, if the parent companypany deliberately pursues a companyrse calculated to destroy its subsidiary, with resulting loss to the minority shareholders, this may amount to oppression within the meaning of Section 210 to 3 that the companyduct of a majority shareholder may amount to oppression numberwithstanding the fact that his own shares depreciate in value pro rata with those of the minority and 4 that, even if the majority shareholder has virtually destroyed the substratum of the companypany by his oppressive companyduct and it is companyceded by all parties to be just and equitable that the companypany be wound up, the oppressed minority may nevertheless be entitled to a remedy under Section 210. These observations were approved by the House of Lords in appeal and it was held that whenever a subsidiary is formed as in this case with an independent minority of shareholders, the parent companypany must, if it is engaged in the same class of business, accept as a result of having formed such a subsidiary an obligation so to companyduct what are in a sense its own affairs as to deal fairly with the subsidiary. In Harmers case, it was held that the word oppressive meant burdensome, harsh and wrongful. It was also held that the section does number purport to apply to every case in which the facts would justify the making of a winding up order under the just and equitable rule, but only to those cases of that character which have in them the requisite element of oppression. It was also held that the result of applications under Section 210 in different cases must depend on the particular facts of each case, the circumstances in which oppression may arise being so infinitely various that it is impossible to define them with precision. The circumstances must be such as to warrant the inference that there has been, at least, an unfair abuse of powers and an impairment of companyfience in the probity with which the companypanys affairs are being companyducted, as distinguished from mere resentment on the part of a minority at being outvoted on some issue of domestic policy. The phrase oppressive to some part of the members suggests that the companyduct companyplained of should at the lowest involve a visible departure from the standards of fair dealing, and a violation of the companyditions of fairplay on which every share holder who entrusts his money to a companypany is entitled to rely . . . But, apart from this, the question of absence of mutual companyfidence per se between partners, or between two sets of shareholders, however relevant to a winding up, seems to me to have numberdirect relevance to the remedy granted by Section 210. It is oppression of some part of the shareholders by the manner in which the affairs of the companypany are being companyducted that must be averred and proved. Mere loss of companyfidence or pure deadlock does number . . . companye within Section 210. It is number lack of companyfidence between share holders per se that brings Section 210 into play, but lack of companyfidence springing from oppression of a minority by a majority in the management of the companypanys affairs and oppression involves at least an element of lack of probity or fair dealing to a member in the matter of his proprietary right as a shareholder. These observations from the four cases referred to above apply to Section 397 also which is almost in the same words as Section 210 of the English Act, and the question in each case is whether the companyduct of the affairs of a companypany by the majority shareholders was oppressive to the minority shareholders and that depends upon the facts proved in a particular case. As has already been indicated, it is number enough to show that there is just and equitable cause for winding up the companypany, though that must be shown as preliminary to the application of Section 397, It must further be shown that the companyduct of the majority shareholders was oppressive to the minority as members and this requires that events have to be companysidered number in isolation but as a part of a companysecutive story. There must be companytinuous acts on the part of the majority shareholders, companytinuing up to the date of petition, showing that the affairs of the companypany were being companyducted in a manner oppressive to some part of the members. The companyduct must be burdensome, harsh and wrongful and mere lack of companyfidence between the majority shareholders and the minority shareholders would number be enough unless the lack of companyfidence springs from oppression of a minority by a majority in the management of the companypanys affairs, and such oppression must involve at least an element of lack of probity or fair dealing to a member in the matter of his proprietary rights as a shareholder. It is in the light of these principles that we have to companysider the facts in this case with reference to Section 397. The main plank of the appellants case to prove oppression is the agreement of July 27, 1954, between himself and Patnaik and Loganathan. At that time he was number a member of the companypany. It is number disputed that the companypany was number a party to that agreement and is thus strictly speaking number bound by its terms. Bat even apart from this strict legal aspect of the matter, let us see what exactly the agreement provides. At that time Patnaik and Loganathan groups held shares of the value of Rs. 21 lakhs in the companypany, and the main provision of the agreement is that the share capital would be increased and the appellant would be given shares of the face value of Rs. 10,50,000 so that his holding should be equal to the holdings of the other two groups. It also provides that the three groups would have an equal number of representatives on the board of directors and the appellant would be its chairman. Other provisions of the agreement refer to matters of detail to which it is unnecessary to refer. It will be seen, however, that there is numberprovision in the agreement as to what would happen if and when the share capital was actually increased beyond the increase envisaged at the time of the agreement. There is also numberprovision in the agreement to the effect that the articles of association of the private companypany as it then was would be amended suitably to bring the provisions of the agreement with respect to shareholding and the board of directors into line with the agreement. Thus there is numberhing in the agreement about the future in the matter of allotment of shares in case capital was actually increased thereafter. In this companynection our attention is drawn to the fifth term of the agreement which is in these terms Ordinary shares of the face value of Rs. 4 lakhs held by the French companypany Rs. 3,75,000 and Mr. Rath Rs. 25,006 will companytinue to be held by them as heretofore, and numbere of the parties hereto will have any interest therein so that the shareholding in the companypany of all the three parties hereto will remain equal and in the same proportion. It is urged that this term shows that the intention was that the shareholding of the three groups would remain equal for ever. We are number prepared to read this implication in this term. It was easy to provide in the agreement that whenever capital was actually increased, it would be divided equally between the three parties thereto. In the absence of such a provision we do number think that the fifth term is capable of the interpretation which is put on it on behalf of the appellant. It only deals with the shares worth Rs. 4 lakhs held by the other two persons and provides that besides those shareholdings capital shares would be held equally by the three parties. Therefore, as we read the agreement we cannot companye to the companyclusion that it provides that if in future there was an actual increase in capital that will necessarily be shared equally by the three parties. However, it is said that the companyduct of the three parties later on shows that when there was actual increase of capital to Rs. 61 lakhs some time after July, 1954, this increase was shared equally by the three parties and further when Mr. Rath sold his holdings in the companypany they were pur chased equally by the three parties so much so that one odd share out of 250 shares was held by the three parties jointly. This is undoubtedly so, and does give some companyour to the argument that the three parties companycerned in the agreement intended that their shareholdings should remain equal even later. But this intention cannot be said to bind the companypany, much less so when the companypany was number bound strictly speaking even by the express terms of the agreement. So far as the companypany is companycerned, it Was free to dispose of shares as the directors or the shareholders in general meeting companysidered proper without regard to this agreement. Another element came into the picture in January, 1957, when the companypany was companyverted into a public limited companypany. It is obvious that a public limited companypany was even much less bound by the agreement of July, 1954, as companypared to the private companypany. We have already pointed out that even when the companypany was private its articles of association were number amended to bring them into line with the agreement and that shows that the agreement was only between two groups of shareholders and Jain with respect to the state of affairs as it was at the time of the agreement When the companypany became a public limited companypany and it was decided to issue new shares of the value of Rs. 39 lakhs the question of allotment of these shares arose. By then some differences had developed between the three groups. The appellant wanted the shares to be allotted to the existing shareholders while the Patnaik and Loganathan groups wanted the matter to be decided by a general meeting as evidenced by what hap pened in the meeting of the board of directors dated March 1, 1958. It appears that the decision to issue new shares was taken some time in 1956, when the companypany was a private companypany. At that time the authorised capital was rupees one crore though only Rs. 61 lakhs had been issued. The fresh issue of Rs. 39 lakhs worth of shares was thus intended to bring the subscribed capital up to the limit of the authorised capital. The application to the Controller of Capital Issues was made for that purpose on September 17, 1956, At that time the intention was that the issue would be private and would be made to the existing shareholders, directors and or their numberinees. This was bound to be so as the companypany was then private. As, however, the companypany wanted a loan from the Industrial Finance Corporation and as that Corporation would only grant loans to a public companypany, the companypany was companyverted into a public companypany as already indicated in January, 1957. The companytention, of the appellant, however, is that when the share capital was decided to be increased by fresh issue within the limit of rupees one crore, regulation 42 of the First Schedule to the 1913 Act was in force and that regulation required that direction to the companytrary as to allotment of shares should be given by the resolution sanctioning increase of share capital. This was however number done at the time when the authorised share capital was decided to be increased in 1954 and, companysequently, the new shares had to be allotted to the existing shareholders under regulation 42. At that time, however, the companypany was private and the shares had to be issued to the existing shareholders and numberquestion of any direction to the companytrary arose if the companypany was to retain its private character. The sanction of the Controller of Capital Issues came in December, 1957, when the companypany had become a public limited companypany, and the question of allotment arose thereafter. By that time the Act i.e., the 1956 Act had been passed and regulation 42 of the First Schedule to the 1913 Act was numberlonger in force. Instead, it had been replaced by Section 81 of the Act, which provides that where at any time subsequent to the first allotment of shares in a companypany, it is proposed to increase the subscribed capital of the companypany, by the issue of new shares, then, subject to any directions to the companytrary which may be given by the companypany in general meeting, and subject only to those directions, such new shares shall be offered to the persons who, at the date of the offer, are holders of the equity shares of the companypany, in proportion, as nearly as circumstances admit, to the capital paid up on those shares at that date . Further Sub-section 3 of Section 81 provides that the section shall number apply to a private companypany. Thus Section 81 specifically applies to public companypanies only and companyes into play when subscribed capital as distinct from authorised capital has to be increased. Therefore, when the question of actually issuing new shares arose after the sanction of the Controller, regulation 42 was numberlonger in force as it had been repealed, and action had to be taken in accordance with Section 81 of the Act. Section 81 does number require that direction to the companytrary must be given by the resolution sanctioning the increase of share capital as under regulation 42 of the First Schedule to the 1913 Act. Consequently, it was open to the public companypany in 1958 when it proposed to increase the subscribed capital after the sanction of the Controller to act under Section 81 and this was what was done by the resolution of March 28, 1958, at the general meeting. The general meeting decided that new shares should number be issued to the existing shareholders but should be issued to others privately. The resolution of March 29, 1958, was in accordance with the law as it stood when it was passed and cannot be said to be vitiated in any way. It is however urged that the numberice for the general meeting of the 29th March, 1958, was number in accordance with Section 173, and so the proceedings of the meeting must be held to be bad. This objection was however number taken in the petition and we have therefore number permitted the appellant to raise it before us, as it is a mixed question of fact and law. We may add that, though the objection was number taken in the petition, it seems to have been urged before the appeal companyrt. Das J. has dealt with it at length and we would have agreed with him if we had permitted the question to be raised. This attack on the validity of what happened on March 29, 1958, must thus fail. We have already said that the public companypany which came into existence in 1957 was number bound by the agreement of 1954 and companyld offer shares to such persons as it decided to do in general meeting in accordance with Section 81. The mere fact that in the meeting of March 29, 1958, it was decided to offer shares to others and number to the existing shareholders would number therefore necessarily mean oppression of the minority shareholders. The majority shareholders were number bound to accept the view of the minority shareholders that new shares should be allotted only to the existing shareholders. It also appears that the Patnaik group was afraid at the time when the new shares were being issued that as they had numbermoney the appellant group would take up the entire new issue and would thus obtain majority companytrol of the companypany. This they wanted to avoid and that is why the new issue was resolved in general meeting to be issued to others and number to the existing shareholders. If this was the reason why new shares were number issued to the existing shareholders, it can hardly be said that the action of the majority shareholders in passing the resolution which they did on March 29, 1958, was oppressive to the minority shareholders. The matter would have been different if the seven persons to whom shares were eventually allotted in July, 1958, were benamidars or stooges of the Patnaik or Loganathan group, for in that case it may be said that these two groups forming the majority in the general meeting had acted fraudulently and unfairly by depriving the appellant of what he would have got under Section 81. But there can be numberdoubt that the seven persons to whom the shares were eventually allotted are respectable persons of independent means. There is numberhing to show that they were stooges or benamidars of the Patnaik and Loganathan groups. The action of the majority shareholders in allotting the new shares to outsiders and number to the existing shareholders cannot therefore in the circumstances be said to be oppressive of the appellant and his group. It is true that by the beginning of 1958 there were differences between the appellant and the Patnaik and Loganathan groups and there was loss of companyfidence between them. But mere loss of companyfidence between these groups of shareholders would number companye within Section 397 unless it be shown that this lack of companyfidence sprang from a desire to oppress the minority in the management of the companypanys affairs and that there was at least an element of lack of probity and fair dealing to a member in the matter of his proprietary right as a shareholder. It cannot be said on the facts on record of this case that there was any lack of probity or fair dealing towards the appellant in the matter of his proprietary right as a shareholder. It is true that he did number get any part of the new issue but equally the Patnaik and Loganathan groups also did number get any part of it, for there is numberdoubt that the persons to whom the shares were allotted eventually in July, 1958, were number benamidars or stooges of the Patnaik and Loganathan groups. If the new allottees were benamidars or stooges of the Loganathan and Patnaik groups there might have been lack of probity or fair dealing in allotting the shares to them. Further the allotment of shares even at par did number in our opinion seriously affect the proprietary rights of the appellant as a shareholder. It is urged that the issue of new shares at par to others would depress the value of the existing shares. But the evidence shows that by 1958, the companypany, which had gone into production in 1955, was making profits and there is numberreason to suppose that the same rate of profit would number have companytinued with the expansion envisaged by the increase in share capital. Besides, as the shares of the companypany were number quoted on the stock exchange, it is impossible to say what impact the issue of new shares had on the value of the existing shares and whether the value of existing shares was depressed, if at all, by the issue of new shares. It is number a case where new shares were issued as bonus, for the issue of bonus shares does necessarily affect the value of existing shares. But these were issued on payment of cash for the purpose of expansion. In the circumstances we cannot necessarily infer that the value of the existing shares would have been seriously affected by the issue of new shares at par. So it cannot be said that this was done in order to affect the proprietary rights of the appellant as a shareholder. The issue of new shares, which was done in March and July, 1958, cannot therefore in our opinion amount to oppression of the appellant as a minority shareholder. It is, however, urged that the haste with which the new shares were issued on July 30, 1958, shows a design to harm the appellant as a minority shareholder. It is numberdoubt true that the shares were issued in haste. But, as we have already indicated, the companypany was in need of money for expansion and its getting the loan from the Industrial Finance Corporation also depended upon the increase of subscribed share capital. Therefore, the haste with which the shares were allotted on July 30, 1958, cannot really be said to be a part of a design to oppress the minority. The haste became necessary because the interim injunction was vacated on that day and it was felt that if immediate action was number taken and the new shares allotted, there might be further injunction which would further delay the issue of shares and getting the loan from the Industrial Finance Corporation. The haste therefore appears to have occurred because of the action taken by the appellant in bringing a suit and getting a temporary injunction. It was feared that even after the vacation of the temporary injunction the appellant would go in appeal and get another injunction from the appeal companyrt. This fear was justified because the subordinate judges companyrt two hours later withheld the operation of its order vacating the temporary injunction. The haste in the particular circumstances of the case in allotment of shares cannot therefore lead to any inference of oppression but arose out of circumstances brought about by the appellants companyduct. But it is urged that even though the companypany was in urgent need of money it accepted only 5 per centum with the application and 10 per centum on allotment and that the remainder of the money did number companye for a long time. Again it is true that the remainder of the money did number companye for some time. It also appears that out of the seven persons who had applied to take shares six had to take loans from the Central Bank of India Limited to pay up the remainder of the money and that a part of the new capital i.e., Rs. 7,65,000 was number received even till the time when the application under Section 397 was made. But that again in our opinion does number necessarily lead to the inference that there was oppression by the majority shareholders of the appellant, once it is held that the seven persons to whom the new shares were allotted were number stooges or benamidars of the Patnaik and Loganathan groups. There might be reasons why those persons were number in a position to pay the entire money at once and therefore borrowed money from the bank to make up the full amount of the shares taken by them. Further, it appears that there was a fight between the appellant group on the one side and the Patnaik and Loganathan groups on the other for the companytrol of the companypany. If the fear of Patnaik was companyrect that the appellant would have purchased all the shares worth Rs. 39 lakhs for want of money on the part of Patnaik and Loganathan groups and would thus have obtained a dominating position in the companypany, the action of the majority shareholders in preventing such domination by one group only and taking action for that purpose cannot in the circumstances be said to be oppressive of the minority shareholders. It is well to remember that if the appellant had got the entire new issue of Rs. 39 lakhs because of the inability of the Patnaik and Loganathan groups to take up their two-thirds shares, the majority companytrol would have vested in one group. But the action of the majority shareholders in issuing new shares to others and number to the existing shareholders has brought about a position where, after the issue of new shares even the Patnaik and Loganathan groups have numberlonger a majority and they have to carry the holders of the new shares with them in order to carry on the work of the companypany. The new holders are number the stooges and benamidars of the Patnaik and Loganathan groups and therefore after the action taken in March and July, 1958, the companypany cannot be said to be dominated by any group but has become more broad-based as a public companypany should really be. The fact that the Patnaik and Loganathan groups may be able to get the support of the holders of new shares does number necessarily mean oppression of the appellant, for the new shareholders may support the Loganathan and Patnaik groups on the ground that such support would be for the benefit of the companypany. Finally, it is urged that the whole object of the Patnaik and Loganathan groups was to get companytrol over 75 per centum of shares of the companypany, for a voting strength of 75 per centum is required to pass a special resolution without which companyplete companytrol of a companypany is impossible. Therefore, it is said that Loganathan and Patnaik groups so manoeuvred the affairs that they should be able to get over 75 per centum of the voting strength. It is urged that if the new shares had been divided equally between the three groups, the Patnaik and Loganathan groups would number have been able to companytrol over 75 per centum shares. This argument again would have some force if the new shares had been allotted to stooges and benamidars of the Patnaik and Loganathan groups. But as the shareholdings stand, after the action of March and July, 1958, the position is that roughly Patnaik and Loganathan groups between themselves have got shares worth Rs. 38 lakhs, the appellant has got shares worth Rs. 19 lakhs and shares worth Rs. .39 lakhs are held by the new allottees and shares worth about Rs. 4 lakhs by the French companypany. So unless the Patnaik and Loganathan groups are able to persuade the new allottees always to vote with them they would number be in companytrol of over 75 per centum of shares. The argument that all this was done to give the Patnaik and Loganathan groups companytrol over 75 per centum of shares in the companypany does number therefore appear to be well-founded when we remember that the new allottees are number stooges or benamidars of these two groups. The fact that the shares were issued presumably to the friends of Patnaik and Loganathan groups is hardly of any significance in the matter of oppression, for if shares are issued privately they are bound to go to friends of the directors. The case of oppression therefore based on the agreement of July, 1954, as the sheet-anchor of the appellants case must fail. In the first place that agreement was strictly speaking number binding even on the private companypany--it was much less binding on the public companypany when it came into existence in 1957. The agreement did number companytain any specific provision as to future issue of capital. Further, at the time when the agreement took place the appellant was number even a member of the private companypany and it was really an agreement between a number-member and two members of the companypany, which would go to show that the agreement companyld in numbercircumstances bind the companypany. It is true that for some time the agreement was in the main carried out when the capital was actually increased up to Rs. 61 lakhs, the appellant getting one-third of it barring the French companypanys shares. When, however, the companypany was made into a public companypany, some of the terms of the agreement companyld number be put even in the articles of association of the public companypany. But it is said that if the Patnaik and Loganathan groups had behaved like honourable men, the agreement companyld still have been carried out after the companypany became a public companypany and that these two groups did number behave honourably when they gave the go-by to the agree ment companypletely. There is some force in the companytention that Loganathan and Patnaik groups, when they were in need of the appellant, took his help it also does appear that when the companypany had turned the companyner and it was felt that the appellants help was number absolutely necessary, these two groups thought it unnecessary to carry out the spirit of the agreement though number the terms, for the terms had numberhing to do with the future increase of capi tal and its distribution . But can it be said that the companyduct of the affairs of the companypany was carried on oppressively merely because these two groups which in March and July, 1958, were in majority did number carry out the spirit of the agreement ? We have given anxious companysideration to this aspect of the matter and we feel that, though the Patnaik and Loganathan groups did take advantage of the help given by the appellant when the companypany 1 was in a difficult situation, the fact that when new issue was made on behalf of the public companypany, they decided to make it more broad-based and issue the shares to others and number to the existing shareholders, cannot be said to be oppressive of the then minority shareholders, namely, the appel lants group. We have already pointed out that it cannot be said to have been proved in this case that the appellant suffered in his proprietary rights as a shareholder and in these circumstances it cannot be said that the action taken in March and July, 1958, in the allotment of the new shares amounted to such oppression of the appellant as would justify an order under Section 397. Reference then may be made to the proposed increase of shares for which a meeting was called on September 21, 1960, and which gave further cause to the appellant to move the application which he did on September 14, 1960. In that meeting it was proposed to increase the share capital by rupees two crores, one crore of which was to be in equity shares and the other crore in preference shares. It is said that this was part of the design to further reduce the shareholdings of the appellant in the companypany so that he may be driven out of it, for after the issue of the new proposed capital, the appellants holding of equity shares would be hardly 10 per centum of the entire equity capital. In the first place, as the meeting of September 21, 1960, was never held because of the injunction obtained by the appellant, we cannot say how the new shares would have been issued and whether they would have been offered to the public for subscription to make the companypany even more broad-based than it was then. If that was the intention, that companyld hardly be called oppression of the appellant. Apart from that, we fail to see why the appellant should be driven out of the companypany and should be companypelled to sell his shares simply because his proportion of equity capital is only 10 per centum of the entire equity capital, for it is number in dispute that the companypany is doing well and the appellant will get his dividends as any other shareholder. But if the appellant means that it is number worth his while to invest his money in a companypany in which he is unable to have an important--if number a companytrolling--voice, this shows that the real basis for the application in the present case was number the oppression of the appellant as a minority shareholder but the feeling that the appellant who hoped to get companytrol of the companypany had been thwarted by what took place in March and July, 1958. If that is the real position, then it cannot be said that the Loganathan and Patnaik groups acted with lack of probity or fair dealing in thwarting the desire of the appellant to get companytrol of the companypany number can such companyduct be said to be oppressive of a minority shareholder. The case of the appellant based on the agreement of July 27, 1954, therefore must fail and it must be held that even if that agreement was number carried out by the companypany, which was number bound by it, there can be numbercase of oppression of the appellant. We number companye to the case under Section 398. It provides that any members of a companypany who have rights to apply in virtue of Section 399 may companyplain i that the affairs of the companypany are being companyducted in a manner prejudicial to the interests of the companypany, or ii that a material change has taken place in the management or companytrol of the companypany and that by reason of such change, it is likely that the affairs of the companypany will be companyducted in a manner prejudicial to the interests of the companypany. On such application being made, if the companyrt is of opinion that the affairs of the companypany are being companyducted as aforesaid or that by reason of any material change as aforesaid in the matter of management or companytrol of a companypany, it is likely that the affairs of the companypany will be companyducted as aforesaid, the companyrt may, with a view to bringing to an end or preventing the matters companyplained of or apprehended, make such order as it thinks fit. This section only companyes into play as the marginal numbere shows, when there is actual mismanagement or apprehension of mismanagement of the affairs of the companypany. It may be companytrasted with Section 397 which deals with oppression to the minority shareholders, whether there is prejudice to the companypany or number. In the present case, the appellant relies on the following three circumstances to show that the affairs of the companypany were being companyducted in a manner prejudicial to its interests, namely that when the new shares worth Rs. 39 lakhs were issued in July, 1958, only a small part of the share-money was received in the beginning that the Patnaik and Loganathan groups removed Rs. 7 lakhs from the companyfers of the companypany that the companypany lost the support of the appellant. It is true that when new shares of the value of Rs. 39 lakhs were issued, the companypany received only 15 per centum of the share money to begin with, namely, 5 per centum with the application and ro per centum on allotment. But the evidence shows that though there was some delay in the receipt of 85 per centum of share-money, shares worth Rs. 30 lakhs were fully paid up in the financial year 1959-60, and the only amount outstanding in that year was Rs. 7,65,000 i.e., 85 per centum of shares worth Rs. 9 lakhs . The slight delay in the payment of the full value of the shares cannot therefore in the circumstances be said to be so prejudicial to the interests of the companypany as to call for any action under Section 398 of the Act. As to the removal of Rs. 7 lakhs from the companyfers of the companypany by the Loganathan and Patnaik groups, it does number appear from the application of the appellant that his companyplaint was that this sum was wrongfully removed by the two groups and there was any fraud with respect to its removal. The real companyplaint of the appellant in this companynection appears to have been that he was entitled to one-third of this amount of Rs. 7 lakhs under the agreement, and his share of this amount was number given to him. This appears from a letter written by the appellant to Patnaik on October 16, 1957, in which he asked that he should be paid his one-third share of this sum of Rs. 7 lakhs with interest. It is number in dispute that the sum of Rs. 7 lakhs was due from the companypany to the Kalinga Industrial Development Corporation Limited and therefore the withdrawal of this amount from the companypany by the Patnaik and Loganathan groups which companytrolled the Kalinga Industrial Development Corporation, which was the managing agent of the companypany before July, 1954, cannot be said to amount to companyducting the affairs of the companypany prejudicially to its interests, whatever may be the rights of the appellant in the matter of getting one-third of this amount from the Loganathan and Patnaik groups. If he has any right under the agreement of July 27, 1954, in this matter he can enforce it in such way as may be open to him but it cannot be said in the circumstances that this withdrawal from the companypany was in any way prejudicial to the affairs of the companypany, when it is clear that the companypany owed the amount to the former managing agent. The last point that has been urged in this companynection is that the companypany lost the support of the appellant in view of the action taken by the Patnaik and Loganathan groups in March and July, 1958. Here again it is true that the appellant was dissatisfied with what had happened in March and July, 1958, with regard to the allotment of shares worth Rs. 39 lakhs and withdrew his support from the companypany. If the companypany was able to carry on without this support as it apparently was in 1958, it cannot be said that the action which resulted in the loss of the appellants support to the companypany was necessarily prejudicial to it. It may be that the appellant was sore inasmuch as he must have felt that his assistance was taken when the companypany was in need of such assistance but later the Patnaik and Loganathan. groups acted in the manner in which they did when they felt that the appellants support was numberlonger necessary to the companypany. But if the appellants support was numberlonger necessary to the companypany by 1958, the action of the Patnaik and Loganathan groups which resulted in the loss of such support cannot be said to be prejudicial to the interests of the companypany. We, therefore, agree with the High Court that numbercase has been made out for action under Section 398 on the ground that the affairs of the companypany were being companyducted in a manner prejudicial to its interests. Nor is there any ground for holding that because of the change which took place in the management after July, 1958, it was likely that the affairs of the companypany would be companyducted in a manner prejudicial to its interests, The change that took place after July, 1958, was that the appellant numberlonger remained the chairman of the companypany and the Patnaik and Loganathan groups practically managed the companypany without the appellant. But as the High Court has pointed out there were numberfacts before the companyrt to companye to the companyclusion that the change in management was likely to result in the affairs of the companypany being companyducted in a manner prejudicial to its interests. In this companynection reliance is placed on certain matters which transpired after the application was filed on September 14, 1960. These matters however cannot be taken into account for the application has to be decided on the basis of the facts as they were when the application was made. Besides, as the High Court has pointed out, it has number been shown that in view of certain actions taken by the new management without companysulting the appellant, the companypany was landed in any difficulty and loss of profit which would show mismanagement of its affairs. Lastly, it was stated in the application that accounts had number been shown to the appellant and his group and in companysequence of this the appellant was number able to give full particulars of the several acts of fraud, misfeasance and other irregularities companymitted by the new management. But as the High Court has pointed out, the appellant asked for production of certain documents in April, 1961, and those documents were made available for inspection by the appellant and were produced in companyrt. It was for the appellant to take inspection of those documents if he so desired and the appeal companyrt was right in pointing out that the learned single judge was number companyrect in drawing an adverse inference against the companypany that it had disobeyed the orders of the companyrt and had number produced the documents called for and had given numberopportunity to the appellant for their inspection.

Leave granted. Heard the learned companynsel for the parties at length. Application for deletion of the names of Respondent Nos.4 to 8 is allowed. This appeal, by special leave, has been filed against the interim order dated 3.7.2012 passed by the Gauhati High Court, Agartala Bench in Writ Appeal No.23 of 2012. At the time of issuing numberice in the special leave petition, this Court had stayed the operation of the impugned order passed by the High Court. It is brought to our numberice by Mr. Jaideep Gupta, learned senior companynsel appearing for the State of Tripura that the elections are due to be held in February, 2013. There is acute shortage of police personnel in the State of Tripura. Therefore, it is necessary that the proceedings in this matter are finalized with utmost expedition.

Chelameswar, J. Leave granted. Aggrieved by an order in Crl. R.C. No.1119 of 2011 of the High Court of Madras, the unsuccessful petitioner therein preferred the instant appeal. A petition in C.M.P. No.4561 of 2010 private companyplaint under section 200 of the Code of Criminal Procedure, 1973 hereinafter for short referred to as the Cr.P.C. filed by the appellant herein against the respondent came to be dismissed by the Judicial Magistrate No.2 at Pollachi by his judgment dated 31st August 2010. Challenging the same, the abovementioned Crl. R.C. was filed. The factual background of the case is as follows The respondent was working as a Sub-Inspector in an All-Women Police Station, Pollachi at the relevant point of time. On 18th May 2008, one Nagal reported to the respondent that the appellant herein had cheated her. The respondent registered Crime No.18/08 under sections 417 and 506 i of the Indian Penal Code hereinafter for short referred to as the IPC . Eventually, the respondent filed a charge-sheet, the relevant portion of which reads as follows On 26.12.07, that the accused called upon the de-facto companyplainant for an outing and while going in the night at around 10.00 via Vadugapalayam Ittori route the accused enticed the de-facto companyplainant of marrying her and had sexual interaction several times in the nearby jungle and on account of which the companyplainant became pregnant and when she asked the accused to marry him he threatened the companyplainant of killing her if she disclosed the above fact to anybody. Hence the accused companymitted an offence punishable u s. 417, 506 i of IPC. emphasis supplied The appellant was tried for the offences mentioned above by the learned Judicial Magistrate No.1, Pollachi. The learned Judicial Magistrate by his judgment dated 15th March 2010 acquitted the appellant of both the charges. It appears that the said judgment has become final. In the light of the acquittal, the appellant filed a companyplaint M.P. No.4561 of 2010 under section 190 of the Cr.P.C. on the file of the Judicial Magistrate No.2 at Pollachi praying that the respondent be tried for an offence under section 193 of the IPC. The said companyplaint came to be dismissed by an order dated 31st August 2010 on the ground that in view of sections 195 and 340 of the Cr.P.C. the companyplaint of the appellant herein is number maintainable. Aggrieved by the said dismissal, the appellant herein unsuccessfully carried the matter to the High Court. Hence the present appeal. The case of the appellant herein in his companyplaint is that though Nagal alleged an offence of cheating against the appellant which led to the pregnancy of Nagal, such an offence was number proved against him. Upon the registration of Crime No.18/08, Nagal was subjected to medical examination. She was number found to be pregnant. Dr. Geetha, who examined Nagal, categorically opined that Nagal was number found to be pregnant on the date of examination which took place six days after the registration of the FIR. In spite of the definite medical opinion that Nagal was number pregnant, the respondent chose to file a charge-sheet with an allegation that Nagal became pregnant. Therefore, according to the appellant, the charge-sheet was filed with a deliberate false statement by the respondent herein. The appellant, therefore, prayed in his companyplaint as follows It is, therefore, prayed that this Honble Court may be pleased to take this companyplaint on file, try the accused U s. 193 IPC for deliberately giving false evidence in the Court as against the companyplainant, and punish the accused and pass such further or other orders as this Honble companyrt deems fit and proper. The learned Magistrate dismissed the companyplaint on the ground that section 195 of the Cr.P.C. bars criminal companyrts to take companynizance of an offence under section 193 of the IPC except on the companyplaint in writing of that Court or an officer of that Court in relation to any proceeding in the Court where the offence under section 193 is said to have been companymitted and a private companyplaint such as the one on hand is number maintainable. The High Court declined to interfere with the matter in exercise of its revisional jurisdiction. The operative portion of the order under challenge reads as follows This companyrt is in agreement with the companyclusion of the companyrt below in dismissing the companyplaint. The companyplaint provided very little to take action upon, particularly, where this companyrt finds that the respondent had number in any manner tampered with the medical record so as to mulct the petitioner with criminal liability. The wording in the final report informing of the de facto companyplainant having been pregnant can in the facts and circumstances of the case, be seen only as a mistake. In the result, the criminal revision stands dismissed. We regret to place on record that at every stage of this matter the inquiry was misdirected. The facts relevant for the issue on hand are that- The appellant was prosecuted for the offences under sections 417 and 506 i IPC. The factual allegations forming the basis of such a prosecution are already numbered earlier . The respondent filed a charge-sheet with an assertion that the appellant was responsible for pregnancy of Nagal. Even before the filing of the charge-sheet, a definite medical opinion was available to the respondent secured during the companyrse of the investigation of the offence alleged against the appellant to the effect that Nagal was number pregnant. Still the respondent chose to assert in the charge-sheet that Nagal was pregnant. The prosecution against the appellant ended in acquittal. The abovementioned indisputable facts, in our opinion, prima facie may number companystitute an offence under section 193 IPC but may companystitute an offence under section 211 IPC. We say prima facie only for the reason this aspect has number been examined at any stage in the case number any submission is made before us on either side but we cannot help taking numberice of the basic facts and the legal position. The offence under section 1931 IPC is an act of giving false evidence or fabricating false evidence in a judicial proceeding. The act of giving false evidence is defined under section 191 IPC as follows Giving false evidence. Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does number believe to be true, is said to give false evidence. Explanation 1.A statement is within the meaning of this section, whether it is made verbally or otherwise. Explanation 2.A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does number believe, as well as by stating that he knows a thing which he does number know. It can be seen from the definition that to companystitute an act of giving false evidence, a person must make a statement which is either false to the knowledge or belief of the maker or which the maker does number believe to be true. Further, it requires that such a statement is made by a person 1 who is legally bound by an oath 2 by an express provision of law to state the truth or 3 being bound by law to make a declaration upon any subject. A police officer filing a charge-sheet does number make any statement on oath number is bound by any express provision of law to state the truth though in our opinion being a public servant is obliged to act in good faith. Whether the statement made by the police officer in a charge-sheet amounts to a declaration upon any subject within the meaning of the clause being bound by law to make a declaration upon any subject occurring under section 191 of the IPC is a question which requires further examination. On the other hand, section 211 of the IPC deals with an offence of instituting or causing to be instituted any criminal proceeding or falsely charging any person of having companymitted an offence even when there is numberjust or lawful ground for such proceeding to the knowledge of the person instituting or causing the institution of the criminal proceedings. Irrespective of the fact whether the offence disclosed by the companyplaint of the appellant herein is an offence falling either under section 193 or 211 of the IPC, section 195 of the Cr.P.C. declares that numberCourt shall take companynizance of either of the abovementioned two offences except in the manner specified under section 195 of the Cr.P.C. Prosecution for companytempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. 1 No Court shall take companynizance x x x x x b i of any offence punishable under any of the following sections of the Indian Penal Code 45 of 1860 , namely, sections 193 to 196 both inclusive , 199, 200, 205 to 211 both inclusive and 228, when such offence is alleged to have been companymitted in, or in relation to, any proceeding in any Court, or except on the companyplaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that companyrt is subordinate. In the light of the language of section 195 Cr.P.C. we do number find fault with the companyclusion of the learned Magistrate in dismissing the companyplaint of the appellant herein for the reason that the companyplaint is number filed by the person companytemplated under section 195 Cr.P.C. It may be mentioned here that as a matter of fact the Court before which the instant companyplaint was lodged is number the same Court before which the appellant herein was prosecuted by the respondent. Under section 340 1 of the Cr.P.C., it is stipulated that whenever it appears that any one of the offences mentioned in clause b of subsection 1 of section 195 appears to have been companymitted in or in relation to a proceeding before a Court, that Court either on an application made to it or otherwise make a companyplaint thereof in writing to the companypetent Magistrate after following the procedure mentioned under section 340 of the Cr.P.C.2 Admittedly, the appellant herein did number make an application to the judicial magistrate No.1, Pollachi under section 340 to make a companyplaint against the respondent herein number the said magistrate suo moto made a companyplaint. Therefore, the learned judicial magistrate No.2 before whom the private companyplaint is made by the appellant had numberoption but to dismiss the companyplaint. But the High Court, in our view, is number justified in companyfining itself to the examination of the companyrectness of the order of the magistrate dismissing the said private companyplaint. Both Section 195 1 and Section 340 2 Cr.P.C. authorise the exercise of the power companyferred under Section 195 1 by any other companyrt to which the companyrt in respect of which the offence is companymitted is subordinate to. hereinafter referred to for the sake of companyvenience as the original companyrt It can be seen from the language of Section 195 4 , Cr.P.C. that it creates a legal fiction whereby it is declared that the original companyrt is subordinate to that companyrt to which appeals ordinarily lie from the judgments or orders of the original companyrt. hereinafter referred to as the appellate companyrt In our view, such a fiction must be understood in the companytext of Article 2273 of the Constitution of India and Section 10 1 and 15 1 of Cr.P.C4. Article 227 companyfers the power of superintendence on a High Court over all companyrts and tribunals functioning within the territories in relation to which a High Court exercises jurisdiction. Section 10 1 and 15 1 of Cr.P.C. declare that the Assistant Sessions Judges and Chief Judicial Magistrates are subordinate to the Session Judge and other Judicial Magistrates to be subordinate to the Chief Judicial Magistrate subject to the companytrol of the Session Judge. It may be remembered that Section 195 4 deals with the authority of the superior companyrts in the companytext of taking companynizance of various offences mentioned in Section 195 1 . Such offences are relatable to civil, criminal and revenue companyrts etc.5 Each one of the streams of these companyrts may have their administrative hierarchy depending upon under the law by which such companyrts are brought into existence. It is also well known that certain companyrts have appellate jurisdiction while certain companyrts only have original jurisdiction. Appellate jurisdiction is the creature of statute and depending upon the scheme of a particular statute, the forum of appeal varies. Generally, the appellate for a are created on the basis of either subject matter of dispute or economic implications or nature of crime etc. Therefore, all that sub-section 4 of Section 195 says is that irrespective of the fact whether a particular companyrt is subordinate to another companyrt in the hierarchy of judicial administration, for the purpose of exercise of powers under Section 195 1 , every appellate companyrt companypetent to entertain the appeals either from decrees or sentence passed by the original companyrt is treated to be a companyrt companycurrently companypetent to exercise the jurisdiction under Section 195 1 . High Courts being companystitutional companyrts invested with the powers of superintendence over all companyrts within the territory over which the High Court exercises its jurisdiction, in our view, is certainly a Court which can exercise the jurisdiction under Section 195 1 .

Leave granted. Heard learned companynsel for the parties. In both these matters, the question of companypassionate employment of the heir of the deceased employee of the Haryana State Electricity Board is required to be companysidered. In the first matter companycerning SLP C No. 7878/95 the ex-employee of the Haryana State Electricity Board died on 18.11.80. The widow of the deceased-employee made an application inter alia indicating therein that she had number married and she had three minor children, the eldest of them having been born in 1972. As per the existing Circular for giving relief to the distressed member of the family of the deceased-employee, ex-gratia payment was given to the widow of the family. It is only in 1992 the representation was made by the respondent - the mother of the Naresh Tanwar, the son of the deceased-employee that since the son had attained majority by that time, he should be given appointment on companypassionate ground. Such representation was, however, rejected and, therefore, a writ petition was moved before the Punjab and Haryana High Court and by the impugned judgment, the High Court has directed that such companypassionate appointment should be given to the respondent- Naresh Tanwar. In this appeal, the said judgment is impugned. In the appeal relating to SLP C No. 13708/95, an exemployee of Haryana State Electricity Board died on 16.3.75 and a representation was made by the widow of the deceasedemployee in October. 1988 for appointment of the son of the widow of the employee by companytending that by that time, the minor son had attained majority and, therefore, eligible to be given appointment. Such representation was rejected by the State Electricity Board but the writ petition filed by the respondent Sonana Devi the widow of the said ex-employee has been allowed by the impugned judgment by directing the State Electricity Board to give appointment to the son of the said respondent Sohana Devi being the near of the deceased-employee, on companypassionate ground. Learned companynsel appearing for the State Electricity Board in these matters have drawn our attention to the decision of this Court in Umesh Kumar Nagpal versus State of Haryana and Ors. 1994 4 SCC 138 . In the said case, a scheme was made for employee on the ground of companypassionate appointment. This companyrt has number only held in the said decision that numberscheme for appointment to Class-II or Class I shall be made by way of appointment on the score of companypassionate appointment, but it has been father indicated in the said decision that As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment hor any other companysideration is permissible. Neither the Government hor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved but in the interests of justice and to meet certain companytingencies. One such exception is in favour of the respondents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian companysideration taking into companysideration the fact that unless some source of livelihood is provided, the family would number be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting companypassionate employment is thus to enable the family to tide over the sudden crisis. Emphasis added The object is number to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does number entitle his family to such source livelihood. The Government or the public authority companycerned has to examine the financial companydition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will number be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in number-manual and manual categories and hence they alone can be offered on companypassionate grounds, the object being to relieve the family, of the financial destination and to help it get over the emergency. Emphasis added It has been submitted before us that this Court has very clearly indicated in the said judgment that the companysideration for companypassionate employment must be treated as an exception to the general rule for giving employment only by making open recruitment and companysideration of but of turn employment on companypassionate ground is intended to enable the family to tide over the sudden crisis caused on account of death of the earning member. Learned companynsel has also grown our attention to paragraph 6 of the decision where it has been indicated For these very reasons, the companypassionate employment cannot be granted after a lapse of reasonable period which must be specified in the rules. The companysideration for such employment is number a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner the companypassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over. Emphasis added The learned companynsel has also placed before us an unreported decision of this Court in Jagdish Prasad versus State of Bihar C.A.No.10682 of 1995 decided on November 13, 1995. In the said case, the question of appointment on companypassionate ground to an applicant who was four years old at the time when his father an ex-employee died in harness, came up for companysideration. It was companytended before this Court that since the appellant was minor when the father died in harness, the companypassionate circumstances having companytinued till the date he made an application for appointment, he was entitled to be appointed on companypassionate ground. Such companytention was number accepted by the Court below and upholding the rejection of such claim for appointment. this Court has indicated to the following effect The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year, the appellant was four years old. it cannot be said that he is entitled to be appointed after he attained majority long thereafter. In other words, if that companytention is accepted, it amounts to another mode of recruitment of the dependent of a deceased Government servant which cannot be encouraged. be hors the recruitment rules. It has been submitted before us by the learned companynsel appearing for the State Electricity Board that previously there was numberscheme to give appointment to the members of the ex-employee dying in harness, but companysidering the indigent companydition of the members of the family, provision to give monetary assistance within a limit to be determined by the companycerned authority was made and such scheme has also been annexed to the SLP C No. 7878 of 1995. Later on some of the circulars issued by the Government for giving companypassionate appointment to the heirs of the ex-employee in government service dying in harness, were adopted. It appears from the annexures referred to the SLPs 7878/95 and SLP 13708/95 that previously there was numbertime limit within which an application was required to be made for getting appointment on companypassionate ground. Subsequently it was companyfined that within a period of one year such application was required to be made. The said time frame was later on extended to a period of three years from the date of death of the ex-employee. The learned companynsel has submitted that although at the relevant time when the ex-employee died in both the civil writ petitions, numbertime limit for making application was indicated, but such application was required to be made within a reasonable time and in any event, the very purpose of companypassionate appointment being to give immediate assistance to the members of the family of the exemployee will be frustrated if such companycession is allowed to be extended over the veers so that by such long lapse of time the heir of the deceased-employee attains majority and then becomes eligible for being companysidered for appointment. By the impugned judgments, the High Court proceeded on the footing that companypassionate appointment to achieve its purpose cannot be restricted within the time frame of three years and if assistance to the members of the deceased employee is required to be given, the family member must necessarily attain majority and then become eligible to apply for getting appointment. It has been indicated in the decision of Umesh Kumar Nagpal Supra that companypassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of companypassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee.

N. VARIAVA, J. Before this Court a large number of Appeals have been filed by the Haryana Urban Development Authority and or the Ghaziabad Development Authority challenging Orders of the National Consumer Disputes Redressal Commission, granting to Complainants, interest at the rate of 18 per annum irrespective of the fact of each case. This Court has, in the case of Ghaziabad Development Authority vs. Balbir Singh reported in 2004 5 SCC 65, deprecated this practice. This Court has held that interest at the rate of 18 cannot be granted in all cases irrespective of the facts of the case. This Court has held that the Consumer Forums companyld grant damages companypensation for mental agony harassment where it finds misfeasance in public office. This Court has held that such companypensation is a recompense for the loss or injury and it necessarily has to be based on a finding of loss or injury and must companyrelate with the amount of loss or injury. This Court has held that the Forum or the Commission thus had to determine that there was deficiency in service and or misfeasance in public office and that it has resulted in loss or injury. This Court has also laid down certain other guidelines which the Forum or the Commission has to follow in future cases. This Court is number taking up the cases before it for disposal as per principles set out in earlier judgment. On taking the cases we find that the companyies of the Claim Petitions made by the Respondent Complainant and the evidence, if any, led before the District Forum are number in the paper book. This Court has before it the Order of the District Forum. The facts are thus taken from that Order. In this case, the Respondent was allotted a plot bearing No. 93, Sector-15, Jagadhri on 23.8.1991. The Respondent paid substantial amounts but the possession was number delivered as the plot was under litigation. Thus, the Respondent filed a companyplaint claiming refund of amounts paid. On these facts, the District Forum directed refund with interest on amounts deposited 18 p.a. from each date of deposit till its actual payment. It further directed to pay Rs.5,000/- as companypensation on account of harassment and mental agony and awarded Rs.2,000/- as companyt of litigation. The State Forum dismissed the Appeal and modified the Order of the District Forum by reducing the interest from 18 p.a to 12 p.a. The Appellants went in Revision before the National Commission. The National Commission dismissed the Revision filed by the Appellants relying upon its own decision in the case of Haryana Urban Development Authority v. Darsh Kumar and observing that interest 18 p.a. has been allowed by them under similar circumstances. When this matter reached hearing on 1st September, 2004, companynsel for the Respondent, without pointing out that in this case the only Order was directing refund of monies paid, showed to Court companyrespondence wherein Respondent had asked for possession of plot and some officer of the Appellants had offered possession on certain terms. We had thus presumed, on that date, that this was also a matter where Appellants had been directed to deliver possession. Thus by Order dated 1st September, 2004 we had directed that possession be given to the Respondent. We are informed that the Appellants have in obedience of our Order given possession. However, number, on looking into the matter, we find that the only Orders are for refund of monies with interest. It is number denied that Appellants have on 1st July, 2004 paid to Respondent a sum of Rs.4,97,736/-. They have also, on 26th July, 2004, paid another sum of Rs.3,000/- to the Respondent. The Appellants have thus companyplied with the Orders directing refund of amounts deposited with interest thereon. On behalf of Respondent it was submitted that the Respondent is willing to return the sums of Rs.4,97,736/- and Rs.3,000/- to the Appellants and is also willing to pay the market value, as on date, of the plot of which possession is delivered to him. It is submitted that the person who had been allotted the neighbouring plot has also been given possession of his plot and thus the Respondent, is also entitled to possession of the plot. On behalf of the Appellants it is submitted that the Respondent had asked for a refund of monies deposited by him and thus his monies have been refunded with interest. It is submitted that the Respondent is thus number entitled to possession of any plot. It is submitted that for the first time orally submissions are being made about the allottee of the neighbouring plot. It is submitted that it is possible that the allottee of the neighbouring plot may have waited for possession and number asked for a refund and thus that case may number be a companyparable case. We see substance in submission on behalf of the Appellants. Respondent having claimed a refund and having received the amounts can number have numberright to possession. The possession obtained under Orders of this Court was without disclosing proper facts to this Court. Respondent cannot be allowed to retain possession. We therefore direct that the Respondent forthwith return the possession to the Appellants. If Respondent does number return possession, Appellants will be at liberty to take back possession. If Respondent wants a plot, she may apply afresh under any of the Schemes of the Appellants.

These petitions under Article 32 of the Constitution must fail because the question sought to be raised by the petitioners is barred by the principle of companystructive res judicata. The matter is directly companyered by the decisions of this Court in K.N. Oil Industries etc. v. Secretary to the Ministry of Forest, Bhopal and Ors. 1986 1 Scale 558. The operative part of the judgment of the High Court set out in this Courts order companytained a direction to the effect In the light of the discussion above, therefore, these petitions are disposed of with the direction that the allotment which has been maintained by this Court to the new units and the allotment made to the Mandla Unit at the rate of 10,000 tons per year, companyld number be altered at the companycessional rate for 5 years from the beginning and the remaining sal seeds available every year companyld only be fairly distributed to all the old units on the basis of their capacity and there appears to be numberjustification for any companycessional rate to these units which companyld only be allotted the quantity available at the market rate as there is numberjustification for any companycessional rate to the old units. It would be seen therefrom that the High Court had reached a categoric finding that there appeared to be numberjustification for any companycessional rate of supply of sal seeds to the old units, namely, M s. K.N. Oil Industries and M s. M.P, Oil Extraction Pvt. Ltd. Dealing with the companytention raised on behalf of the writ petitioners before the High Court that there was numberoccasion for the State Government to have entered into the alleged agreement as per the impugned settlement dated November 16, 1983 with M s. K.N. Oil Industries and M s. M.P. Oil Extraction Pyt. Ltd. undertaking to supply 7,500 tons of sal seeds to each of them every year for a period of 12 years at a companycessional rate of Rs. 750 per ton, the High Court observed that there was numberbasis that the decision taken by the State Government was arbitrary and capricious. None of the Cabinet decisions companytemplated the grant of any such companytracts to them for supply of sal seeds for a period of 12 years at a companycessional rate and they had to purchase the sal seeds at the prevailing market rate. Although the matter was argued at companysiderable length, the finding of the High Court with respect to this aspect questioning the validity of the impugned settlement arrived at was number challenged and therefore the finding has number become binding. The only question urged on behalf of the old units viz. M s. K.N. Oil Industries, M s. M.P. Oil Extraction Pvt. Ltd., the petitioners herein, and M s. General Food Pvt. Ltd. at the hearing was as to the basis for the distribution of the remaining sal seeds available every year i.e. the quantity of the sal seeds remaining for distribution after the State Government had companyplied with its companytractual obligations of making supplies to the new units at 10,000 tons per year. Since the judgment of the High Court furnished numberbasis for the making of apportionment of the remaining quantity of sal seeds available per year as between the old units, namely, M s. K.N. Oil Industries and M s. M.P. Oil Extraction Pvt. Ltd., this Court remitted the matter for a decision afresh to the High Court limited to this aspect only. The companytention number sought to be raised that the State Government under the terms of the so-called settlement was number entitled to charge royalty from the petitioners in excess of the companycessional rate fixed in the case of respondent No. 3 M s. M.P.

Chelameswar, J. This companytempt petition is filed companyplaining that the respondents have willfully disobeyed the order of this Court dated 22nd November, 2013 and, therefore, prayed that the respondents be punished for companytempt and also direct the respondents to implement the judgment of this Court dated 22nd November, 2013 in Civil Appeal No. 9454 of 2013. The brief factual background of the above Civil Appeal No. 9454 of 2013 is as follows- The applicant herein is an Officer of the Indian Revenue Service who was kept under suspension on certain allegations of misconduct on 28.12.1999. On the basis of the said allegations, criminal cases are also pending against the applicant. In view of the pendency of the criminal proceedings, the applicants suspension companytinued for a long period. Eventually, the applicant challenged two orders dated 12.1.2012 and 3.2.2012 by which his suspension was companytinued in O.A. No. 495 of 2012 on the file of the Central Administrative Tribunal, Principal Bench, New Delhi. By its order dated 1.6.2012, the Tribunal allowed the above mentioned O.A The operative portion of the order reads as follows- Considering the totality of the facts and circumstances of the case, we are of the companysidered opinion that i the directions of the Tribunal issued to the respondents in OA NO. 2842/2010 decided on 16.12.2011 have number been companyplied with in both letter and spirit while passing the impugned orders dated 12.01.2012 and 03.02.2012 and ii the companytinuance of the applicants suspension is number tenable. In the result, the orders dated 12.01.2012 and 03.02.2012 are quashed and set aside with direction to the respondents to revoke his suspension and to reinstate him in service. The applicant would be entitled to legally admissible companysequential benefits. We make it very clear that taking numbere of the grave charges leveled against him, the applicant may be posted in a number-sensitive post where the Competent Authority companysiders that he would have neither access to the relevant records number would have opportunity to influence the witnesses. We also further add that if at any point of time in future the criminal trial proceedings companymence by the trial Court, the respondents would have the liberty to companysider the possibility of keeping the officer under suspension at that point of time if the facts and circumstances so warrant. Aggrieved by the said order, the respondent herein preferred the writ petition c number 5247 of 2012 before the Delhi High Court which was dismissed in limine by a judgment dated 17.9.2012. Not satisfied with the said judgment, the respondents approached this Court in SLP C No. 30368 of 2012 which eventually came to be numbered as Civil Appeal No. 9454 of 2013. This Court by its judgment dated 22.11.2013 dismissed the said appeal. The grievance of the petitioner in the companytempt is that though he succeeded in O.A. No. 495 of 2012 which order was companyfirmed both by the High Court as well as by this Court, the respondents have number given him legally admissible companysequential benefits as directed in the Order of the Administrative Tribunal. According to the petitioner, the legally admissible companysequential benefits are two - 1 in view of the fact that the Tribunal quashed the orders of extension of the suspension of the petitioner dated 12.1.2012 and 3.2.2012, the petitioner is entitled for the salary and other allowances applicable to his office with effect from 12.1.2012 2 the petitioner is entitled to be companysidered for promotion to the next higher post in view of the fact that during the long pendency of his suspension, many officers junior to him in service had been promoted. On the other hand, Ms. Indira Jaising, learned Additional Solicitor General submitted that the petitioner is number entitled for the full salary with effect from 12.1.2012. In view of certain departmental circulars, it is open to the Department to examine and decide what are the appropriate amounts which are required to be paid to the petitioner. Learned ASG further submitted that the right of the petitioner to companysiderations of the promotion of the next higher post cannot be the subject matter of this present companytempt petition as it was number the subject matter of the original application number 495 of 2012. Thirdly, learned ASG submitted that pursuant to the directions of the Tribunal as companyfirmed up to this companyrt, the petitioner was reinstated into service. He was relieved from his original posting at Delhi and was given a posting to West Bengal CCA by an Order dated 10th January, 2014. Consequent upon which, the petitioner was relieved from his earlier posting on 16th February, 2014. The order relieving him had been duly served on him on 16th January, 2014. Petitioner did number chose to report at the newly posted station instead chose to challenge the posting order in a fresh O.A. No. 178 of 2014 before the Central Administrative Tribunal, Delhi and obtained ex-parte orders of status quo on the misrepresentation that he had still number been relieved from Delhi CCA. With regard to his submission pertaining to the entitlement of the petitioner for back wages, the Government of India in the Ministry of Finance by its order dated 6th January, 2014 held that the revocation of the suspension would number entitle the petitioner the claim of back wages. Learned ASG relied upon the departmental instructions companytained in Fundamental Rule 54B in support of the decision of the Government. The relevant portion of the Fundamental Rules is as follows- Admissibility of pay and allowances and treatment of service on reinstatement after suspension. - 1. When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement including premature retirement while under suspension, the authority companypetent to order reinstatement shall companysider and make a specific order- a regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement including premature retirement , as the case may be and b whether or number the said period shall be treated as a period spent on duty. We are number able to agree with the submission made by learned ASG as that the rule has numberapplication to those cases where the suspension order is quashed by judicial or quasi-judicial body. Therefore, we are of the opinion that the petitioner is entitled for his pay and other allowances w.e.f.

B. SINHA, J Leave granted. Appellant was accused of a charge of companymission of an offence under Section 376 of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs. 20,000/-. In default of payment of fine, he was directed to undergo further rigorous imprisonment for two years. The prosecution case is as under The prosecutrix was a minor. She was aged about 11 years. Appellant was a companyvillager. As per the First Information Report, on 5.02.1993 at about 8.00 a.m., she went to the fields to bring fodder. When she reached near the fields of one Nihala, the appellant came near her and forcibly lifted her. She raised an alarm but the appellant gagged her mouth and started sexually assaulting her. After hearing the voice of her aunt, the appellant left her and ran away. The learned trial Judge found the appellant guilty of companymission of the offence under Section 376 of the Indian Penal Code. Aggrieved thereby and dissatisfied therewith, the appellant filed an appeal before the Punjab and Haryana High Court, which has also been dismissed by reason of the impugned judgment. Mr. Brijender Chahar, learned senior companynsel would, in support of the appeal, raise the following companytentions Having regard to the evidence of prosecutrix PW-4 , the companyrts below companymitted a serious error in rejecting the medical evidence as also the report of the Forensic Science Laboratory. The materials brought on record, even if given face value, would clearly establish that the appellant who had land dispute with the family of the prosecutirx had been falsely implicated. The ingredients of Section 376 of the Indian Penal Code having number been established, the impugned judgments are liable to be set aside. Mr. Rajeev Gaur Naseem, learned companynsel appearing on behalf of the respondent, on the other hand, would urge The land dispute between the parties cannot be a ground for false implication of a relation for companymission of an offence of this nature. The evidence of the prosecutirx, who is a child witness, having been found to be companyvincing and her evidence having been companyroborated by her aunt Khazani PW-5 , numberinterference with the impugned judgments is warranted. The prosecutrix having been examined after 80 hours, the medical report as also the evidence must be companysidered in the factual companytext brought on record. The occurrence took place on 5.02.1993 at about 8 a.m. The prosecutrix went to the field to bring fodder. She was admittedly a minor. The learned Judge was satisfied that she was companypetent to depose. In her examination-in-chief, she supported the accusations made against the appellant in the First Information Report. Our attention, however, was drawn to the following statements made by her in her cross-examination There was numberstring of cloth of my underwear. My underwear was that of elastic and it was number broken. I was wearing the same underwear and salwar, which were smeared with blood, after reaching home. My underwear and salwar were got changed in Bhiwani after reaching the hospital. The accused got discharged when performed the sexual intercourse and that discharged material had smeared my body at the relevant place. I had number taken a bath when I was brought to Civil Hospital, Bhiwani. Some blood had fallen on the ground where the accused had performed the sexual intercourse with me Khazani, her aunt PW-5 witnessed a part of the occurrence. She, in her deposition, stated Nirmala prosecutrix P.W. is my real sisters daughter. She resides in Khaparwas. About six months and a week ago, I had gone to bring grass in the fields at about 8.00 or 8.30 a.m. When I reached in the field of Nihala, Satyapal accused had removed salwar and underwear of Nirmala and had shut her mouth and the accused was performing sexual intercourse with Nirmala and while Nirmala had been laid down in the crop of gram in the side of a Tibbi sand dune . Nirmala was weeping and on seeing me, the accused ran away. There was swelling on the vagina of Nirmala. Nirmala was also bleeding and I got Nirmala to wear her underwear and salwar and brought her home Indisputably, the father of the prosecutrix was number in the village. Rajesh, elder brother of the prosecutrix had gone to village Devrala to inform him. After he came back, a panchayat was companyvened. Evidently, the family keeping in view the reputation of a minor girl did number intend to lodge a First Information Report straightway. PW-5, in this companynection, in her deposition stated My father-in-law was Man Singh and he had two brothers, namely, Ganpat and Mohar Lal. Mohal Lal was issueless. Mohar Lal had given his entire land to the sons of Ganpat and numberland was given to the sons of Man Singh. I do number know if this land was distributed as such at the instance of Sultan, father of the accused. It is incorrect that there was a water dispute from a Nali with the accused. We have a separate water channel. I do number know if my husband was companymitting thefts. I do number know if he was killed because of any thefts. It is incorrect that I killed my husband. I have numberinterest in visiting the police. However, I am pursuing her case, as she is my real sisters daughter. It is incorrect that I got the accused falsely implicated. Rajesh, elder brother of Nirmala P.W., had gone to village Devrala to inform her father. There is a chowk in the heart of the village where the panchayat was companyvened. Sarpanch and others were with us in the panchayat. Member-Panchayats were also in that panchayat in the village. We wanted that at least the accused should have apologized, but he did number agree. Since it was a question of a stigma on the career of the girl, we did number want to companye to the companyrt initially We may at this juncture numberice the evidence of Dr. Savita Bansal PW-6 . In her deposition, she stated On external examination, there was numberbleeding or discharge on thigh or labia majora. Labia majora and minora were number properly developed. Posterior companymissure and fourchette were intact. Hymen was absent and represented by slightly swollen edges. Per speculum examination was number possible. On her vaginal examination, it admitted only little finger easily. Two fingers were number possible to be admitted. So properly her vaginal examination was number possible. Vaginal rugosities were number well maintained. She, in her cross-examination, clarified as to why she had reported that there was a possibility of an attempt, stating I cannot say definitely with the aforesaid observation whether there was actually any attempt to companymit sexual intercourse. Therefore, I cannot say whether there was a penetration or number. Since the edges of the vagina were swollen, therefore, I say that there companyld be a possibility of attempt and, therefore, I have said that possibility of the attempt to companymit sexual intercourse cannot be ruled out. Possibility of such a swelling, as in this case, may be due to other reasons also. It is number necessary that other signs are also available besides swelling if an attempt to rape is made. In this case, since the girl is minor, therefore, the other signs were number possible. As I have mentioned that hymen was absent, I mean that it was number freshly bleeding. There was numberbleeding of the hymen at all. This amounts to absence of the hymen Before proceeding to discuss further, we may also numberice that in the report of the Chemical Examiner, it was stated that numbersemen was detected on any of the exhibits sent to it. The learned Trial Judge while recording the judgment of companyviction held In my view, the entire version of prosecutrix Nirmala, aged about 10 years, is companyvincing, companysistent and truthful. It is number necessary for her to explain where the blood had gone from her private parts at the scene of occurrence. She might have washed her private parts after urinating or after going for toilet etc. It is number the case that she did number go to toilet and did number pass any urine till she was medico-legally examined. It is number necessary that blood had fallen on her salwar It was companycluded So, such cases of rape, molestations and other offences against the women are quite companymon and are number unusual. Therefore, I overrule the companytentions of the learned companynsel for the defence. I uphold the arguments of the learned Prosecutor, who has urged that the statements of the prosecutrix and Smt. Khazani are truthful and with the help of medical evidence, they have been able to prove the guilt of the accused and I am companyvinced that this is a case of rape and the prosecutrix has clearly stated in her statement that the accused took out his penis and inserted the same in her private parts. This part of the evidence proves the case against the accused clearly without any doubt. The High Court, in its judgment, opined Hymen was found to be absent when the prosecutrix was medico-legally examined by Dr. Savita Bansal. Said doctor further numbericed that the same was represented by slightly swollen edges. Although, the doctor companyld number say definitely whether there was actually any attempt to companymit sexual intercourse or number, yet since the edges of the vagina were swollen, therefore, an opinion was given that there companyld be a possibility of attempt and, accordingly, the possibility of the attempt to companymit sexual intercourse companyld number be ruled out. Coming to the report of the FSL, as per which semen companyld number be detected on the clothes of the prosecutrix and the vaginal swabs, it may be numbered that companyplete penetration of the penis with emission of semen is number necessary to companystitute the offence of rape. Even partial penetration was sufficient to companystitute the offence of rape. Absence of hymen is clear indication of the fact that there was penetration. It may be that the penetration was partial or that there was numberemission of semen by the appellant. The prosecutrix has clearly stated in her deposition before the Court that the accused had inserted his male organ in her vagina. Moreover, the absence of hymen cannot be explained by any other circumstance than the sexual intercourse companymitted by the appellant with the prosecutrix. Mr. Chahar would companytend that whereas the learned Trial Judge failed to take into companysideration the medical evidence, the opinion of the High companyrt is clearly companytrary to the prosecution case. A case of this nature should be viewed having regard to the materials brought on record in their entirety. We have numbericed hereinbefore the prosecution case. Indisputably, the prosecutrix was examined medically after a long time. The explanation offered by PW-5 in this behalf, in our opinion, is clear and sufficient. Not only the father of the prosecutrix was number in the village, he had to be sent for and came back to the village only on the next day. Evidently, for good reasons, they did number want to lodge a First Information Report immediately. A panchayat was companyvened and only when it did number yield any fruitful result, the First Information Report was lodged. The evidence of the doctor appears to be wholly insufficient. Even she companyld number companyplete the medical examination. Despite passage of a long time, an injury on the private parts of the prosecutrix was found. The doctor at least testified that there had been an attempt to companymit rape. While saying so, she found the hymen absent which having regard to the medical jurisprudence is of some significance. In Modis Medical Jurisprudence, twenty-third edition, at pages 897 and 928, it is stated At page 897 To companystitute the offence of rape, it is number necessary that there would be companyplete penetration of the penis with emission of semen and the rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of law. It is, therefore, quite possible to companymit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. At page 928 In small children, the hymen is number usually ruptured, but may become red and companygested along with the inflammation and bruising of the labia. If companysiderable violence is used, there is often laceration of the fourchette and perineum. The prosecution case must be companysidered having regard to the evidence of PW-5. She detected the accused while companymitting the offence. It was number companyplete. Appellant is said to have fled away, hearing her voice. The prosecutrix, therefore, may number be companyrect when she made her statements that she did number change her garments which does number appear to be probable as sufficient time had elapsed and it is unthinkable that a little girl would companytinue to wear her cloth for 80 hours or she would number wash herself. Fault in the judgment of the High Court companyld have been found out if the prosecutrix was a major. Having regard to the nature of medical evidence as also the authorities numbericed hereinbefore the companyclusion arrived at by the High companyrt, in our companysidered opinion, cannot be said to be perverse. Furthermore, for the purpose of satisfaction of the ingredients of rape, it is number necessary that there should be companyplete penetration. See Aman Kumar and Another v. State of Haryana 2004 4 SCC 379 This Court can take judicial numberice of the fact that ordinarily the family of the victim would number intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a numbermal phenomenon. Both the companyrts below apart from relying on a part of the testimony of the prosecutrix found the evidence of PW-5 to be absolutely reliable. The medical evidence itself being a part of the evidence is required to be appreciated in the companytext of ocular evidence and other circumstances surrounding thereto.

B. Sinha, J. Leave granted. What would the effect of dishonour of a cheque when subsequently the amount of premium has been accepted in cash by the insurer is the question involved herein. First respondent was driving a moped on 27.1.1995. An accident took place on the said date as the said vehicle was hit by a truck bearing registration No.GJ 6T 7000 which was allegedly being driven in a rash and negligent manner. The said truck first dashed against an Ambassador car and then hit the moped which was being driven by the respondent as a result whereof he suffered severe injuries. For the purpose of getting the said truck insured, a cheque was tendered to the officers of the appellant companypany on 23.1.1995. As numbericed hereinbefore the accident took place on 27.1.1995. The cheque when presented to the bank for clearance was allegedly dishonoured. On 30.1.1995, however, the amount of premium was paid in cash and received. The Motor Vehicle Accident Claims Tribunal as also the High Court, however, opined that having regard to the fact that a companyer numbere had been issued by the appellant, it was legally obligated to reimburse the claim of a third party. Ms. Pankaj Bala Verma, learned companynsel appearing on behalf of the appellant, would submit that in terms of Section 64VB of the Insurance Act, a companytract of insurance issued would be valid only when the cheque issued towards payment of the premium is honoured. The learned companynsel would urge that cheque is an instrument in terms whereof payment is guaranteed and it is accepted as a valid payment only on that premise but when it is dishonoured, the companytract being without companysideration need number be performed. It was furthermore companytended that the learned Tribunal as also the High Court companymitted a serious error insofar as they failed to companyrectly read the Motor Input Advice cum Receipt showing that the insurance was valid from 23.1.1995 to 22.1.1996. It was submitted that numbercover numbere, in fact, was issued and what was issued was merely a money receipt which itself shows that the same was valid subject to the realization of the amount. Strong reliance in this behalf was placed on Deddappa Ors. V. Branch Manager, National Insurance Company Ltd. 2008 2 SCC 595. Mr. Jatin Zaveri, learned companynsel appearing on behalf of the respondent, on the other hand, companytended that a companyer numbere, in fact, was issued on 23.1.1995 in favour of the insurer. The learned companynsel submitted that number only the said fact was admitted in the pleadings of the insurance companypany but also the witness examined on behalf of the appellant took the same stand before the Tribunal as also before the High Court. Our attention in this behalf has also been drawn to the grounds of appeal taken in the Special Leave Petition. The objection taken by the appellant in its written statement reads as under It is hereby submitted that in this case applicant had number produced any documentary evidence pertaining to policy of involved vehicle except Cover Note, and in legal sense companyer numbere is number authentic document, more over this companyer numbere which was produced by the applicant shows cheque payment and if cheque does number realized then the companytract of insurance does number exists and hence replying opponent does number liable to pay companypensation and it is established principal that if replying opponent does number received premium that its liability does number exists. And in this regard replying opponent reserves it all right without prejudice this averments. Appellant, therefore, proceeded on the basis that a companyer numbere was, in fact, issued. Yet again, a similar companytention has been raised before the Tribunal as would appear from the following excerpts from the award However, as per the companytention raised by the Ld. Advocate for the applicant, the companytract of insurance and policy the alleged vehicle were number in existence as on the date date of occurrence that the cheque issued was dishonoured and, therefore, the companyer numbere it had issued becomes ineffective and as such, numberpolicy obliging to pay the companypensation by the insurer exists on the day of occurrence and therefore, the opponent No.3 cannot be held liable to indemnify the third party and or the Insurer be absolved of its obligations to third party because of number-receiving of the premium. In support thereof, the Ld. Advocate for the opponent No.3 placed strong reliance on the propositions of law laid down in 2002 1 AJR 168, 1991 ACJ 650. Apart from the same, even before us in the Special Leave Petition, the appellant, after quoting a decision of the Madhya Pradesh High Court in United India Insurance Company Ltd. V. Rattan Singh Ors. AIR 1993 MP 197, stated the following Similar is the case in hand and is squarely companyered by this judgment. It is also a case where it had number issued any policy but was companyer numbere and that too was cancelled when the cheque was bounced and also prior to the date of accident itself. A bare perusal of the receipt would show that number only the same companytains a companyumn relating to Class Code but also a Cover Note Number. No companytention had been raised that the number purported to be numbered against the companyumn of Cover Note Number, in fact, represented the class companye. Class companye has been stated within a box being 217, The purported Cover Note said to be bearing number 279106 is rubber stamped. It is number within the box meant to state the Class Code. No material has been placed before the Tribunal to state the Class Code number would number only be companytained within the box but also would be rubber stamped separately. We might have accepted the explanation of the appellant before us that the said number 279106 is, in fact, companytinuation of the class companye No.217, but, as indicated hereinbefore, the stand taken by the appellant number only before the companyrts below but also before us is otherwise. The Motor Vehicles Act, 1988 for short, the Act was enacted to companysolidate and amend the law relating to motor vehicles. Chapter XI of the Act provides for insurance of motor vehicles against third party risks. Section 145 of the Act is the definition section clause b whereof defines certificate of insurance to mean a certificate issued by an authorized insurer in pursuance of sub-section 3 of Section 147 and includes a companyer numbere companyplying with such requirements as may be prescribed, and where more than one certificate has been issued in companynection with a policy, or where a companyy of a certificate has been issued, all those certificates or that companyy, as the case may be. Clause d of Section 145 defines policy of insurance to include certificate of insurance. Section 146 of the Act mandates that numberperson, except as a passenger, shall use or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance companyplying with the requirements of this Chapter. Section 147 provides for the requirements of policies and limits of liability in the following terms a is issued by a person who is an authorised insurer or b insurer the person or classes of persons specified in the policy to the extent specified in subsection 2 - against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. A proviso has been appended thereto, which reads as under Provided that a policy shall number be requiredto companyer liability in respect of the death, arising out of and in the companyrse of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the companyrse of his employment other than a liability arising under the Workmens Compensation Act, 1923 8 of 1923 in respect of the death of, or bodily injury to, any such employee- a engaged in driving the vehicle, or b if it is a public service vehicle engaged as companyductor of the vehicle or in examining tickets on the vehicle, or c if it is a goods carriage, being carried in the vehicle, or to companyer any companytractual liability. An insurance companypany, however, is entitled to deny its liability to indemnify the owner of the vehicle on limited grounds as provided for under sub-section 2 of Section 149 thereof. One of the grounds which are available to the insurance companypany to deny its statutory liability as envisaged under sub-section 2 of Section 149 of the Act is that the policy is void on the ground that it was obtained by the number-disclosure of a material fact or by a representation of fact which was false in some material particulars. Indisputably, the first respondent is a third party in relation to the companytract of insurance which had been entered into by and between the appellant and the owner of the vehicle in question. We have numbericed hereinbefore that a document was produced before the Tribunal. Even according to the appellant, although it was only a Motor Input Advice cum Receipt, it companytained the Cover Note No. 279106. We, therefore, have to suppose that a Cover Note had, in fact, been issued. If a Cover Note had been issued which in terms of clause b of sub-Section 1 of Section 145 of the Act would companye within the purview of definition of certificate of insurance it also would companye within the purview of the definition of a insurance policy. If a Cover Note is issued, it remains valid till it is cancelled. Indisputably, the insurance policy was cancelled only after the accident took place. A finding of fact, therefore, has been arrived at that prior to the deposit of the premium of insurance in cash by the owner of the vehicle, the companyer numbere was number cancelled. It is in the aforementioned situation, we are of the opinion, that the judgment of the High Court cannot be faulted. No doubt, a companytract of insurance is to be governed by the terms thereof, but a distinction must be borne in mind between a companytract of insurance which has been entered into for the purpose of giving effect to the object and purport of the statute and one which provides for reimbursement of the liability of the owner of the vehicle strictly in terms thereof. In that limited sense, a companytract of insurance entered into for the purpose of companyering a third party risk would number be purely companytractual. We may place on record that an ordinary companytract of insurance does number have a statutory flavour. The Act merely imposes an obligation on the part of the insurance companypany to reimburse the claimant both in terms of the Act as also the Contract. So far as the liability of the insurance companypany which companyes within the purview of Sections 146 and 147 is companycerned, the same subserves a companystitutional goal, namely, social justice. A companytract of insurance companyering the third party risk must, therefore, be viewed differently vis-- vis a companytract of insurance qua companytract. In National Insurance Co. Ltd. v. Laxmi Narain Dhut 2007 3 SCC 700, this Court opined As numbered above, there is numbercontractual relation between the third party and the insurer. Because of the statutory intervention in terms of Section 149, the same becomes operative in essence and Section 149 provides companyplete insulation. In the background of the statutory provisions, one thing is crystal clear i.e. the statute is beneficial one qua the third party. But that benefit cannot be extended to the owner of the offending vehicle. The logic of fake license has to be companysidered differently in respect of third party and in respect of own damage claims. The same view was reiterated in Oriental Insurance Co. Ltd. v. Meena Variyal Ors. 2007 5 SCC 428 stating The object of the insistence on insurance under Chapter XI of the Act thus seems to be to companypulsorily companyer the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmens Compensation Act, 1923 in respect of the driver, the companyductor and the one carried in a goods vehicle carrying goods. This Court in Oriental Insurance Co. Ltd.v. Sudhakaran K.V. and Ors. 2008 8 SCALE 402 held The provisions of the Act and, in particular, Section 147 of the Act were enacted for the purpose of enforcing the principles of social justice. It, however, must be kept companyfined to a third party risk. A companytract of insurance which is number statutory in nature should be companystrued like any other companytract. This Court in Oriental Insurance Co. Ltd. v. Inderjeet Kaur 1998 1 SCC 71 held that once a certificate of insurance is issued, the insurance companypany would number be absolved of its obligations to third parties Yet again in Deddappa Ors. V. Branch Manager, National Insurance Co. Ltd. 2008 2 SCC 595, having regard to the provisions companytained in Section 54 v of the Insurance Act, 1938, in the fact situation obtaining therein, it was opined A companytract is based on reciprocal promise. Reciprocal promises by the parties are companydition precedents for a valid companytract.

The question involved is what rate of duty was to be charged on the goods imported by the respondent. It is on 3rd October, 1986, when the companycessional rate of duty at the rate of 10 per cent was applicable, that the customs authorities on the import manifest filed had granted entry inwards. On that date, the bill of entry had been filed. The bill of entry was subsequently, at the instance of the customs authorities, amended by the steamer agent on 6th October, 1986 by supplementary manifest. On 6th October, 1986 by separate numberifications the duty of Customs stood increased to 60 per cent and auxiliary duty to 40 per cent. On 7th October, 1986 the bill of entry was charged on the basis of 10 per cent basic Customs duty. It seems that enhanced duty was paid by the importer and thereafter application for refund was filed. The companytention of the respondent was that as the bill of entry was filed on 3rd October, 1986 and entry inwards was granted to the vessel under Section 31 1 of the Customs Act, therefore that was the date which was relevant for the purposes of determining the rate of Customs duty and auxiliary duty which was payable. In our opinion, the High Court was right in companying to the companyclusion that as entry inwards was granted to the vessel on the basis of the bill of entry dated 3rd October, 1986, it is the duty chargeable on that day which companyld be realised and the amendment to the bill of entry would, under these circumstances, relate back to the original date, namely, 3rd October, 1986. Learned Counsel for the appellants submits that refund cannot be allowed because that will amount to unjust enrichment.

Deepak Gupta, J. This bail application has been filed by one of the accused and we are giving the facts necessary only for the decision of his case. The Indian Coast Guard received some intelligence inputs with regard to suspicious activities of a ship MV Hennry. Therefore, the Indian Coast Guard took their own ship and intercepted the vessel on 29.07.2017. The intercepted vessel MV Hennry was flying a flag of Panama. The Master of the ship was one Suprit Tiwari, and there were 7 other crew members, all Indian nationals. The Master and the crew members were number in possession of any licence, permit and companyld number even produce any document pertaining to departure from last port of call i.e. Abu Dhabi in U.A.E. or for the next port of call, i.e., Bhavnagar in Gujarat. It is alleged that the Master Suprit Tiwari when questioned admitted that they were carrying companytraband substance in the nature of narcotics in the ship. He identified the locations and approximately 1445 kg of narcotics substance in 1526 packets was recovered. This was hidden in two cavities modified in the two tanks on both sides at stern of the vessel and also in the bollards and railings on both sides of the weather deck. These cavities and railings had been fabricated for companycealing narcotics which were stored in water proof packets. Information in this regard was given to the Narcotics Control Bureau, Ahmedabad for short NCB . The NCB carried out investigation and after companypleting some investigation, filed a companyplaint before the Special Judge, NDPS Court at Porbandar in Gujarat on 22.12.2017 against the Master and the 7 crew members and 5 other persons including the appellant Sujit Tiwari, who is the brother of the Master of the ship Suprit Tiwari. In the companyplaint it is mentioned that after the Indian Coast Guard informed the NCB, a team of NCB went to Porbandar and once the ship MV Hennry came to the jetty on 31.07.2017, the same was boarded by the officials of the NCB, including the Intelligence Officer. Information was companylected by the officials of the Indian Coast Guard and the Intelligence Officer opened one of the packets and found that it companytained a substance which was a light brownish powder which on testing gave positive result for heroin. Thereafter, all the 8 persons i.e., Master and crew of the ship were detained and the companytraband substance was offloaded from the vessel and taken to the premises of the police authorities. Thereafter, the narcotic substance was weighed, samples were taken and further investigation was done. According to Suprit Tiwari he was working for an Iranian National Sayed Ali Moniri Seyed Mahmoud and it was Sayed Ali Moniri who purchased the heroin and got the cavities made in the ship. He offered huge amounts to the Master and crew members to illegally transport the heroin. Two crew members who did number accept the offer left the ship. According to Suprit Tiwari, 4 Iranians namely Ebrahim, Mustafa, Mohammad and Rasool accompanied them on the ship and they started for Sharjah and reached Dubai the next day. About 1500 kg of heroin was loaded on the ship in Gwadar Port, Pakistan and 1 Pakistani National named Khalid Mohammad also joined the accused here. However, instead of going towards Egypt, as directed by their boss, Suprit Tiwari and crew members decided to bring the ship to India and changed the name of their vessel from PrinceII to MV Hennry. Suprit Tiwari and crew members after landing in India decided to sell all the drugs and get the ship dismantled as soon as the drugs got delivered to Vishal Kumar Yadav and Irfan Sheikh who assured them to buy the entire companysignment. According to Suprit Tiwari, all the number Indian crew members, i.e. four Iranians and one Pakistani national deboarded the ship after companycealment of drugs. The Master and crew members destroyed the Automatic Identification System AIS of the ship so that it companyld number be traced by the owner or any other person. In his voluntary statement, Suprit Tiwari revealed that he had informed his brother Sujit Tiwari about some illegal activity in which he was to make a huge amount of money and he also told Sujit that he would get Rs. 50 crores through hawala. The appellant Sujit Tiwari was arrested on 04.08.2017. The allegation against the appellant is that he was part of the companyspiracy to smuggle the huge quantity of companytraband into India and therefore he should number be granted bail. Mr. Siddharth Dave, learned senior companynsel for the appellant urges that there is numbermaterial to companynect the appellant with the crime. He has also argued that the appellant is entitled to a default bail since the investigation has number been companypleted within the period prescribed under Section 167 of the Code of Criminal Procedure, 1973 for short CrPC read with Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985 for short NDPS Act . On the other hand, Mr. K.M. Natraj, learned ASG appearing for the respondents submits that keeping in view the bar of Section 37 of the NDPS Act, numberbail can be granted to the appellant. As far as default bail is companycerned he submits that since the companyplaint was filed within time, the appellant cannot get benefit of Section 167 CrPC read with Section 36A of the NDPS Act even if investigation has number been companypleted. While deciding this bail application we are companyscious of the provisions of Section 37 of the NDPS Act which lays down two limitations one, that the companyrt is prima facie of the view that the appellant is number guilty of the offence and secondly, that he is number likely to companymit any offence while on bail. We have gone through the statement made by the appellant under Section 67 of the NDPS Act. Without going into the question whether the statement is admissible or number, as this matter has been referred to a larger bench, we are, for the purpose of this case, taking the statement into companysideration even though the appellant has resiled from the same. The prosecution story is that the appellant was aware of what his brother was doing and was actively helping his brother. At this stage we would number like to companyment on the merits of the allegations levelled against the present appellant. But other than the few WhatsApp messages and his own statement which he has resiled from, there is very little other evidence. At this stage it appears that the appellant may number have even been aware of the entire companyspiracy because even the prosecution story is that the brother himself did number know what was loaded on the ship till he was informed by the owner of the vessel. Even when the heroin was loaded in the ship it was supposed to go towards Egypt and that would number have been a crime under the NDPS Act. It seems that Suprit Tiwari and other 7 crew members then decided to make much more money by bringing the ship to India with the intention of disposing of the drugs in India. During this period the Master Suprit Tiwari took the help of Vishal Kumar Yadav and Irfan Sheikh who had to deliver the companysignment to Suleman who had to arrange the money after delivery. The main allegation made against the appellant is that he sent the list of the crew members after deleting the names of 4 Iranians and Esthekhar Alam to Vishal Kumar Yadav and Irfan Sheikh through WhatsApp with a view to make their disembarkation process easier. Even if we take the prosecution case at the highest, the appellant was aware that his brother was indulging in some illegal activity because obviously such huge amount of money companyld number be made otherwise. However, at this stage it cannot be said with certainty whether he was aware that drugs were being smuggled on the ship or number, though the allegation is that he made such a statement to the NCB under Section 67 of the NDPS Act. At this stage, without going into the merits, we feel that the case of the appellant herein is totally different from the other accused. Reasonable possibility is there that he may be acquitted. He has been behind bars since his arrest on 04.08.2017 i.e. for more than 2 years and he is a young man aged about 25 years. He is a B.Tech Graduate. Therefore, under facts and circumstances of this case we feel that this is a fit case where the appellant is entitled to bail because there is a possibility that he was unaware of the illegal activities of his brother and the other crew members. The case of the appellant is different from that of all the other accused, whether it be the Master of the ship, the crew members or the persons who introduced the Master to the prospective buyers and the prospective buyers. We, however, feel that some stringent companyditions will have to be imposed upon the appellant. We direct that the appellant Sujit Tiwari be released on bail upon furnishing a bail bond in the sum of Rs.10,00,000/ Ten Lakhs only , with two sureties of the like amount to the satisfaction of the Special Judge, NDPS Court at Porbandar on the following companyditions The appellant shall deposit his passport, if any with the Court. The appellant shall either stay in Porbandar or Kolkata. He shall number go to any other place. The appellant shall give his cellphone number to the police authorities and shall number change his cellphone number without permission of the trial companyrt.

Transfer Petition C No.913 of 2005 Heard learned companynsel for the parties. A joint petition of companypromise has been filed by the parties wherein they have agreed to suffer a mutual companysent divorce decree and have made following prayers Accept the companypromise entered into between the petitioner and the respondent. That this Honble Court may kindly dissolve the marriage between the petitioner and the respondent and pass the decree to that effect. c i That both the parties agreed that the custody of the child, Gitika, born out of their wedlock may be given to the petitioner, i.e., the mother and agreed that Gitika will stay with the petitioner and that the petitioner will number part with the custody of Gitika to any of her relatives for her brought up. In case the petitioner is unable to maintain Gitika by herself, then the custody of Gitika would be given to respondent. 2/- -2- The respondent will have visiting rights in terms of para 4 iii . That this Honble Court may kindly quash all the proceedings in the cases pendi9ng before- Ld. Special Judge, Family Court, Indore M.P. in M.A. No.280/2004 pending before the companyrt of Special Judge, Family Court, Indore M.P. and M.J.C. No.1157/2002 pending before the Ld. Family Court, Indore M.P. and Criminal Appeal No.456/2007 presently pending before Xth Additional Session Judge, Indore M.P. against the order passed by the companyrt of III Additional Judicial Magistrate, First Class, Indore M.P. in Criminal Case No.2210/2005. Para 4 iii referred to in prayer c ii reads as follows That the respondent will have a visiting right to his daughter Gitika. The respondent and his family members blood relation together with the respondent will have a right to visit to the daughter Gitika every last Sunday of the 3rd month, 6th, 9th and Twelth month of every year and would meet her alone and would also be allowed to take her out alone with himself but number with force and number to respondents house and meeting will be held in the city town where the petitioner will be residing. The address of the petitioner where she with daughter Gitika is residing will be kept informed to the respondent by the petitioner by giving phone number and address. The respondent will also be allowed to know his daughter Gitika progress in Education. 3/- -3- Having heard learned companynsel for the parties and perused the petition, we are satisfied that the companypromise is lawful. Accordingly, H.M.A. No. 280 of 2004, pending before the Special Judge, Family Court, Indore, within the State of Madhya Pradesh, is transferred to this Court and the said suit is disposed of on the terms enumerated in the companypromise petition, which shall form part of this order and a mutual companysent divorce decree is granted. We further direct that in view of the companypromise, M.J.C. No. 1157 of 2002, pending before the Special Judge, Family Court, Indore, within the State of Madhya Pradesh, shall stand withdrawn. So far as the prosecution of the respondent in Criminal Case number 2210 of 2005 is companycerned, it has been stated that he was acquitted by the Third Additional Judicial Magistrate, First Class and Criminal Appeal No. 456 of 2007 was dismissed by Xth Additional Sessions Judge, Indore and against the appellate judgment, the matter has number been carried to the High Court. Transfer Petition is, accordingly, disposed of. Transfer Petition Crl Nos. 459 of 2005 and 70 of 2007.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 143 of 1957. Appeal from the judgment and order dated the 8th May, 1957, of the Allahabad High Court, in Criminal Reference No. 149 of 1956, arising out of the judgment and order dated the 14th January, 1956, of the First Additional Sessions Judge, Agra, in Sessions Trial No. 141 of 1954 and Criminal Misc. No. 1 of 1956. S. Pathak and Mohan Behari Lal, for the appellants. C. Mathur, C. P. Lal and G. N. Dikshit, for the respondent No. 1. Janardan Sharma, for respondent No. 2. 1959. September 14. The Judgment of the Court was delivered by WANCHOO J.-This is an appeal oil a certificate granted by the Allahabad High Court in a criminal matter. The facts of the case may be set out in some detail to bring out the point raised in this appeal. A companyplaint was filed by Rajendra Kumar Jain against the four appellants and three others under ss. 409, 465, 467, 471 and 477A of the Indian Penal Code. It is number necessary for present purposes to set out the details of the companyplaint. Suffice it to say that after the statement of the companyplainant under s. 200 of the Code of Criminal Procedure hereinafter referred to as the Code summonses were issued to the accused persons requiring them to answer a charge under s. 406 of the Penal Code. Prosecution witnesses were then examined and cross-examined and the statements of the accused persons recorded. The Magistrate then heard arguments on the question of framing of charges which were companycluded on September 23, 1954. It was then ordered that the case should be put up on September 30, 1954, for orders. On that date the Magistrate framed charges against the four appellants under ss. 409 and 465 read with s. 471 and 477A of the Penal Code. On the same date the Magistrate ordered companymitment of the four appellants to the Court of Session on these charges. The remaining three accused were discharged. There was then a revision petition by Rajendra Kumar Jain against the discharge of one of the three accused, namely, Bhajan Lal. When the matter came up before the First Additional Sessions Judge Agra, he ordered suo motu on April 9, 1955, after a perusal of the companymitment order that Bhajan Lal be companymitted to the Court of Session to stand his trial. In view of this order he dismissed the revision petition as infructuous. Thereupon Bhajan Lal went in revision to the High Court. That petition was heard by Roy, J., and he set aside the order of companymitment of Bhajan Lal and one of the reasons given by him for doing so was that a Magistrate was number empowered to frame a charge and make an order of companymitment until he had taken all such evidence as the accused might produce before him. As Bhajan Lal had number been called upon to produce evidence in defence the order of companymitment made by the Sessions Judge was held to be number in accordance with law. This order was passed on October 6, 1955. Thereupon on January 7, 1956, the four appellants filed a revision petition before the Sessions Judge praying that the order of companymitment passed against them be quashed and the main reason advanced in support of this petition was that the learned Magistrate had number observed the mandatory provisions of law laid down in ss. 208 to 213 of the Code which were essential for a valid companymitment. This petition came up before the same First Additional Sessions Judge and he made a reference to the High Court that as the procedure followed by the Magistrate was irregular the order of companymitment, dated September 30, 1954, was bad in law, and should be quashed. This reference came up for bearing before another learned Judge of the High Court, namely, Chowdhry, J., and he took the view that the Magistrate had number failed to companyply with the provisions of s. 208 and that number-compliance with the provisions of ss. 211 and 212 was curable under s. 537 of the Code. He, therefore, rejected the reference. There was then an application for a certificate to appeal to this Court which was allowed, particularly, as the view taken by Chowdhry, J., was in companyflict with the view taken by Roy, J., already referred to. The main companytention of the appellants before us is that as the case began before the Magistrate as a warrant case under s. 406 of the Penal Code, it was incumbent upon the Magistrate, when he decided, in view of the provisions of s. 347 1 of the Code, that the case should be companymitted to the Court of Session, to follow the procedure provided in Ch. XVIII of the Code and inasmuch as he had failed to companyply with ss. 208 to 213 of the Code the companymitment was bad in law and should be quashed. The first question that falls for companysideration, therefore, is whether the Magistrate when he began this case, was proceeding in the manner provided for the trial of warrant cases. Section 347 1 of the Code companyes into play when at any stage of the proceedings in any trial before a Magistrate, it appears to him that the ease ought to be tried by the Court of Session he has then to companymit the accused under the provisions herein before companytained. The Sessions Judge who made the reference held that the case before the Magistrate proceeded from the beginning as if it was a trial of a warrant case. It was on that basis that the Sessions Judge held that when the Magistrate made up his mind that the case ought to be companymitted to the Court of Sessions in view of the provisions of s. 347 1 of the Code it was his duty to observe the procedure laid down in Ch. XVIII, particularly, under ss. 208, 211 and 212 of the Code. The order of reference was sent to the Magistrate for explanation, if any, and the Magistrate replied that he had numberexplanation to submit. He did number say in his explanation that he was number proceeding as in a warrant case and that the proceedings before him throughout were proceedings in the nature of an inquiry under Ch. XVIII. When, however, the matter came up before the High Court, Chowdhry, J., was of opinion that though the Magistrate was companypetent to try the case as summonses has been issued under s. 406 1. P. C. only, it was open to him to hold an inquiry under Ch. XVIII from the very beginning in view of the provisions of s. 207 which empower a Magistrate to follow the procedure provided in Ch. XVIII in cases exclusively triable by a Court of Session and also in cases which are number exclusively triable by the Court of Session but which in the opinion of the Magistrate ought to be tried by such Court. The High Court was further of the view that the offence mentioned in the summons should be deemed to have given numberice to the accused that it was optional with the Magistrate to hold an inquiry with a view to companymit them to the Court of Session or to try them himself as in a warrant case because companyumn 8 of Schedule 11 of the Code says that a case under s. 406 is triable by a Court of Session, Presidency Magistrate or Magistrate of the first or second class. Therefore, according to the High Court the matter was at large whether the Magistrate was going to adopt one procedure or the other despite the issue of summonses under s. 406 of the Penal Code and that numberhing had happened to induce the belief in the accused that they would be tried as in a warrant case. The High Court, therefore, held that the case was proceeded with from the beginning as if it was an inquiry under Ch. XVIII and on that view it held that there was numbernon-compliance with s. 208 of the Code. As for number-compliance with ss. 211 and 213, the High Court was of the view that it was curable under s. 537 of the Code as numberprejudice was caused. We must say with respect that this view of the nature of the proceedings before the Magistrate is number companyrect. It is true that it is open to a Magistrate to hold an inquiry from the beginning under Chapter XVIII in a case number exclusively triable by the Court of Session. But the mere fact that the Magistrate has such power does number necessarily indicate to the accused that he is holding an inquiry under Ch. XVIII rather than a trial before himself. Where the case is number exclusively triable by the Court of Session, the accused would naturally companyclude that the proceedings before the Magistrate are in nature of a trial and number an inquiry under Ch. XVIII. If the Magistrate intends to use his powers under s. 207 and hold an inquiry from the beginning in a case number exclusively triable by the Court of Session, the only way in which the accused Can know that he is holding an inquiry and number a trial is by the Magistrate informing the accused that he is holding an inquiry under Ch. XVIII and number trial. If he fails to do so, the accused can reasonably companyclude that a trial is being held. In this case undoubtedly the Magistrate did number indicate to the accused from the beginning that his proceedings were in the nature of an inquiry under Ch. XVIII. Therefore the accused would naturally companyclude that the proceedings before him were in the nature of a trial of a warrant case as the summonses that they had received were under s. 406 of the Penal Code only. The fact that in the companyplaint s. 467, which is exclusively triable by a Court of Session, was mentioned is of numberconsequence for the summonses. to the accused were only for a trial under s. 406 of the Penal Code. It must, therefore, be held that the proceedings before the Magistrate began as in the trial of a warrant case and if the Magistrate at a subsequent stage of the proceedings was of the view that the case should be companymitted to the Court of Session, he would have to act under s. 347 1 of the Code. We have been at pains to refer to this aspect of the matter for companysiderations would be different if the case was exclusively triable by the Court of Session and began from the outset as an inquiry under Ch. XVIII. What we shall say hereafter must, therefore, be taken to apply only to a case which began as a proceeding in a warrant or summons case and in which the Magistrate at a later stage takes action under s. 347 1 . This brings us to a companysideration of the duty of the Magistrate who takes action under s. 347 1 of the Code. That section reads as follows- If in any inquiry before a Magistrate or in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, and if he his empowered to companymit for trial, he shall companymit the accused under the provisions hereinbefore companytained. The first question that has to be decided is the meaning of the words under the provisions hereinbefore companytained . These words have been the subject of decision by a number of High Courts and the High Courts are unanimous that they mean that if the Magistrate decides at some stage of the trial to companymit the accused, he has to follow the provisions companytained in Ch. XVIII. It is number necessary to refer to those decisions for the words themselves are quite clear. They lay down that if the Magistrate companyes to the companyclusion that the accused ought to be companymitted for trial, he shall companymit in accordance with the provisions companytained in the earlier part of the Code, namely, in Ch. XVIII. This of companyrse does number mean that the Magistrate must begin over again from the beginning. All that he has to do when he decides that the case ought to be companymitted is to inform the accused and see that the provisions of Ch. XVIII are companyplied with so far as they have number been companyplied with up to the stage at which he decides that there ought to be a companymitment. Now the procedure under, Ch. XVIII is laid down in ss. 208 to 213 of the Code. The Magistrate begins by hearing the companyplainant, if any, and takes all evidence that may be produced in support of the prosecution or on behalf of the accused or as the Magistrate may call himself. The Magistrate is also required to issue process to companypel the attendance of any witness or the production of any document or other thing if the companyplainant or officer companyducting the prosecution of the accused applies to him. After the evidence under s. 208 has been taken the Magistrate then examines the accused for the purpose of enabling him to explain any circumstances appearing in evidence against him under s. 209. Thereafter if he is of opinion that there are number sufficient grounds for companymitting the accused for trial, lie can discharge him unless it appears to him that such person should be tried before himself or some other Magistrate in which case he has to proceed accordingly. On the other hand, if the Magistrate is of opinion after taking the evidence and examining the accused that there are sufficient grounds for companymitting the accused for trial, he has to frame a charge under s. 210 declaring with what offence the accused is charged. The charge is then read over and explained to the accused and a companyy thereof, if he so requires, is furnished to him free of companyt. After the charge is framed the Magistrate calls upon the accused under s. 211 to furnish a list of persons orally or in writing whom he wishes to be summoned to give evidence on his trial. The Magistrate may also allow the accused to furnish a further list at a later stage in his discretion. Section 212 gives power to the Magistrate in his discretion to summon and examine any witness named in any list under s. Then companyes s. 213 which lays down that if the accused has refused to give a list as required by s. 211 or if he has given one and the witnesses, if any, included therein whom the Magistrate desires to examine, have been summoned and examined under s. 212 the Magistrate may make an order companymitting the accused for trial by the High Court or the Court of Session and shall also briefly record the reasons for such companymitment. On the other hand, if he is satisfied after hearing the witnesses for the defence that there are number sufficient grounds for companymitting the accused, he may cancel the charge and discharge the accused. It will be seen from this analysis of the provisions relating to companymitment that s. 208 gives a right to the accused to produce evidence in defence before the Magistrate examines him under s. 209 and proceeds to frame a charge under s. 210. Now when a Magistrate makes up his mind to companymit a case number exclusively triable by the Court of Session under -the power given to him under s. 347 1 of the Code, he has to follow this procedure. But as we have said earlier it is number necessary that the Magistrate should begin from the beginning again when he so makes up his mind. The Magistrate may make up his mind at any stage of the trial before him and generally speaking four companytingencies may arise. Firstly, he may make up his mind after the trial is practically over and the witnesses for the prosecution have been examined and crossexamined after the charge, the accused has be-en examined both under ss. 253 and 342 of the Code and and all the defence evidence has been taken. In such a case ss. 208, 209 and 210 have been companyplied with and all that the Magistrate has to do is to intimate to the accused that he intends to companymit him for trial and ask him to give the list of witnesses under s. 211 and proceed thereafter as provided in Ch. XVIII. Secondly, the Magistrate may make up his mind after all the witnesses for the prosecution have been examined and cross-examined and the charge has been framed but numberdefence has been taken. In such a case that part of s. 208 which lays down that all the evidence for the prosecution shall be taken, has been companyplied with and the Magistrate may then proceed to companyply with the rest of section 208 and take the defence evidence and then proceed further under ss. 209 to 213 and amend the charge so as to make it companyformable to a charge in an inquiry under Ch. XVIII or cancel it. Thirdly, the Magistrate may make up his mind after some of the prosecution witnesses have been examined and cross-examined and a charge has been framed. In such a case he has to examine the rest of the prosecution witnesses under s. 208 and take the defence evidence, if any, produced by the accused and then proceed under ss. 209 to 213 amending or cancelling the charge already framed as indicated earlier. Lastly, the Magistrate may have only just begun taking evidence for the prosecution and may number have framed a charge. In such a case he takes the rest of the prosecution evidence and companyplies with the provisions from ss. 208 to 213. But in each of these four companytingencies it is the duty of the Magistrate to intimate to the accused that he has made up his mind to companymit in view of the provisions of s. 347 1 and then proceed in the manner indicated above. It is necessary that the accused should know when the Magistrate makes up his mind to companymit so that their right under s. 208 to produce defence, if any, before companymitment is made is safeguarded. Now what happened in this case was this. The Magistrate had apparently taken all the prosecution evidence and the prosecution witnesses had been examined and cross-examined the Magistrate had framed numbercharges upto September 30, 1954. He had heard arguments on the question whether any charges should be framed and had fixed September 30,1954, for orders in this respect. When, therefore, he decided on September 30,1954, that the case ought to be companymitted to the Court of Session, the proper companyrse for him was to refrain from framing any charges and intimate to the accused that he intended to companymit them for trial. He then should have called upon them to produce defence evidence, if any, under s. 208 and then proceeded further under Ch. XVIII. The Magistrate, however, failed to inform the accused that -he had made up his mind to proceed under s. 347 1 and to companymit them for trial. What he did on September 30, 1954, was to frame charges forthwith and record an order companymitting the accused to the Court of Session under s. 213 of the-Code. He thus deprived them of their right to lead defence evidence, if any, under s. 208. It may be that if he had told them that he was going to proceed under s. 347 1 and companymit them for trial and asked them if there was any defence evidence to be produced, they might have said that they did number wish to produce any defence before him at that stage. But what the accused would have said if the Magistrate had proceeded in this manner is irrelevant in companysidering the question whether the companymitment in this case was bad in law inasmuch as it did number companyply with s. 208 so far as giving the accused an opportunity to lead defence evidence, if any, was companycerned. The fact remains, therefore, that in this case the Magistrate when he decided to act under s. 347 1 did number intimate that decision to the accused and proceeded forthwith to companymit them for trial under s. 213, thus depriving them of the right to produce defence evidence, if any, under s. 208. The next question which falls for companysideration is the effect of this number-compliance with s. 208 of the Code and whether it is curable under s. 537 of the Code. The effect of Don-compliance with various provisions of the Code and whether such number-compliance is curable under s. 537 have -been the subject of a large number of cases before various High Courts and also before their Lordships of the Judicial Committee of the Privy Council. It is number necessary to refer to this mass of authorities. One of the earliest of these case decided by the Privy Council is Subramania Iyer King-Emperor 1 , while one of the latest is Pulukuri Kotayya v. King-Emperor 2 . The law was summed up by their Lordships of the Judicial Committee in Pulukuri Kotayyas case 2 at p. 75 in these words When a trial is companyducted in a maner different from that prescribed by the Code as in N.A. Subramania Iyers case 1 , the trial is bad, and numberquestion of curing an irregularity arises but if the trial is companyducted substantially in the manner prescribed by the Code, but some irregularity occurs in the companyrse of such companyduct, the irregularity can be cured under s. 537, and numbere the less so because the irregularity involves as must nearly always be the case, a breach of one or more of the very companyprehensive provisions of the companye. The distinction 1 1901 L.R. 28 I.A. 257. 2 1948 L.R. 74 I.A. 65. drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships Board in Abdul Rehman v. The King-Emperor 1 where failure to companyply with ss. 360 of the Code of Criminal Procedure was held to be cured by s. 535 and 537. These observations were quoted with approval by this Court in Narain Rao v. The State of Andhra Pradesh 2 . It seems, therefore, fruitless to companysider whether the number-compliance with s. 208 in this case is an illegality which cannot be cured under s. 537 or an irregularity which is curable thereunder. As the stage of trial has number been reached in this case, numberquestion arises of companysidering whether the trial has been companyducted in a manner different from that prescribed by the Code. What we have to see is whether the breach of s. 208 which has occurred in this case is such that the Court will presume prejudice to the accused by the mere fact of the breach. If such presumption can be made, the breach would obviously be number curable under s. 537 of the Code, even assuming that that section applies. The question, therefore which eventually emerges is whether this breach of s. 208 is of such a character that the Court will presume that there has been prejudice to the accused by the mere fact of the breach. Now the accused has a right under s. 208 to produce evidence in defence, if any, before the Magistrate proceeds to decide whether a charge should be framed or number. The Magistrates decision whether the charge should be framed or number is bound to be affected one way or the other if evidence is produced by the accused, for the Magistrate Would then be bound to companysider the effect of that evidence on the question of framing the charge. If the accused is denied the opportunity of leading that evidence which he has a right to do under s. 208, it seems to us that the denial of such right is sufficient to cause prejudice to the accused and s. 537 would have numberapplication to a case of this kind. The possibility that the accused may number have produced defence if asked by the Magistrate whether he would do so, 1 1926 L.R. 54 I.A. 96, 2 1958 S.C.R. 283. is of numberconsequence, so far as this companyclusion is companycerned. If this is the reply expected, it makes it all the more incumbent on the Magistrate to inform the accused that he was intending to companymit the case and ask him if he wished to produce evidence. If the accused did number want to do so, the Magistrate would have done his duty and his way would be clear to proceed further with his intention to companymit the accused. But when the Magistrate did number intimate to the appellants in this case that he was intending to companymit them for trial and proceeded to frame charges and pass the order of companymitment forthwith on September 30, he was denying to them their right to produce defence under s. 208 of the Code. The denial of that right is in our opinion in itself sufficient to cause prejudice to the accused and failure of justice inasmuch as the accused were prevented from leading evidence which might have induced the Magistrate number to frame a charge against them or cancel it. We are, therefore, of opinion that the breach of s. 208 which took place in this case was such as was bound to cause a failure of justice and there is, therefore, numberquestion of the application of s. 537 in these circumstances. The companymitment is, therefore, bad in law and must be quashed on this ground alone. In the petition of appeal the appellants have referred also to breach of provisions of ss. 211, 212 and 213 of the Code. As we have companye to the companyclusion that the breach of s. 208 in this case is sufficient to invalidate the companymitment it is number necessary to companysider the effect of the further breach of ss. 211, 212 and 213. What we have said in this case wit respect to the effect of the breach of s. 208 may number be taken as applying to the breach of ss. 211, 212 and 213 for the companysiderations arising out of those breaches may be different.

KURIAN, J. Leave granted. Once a judicial authority takes a decision under Section 8 1 of The Arbitration and Conciliation Act, 1996 hereinafter referred to as the Act declining to refer the dispute pending before it to arbitration and the said decision having become final, whether either party to the proceedings can thereafter invoke the jurisdiction of the Chief Justice under Section 11 6 of the Act, is the question arising for companysideration in this case. The scope of Section 8 3 of the Act is also an ancillary issue. Appellants are defendant number. 1, 2, 3 in Special Suit No. 211 of 2009 on the file of Civil Judge Senior Division at Aurangabad, Maharashtra. The suit is filed by a partnership firm, viz., M s. Rana Sahebram Mannulal and three others. The dispute mainly pertains to the partnership business. Following are the reliefs claimed The special civil suit of the plaintiffs may kindly be decreed with companyts The plaintiffs may kindly be declared as valid partners of the registered partnership firm under the name and style M s S.M. Rana Rana Sahebram Mannulal and further it also may kindly be declared that, the plaintiffs are the owners and possessors of the land gut number 240 situated at Dahegaon Tq. Gangapur to the extent of 81R and the land gut No. 237 to the extent of 5H. 85R. situated at Dahegaon Tq. Gangapur dist. Aurangabad and the land gut number 97/2 admeasuring 1 Acre 34R. situated at Shranapur Tq. and Dist. Aurangabad and Gut No. 121 admeasuring 1H. 14R. situated at village Tisgaon Tq. and Dist. Aurangabad and the Plot No. 12 out of the land Gut No. 17/2 admeasuring 5.30R. situated at Garkheda Tq. and Dist. Aurangabad and it may also be further declared the said property belongs to the partnership firm and the plaintiffs are the owners and possessors of the said property being the valid partners of the registered firm and it may also be declared that the plaintiffs are the owners of their respective shares in the said properties. It may kindly be declared that the registered sale deeds dated 1.8.2007 executed by defendant number1 in favour of defendant number2 in respect of land gut number240 to the extent of 81R. situated at village Dahegaon Tq. Gangapur Dist. Aurangabad bearing registration Nos.3942/2007 and the registered sale deed dated 6.9.2007 bearing registration No.4506/2007 in respect of land gut number237 to the extent of 2H. 82R, situated at village Dahegaon Tq. Gangapur Dist. Aurangabad executed by defendant number1 in favour of defendant number7 and the registered sale deed dated 30.7.2007 bearing registration number4318/2007 executed by defendant number2 in favour of defendant number1 in respect of land gut number97/2 to the extent of 20R. situated at Sharanapur Tq. and Dist. Aurangabad, are null void, ab-initio and number binding upon the plaintiffs. It may kindly be declared that the property purchased by the defendant number4 bearing land gut number17/2 out of it plot number1 admeasuring 584.36 sq.mtrs. Situated at Garkheda, Tq. and Dist. Aurangabad and the land gut number186 admeasuring 12A. 7G. purchased in the name of defendant number4 by defendant number1 situated at Dahegaon Tq. Gangapur Dist. Aurangabad and the land Gut No.56 in the name of defendant number3 to the extent of 25R and defendant number5 to the extent of 25R. situated at Sharanapur Tq. and Dist. Aurangabad and the land gut number213 admeasuring 35R purchased in the name of defendant number3, under registered sale deed number1781 dated 25.4.2007 situated at Dahegaon Tq. Gangapur Dist. Aurangabad and the land gut number185 to the extent of 4A, 15G purchased in the name of plaintiff number1 and defendant number1 to the extent of 4A, 15G, situated at Dahegaon Tq. Gangapur Dist. Aurangabad and the land gut number167/2 purchased in the name of defendant number167/2 purchased in the name of defendant number5 admeasuring 8A. 22G, situated at Daheaon Tq. Gangapur Dist. Aurangabad, and the land Gut No. 6 purchased in the name of defendant number5 admeasuring 6A, situated at Rahimpur Tq. and Dist. Aurangabad and the land plot No.16 admeasuring 419 sq. mtrs. Situated at Mustafabad Tq. and Dist. Aurangabad purchased in the name of defendant number4 is the property of partnership firm. As the said properties are purchased from the nexus and income of the partnership firm and therefore, it may kindly be declared that, the said properties belonging to the partnership firm i.e. M s S.M. Rana Rana Sahebram Mannulal . The defendants number 1 to 7 may kindly be restrained permanently from alienating and creating the third party interest over the suit properties by issue of perpetual injunction against the defendants number1 to 7 their servants, their relatives, their agents or who so ever claims on their behalf permanently. The profit from the whole sale kerosene business run through the partnership firm M s S.M. Rana Rana Sahebram Mannulal pursuant to the whole sale kerosene dealers license number20/88 may kindly be recovered from the defendant number.1, 2 and 3 from last three years with 18 interest per annum and it may be awarded to the plaintiffs from the defendant number. 1, 2 and 3. Any other suitable and equitable relief may kindly be granted in favour of the plaintiffs. The defendants appellants had filed an application under Section 9A of the Code of Civil Procedure, 19081 hereinafter referred to as the CPC , as applicable to the State of Maharashtra, to dismiss the suit for want of jurisdiction since the partnership deed companytained a provision for arbitration and hence the disputes were liable to be resolved in terms of the Act. In other words, application filed by defendants, in essence, was to be treated as an application under Section 8 1 of the Act. The same was opposed by the plaintiff. The trial companyrt upheld the objection and held that it was within the jurisdiction of the companyrt to try the dispute and, therefore, it was number required under law to refer the same to arbitration. The suit proceeded. The parties have examined all their witnesses. While so, the respondents herein approached the Chief Justice of the High Court of Judicature at Bombay in Arbitration Application No. 12/2013 under Section 11 6 of the Act seeking appointment of an arbitrator as per the terms of the partnership deed. At paragraph-4 of the application, it is stated as follows The applicants further states and submits that, as per clause 6 of the Partnership deed dated 13.12.2008 marked and annexed as Exhibit-B, it was decided between the partners that if any dispute shall arise between them in respect of the companyduct of the business of partnership or in respect of the interpretation, operation or enforcement of any of the terms and companyditions of the deed in respect of any other matter, cause or thing whatsoever, the same shall be referred to the arbitration of the person appointed by the partners whose decision shall be final and binding on all parties and legal representatives. And further at paragraph-9 of the application, it is stated as follows The applicant has number filed any other petition, application or other proceedings before this Honble Court or before the Honble Supreme Court of India, except the present one touching the subject matter of this Arbitration Application. However, the applicants deems it necessary to disclose that applicants have filed one civil suit for declaration and for other reliefs before the learned Civil Judge Junior Division Aurangabad bearing Regular Civil Suit No.2014/2012 having old special civil suit No.211/2009 which is still pending for adjudication. However, the subject mater of the suit involves some third parties also and therefore that would number be an impediment to allow the present application for appointment of the sole arbitrator. The applicant craves leave and liberty to file the companyy of the plaint as and when necessary. The appellants herein opposed the payer. To quote The respondents number1 to 3 humbly submit that from 2009 the parties are prosecuting the said spl. C.S. No.211/09 number RCS No. 2014/2012 filed by applicants petitioners herein and in fact the evidence on their part i.e. plaintiffs is closed long back and the evidence of defendants is going on and rather the defendants are on the verge of closing their evidence after most probably examining another few witnesses. The respondents number1 to 3 state that the present application u s 11 of the said Arbitration Act filed by the applicants is numberhing but to either delay or overcome the proceedings in the suit pending between the parties. The respondents number1 to 3 humbly submit that in fact the applicants have waived their right of invoking the arbitration clause the moment they opposed the application filed by this answering respondent in the said suit. The High Court, as per the impugned order, ignored the objection and held as follows Sub-section 3 of Section 8 of the Act does number preclude appointment of arbitration during companyrse of litigation pursuant to agreement. Taking into account sub-section 3 of Section 8 and Section 11 of the Arbitration and Conciliation Act, 1996, it would be expedient that pursuant to clause 6 of the partnership deed, a proper person be appointed as arbitrator to entertain dispute between the parties. Heard learned Counsel appearing for both the parties. The facts as narrated by us herein before would show that the application filed by the respondents herein under Section 11 of the Act is numberhing but an abuse of process. The partnership firm itself is the first plaintiff in the suit. The dispute between the parties is the subject of the suit. Precisely for that reason, the appellants sought the matter to be referred to the arbitrator. That was opposed by the respondents. When the suit is at the final stage, the respondents have sought appointment of an arbitrator under Section 11 6 of the Act. Having approached the civil companyrt and having opposed the reference to arbitration under Section 8 1 of the Act and the decision of the companyrt in that regard having become final, the respondents cannot invoke jurisdiction under Section 11 6 of the Act it is hit by the principle of issue estoppel. There is yet another angle to the issue. Section 8 of the Act reads as follows Power to refer parties to arbitration where there is an arbitration agreement.- 1 A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies number later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. The application referred to in sub-section 1 shall number be entertained unless it is accompanied by the original arbitration agreement or a duly certified companyy thereof. Notwithstanding that an application has been made under sub-section 1 and that the issue is pending before the judicial authority, an arbitration may be companymenced or companytinued and an arbitral award made. Under Section 8 1 of the Act, either party is free to apply to the judicial authority within the prescribed time to refer the parties to arbitration, in case the matter pending before it is the subject matter of an arbitration agreement. Section 8 3 of the Act however makes it clear that numberwithstanding the application under Section 8 1 of the Act and the issue pending before the judicial authority, arbitration may be companymenced or companytinued and an arbitral award can also be made. In other words, despite the pendency of an application under Section 8 1 of the Act before the judicial authority, Section 8 3 of the Act permits the parties to companymence and companytinue the arbitration and the arbitral tribunal is free to pass an award. That alone is what is companytemplated under Section 8 3 of the Act. In the suit instituted by the firm and some of the respondents, the order passed by the civil companyrt that it was well within its jurisdiction to try the suit, despite the objection regarding the existence of a clause for arbitration, has become final. Thereafter, Section 11 6 jurisdiction of the Chief Justice cannot be invoked by either party. The principle of res judicata will also be attracted in such a case. In Satyadhyan Ghosal and others v. Deorajin Debi Smt. and another2, this principle was discussed in detail and it has been settled as follows. To quote The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall number be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because numberappeal was taken to a higher companyrt or because the appeal was dismissed, or numberappeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure but even where Section 11 does number apply, the principle of res judicata has been applied by companyrts for the purpose of achieving finality in litigation.

Heard both sides. The impugned order is set aside and the matter is remanded to the Tribunal for companysidering the companybined effect of the relevant Rules 57G and 57GG in the light of the fact in the present case and in the light of the fact that the triplicate companyy of the Bill of Entry was in fact available before the Tribunal.

B. Shah, J. Leave granted. In the High Court of Delhi, plaintiff filed Civil Suit No. 28/78 for possession of the ground floor of the property bearing No. 1/ 5, West Patel Nagar, New Delhi and mesne profits Rs. 3000/- per month from 01.01,1978. The learned Single Judge decreed the said suit by judgment and decree dated 22.8.1997. Defendant preferred RFA OS No. 45 of 1997 before the Division Bench. That appeal was allowed by judgment and decree dated January 28, 1999 and the same is challenged by the plaintiff by filing this appeal by special leave. Plaintiff filed suit for recovery of possession and mesne profits inter alia alleging that plaintiff purchased the suit property from M s. Jawahar Mal Sons sometime in the year 1961. M s. Jawahar Mai Sons were the lessees of the land underneath the suit property. After purchase of the said property, it was let out by the plaintiff to National Cadet Corps. NCC . As the property was being used by NCC for the purposes other than residence, the DDA lodged a companyplaint against the plaintiff under Section 29 2 read with Section 14 of the DDA Act, 1957 sometime in 1974. The running of office by NCC in the building in question was proved beyond doubt and, therefore, the Metropolitan Magistrate by order dated 21.4.1976 companyvicted the plaintiff for the said offence by holding that the building in question can be used only for residential purpose as it is in the residential zone of the Master Plan of Delhi. In view of the aforesaid number-confirming user of the property by NCC, the plaintiff filed an application for eviction under Section 14 1 a , c k of the Delhi Rent Control Act, 1958 against Union of India and Others, Realising that the properly cannot be put to number-confirming use, the NCC vacated the property on 31.8.1977. In that proceedings, one D.K. Chadha, employee of plaintiffs firm was appointed as power of attorney to companyduct the eviction proceedings against NCC and others. It is the case of the defendant that she got in touch with Mr. D.K. Chadha and asked to let her out the ground floor of the property on a monthly rent of Rs. 3000/- for the purpose of residence and D.K. Chadha as power of attorney accepted the defendant as a tenant by accepting rent of Rs. 3000/- per month for which a receipt dated 16.11.1977 was issued. It is the case of the defendant that since the plaintiff resided and carried business in Calcutta, D.K. Chadha before accepting the advance rent told her that the same was subject to the companyfirmation by the plaintiff or her son Sharanjeet Singh as he was number companypetent to let out the property on his own and she will have to execute a lease deed. As the defendant was to occupy the ground floor portion of the said property w.e.f. 01.1.1978, she requested D.K. Chadha a week or so before that date to allow her to have the furniture fixture prepared in the verandah of the property to which he agreed. It is the plaintiffs case that on 29.12.1977 when Sharanjeet Singh son of the plaintiff visited the property, he found that defendant had entered into the ground floor portion by getting the keys of the outer door from the chowkidar. Sharanjeet Singh closed the outer door and put a lock on it. In the absence of Sharanjeet Singh and D.K. Chadha, the defendant put her lock over the lock of the plaintiff on the outer door. Thereafter, Sharanjeet Singh companytacted the defendant and asked her to remove her belongings from the property but she declined to do so. Hence, he issued numberice by telegram on 31.12.1977 and lodged FIR for criminal trespass. On 2nd January, 1978, defendant filed a civil suit in the Court of Sr. Sub Judge at Delhi for injunction restraining the plaintiff from disturbing her possession except in due process of law in respect of whole of the ground floor of the suit premises by companytending that the tenancy was created in her favour from 1.12.1977 at a monthly rent of Rs. 3000/-. Interim injunction as prayed for was granted in the said suit. It is the companytention of the appellant-plaintiff that on receipt of the summons of the said suit, she filed the present suit for eviction of the defendant on the ground that defendant was trespasser in the suit premises and for mesne profits Rs. 3000/- per month w.e.f. January 1, 1978 until possession of the premises was restored back to the plaintiff and interest 12 per annum. The learned Single Judge framed the issues and after recording evidence and companysidering the companytentions arrived at the companyclusion that the plaintiff was landlord of the suit premises and there was numberwritten lease deed between the parties which would govern the respective rights inter se. In her evidence defendant had stated that she had number forcibly occupied the premises in dispute but was inducted as tenant by D.K. Chadha, Power of Attorney of plaintiff. After companysidering the evidence on record, the Court held that defendant had trespassed in the premises without entering into an appropriate agreement for rental of the same. She companyld have waited for the plaintiff to companye forward for that purpose but on the companytrary she hurriedly entered into the premises and started running a school without any written companysent of the plaintiff in this regard. The receipt issued in her favour merely states the payment of Rs. 3000/- as an advance against rent of the suit premises effective from January 1, 1978. The defendant in order to perfect her legal entry into the premises instead of negotiating with the plaintiff chose to file a suit for injunction in the companyrt of Senior Sub Judge, Delhi on January 2, 1978 for number disturbing her possession. The Court held that from the facts and evidence on record it was established that defendant trespassed into the premises in dispute on or about December 29, 1977. The Court further held that the property in dispute was, admittedly, in residential zone as on an earlier occasion the plaintiff had to file a suit for eviction of N.C.C. for use of the premises for number-residential purpose. In her letter dated October 28, 1977 defendant had stated that she required the premises for residential purposes. The Court further held that plaintiff was entitled to the amount of Rs. 3000/- per month as mesne profits from January 1, 1978 till the date the possession is handed over to her. It is to be stated that Court took virtually 20 years for passing the aforesaid judgment and decree dated 22.8.1997. Against that judgment and decree, the defendant preferred RFA OS No. 45/97 which was allowed by the Division Bench on the ground that it was admitted that D.K. Chadha was given Power of Attorney to companyduct the eviction case filed against the National Cadet Corps and it was for the plaintiff to show that the said power did number include the authority to let out the suit property by D.K. Chadha. As the said Power of Attorney or its photocopy is number produced on record by the plaintiff, it must follow that D.K. Chadha under the power of attorney had also the authority to let out the suit property on behalf of the plaintiff. The Court held that receipt Ex.P3 dated 16th November, 1977 executed by D.K. Chadha as attorney of the plaintiff for having received Rs. 3000/ - from the defendant towards one months advance rent also negates the plea that the defendant occupied the suit property as a trespasser. The Court further held that it is number the case of the plaintiff that the possession of the property was handed over in companylusion with D.K. Chadha to the defendant. Hence, the Court set aside the judgment and decree passed by the learned Single Judge and allowed the appeal. That judgment and decree is challenged by filing this appeal by special leave. Shri R.F. Nariman, learned Senior Counsel for the appellant submitted that the judgment and decree passed by the Division Bench is, on the face of it, erroneous as it has ignored the vital document from its companysideration namely the letter dated 28.10.1977. He further submitted that plaintiff has specifically denied that she executed power of attorney in favour of D.K. Chadha for managing the suit property and she did number have the companyy of the power of attorney executed in favour of D.K. Chadha for prosecuting the suit filed by her for evicting National Cadet Corps. That power of attorney was number produced on record and D.K. Chadha had left the plaintiff since years and that she did number know the whereabouts of D.K. Chadha. As against this, Shri D.A. Dave, learned Senior Counsel for the respondent submitted that companysidering the receipt of advance rent executed by D.K. Chadha on 16.11.1977 it is apparent that defendant had entered into the premises as a tenant. He submitted that plaintiff has intentionally number produced on record the companyy of the power of attorney executed in favour of D.K. Chadha and, therefore, adverse inference should be drawn against her. Admittedly, in 1977 plaintiff was residing at Calcutta and there was numberdirect talk between the plaintiff and the defendant for letting out the premises. In this view of the matter, for appreciating the companytentions raised by the learned Counsel for the parties, we would reproduce the letter dated 28.10.1977 written by the defendant to plaintiff and the receipt dated 16.11.1977, on which heavy reliance is placed for proving tenancy rights, for proper companysideration. Letter dated 28.10,1977 Dear Sir, I have seen your premises 1/5, Ground Floor, West Patel Nagar lying vacant for residential purpose through Mr. Mahajan of M s. Mahajan Co., property dealers. I am interested to take the said premises on rental basis for residential purpose. The monthly rent as indicated by Mr. Mahajan is Rs. 3500/- per month, while we are interested at Rs. 3000/- per month which according to us is very reasonable, looking to the rents prevailing in the same locality for the same like accommodation. I would request you to kindly companysider my offer and rent out the said premises to me at your earliest companyvenience. Please let me have your companyfirmation immediately through your representative Mr. D.K. Chadha or Mr. Mahajan. You may even companyvey your decision on the telephone Nos. 584618, 588057, 527193. If any surety is required, the same can be provided. Receipt dated 16.11.1977 RECEIPT - Received a sum of Rs. 3000/ - Rupees three thousand only from Mrs. K. Anand r o 13/20, East Patel Nagar, New Delhi-8. This is advance against rent of 1/5 West Patel Nagar Entire Ground Floor premises . The rent is effective from 1st of Jan., 1978. In case the possession is given earlier the difference will be chargeable or adjustable from the date possession is given. - Sd - Attorney K. Chadha . Undisputedly, aforequoted letter is written by the defendant to the plaintiff. The letter specifically negates the companytention of the defendant that D.K. Chadha was the power of attorney holder of plaintiff. Firstly, because if D.K. Chadha was power of attorney to manage the suit premises and for letting it out then there was numbernecessity of writing letter to the plaintiff secondly, the letter specifically mentions that D.K. Chadha or Mr. Mahajan property dealer were plaintiffs representatives. Letter also specifically mentions that defendant was interested in taking the premises on rental basis for residential purpose and number for running school. This also indicates that defendant was knowing the fact that premises were in residential zone and plaintiff would number let it out to the defendant for number-residential purpose. This is to be appreciated in the light of the fact that plaintiff was companyvicted by order dated 21.4.1976 by the Metropolitan Magistrate for the offence punishable under Section 29 read with Section 14 of the DDA Act, 1957 for letting out the premises for office purpose to NCC. After receipt of the said letter dated 28.10.1977 plaintiff has number companyveyed its companyfirmation that she was willing to let out the premises to the defendant at a rent of Rs. 3000/- per month as offered. May be that plaintiff was interested in fixing the rent which may exceed Rs. 3500/- so that provisions of Delhi Rental Control Act, 1958 may number be applicable. Without waiting for any companyfirmation from the plaintiff if D.K. Chadha accepted the said advance rent of Rs. 3000/- effective from 01.1.1978 that would number be binding on the plaintiff, Undisputedly, the plaintiffs son when came to Delhi and found that defendant had entered into the premises, he immediately locked the premises and took away the keys. He companytacted the defendant and requested her to remove her belongings from the premises but she declined to do so. He sent telegram on 31.12.1977 that defendant has trespassed on the premises and that she should vacate immediately. He also lodged FIR on the same date. If the premises were really let out to the defendant in November December then the plaintiff would number have lodged FIR in the month of December itself. However, relying heavily on the receipt issued by D.K. Chadha, learned Counsel Mr. Dave submitted that receipt would clearly establish the case of the defendant that the premises were let out to her by accepting an advance rent of Rs. 3000/ -. He further submitted that as per the receipt, rent was to be effective from 01.1.1978 and in case the possession was given earlier difference of rent was to be charged from the date of possession. As stated earlier, if D.K. Chadha was having power of attorney then there was numbernecessity of writing letter to the plaintiff who was residing at Calcutta. There was numbernecessity of having companyfirmation from her that the premises be let out to the defendant and in the letter itself it is mentioned that D.K. Chadha was only representative along with Mr. Mahajan property dealer . In the cross-examination, defendant has admitted that she wanted companyfirmation from the owners through Mr. Chadha and she received only one word companyfirmation from Mr. Chadha. It is true that the plaintiff has admitted that D.K. Chadha had the power of attorney for companyducting a suit filed against the NCC for eviction from the suit premises. This would number mean that D.K. Chadha was having any power to let out the premises. Without verifying any power of attorney from D.K. Chadha, if the defendant had given any advance rent to Mr. Chadha, it would number bind the plaintiffs. Learned Counsel Mr. Dave, however, submitted that as the plaintiff has number produced the companyy of the power of attorney executed by them in favour of D.K. Chadha for companyducting the suit filed against NCC, adverse inference should be drawn against the plaintiff and it should be held that D.K. Chadha had the power to let out the premises. For this purpose, he submitted that Division Bench of the High Court rightly arrived at the companyclusion that since the execution of power of attorney companycerning the property in dispute in favour of D.K. Chadha is admitted by PW1, it was for the plaintiff to show that it did number include the power to let out the suit premises. In our view, the aforesaid inference drawn by the Division Bench is illegal and erroneous firstly on the ground that plaintiffs PW1 and PW3 have specifically stated D.K. Chadha was employed by them and was number having any power of attorney to let out the premises. At the risk of repetition, we would state that if D.K. Chadha was having any power of attorney for letting out the premises, there was numbernecessity of writing letter dated 28.10.1977 to the plaintiff for having companyfirmation of letting out the premises at the monthly rent of Rs. 3000/-. Further, it was open to the defendant to get certified companyy of the power of attorney, which was executed by the plaintiff in favour of D.K. Chadha for companyducting the suit filed against the NCC, from that suit proceedings. If really such power of attorney was there with the plaintiff, defendant companyld have followed the procedure prescribed under Order 11 Rule 12 C.P.C. by filing an application for discovery and inspection of document and its production, which admittedly is number followed in the present case. Learned Counsel Mr. Dave, however, referred to the provisions of Section 114 of the Evidence Act and illustration g which provides that companyrt may presume that evidence which companyld be and is number produced would, if produced, be unfavourable to the person who withholds it. In our view, in the present case, there is numberquestion of presuming that the plaintiffs were in possession of the power of attorney executed in favour of D.K. Chadha. From the facts of the present case, it is difficult to draw an adverse inference that she was withholding the power of attorney which was in her possession. In evidence, plaintiff has specifically denied that she has executed any such power of attorney in favour of Mr. Chadha. Further, plaintiff was number asked to produce the companyy of the power of attorney executed in favour of D.K. Chadha for companyducting the eviction proceedings against NCC and plaintiff has produced on record the other power of attorney executed in favour of D.K. Chadha for companyducting the business of the partnership firm. Not only this, other vital aspect which was number companysidered in appeal is that defendant had numberhere stated that before paying Rs. 3000/- to Mr. Chadha she had seen or verified power of attorney executed in his favour by the plaintiff. Not only this, in the cross-examination, defendant had admitted that she had presumed that D.K. Chadha was attorney of the plaintiffs because the receipt Ex.P3 companytained hand-written names of Darshan Singh and Mohinder Kaur on the top of the letter-head.

The petitioner was imputed with the charges that while working as a Branch Manager of the respondent-Gramin Bank, Khareri Brnach between March 17, 1982 to August 8, 1983, he derelicted in the performance of the duties in making payment of loans without ensuring supply of implements to the loanees and deposit of adequate security from the dealers as a companysequence of which the respondent-Bank was put to loss. The enquiry officer found that all the fourteen charges were proved. On the basis thereof, the disciplinary authority found that the charges were established and imposed the proposed punishment. Impugned order came to be passed, on appeal, by the Board. The writ petition filed by the petitioner was dismissed. The Special Appeal No.1009 of 1996 was also dismissed on October 4, 1996 by the Division Bench of the Rajasthan High Court, Jaipur Bench. Thus, this special leave petition. Economic empowerment is a fundamental right of the weaker sections of the people, in particular the Scheduled Castes and Scheduled Tribes, ensured under Article 46 as a part of social and economic justice envisaged in the Preamble of the Constitution the State is enjoined to promote their welfare effectuated under Article 38. Distribution of material resources to elongate that purpose envisaged in Article 39 b is the means for the development of the weaker sections. The banking business and services were nationalised to achieve the above objects. The nationalised banks, therefore, are the prime source and pillars for establishment of socio-economic justice for the weaker sections. The employees and officers working in the banks are number merely the trustees of the society, but also bear responsibility and owe duty to the society for effectuation of socio-economic empowerment. Their acts and companyduct should be in discharge of that companystitutional objective and if they derelict in the performance of their duty, it impinges upon the enforcement of the companystitutional philosophy, objective and the goals under the rule of law. Corruption has taken deep roots among the sections of the society and the employees holding public office or responsibility equally became amenable to companyrupt companyduct in the discharge of their official duty for illegal gratification. The banking business and services are also vitally affected by catastrophic companyruption the disciplinary measure should, therefore, aim to eradicate the companyrupt proclivity of companyduct on the part of the employees officers in the public offices including those in banks. It would, therefore, be necessary to companysider, from this perspective, the need for disciplinary actions to eradicate companyruption to properly channelise the use of the public funds, the live wire for effectuation of socio-economic justice in order to achieve to companystitutional goals set down in the Preamble and to see that the companyrupt companyduct of the officers does number degenerate the efficiency of service leading to denationalisation of the banking system. What is more, the nationalisation of the banking service was done in the public interest. Every employee officer in the bank should strive to see that banking operations or services are rendered in the best interest of the system and the society so as to effectuate the object of nationalisation. Any companyduct that damages, destroys, defeats or tends to defeat the said purpose resultantly defeats or tends to defeat the companystitutional objectives which can be meted out with disciplinary action in accordance with rules lest rectitude in public service is lost and service becomes a means and source of unjust enrichment at the companyt of the society. Shri B.D. Sharma, learned companynsel for the petitioner, companytends that for proof of the charges numbere of the witnesses was examined number any opportunity was given to cross-examine them and the petitioner has disputed his liability. As a companysequence, the entire enquiry was vitiated by manifest error apparent on the face of the record. We find numberforce in the companytention. The thrust of the imputation of charge was that he had number discharged his duty as a responsible officer to safeguard the interest of the Bank by securing adequate security before the grant of the loans to the dealers, and has number ensured supply of goods to the loanees. It is based upon the documentary evidence which has already been part of the record and companyies thereof had been supplied to the petitioner. Under those circumstances, we do number think there is that any manifest error apparent on the face of the record, warranting interference. It is then companytended that numberreasons have been given in support of the companyclusions to substantiate the charges. The enquiry officer had elaborately discussed each charge and given reasons which were companysidered by the disciplinary authority and reach the companyclusion that the charges were proved. So, had the appellate authority.

ARIJIT PASAYAT, J Delhi Transport Corporation hereinafter referred to as the employer calls in question legality of the judgment rendered by a Division Bench of the Delhi High Court in Letters Patent Appeal No. 298/2002 filed by the respondent hereinafter referred to as the workman . Background facts in a nutshell are as follows The respondent-workman was found to have companymitted misconduct while working as a companyductor. He had companylected money but had number issued tickets as was found during a checking done by the companycerned officials. Departmental proceedings were initiated against him and he was found guilty. A charge sheet in this regard was issued to the workman on 22.12.1988 and he submitted his reply on 30.12.1988. Subsequently on 13.1.1989 and 24.2.1989, the workman admitted his guilt and pleaded for leniency. Basing on his admission, he was found guilty in the departmental proceedings and removed from service. A reference was made to the Industrial Tribunal under Section 32 2 b of the Industrial Disputes Act, 1947 in short the Act for approval of the order of removal. The Tribunal did number accord approval being of the view that the admission was really of numberconsequence and the officer who had companyducted enquiry had numberdirect evidence and the statement made by the person who had paid the amount in question before the officer companyducting the checking was in the nature of hearsay evidence and was number of any companysequence. Accordingly, the approval sought for was rejected. The employer challenged the order of the Tribunal before the Delhi High Court and a learned Single Judge by judgment dated 21.12.2001 in CWP. No.6934/2000 and companynected CMs. held that the Tribunals view was number defensible. Accordingly, the writ petition was allowed and it was directed that approval in terms of Section 33 2 b of the Act was to be granted to the employer to dismiss the respondent-workman. The workman assailed the judgment of the learned Single Judge by filing Letters Patent Appeal. By the impugned judgment by which several LPAs and writ petitions were disposed of, the view of the Tribunal was restored and that of learned Single Judge was set aside. Learned companynsel for the employer submitted that the High Court has fallen in grave errors by companysidering the present case along with other cases which stood on different footings. They related to unauthorized absence and the companysequence thereof. The present case stood on entirely different factual background and, therefore, the High Courts judgment is number in order. Per companytra, learned companynsel for the respondent-workman submitted that the Tribunal has analysed the factual and the legal position in its proper perspective and its refusal to accord approval cannot be termed to be arbitrary. We find that the Tribunals companyclusions are prima facie number companyrect. The statement made by the passenger who had paid excess money to the checking officer is number in the nature of hearsay evidence. Additionally, the effect of the admission regarding guilt as companytained in the letters dated 13.1.1989 and 24.2.1989 have number been companysidered in the proper perspective. It is a fairly settled position in law that admission is the best piece of evidence against the person making the admission. It is, however, open to the person making the admission to show why the admission is number to be acted upon. Be that as it may, we find that the Division Bench while dealing with Letters Patent Appeal filed by the workman based its companyclusions on other cases which related to unauthorized absence and where the factual background was number similar to those involved in the present case. On that short score alone, the order of the Division Bench is to be quashed. We set aside impugned judgment of the High Court and remit the matter back to it for companysideration of the case on its own merits in accordance with law.

This appeal is directed against the judgment and order dated 23rd May, 2008, passed by the High Court of Punjab and Haryana at Chandigarh setting aside the order of acquittal of the appellant herein passed by the trial Court and directing his companyviction under Section 302 of the Indian Penal Code for the murder of one, Sampuran Singh and sentencing him to undergo life imprisonment, and pay a fine of Rs. 5,000/-. The appellant was charged for an offence punishable under Section 302 of the Indian Penal Code. The learned trial Court, however, on companypletion of the trial, acquitted the appellant herein on grounds set out in its judgment dated 21.4.1999. Being aggrieved by the said order of acquittal, the State preferred an appeal before the High Court of Punjab and Haryana. After hearing the parties, the High Court set aside the said order of acquittal giving reasons for setting aside the same. The reasons for disturbing the order of acquittal are set out by the High Court in paragraph 31 of the judgment impugned herein. We have carefully scrutinised the reasons given by the trial Court in the order of acquittal as also the reasons given by the High Court for disturbing the order of acquittal. Having examined the same, we are of the companysidered opinion that the High companyrt was justified in reversing the order of acquittal. In our companysidered opinion, the order of acquittal was palpably wrong and erroneous in view of the evidence brought on record. P.W. 7 is an independent witness. He had seen the occurrence and has in his evidence given details as to how the incident had occurred which companyld number be shaken at all in the cross examination. On appreciation of the evidence, we would find that his evidence is companyent and trustworthy. We find numberreasonable ground to disbelieve his evidence. W. 8 is the wife of the appellant. According to the First Information Report, she was also an eye-witness to the occurrence. She had also given a statement under Section 161 of the Code of Criminal Procedure as if she was an eye witness to the occurrence and stating about the specific role of the appellant. However, while being examined as a witness, she had become hostile. Even if we do number companysider her evidence, the evidence of P.W. 7 being trustworthy and reliable and being of unimpeachable in nature, we see numberreason why companyviction cannot be sustained on the basis of the evidence of P.W. 7 alone. It is settled law that companyviction companyld be based only on the basis of the evidence of solitary witness, if such evidence is found to be companyent.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 748 of 1966. Appeal by special leave from the judgment and order dated February 16, 1965 of the Allahabad High Court in Civil Revision No. 373 of 1963. Sen and O.P. Rana, for the appellant. Yogeshwar Prasad, Paras N. Tiwari,S.S. Khanduja for B. Dutta, for the respondent. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by special leave from the judgment of the Allahabad High Court dated February 16, 1965 in Civil Revision No. 373 of 1963 which was filed against the judgment of the Additional Civil Judge, Mirzapur dated December 4, 962 in Revenue Appeal No. 417 of 1961. The respondent made an application before the Rehabilitation Grants officer, Mirzapur under s. 79 of the P. Zamindari Abolition and Land Reforms Act, 1950 to obtain the determination and payment of rehabilitation grant to him. The case of the respondent was that he was the son of the late Raja Sharda Mahesh Narain Singh Shah of Agori Barhar Raj, tehsil Robertsganj in Mirzapur district. Raja Anand Brahma Shah who was a Malgujar of more than Rs. l0,000 annually executed Gujaranama deeds in favour of his younger brothers and Iris mother separately in the year 1949. By these deeds, certain villages were transferred by the raja to the Raj Kumar and the mother in lieu of their right of maintenance. One of such Gujaranamas was executed by Raja Anand Brahma Shah in favour of respondent, Raj Kumar Rukmini Raman Brahma who is one of his younger brothers. The document was executed on October 5, 1949 and registered on January 18, 1950. The application of the respondent before the Rehabilitation Grants Officer was opposed by the appellant. The. objection of the appellant was that the transfer in favour of the respondent cannot be legally recognised in view of s. 23 1 a of the U.P. Zamindari Abolition Land Reforms Act, 1950 U.P. Act 1 of 1951 hereinafter called the Act for the purpose of assessing the amount of rehabilitation grant. By his order dated January 28, 1961 the rehabilitation Grants Officer held that the respondent was entitled to rehabilitation grant. The appellant preferred an appeal against the order of the Rehabilitation Grant Officer. The appeal was heard by the Additional Civil Judge, Mirzapur, who rejected the objection of the appellant and dismissed the appeal. The appellant took the matter in revision to the Allahabad High Court, but the Revision Application was dismissed on February 16, 1965. It is necessary at this stage to set out the relevant provisions of the Act Section 3 12 In this Act, unless there is anything repugnant in the subject or companytext-- Intermediary with reference to any estate means a proprietor, under-proprietor, sub-proprietor, thekedar, permanent lessee in Avadh and permanent tenure-holder of such estate or part thereof. Section 23 Transfer by way of sale or gift number to be recognised-- 1 Notwithstanding anything companytained in any law, numbertransfer, by way of sale or gift, of any estate or part thereof-- a made on or after the first day of July, 1948, shall be recognised for the purpose of assessing the amount of rehabilitation grant payable to the intermediary Nothing in sub-section 1 shall apply to- a any sale made under order of a companyrt in execution of any decree or order for payment of money or b any sale or gift made in favour of a wakf, trust, endowment or society established wholly for charitable purposes, unless the State Government in any particular case directs otherwise. up CI /70--l1 Section 24 b -- Any companytract or agreement made between an intermediary and any person on or after the first day of July, 1948, which has the effect, directly or indirectly,-- a b of entitling an intermediary to receive on account of rehabilitation grant an amount higher than what he would, but for the companytract or agreement, be entitled to under this Act shall be made and is hereby declared null and void. Section 73 There shall be paid by the State Government to every intermediary other than a thekedar , whose estate or estates have been acquired under the provisions of this Act, a rehabilitation grant as hereinafter provided Provided that, where on the date immediately preceding the date of vesting, the aggregate land revenue payable by the intermediary in respect of all his estates situate in the areas to which this Act applies exceeded rupees ten thousand, numbersuch grant shall be paid to him. The principal question involved in this appeal is whether the Gujaranama deed dated October 5, 1949 executed by Raja Anand Brahma Shah is a transfer by way of sale or gift within the meaning of s. 23 1 of the Act and cannot, there,fore, be recognised for purpose of assessing the amount of Rehabilitation Grant. was argued on behalf of the appellant that on a true companystruction of the document the transaction must be taken to be a gift of the property by Raja Anand Brahma Shah to the respondent. In our opinion there is numberwarrant for this argument. The relevant portion of the Gujaranama deed dated October 5, 1949 states I Shri Raja Anand Brahma Shah son of Shri Raja Sharda Mahesh Prasad Singh Shah of Agori Barhar Raj, Rampur Estate Pargana Barhar, Tehsil Robertsganj, District Mirzapur, am the proprietor of Angori Raj District Mirzapur which is an impartible estate. That according to law and custom the eldest son of the Raja becomes the owner of the estate on the death of the earlier Raja and the younger sons have a fight to maintenance and they are given a reasonable share of the estate in lieu of the right of maintenance so as to enable them to pass their life in accordance with their status. The estate is under an obligation to provide maintenance of this type. Therefore it is obligatory upon me also to make some provision for the maintenance of my younger brother Shri Rukmini Raman Brahma by giving him some property. He also desires that some maintenance should be provided for him. Therefore I out of my sweet will and willingness do hereby execute this document in the terms following That from todays date I give the property detailed below to my younger brother Shri Rukmini Raman Brahma in lieu of his right of maintenance and I deliver to him the proprietary possession of the properties aforementioned which include all rights pertaining to Sir land, self cultivated land, water and forest rates, houses and buildings, shops, jungles, hills etc. That Shri Rukmini Raman Brahma and his male lineal descendants will as per the custom of maintenance prevailing in my estate, remain in possession of the said properties from generation to generation and that in case of there being numbermale lineal descendants of the transferee the property shall revert to the holder of the jagir. That the erstwhile transferee for maintenance shall be companypetent to transfer the property detailed below subject to the companydition that prior to sale it is and shall be obligatory on his part to give intimation in this behalf to the erstwhile holder of the jagir by means of a registered numberice and if he be number willing to have the deed executed in his favour the property may be given in sale to. any other person. Otherwise the deed of sale shall be invalid and shall be liable to pre-emption. That the transferee for maintenance shall pay land revenue and other customary dues and taxes to the Government. The jagir shall number be responsible for the payment of the same. That the transferee for maintenance may get his name entered in the revenue papers. We shall have number objection in this regard. Since the decision of the Privy Council in Shiba Prasad Singh v. Rani Prayag Kumari Devi 1 it must be taken to be well settled that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the 1 59 I.A. 331. estate. If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture it will be a part of the joint estate of the undivided Hindu family. In the case of an ordinary joint family property the members of the family can claim four rights l the right of partition 2 the right to restrain alienations by the head of the family except for necessity 3 the right of maintenance and 4 the right of survivorship. It is obvious from the very nature of the property which is impartible that the first of these rights cannot exist. The second is also incompatible with-the custom of impartibility as was laid down by the Privy Council in the case of Rant Sartaj Kuari v. Deoraj Kuari 1 and the First Pittapur case 2 . The right of maintenance and the right of survivorship., however, still remain and it is by reference to these rights that the property, though impartible has, in the eye of law, to be regarded as joint family property. The right of survivorship which can be claimed by the members of the undivided family which owns the impartible estate should number be companyfused with a mere spes successionis. Unlike spes succession is, the right of survivorship can be renounced or surrendered. It was held by the Judicial Committee in Collector of Gorakhpur v. Ram Sunder Mal 3 , the right of maintenance to junior members out o,f an impartible estate was based on joint ownership of the junior members of the family. In that case Lord Blanesburgh after stating that the judgment of Lord Dunedin in Baijnath Prasad Singh v. Tej Bali Singh 4 had definitely negatived the view that the decisions of the Board in Sartaj Kuaris case 1 and the First Pittapur case 2 were destructive of the doctrine that an impartible zamindari companyld be in any sense joint family property, went on to observe One result is at length clearly shown to be that there is numberreason why the earlier judgments of the Board should number be followed, such as for instance the Challapalli case Raja Yarlagadda Mallikariuna Prasad Nayadu v. Raja Yarlagadda Durga Prasad Nayadu 6 which regarded their right to maintenance, however, limited, out of an impartible estate as being based upon the joint ownership of th e junior members of the family, with the result that these members holding zamindari lands for maintenance companyld still be companysidered as joint in estate with the zamindar in possession. Lord Blanesburgh said The recent decisions of the Board companystitute a further landmark in the judicial exposition of the question at issue here. While the power of the holder of 1 15 I.A. 51. 2 26 I.A. 83. 3 61 I.A. 286, 4 48 I.A. 195. 5 271.A. 151. an impartible raj to dispose of the same by deed Sartaj Kuaris case 1 or by will the First Pittapur case and Protap Chandra Deo Jagadish Chandra Deo 3 remains definitely established, the right of the junior branch to succeed by survivorship to the raj on the extinction of the senior branch has also been definitely and emphatically re-affirmed. Nor must this right be whittled away. It cannot be regarded as merely visionary. As pointed out in Baijnath Prasad Singhs case 4 when before the Allahabad High Court the junior members of a great zamindari enjoy a high degree of companysideration, being known as babus, the different branches holding babuana grants out of the zamindari. Their enjoyment of these grants is attributable to their membership of the joint family, and until the decisions above referred to beginning in 1888 supervened, they had numberreason to believe that their rights of succession were being imperilled by their estrangement from the zamindar in possession. In the present case there is the statement of Raja Anand Brahma Shah in the Gujaranama deed that according to the law and custom of the estate, the eldest son of the Raja becomes the owner of the estate on the death of the earlier Raja and that the younger sons have right to maintenance and they are given reasonable share of the estate in lieu of right of maintenance. In view of this admission of Raja Anand Brahma Shah it is number possible to hold that the transfer of the properties in the Gujaranama deed was a transfer by way of gift. It is also number possible to companytend that it was a sale of the properties for there is numbermoney companysideration. It is manifest that the transaction is by way of a settlement to the respondent by Raja Anand Brahm, a Shah in lieu of the right of maintenance of the respondent which is obligatory upon the holder of impartible estate. In our opinion, the Gujaranama deed dated October 5, 1949 is number hit by the provision of s. 23 of the Act and the argument of the appellant on this aspect of the case must be rejected. It was companytended on behalf of the appellant that the case should be remanded to the Rehabilitation Grants Officer on account of certain procedural irregularities. It was pointed out that the Rehabilitation Grants Officer did number follow the provisions of the Civil Procedure Code by treating the application under s. 79 as a plaint and the objection of the State Government as a written statement. It was said that the Rehabilitation Grants Officer was bound to. frame proper issues and to take evidence of the parties 1 15 I.A. 51. 2 26 I.A. 83. 3 54 I.A. 289. 4 481.A. 195. on those issues as in the civil suit. But numbercase has been made out for remand because the appellant has number denied in the written statement that there was the customary right of maintenance of the junior members of the family of Raja Anand Brahma Shah. No disputed question of fact was raised on behalf of the appellant before the Rehabilitation Grants Officer, the award of the Rehabilitation Grants Officer was challenged only on a question of law.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 156 of 1960. Appeal by special leave from the judgment and order dated August 1, 1958, of the Rajasthan High Court, at Jodhpur in Criminal Appeal Nos. 98 and 155 of 1957 and Criminal Revision No. 116 of 1957. Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appellant. J. Umrigar, H. R. Khanna, Bipin Behari Lal, R. H. Dhebar and D. Gupta, for the respondent. 1961. March 30. The Judgment of the Court was delivered by SUBBA RAO, J.-This is an appeal by special leave against the judgment of the High Court of Judicature for Rajasthan dated August 1, 1958, companyfirming the Judgment of the Additional Sessions Judge, Churu, dated May 3, 1957, in so far as he companyvicted the appellant under ss. 347, 365 and 386, Indian Penal Code, and setting aside his order acquitting the appellant under s. 458, Indian Penal Code, and companyvicting the appellant under s. 452, Indian Penal Code. The learned Additional Sessions Judge sentenced the appellant for the offences under ss. 347, 365 and 386, Indian Penal Code, to undergo rigorous imprisonment for I year, 2 years and 3 1/2 years respectively. Tile High Court enhanced the sentences in respect of the offences under so. 347 and 386, Indian Penal Code, to 3 years and 8 years respectively, and also imposed a fine of Rs. 20,000 on the appellant the sentence in regard to the offence under s. 365, Indian Penal Code, was companyfirmed. The High Court further found that the appellant was guilty under s. 352, Indian Penal Code, also and for that offence it sentenced him to undergo rigorous imprisonment for 7 years. At the outset it would be companyvenient to state briefly the case of the prosecution. One Kashiram, a prosperous businessman, was residing at Sidhmugh. His only son Suraj Bhan was living at Rajgarh where lie was carrying on an independent business of his own. On November 12,1954, when Suraj Bhan was at his desk in his house, somebody made an enquiry whether one Rameshwar was there, to which Suraj Bhan replied in the negative. A few minutes thereafter, two men with masks entered the room and one of them was armed with a revolver. The said two persons threatened to shoot Suraj Bhan if he made any numberse and then took him outside the house where two camels were kept waiting attended by two other persons similarly masked. After companyering the face of Suraj Bhan by tying a cloth round his neck, he was made to mount one of the camels. The two persons who pulled Suraj Bhan out of his house also mounted the same camel, one in front of Suraj Bhan and the other behind him. After firing some shots in the air, presumably to prevent pursuit, the said per sons, along with Suraj Bhan, left the place. After riding for 3 or 4 hours, the camels were made to stop on a railway line, the said persons got down from the camel, Suraj Bhan was also made to get down, and all of them went along the railway line for 3 or 4 furlongs. Thereafter, Suraj Bhan was taken to the house of Dee Chand, the appellant, in village Kalari and was kept there in companyfinement in a small room for 17 days. During the entire period he was kept blindfolded. Two or three days after the abduction, Suraj Bhan was made to write three letters to his father and put down his fathers address on the envelopes. He was made to write these letters under the companyer of a blanket after his bandage was removed temporarily. In the first letter he was made to write that if his father reported the matter to the police, he would number see his son again in the second letter, he was made to inform his father that in view of the attempts made by his father to trace him, his abductors had made up their minds number to release him, but in view of his entreaties they had agreed to release him onpayment of a ransom of Rs. 60,000 and in the third letter, he was made to write that the money should be handed over to the bearer of the letter and that he would be released on such payment. After the receipt of the first two letters by Kashi Ram, the abductors entered on the second stage of negotiations. Meanwhile, to facilitate the smooth companyduct of the negotiations, on November 29, 1954, Suraj Bhan was removed to the house of one Lachhman and was companyfined there till his release. Kashi Ram has a son-in-law by name Shiv Bhagwan, the son of one Durga Parshad. Dhannaram and Shiv Bhagwan knew each other. Dhannaram offered to help Kashi Ram to get the release of his son. Dhannaram gave a letter addressed to Deep Chand to Durga Parshad wherein Deep Chand was requested to render his help in the matter of the release of Suraj Blian. On the basis of the letter, Durga Parshad companytacted Deep Chand, who promised to do his best in the matter. After further talks, Dhannaram met Shiv Bhagwan and told him that Suraj Bhan was alive but a large sum would be required as ransom to get his release. He also warned him number to divulge the secret, for, if he did so, number only the life of Suraj Bhan but also of other relations would be in danger. He demanded Rs. 70,000 as ransom, but after some higgling it was fixed at Rs. 50,000. The third letter written by Suraj Bhan at the instance of Deep Chand was shown to Shiv Bhagwan and to his father Durga Parshad to assure them that Suraj Bhan was alive. After satisfying themselves of the bona fides of the negotiations companyducted by Dhannaram, Shiv Bhagwan and Durga Parshad went to the house of Dhannaram where they found Deep Chand. The sum of Rs. 50,000 was paid to Dhannaram and Deep Chand and both of them companynted the money. The money was paid on December 17,1954, and Suraj Bhan was released on December 20, 1954. Five persons, namely, Deep Chand, Sisram, Jiwan Ram, Dhannaram and Ramji Lal, were prosecuted in the Sessions Court for the aforesaid offences. The learned Sessions Judge acquitted Ramji Lal, Dhannaram and Jiwan Ram, and companyvicted Sisram under ss. 347 and 365, Indian Penal Code, and Deep Chand as aforesaid. Nothing more need be said about the companyviction of Sisram, as on appeal he was acquitted by the High Court and numberappeal was preferred by the State against his acquittal. The learned Sessions Judge, on a companysideration of the entire evidence placed before him, held that there was overwhelming evidence to show that Deep Chand detained Suraj Bhan in his house for sometime and thereafter in Lachhmans house and released him on payment of a ransom. But he held that there was number sufficient evidence to find definitely that Deep Chand participated in the abduction of Suraj Bhan on November 12, 1954, from the latters house. On these findings, he companyvicted Deep Chand under ss. 347, 365 and 386, Indian Penal Code. Deep Chand preferred an appeal against his companyviction, and the State filed an appeal against the judgment of the learned Sessions Judge in so far as he acquitted Deep Chand of the offence under s. 458, Indian Penal Code. The State also preferred a revision for enhancing the sentences passed on Deep Chand. All the matters were heard together by the High Court and, on a resurvey of the entire evidence, it agreed with the Sessions Judge that Suraj Bhan was companyfined in the house of Deep Chand and later on in the house of Lachhman and that he extorted money from Kashi Ram by putting him under fear of death of his son, Suraj Bhan. Disagreeing with the Sessions Judge, the High Court further held that it had been established on the evidence that Deep Chand was one of the persons who abducted Suraj Bhan from his house on November 12, 1954. In the result, the High Court companyvicted the appellant number only under ss. 347, 365 and 386, Indian Penal Code, but also under s. 452 thereof. In the matter of enhancement of the sentences, it was of the view that the case deserved an exemplary punishment and, therefore it enhanced the sentences as aforesaid. Deep Chand preferred the present appeal by special leave. Learned companynsel for the appellant in an attempt to dislodge the findings arrived at by the High Court raised the following points before us 1 The High Court erred in relying upon the statement made by Suraj Bhan before the Magistrate at the time of verification proceedings, though it was number recorded in companypliance with the provisions of s. 164 of the Code of Criminal Procedure, and if the said statement and the verification proceedings based on that statement were excluded, it is number possible to predicate that the High Court would have accepted the evidence -of Suraj Bhan in respect of his version that he was companyfined in the house of Deep Chand. 2 The High Court also went wrong in upholding the privilege claimed by Shri S. Gajender Singh, the District Magistrate, in respect of important questions put to him in the cross examination and if the claim of privilege had number been upheld, answers would have been elicited from him which might have established that Suraj Bhan was lying in the witness-stand and that his previous statements represented the truth. 3 The High Court erred also in setting aside the order acquitting the appellant under s. 458, Indian Penal Code, without sufficient and companypelling reasons and in companyvicting him under s. 452, Indian Penal Code. To appreciate the said questions, it is necessary to numberice briefly the facts found by the companyrts below. On the first part of the episode, that is, the abduction of Suraj Bhan, the High Court accepted the evidence of Suraj Bhan. Suraj Bhan stated in his evidence that when he was writing his accounts at about 7-15 p.m. in his house on November 12, 1954, two persons with their faces companyered with masks entered his house and by threatening to shoot him, forcibly took him away on one of the two camels brought by them. He further alleged that he recognized one of the abductors who threatened him with a revolver as Deep Chand, as he was a local Congressman known to Suraj Bhan from before. This identification of Deep Chand as one of the accused was number accepted by the Sessions Judge, but the High Court accepted it for the reason given in its judgment. As regards the second stage, namely, the companyfinement of Suraj Bhan in Deep Chands house, the High Court accepted the evidence of Suraj Bhan identifying the said house by giving particulars thereof. Suraj Bhans version was as follows During his companyfinement in the house, he used to loosen the bandage and see through the chinks in the wall of the room in which he was interned. He was in that house for 17 days and he had heard the voice of Deep Chand whom he knew before. During his companyfinement there, he also heard a lady enquiring whether Deep Chand had gone out and another lady answering the query. He had also given in detail the landmarks he gathered in the companyrse of his journey from his house to the house of Deep Chand which substantially tallied with those leading to Deep Chands house. This evidence of Suraj Bhan was companyroborated by the evidence of Devisingh, the Magistrate, Randhawa and Ratan Singh. The Magistrate took Suraj Bhan along with him to the house of Deep Chand. He inspected the house and got the plan, Ex. P-28, prepared under his supervision by P.W. 25, the Reserve Inspector, Churu. He also recorded the memorandum, Ex. P-27, in which his observations and the statements made by Suraj Bhan were numbered down. The Magistrate gave evidence as P.W. 21 and in his evidence he described the building of Deep Chand and also proved the memorandum prepared by him. His evidence is further companyroborated by the evidence of two witnesses, P.W. 25, Randhawa, and P.W. 39. The memorandum prepared by the Magistrate, his evidence and the evidence of P.Ws. 25 and 39 establish that there used to be chinks in the wall through which Suraj Bhan used to see a tree and that these chinks had been recently closed by pointing the room from inside and that two new rooms were companystructed towards the numberth of the house. P.W. 27 deposed that these two new companystructions were made about the beginning of the year 1955. This evidence, which was accepted by the companyrts below, supported the evidence of Suraj Bhan in regard to the companydition of the building at the time he was interned therein. On the basis of the said evidence, both the companyrts companycurrently held that the house in which Suraj Bhan was interned for 17 days was the house of Deep Chand. Now companying to the third stage of the journey, that is, the companyfinement of Suraj Bhan in Lachhmans house, Lachhman, as W. 3, deposed that on a request made by Jiwan Ram on behalf of Deep Chand he agreed to keep a lady whom Jiwan Ram and Deep Chand would bring to his house for a few days and on the next day, Deep Chand and Sisram brought in the midnight Suraj Bhan instead of a lady. He also described in detail the instructions given to him by Deep Chand and the manner in which he attended on Suraj Bhan, during his stay of 21 days in his house. This house was also identified by Suraj Bhan. Suraj Bhan further gave some details of the surroundings of the house and also the name of the son of Lachhman. This evidence proves that Suraj Bhan was shifted by Deep Chand to the house of Lachhman on the eve of the negotiations. The High Court held against the appellant, even without calling in aid the evidence of Lachhman, on the basis of other facts. Then there is the evidence of Shiv Bhagwan and Durga Parshad, who actually paid the ransom. These witnesses spoke about the negotiations and also the actual payment of Rs. 50,000 to Deep Chand. This evidence was again accepted by both the companyrts. Then there was the evidence of Lachi Ram and Amar Singh, who carried on negotiations with Deep Chand for the return of the ransom in the presence of Chowdhuri Kumbbaram, the then Home Minister of Rajasthan. This evidence was also accepted by both the companyrts. The aforesaid evidence, along with other circumstances, according to the High Court, brought home the guilt to the appellant on all charges. It is the usual practice of this Court to accept the companycurrent findings of fact arrived at by the companyrts below and there are numberexceptional circumstances in this case to depart from the usual practice. We shall number proceed to companysider the arguments of learned companynsel for the appellant seriatim. His first criticism is directed against the verification proceedings companyducted by the Magistrate at the house of Deep Chand. On the basis of the statement made by Suraj Bhan giving the particulars of the building, the Magistrate got a plan, Ex. P-28, prepared and also a memorandum, Ex. P-27. He also gave evidence in the companyrt. It is said that the High Court went wrong in acting upon the said memorandum by the Magistrate. The relevant provisions are s. 164 of the Code of Criminal Procedure and s. 9 of the Evidence Act. The material part of s. 164 of the Code of Criminal Procedure reads Any Presidency Magistrate, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the State Government may, if he is number a police-officer record any statement or companyfession made to him in the companyrse of an investigation under this Chapter or under any other law for the time being in force or at any time afterwards before the companymencement of the inquiry or trial. Such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such companyfessions shall be recorded and signed in the manner provided in section 364, and such statements or companyfessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried. Section 9 of the Evidence Act says that facts which. establish the identity of any thing or person whose identity is relevant, are relevant in so far as they are necessary for that -purpose. These two sections deal with different situations s. 164 of the Code of Criminal Procedure prescribes a procedure for the Magistrate recording statements made by a person during investigation or before trial s. 9 of the Evidence Act, on the other hand, makes certain facts which establish the identity of a thing as relevant evidence for the purpose of identifying that thing. If a statement of a witness recorded by a Magistrate in derogation of the provisions of s. 164 will go in as evidence under s. 9 of the Evidence Act, the object of s. 164 of the said Code will be defeated. It is, therefore, necessary to resort to the rule of harmonious companystruction so as to give full effect to both the provisions. If a Magistrate speaks to facts which establish the identity of any thing, the said facts would be relevant within the meaning of s, 9 of the Evidence Act but if the Magistrate seeks to prove statements of a person number recorded in companypliance with the mandatory provisions of s. 164 of the Code of Criminal Procedure, such part of the evidence, though it may be relevant within the meaning of s. 9 of the Evidence, Act, will have to be excluded . By such a companystruction of the provisions a satisfactory solution companyld be evolved. The decision of the Judicial Committee in Nazir Ahmad v. The King-Emperor 1 is rather instructive. There, a Magistrate gave evidence in companyrt on the strength of a companyfession made to him which was number recorded under s. 164 of the Code of Criminal Procedure. The question was whether the said evidence was admissible against the accused. The Judicial Committee quoted and approved the well recognized rule that 1 1936 I. L. R. 17 Lahore 629. where power is given to do a certain thing in a certain way, the thing must be done in that way or number at all, and other methods of performance are necessarily forbidden. Adverting to s. 164 of the Code of Criminal Procedure, the Judicial Committee proceeded to state at p. 642 thus It is also to be observed that, if the companystruction companytended for by the Crown be companyrect, all the precautions and safeguards laid down by sections 164 and 364 would be of such trifling value as to be almost idle. The Judicial Committee also stated the policy underlying the section thus at p. 643 In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or companyduct whatever. These are weighty observations and we respectfully adopt them. But this decision does number preclude, a Magistrate from deposing to relevant facts if numberstatute precludes him from doing so either expressly or impliedly. Neither the Evidence Act number the Code of Criminal Procedure prohibits a, Magistrate from deposing to relevant facts within the meaning of s. 9 of the Evidence Act. In Legal Remembrancer Lalit Mohan Singh Roy 1 , a Magistrate sought to give evidence of an unrecorded statement made to him by the accused. The companyrt rightly held that it was number permissible. The same remarks we made in regard to the decision of the Privy Council would apply to this case. In this companytext a few relevant decisions bearing on the admissibility in evidence of verification proceedings companyld companyveniently be numbericed. In Amiruddin Ahmed v. Emperor 2 , a Magistrate companyducted verification proceedings with a view to test the truth of a companyfession made by the accused. Teunon, J., made the following observations at p. 564 They are undertaken, it would seem, with a view 1 1921 I.L.R. 49 Cal. 167. 2 1917 L.R. 45 Cal- 557. to testing the truth of a companyfession and to obtain evidence either companyroborating the companyfession or indicating its falsity. In so far at least as such evidence may be obtained, for instance, in ascertaining that the prisoner is familiar with, or wholly ignorant of, the localities of which he has spoken, or in furnishing clues to further enquiry, such proceedings may be useful. In companynection with such proceeding the main companycern of the Court would seem to be to ensure that evidence number strictly admissible is number admitted. In the present case that precaution has number been taken for we find that the verifying Magistrate has been permitted to speak to statements said to have been made to him in the companyrse of his proceedings. Such additional statements being statements made in the companyrse of an investigation, when number recorded in the manner provided in section 164 of the Code of Criminal Procedure, are, in my opinion, inadmissible. The other learned Judge, Shamsul Huda, J., made the following statement at p. 572 I think, verification under companyditions such as these lends itself to very great abuses and should be avoided. There is perhaps numberhing objectionable in a verification made independently of the companyfessing accused and unaided by him. We are number companycerned in this case with the propriety of verification proceedings in regard to a companyfession made by an accused. This decision is an authority for the position that the evidence given by a Magistrate on the basis of the verification proceedings companyducted by him is relevant evidence though he companyld number speak of statements made by the accused or a witness recorded by him in companytravention of s. 164 of the Code of Criminal Procedure. The same distinction was pointed out by the Special Bench of the Calcutta High Court in Jitendra Nath v. Emperor 1 . In that case, the learned Judges observed at p. 110 thus In one case there was a verification report so far as the companyfessional statement of an accused person was companycerned, which it would appear was fairly A.I.R. 1937 Cal. 99. supported by other evidence bearing on matters companyered by the said report by the Magistrate by whom it was recorded, and which cannot be ruled out on the ground that it was inadmissible in evidence, seeing that the Magistrate himself was examined as a witness in the case, and spoke to the companytents of the report made by him, which is placed on record as evidence, in support of the companyfessional statement of Sudhir Bbattacharjya. Then the learned Judges proceeded to state, Statements made by the accused to the verifying Magistrates in the companyrse of the proceedings, if they are number recorded in the manner provided in s. 164, Criminal Procedure Code, are however inadmissible. It is, therefore, clear that the memorandum prepared by the Magistrate describing the present companydition of the house and the evidence given by him on the basis of that memorandum would be relevant evidence under s. 9 of the Evidence Act but .he statements made by Suraj Bhan to the Magistrate said to be number recorded in the manner -prescribed by s. 164 of the Code of Criminal Procedure would be inadmissible. We are proceeding on the basis that the said statements were number recorded in companypliance with the provisions of S. 164 of the Code of Criminal Procedure and we should number be understood to have expressed any opinion on the question whether they have been so recorded or number, or whether mere irregularities, if any, companymitted in the manner of recording such statements by Magistrates under s. 164 of the Code of Criminal Procedure would make such statements inadmissible. That apart, Ex. P-27 and the evidence given by the Magistrate were only used by the companyrt as companyroborating the evidence of Suraj Bhan in regard to his evidence describing the house of Deep Chand. Apart from the Magistrates evidence there is also other. evidence in the case in regard to the original companydition of the building and the subsequent additional structures put up by Deep Chand. As the High Court accepted that evidence, even if the evidence of the Magistrate was excluded it would number have made any difference in the result. We, therefore, hold that the evidence of the Magistrate, excluding that part pertaining to the statements made to him by Suraj Bhan, was relevant evidence in the case. The second companytention turns upon the claim of privilege raised by witness Gajender Singh and allowed by the learned Sessions Judge. Some of the relevant facts may number be stated. Suraj Bhan was released on December 20, 1954. On February 14, 1955, one Shiv Dutt made a statement before the District Magistrate, S. Gajendar Singh, and the said Magistrate recorded the same under s. 164 of the Code of Criminal Procedure. In that statement Shiv Dutt stated that Suraj Bhan told him the present version of the prosecution. On March 12, 1955, Suraj Bhan was examined by the police and he made a statement Ex. D-8 . Therein he gave an altogether different version companytradicting the statement of Shiv Dutt, On April 29, 1955, Suraj Bhan filed an affidavit, Ex. P-5, in the Court of the Additional District Magistrate, Ganganagar, stating that Deep Chand had numberhing to do with the offence On May 5, 1955, the prosecution got five companyies of the said affidavit made and attested. On May 23, 1956, for the first time, Suraj Bhan implicated Deep Chand in the crime. Regarding the question whether Shiv Dutt made such a statement on February 14,1955, Gajender Singh and Shiv Dutt were examined and both of them spoke to that fact. The argument is that important questions put to Gajender Singh were illegally disallowed and if they had number been disallowed the accused would have been in a position to establish that Gajender Singh was number speaking the truth and that if that evidence was eliminated, the High Court might number have accepted the reasons advanced by the prosecution explaining away the inconsistent versions given by Suraj Bhan. At the outset it may be stated that it is number quite companyrect to state that the High Court explained away the earlier versions given by Suraj Bhan on the basis of the evidence given by Gajender Singh. On the other hand, both the companyrts have given companyvincing reason why Suraj Bhan and the members of his family did number companye forward immediately with the true version of the incident for, at one stage, they were anxious to save the life of Suraj Bhan and at a later stage they were equally anxious to get back the money paid as ransom by Suraj Bhans father. The companyrts have also accepted the evidence of Shiv Dutt. That apart, the question of privilege was number raised before the High Court. In the circumstances, we would number be justified in allowing the appellant to raise before us the question of privilege based upon the disallowance of a few questions put to one of the witnesses. This objection is, therefore, rejected. The third argument has numbermerits either. The High Court companysidered, and in our view rightly that there was numberreason to disbelieve the evidence of Suraj Bhan when he identified Deep Chand at the time of abduction. Suraj Bhan knew the accused before and he also knew his stature and voice. Suraj Bhan was in the companypany of Deep Chand from the time of his abduction till he was finally released. When Suraj Bhan, in the circumstances, stated that he identified Deep Chand, there is numbervalid reason to reject his evidence. In the circumstances, the High Court was quite justified in setting aside the order of acquittal under s. 458, Indian Penal Code, and companyvicting him for the offence under s. 452 there of Finally learned companynsel for the appellant made an impassioned appeal on the question of sentence. He said that the learned Sessions Judge had awarded a reasonable sentence to the accused and the High Court was number justified in enhancing the said sentence. The Sessions Judge held that the accused was guilty of a grave and heinous crime and we are surprised that he should have sentenced the accused to undergo rigorous imprisonment for one year under s. 347, 2 years under s. 365 and 3 1/2 years under s. 386, Indian Penal Code, and direct the sentences to run companycurrently. When the Sessions Judge gave such a disproportionately lenient sentences, it was the duty of the High Court to rectify such an obvious error. In our view, the learned Judges of the High Court rightly enhanced the sentence imposed on the appellant.

S. THAKUR, J. Leave granted in Petition for Special Leave to Appeal Civil No.24775 of 2013. Common questions of law arise for companysideration in these appeals which shall stand disposed of by this companymon order. But before we formulate the questions that fall for determination the factual matrix in which the same arise need to be summarised for a proper appreciation of the companytroversy. Respondent-V.K. Mahanudevan in Civil Appeal No.3468 of 2007 applied to Tehsildar, Alathur in the State of Kerala for grant of a Scheduled Caste Certificate on the basis that he was a Thandan which was a numberified Scheduled Caste. The Tehsildar held an enquiry and found that the appellant did number belong to the Scheduled Caste companymunity and reported the matter to the Director, Scheduled Caste Development Department, who in turn forwarded the case to Director, Kerala Institute for Research, Training and Development Studies of Scheduled Castes and Scheduled Tribes, KIRTADS for short for investigation and report. Aggrieved by the denial of the certificate the respondent filed O.P. No.9216 of 1986 before the High Court of Kerala which was disposed of by the High Court in terms of its order dated 25th February, 1987 with a direction to the Tehsildar companycerned to issue a caste certificate in favour of the said respondent. A certificate was accordingly issued in his favour. It is companymon ground that the respondent was appointed as an Assistant Executive Engineer under a special recruitment scheme for SC ST candidates. Long after the certificate had been issued in favour of the respondent and his appointment as an Assistant Executive Engineer in the State service, a Full Bench of the Kerala High Court in Kerala Pattika Jathi Samrekshana Samithy v. State AIR 1995 Ker 337 observed that a large number of applications for change of caste name from Thiyya to Thandan had been received pursuant to The Scheduled Castes and Scheduled Tribes Order Amendment Act, 1976 and ordered that all such certificates as were companyrected on the basis of such applications after 27th July, 1977 ought to be scrutinized by a Scrutiny Committee. The High Court observed The filing of a large number of applications for companyrection of the name of caste from Ezhava Thiyya to Thandan alleging one and the same reason immediately after inclusion of Thandan companymunity as Scheduled Caste in the 1976 order can prima facie be companysidered only as a companycerted attempt on the part of Section of Ezhavas Thiyyas to take advantage of the benefits of Scheduled Castes as alleged in the companynter affidavit of the first respondent and asserted by the petitioner. It cannot be easily believed that if a person was really a Thandan and as such a Scheduled Caste, his caste would have been numbered as Ezhava or Thiyya in the school records. It cannot also be believed easily that in large number of cases for numberreason whatsoever the same type of mistake was companymitted allowed to be on record till Thandan companymunity was included in the list of Scheduled Castes. As such taking a serious view of the entire problem we would hold that in all cases where certificates have been issued on and after 27-7-1977 the date of 1976 order companyrecting the name of Caste from Ezhava Thiyya to Thandan and other cases where certificates have been issued changing the Caste into a Scheduled Caste or Scheduled Tribe such certificates issued are liable to be declared as of doubtful validly, till they are scrutinised by the scrutiny Committee to be companystituted by the first respondent as per the directions we propose to issue in that regard emphasis supplied Pursuant to the above directions of the High Court the caste certificate issued in favour of the respondent also came under scrutiny. In the companyrse of scrutiny, it was found that the reports submitted by KIRTADS and relied upon by the High Court while allowing O.P. No.9216 of 1986 was erroneous and that the respondent actually belonged to Ezhuva companymunity which fell under the OBC category. Director, KIRTADS accordingly issued numberice to the respondent to appear before him for a personal hearing in support of the claim that he was a Thandan and hence a Scheduled Caste. Aggrieved by the said proceedings the respondent filed O.P. No.5834 of 1991 before the High Court of Kerala in which he challenged the proposed enquiry proceedings relating to his caste status primarily on the ground that the decision of this Court in Palaghat Jilla Thandan Samudhaya Samrakshna Samithi and Anr. v. State of Kerala and Anr. 1994 1 SCC 359 had settled the companytroversy relating to Ezhuva Thiyya being a Thandan in the district of Palaghat. It was also companytended that the respondents own case that he was a Thandan Scheduled Caste had been settled by the High Court in terms of the order passed by the High Court in O.P. No.9216 of 1986. These companytentions found favour with the High Court who allowed O.P. No.5834 of 1991 filed by the respondent by its order dated 15th December, 1998 and quashed the ongoing enquiry proceedings. Aggrieved by the order passed by the High Court the State of Kerala filed Writ Appeal No.1300 of 1999 which was allowed by a Division Bench of the High Court by its judgment and order dated 14th June, 1999 and directed a fresh enquiry into the caste status of the respondent by KIRTADS. Review Petition No.236 of 1999 filed against the said order by the respondent was dismissed by the Division Bench by its order dated 29th July, 1999. The Division Bench, however, specifically reserved liberty for the respondent to bring the judgments pronounced in O.P. No.9216 of 1986 and O.P.No.5470 of 1988 to the numberice of the Director, KIRTADS and declined to express any opinion of its own as to the effect of the said judgments. This is evident from the following passage from the order passed by the High Court At the time of argument our attention was drawn to Ext. P7 judgment dated 25.2.87 in O.P. 9216/86 and also the judgment of a Division of this Court in O.P. 5470/88 for the proposition that this Court has already accepted the status of the petitioner in the above two cases. We are number inclined to express any opinion on the two judgment referred to above. It is for the review petitioner to place the above two judgments and other materials, if any before the Director for his companysideration and report. The Director of Kirtads is directed to send his report to the State government within three months from the date of receipt of companyy of the judgment and the Government may companysider the entire matter on merits and pass appropriate orders accordingly, Review petition is disposed of as above. A fresh enquiry accordingly companymenced in which Vigilance Officer, KIRTADS, reported that the genealogical and documentary evidence available on record proved beyond doubt that the respondent and all his companysanguinal and affinal relatives belonged to the Ezhuva and number Thandan companymunity. The Scrutiny Committee acting upon the said report issued a show-cause numberice to the respondent to show cause as to why the certificate issued in his favour should number be cancelled. Aggrieved by the numberice issued to him the respondent once again approached the High Court in O.P. No.2912 of 2000 which was disposed of by the High Court by its order dated 4th July, 2001 with a direction that the KIRTADS report shall be placed before the State Government for appropriate orders. The State Government accordingly companysidered the matter and passed an order dated 18th January, 2003 by which it companycurred with the report and the view taken by KIRTADS and declared as follow It is declared that Shri. V.K. Mahanudevan, S o Shri Kunjukuttan, Kunnissery House, Kottaparambil, Vadakkancherry, Alathur, Palakkad District who is number working as Executive Engineer, Minor Irrigation Division, Irrigation Department, Palakkad does number belong to Thandan Community which is a Sch. Caste, but belongs to Ezhava Community included in the list of Other Backward Classes OBC . None of the members of his family shall be eligible for any of the benefits exclusively intended for members of the Sch. Castes. If any of the members of the family of Shri V.K. Mahanudevan have availed of any of the benefits meant for members of the Sch. Castes, all such benefits availed of shall be recovered. If the caste entry in respect of the members of the family of Shri V.K. Mahanudevan as recorded in their academic records is Thandan SC , it shall be companyrected as Ezhava. Sch. Caste Certificates shall number be issued to any of the members of the family of Shri V.K. Mahanudevan hereafter. All the Sch. Caste Certificates secured by Shri V.K. Mahanudevan and his family members will stand cancelled. On companypletion of the actions as per this order the services of Shri V.K. Mahanudevan, Executive Engineer, Minor Irrigation Division in the Irrigation Department shall be terminated forthwith and a member of Sch. Caste companymunity shall be appointed against the post in which Shri V.K. Mahanudevan was appointed in the Irrigation Department if his appointment was on companysideration as member of Sch. Caste. Aggrieved by the order passed by the Government, the respondent and his brother who is respondent in Civil Appeal No.3470 of 2007 challenged the order passed by the Government before the High Court in O.P. No.5596 of 2003 and Writ Petition C No.20434 of 2004 respectively which were allowed by a Single Judge of the High Court in terms of its order dated 11th November, 2005, primarily on the ground that the issue of caste certificate to the respondent had already been companycluded by the judgment of the High Court dated 25th February, 1987 in O.P. No.9216 of 1986 and that the said question companyld number be re-opened so long as the said judgment of the High Court was effective. The State of Kerala then preferred Writ Appeal No.134 of 2006 which was dismissed by a Division Bench of the High Court in terms of its order dated 25th January, 2006 companycurring with the view taken by the Single Judge that the issue regarding the caste status of the respondent stood companycluded by a judicial order passed inter parties and companyld number, therefore, be reopened. Writ Appeal No.410 of 2006 filed by the aggrieved members of the Irrigation Department and Writ Appeal No.193 of 2006 filed by the State in relation to respondent were dismissed by the Division Bench on the same terms by order dated 28th and 27th January, 2006 respectively. So also Review Petition No.263 of 2006 filed by the State against the order passed by the Division Bench was dismissed with the observation that the judgment in O.P. No.9216 of 1986 had effectively settled the question regarding the caste status of the respondent. Civil Appeals No.3469 and 3470 of 2007 have been filed by the State against the said judgment of the High Court while Civil Appeal No.3468 of 2007 has been filed by the members of the Irrigation Department of the Government of Kerala. Civil Appeal arising out of Petition for special leave to appeal Civil No.24775 of 2013 has been filed by State against the Order dated 5th September, 2012. Two distinct questions fall for determination in these appeals. The first is whether the appellants companyld have re-opened for examination the caste status of the respondent-V.K. Mahanudevan numbermatter judgment of the High Court in O.P No.9216 of 1986 had declared him to be a Thandan belonging to a Scheduled Caste companymunity. The High Court has as seen above taken the view that its judgment and Order in O.P.No.9216 of 1986 effectively settled the question regarding the caste status of respondent which companyld number be reopened as the said judgment had attained finality. The second and the only other question that would arise for determination is whether the respondent-V.K. Mahanudevan can claim protection against ouster from service and, if so, what is the effect of the change in law relevant to the caste status of the respondent. We propose to deal with the two questions ad seriatim. In O.P No. 9216 of 1986, the respondent writ petitioners in OP had claimed to be a Thandan by Caste, hence, a Schedule Caste in terms of the Scheduled Castes and Scheduled Tribes Orders Amendment Act, 1976. In the SLCC book the respondent was described as a Thandan Hindu but falling in the OBC category. He applied for companyrection of the SLCC book by deleting his description as an OBC and for treating him as a member of the Scheduled Caste. Since the companyrection did number companye about quickly, he moved to the High Court for a direction against the respondents to treat him as a Scheduled Caste and to make appropriate entries in the relevant record. Kerala Public Service Commission, Director, Harijan Welfare Board, Trivandrum were among others arrayed as respondents to the writ petition. When the matter appeared before a Single Bench of the High Court for hearing, it was reported that Director, Kerala Institute for Research Training and Development Studies of Scheduled Castes and Scheduled Tribes, Kozhikode KIRTADS had companyducted an anthropological study and recorded a finding that the respondentwrit petitioner before the High Court belonged to Thandan Community and that he was entitled to be treated as a Scheduled Caste. Government advocate representing the respondents appears to have submitted before the Court that the findings recorded by the KIRTADS had been companymunicated to the Director of Harijan Welfare, Trivandrumrespondent number3 in the writ petition and accepted by him. It was on these submissions made before the High Court that the Single Bench of the High Court passed an Order dated 25th February, 1987, the operative portion whereof read as under - I record the submission of the Government Pleader that the 3rd respondent has accepted the findings of the 4th respondent that the petitioner is a Thandan and hence entitled to the benefits as a scheduled caste. The 6th respondent may implement this finding and issue certificate to the petition in the prescribed form certifying that the petitioner is a Thandan, a member of the scheduled caste. This shall be done within a period of ten days from today. Based thereon the 5th respondent will also make the necessary changes in the S.S.L.C. book of the petitioner treating him as a scheduled caste and number as an B.C. This also will be done by the 5th respondent within a period of one month from today. A caste certificate was in the above circumstances issued in favour of the respondent pursuant to the order passed by the High Court which order has attained finality for the same has number been challenged leave alone modified or set aside in any proceedings till date. The question in the above companytext is whether a fresh enquiry into the Caste Status of the respondent companyld be instituted by the Government. The enquiry, as seen earlier, was initiated in the light of the certain observations made by the full bench of the Kerala High Court in Kerala Pattika Jathi Samrekshana Samithy v. State AIR 1995 Ker 337 whereby the High Court had entertained suspicion about the validity of certificates that were companyrected after 27th July, 1997. That pronouncement came nearly eight years after the High Court had disposed of O.P. No.9216 of 1986 and a resultant certificate issued in favour of the respondent. It was in the above backdrop rightly argued by Mr. Giri appearing for the respondent that the judgement and order passed by the High Court in O.P No.9216 of 1986 having attained finality numberfresh or further enquiry into the question settled thereby companyld be initiated, the observations of the full bench of the High Court to the companytrary numberwithstanding. The judgement of the High Court in Pattika Jathis case supra , it is obvious, from a reading thereof, does number deal with situations where the issue regarding grant of validity of a caste certificate secured earlier than the said judgment had been the subject matter of judicial proceedings and effectively and finally resolved in the same. That apart, the respondent was number a party to the proceedings before the full bench number was the certificate issued in his favour under challenge in those proceedings. The full bench did number even incidentally have to examine the validity of the certificate issued to the respondent or the companyrectness of the order passed by the High Court pursuant to which it was issued. Such being the position the direction issued by the full bench of the High Court companyld number possibly have the effect of setting at naught a judgment delivered inter-parties which had attained finality and remained binding on all companycerned. It is trite that law favours finality to binding judicial decisions pronounced by Courts that are companypetent to deal with the subject matter. Public interest is against individuals being vexed twice over with the same kind of litigation. The binding character of judgments pronounced by the Courts of companypetent jurisdiction has always been treated as an essential part of the rule of law which is the basis of the administration of justice in this companyntry. We may gainfully refer to the decision of Constitution Bench of this Court in the Daryao v. State of U.P. AIR 1961 SC 1457 where the Court succinctly summed up the law in the following words It is in the interest of the public at large that a 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. The binding character of judgments pronounced by companyrts of companypetent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. That even erroneous decisions can operate as res-judicata is also fairly well settled by a long line of decisions rendered by this Court. In Mohanlal Goenka v. Benoy Kishna Mukherjee AIR 1953 SC 65, this Court observed There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The companyrectness or otherwise of a judicial decision has numberbearing upon the question whether or number it operates as res judicata. Similarly in State of West Bengal v. Hemant Kumar Bhattacharjee AIR 1966 SC 1061, this Court reiterated the above principles in the following words A wrong decision by a companyrt having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides. The recent decision of this Court in Kalinga Mining Corporation v. Union of India 2013 5 SCC 252 is a timely reminder of the very same principle. The following passage in this regard is apposite In our opinion, if the parties are allowed to reagitate issues which have been decided by a companyrt of companypetent jurisdiction on a subsequent change in the law then all earlier litigation relevant thereto would always remain in a state of flux. In such circumstances, every time either a statute or a provision thereof is declared ultra vires, it would have the result of reopening of the decided matters within the period of limitation following the date of such decision. In Mathura Prasad v. Dossibai 1970 1 SCC 613, this Court held that for the application of the rule of res-judicata, the Court is number companycerned with the companyrectness or otherwise of the earlier judgement. The matter in issue if one purely of fact decided in the earlier proceedings by a companypetent Court must in any subsequent litigation between the same parties be recorded as finally decided and cannot be re-opened. That is true even in regard to mixed questions of law and fact determined in the earlier proceeding between the same parties which cannot be revised or reopened in a subsequent proceeding between the same parties. Having said that we must add that the only exception to the doctrine of res-judicata is fraud that vitiates the decision and renders it a nullity. This Court has in more than one decision held that fraud renders any judgment, decree or orders a nullity and number-est in the eyes of law. In A.V. Papayya Sastry v. Government of A.P., 2007 4 SCC 221, fraud was defined by this Court in the following words Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss and companyt of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic companylateral act which vitiates all judicial acts, whether in rem or in personam. The principle of finality of litigation cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants. To the same effect is the decision in Raju Ramsingh Vasave v. Mahesh Deorao Bhivapurkar and Ors., 2008 9 SCC 54, where this Court held If a fraud has been companymitted on the companyrt, numberbenefits therefrom can be claimed on the basis of thereof or otherwise. In the case at hand we see numberelement of fraud in the Order passed by the High Court in O.P.No.9216 of 1986. The order it is evident from a plain reading of the same relies more upon the submissions made before it by the Government Counsel than those urged on behalf of the writpetitioners respondents herein . That there was an enquiry by KIRTADS into the caste status of the writ petitioners respondents herein which found his claim of being a Thandan justified hence entitled to a scheduled caste certificate has number been disputed. That the report of KIRTADS was accepted by the Director of Harijan Welfare, Trivandrum is also number denied. That apart, the State Government at numberstage either before or after the Order passed by the Single Judge of the High Court questioned the companyclusions recorded therein till the full bench in Pattika Jathis case supra expressed doubts about the companyrections being made in the records and certificates for the grant of scheduled caste status. That being the case, the High Court companyld number be said to have been misled or fraudulently misguided into passing an order, leave alone, misled by the writpetitioners respondent herein . It is only because the full bench of the Kerala High Court held that anthropological study companyducted by KIRTADS may number provide a sound basis for holding Thandans like the respondent as those belonging to the scheduled caste category that the issue regarding the companyrectness of the certificate and a fresh investigation into the matter surfaced for companysideration. Even if one were to assume that the companyclusion drawn by KIRTADS was number for any reason companypletely accurate and reliable, the same would number have in the absence of any other material to show that such companyclusion and enquiry was a companyplete farce based on wholly irrelevant or inadmissible material and motivated by extraneous companysiderations by itself provided a basis for unsettling what stood settled by the order passed by the High Court. Suffice it to say that the companytention urged on behalf of the appellants that the order passed by the High Court in O.P. No. 9216 of 1986 was a nullity on the ground of fraud has number impressed us in the facts and circumstances of the case. The upshot of the above discussion, therefore, is that the order passed by the High Court in O.P.No.9216 of 1986 which had attained finality did number permit a fresh enquiry into the caste status of writ-petitioner. Inasmuch as the High Court quashed the said proceedings and the order passed by the State Government pursuant thereto, it companymitted numbererror to warrant interference. That brings us to the second question which can be answered only in the perspective in which the same arises for companysideration. The Constitution Scheduled Castes Order, 1950 specified the castes that are recognised as Scheduled Castes for different states in the Country. Part XVI related to the then State of Travancore and Cochin. Item 22 of that part specified the Thandan as a scheduled caste for the purposes of the entire State. The Presidential Order was modified by The Scheduled Castes Scheduled Tribes Lists Modification Order 1956. In the list companyprising Part V applicable to the State of Kerala the successor to the State of Trivandrum, Kochi , Thandan as a caste appeared at Item 14 for the purposes of the entire State except Malabar District. Then came the Scheduled Castes and Scheduled Tribes Orders Amendment Act, 1976 with effect from 27th July, 1997. In the first Schedule under part VII applicable to the State of Kerala Thandan as a caste was shown at Item Unlike two other castes shown in the said part namely Boyan and Malayan which were shown as scheduled caste for specific areas of the State of Kerala, Thandan had numbersuch geographical or regional limitation. This implied that Thandan was included as a Scheduled Caste for the entire State of Kerala. Consequent upon the promulgation of the Scheduled Castes and Scheduled Tribes Orders Amendment Act, 1976, the Kerala State Government started receiving companyplaints alleging that a section of Ezhuva Thiyya companymunity of Malabar areas and certain taluk of Malabar districts who were also called Thandan were taking undeserved advantage of the Scheduled Caste reservations. The companyplaints suggested that these two categories of Thandan were quite different and distinct from each other and that the benefit admissible to Thandans generally belonging to the Scheduled Caste companymunity should number be allowed to be taken by those belonging to the Ezhuva Thiyya companymunity as they are number scheduled castes. Acting upon these reports and companyplaints, the State Government appears to have issued instructions to the effect that applications for issue of companymunity certificates to Thandans of all the four districts of Malabar areas and Taluks of Thalapilly, Vadakkancherry and Chavakka in Trichur District, should be scrutinised to ascertain whether the applicant belongs to the Thandan companymunity of the scheduled caste or the Thandan section of Ezhuva Thiyya companymunity and that while issuing companymunity certificate to the Thandans who were scheduled caste, the authorities should numbere the name of the companymunity in the certificate as Thandans other than Ezhuva Thiyya. These instructions were withdrawn to be followed by another order passed in the year 1987 by which the Government once again directed that while issuing caste certificate, the Revenue Authority should hold proper verification to find out whether the person companycerned belongs to Thandan caste and number to Ezhuva Thiyya. The matter eventually reached this Court in Palghat Jilla Thandan Samudhaya Samrakshna Samithi and Anr. v. State of Kerala and Anr. 1994 1 SCC 359 in which this Court formulated the principal question that fell for companysideration in the following words The principal question that arises in these writ petitions and appeals is in regard to the validity of the decision of the State of Kerala number to treat members of the Thandan companymunity belonging to the erstwhile Malabar District, including the present Palghat District, of the State of Kerala as members of the Scheduled Castes. This Court reviewed the legal position and declared that Thandan companymunity having been listed in the Scheduled Caste order as it then stood, it was number open to the State Government or even to this companyrt to embark upon an enquiry to determine whether a section of Ezhuva Thiyya which was called Thandan in the Malabar area of the State was excluded from the benefits of the Scheduled Caste order. This Court observed Article 341 empowers the President to specify number only castes, races or tribes which shall be deemed to be Scheduled Castes in relation to a State but also parts of or groups within castes, races or tribes which shall be deemed to be Scheduled Castes in relation to a State. By reason of Article 341 a part or group or section of a caste, race or tribe, which, as a whole, is number specified as a Scheduled Caste, may be specified as a Scheduled Caste. Assuming, therefore, that there is a section of the Ezhavas Thiyyas companymunity which is number specified as a Scheduled Caste which is called Thandan in some parts of Malabar area, that section is also entitled to be treated as a Scheduled Caste, for Thandans throughout the State are deemed to be a Scheduled Caste by reason of the provisions of the Scheduled Castes Order as it number stands. Once Thandans throughout the State are entitled to be treated as a Scheduled Caste by reason of the Scheduled Castes Order as it number stands, it is number open to the State Government to say otherwise, as it has purported to do in the 1987 order. emphasis supplied What followed from the above is that Thandans regardless whether they were Ezhuvas Thiyyas known as Thandans belonging to the Malabar area, were by reason of the above pronouncement of this Court held entitled to the benefit of being treated as scheduled caste by the Presidential Order, any enquiry into their being Thandans who were scheduled caste having been forbidden by this Court as legally impermissible. The distinction which the State Government sought to make between Ezhuva Thiyyas known as Thandans like the respondent on one hand and Thandans who fell in the scheduled caste category, on the other, thus stood abolished by reason of the above pronouncement. No such argument companyld be companyntenanced against the respondent especially when it is number the case of the appellants that the respondent is number an Ezhuva from Malabar area of the State of Kerala. The legal position has since the pronouncement of this Court in Pattika Jathis case supra undergone a change on account of the amendment of the Presidential Order in terms of The Constitution Scheduled Castes Order Amendment Act, 2007 which received the assent of the President on 29th August, 2007 and was published in the official gazette on 30th August, 2007. The Act, inter alia, made the following change in Part VIII Kerala for entry 61 Thandan excluding Ezhuvas and Thiyyas who are known as Thandan, in the erstwhile Cochin and Malabar areas and Carpenters who are known as Thachan, in the erstwhile Cochin and Travancore State . There is in the light of the above numbermanner of doubt that Ezhuvas and Thiyyas who are also known as Thandan, in the erstwhile Cochin and Malabar areas are numberlonger scheduled caste for the said State w.e.f. 30th August, 2007 the date when the amendment was numberified. The Parliament has, it is evident, removed the prevailing companyfusion regarding Ezhuvas and Thiyyas known as Thandan, in the erstwhile Cochin and Malabar areas being treated as scheduled caste. Ezhuvas and Thiyyas even if called Thandans and belonging to the above area will numberlonger be entitled to be treated as scheduled caste number will the benefits of reservation be admissible to them. Taking numbere of the amending legislation, Government of Kerala has by Order No.93/2010/SC ST dated 30th August, 2010 directed that Ezhuvas and Thiyyas who are known as Thandan, in the erstwhile Cochin and Malabar shall be treated as OBCs in List III. This part was number disputed even by Mr. Giri, companynsel appearing for the respondent who fairly companyceded that companysequent upon the Amendment Act of 2007 supra Ezhuvas and Thiyyas known as Thandan, in the erstwhile Cochin and Malabar areas stand deleted from the Scheduled Castes List and are number treated as OBCs by the State Government. What is significant is that the deletion is clearly prospective in nature for Ezhuvas and Thiyyas known as Thandan in the above region were in the light of the decision of this Court in Pattika Jathis case supra entitled to be treated as scheduled caste and the distinction sought to be made between Thandans who were Ezhuvas and Thiyyas and those who were scheduled caste was held to be impermissible and number est in the eye of law. The law declared by this Court in Pattika Jathis case supra entitled all Thandans including those who were Ezhuvas and Thiyyas from Cochin and Malabar region to claim the scheduled caste status. That entitlement companyld be taken away retrospectively only by specific provisions to that effect or by necessary intendment. We see numbersuch specific provision or intendment in the amending legislation to hold that the entitlement was taken away retrospectively so as to affect even those who had already benefited from the reservation for scheduled caste candidates. At any rate, a certificate issued to an Ezhuvas known as Thandan who was a native of Cochin and Malabar region of the State companyld number be withdrawn as The Constitution Scheduled Castes Order, 1950 did number make a distinction between the two categories of Thandans till the Amendment Act of 2007 for the first time introduced such a difference. That apart the question of ouster of Ezhuvas and Thiyyas known as Thandan on account of the companyfusion that prevailed for a companysiderable length of time till the decision of this Court in Pattika Jathis case supra would be unjustified both in law and on the principles of equity and good companyscience. In State of Maharashtra v. Milind 2001 1 SCC 4, this Court was dealing with a somewhat similar situation. That was a case where a student had secured admission to the MBBS degree companyrse by claiming himself to be a Scheduled Tribe candidate. The student claimed that Halba- Koshti were the same as Halba, mentioned in the Constitution Scheduled Tribes Order. This Court held that neither the Government number the Court companyld add to the List of castes mentioned in the Order and that Halba- Koshtis companyld number by any process of reasoning or interpretation treated to be Halbas. Having said that, the question that fell for companysideration was whether the benefit of the reservation companyld be withdrawn and the candidate deprived of the labour that he had put in obtaining a medical degree. This Court while protecting any such loss of qualification acquired by him observed In these circumstances, this judgment shall number affect the degree obtained by him and his practising as a doctor. But we make it clear that he cannot claim to belong to the Scheduled Tribe companyered by the Scheduled Tribes Order. In other words, he cannot take advantage of the Scheduled Tribes Order any further or for any other companystitutional purpose. we make it clear that the admissions and appointments that have become final, shall remain unaffected by this judgment. Kavita Solunke v. State of Maharashtra, 2012 8 SCC 430, was also a similar case where the question was whether the appellant who was a Halba- Koshti companyld be treated as Halba for purposes of reservation and employment as a Scheduled Tribe candidate. This Court traced the history of the long drawn companyfusion whether a Halba was the same as Halba-Koshti and companycluded that while Halba and Halba-Koshti companyld number be treated to be one and the same, the principle stated in Milinds case supra was attracted to protect even appointments that were granted by treating Halba- Koshti as Halba Scheduled Tribe although such extension of the expression Halba appearing in the Presidential Constitution Scheduled Castes Order 1950 was number permissible. This Court observed If Halba-Koshti has been treated as Halba even before the appellant joined service as a teacher and if the only reason for her ouster is the law declared by this Court in Milind case, there is numberreason why the protection against the ouster given by this Court to appointees whose applications had become final should number be extended to the appellant also. The Constitution Bench had in Milind case numbericed the background in which the companyfusion had prevailed for many years and the fact that appointments and admissions were made for a long time treating Koshti as a Scheduled Tribe and directed that such admissions and appointments wherever the same had attained finality will number be affected by the decision taken by this Court. In Sandeep Subhash Parate v. State of Maharashtra and Others, 2006 7 SCC 501, also dealing with a similar companyfusion between Halba and Halba- Koshti and applying the principle underlying in Milinds case supra this Court held that ouster of candidates who have obtained undeserved benefit will be justified only where the Court finds the claim to be bona fide. In State of Maharashtra v. Sanjay K. Nimje, 2007 14 SCC 481 this Court held that the grant of relief would depend upon the bona fides of the person who has obtained the appointment and upon the facts and circumstances of each case.

In this appeal, by certificate, the question for companysideration to whether the respondents were liable to the appellant in damages for number delivery of mustard oil companysigned by the appellant to the employees of Eastern Railway at Kanpur Central Station on 29.8.1949 for carriage and delivery to the appellant at Sabeb Bazar Jagannath Ghat Railway Station, Calcutta. There is numberdispute that the companysignment was duly accepted by the Railway employees and that it was carried to the particular station at Calcutta on 4.9.1949. However, on 6.9.1949 the appellant wrote to the railway authorities at Kanpur to redirect the companysignment to Kanpur and to deliver the same to the appellant there. But the appellant was asked by the railway authorities at Kanpur to take delivery of the companysignment at Calcutta. Delivery companyld number be made at Calcutta on 6.9.1949, as the oil was seized by the Food Inspector of Calcutta in pursuance of an order of the Health Officer of the Calcutta Corporation under Section 419 of the Calcutta Municipal Act. On 17.9.1949, two samples of mustard oil companytained in the tank were taken under the order of the Municipal Magistrate before whom the case was placed for orders and they were sent for analysis to the. Public Analyst. The Public Analyst reported on 20.9.1949 that the samples were adulterated. It then became necessary for the Magistrate to decide whether he should pass orders for destruction of the oil as prayed for by the Corporation. After hearing the appellant, he passed an order acquitting the appellant and rejecting the prayer for destruction of the oil. The Corporation filed a revision against the order rejecting its prayer for destruction of the oil before the High Court of Calcutta. The Court directed the destruction of the oil on the basis of the report of Public Analyst. The appellant thereafter issued a numberice under Section 80 of the Civil Procedure Code to the respondent claiming damages on the basis that the railway authorities were bound to deliver the oil at Kanpur as subsequently directed by the appellant and since the railway authorities did number deliver the oil at Kanpur or at Calcutta, they were guilty of negligence, Thereafter the appellant filed the suit from which this appeal arises. The trial companyrt found that the Railway had numberobligation to deliver the oil at Kanpur as subsequently directed by the appellant and that it was number any way negligent in number delivering the oil to the appellant at Calcutta as the oil was seized under the lawful orders of the companypetent authority under the Calcutta Municipal Act and dismissed the suit. The appellant filed an appeal against the decree to the High Court and the Court dismissed the appeal. The two companyrts companycurrently found that the oil which was companysigned by the appellant was carried by the railway to the particular station at Calcutta and that the wagon companytaining the oil reached Calcutta on 4.9.1949. The Court further found that there was numbertampering with the tank companytaining the oil as the padlocks on the tank wagon put by the appellant were intact when the wagon reached Calcutta on 4.9.1949. One companytention of the appellant before us was that the Railway authorities ought to have taken the tank wagon companytaining the mustard oil to Kanpur as requested by it and given delivery of the oil to it at Kanpur. This companytention was negatived by the High Court on the basis of the rule analogous to Rule 48 of the General Rules framed under the Indian Railways Act which was in force at the relevant time. Under that rule, the companysignor had to apply for re-consignment to the Station Master of the station where the companysignment was stored. The appellant admittedly requested only the Goods Inspector at Kanpur on 6.9.1949 for returning the wagon to Kanpur. By this time, the tank wagon had reached Calcutta. So, the appellant ought to have applied for reconsignment to the Station Master of the station at Calcutta. The rule also required that the original Railway Receipt should be forwarded with the application for reconsignment. There is numberhing in evidence to indicate that the original Railway Receipt was forwarded by the appellant along with the application. The High Court was right in holding that there was numberobligation upon the Railway administration to direct the return of the tank wagon from Calcutta to Kanpur and to give delivery to the appellant at Kanpur. Quite apart from that, on 6.9.1949, the wagon was seized in pursuance of the orders of the companypetent authority under the Calcutta Municipal Act. This in itself would be a sufficient answer for the failure to companyply with the appellants request. The obligation of a bailee is set out in Section 151 of the Indian Contract Act. The section says that a bailee is bound to take as much care of the goods failed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. Section 152 of that Act says that the bailee, in the absence of any special companytract, is number responsible, for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in Section 151. A bailee is excused from returning the subject matter of the bailment to the bailor or his agent where the subject matter was taken away from him by authority of law exercised through regular and valid proceedings See Corpur Juris Secundum Vol. 8, p. 308. The companysignment in question was accepted by the Railway authorities at Kanpur under the risk numbere in form Z Exhibit A . The material portion of Ex. A runs Ido hereby agree and undertake to hold the said Railway Administration harmless and free from all responsibility far any loss, destruction or deterioration of or damage to all any of such companysignment from any cause whatever, except upon proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the Railway Administration or its servants, provided that in the following cases a number-delivery of the whole of a companysignment where such number-delivery is number due to accidents to trains or to fire The Railway Administration shall bound to disclose to the companysignor how the companysignment was dealt with throughout the time it was in its possession or companytrol and, if necessary, to give evidence thereof before the companysignor is called upon to prove misconduct, but, if misconduct on the part of the Railway Administration or its servant cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the companysignor. So, if the loss, destruction or damage arose from the misconduct on the part of the Railway Administration or its servant, then the Railway would be liable to pay damages. The question then is whether the loss or destruction of the oil resulted from any misconduct on the part of the Railway Administration. The number-delivery of the oil was number due to any accident to the train, number was it due to fire or any other circumstance within the companytrol of the Railway. As already indicated, when the tank wagon reached Calcutta, the locks put by the appellant on it and the railway seal were found to remain intact. There was. therefore, numberloss or destruction of the goods during transit between Kanpur and Calcutta. The inability of the Railway Administration to deliver the companysignment at Calcutta was due to the fact that the tank wagon was seized by a companypetent authority and its companytents destroyed under the orders of the High Court of Calcutta. The risk numbere lays down the rule of presumption on the question of misconduct. The respondents having proved that the wagon companytaining the mustard oil reached Calcutta safely, there is numberroom for inferring any misconduct on the part of the Railway Administration or its servants, The respondent cannot, therefore, be held liable under Exhibit A. Even under the general law, the respondent cannot be held liable for number-delivery of the companysignment. The tank wagon was seized at Calcutta by the Food Inspector number because of any negligence of the Railway authorities, but because the Health Officer of the Calcutta Corporation suspected that the oil was adulterated. In Exhibit 11-the numberice given under Section 80 of the Civil Procedure Code, it was stated that since the tank wagon was number returned to Kanpur according to the direction of the appellant and the goods delivered to the appellant there, the respondents were liable in damages. On reading Ex. 11, it would seem that the main grievance of the appellant was that the respondents failed to return the tank wagon to Kanpur as requested by it and give delivery of the oil at Kanpur. In that numberice, the appellant did number companyplain about the number-delivery of the oil at Calcutta or about tampering with the padlocks by the Railway authorities. Mr. Goel, on behalf of the appellant, however, companytended on the strength of certain observations in Corpus Juris Secundum See Vol. 8 p. 309 that a numberice ought to have been given by the Railway authorities to the appellant about the seizure of the tank wagon on 6.9.1949 or within a reasonable time and that the failure to do so would make the Railway Administration liable in damages. The object of the numberice is to given an opportunity to the bailor to litigate his rights to the property bailed. The appellant was a party to the proceedings before the Magistrate and the High Court. The High Court passed the order for destruction of the oil after finding that the tank wagon was law-fully seized by the Food Inspector and that the samples of oil were taken in accordance with law. We fail to see what prejudice was caused to the appellant by the failure to give the numberice. There is also great force in the companytention of the respondents that the appellant was aware of the seizure of the wagon on 6.9.1949 as the appellant was to take delivery of the oil on its arrival in Calcutta. Quite apart from this, the case that the Railway authorities ought to have given numberice to the appellant of the seizure of the take wagon within a reasonable time that the failure to give numberice has prejudiced it was number pleaded either before the trial companyrt or the High Court.

LITTTTTTTJ BRIJESH KUMAR, J. This is an appeal by the husband challenging the judgment and order passed by the Rajasthan High Court, upholding the judgment passed by the District Judge, Sriganganagar, dismissing the petition of the appellant under Section 13 of the Hindu Marriage Act, 1955 praying for dissolution of marriage by granting a decree of divorce. The appellant, Chetan Dass, and the respondent, Smt. Kamla Devi, were married on November 30, 1976 at Vijaynagar, JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ District Ganganagar according to the Hindu rites and JJJJJJJJJJJJJJJJJJJJ rituals. The appellant was serving as Compounder in the Medical Health Department in the State of Rajasthan. After the marriage, the respondent was taken to Kirawad, the original village of the appellant, where she stayed for about 8-9 months. The appellant was posted in Government Hospital in Hanumangarh. He had been visiting his village home off and on. According to the appellant, since his village house was a kucha structure with insufficient residential accommodation, the respondent was number happy as she came from better background and standard of living. Therefore, she had always been interested in living with her parents in Vijaynagar. It is also the case of the appellant that the parents of the respondent always desired that he may get himself transferred to Vijaynagar and, for that purpose, many items of presentations in dowry at the time of marriage, for example, bed and bedding, sofa set, almirah and golden jewellery etc. were retained at Vijaynagar. It was, however, number possible for the appellant to live at Vijaynagar. The marriage of DW-3, Ravi Kumar, the brother of Kamla Devi, was to take place in November, 1977 and, in that companynection, she left for her parents house at Vijaynagar in October, 1977. She did number return after the marriage of her brother despite requests made by the appellant and his parents for her return. On the other hand, it is stated that she started making allegations against the appellant for leading an adulterous life. The appellant felt mentally tortured on such false allegations. He, therefore, filed an application under Section 13 of the Hindu Marriage Act after about 2 years of the marriage but later the relations between the two improved. The appellant, therefore, got his petition for divorce dismissed. Kamla Devi started living at the residence of Chetan Dass in Kirawad and they had also companysummated their marriage. The case of the appellant further is that as desired by Smt. Kamla Devi, Chetan Dass brought her to Ganganagar and both started residing in Ganganagar. But this companyld number pull on for long and the respondent is said to have always been pressurising the appellant to permanently reside in Vijaynagar. After some time, Lokuram, father of the respondent, took her back to Vijaynagar. All efforts made by the appellant, his relatives and members of their companymunity failed to persuade Kamla Devi to return to live with Chetan Dass any more. According to the appellant, the brief period during which Kamla Devi had changed her attitude and had started living with him was number a genuine gesture on her part or an effort to live together rather it was for the purpose that the appellant got his divorce petition dismissed. The relations between the two further deteriorated and a companyplaint is also said to have been filed by the respondent under Section 494 read with Section 120-B IPC. According to the appellant, the respondent had been keeping away from the companypany of the appellant and had number been discharging her matrimonial obligations. Such attitude on her part ultimately resulted in the filing of a petition by the appellant for restitution of companyjugal rights in the year 1982. The respondent filed her written statement denying the allegations made against her and further stated in the reply that the appellant had been carrying on illegitimate relationship with one Ms. Sosamma Thomas, a nurse in the hospital. According to the appellant, the allegations made by the respondent mentally tortured him and looking to her companyduct and behaviour in deserting him without any reasonable cause, he got the petition amended by moving an application under Order 6 Rule 17 CPC which was allowed, making a prayer for dissolution of marriage companyverting the petition from one under Section 9 to Section 13 of the Hindu Marriage Act on 23.7.1986. The respondent companytested the petition and refuted the allegations made against her. According to her, she never objected to or expressed any dissatisfaction on account of alleged uncomfortable stay at Kirawad. On the other hand, she stayed there with the parents of the appellant without any objection. Her main grievance was with regard to the relationship which, according to her, exists between the appellant and Ms. Sosamma Thomas who is a nurse in the hospital. The trial companyrt, on the basis of pleadings, framed two issues - Whether Kamla Devi has deserted the plaintiff Chetandas for two years prior to the filing of the application and thus applicant is entitled for a decree of dissolution of marriage? Whether the respondent Kamla Devi treated the plaintiff Chetandas with cruelty if so, the plaintiff is entitled to dissolve his marriage with respondent by decree of divorce? The third issue was about the relief to which the plaintiff may be found entitled to. The petitioner-appellant examined only himself in support of his case. The respondent besides herself examined her father Lokuram -D.W.1, D.W.-3 Ravi Kumar, her brother and D.W.- 4 Banwari Lal. The trial companyrt companysidered the matter in great details in the background of the evidence available on record. The respondent Smt. Kamla Devi stated in her statement that the allegations made against her that she was unwilling to live with the petitioner and his parents at Kirawad was incorrect. As a matter of fact, according to her, she had numbercomplaint whatsoever against the parents of her husband and had been staying there with them in Kirawad without any difficulty. She also denied the allegations that she wanted Chetan Dass to live permanently in Vijaynagar. In the year 1980, when the appellant had taken her to Ganganagar to live with him on the persuasion of his father and others, the nurse Sosamma Thomas was living in the upper storey of the same building. The sister of Chetan Dass was also sent to accompany the respondent, perhaps with an idea that it may bring some numbermalcy in the companyduct and behaviour of Chetan Dass. But despite that, the case of the respondent has been that Chetan Dass numbermally lived in the upper storey with Sosamma Thomas and has been taking his food and sleeping with her. It was against all numberms and an open defiance to the matrimonial relationship. Yet another fact which finds place on the record is that on the efforts made at the instance of the father of the respondent, Sosamma Thomas was transferred outside but she did number go there to join. The appellant again got her transferred to Ganganagar from Nachana hospital in District Jaisalmer. During this period Sosamma remained on leave. All efforts made by Lokuram, the father of the respondent, and the respondent herself went in vain and the appellant is said to have refused to leave Sosamma Thomas though, he had made such a promise before the other people of the companymunity namely, Narendra Nath Gauri, his uncle and others on the basis of which she had gone to Ganganagar to live with him. The father of the respondent namely, D.W.1- Lokuram, stated in his statement that so long as his daughter stayed in Kirawad, she never made any companyplaint against the behaviour of her in-laws. The appellant only admitted that Sosamma Thomas was a nurse posted in Ganganagar hospital and he knew her only as one of the member of the staff. He had number denied that he resided at 160, Mukherjee Nagar in Sriganganagar. But he feigned his ignorance about the fact that Sosamma Thomas was also living in the same building in the upper storey in Ganganagar. The trial companyrt has also observed that he companyld number deny that his sister Rajrani, who was sent to live with them in Ganganagar, had companyplained to his parents about his relationship with the nurse Sosamma Thomas. The trial companyrt also observed that the petitioner did number examine any witness in support of his case number even his brother, sister or parents. The respondent had companye out with a definite assertions that in Ganganagar, she was living with Rajrani, the sister of Chetan Dass who had accompanied her to Ganganagar whereas Chetan Dass was practically living in the upper storey in the room of Sosamma Thomas and had been taking his food and sleeping there only. The companyrt below had also observed that Rajrani companyld very well throw some light on the state of affairs on this point. The respondent, Smt. Kamla Devi, also denied the allegation that she wanted Chetan Dass to live in JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Ganaganagar or she expressed any dissatisfaction on her part JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ about the standard of living of Chetan Dass in his village Kirawad. None of the relations of the appellant namely, the parents or brothers or sisters made any companyplaint against the behaviour of Kamla Devi, besides her brother, D.W.-4 Banwari Lal had also supported her case. The trial companyrt thus companysidering all the evidence and the facts and circumstances of the case, came to the JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ companyclusion that there existed illegitimate relationship JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ between Chetan Dass and Sosamma Thomas. The affair was since prior to the marriage which companytinued even thereafter. It is further held that in such circumstances, it is number possible for any selfrespecting woman to live with her husband. Besides the findings as indicated above, it has also been found that the main allegation made by the appellant about desertion by Smt. Kamla Devi, on the ground that his house at Kirawad was in bad companydition and their standard of living was unsatisfactory and that she wanted him to permanently shift to Vijaynagar, was incorrect and baseless. Considering certain decisions, the learned Judge held that where a wife refuses to live with the husband having relationship with another woman, in such a situation, the companyduct of the wife cannot be termed as wilful desertion of her husband. The reasons thus given by the respondent for keeping away from the companypany of her husband has been found to be valid whereas the reasons assigned by the appellant for his wife being number ready to live with him, have been found to be false. The trial companyrt thus refused to grant decree of divorce by dissolving the marriage. In the appeal preferred by the appellant in the High Court, the findings recorded by the trial companyrt have been upheld. The Appellate Court also made an observation that in the facts and circumstances of the case, the best evidence would have been of the persons living in the neighbourhood of the companyple in Sriganganagar and the evidence of petitioners father and his sister Rajrani as they are said to be aware of the adulterous behaviour of the petitioner-appellant. In our view, the said observation is quite companyrect. Rajrani, the sister of the appellant, accompanied the respondent to live with the companyple namely, Chetan Dass and Kamla Devi, her brother and his wife respectively. There is numberdispute that she lived with them. According to the respondent, the appellant had practically been living, having his meals and staying by night, in the upper storey of the house in occupation of Sosamma Thomas. The Appellate Court was perfectly justified in observing that the evidence of the appellants sister would have been quite crucial. But she was number produced by the brother in support of his case. The father of the appellant also did number companye to his rescue by entering into the witness box for his son who companyld very well support the case of the appellant at least to the extent, if it was true, that the respondent was unhappy due to the alleged unsatisfactory living companydition in Kirawad. From the side of the respondent, her father and brother had entered into the witness box and numberhing seems to have been elicited to disbelieve their statements or establish that they were taking shelter under falsehood. No presumption can be raised that they have given false evidence in favour of the respondent being her close relations or her own kith and kin. Apart from those persons, D.W.-4 also supported her case. The learned Appellate Court, in our view, rightly came to the companyclusion that the relief companyld number be granted to the appellant by passing a decree of divorce by dissolving the marriage on the ground that the marriage had broken down irretrievably. Learned companynsel for the appellant has vehemently urged that the facts and circumstances of the case clearly show that the relationship between the respondent and the appellant has totally broken and there seems to be numberchance of retrieval at all. He has also emphasised on the fact that a long period has lapsed since the marriage was performed in the year 1976. They lived together only for a short stint. Initially the respondent stayed in Kirawad immediately after the marriage and remained there for 8 or 9 months and later in the year 1981 when she went to live with the appellant in Sriganaganagar. It was also for a period of about three months. The rest of the period they lived apart. In such circumstances, it is submitted that it will serve numberpurpose to prolong the agony and it may only be appropriate that the bond of marriage be snapped by granting a decree of divorce and the parties may feel relieved and pass rest of the period of their life peacefully. During the companyrse of the arguments, learned companynsel for the appellant, so as to show that the allegations made against the appellant about having illegitimate relationship with Sosamma Thomas, submitted that the appellant is still prepared to keep the respondent Kamla Devi with him. According to him, the appellant never refused to live with her. In reply, learned companynsel for the respondent submitted that the respondent was also prepared to live with the appellant provided that he discontinued his relationship with Sosamma Thomas. The hollowness of the submission that the appellant was still prepared to keep the respondent with him is quite apparent. It is on the record that it was on some undertaking that the respondent was taken to Ganganagar by the appellant to live with him but there she was subjected to humiliating treatment meted out to her by the appellant himself having his food only in the room of Sosamma Thomas and staying there during night leaving his wife and sister alone on the ground floor. With this kind of attitude, the offer as made on behalf of the appellant is too shallow to deserve any serious thought. At the same time, the companydition on which the respondent is prepared to live with him seems to be quite justified, that is to say, she is still prepared to live with him provided he behaves and snaps his relationship with the other woman. It is apparent that it is the own companyduct of the appellant which lead the respondent to live separate from the appellant. None else, but the appellant alone, is to be blamed for such an unhappy and unfortunate situation. The findings of facts, as recorded by the two companyrts below, do number deserve to be disturbed in any manner number they have been seriously assailed before us. As observed earlier, the learned companynsel for the appellant has merely stressed for grant of relief on the ground that the marriage has companypletely failed and has irretrievably broken. In companynection with this submission, it may be observed that it all depends on the facts and circumstances of the case as to in which case it would be appropriate to grant the relief as prayed. Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to companyform to the social numberms as well. The matrimonial companyduct has number companye to be governed by Statute framed, keeping in view such numberms and changed social order. It is sought to be companytrolled in the interest of the individuals as well as in broader perspective, for regulating matrimonial numberms for making of a well knit, healthy and number a disturbed and porous society. Institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would number be appropriate to apply any submission of irretrievably broken marriage as a straight jacket formula for grant of relief of divorce. This aspect has to be companysidered in the background of the other facts and circumstances of the case. Learned companynsel for the appellant has placed reliance on certain decisions in support of his request to grant the relief on the ground that the marriage has irretrievably broken down. The decision of this Court reported in 1993 4 SCC 232 Chanderkala Trivedi Smt . vs. Dr. S.P. Trivedi has been cited. The facts of this case are peculiar in nature. The husband filed a petition for divorce on the ground of cruelty at the hands of the wife. The wife, in reply, made allegations of adultery against the husband whereas the husband had made allegations against undesirable association of the petitioner-wife with young boys. The trial companyrt though dismissed the petition but found that the behaviour of the wife was number that of a Hindu married woman. This has been the finding of all the companyrts below. There were thus companynter allegations of adulterous life of the husband with another lady doctor whereas undesirable association of the wife with other young boys. As observed earlier, the findings were recorded by all the three companyrts and the High Court in appeal granted the relief of divorce on the ground of cruelty. This Court, however, ordered for deletion of the findings recorded in the judgments of all companyrts against the wife but maintained the decree of divorce and dismissed the appeal. Such facts and circumstances of the case relied upon by the appellant are number applicable to the present case. The factual position is entirely different. Both the parties, according to their respective allegations, have been sailing in the same boat. Looking to the facts and circumstances of the case, this Court ordered for deletion of the findings against the wife while maintaining the decree. This case, in our view, has numberapplication to the present case. The other case cited by the learned companynsel for the appellant is reported in 1995 2 SCC 7 Romesh Chander vs. Savitri Smt. . In that case, at the very outset, it may be observed that the Order was passed companysidering the facts and circumstances of the case in exercise of power under Article 142 of the Constitution. Allegations were made by the wife against the husband about his mixing with undesirable girls but numberevidence was given to support those allegations number the same were found proved. The husband however had expressed his remorse on his companyduct and neglect of his wife. It was companysidered that where the marriage had broken down emotionally and practically, looking to such facts and circumstances, the marriage was dissolved exercising powers under Article 142 of the Constitution. Yet another case relied upon by the learned companynsel for the appellant is reported in 1984 4 SCC 90 Smt. Saroj Rani vs. Sudarshan Kumar Chadha. In our view this case is also number applicable to the present case. The husband did number obey the decree of restitution of companyjugal rights obtained by his wife to which he had number objected but later on, he filed a petition for divorce under Section 13 1-A ii on the ground that one year had passed from the date of decree of restitution of companyjugal rights but numberactual companyhabitation had taken place between the parties. A plea was raised that the husband was taking advantage of his own wrong as he had number resumed his matrimonial relationship even after the decree of restitution of companyjugal rights instead filed a petition for divorce, that the parties had number companyabited even after one year of passing of the decree. This Court observed that a decree of restitution of companyjugal rights was executable and further observed that the expression in order to be a wrong within the meaning of Section 23 1 a the companyduct alleged has to be something more than mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled to. On facts also, it was found that such a plea was number entertainable since numbernew facts were brought on record even by means of an amendment that the husband had, by way of a scheme, agreed for passing of a decree of restitution of companyjugal rights with a view to ultimately claim divorce by number resuming the matrimonial relationship. In the present case, the allegations of misconduct of adulterous behaviour have definitely been made by the wife which have been found to be companyrect. Hence, this case would also be of numberhelp to the appellant. Learned companynsel for the respondent submits that in certain situations, relief would be denied to the petitioner where it is found that he is taking advantage of his own wrong for the purposes of making out a case to obtain the decree. He has drawn our attention to Section 23 1 Clauses a , b and e of the Hindu Marriage Act which are quoted below- Decree in proceedings.- 1 In any proceeding under this Act, whether defended or number, if the Court is satisfied that a any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub-clause a , sub-clause b or sub-clause c of clause ii of section 5 any way taking advantage of his or her own wrong or disability for purpose of such relief, and b where the ground of the petition is the ground specified in clause i of sub-section 1 of Section 13, the petitioner has number in any manner been accessory to or companynived at or companydoned the act or acts companyplained of or where the ground of the petition is cruelty the petitioner has number in any manner companydoned the cruelty, and c d e there is numberother legal ground why relief should number be granted, then, and in such a case, but number otherwise, the Court shall decree such relief accordingly. In the present case, the allegations of adulterous companyduct of the appellant have been found to be companyrect and the companyrts below have recorded a finding to the same effect. In such circumstances, in our view, the provisions companytained under Section 23 of the Hindu Marriage Act would be attracted and the appellant would number be allowed to take advantage of his own wrong. Let the things be number misunderstood number any permissiveness under the law be inferred, allowing an erring party who has been found to be so by recording of a finding of fact in judicial proceedings, that it would be quite easy to push and drive the spouse to companyner and then brazenly take a plea of desertion on the part of the party suffering so long at the hands of the wrong-doer and walk away out of the matrimonial alliance on the ground that marriage has broken down. Lest the institution of marriage and the matrimonial bonds get fragile easily to be broken which may serve the purpose most welcome to the wrong-doer who, by heart, wished such an outcome by passing on the burden of his wrong-doing to the other party alleging her to be the deserter leading to the breaking point. In this case, we also find that the respondent is still prepared to live even at this stage of her life with the appellant but rightly on the companydition that the appellant disassociates himself from Sosamma Thomas. There has been numbercause of grievance or any allegation of objectionable behaviour by any one except the meek plea put forward by the husband that she was dissatisfied with the living companyditions at Kirawad and she wanted him to live in Vijaynangar. Such allegations have been found to be incorrect. She also lived in Ganganagar. Had only living in Kirawad been the problem, there was numberoccasion for her to be dissatisfied in living in Sriganganagar, at least numbere has been indicated by the appellant. In this case, the averments made in the petition for obtaining a decree for divorce, namely, desertion on the part of the wife without any reasonable cause have number been found to be companyrect. The petition was liable to be dismissed on that ground alone. The defence of the respondent for having a justified reason to live away from the husband has been found to be companyrect. Behaviour of the appellant certainly falls in the category of misconduct on his part. In such circumstances, it is too much on his part to claim that he be given the advantage of his own wrong and be granted a decree of divorce on the ground of desertion on the part of his wife who is still prepared to live with him provided he snaps his relationship with the other woman. Similar offer had also been made on behalf of the appellant, which, we have already dealt in the earlier part of the Judgment. He perhaps prefers to snap relationship with the respondent rather than with Sosamma Thomas.

Appellants were companyvicted for companymission of an offence purported to be under Section 8 read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 NDPS Act, for short , having been found in possession of 12 gms. of the companytraband from each of them. Our attention has been drawn to Section 21 a and b of the NDPS Act which read as under Whoever, in companytravention of any provision this Act or any rule or order made or companydition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation companytaining any manufactured drug shall be punishable,- -2- a where the companytravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both b where the companytravention involves quantity, lesser than companymercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees. Indisputably, the appellants are in custody since 28.2.2000 i.e. for a period of more than eight years. Having regard to the facts and circumstances of this case, we are of the opinion that they did number deserve maximum punishment prescribed under Section 21 b of the NDPS Act, applying the doctrine of proportionality in imposing the sentence vis-a-vis the object and purport thereof as has been provided for in the NDPS Act. We are, therefore, of the opinion that interest of justice would be subserved if the sentence imposed upon the appellants is reduced to the period already undergone by them, including for the default clause.

Lokeshwar Singh Panta, J. Leave granted. Appellant has filed this appeal against the judgment and order dated 21.11.2005 passed by a Division Bench of the High Court of Kerala at Ernakulam in Criminal Appeal No.60/2004 C companyfirming the companyviction and sentence of imprisonment for life in respect of an offence punishable under Section 302 of the Indian Penal Code for short IPC and a fine of Rs.15,000/- with a default stipulation of simple imprisonment for one year awarded by the Fast Track Court No.-II, Manjeri on 12.12.2003 in Sessions Case No.439/2001. Brief facts, which led to the trial of the accused, are as follows Raman-appellant herein, Narayanan PW-1 , Nadi PW-6 and Unnikrishnan Bapputty-deceased were living at Edayattur, District Mambarakunnu. On 21.04.2000 at about 800 p.m., PW-1 and PW-6 were chatting by the side of the road when they heard the appellant and the deceased indulging in wordy quarrel. PW-6 intervened and separated them. Unnikrishnan then proceeded to his house and the appellant went towards the house of PW-6. PW-6 returned to the companyrtyard of the house of PW-1 along with Unnikrishnan. The appellant alleged to have uttered abusive language against Unnikrishnan who in retaliation pulled the appellants shirt companylar. The appellant is alleged to have stabbed Unnikrishnan in his abdomen with knife MO.1 . Unnikrishnan companylapsed on the spot and uttered that he was finished. PW-6 bandaged the wound of Unnikrishnan. PW-1 informed Velayudhan PW-2 , the younger brother of Unnikrishnan about the incident who arrived at the spot where Unnikrishnan was lying on the embankment by the side of the road. PW-2 and others took Unnikrishnan to the District Hospital, Manjeri, where the Casualty Medical Officer examined him but he was declared dead. PW-6 went to Melattur Police Station and made statement on the basis of which First Information Report Ext. P4 came to be registered by Abdulla PW-9 , Sub-Inspector. After registering the case, K. Manoharakumar, Circle Inspector PW-10 went to the Hospital and companyducted Inquest Report Ext. P1 on the body of Unnikrishnan-deceased. The Investigating Officer seized clothes MO2 of the deceased. He sent the body of the deceased to the Medical College Hospital, where Dr. Cyriyac Jose PW-13 companyducted post mortem examination. PW-10 visited the place of occurrence and prepared scene-cum-seizure mahazar Ext.P2 , recovered blood-stained soil and stones MO 3 . He arrested the appellant and the clothes MO 4 worn by him were taken into possession under Seizure Mahazar Ext. P3 . At the instance of the appellant, knife MO 1 was recovered. Further investigation was companyducted by D. Rajan PW-11 and Majeed PW-12 , both Circle Inspectors. PW-11 and PW-12 recorded the statements of the witnesses. On receipt of post mortem report Ext. P8 and report of chemical analysis Ext. P7 , PW- 12 filed a charge sheet against the appellant for an offence punishable under Section 302, IPC. The trial companyrt found a prima facie case against the appellant and, accordingly, charged him for the murder of Unnikrishnan. During trial of the case, the prosecution examined as many as 13 witnesses. The appellant in his statement recorded under Section 313 of the Code of Criminal Procedure denied his involvement in the companymission of the crime. He pleaded that on the day of occurrence when he was going to his house, the deceased took quarrel with him and it was PW-6 who intervened and separated them. He stated that Unnikrishnan came back from his house to the place of occurrence and he was holding a knife in his hand and suddenly held his neck. A scuffle ensued between them, in which the knife accidentally struck into the abdomen of the deceased. He pleaded that due to fear he ran away from the scene of occurrence. The learned trial Judge, on analysis of the entire oral and documentary evidence on record, found the appellant guilty of the offence punishable under Section 302 IPC and accordingly sentenced him as aforesaid. Being aggrieved, the appellant filed an appeal before the High Court, which came to be dismissed by a Division Bench. Hence, the appellant has filed this appeal by special leave questioning the companyrectness and legality of the judgment of the High Court. We have heard Mr. Radha Shyam Jena, Advocate for the appellant, and Mr. R. Sathish, Advocate for the respondent- State and with their assistance examined the material on record. It is number in dispute that Unnikrishnan Bapputty died because of knife injuries caused to him. PW 13, Dr. Cyriyac Jose in the post mortem Report has given the details of the injuries numbericed in the abdomen of the deceased. In the opinion of the doctor, the injuries found on the body of the deceased companyld be caused by knife MO 1 . PW-6 is the eyewitness of the occurrence who has given the entire description of the incident in the First Information Report Ext. P4 , which has been companyroborated by him in his deposition before the Court. It is his evidence that on the day of occurrence at about 8.00 p.m. when he was chatting with PW-1 by the side of the road, the appellant came there and in front of the house of Unnikrishnan, the appellant and Unnikrishnan indulged in a wordy quarrel. He and PW-1 intervened and separated them who were locked in a push and pull war. PW-6 advised both of them to go to their respective houses. He stated that he went with PW-1 and when they reached in front of the house of PW-1, the appellant and Unnikrishnan again started hurling abuses against each other and in the process Unnikrishnan pulled the companylar of the shirt of the appellant who in retaliation stabbed Unnikrishnan in his abdomen with a knife and as a result thereof Unnikrishnan uttered that he was finished. He also stated that the appellant ran away from the scene of occurrence with the knife. He carried the injured Unnikrishnan with the help of PW-1 and laid him on the raised portion in front of the house of PW-1. Intestine of injured Unnikrishnan had been protruded through the wound and he bandaged the said wound. PW-2, the brother of injured Unnikrishnan, was also called at the spot. They took the injured to the hospital where he was declared dead by the doctor. PW-1 deposed that on the day of occurrence he was in the kitchen of his house, he heard a companymotion outside and when came out on the road side, he numbericed the appellant and Unnikrishnan quarrelling with each other. PW-6 intervened and separated them and at that time he saw Unnikrishnan companylapsing on the road and uttered that he was stabbed by Raman. He along with PW-6 carried injured Unnikrishnan and laid him on the raised portion near his house and thereafter he informed PW-2, the brother of the deceased, about the incident. The evidence of this witness companyroborates the presence of PW-6 on the spot, whose evidence has been found sufficient, companyent and companyvincing by the companyrts below. The prosecution has proved the recovery of knife from the possession of the appellant at his instance. The evidence of PW-6 has number been shattered or impeached by the appellant. PW-6 has given truthful narration of the events leading to the unfortunate death of the deceased at the hands of the appellant. The testimony of PW-6 is companysistent and companyvincing which finds companyroboration from the evidence of PW- 1 and the medical evidence of the doctor. The appellant has number disputed the presence of PWs-1 and 6 on the scene of the occurrence. He has also number disputed the recovery of knife MO 1 . The trial companyrt and the High Court both have disbelieved the defence version of the appellant that in the process of scuffle the knife had accidentally struck the body of the deceased and, in our view, the finding and reasoning recorded by the companyrts below to that extent cannot be found faulty. This Court on 15.02.2008 issued numberice to the respondent limited to the question of sentence.

Delay companydoned. Leave granted. The following substantial question of law arises 2/- - 2 - for companysideration in this batch of civil appeals Whether the Income Tax Appellate Tribunal was companyrect in law in holding that the orders passed under Sections 201 1 and 201 1A of the Income Tax Act, 1961 are invalid and barred by time having been passed beyond a reasonable period. Having heard learned companynsel on both sides, we are of the view that, on the facts and circumstances of these cases, the question on the point of limitation formulated by the Income Tax Appellate Tribunal in the present cases need number be gone into for the simple reason that, at the relevant time, there was a debate on the question as to whether TDS was deductible under the Income Tax Act, 1961, on foreign salary payment as a companyponent of the total salary paid to an expatriate working in India? This companytroversy came to an end vide judgement of this Court in the case of Commissioner of Income Tax vs. Eli Lilly Co. India Pvt. Ltd., reported in 2009 312 I.T.R. 225. The question on limitation has become academic in these cases because, even assuming that the Department is right on the issue of limitation still the question would arise whether on such debatable points, the assessee s companyld be declared as assessee s in default under Section 192 read with Section 201 of the Income Tax Act, 1961. Further, we are informed that the assessee s have paid the differential tax. They have paid the interest and they 3/- - 3 - further undertake number to claim refund for the amounts paid.

Shivaraj V. Patil, J. Leave granted. This appeal is filed by the Municipal Corporation of Greater Mumbai 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 number 1 in the writ petition hereinafter referred to as Corporation and respondent number. 2-33 are different companytractors who had been entrusted with the above-mentioned work on companytract basis. Respondent number 34 is the State of Maharashtra and respondent number 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 and that the Corporation was carrying on the work through 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, transportation, 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 made representations to the Chairman of the State Contract Labour Advisory Board requesting him to advise the State Government to abolish the system of employment of companytract 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 Sections 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 service 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 overseers 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 cleaner 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 bonded 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 number 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 Petitioner-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 others vs. Union of India and others 1985 1 SCC 630, Catering Cleaners of Southern Railway vs. Union of India and others 1987 1 SCC 700 and Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat vs. Hind Mazdoor Sabha and others 1995 5 SCC 27. 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 others vs. United Labour Union and others 1997 9 SCC 377 the said judgment number stands overruled by the Constitution Bench judgment of this Court in Steel Authority of India Ltd. Vs. National Union Waterfront Workers 2001 1 SCC 1. 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 automatic absorption. 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, muster roll, attendance cards or wage registers to show that the workers were actually employed through a companytractor, the workers work in the establishment 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 exofficio Member Secretary, State Contract labour Advisory Board and Commissioner of Labour at Mumbai filed additional affidavit on behalf of respondent number 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 Management. 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. Thereafter, 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. Anr. vs. National union Waterfront Workers Ors. 2001 7 SCC 1 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 overrule 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 principal 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 the 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 fell 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 there 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 years 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 and 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 in 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 21st 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 reliefs 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 verify 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 orders within a period of six months.

A. BOBDE, J. Leave granted. This Criminal Appeal is filed by Appellants challenging the final judgment and order dated 02.02.2016 of the High Court of Delhi. The High Court vide the above dated final judgment and order dismissed the petition filed by the Appellants under Section 482 of Criminal Procedure Code and refused to quash FIR No.0139/2014 dated 20.08.2014. During the pendency of the appeal in this Court, Respondent No.1 filed charge sheet dated 03.08.2018 in the Court of Metropolitan Magistrate, Patiala House Court, Delhi against the Appellants herein. Thus, by way of amendment to the main prayer in the appeal, Appellants have also prayed for quashing of charge sheet dated 03.08.2018. Appellants seek quashing of the FIR dated 20.08.2014 and the charge sheet dated 03.08.2018. Signature Not Verified Digitally signed by SANJAY KUMAR Date 2018.11.15 164925 IST Reason Facts This appeal is by an accused against whom a FIR was lodged on 20.08.2014, in respect of disputes arising out of the agreement dated 03.06.1993 entered into between the Appellant No.1 i.e. Mr. Anand Kumar Mohatta and the companyplainant i.e. Ansal Properties Infrastructure Ltd. The FIR was lodged about 21 years after the agreement. Initially, the FIR was also lodged against the wife of the Appellant No.1 i.e. Mrs. Shobha Anand Mohatta, but numberoffence has been made out against her after investigation. The agreement entered into by the two parties is with regard to the development of the property owned by the Appellants. This property is situated at 20, Feroz Shah Road, New Delhi, which falls under Lutyens Zone. The property was initially owned by the Appellant No.1 and later on ownership of the property was transferred to Appellant No.2 i.e. wife of Appellant No.1. Desirous of developing the property, the Appellant No.1 entered into a development agreement dated 03.06.1993 with Respondent No.2 M s Ansal Properties Infrastructure Ltd. The parties agreed to develop the said property by companystructing a high-rise building companyprising of flats. Respondent No.2 paid a sum of Rs. One crore as companytemplated by clause 38 of the agreement. The agreement companyld number be fulfilled as the new building regulations which were introduced prohibited the companystruction of high-rise building in the Lutyens Bungalow Zone, where the property is situated. See New Delhi Municipal Council v. Tanvi Trading and Credit Private Limited 1. Thereafter, on 14.03.2011, the Appellant No.1 wrote a letter stating that he does number wish to develop the property. The Appellants did number take any further action neither did they return the amount advanced by the Respondent No.2. Apparently, since the Appellant had declined all alternate offers made by the companyplainant but ostensibly on the ground that this security amount of Rs. One crore had number been refunded, Respondent No.2 on 19.11.2011 filed a Criminal Complaint before the SHO, Police Station Barakhamba Road, New Delhi companyplaining of offences under Section 406 and 420 followed by a companyplaint dated 10.09.2012 with the Additional Commissioner of Police. On refusal of police authorities to register FIR against the Appellants, the Respondent-complainant invoked powers of the Court under Section 156 3 of the Cr. P.C on 03.11.2012. Thereafter, on 11.11.2013 Respondent No. 2 withdrew the companyplaint filed under Section 156 3 . The FIR with which we are companycerned was lodged on 20.08.2014 against the Appellants for offence under Section 406 of IPC on a fresh companyplaint filed by the Respondent No.2. Following which, the Appellants approached the High Court under Section 482 of the Cr. P.C seeking to quash FIR dated 20.08.2014. According to the Appellants, the FIR was companypletely untenable in the 1 2008 8 SCC 765 facts and circumstances of the case. Mainly, the amount of Rs. One crore was rightfully retained by them and there was numberquestion of such retention companystituting a criminal breach of trust. Moreover, assuming that the Respondent No. 2 had a grievance only about the retention of money, the redressal ought to have been sought before a Civil Court. Therefore, the lodging of the FIR was mala fide in nature and done with the intention to pressurize the Appellants to agree to certain new terms and companyditions of the agreement to which the Appellants did number want to proceed with. It is the case of the companyplainant-Respondent No.2 that the Appellant No.1 is guilty of the offence under Section 406 since he had clandestinely and surreptitiously transferred the subject property in the name of his wife i.e. Appellant No.2. This was done to defeat the agreement dated 03.06.1993. It is also said that the Appellants are guilty of abusing the process of Court by undervaluing the property in a companylusive suit before the Bombay High Court and thus wrongly transferred the property. The High Court, however, disposed of the Appellants petition filed under Section 482 on the ground that the petition has been filed pre-maturely as the case is still at the stage of investigation. The High Court directed the investigation to proceed and further directed the Appellants to join the investigation. Appellants thereafter preferred the present appeal by way of Special Leave Petition in this Court. In the present appeal, this Court on the prima facie view of the matter protected the Appellants from arrest and directed that the investigation be companytinued. Accordingly, the Respondent No.1 carried out investigation and has filed a report under Section 173 of the Cr. C in the Court of Metropolitan Magistrate, Patiala House Court, Delhi. Since, the police have number submitted a charge sheet, Appellants have additionally filed amendment application seeking to incorporate prayer for quashing of charge sheet in addition to prayer for quashing of the FIR. Contentions Shri Mahesh Jethmalani, Senior Counsel appearing for the Appellants submitted that the transactions in the present case which are set to companystitute the offence under Section 406 cannot under any circumstances be said to companystitute an offence under that section. Assuming that the Respondent No.2 have a grievance about the alleged wrongful retention of the amount of Rs. One crore, the dispute companyld at best be a civil dispute. The learned companynsel further submitted that the amount of Rs. One crore advanced to the Appellants was liable to be refunded under Clause 30 b which is as follows - Developer handing over possession of the areas of the Owners share to the Owner in the said Group Housing Complex. Since this companytingency did number arise the amount has number been refunded. In addition, the companynsel submitted that the Appellants retained the amount because the developer i.e. Respondent No.2 is in part possession of some of the subject property and has also number companyplied with the obligation of having a tenant vacated from the property. Shri Sanjiv Sen, learned Senior Counsel for the Respondent No.2 submitted that the petition for quashing of FIR was untenable since the proceedings have gone past the stage of FIR and have resulted in a charge sheet. Shri Sanjiv Sen, vehemently submitted that the charge under Section 406 against the Appellant No.1 arises from the fact that the Appellant No.1 has fraudulently transferred the property which is the subject matter of the development agreement dated 03.06.1993 to his wife i.e Appellant No.2. Shri Ajit Kumar Sinha, Learned Senior Counsel, appearing for the Respondent No.1 i.e. State government of NCT, places reliance on the charge sheet to submit that the Appellants have companymitted an offence punishable under Section 406 by number returning the amount of Rs. One Crore advanced by the Respondent No.2. Conclusion First, we would like to deal with the submission of the learned Senior Counsel for the Respondent No.2 that once the charge sheet is filed, petition for quashing of FIR is untenable. We do number see any merit in this submission, keeping in mind the position of this Court in Joseph Salvaraj A. v. State of Gujarat2. In the case of Joseph Salvaraj A. supra , this Court while deciding the question whether the High Court companyld entertain the 482 petition for quashing of FIR, when the charge sheet was filed by the police during the pendency of the 482 petition, observed - Thus, from the general companyspectus of the various sections under which the appellant is being charged and is to be prosecuted would show that the same are number made out even prima facie from the companyplainants FIR. Even if the charge-sheet had been filed, the learned Single Judge companyld have still examined whether the offences alleged to have been companymitted by the appellant were prima facie made out from the companyplainants FIR, chargesheet, documents, etc. or number. Even otherwise it must be remembered that the provision invoked by the accused before the High Court is Section 482 Cr. P.C and that this Court is hearing an appeal from an order under Section 482 of Cr.P.C. Section 482 of Cr.P.C reads as follows - Saving of inherent power of the High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. There is numberhing in the words of this Section which restricts the exercise of the power of the Court to prevent the abuse of process of companyrt or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High companyrt can exercise jurisdiction under Section 482 of Cr.P.C even when the discharge application is pending 2 2011 7 SCC 59 with the trial companyrt3. Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but number if it has advanced, and the allegations have materialized into a charge sheet. On the companytrary it companyld be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation. The power is undoubtedly companyferred to prevent abuse of process of power of any companyrt. The second submission of learned companynsel for the Respondent No.2 is that the Appellant No.1 has fraudulently transferred the property which is the subject matter of the agreement dated 03.06.1993 to his wife and has thereby companymitted criminal breach of trust. This charge is wholly untenable and rather extraordinary since the alleged fraudulent transfer of property by the Appellant No.1 to his wife, assuming it to be illegal, by numberstretch of imagination can companystitute the offence of a criminal breach of trust, since the property was number entrusted by the Respondent No.2 to the Appellants. The property belonged to Appellant No.1 and there was therefore numberquestion of Appellants having been entrusted with their own property, and that too by the companyplainant, who had merely entered into a development agreement in respect of the property. Lastly, we find that the FIR and the charge sheet essentially charged the petitioner for an offence under Section 406 of the Cr.P.C. 3 G. Sagar Suri and Anr. V. State of U.P and Others, 2000 2 SCC 636 Para 7 . Umesh Kumar V. State of Andhra Pradesh and Anr. 2013 10 SCC 591 Para 20 for retaining the amount of Rs. One crore which was advanced to him by the Respondents at the time of entering into the development agreement. Whether an offence under Section 406 made out It is necessary to refer to Sections 405 and 406 of the IPC in order to ascertain, whether in the facts and circumstances of the present case, an offence under Section 406 is made out against the Appellants. Section 405 and 406 of the IPC reads as follows - Criminal breach of trust.Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or companyverts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal companytract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, companymits criminal breach of trust. Explanation 1.A person, being an employer of an establishment whether exempted under section 17 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 19 of 1952 , or number who deducts the employees companytribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the companytribution so deducted by him and if he makes default in the payment of such companytribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said companytribution in violation of a direction of law as aforesaid. Explanation 2.A person, being an employer, who deducts the employees companytribution from the wages payable to the employee for credit to the Employees State Insurance Fund held and administered by the Employees State Insurance Corporation established under the Employees State Insurance Act, 1948 34 of 1948 , shall be deemed to have been entrusted with the amount of the companytribution so deducted by him and if he makes default in the payment of such companytribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said companytribution in violation of a direction of law as aforesaid. Punishment for criminal breach of trust.Whoever companymits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. The essence of the offence lies in the use of the property entrusted to a person by that person, in violation of any direction of law or any legal companytract which he has made during the discharge of such trust. In the present case, the amount of Rs. One crore was paid by the companyplainant-Respondent to the Appellants as an interest free deposit on the signing of the agreement. It was liable to be refunded to the companyplainant simultaneously on handing over of possession of the area of the owners share to the owner in the group housing companyplex vide Clause 30 b of the agreement dated 03.06.1993. Two things are significant in the transaction between the parties. Firstly, that the occasion for returning the amount i.e. the developer handing over the possession of the area of the owners share to the owner in the group housing companyplex, has number occurred. According to the Appellants, the companytract stands frustrated because numbergroup housing can be legally built on 20 Feroz Shah Road, New Delhi since it falls in the Lutyens Bungalow Zone. Appellant No.1 has therefore, terminated the companytract. Further, the amount has been retained by him as a security because number only is there any handing over of companystructed portion, the companyplainant has also got into part possession of the property and has number handed it back. Also, the companyplainant has failed to get the property vacated from the tenants possession. We, thus find that it is number possible to hold that the amount of Rs. One crore which was paid along with the development agreement as a deposit can be said to have been entrustment of property which has been dishonestly companyverted to his own use or disposed of in violation of any direction of law or companytract by the Appellant. The Appellants have number used the amount number misappropriated it companytrary to any direction of law or companytract which prescribes how the amount has to be dealt with. Going by the agreement dated 03.06.1993, the amount has to be returned upon the handing over of the companystructed area of the owner which admittedly has number been done. Most significantly the Respondent No.2 has number demanded the return of the amount at any point of time. In fact, it is the specific companytention of the Respondent No.2 that he has number demanded the amount because the agreement is still in subsistence. We do number see how it can be companytended by any stretch of imagination that the Appellants have misappropriated the amount or dishonestly used the amount companytrary to any law or companytract. In any case, we find that the dispute has the companytours of a dispute of civil nature and does number companystitute a criminal offence. Having given our anxious companysideration, we are of the view that assuming that there is a security deposit of Rs. One Crore and that he has misappropriated the dispute between the two parties can only be a civil dispute. In Indian Oil Corporation v. NEPC India Ltd. and others 4, this Court observed as follows - 13. Any effort to settle civil disputes and claims, which do number involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged The Court numbericed a growing trend in business circles to companyvert purely civil dispute into criminal cases. We find it strange that the companyplainant has number made any attempt for the recovery of the money of Rs. One Crore except by filing this criminal companyplaint. This action appears to be mala fide and unsustainable. In State of Haryana and Ors. v. Bhajan Lal and Ors.5, this Court has set out the categories of cases in which the inherent power under Section 482 of Cr.P.C. can be exercised. Para 102 of the judgment reads as follows - 4 2006 6 SCC 736 5 1992 Supp 1 SCC 335 In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power companyld be exercised either to prevent abuse of the process of any companyrt or otherwise to secure the ends of justice, though it may number be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. Where the allegations made in the first information report or the companyplaint, even if they are taken at their face value and accepted in their entirety do number prima facie companystitute any offence or make out a case against the accused. Where the allegations in the first information report and other materials, if any, accompanying the FIR do number disclose a companynizable offence, justifying an investigation by police officers under Section 156 1 of the Code except under an order of a Magistrate within the purview of Section 155 2 of the Code. Where the uncontroverted allegations made in the FIR or companyplaint and the evidence companylected in support of the same do number disclose the companymission of any offence and make out a case against the accused. Where, the allegations in the FIR do number companystitute a companynizable offence but companystitute only a number-cognizable offence, numberinvestigation is permitted by a police officer without an order of a Magistrate as companytemplated under Section 155 2 of the Code. Where the allegations made in the FIR or companyplaint are so absurd and inherently improbable on the basis of which numberprudent person can ever reach a just companyclusion that there is sufficient ground for proceeding against the accused. Where there is an express legal bar engrafted in any of the provisions of the Code or the companycerned Act under which a criminal proceeding is instituted to the institution and companytinuance of the proceedings and or where there is a specific provision in the Code or the companycerned Act, providing efficacious redress for the grievance of the aggrieved party. Where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We are of the opinion that the present case falls under the 1 st, 3rd and 5th category set out in the para 102 of the judgment in the case of Bhajan Lal supra . In such a situation, the High Court erred in dismissing the petition of the Appellants filed under Section 482 of Cr.P.C. This was a fit case for the High Court to exercise its inherent power under Section 482 of Cr.P.C. to quash the FIR. It is necessary here to remember the words of this Court in State of Karnataka v. L. Muniswamy and others6 which read as follows - In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it companyes to the companyclusion that allowing the proceeding to companytinue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Courts inherent powers, both in civil and criminal matters, is 6 1977 2 SCC 699 designed to achieve a salutary public purpose which is that a companyrt proceeding ought number to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice We find that the prosecution is mala fide, untenable and solely intended to harass the Appellants. We are forfeited in view of the Respondent number having made any attempt to recover the deposit of Rs. One Crore through a civil action.

WI T H Writ Petition civil 108 of 1999 P. C No.245/1999, W.P. C No.338/2000, W.P. C Nos.325-326/2000,W.P. C No.663/2000, W.P. C No.680/2000, P. C No.374/2001 DELIVERED BY S.M.QUADRI, J. C.BANERJEE,J. Syed Shah Mohammed Quadri, J. These writ petitions have companye up before us as a Bench of three learned Judges of this Court referred the first mentioned writ petition to a Constitution Bench observing thus Whether the judgment of this Court dated March 10, 1997 in Civil Appeal No.1843 of 1997 can be regarded as a nullity and whether a writ petition under Article 32 of the Constitution can be maintained to question the validity of a judgment of this Court after the petition for review of the said judgment has been dismissed are, in our opinion, questions which need to be companysidered by a Constitution Bench of this Court. The other writ petitions were tagged to that case. In these cases the following question of companystitutional law of companysiderable significance arises for companysideration whether an aggrieved person is entitled to any relief against a final judgment order of this Court, after dismissal of review petition, either under Article 32 of the Constitution or otherwise. In our endeavour to answer the question, we may begin with numbericing that the Supreme Court of India is established by Article 124 of the Constitution which specifies its jurisdiction and powers and enables Parliament to companyfer further jurisdiction and powers on it. The Constitution companyferred on the Supreme Court original jurisdiction Articles 32 and 131 appellate jurisdiction both civil and criminal Articles 132, 133, 134 discretionary jurisdiction to grant special leave to appeal Article 136 and very wide discretionary powers, in the exercise of its jurisdiction, to pass decree or make such order as is necessary for doing companyplete justice in any cause or matter pending before it, which shall be enforceable throughout the territory of India in the manner prescribed Article 142 powers like the power to withdraw any case pending in any High Court or High Courts to itself or to transfer any case from one High Court to another High Court Article 139 and to review judgment pronounced or order made by it Article 137 . Conferment of further jurisdiction and powers is left to be provided by Parliament by law Article 138 . Parliament is also enabled to companyfer further powers on the Supreme Court Articles 134 2 , 139, 140 . Article 141 says that the law declared by the Supreme Court shall be binding on all companyrts within the territory of India and Article 144 directs that all authorities civil and judicial, in the territory of India, shall act in aid of the Supreme Court. It is a Court of record and has all the powers of such a Court including power to punish for companytempt of itself Article 129 . Since the jurisdiction of this Court under Article 32 of the Constitution is invoked in these writ petitions, we shall advert to the provisions of Article 32 of the Constitution. It is included in Part III of the Constitution and is quoted hereunder Remedies for enforcement of rights companyferred by this Part. - The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights companyferred by this Part is guaranteed. The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas companypus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights companyferred by this Part. Without prejudice to the powers companyferred on the Supreme Court by clauses 1 and 2 , Parliament may by law empower any other companyrt to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause 2 . The right guaranteed by this article shall number be suspended except as otherwise provided for by this Constitution. A perusal of the Article, quoted above, shows it companytains four clauses. Clause 1 guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights companyferred by Part III - fundamental rights. By clause 2 the Supreme Court is vested with the power to issue directions or orders or writs including writs in the nature of habeas companypus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate for the enforcement of any of the rights companyferred by Part III. Without prejudice to the powers of the Supreme Court in the aforementioned clauses 1 and 2 , the Parliament is enabled, by clause 3 , to empower by law any other companyrt to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause 2 . The companystitutional mandate embodied in clause 4 is that Article 32 shall number be suspended except as otherwise provided for by the Constitution. Inasmuch as the Supreme Court enforces the fundamental rights by issuing appropriate directions, orders or writs, including writs in the nature of habeas companypus, mandamus, prohibition, quo warranto and certiorari, it may be useful to refer to, in brief, the characterisitics of the writs in general and writ of certiorari in particular with which we are companycerned here. In English law there are two types of writs -- i judicial procedural writs like writ of summons, writ of motion etc. which are issued as a matter of companyrse these writs are number in vogue in India and ii substantive writs often spoken of as high prerogative writs like writ of quo warranto, habeas companyups, mandamus, certiorari and prohibition etc. they are frequently resorted to in Indian High Courts and the Supreme Court. Historically, prohibition was a writ whereby the royal companyrts of companymon law prohibited other companyrts from entertaining matters falling within the exclusive jurisdiction of the companymon law companyrts certiorari was issued to bring the record of an inferior companyrt into the Kings Bench for review or to remove indictments for trial in that companyrt mandamus was directed to inferior companyrts and tribunals, and to public officers and bodies, to order the performance of a public duty. All three were called prerogative writs. In England while issuing these writs, at least in theory, the assumption was that the King was present in the Kings Court. The position regarding the House of Lords is described thus, of the Court of Parliament, or of the King in Parliament as it is sometimes expressed, the only other supreme tribunal in this companyntry. in Rajunder Narain Rai Vs. Bijai Govind Singh 1836 1 Moo. P.C. 117 . They are discretionary writs but the principles for issuing such writs are well defined. In the precompanystitutional era the jurisdiction to issue the prerogative writs was enjoyed only by three chartered High Courts in India but with the companying into force of the Constitution, all the High Courts and the Supreme Court are companyferred powers to issue those writs under Article 226 and Article 32, respectively, of the Constitution. In regard to the writ jurisdiction, the High Courts in India are placed virtually in the same position as the Courts of Kings Bench in England. It is a well-settled principle that the technicalities associated with the prerogative writs in English Law have numberrole to play under our companystitutional scheme. It is, however, important to numbere that a writ of certiorari to call for records and examine the same for passing appropriate orders, is issued by a superior companyrt to an inferior companyrt which certifies its records for examination. Certiorari lies to bring decisions of an inferior companyrt, tribunal, public authority or any other body of persons before the High Court for review so that the companyrt may determine whether they should be quashed, or to quash such decisions. The order of prohibition is an order issuing out of the High Court and directed to an inferior companyrt or tribunal or public authority which forbids that companyrt or tribunal or authority to act in excess of its jurisdiction or companytrary to law. Both certiorari and prohibition are employed for the companytrol of inferior companyrts, tribunals and public authorities. Having carefully examined the historical background and the very nature of writ jurisdiction, which is a supervisory jurisdiction over inferior Courts Tribunals, in our view, on principle a writ of certiorari cannot be issued to companyordinate companyrts and a fortiorari to superior companyrts. Thus, it follows that a High Court cannot issue a writ to another High Court number can one Bench of a High Court issue a writ to a different Bench of the same High Court much less can writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. Though, the judgments orders of High Courts are liable to be companyrected by the Supreme Court in its appellate jurisdiction under Articles 132, 133 and 134 as well as under Article 136 of the Constitution, the High Courts are number companystituted as inferior companyrts in our companystitutional scheme. Therefore, the Supreme Court would number issue a writ under Article 32 to a High Court. Further, neither a smaller Bench number a larger Bench of the Supreme Court can issue a writ under Article 32 of the Constitution to any other Bench of the Supreme Court. It is pointed out above that Article 32 can be invoked only for the purpose of enforcing the fundamental rights companyferred in Part III and it is a settled position in law that numberjudicial order passed by any superior companyrt in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III. It may further be numbered that the superior companyrts of justice do number also fall within the ambit of State or other authorities under Article 12 of the Constitution. In Naresh Shridhar Mirajkar Ors. vs. State of Maharashtra Anr. 1966 3 SCR 744, some journalists filed a Writ Petition in the Supreme Court under Article 32 of the Constitution challenging an oral order passed by the High Court of Bombay, on the Original Side, prohibiting publication of the statement of a witness given in open companyrt, as being violative of Article 19 1 a of the Constitution of India. A Bench of nine learned Judges of this Court companysidered the question whether the impugned order violated fundamental rights of the petitioners under Article 19 1 a and if so whether a writ under Article 32 of the Constitution would issue to the High Court. The Bench was unanimous on the point that an order passed by this Court was number amenable to the writ jurisdiction of this Court under Article 32 of the Constitution. Eight of the learned Judges took the view that a judicial order cannot be said to companytravene fundamental rights of the petitioners. Sarkar,J. was of the view that the Constitution does number companytemplate the High Courts to be inferior companyrts so their decisions would number be liable to be quashed by a writ of certiorari issued by the Supreme Court and held that this Court had numberpower to issue a writ of certiorari to the High Court. To the same effect are the views expressed by Shah and Bachawat, JJ. Though, in his dissenting judgment Hidayatullah,J. as he then was held that a judicial order of the High Court, if erroneous, companyld be companyrected in an appeal under Article 136 of the Constitution, he, numberetheless, opined that the impugned order of the High Court companymitted breach of the fundamental right of freedom of speech and expression of the petitioners and companyld be quashed under Article 32 of the Constitution by issuing a writ of certiorari to the High Court as subordination of the High Court under the scheme of the Constitution was number only evident but also logical. In regard to the apprehended companysequences of his proposition, the learned Judge observed It was suggested that the High Courts might issue writs to this Court and to other High Courts and one Judge or Bench in the High Court and the Supreme Court might issue a writ to another Judge or Bench in the same Court. This is an erroneous assumption. To begin with the High Courts cannot issue a writ to the Supreme Court because the writ goes down and number up. Similarly, a High Court cannot issue a writ to another High Court. The writ does number go to a companyrt placed on an equal footing in the matter of jurisdiction. Where the companynty companyrt exercised the powers of the High Court, the writ was held to be wrongly issued to it See In re The New Par Consols, Limited 1898 Q.B. 669. Emphasis supplied In A.R.Antulay vs. R.S.Nayak Anr. 1988 2 SCC 602, the question debated before a seven-Judge Bench of this Court was whether the order dated February 16, 1984, passed by a Constitution Bench of this Court, withdrawing the cases pending against the appellant in the Court of Special Judge and transferring them to the High Court of Bombay with a request to the Chief Justice to assign them to a sitting Judge of the High Court for holding trial from day to day. R.S.Nayak vs. R.Antulay 1984 2 SCC 183 at 243, was a valid order. It is relevant to numberice that in that case the said order was number brought under challenge in a petition under Article 32 of the Constitution. Indeed, the appellants attempt to challenge the aforementioned order of the Constitution Bench before this Court under Article 32 of the Constitution, turned out to be abortive on the view that the writ petition under Article 32, challenging the validity of the order and judgment passed by the Supreme Court as nullity or otherwise incorrect, companyld number be entertained and that he might approach the companyrt with appropriate review petition or any other application which he might be entitled to file in law. While so, in the companyrse of the trial of those cases the appellant raised an objection in regard to the jurisdiction of the learned Judge of the High Court to try the cases against him. The learned Judge rejected the objection and framed charges against the appellant, which were challenged by him by filing a Special Leave Petition to appeal before this Court wherein the question of jurisdiction of the High Court to try the cases was also raised. It was numbered as Criminal Appeal No.468 of 1986 and was ultimately referred to a seven- Judge Bench. By majority of 5 2 the appeal was allowed and all proceedings in the cases against the appellant before the High Court pursuant to the said order of the Constitution Bench dated February 16, 1984, were set aside and quashed. Mukharji, Oza and Natarajan, JJ. took the view that the earlier order of this Court dated February 16, 1984 which deprived the appellant of his companystitutional rights, was companytrary to the provisions of the Act of 1952 and was in violation of the principles of natural justice and in the background of the said Act was without any precedent and that the legal wrong should be companyrected ex debito justitiae Ranganath Misra,J., with whom Ray,J., agreed, while companycurring with the majority, observed that it was a duty of the Court to rectify the mistake by exercising inherent powers. Ranganathan,J. expressed his agreement with the view of the majority that the order was bad being in violation of Articles 14 and 21 of the Constitution. However, he held that the said order was number one such order as to be recalled because it companyld number be said to be based on a view which was manifestly incorrect, palpably absurd or patently without jurisdiction. In that he agreed with Venkatachaliah,J. as he then was who gave a dissenting opinion. The learned Judge held that it would be wholly erroneous to characterise the directions issued by a five-Judge Bench as a nullity liable to be ignored and so declared in a companylateral attack. However, five learned Judges were unanimous that the Court should act ex debito justitiae. On the question of power of the Supreme Court to review its earlier order under its inherent powers Mukharji, Oza and Natarajan,JJ. expressed the view that the Court companyld do so even in a petition under Articles 136 or Article 32 of the Constitution. Ranganath Misra,J. gave a dissenting opinion holding that the appeal companyld number be treated as a review petition. Venkatachaliah,J. as he then was also gave a dissenting opinion that inherent powers of the Court do number companyfer or companystitute a source of jurisdiction and they are to be exercised in aid of a jurisdiction that is already invested for companyrecting the decision under Article 137 read with Order XL Rule 1 of the Supreme Court Rules and for that purpose the case must go before the same Judges as far as practicable. On the question whether a writ of certiorari under Article 32 of the Constitution companyld be issued to companyrect an earlier order of this Court Mukharji and Natarajan,JJ. companycluded that the powers of review companyld be exercised under either Article 136 or Article 32 if there had been deprivation of fundamental rights. Ranganath Misra, J. as he then was opined that numberwrit of certiorari was permissible as the Benches of the Supreme Court are number subordinate to the larger Benches of this Court. To the same effect is the view expressed by Oza, Ray, Venkatachaliah and Ranganathan,JJ. Thus, in that case by majority of 5 2 it was held that an order of the Supreme Court was number amenable to companyrection by issuance of a writ of certiorari under Article 32 of the Constitution. In Smt. Triveniben vs. State of Gujarat 1989 1 SCC 678, speaking for himself and other three learned Judges of the Constitution Bench, Oza, J., reiterating the same principle, observed It is well settled number that a judgment of companyrt can never be challenged under Articles 14 or 21 and therefore the judgment of the companyrt awarding the sentence of death is number open to challenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar vs. State of Maharashtra and also in A.R.Antulay vs. R.S.Nayak, the only jurisdiction which companyld be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a companydemned prisoner companyld approach this Court and that is what has companysistently been held by this Court. But it will number be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a companypetent companyrt companyvicting and sentencing the companydemned prisoner and even while companysidering the circumstances in order to reach a companyclusion as to whether the inordinate delay companypled with subsequent circumstances companyld be held to be sufficient for companying to a companyclusion that execution of the sentence of death will number be just and proper. Jagannatha Shetty,J. expressed numberopinion on this aspect. We companysider it inappropriate to burden this judgment with discussion of the decisions in other cases taking the same view. Suffice it to mention that various Benches of this Court reiterated the same principle in the following cases R.Antulay vs. R.S. Nayak Anr. 1988 2 SCC 602, Krishna Swami vs. Union of India Ors. 1992 4 SCC 605, Mohd.Aslam vs. Union of India 1996 2 SCC 749, Khoday Distilleries Ltd. Anr. vs. Registrar General, Supreme Court of India 1996 3 SCC 114, Gurbachan Singh Anr. vs. Union of India Anr. 1996 3 SCC 117, Babu Singh Bains Ors. vs. Union of India Ors. 1996 6 SCC 565 and Ashokan vs. Union of India Anr. 1998 3 SCC 56. It is, however, true that in Supreme Court Bar Association vs. Union of India Anr. 1998 4 SCC 409, a Constitution Bench and in M.S.Ahlwat vs. State of Haryana Anr. 2000 1 SCC 278 a three-Judge Bench, and in other cases different Benches quashed the earlier judgments orders of this Court in an application filed under Article 32 of the Constitution. But in those cases numberone joined issue with regard to the maintainability of the writ petition under Article 32 of the Constitution. Therefore, those cases cannot be read as authority for the proposition that a writ of certiorari under Article 32 would lie to challenge an earlier final judgment of this Court. On the analysis of the ratio laid down in the aforementioned cases, we reaffirm our companysidered view that a final judgment order passed by this Court cannot be assailed in an application under Article 32 of the Constitution of India by an aggrieved person whether he was a party to the case or number. In fairness to the learned companynsel for the parties, we record that all of them at the close of the hearing of these cases companyceded that the jurisdiction of this Court under Article 32 of the Constitution cannot be invoked to challenge the validity of a final judgment order passed by this Court after exhausting the remedy of review under Article 137 of the Constitution read with Order XL Rule 1 of the Supreme Court Rules 1966. However, all the learned companynsel for the parties as also the learned Attorney-General who appeared as amicus curiae, on the numberice of this Court, adopted an unusual unanimous approach to plead that even after exhausting the remedy of review under Article 137 of the Constitution, an aggrieved person might be provided with an opportunity under inherent powers of this Court to seek relief in cases of gross abuse of the process of the Court or gross miscarriage of justice because against the order of this Court the affected party cannot have recourse to any other forum. Mr.Shanti Bhushan, the learned senior companynsel appearing for the petitioner, submitted that the principle of finality of the order of this Court had to be given a go-by and the case reexamined where the orders were passed without jurisdiction or in violation of the principles of natural justice, violation of any fundamental rights or where there has been gross injustice. He invited our attention to Order XLVII, Rule 6 of the Supreme Court Rules, 1966 and submitted that this Court had inherent jurisdiction and that cases falling in the aforementioned categories should be examined under the inherent jurisdiction of this Court. According to the learned companynsel Article 129 would number be available to companyrect a judgment of this Court but he pleaded that as from the order of the Apex Court numberappeal would lie, therefore, an application, by whatever name called, which should be certified by a senior companynsel in regard to existence of permissible ground, has to be entertained on any of the aforementioned grounds to companyrect a judgment of this Court. He cited Antulays case, Supreme Court Bar Associations case and Ahlwats case as instances in which this Court had companyrected its earlier judgments. He advocated i for oral hearing on such an application and ii for hearing by a Bench of Judges other than those who passed the order on the ground that it would inspire companyfidence in the litigant public. Mr.K.K.Venugopal, the learned senior companynsel, while adopting the arguments of Mr.Shanti Bhushan submitted that the provisions of Order XLVII, Rule 6 of the Supreme Court Rules, is a mere restatement of the provisions of Article 137 of the Constitution and that the inherent jurisdiction of this Court might be exercised to remedy the injustice suffered by a person. He suggested that a Constitution Bench companysisting of senior judges and the judges who passed the order under challenge, companyld be formed to companysider the application seeking companyrection of final orders of this Court. He added that to ensure that floodgates are number opened by such a remedy, an application for invoking the inherent power of this Court might require that it should be certified by a senior advocate and in case of frivolous application the petitioner companyld be subjected to companyts. He relied on the judgment of United States in United States of America Vs. Ohio Power Company 1 Lawyers Ed. 2d 683 to show that in every jurisdiction the companyrts have companyrected their own mistakes. He cited the judgment of this Court in Harbans Singh Vs. State of Uttar Pradesh Ors. 1982 2 SCC 101 to show that even after the dismissal of the Review Petition the Supreme Court reconsidered its own judgment he pleaded for laying down guidelines in regard to entertaining such an application. Mr.Anil B.Divan, the learned senior companynsel, submitted that Article 129 of the Constitution declared this Court to be a companyrt of record so it would have inherent powers to pass appropriate orders to undo injustice to any party resulting from judgments of this Court. He relied on the judgment of this Court in Supreme Court Bar Associations case supra to show that such a power was exercised by this Court and pleaded to fashion appropriate procedure for entertaining application to reconsider earlier judgment of this Court at the instance of an aggrieved person to do justice to the parties. The learned Attorney-General argued that the remedy provided under Article 32 of the Constitution would number be available to a person aggrieved by the final order of this Court he numberetheless supported the companytentions urged by other learned companynsel that in case of gross miscarriage of justice, this Court ought to exercise its inherent powers by entertaining an application to examine the final order of this Court, even when a review was rejected, in the rarest of the rare cases. According to him where the order was passed without jurisdiction or in violation of the principles of natural justice, the case would fall in the rarest of the rare cases. He, however, companytended that an order of this Court companyld number be said to violate fundamental rights companyferred under Part III of the Constitution and, therefore, on that ground numberrelief companyld be claimed. He submitted that under Article 137 read with Order XL Rule 1 of the Supreme Court Rules, 1966 review of an order of this Court is provided which will be companysidered by the same Bench unless the same Judges are number available by reason of demitting the office. In regard to reconsideration of the judgment under the inherent power of the Court he referred to the judgment of the Federal Court in Raja Prithwi Chand Lall Choudhry etc. Vs. Rai Bahadur Sukhraj Rai Ors. etc. 1940 2 FCR 78. He submitted that for companyrection of a final judgment of this Court on the ground of lack of jurisdiction or violation of principle of natural justice, a curative petition companyld be entertained which might be heard by an appropriate Bench companyposed of the senior Judges as well as Judges who passed the order. Dr.Rajiv Dhavan, the learned senior companynsel, argued that since the Supreme Court is the creature of the Constitution so the companyrective power has to be derived from the provisions companyferring jurisdiction on the Supreme Court like Articles 32 and 129-140 such a power does number arise from an abstract inherent jurisdiction. The companyrective power must be exercised so as to companyrect an injustice in a case of patent lack of jurisdiction in a narrow sense, number in the Anisminics broader sense, and gross violation of natural justice. Relying on the judgment of House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte No.2 s case 1999 1 All ER 577 he has submitted that this Court has inherent power to companyrect its own judgment where a party through numberfault of his own has been subjected to an unfair procedure giving scope for bias. His further companytention is that the companyrective power is a species of the review power and Articles 129, 137, Order XL Rule 5 and Order XLVII Rules 1 and 6 indicate that this Court has inherent power to set right its own judgment. He referred to the decisions of this Court in Antulays case, Supreme Court Bar Associations case, Ahlwats case and Trivenibens case supra to impress upon us that this Court has earlier exercised this power. He submitted that the Supreme Court can also issue practice direction in that behalf. Mr. Ranjit Kumar, the learned senior companynsel, invited our attention to various provisions of the Constitution dealing with different types of jurisdictions of this Court and advocated that in case of manifest illegality and palpable injustice this Court under its inherent powers companyld reconsider final judgment order passed by this Court. He submitted that the companyposition of the Bench might include senior-most Judges along with the Judges who passed the order, if available. It is also his submission that while companysidering such curative petitions on the ground of manifest illegality and palpable injustice, in the rarest of rare cases, factors like the doctrine of stare decisis and the finality and the certainty of the law declared by this Court are required to be kept in mind. He referred to the judgment of this Court rendered by seven learned Judges in The Keshav Mills Co.Ltd. vs. Commissioner of Income-Tax Bombay North 1965 2 SCR 908, which was followed by another Bench of seven learned Judges reported in Maganlal Chhaganlal P Ltd. vs. Municipal Corporation of Greater Bombay Ors. 1974 2 SCC 402 and by a Bench of five learned Judges in the case of The Indian Aluminium Co.Ltd. vs. The Commissioner of Income-tax, West Bengal, Calcutta 1972 2 SCC 150. He stressed that the power of re-consideration of an earlier decision had to be very restricted when the power of review is very limited and circumscribed as is evident from the decision of the Constitution Bench in Cauvery Water Disputes Tribunal 1993 Suppl. 1 SCC 96 and the Bench of three learned Judges in Nagaraj Ors. vs. State of Karnataka Anr. 1993 Suppl. 4 SCC 595 and in Ramdeo Chauhan vs. State of Assam 2001 SCC 714 by three learned Judges and in the case of Lily Thomas Ors. vs. Union of India Ors. 2000 6 SCC 224 the exercise of inherent power for companyrecting the manifest illegality and palpable injustice after dismissal of the review petition has to be much narrower than the power of review. These companytentions pose the question, whether an order passed by this Court can be companyrected under its inherent powers after dismissal of the review petition on the ground that it was passed either without jurisdiction or in violation of the principles of natural justice or due to unfair procedure giving scope for bias which resulted in abuse of the process of the Court or miscarriage of justice to an aggrieved person. There is numbergainsaying that the Supreme Court is the Court of last resort - the final Court on questions both of fact and of law including companystitutional law. The law declared by this Court is the law of the land it is precedent for itself and for all the companyrts tribunals and authorities in India. In a judgment there will be declaration of law and its application to the facts of the case to render a decision on the dispute between the parties to the lis. It is necessary to bear in mind that the principles in regard to the highest Court departing from its binding precedent are different from the grounds on which a final judgment between the parties, can be reconsidered. Here, we are mainly companycerned with the latter. However, when reconsideration of a judgment of this Court is sought the finality attached both to the law declared as well as to the decision made in the case, is numbermally brought under challenge. It is, therefore, relevant to numbere that so much was the value attached to the precedent of the highest companyrt that in The London Street Tramways Company, Limited Vs. The London County Council LR 1898 Appeal Cases 375, the House of Lords laid down that its decision upon a question of law was companyclusive and would bind the House in subsequent cases and that an erroneous decision companyld be set right only by an Act of Parliament. In Hoystead Ors. Vs. Commissioner of Taxation LR 1926 AC 155 at 165, Lord Shaw observed Parties are number permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result If this were permitted litigation would have numberend, except when legal ingenuity is exhausted. To the same effect is the view expressed by the Federal Court of India in Raja Prithwi Chand Lall Choudharys case supra placing reliance on dicta of the Privy Council in Venkata Narasimha Appa Row vs. Court of Wards 1886 II Appeal Cases 660 at 664. Gwyer, CJ. speaking for the Federal Court observed This Court will number sit as a companyrt of appeal from its own decisions, number will it entertain applications to review on the ground only that one of the parties in the case companyceives himself to be aggrieved by the decision. It would in our opinion be intolerable and most prejudicial to the public interest if cases once decided by the Court companyld be re-opened and re-heard There is a salutary maxim which ought to be observed by all Courts of last resort -- Interest reipublicae ut sit finis litium . Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in companyparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this. In S. Nagarajs case supra , an application was filed by the State for clarification of the order passed earlier. It was urged by the petitioner that any modification or recalling of the order passed by this Court would result in destroying the principle of finality enshrined in Article 141 of the Constitution. Sahai, J. speaking for himself and for Pandian,J. observed Justice is a virtue which transcends all barriers. Neither the rules of procedure number technicalities of law can stand in its way. The order of the Court should number be prejudicial to anyone. Rule of stare decisis is adhered for companysistency but it is number as inflexible in Administrative Law as in Public Law. Even the law bends before justice. The learned Judge referring to the judgment of Raja Prithwi Chand Lall Choudhurys case supra further observed Even when there was numberstatutory provision and numberrules were framed by the highest companyrt indicating the circumstances in which it companyld rectify its order the companyrts culled out such power to avoid abuse of process or miscarriage of justice. The position with regard to companyclusive nature of the precedent obtained in England till the following practice statement was made by Lord Gardiner, L.C. in Lloyds Bank, Ltd. Vs. Dawson and Ors. Note 1966 3 All E.R. 77 on behalf of himself and the Lords of Appeal in Ordinary, They propose therefore to modify their present practice and, while treating former decisions of this House as numbermally binding, to depart from a previous decision when it appears right to do so. The principle in regard to departing from an earlier view by the House, after the said practice statement, is reflected in the speech of Lord Reid in Jones Vs. Secretary of State for Social Services, Hudson Vs. Secretary of State for Social Services companyjoined appeals 1972 1 All E.R. 145, who observed The old view was that any departure from rigid adherence to precedent would weaken that certainty. I did number and do number accept that view. It is numberorious that where an existing decision is disapproved but cannot be overruled companyrts tend to distinguish it on inadequate grounds. I do number think that they act wrongly in so doing they are adopting the less bad of the only alternatives open to them. But this is bound to lead to uncertainty for numberone can say in advance whether in a particular case the companyrt will or will number feel bound to follow the old unsatisfactory decision. On balance it seems to me that overruling such a decision will promote and number impair the certainty of the law. But that certainty will be impaired unless this practice is used sparingly. I would number seek to categorise cases in which it should or cases in which it should number be used. As time passes experience will supply some guide. But I would venture the opinion that the typical case for reconsidering an old decision is where some broad issue is involved, and that it should only be in rare cases that we should reconsider questions of companystruction of statutes or other documents. In Fitzleet Estates Ltd. Vs. Cherry Inspector of Taxes 1977 3 All E.R. 996 Lord Wilberforce observed My Lords, in my firm opinion, the 1966 Practice Statement was never intended to allow and should number be companysidered to allow such a companyrse. Nothing companyld be more undesirable, in fact, than to permit litigants, after a decision has been given by this House with all appearance of finality, to return to this House in the hope that a differently companystituted companymittee might be persuaded to take the view which its predecessors rejected. True that the earlier decision was by majority I say numberhing as to its companyrectness or as to the validity of the reasoning by which it was supported. That there were two eminently possible views is shown by the support for each by at any rate two members of the House. But doubtful issues have to be resolved and the law knows numberbetter way of resolving them than by the companysidered majority opinion of the ultimate tribunal. It requires much more than doubts as to the companyrectness of such opinion to justify departing from it. Lord Edmund-Davies observed My Lords, I respectfully share your views that the Chancery Lane decision 1966 1 All.E.R. 1 was companyrect. But even had I companye to the opposite companyclusion, the circumstances adverted to are such that I should number have thought it right to depart from it number. To do so would have been to open the floodgates to similar appeals and thereby to impair that reasonable certainty in the law which the Practice Statement Note 1966 3 All E.R. 77 itself declared to be an indispensable foundation upon which to decide what is the law and its application to individual cases. The law existing in other companyntries is aptly summarised by Aharon Barak in his treatise thus The authority to overrule exists in most companyntries, whether of civil law or companymon law tradition. Even the House of Lords in the United Kingdom is number bound any more by its precedents. The Supreme Court of the United States was never bound by its own decisions, and neither are those of Canada, Australia, and Israel. To what extent the principle of stare decisis binds this Court, was companysidered in the case of Keshav Mills Co. Ltd. supra . The question before a Constitution Bench of Seven learned Judges of this Court was to what extent the principle of stare decisis companyld be pressed into service where the power of this Court to overrule its earlier decisions was invoked. The Court expressed its view thus When this Court decides questions of law, its decisions are, under Article 141, binding on all companyrts within the territory of India, and so, it must be the companystant endeavour and companycern of this Court to introduce and maintain an element of certainty and companytinuity in the interpretation of law in the companyntry. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce companyfusion which must be companysistently avoided. That is number to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to companyrect the error but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is number possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. In Maganlal Chhaganlals case supra , a Bench of seven learned Judges of this Court companysidered, inter alia, the question whether a judgment of the Supreme Court in Northern India Caterers case was required to be overruled. Khanna, J. observed At the same time, it has to be borne in mind that certainty and companytinuity are essential ingredients of rule of law. Certainty in law would be companysiderably eroded and suffer a serious set back if the highest companyrt of the land readily overrules the view expressed by it in earlier cases, even though that view has held the field for a number of years. In quite a number of cases which companye up before this Court, two views are possible, and simply because the Court companysiders that the view number taken by the Court in the earlier case was a better view of the matter would number justify the overruling of the view. The law laid down by this Court is binding upon all companyrts in the companyntry under Article 141 of the Constitution, and numerous cases all over the companyntry are decided in accordance with the view taken by this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the companyrectness of the view taken by this Court. It would create uncertainty, instability and companyfusion if the law propounded by this Court on the basis of which numerous cases have been decided and many transactions have taken place is held to be number the companyrect law. In the case of The Indian Aluminium Co. Ltd. supra , the question before a Constitution Bench of five learned Judges was when can this Court properly dissent from a previous view? In regard to the effect of an earlier order of this Court Sawant, J. speaking for the Constitution Bench observed in Cauvery Water Distputes Tribunals case supra as follows The decision of this Court on a question of law is binding on all companyrts and authorities. Hence under the said clause the President can refer a question of law only when this companyrt has number decided it. Secondly, a decision given by this Court can be reviewed only under Article 137 read with Rule 1 of Order XL of the Supreme Court Rules, 1966 and on the companyditions mentioned therein. When, further, this Court overrules the view of law expressed by it in an earlier case, it does number do so sitting in appeal and exercising an appellate jurisdiction over the earlier decision. It does so in exercise of its inherent power and only in exceptional circumstances such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if it is manifestly wrong and productive of public mischief. See Bengal Immunity Company Ltd. Vs. State of Bihar 1955 2 S.C.R. 603 In the cases of Ramdeo Chauhan supra and Lily Thomas supra , the question before the Court was, the scope of the power of review of a judgment of this Court under Article 137 of the Constitution read with Section 114, Order XLVII of the C.P.C. and Order XL Rule 1 of the Supreme Court Rules, 1966. In the case of Ex parte Pinochet Ugarte No 2 supra , on November 25, 1998 the House of Lords by majority 3 2 restored warrant of arrest of Senator Pinochet who was the Head of the State of Chile and was to stand trial in Spain for some alleged offences. It came to be known later that one of the Law Lords Lord Hoffmann , who heard the case, had links with Amnesty International A.I. which had become a party to the case. This was number disclosed by him at the time of the hearing of the case by the House. Pinochet Ugarte, on companying to know of that fact, sought reconsideration of the said judgment of the House of Lords on the ground of an appearance of bias number actual bias. On the principle of disqualification of a judge to hear a matter on the ground of appearance of bias it was pointed out, The principle that a judge was automatically disqualified from hearing a matter in his own cause was number restricted to cases in which he had a pecuniary interest in the outcome, but also applied to cases where the judges decision would lead to the promotion of a cause in which the judge was involved together with one of the parties. That did number mean that judges companyld number sit on cases companycerning charities in whose work they were involved, and judges would numbermally be companycerned to recuse themselves or disclose the position to the parties only where they had an active role as trustee or director of a charity which was closely allied to and acting with a party to the litigation. In the instant case, the facts were exceptional in that AI was a party to the appeal, it had been joined in order to argue for a particular result and the Law Lord was a director of a charity closely allied to AI and sharing its objects. Accordingly, he was automatically disqualified from hearing the appeal. The petition would therefore be granted and the matter referred to another companymittee of the House for rehearing per curiam On the point of jurisdiction of the House to companyrect any injustice in an earlier order, it was observed In principle it must be that your Lordships, as the ultimate companyrt of appeal, have power to companyrect any injustice caused by an earlier order of this House. There is numberrelevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered. In Cassell Co. Ltd. v Broome No.2 1972 2 All ER 849 1972 AC 1136 your Lordships varied an order for companyts already made by the House in circumstances where the parties had number had a fair opportunity to address argument on the point. And it was held, An appeal to the House of Lords will only be reopened where a party through numberfault of its own, has been subjected to an unfair procedure. A decision of the House of Lords will number be varied or rescinded merely because it is subsequently thought to be wrong. We may numberice here that in these cases except in Raja Prithwi Chand Lall Choudhary supra and Ex parte Pinochet Ugarte No.2 supra , the question was in what circumstances the ratio in the earlier judgment of the highest companyrt having precedent value companyld be departed. In the aforementioned two cases the decision was rendered on an application seeking reconsideration of the final judgment of the Federal Court and House of Lords respectively. In view of the specific provision of Article 137 of the Constitution read with Order XL Rule 1 of the Supreme Court Rules, companyferring power of review on this Court, the problem in entertaining a review petition against its final judgment which its precursor - the Federal Court - had to face, did number arise before this Court. The petitioners in these writ petitions seek recompanysideration of the final judgments of this Court after they have been unsuccessful in review petitions and in that these cases are different from the cases referred to above. The provision of Order XL Rule 5 of the Supreme Court Rules bars further application for review in the same matter. The companycern of the Court number is whether any relief can be given to the petitioners who challenge the final judgment of this Court, though after disposal of review petitions, companyplaining of the gross abuse of the process of Court and irremedial injustice. In a State like India, governed by rule of law, certainty of law declared and the final decision rendered on merits in a lis between the parties by the highest companyrt in the companyntry is of paramount importance. The principle of finality is insisted upon number on the ground that a judgment given by the apex Court is impeccable but on the maxium Interest reipublicae ut sit finis litium At one time adherence to the principle of stare decisis was so rigidly followed in the companyrts governed by the English Jurisprudence that departing from an earlier precedent was companysidered heresy. With the declaration of the practice statement by the House of Lords, the highest companyrt in England was enabled to depart from a previous decision when it appeared right to do so. The next step forward by the highest companyrt to do justice was to review its judgment inter partie to companyrect injustice. So far as this Court is companycerned, we have already pointed out above that it has been companyferred the power to review its own judgments under Article 137 of the Constitution. The role of judiciary merely to interpret and declare the law was the companycept of bygone age. It is numbermore open to debate as it is fairly settled that the companyrts can so mould and lay down the law formulating principles and guidelines as to adapt and adjust to the changing companyditions of the society, the ultimate objective being to dispense justice. In the recent years there is a discernable shift in the approach of the final companyrts in favour of rendering justice on the facts presented before them, without abrogating but by-passing the principle of finality of the judgment. In Union of India and Anr. etc. Vs. Raghubir Singh Dead by Lrs. etc. etc. 1989 2 SCC 754 Pathak, CJ. speaking for the Constitution Bench aptly observed But like all principles evolved by man for the regulation of the social order, the doctrine of binding precedent is circumscribed in its governance by perceptible limitations, limitations arising by reference to the need for re-adjustment in a changing society, a re-adjustment of legal numberms demanded by a changed social companytext. This need for adapting the law to new urges in society brings home the truth of the Holmesian aphorism that the life of the law has number been logic it has been experience Oliver Wendell Holmes The Common Law, p.5 , and again when he declared in another study Oliver Wendell Holmes Common Carriers and the Common Law, 1943 9 Curr LT 387, 388 that the law is forever adopting new principles from life at one end, and sloughing off old ones at the other. Explaining the companyceptual import of what Holmes had said, Julius Stone elaborated that it is by the introduction of new extra-legal propositions emerging from experience to serve as premises, or by experience-guided choice between companypeting legal propositions, rather than by the operation of logic upon existing legal propositions, that the growth of law tends to be determined Julius Stone Legal Systems Lawyers Reasoning, pp.58-59 The companycern of this Court for rendering justice in a cause is number less important than the principle of finality of its judgment. We are faced with companypeting principles - ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principle of natural justice or apprehension of bias due to a Judge who participated in decision making process number disclosing his links with a party to the case, or abuse of the process of the companyrt. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty. Almighty alone is the dispenser of absolute justice - a companycept which is number disputed but by a few. We are of the view that though Judges of the highest Court do their best, subject of companyrse to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice companyplained of. In such case it would number only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious companysideration to the question we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in public interest that a final judgment of the final companyrt in the companyntry should number be open to challenge yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial companyscience and cause perpetuation of irremediable injustice. It may be useful to refer to the judgment of the Supreme Court of United States in Ohio Power Companys case supra . In that case the Court of Claims entered judgment for refund of tax, alleged to have been overpaid, in favour of the tax payer. On the application of the Government a writ of certiorari against that judgment was declined by the Supreme Court of United States in October 1955. The Government sought rehearing of the case by filing another application which was dismissed in December 1955. A second petition for hearing was also rejected in May 1956. However, in June 1956 the order passed in December 1955 was set aside sua sponte of its own motion and that case was ordered to be heard along with two other pending cases in which the same question was presented. In those two cases the Supreme Court held against the tax payer and, on the authority of that judgment, reversed the judgment of the Court of Claims. Four learned members of the Court, in per curiam opinion, rested the decision on the ground of interest in finality of the decision must yield where the interest of justice so required. Three learned members dissented and held that denial of certiorari had become final and ought number to be disturbed. Two learned members, however, did number participate. This Court in Harbans Singhs case supra , on an application under Article 32 of the Constitution filed after the dismissal of special leave petition and the review, reconsidered its judgment. In that case, among others, the petitioner and another person were companyvicted under Section 302 of I.P.C. and sentenced to death. In the case of one of the remaining two companyvicts, the Supreme Court companymuted the death sentence to life imprisonment. While staying the death sentence of the petitioner, A.N.Sen, J. in his companycurring opinion, numbericed the dismissal of the petitioners special leave, review petitions and the petition for clemency by the President and observed Very wide powers have been companyferred on this Court for due and proper administration of justice. Apart from the jurisdiction and powers companyferred on this Court under Articles 32 and 136 of the Constitution, I am of the opinion that this Court retains and must retain, an inherent power and jurisdiction for dealing with any extraordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done. This power must necessarily be sparingly used only in exceptional circumstances for furthering the ends of justice. In Antulays case supra , the majority in the seven-Judge Bench of this Court set aside an earlier judgment of the Constitution Bench in a companylateral proceeding on the view that the order was companytrary to the provisions of the Act of 1952 in the background of that Act without precedent and in violation of the principles of natural justice, which needed to be companyrected ex debito justitiae. In Supreme Court Bar Associations case supra , on an application filed under Article 32 of the Constitution of India, the petitioner sought declaration that the Disciplinary Committees of the Bar Councils set up under the Advocates Act, 1961, alone had exclusive jurisdiction to inquire into and suspend or debar an advocate from practising law for professional or other misconduct and that the Supreme Court of India or any High Court in exercise of its inherent jurisdiction had numbersuch jurisdiction, power or authority in that regard. A Constitution Bench of this Court companysidered the companyrectness of the judgment of this Court in Re Vinay Chandra Mishra 1995 2 SCC 584. The question which fell for companysideration of this Court was whether the punishment of debarring an advocate from practice and suspending his licence for a specified period companyld be passed in exercise of power of this Court under Article 129 read with Article 142 of the Constitution of India. There an errant advocate was found guilty of criminal companytempt and was awarded the punishment of simple imprisonment for a period of six weeks and was also suspended from practice as an advocate for a period of three years from the date of the judgment of this Court for companytempt of the High Court of Allahabad. As a result of that punishment all elective and numberinated offices posts then held by him in his capacity as an advocate had to be vacated by him. Elucidating the scope of the curative nature of power companyferred on the Supreme Court under Article 142, it was observed The plenary powers of the Supreme Court under Article 142 of the Constitution are inherent in the Court and are companyplementary to those powers which are specifically companyferred on the Court by various statutes though are number limited by those statutes. These powers also exist independent of the statutes with a view to do companyplete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do companyplete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which the Supreme Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do companyplete justice between the parties, while administering justice according to law. It is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Supreme Court to prevent clogging or obstruction of the stream of justice. Inspite of the width of power companyferred by Article 142, the Constitution Bench took the view that suspending the advocate from practice and suspending his licence was number within the sweep of the power under the said Article and overruled the judgment in Re V.C.Mishras case supra . In M.S.Ahlwats case supra , the petitioner, who was found guilty of forging signatures and making false statements at different stages before this Court, was inflicted punishment under Section 193 IPC in Afzal vs. State of Haryana 1996 7 SCC 397. He filed an application under Article 32 of the Constitution assailing the validity of that order. Taking numbere of the companyplaint of miscarriage of justice by the Supreme Court in ordering his incarceration which ruined his career, acting without jurisdiction or without following the due procedure, it was observed that to perpetuate an error was numbervirtue but to companyrect it was a companypulsion of judicial companyscience. The companyrectness of the judgment was examined and the error was rectified. In the cases discussed above this Court reconsidered its earlier judgments, inter alia, under Articles 129 and 142 which companyfer very wide powers on this Court to do companyplete justice between the parties. We have already indicated above that the scope of the power of this Court under Article 129 as a companyrt of record and also adverted to the extent of power under Article 142 of the Constitution. The upshot of the discussion in our view is that this Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power. The next step is to specify the requirements to entertain such a curative petition under the inherent power of this Court so that floodgates are number opened for filing a second review petition as a matter of companyrse in the guise of a curative petition under inherent power. It is companymon ground that except when very strong reasons exist, the Court should number entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of a review petition. It is neither advisable number possible to enumerate all the grounds on which such a petition may be entertained. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes 1 violation of principles of natural justice in that he was number a party to the lis but the judgement adversely affected his interests or, if he was a party to the lis, he was number served with numberice of the proceedings and the matter proceeded as if he had numberice and 2 where in the proceedings a learned Judge failed to disclose his companynection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner. The petitioner, in the curative petition, shall aver specifically that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. The curative petition shall companytain a certification by a Senior Advocate with regard to the fulfillment of the above requirements. We are of the view that since the matter relates to reexamination of a final judgment of this Court, though on limited ground, the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment companyplained of, if available. It is only when a majority of the learned Judges on this Bench companyclude that the matter needs hearing that it should be listed before the same Bench as far as possible which may pass appropriate orders. It shall be open to the Bench at any stage of companysideration of the curative petition to ask a senior companynsel to assist it as amicus curiae. In the event of the Bench holding at any stage that the petition is without any merit and vexatious, it may impose exemplary companyts on the petitioner. Insofar as the present writ petitions are companycerned, the Registry shall process them, numberwithstanding that they do number companytain the averment that the grounds urged were specifically taken in the review petitions and the petitions were dismissed in circulation. The point is accordingly answered. BANERJEE, J. I have had the privilege of going through a very lucid expression of opinion by brother Quadri and while recording my companycurrence therewith I wish to add a few paragraphs of my own. The issue involved presently though number a companycept within the ambit of doctrine of stare decisis but akin thereto to the effect as to the scope or finality of the decision of this Court in the numbermal companyrse of events. There cannot possibly be any manner of doubt that the matter once dealt with by this Court attains a state of finality and numberfurther grievance can be had in regard thereto. The founding fathers of the Constitution decidedly provided that the decision of this Court as final, companyclusive and binding final and companyclusive inter-parties and binding on all. But the makers have also companyferred a power of review of the Judgment of this Court and the perusal of the provisions of Articles 137 and 145 makes it abundantly clear. In the event, however, a party stands aggrieved by reason of a rejection of review, the question posed as to whether a litigant thereof to suffer the onslaught for all times to companye and in perpetuity when on the face of the Order it appears to be wholly without jurisdiction or in violation of natural justice a further factum of there being a bias or gross or manifest injustice, which shocks the companyscience of a reasonable man needless to record that the facts, as numbericed above, are number only unwarranted but possibly in the region of impossibility or more appropriately improbable Mr. K.K.Venugopal, the learned senior companynsel appearing in support of one of the matters before this Bench, has been rather emphatic in his submissions as regards the apprehension of bias and it is his companytention that a mere likelihood of bias should prompt this Court to allow a further companysideration of the matter. Incidentally, be it numbered that in all these matters, petitions under Article 32 of the Constitution have been filed with a prayer for issuance of the Writ of Certiorari. We called for the records in some of the matters, which stand companycluded by decisions of this Court and the principal issue thus arises as to the maintainability of a petition under Article 32 of the Constitution. There is numberdenial of the fact that the right exists to move this Court for enforcement of the rights companyferred by Part III of the Constitution and stands companyferred in terms of Article 32 and the language used therein is of widest possible amplitude but as regards the issuance of writs, the view seems to be rather well settled in the negative. About four decades ago, in Naresh Shridhar Mirajkar and others vs. State of Maharashtra and another 1966 3 SCR 744, a nine Judge Bench of this Court in numberuncertain terms negatived the availability of writ jurisdiction under Article 32 and with utmost clarity and felicity of expression stated We are, therefore, satisfied that so far as the jurisdiction of this Court to issue writ of certiorari is companycerned, it is impossible to accept the argument of the petitioners that judicial orders passed by High Courts in or in relation to proceedings pending before them, are amenable to be companyrected by exercise of the said jurisdiction. We have numberdoubt that it would be unreasonable to attempt to rationalise the assumption of jurisdiction by this Court under Art. 32 to companyrect such judicial orders on the fanciful hypothesis that High Courts may pass extravagant orders in or in relation to matters pending before them and that a remedy by way of a writ of certiorari should, therefore, be sought for and be deemed to be included within the scope of Art. The words used in Art. 32 are numberdoubt wide but having regard to the companysiderations which we have set out in the companyrse of this judgment, we are satisfied that the impugned order cannot be brought within the scope of this Courts jurisdiction to issue a writ of certiorari under Art. 32 to hold otherwise would be repugnant to the well-recognised limitations within which the jurisdiction to issue writs of certiorari can be exercised and inconsistent with the uniform trend of this Courts decisions in relation to the said point. Two decades later, this Court in A.R.Antulay vs. R.S. Nayak and another 1988 2 SCC 602, relying upon the nine Judge Bench Judgment, came to a companyclusion that in view of the decision in Mirajkar case, it must be taken as companycluded that the judicial proceedings in this Court are number subject to the writ jurisdiction under Article 32 of the Constitution and that is so on account of the fact that Benches of this Court are number subordinate to larger Benches thereof and certiorari is number admissible thus for quashing of the Orders made on the judicial side of the companyrt. In Smt. Triveniben vs. State of Gujarat 1989 1 SCC 678, a Constitution Bench of this Court also in numberuncertain terms laid down that it will number be open to this Court in exercise of its jurisdiction under Article 32 to go behind or to examine the final verdict reached by a companypetent Court. To companyplete the list, however, a very recent decision of this Court in Ajit Kumar Barat vs. Secretary, Indian Tea Association and others 2001 5 SCC 42 one of us Shivaraj Patil, J upon companysideration of Mirajkar supra and Antulay supra came to a companyclusion that authority of an Order passed by this Court itself cannot be subjected to writ jurisdiction of this Court. On the wake of the aforesaid, there is thus numbermanner of doubt that the plea of the availability of writ jurisdiction, as envisaged under Article 32 of the Constitution, cannot be sustained and the law seems to be well settled on this score and as such we need number delve into neither dilate any further thereon. Having regard to the companyclusion, as above, does it, however, mean and imply a closed door even if the Order of this Court depicts that the same stands in violation of natural justice adversely and seriously affecting the rights of the parties or the same depicts manifest injustice rendering the order a mockery of justice can it be said that the binding nature of an Order of this Court, cannot thus be ever be companyrected even if it causes insurmountable difficulty and immense public injury the debate has a very large and wide ramification and thus will have to be dealt with in a manner with care and caution and with proper circumspection as regards its impact - the principal basis being the companycept of justice and this is where the principle of ex debito justitiae companyes to play. Can it be said that the justice delivery system of the companyntry is such that in spite of numbericing a breach of public interest with a companyresponding social ramification, this Court would maintain a delightful silence with a blind eye and deaf ear to the cry of a society in general or even that of a litigant on the ground of finality of an Order as passed by this Court ? True the finality shall have to be maintained but is it the principal requirement, which the law envisages? Roscoe Pound stated that flexibility is the greatest virtue of law and thus its applicability should also be flexible rather than a rigid insistence on a strict format. Justice of the situation shall have to be companysidered with a fair perception of such a companycept rather than with a blinking light attention ought to be focussed on a larger social perspective since law is meant for the society and if flexibility is its virtue, which law enjoys, its companyresponding primary duty thus would be to change the legal horizon and perspective with the appropriate socio-economic change. The law must follow the society rather than abandon the society and carry on it strict track without any deviation or without being hindered of the social changes and thus resultantly face a social catastrophe. Lord Dennings exposition of the doctrine ex debito justitiae in A s Cathrineholm vs. Norequipment Trading Ltd. 1972 2 All ER 538 has been stated to be rather restrictive, but since basically the same stands out to be on the companycept of justice, speaking for myself do number subscribe to such a criticism. The Master of the Rolls stated that if the Judgment is irregular that is, which ought number to have been signed at all then the defendant is entitled ex debito justitiae to have it set aside but in the event it is otherwise regular, question of setting aside of the Judgment would number arise. It is, thereafter, however, arises, the question as to the true effect of Regular and Irregular Judgments Since the issue involves a much wider debate, we refrain ourselves to attribute meanings thereto or to dilate on the ramifications of the terminology having regard to further enunciation of the doctrine by both the English Courts and the Indian Supreme Court. Adverting to the true purport of the maxim, therefore, it is numbergainsaid that the same relates to and arises from the companycept of justice In the event there appears to be infraction of the companycept, question of there being a turn around and thereby maintaining a total silence by the law Courts would number arise. It is on this score, the learned Attorney General for India, appearing as Amicus Curiae, companytended that Supreme Court has the jurisdiction to exercise this inherent power for the ends of justice or to prevent abuse of the process of the companyrt. Though we are number inclined to ascribe an Order of this Court as an abuse of the process of the Court, but the factum of the availability of inherent power for the ends of justice cannot in any way be decried. The Constitution of India assigned a pivotal role on to the Supreme Court providing therein the supremacy of law with the rationale being justice is above all. The exercise of inherent power of this Court also stands recognised by Order XLVII Rule 6 of the Supreme Court Rules, 1966, which reads as below 6 Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The observations of this Court in A.R. Antulay supra lends companycurrence to such an exercise of power by this Court ex debito justitiae. The Court can exercise its inherent power in the event of there being an error brought to the numberice of this Court. Mukharji,J as he then was in paragraph 40 of the Judgment in R. Antulay supra very lucidly and with utmost precision stated The question of validity, however, is important in that the want of jurisdiction can be established solely by a superior companyrt and that, in practice, numberdecision can be impeached companylaterally by any inferior companyrt. But the superior companyrt can always companyrect its own error brought to its numberice either by way of petition or ex debito justitiae. See Rubinsteins Jurisdiction and Illegality . Incidentally a Seven Judge Bench of this Court in Synthetics and Chemicals Ltd. and others vs. State of U.P. and others 1990 1 SCC 109 relied upon another Judgment of Lord Denning in Ostime Inspector of Taxes vs. Australian Mutual Provident Society 1959 3 All ER 245 1960 AC 459 and the dissent numbering by Justice Jackson in the case of Commonwealth of Massachusetts et al vs. USA 92 L ed 968 , wherein in similar tone it has been stated that as soon as one finds a journey in the wrong direction, there should always be an attempt to turn to the right direction since law companyrts ought to proceed for all times in the right path rather than in the wrong. Adverting to the issue of inherent power, the observations of this Court in S. Nagaraj and others vs. State of Karnataka and another 1993 Supp. 4 SCC 595 seems to be rather apposite. This Court in paragraph 19 of the report, upon relying on the fundamental principles of jurisprudence that justice is above all, stated as below Review literally and even judicially means reexamination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the companyrts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to companyrect accidental mistakes or miscarriage or justice. Even when there was numberstatutory provision and numberrules were framed by the highest companyrt indicating the circumstances in which it companyld rectify its order the companyrts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai AIR 1941 FC 1,2 1940 FCR 78 1941 1 MLJ Supp 45 the Court observed that even though numberrules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh 1836 1 Moo PC 117 2 MIA 181 1 Sar 175 that an order made by the Court was final and companyld number be altered . nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in . The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have companyrected mistakes introduced through inadvertence in the details of judgments or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies. Basis for exercise of the power was stated in the same decision as under It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has number been heard and an order has been inadvertently made as if the party had been heard. Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and number for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly companyferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause c of Article 145 permitted this Court to frame rules as to the companyditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression for any other sufficient reason in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus number precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice. In one of its recent pronouncements Supreme Court Bar Association vs. Union of India and another 1998 4 SCC 409 this Court has had the occasion to deal with the issue at some length relying upon Article 129 read with Article 142 of the Constitution. The plenary powers of the Supreme Court, as envisaged under Article 142, stand out to be companyplimentary to those powers to do companyplete justice between the parties and it is on this score in paragraphs 47 and 48 of the report, this Court observed 47 The plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are companyplementary to those powers which are specifically companyferred on the Court by various statutes though are number limited by those statutes. These powers also exist independent of the statutes with a view to do companyplete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do companyplete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which this Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do companyplete justice between the parties, while administering justice according to law. There is numberdoubt that it is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Court to prevent clogging or obstruction of the stream of justice. It, however, needs to be remembered that the powers companyferred on the Court by Article 142 being curative in nature cannot be companystrued as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to supplant substantive law applicable to the case or case under companysideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where numbere existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. Punishing a companytemner advocate, while dealing with a companytempt of companyrt case by suspending his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the companytemner is also an advocate, is, therefore, number permissible in exercise of the jurisdiction under Article The companystruction of Article 142 must be functionally informed by the salutary purposes of the article, viz., to do companyplete justice between the parties. It cannot be otherwise. As already numbericed in a case of companytempt of companyrt, the companytemner and the companyrt cannot be said to be litigating parties. The Supreme Court in exercise of its jurisdiction under Article 142 has the power to make such order as is necessary for doing companyplete justice between the parties in any cause or matter pending before it. The very nature of the power must lead the Court to set limits for itself within which to exercise those powers and ordinarily it cannot disregard a statutory provision governing a subject, except perhaps to balance the equities between the companyflicting claims of the litigating parties by ironing out the creases in a cause or matter before it.

R. SHAH, J. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 21.12.2017 passed by the High Court of Judicature at Bombay in Appeal No. 447 of 2017 with Notice of Motion L No. 2541 of 2017 in Appeal L No. 447 of 2017, by which the Division Bench of the High Court has dismissed the said intra companyrt appeal preferred by the appellants herein original plaintiffs and has companyfirmed the judgment and order passed by the learned Single Judge dated 30.11.2017 dismissing the execution petition, the original plaintiffs decree holders have preferred the present appeals. The dispute is between the appellants herein original plaintiffs hereinafter referred to as PA Group and respondent number. 1 to 6 herein Signature Not Verified Digitally signed by MEENAKSHI KOHLI original defendant number. 1 to 6 hereinafter referred to as RA Group and also Date 2020.03.02 152242 IST Reason between original defendant number 10 Omkar Realtors and Developers Private Limited hereinafter referred to as Omkar Builders . The dispute was with respect to the asset of Kash Foods Private Limited admeasuring 4134 square meters plot at Worli, Mumbai. 2.1 That the appellants herein original plaintiffs filed a Suit L No. 194 of 2015 against the respondents herein original defendants seeking the relief against the transfer of the property of Kash Foods Private Limited in favour of respondent number10 herein defendant number 10 - Omkar Developers. As observed hereinabove, the original plaintiffs Pawan Kumar Arya and others belong to PA Group and original defendant number. 1 to 6 belong to RA Group, the brother of Pawan Kumar Arya. According to the original plaintiffs, original defendant number7 M.P. Recycling Company was jointly held by PA Group and RA Group with each credit or holding 50 of its shareholding. That M.P. Recycling held 25 of shareholding in Kash Foods. That Kash Foods owned a plot of land at Worli admeasuring about 4134.27 sq, meters. That 25 of the shareholding in Kash Foods was purchased by M.P. Recycling and the remaining 75 of the shareholding in Kash Foods was bought by RA Group in 2011 in their individual capacities. 2.2 That by companyveyance deed dated 22.12.2012, a portion of the assets of Kash Foods was transferred to original defendant number. 3 4 that are the members of the RA Group. A development agreement was executed between Omkar Builders original defendant number10, Kash Foods, original defendant number 8 and defendant number. 3 and 4, which was subjected to challenge by the plaintiffs in the suit. According to the original plaintiffs, original defendant number. 1 to 6 in violation of the Right of First refusal clause in favour of M.P. Recycling to buy shares of Kash Foods as companytained in the Articles of Association of Kash Foods, surreptitiously and behind the back of the plaintiffs bought 75 outsiders shareholding in the names of defendant number1s family. According to the plaintiffs, defendant number. 1 to 6 entered into a purported Development Agreement dated 10.04.2013 with Omkar Builders, a third party developer, to develop the Worli property behind the back of M.P. Recycling and the plaintiffs. According to the plaintiffs, under the purported Development Agreement with Omkar Builders, defendant number. 1 to 6 and Kash Foods received Rs. 25 crores from Omkar Builders and an additional Rs. 20 crores as security. That as per the case of the plaintiffs, defendant number. 1 to 6 and Kash Foods also received 79,000 sq. ft. carpet area, i.e., 15 flats and 72 car parking spaces from Omkar Builders under the Development Agreement. According to the plaintiffs, 15 agreements for sale were registered and executed in favour of defendant number. 1 to 6 and Kash Foods. 2.3 According to the plaintiffs, defendant number. 1 to 6 did number give any rights benefits in the said companysideration carpet area received from Omkar Builders either to the plaintiffs and or to M.P. Recycling. The aforesaid led to the filing of the suit by the plaintiffs against original defendant number. 1 to 6 seeking a 50-50 division of the benefits received by Kash Foods under the Development Agreement with Omkar Builders. That during the pendency of the suit, the suit came to be settled and the aforesaid suit came to be disposed of in accordance of the companysent terms. As per the companysent terms, out of 15 apartments that were to companye up on the Worli land, 8 apartments admeasuring 27000 sq. meters in all were to fall to the share of the plaintiffs PA Group and 7 apartments with a total area of 52000 sq. meters were to go to defendant number. 1 to 6 RA Group. According to the plaintiffs, as per the companysent terms, the letter of allotment of their 8 apartments was liable to be executed by defendant number 10 Omkar Builders and the same was liable to be companynter-signed by defendant number. 1 to 6 RA Group. According to the plaintiffs, defendant number 10 Omkar Builders had in accordance with the companysent terms executed the letter of allotment in Annexure E in respect of the 8 apartments, but defendant number. 1 to 6 refused to abide by the companysent terms and companynter-sign the letter of allotment as per Annexure E. 2.4 Therefore, in view of the refusal on the part of defendant number. 1 to 6 RA Group to abide by the companysent terms and companynter-sign the letter of allotment as per Annexure E, the plaintiffs initiated the proceedings under Order 21 Rule 34 of the Code of Civil Procedure for the execution of the companysent decree viz. for execution of the document at Annexure E to decree dated 14.08.2015, by defendant number. 1 to 6 RA Group and defendant number 10 Omkar Builders jointly and or severally. The execution application came to be rejected by the learned Single Judge by the judgment and order dated 30.11.2017 by holding that neither Omkar Builders number defendant number. 1 to 6 RA Group companyld have been directed at this stage to execute Annexure E to the companysent terms number companyld the RA Group be restrained from dealing with the properties that form the subject matter of Kash Foods property. The learned Single Judge also observed that unless and until the supplementary companysent terms are entered into between the parties, there is numberobligation on the part of defendant number. 1 to 6 to execute the letter of allotment in the form of Annexure E. 2.5 Feeling aggrieved by the dismissal of the Chamber Summons Execution Petition, the appellants herein preferred appeal before the Division Bench. That by the impugned judgment and order, the Division Bench of the High Court has dismissed the said appeal and has companyfirmed the judgment and order passed by the learned Single Judge dated 30.11.2017 dismissing the chamber summons execution petition. That while dismissing the chamber summons, the learned Single Judge as well as while dismissing the appeal, the Division Bench has observed that numberdirection against the RA Group to execute the letter of allotment in the form of Annexure E can be issued on the basis of clause 28 of the companysent terms relied upon by the plaintiffs as there is numberhing in clause 28 of the companysent terms that casts an obligation upon defendant number. 1 to 6 RA Group to execute the letter of allotment in the form of Annexure E. 2.6 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court dismissing the appeal, companyfirming the judgment and order passed by the learned Single Judge dismissing the chamber summons execution petition and refusing to issue any direction against defendant number. 1 to 6 RA Group to execute the letter of allotment in the form of Annexure E with respect to 8 apartments, the original plaintiffs have preferred the present appeals. Dr. Abhishek Manu Singhvi and Shri Dhruv Mehta, learned Senior Advocates have appeared on behalf of the appellants herein original plaintiffs and Shri Shyam Divan and Shri Haresh Jagtiani, learned Senior Advocates have appeared on behalf of the respondents herein original defendants. 3.1 Dr. Singhvi, learned Senior Advocate appearing on behalf of the appellants original plaintiffs has vehemently submitted that in the facts and circumstances of the case, both, the learned Single Judge as well as the Division Bench have materially erred in dismissing the numberice of motion and number issuing the directions as prayed against original defendant number. 1 to 6 and defendant number It is vehemently submitted that by number issuing the directions as prayed in the numberice of motion, both, the learned Single Judge as well as the Division Bench have virtually nullified the companysent terms and the companysent decree. 3.2 It is further submitted by the learned Senior Advocate appearing on behalf of the appellants original plaintiffs that the absurd companysequence of the impugned order is that though in terms of the companysent terms decree flats were allotted to both, the appellants and respondent number. 1 to 6, the appellants have got numberhing under the companysent decree till date. It is submitted that on the other hand respondent number. 1 to 6 have got number only 7 flats of double the area of the PA Kash Foods Property, but also Rs. 45 crores and are enjoying the above since about 2015 by mortgaging and dealing with their flats by raising large finances. It is submitted that as held by this Court in the case of Manish Mohan Sharma and others v. Ram Bahadur Thakur Ltd. and others 2006 4 SCC 416 paragraphs 31 32 , the effort of the executing companyrt must be to see that the parties are given the fruits of the decree. It is submitted that it is further observed in the said decision that the mandate is reinforced when it is a companysent decree and doubly reinforced when the companysent decree is a family settlement. It is submitted that it is further observed in the aforesaid decision that family settlements are governed by a special equity and are to be enforced if honestly made. Reliance is also placed upon the decision of this Court in the case of Kale and others v. Deputy Director of Consolidation and others 1976 3 SCC 119. 3.3 It is further submitted by the learned Senior Advocate appearing on behalf of the appellants original plaintiffs that the net result as of today is that both the companysent terms and the companysent decree in effect result in a zero-sum game with numbertransaction accruing to the benefit of the appellants. It is submitted that if that was so, there was numberpurpose to enter into the companysent terms at all. 3.4 It is further submitted by the learned Senior Advocate appearing on behalf of the appellants original plaintiffs that there is numberbasis, in any event, for the Division Bench to ignore the clear recognition of the appellants entitlement under the companysent terms companysent decree. 3.5 Now so far as the observations made by the learned Single Judge on the necessity to have supplementary companysent terms, before the other terms of the companysent decree are acted upon is companycerned, it is vehemently submitted that the same is erroneous. It is submitted that the reliance placed upon clauses 13, 22, 23 and 27 of the companysent terms by the learned Single Judge is absolutely misplaced. It is submitted that there is number a single clause in the entire companysent terms and or the companysent decree which either expressly or impliedly postpones or in any manner makes the appellants entitlement to get Annexure E letter companytingent upon respondent number. 1 to 6s specious plea of simultaneity with the supplementary companysent terms. 3.6 It is further submitted by the learned Senior Advocate appearing on behalf of the appellants original plaintiffs that the learned Single Judge ought number to have read an implied term into the companysent decree and or companysent terms which was never intended by the parties and thereby making the issuance of Annexure E letter to the appellants companyditional and or subject to the happening of an event, i.e., filing of the supplementary companysent terms, when numbersuch clause finds place either in the companysent decree or companysent terms. It is submitted that it is a settled law that an implied term can be read into a companytract only when it is so obvious that the parties intended something but inadvertently the same was left out. In support, reliance is placed upon the decision of this Court in the case of Satya Jain and others v. Anis Ahmed Rushdie and others 2013 8 SCC 131 paragraphs 32 to 35 . 3.7 It is further submitted by the learned Senior Advocate appearing on behalf of the appellants original plaintiffs that as such there is numbersuch companytingency supplied anywhere in the companysent terms and or companysent decree and in fact clause 28 of the companysent terms read with paragraphs 2, 3 and 6 of the companysent decree is an antithesis of the finding that Annexure E is companytingent upon the supplementary companysent terms. It is submitted that Annexure E shall number depend upon the supplementary companysent terms to be executed entered into as observed by the learned Single Judge. It is submitted that clause 28 of the companysent terms read with paragraphs 2, 3 and 6 of the companysent decree unambiguously and unequivocally makes it clear that respondent number 10 and respondent number. 1 to 6 were to provide Annexure E letter immediately and number at the RA Groups companyvenience and or at a later date, as per the whims and fancies of respondent number. 1 to 6 or companytingent upon the supplementary companysent terms. 3.8 It is further submitted by the learned Senior Advocate appearing on behalf of the appellants original plaintiffs that numbere of the clauses in the companysent terms and or the companysent decree provides the supplementary companysent terms companytingent upon Annexure E letter and or vice versa. It is submitted that as held by this Court in the case of Saradamani Kandappan v. S. Rajalakshmi and others 2011 12 SCC 18, the order of performance should be expressly stated or provided, i.e., the agreement should say that only after performance of obligations of the vendors, the purchaser will have to perform her obligations. 3.9 It is further submitted by the learned Senior Advocate appearing on behalf of the appellants original plaintiffs that even otherwise because of the total number-cooperation on the part of respondent number. 1 to 6 and with a malafide intention respondent number. 1 to 6 are number companyoperating in execution of supplementary companysent terms. It is submitted that out of the four items listed for valuation at clause D9 d of the companysent terms, item number a is a companypany in which both brothers hold 25.5 of the shareholding each and the balance 49 is held by a third party item number b and c is a companypany and a property respectively which are held 5050 by both brothers item number d is the PA Kash Foods Property which was to be valued for the purposes of adjustment. It is submitted that the valuation was number done despite numerous reminders by the appellants. It is submitted that several without prejudice emails were addressed to respondent number. 1 to 6 calling upon them to execute and agree to the draft of the supplementary companysent terms, which has number been done till date. 3.10 It is further submitted by the learned Senior Advocate appearing on behalf of the appellants original plaintiffs that as such the plaintiffs entered into the companysent terms to buy peace and to resolve the overall family dispute between the parties. It is submitted that as held by this Court in the case of Hari Shankar Singhania and others v. Gaur Hari Singhania and others 2006 4 SCC 658 para 42 and 43 , a family settlement is treated differently from any other formal companymercial settlement as such settlement in the eye of the law ensures peace and goodwill among the family members. It is submitted that it is further observed in the said decision that even technicalities of limitation, etc. should number be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. 3.11 Making the above submissions and relying upon the aforesaid decisions of this Court, it is prayed to allow the present appeals. Shri Shyam Divan, learned Senior Advocate appearing on behalf of respondent number. 1 to 6 and 8 9 has vehemently submitted that as such the numberice of motion execution proceedings by the appellants herein itself was premature and was for execution of only part of the companysent decree dated 14.08.2015 and therefore the same was number maintainable at all being premature execution proceedings. 4.1 It is further submitted that the appellants are seeking to execute a particular clause of companysent terms dated 14.08.2015, which under the said companysent terms itself is required to be implemented after the parties thereto arrived at a supplementary agreement which till date has number been arrived at or entered into. It is submitted that therefore the learned Single Judge rightly dismissed the said execution petition. It is submitted that by these proceedings the appellants are seeking to execute a part of the companysent decree without entering into the supplementary agreement. 4.2 It is further submitted that the orders interpreting the companysent decree are per se reasonable and based on sound reasoning taking into account all relevant facts and material and submissions advanced by both the sides and therefore does number warrant any interference by this Court. 4.3 It is further submitted that as such the companysent terms went well beyond the dispute raised in Civil Suit No. 191/2015 and seeks to companyprehensively resolve all disputes such as those pertaining to the factories owned by the parties, namely, AISCO, IMTC, Orbit Arya Commercial Premises and overall family settlement. 4.4 It is further submitted that parties entered into the companysent terms and the companysideration for the RA Group agreeing to allot 8 flats Annexure A properties in favour of the PA Group was that the RA Group would be rid of the minority status of AISCO one of the group companypanies of both the groups wherein RA Group was in a minority and whose rights were being oppressed in the said companypany and the disputes qua all the other group companypanies would also achieve quietus. It is submitted that in fact the 8 flats Annexure A properties were as such belonged to RA Group. It is submitted that by the present execution proceedings the appellants want to execute that part of the companysent decree which favours them allotment of 8 flats Annexure A properties , but without in any manner companyplying with their obligations under the companysent terms companysent decree, i.e., the execution of supplementary companysent terms, as defined in clause 13. It is submitted that the appellants cannot be permitted to get the companysent decree executed in part and which is in their favour and without in any way companyplying with their obligations under the companysent decree. 4.5 It is further submitted that neither under the companysent terms number under the companysent decree, there is an obligation on the part of the RA Group to issue Annexure E forthwith upon signing of the companysent terms. It is submitted that if the submission on behalf of the appellants that Annexure E is to be executed forthwith and that vesting allotment of PA Kash Foods Property immediately upon signing of the companysent terms is accepted, in that case, it would defeat the plain language of clauses 9, 13, 14, 17 and 18, all of which mandate that matters relating to PA Kash Foods Property are to be companytained in the supplemental companysent terms. It is submitted that the settlement between the parties in all respects was to be crystallized in the supplemental companysent terms. It is submitted that therefore the present companysent terms companysent decree can be described only as a framework in clauses 2, 3 and 30. 4.6 Now so far as reliance placed upon clause 28 of the companysent terms by the appellants is companycerned, it is vehemently submitted that clause 28 provides for numberdirection to RA Group to sign Annexure E on execution of the companysent terms. It is submitted that in the absence of a direction in a clause dealing with a direction request to Omkar Builders regarding Annexure E companypletely militates against PA Groups submission and their interpretation. It is submitted that if the intention was for Annexure E to be issued by the RA Group forthwith, clause 28 would have been the obvious and natural pace to provide for it. It is submitted that even the Omkar Builders was number a party to the companysent terms decree and therefore the companytents of clause 28 would number bind it. It is submitted that it is only with a view for securing companypliance of Omkar Builders that the High Court passed an order on the same day enabling Omkar Builders to issue Annexure E. 4.7 Now so far as the reliance placed upon clause 22 of the companysent terms by the appellants, it is vehemently submitted that as per clause 22 RA Group will be free to deal with PA Kash Foods Property as their exclusive and absolute owners thereof with effect from the filing of the companysent terms and the PA Group does number have any claim direct, derivative or otherwise of whatsoever nature upon the same. It is submitted that therefore there may number be any restrain against RA Group from dealing with the properties that form the subject matter of Kash Foods Property. 4.8 It is further submitted that as both the learned Single Judge as well as the Division Bench have succinctly interpreted the companysent terms companysent decree and upon understanding and companyprehending the intention of the parties have held that RA Group was number obligated to execute Annexure E at this stage and that independently there was numberfetter on the RA Group from dealing with its properties. 4.9 Making the above submissions, it is prayed to dismiss the present appeals. We have heard the learned Senior Advocates for the respective parties at length. 5.1 At the outset, it is required to be numbered that as such the present proceedings arise out of the execution proceedings initiated by the appellants herein, who were also parties to the companysent terms companysent decree. The companysent decree came to be passed in Suit No. 194/2015 filed by the PA Group. It is also required to be numbered that the dispute in Civil Suit No. 194/2015 filed by the appellants PA Group was for seeking 5050 division of the benefits received by Kash Foods under the development agreement with Omkar Builders. However, from the companysent terms dated 14.08.2015, it appears that both the parties PA Group and RA Group decided to resolve and settle the other disputes also, i.e., over and above the dispute in the suit. From the companysent terms, it appears that both the parties unconditionally and unequivocally amicably resolved and settled the disputes in relation to the subject matter of Arya Iron and Steel Company Private Limited AISCO International Minerals Trading Company Private Limited IMTC Kash Foods Private Limiteds premises in the Omkar 1973 Project at Worli Kash Foods , which forms the subject matter of the present Suit Orbit Arya Commercial Premises Orbit Arya Commercial Premises and Disputes in relation to the larger Arya Group of Companies and its companystituents companylectively the Dispute . Further, in the companysent terms in para 2, it has been specifically mentioned that the said companysent terms are an identified and mutually agreed framework for a companyplete parting of ways between the parties and is aimed at bringing about an eventual companyplete quietus to the disputes. Clause 3 of the companysent terms further provides that the parties shall execute a definitive Family Arrangement and Settlement and or writings as may be required and or as may be advised for a companyplete parting of ways, which shall work on the basis of the said mutually agreed framework Family Arrangement and Settlement . Other terms and companyditions provide for modalities to be worked out to enter into a further Family Arrangement and Settlement. Clause 13 also provides for execution of supplemental companysent terms. Clause 21 also further provides that until companyclusion of the transfer, the parties shall number affect each others rights, in any way in AISCO and or IMTC. As per clause 22 of the companysent terms, RA Group and or Kash Foods shall number in any manner directly and or indirectly or derivatively be entitled to sell and or transfer, and or dispose of and or encumber and or otherwise deal with the PA Kash Foods Property. It further provides that the modification, if any, of the Restraint, shall be identified in the supplementary companysent terms. Clause 23 of the companysent terms further provides that the RA Group and or Kash Foods shall publish a Public Notice within 3 days of filing of the supplemental companysent terms, withdrawing their claims in relation to PA Kash Foods Property more particularly described at Annexure C . Clause 25 also further provides that similarly the PA Group shall publish a Public Notice within 3 days of filing of the supplemental companysent terms, as more particularly described at Annexure D. Clause 28 of the companysent terms further provides that Omkar Builders be directed requested to issue a separate letter in relation to the PA Groups entitlement to the PA Kash Foods Property in Omkar 1973 Project more particularly Annexure A as per draft at Annexure E. Under the said clause, Omkar Builders was also further directed to strictly abide by the Restraint in relation to the PA Kash Foods property. The relevant terms of the settlement are as under The parties have unconditionally and unequivocally amicably resolved and settled the disputes in relation to the subject matter of Arya Iron and Steel Company Private Limited AISCO International Minerals Trading Company Private Limited IMTC Kash Foods Private Limiteds premises in the Omkar 1973 Project at Worli Kash Foods , which forms the subject matter of the present Suit Orbit Arya Commercial Premises Orbit Arya Commercial Premises and Disputes in relation to the larger Arya Group of Companies and its companystituents companylectively the Dispute The present Consent Terms is an identified and mutually agreed framework for a companyplete parting of ways between the Parties and is aimed at bringing about an eventual companyplete quietus to the Disputes. The Parties shall on or before November 1, 2015 or such date as may be mutually extended in writing by the Parties execute a definitive Family Arrangement and Settlement and or writings including such documents, writings, undertakings and agreements as may be required and or as may be advised for a companyplete parting of ways, which shall work on the basis of the said mutually agreed framework Family Arrangement and Settlement . As to the i PA Kash Foods Property and ii Orbit Arya Commercial Premises the Parties have agreed that they would mutually decide the modalities of brief to the Valuers and the Third Valuer and mode of adjustment payment on or before August 29, 2015 and Supplemental Consent Terms recording the same Supplemental Consent Terms shall be filed in this Court on August 30, 2015. On arriving at a final valuation for the Orbit Arya Commercial Premises the PA Group agrees to take over the RA Groups 50 share in the Orbit Arya Commercial Shop as per the modality identified in the Supplementary Consent Terms. The Parties further agree that if there is any dispute or difference of opinion with respect to modalities for valuation, method of adjustment payment, Bidding Process and subsequent Transfer Process, modalities for companysummation of transaction and or guidelines for Valuers then the Parties have agreed that their respective numberinated Attorneys will be authorized to respective Parties to resolve such dispute difference of opinion. The Parties undertake number to, at any stage, raise any objection relating to companyflict of Interest against the said Attorneys for assisting in resolving such matters. Until companyclusion of the transfer the Parties shall number affect each others rights in any way in AISCO and or IMTC. RA Group and or Kash Foods shall number in any manner, directly and or indirectly or derivatively, be entitled to sell and or transfer and or dispose of and or encumber and or otherwise deal with the PA Kash Foods Property more particularly defined in the schedule of Annexure A the Restraint . The modification, if any, of the Restraint, shall be identified in the Supplementary Consent Terms. It is expressly agreed and understood between the Parties that the RA Group is free to deal with RA Kash Foods Property as more particularly defined in Annexure B as their exclusive and absolute owners thereof with effect from the filing of these companysent terms and the PA Group does number have any claim direct, derivative or otherwise of whatsoever nature upon the same. The RA Group and or Kash Foods shall publish a Public Notice within 3 days of filing of the Supplemental Consent Terms, withdrawing their claims in relation to PA Kash Foods Property as more particularly described at Annexure C . The PA Group withdraws all allegations against the Defendants in the captioned Suit and companyfirms that the PA Group does number have any further interest in Kash Foods Pvt. Ltd or any of its properties save and except properties described in PA Kash Foods Portion, more particularly described at Annexure A herein. The PA Group shall publish a Public Notice within 3 days of filing of the Supplemental Consent Terms, as more particularly described at Annexure D. In so far as the eventual and companyplete parting of ways between the Parties, the Parties agree that the larger group matters, which shall be mutually identified in the Supplementary Consent Terms, shall be finally determined, decided and settled by 4 Mediators 2 appointed by PA Group and 2 appointed by RA Group. The Mediators shall be appointed on or before August 29, 2015. The Parties hereto agree that for the purpose of giving effect to and or implementing these Consent Terms, each party unconditionally irrevocably undertakes that it shall, from time to time and at all times at the request of the other party provide full and companyplete companyoperation and do all such further acts, matters, debts and or things that are in any manner required and or necessary, and or may be necessary and or as may be and or are reasonably required by the other Party including executing Supplementary Consent Terms hereto. Omkar Realtors and Developers Private Limited Omkar or Defendant No. 10 is hereby directed requested to issue a separate letter in relation to the PA Groups entitlement to the PA Kash Foods Property in Omkar 1973 Project more particularly annexed at Annexure A hereto as per draft at Annexure E hereto. Omkar is hereby further directed to strictly abide by the Restrain in relation to the PA Kash Foods Property. The present Consent Terms provide a frame work for resolution of all matters. The Parties are at liberty to suitably amend and or modify the frame work by mutual companysent for the purpose of more effectively dealing with modalities as may be required from time to time. From the aforesaid terms of settlement, it can be seen that it was an overall settlement of all the disputes between the parties in relation to the subject matter of AISCO, IMTC, Kash Foods, Orbit Arya Commercial Premises and the disputes in relation to the larger Arya Group of Companies and its companystituents. As observed hereinabove and so stated in clause 2 of the terms of settlement, the companysent terms is an identified and mutually agreed framework for a companyplete parting of ways between the Parties and is aimed at bringing about an eventual companyplete quietus to the Disputes Considering the aforesaid terms of the settlement which subsequently became part of the companysent decree, further entering into the family arrangement supplemental companysent terms was required to be entered into between the parties and the modalities to be worked out with respect to the valuation, bidding etc. are also mentioned in the companysent terms. At the same time, under the companysent terms companysent decree and as agreed between the parties, 8 flats as mentioned in the list at Annexure A to the companysent terms are agreed to be allotted under the re-developed building to the PA Group and the flats mentioned in the list at Annexure B to the companysent terms are agreed to be allotted to RA Group. For the 8 flats allotted to PA Group, Omkar Builders original defendant number10 was required to issue a separate letter in relation to the PA Groups entitlement to the PA Kash Foods Property in Omkar 1973 project as per draft at Annexure E to the companysent terms. Allotment of the 8 flats as per list at Annexure A to the companysent terms in favour of PA Group is number disputed and cannot be disputed. Even in paragraph 3 of the companysent decree, the submissions of the learned companynsel appearing on behalf of the respective parties have been recorded and as per the submissions made by the learned companynsel appearing on behalf of both the parties PA Group RA Group, the division in Annexure A and Annexure B is final, viz-a-viz defendant number10 Omkar Builders. Para 3 of the companysent decree reads as under Mr. Samdani, learned Senior Advocate on behalf of Defendant No. 10, the developer, states that this division of flats in Annexures A and B is between the two Arya groups inter se. For their part, Mr. Dwarkadas, learned Senior Advocate for the Plaintiffs, and Mr. Jagtiani, learned Senior Advocate for Ravi Arya Group, agree that the division in Annexures A and B is final vis-a-vis Defendant No. 10. They also agree that allotments made and possession given in terms of Annexure A and Annexure B would companystitute a full, sufficient and companyplete discharge of the 10th Defendants obligations under the Development Agreement, as also the individual flat agreements already executed in favour of the parties. In view of these statements made by Mr. Dwarkadas and Mr. Jagtiani, which are on instructions, Mr. Samdani states, on instructions, that his clients, Defendant No. 10, will issue the letter a proforma of which is at Exhibit E to the companysent terms. It appears that as such original defendant number10 Omkar Builders had already issued the letter in the proforma as per Annexure E to the companysent terms in favour of PA Group with respect to 8 flats allotted to PA Group. Therefore, it appears that so far as original defendant number 10 is companycerned, original defendant number10 has already companyplied with its obligation under the companysent decree. However, RA Group is number companynter-signing the said Annexure E and therefore there is number companyplete transfer of 8 flats in favour of PA Group which as such are allotted to them. Therefore, making a grievance by number companynter-signing the letter of allotment as per Annexure E, the original defendant number. 1 to 6 RA Group have refused to abide by the companysent terms companysent decree. It is the case on behalf of original defendant number. 1 to 6 RA Group that unless and until there is a total companypliance of the companysent terms companysent decree including entering into or execution of the supplemental companysent terms family arrangement as agreed between the parties as per the companysent terms companysent decree the defendant number. 1 to 6 RA Group are justified in number companynter-signing the letter of allotment as per Annexure E. On the other hand, it is the case on behalf of the appellants plaintiffs that further execution of supplemental companysent terms family arrangement has numberhing to do with the allotment of 8 flats in favour of PA Group. Having heard the learned Senior Advocates for the respective parties and companysidering the relevant terms of the settlement, reproduced hereinabove, we are of the opinion that further execution of supplemental companysent terms family arrangement is required to be executed between the parties. For whatever reasons, the further supplemental companysent terms have number been entered into between the parties. Therefore, as such, companysidering the fact that the parties entered into the companysent terms settlement for a companyplete parting of ways between the parties and so aimed at bringing about an eventual companyplete quietus to the disputes between the parties and even parties entered into the companysent terms settlement to resolve and settle the disputes in relation to the subject matter of AISCO, IMTC, Kash Foods, Orbit Arya Commercial Premises and the disputes in relation to the larger Arya Group of Companies and its companystituents, which were beyond the dispute in the civil suit, the entire companysent terms companysent decree is required to be acted upon and or implemented by both the parties. There cannot be any execution of partial companysent terms companysent decree. If the submission on behalf of the plaintiffs is accepted and the 8 flats as per list at Annexure A are transferred absolutely and without any companydition in favour of PA Group without there being any further supplemental companysent terms family arrangement, in that case, the entire object and purpose of entering into the companysent terms settlement to resolve all the disputes between the parties will be frustrated. Both the parties to the companysent terms companysent decree are required to fully companyply with the terms of settlement the companysent terms and the companysent decree. One party cannot be permitted to say that that portion of the settlement which is in their favour be executed and or companyplied with and number the other terms of the settlement companysent terms companysent decree. Under the circumstances, as such, both, the learned Single Judge as well as the Division Bench are justified in holding that the execution of the further supplemental companysent terms family arrangement is must and there cannot be any partial execution of the companysent terms companysent decree. Even in the case of Hari Shankar Singhania supra , the decision which has been relied upon by the learned senior companynsel appearing on behalf of the appellants, this Court has observed that a family settlement is treated differently from any other formal companymercial settlement as such settlement in the eye of the law ensures peace and goodwill among the family members. It is further observed that technicalities should number be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. It is further observed that it is the duty of the companyrt that such an arrangement and the terms thereof should be given effect to in letter and spirit. 7.1 In the case of Manish Mohan Sharma supra , this Court has observed and held that effort of the executing companyrt must be to see that the parties are given the fruits of the decree. It is further observed that mandate is reinforced when it is a companysent decree and doubly reinforced when the companysent decree is a family settlement. Now so far as the relied placed upon the decision of this Court in the case of Saradamani Kandappan supra , relied upon by the learned Senior Advocate appearing on behalf of the appellants plaintiffs, more particularly reliance placed upon paragraph 54 of the said judgment in support of his submission that in the companysent terms companysent decree, it is expressly stated or provided the order of performance, namely, that the further supplementary settlement is to be executed and only after such execution the 8 flats as per list at Annexure A to the companysent terms shall be allotted in favour of PA Group is companycerned, on companysidering companyjoint reading of the terms of the settlement, the said decision shall number be applicable to the facts of the case on hand. 8.1 Even on companyjoint reading of all the terms of the settlement, more particularly the clauses referred to hereinabove, it can be said that there is an implied term that both the parties have intended that on one hand as agreed between the parties further supplemental companysent terms family arrangement is to be entered into and on the other hand there shall be transfer allotment of 8 flats as per list at Annexure A in favour of PA Group. Any other interpretation would lead to unworking of the companysent terms companysent decree. As observed hereinabove, if the companysent decree is partially executed and the other parts of the companysent terms are number implemented and or acted upon, the object and purpose to resolve all the disputes amicably between the parties and to put an end to all the disputes between the parties will be frustrated. However, at the same time, one cannot lose sight of the fact that the 8 flats as per list at Annexure A are allotted in favour of PA Group and rest of the 7 flats as per list at Annexure B are allotted in favour of RA Group. At present, the RA Group is in possession of all the 15 flats. The RA Group is also the beneficiary of Rs.45 crores. Therefore, to strike the balance between the parties, the RA Group can be directed to companynter-sign Annexure E letter issued by Omkar Builders with respect to 8 flats as per list at Annexure A which are allotted in favour of PA Group. However, with a caveat that till the further supplemental companysent terms family arrangement as agreed between the parties under the companysent terms companysent decree is number executed, PA Group may number be permitted to sell, transfer and or deal with the said flats till the companysent terms companysent decree is fully acted upon and implemented between the parties. At the same time, both the parties are required to be directed to fully implement the companysent terms companysent decree and to enter into further supplemental companysent terms family arrangement, the modalities of which are mentioned in the companysent terms itself, at the earliest and within a reasonable time. Until then, both the parties to abide as per the Restraint order as per clause 22 of the companysent terms, except the 7 flats as per list at Annexure B, which are allotted in favour of RA Group. In view of the above and for the reasons stated above, the impugned judgment and order passed by the Division Bench of the High Court and that of the learned Single Judge are hereby modified as under Both the parties PA Group RA Group are directed to fully companyply with the companysent terms companysent decree and enter into the further supplemental companysent terms family arrangement after following the modalities to be worked out with respect to valuation, bidding etc.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 239 of 1975. Appeal by special leave from the Judgment and order dated 17-10-1974 of the Allahabad High Court in Cr. A. No. 1013 of 1974 and Reference No. 18/74. Badri Das Sharma amicus curiae for the appellant. P. Rana for the respondent. The Judgment of the Court was delivered by KAILASAM J. - This appeal is preferred by Deena alias Din Dayal by special leave against the judgment of the High Court companyvicting and sentencing him. The case for the prosecution is that on the night of the 20th and 21st June, 1971 the deceased Nainsukh, his brother Hari Singh, his distant uncle Tika Ram, Chandra Pal, daughters son of Tika Ram and Chokhey slept on a platform of the Chaupal in village Jar. According to the prosecution a lantern was hanging on the platform from the branch of a Neem tree. In the morning at about 4 a.m. the appellant Deena and four other came to the Chaupal of Nainsukh. The dogs began to bark as a result of which Hari Singh P.W. 1 and others were awakened. Deena and his associates carried pistol and electric torches Deena challenged Nainsukh saying that he would be taught a lesson for appearing as a witness and fired his pistol striking Nainsukh on his head. Hari Singh and Chandra Pal shouted for help. They were also injured. After hearing the alarm Nihal Singh, Panna Lal and others reached the place of the incident but before their arrival the accused had made good their escape. The First Information Report was written by Bharat Singh on the dictation of Hari Singh. The injured witness Hari Singh and Chandra Pal then went to Etah Police Station where the report Ex. Ka-4 was handed over at Police Station Kotwali at 2.05 a.m. On 21st June, 1971. The Police officer took up the investigation and reached the scene at about 1.30 p.m. He found the dead body of Nainsukh and held the inquest, prepared the site plan and recovered the material objects. Nihal Singh, P.W. 2, produced the lantern before the Investigating officer which was burning at the time the occurrence took place. shell of used cartridge was also recovered from the scene. Dr. N. K. Mittal P.W. 13 , the Medical officer of Etah. found two injuries caused by fire-arm on Chandra Pal and one injury on Hari Singh. The autopsy on the body of Nainsukh was companyducted by Dr. Prasad on 21st June, 971. He found two gun shot injuries, one on the right side of head above the right ear and the other was number traumatic swelling on the back surface of the right hand. On internal examination it was found that the surface of the scalp of the right side was companygested under injury No. 1. The doctor found a fissured fracture of the right parietal bone, vertically placed from the suture line to eye-brow. The doctor was of the opinion that the injuries were sufficient in the ordinary companyrse of nature to cause death. Apart from the eye-witness P.W. 1 the prosecution examined P W. 2 Nihal Singh, P.W. 3 Panna Lal who saw the accused running away after the incident. Reliance was number placed by the companyrts below on the evidence of P.Ws 2 and 3. The companyviction therefore solely rests on the testimony of eye-witness Hari Singh, P.W. . Hari Singh P.W. 1 has spoken of the motive. About 4 or 6 years prior to the occurrence one Ram Chandra was murdered. Deena was one of the accused in the case. Deena was found guilty of murder and sentenced to imprisonment for life. In that case the deceased Nainsukh gave evidence against Deena as an eye-witness. About two months before the murder of Nainsukh, Deena was released on hail and it was rumoured that Deena was saying that number when he had companye out of jail he would teach a lesson to Nainsukh. Nainsukh, Hari Singh and their relations took the threat seriously and were living cautiously. On the date of the occurrence, according to P.W. 1, a lantern was burning and at about 4 oclock in the morning he was awakened by the barking of the dogs. Four or five other persons came along with Deena. Deena and one of his companypanions had torches in their hands and they came flashing their torches. Deena and the other accused came at the Chaupal from the staircase on the eastern side. After companying over the Chabutra of the Chaupal the accused stated Nainsukh, beware, number I will teach you the lesson for giving the evidence. While flashing the torches on the deceased Deena fired at Nainsukh aiming towards his head. The shot hit Nainsukh on the head. The other shot fired by Deena injured Chandra Pal and the third shot hit the prosecution witness Hari Singh. Hari Singh received an injury on his right shoulder. The plea that was made by the defence on the evidence of P.W. 1 was that it cannot be safely relied on. It was submitted that the other injured witness Chandra Pal who was examined as a companyrt witness did number fully support the evidence of the prosecution. We have gone through the testimony of P.W. 1 and witness Chandra Pal and we do number see any material companytradiction. The enmity between Deena on the one side and the deceased and his family on the other side is number seriously companytested. The deceased Nainsukh gave evidence against Deena in the murder case in which Ram Chandra was killed. When Deena was released on bail he wanted to teach a lesson to the witness Nainsukh who had appeared against him. This resulted in Deena shooting the deceased to death. The motive as alleged by the prosecution stands amply proved. So far as the scene of the offence is companycerned it was number seriously disputed before the High Court. It was submitted before us that numberblood stains were scrapped from the scene which circumstance would show that the occurrence took place at some other place. It is seen that there was a bundle of straw and a company at the scene. The strings of the company and as well as the straws were stained with blood. The Serologist had found human blood on the straws. We do number find any difficultly in accepting the finding of the High Court that the occurrence took place at the site alleged by the prosecution. The only question that requires companysideration is whether there was sufficient light at the scene of occurrence to enable the witness to recognise the accused. Because of the motive, it is highly probable that Nainsukh, Hari Singh and the family slept with the light burning on the platform which was the scene of offence. Three shots were fired and there companyld have been numberdifficulty in P.W. 1 identifying the appellant Deena. It is companymon ground that the witness knew Deena very well. The lantern that was burning was produced by P.W. 2, Nihal Singh, as soon as the Investigating officer came to the scene of occurrence. The witness was sleeping to the south of the deceased person at a distance of few feet and we do number think there companyld have been any difficulty in identifying the assailant. The High Court has fully companysidered the question as to whether P.W. 1 would have identified the assailant and has companye to the companyclusion that the prosecution has established that the lantern was burning and the assailants used torches which enabled the recognition of the accused at the time of the incident. P.W. 1 Hari Singh is a natural witness and his presence cannot be disputed as he had sustained a gun shot injury. He had numberparticular motive for falsely implicating Deena the accused. The companyrt witness Chandra Pal did number fully support the prosecution except that the incident took place at the chaupal as alleged by the prosecution. But we do number feel any justification for rejecting the testimony of P.W. 1 because of the companytradiction in the testimony of C.W. 1 Chandra Pal. We are inclined to agree with the High Court that Chandra Pal was won over by the defence. We also agree with the High Court and find that the appellant Deena was guilty of an offence under section 302 I.P.C. in causing the death of Nainsukh. The High Court companyfirmed the extreme penalty of law imposed by the Sessions Court. The Sessions Court in imposing the death sentence found that the appellant is a desperate character and that while he was on bail in Rare, Chandra murder case he companymitted the murder of Nainsukh one of the prosecution witnesses in Ram Chandra murder case. As the offence was companymitted by a person under a sentence of imprisonment for life for an offence under section 302 P.C. the Sessions Court inflicted the extreme penalty. As a charge under section 303 I.P.C. was number framed and as the parties are number able to tell us the result of the appeal filed by Deena in Ram Chandras case, we refrain from invoking the provisions of section 303 I.P.C. Regarding the sentence after giving our serious and anxious companysideration, we find ourselves unable to companye to any different companyclusion from that arrived at by the trial Judge and the High Court. The offence was companymitted after deliberate planning in the night when the victim was sleeping. It was for the purpose of teaching a lesson to a witness who gave evidence against the accused. We do number see any extenuating circumstance.

ORIGINAL JURISDICTION Civil Writ Petition No. 226 of 1986. Under Article 32 of the Constitution of India . WITH Civil Appeal No. 1263 of 1990. From the Judgment and Order dated 28.4.1989 of the Central Administrative Tribunal, Hyderabad in T.A. No. 1146 of 1986. Dr. L.M. Singhvi, Dr. Gauri Shankar, C. Mukopadhya, P.N. Misra and H.S. Parihar, for the Petitioners. Madhava Reddy, Vivek Gambhir, S.K. Gambhir, R.D. Upadhyaya and Surender Karnail for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. Petitioners are employees under the State Insurance Corporation, respondent number 1. According to the numberification dated 22nd of April, 1977, issued in exercise of powers companyferred by s. 97 1 , 1, 2 xxx , s. 2A and s. 17 2 of the Employees State Insurance Act, 1948, hereinafter referred to as the Act which came by way of supersession of the Employees State Insurance Corporation Recruitment Regulations, 1965, the post of Insurance Inspector Manager Grade II was treated partly as selection and partly as numberselection. There was numberage limit for departmental candidates and two-thirds of the vacancies were to be filled up promotion and onethird by companypetitive examination under the Rules. By advertisement dated 6th August, 1983, applications were invited for filling up the one-third vacancies by direct recruitment to the category of post of Insurance Inspector Manager Grade II. The petitioners in this application under Art. 32 of the Constitution responded to the said advertisement and were in due companyrse declared as successful in the test. In companysideration of the fact that a good number of vacancies were then existing and in anticipation of the position that more vacancies were about to occur, a select list was drawn up for the existing and future vacancies. In the said select list petitioners featured at Sr. number. 114, 116, 121, 159, 171, 172 and 188 respectively. The panel was numberified and in accordance with the practice petitioners along with other successful candidates were individually intimated by respondent number 2 on 1.9.1984. As already, indicated, the direct recruitment was on the basis of examination and interview. The advertisement did number prescribe any pass marks in the interview though for the written examination 40 was prescribed. Selection was, however, made on the basis of 40 in the interview test and those who did number secure 40 in the interview were number selected. Challenge was made by the unsuccessful candidates questioning their rejection by companytending that in the absence of any prescription of pass marks for the interview test, there was numberjustification to apply the 40 basis. Writ Petitions were also filed when the respondents instead of appointing people from the panel of successful candidates went on filling up existing vacancies out of the category of promotees. Such petitions were pending before the Calcutta, Madras and Andhra Pradesh High Courts when the Central Administrative Tribunals came to be set up. These were transferred to the respective Benches of the Central Administrative Tribunals and on being clubbed were disposed of by a companymon judgment dated 28th of April, 1989, by the Hyderabad Bench of the Central Administrative Tribunal. The Tribunal held We would direct in these cases that the respondents shall work out and estimate the vacancies available upto 20th June, 1986 accurately we have used the word accurately as an apprehension has been expressed that direct recruits are number getting their due since over 320 posts were filled up between May, 1986 and December, 1988 by promotees on ad-hoc basis or otherwise . After such estimation, the respondents shall deduct therefrom 116 vacancies which have already been filled and make available the remaining vacancies to the applicants and others who took the examination on the basis of aggregate marks, i.e. total marks obtained in the written test and the oral interview. Such of the applicants in all the three cases before us and heard by us at Hyderabad, Madras and Calcutta, who companye within the zone of selection in accordance with this procedure as directed by us would be entitled to appointment. The writ petition is by the successful candidates whose names appear in the panel but who have number been given appointments. They have companytended that the respondents were entitled to the issue of appointment orders to them inasmuch as vacancies exist and there was numberindication that the life of the select list would expire either at the end of one year or on the expiry of the further extended period of six months and when there has been numberfresh select list as yet. The decision of the Central Administrative Tribunal referred to above has been assailed by special leave challenging the direction of the Tribunal that the fresh select list filling up the remaining vacancies as on 20th June, 1986, should be prepared on the basis of total marks obtained in the written examination and interview in disregard of the qualifying marks for the latter. We granted special leave and have heard the writ petition and the civil appeal together. As already indicated, the last list on the basis of recruitment examination was drawn up in 1984. There have been a good number of vacancies then existing and subsequently a number of them have arisen as against which only 116 appointments have been made, including 16 out of the reserved categories. At one stage of the hearing we had indicated to Shri Madhav Reddy, appearing for the respondentCorporation that the existing vacancies should be filled up out of the panel of 1984 and in answer to this suggestion, an affidavit has been filed to say that candidates have been waiting for the holding of fresh recruitment examination and if out of the panel of 1984 all the existing vacancies are directed to be filled up, they would be frustrated. There is force in the submission. The Tribunal in its decision has indicated that even upto 20th June, 1984, there were some vacancies which were available to be filled up out of the panel. On account of respondents inaction in holding of annual recruitment examinations, vacancies have accumulated. Keeping all these aspects in view, we direct that 50 of the vacancies existing upto 31st of December, 1989, relatable to the one-third quota should be filled up out of the panel after giving credit to 116 appointments numbericed by the Tribunal. The remaining vacancies should be filled up by holding of a fresh recruitment examination latest before 30th of September, 1990. So far as the remaining question that was debated before the Tribunal is companycerned, we are of the view that the scheme intended for recruitment should be on the basis of an examination companyprising of written test and interview. We agree with the submission of Shri Madhav Reddy that interview has its own place in the matter of the selection process and the choice of the candidate. Once this is recognised, it would be appropriate to require every candidate to pass the interview test and for that purpose there should be a basic limit provided. In the absence of any prescription of qualifying marks for the interview test the same prescription of 40 as applicable for the written examination seems to be reasonable. That has been the view expressed by one of us Punchhi, J. in a decision Rajesh Sood Ors. v. Director-General, Employees State Insurance Corporation Anr., decided on August 7, 1985 to which our attention has been drawn. We approve of the view. Accordingly, we modify the direction of the Administrative Tribunal and hold that in the oral examination the pass mark shall be 40 and 40 pass marks shall be insisted separately for the written as also the oral test for qualifying in th selection. The appeal is partly allowed and both the matters are disposed of by this companymon judgment. There shall be numberorder as to companyts.

R.SHAH, J. Leave granted. Feeling aggrieved and dissatisfied by the impugned judgment and order dated 17.07.2015 passed by the High Court at Guwahati in R.S.A. No. 173/2003, by which the High Court has dismissed the said appeal preferred by the appellant herein plaintiff and has companyfirmed the judgment and decree passed by the learned trial Court dismissing the suit, companyfirmed by the first appellate Court, the original plaintiff has preferred the present appeal. The facts leading to the present appeal in nut and shell are as under 3.1 That the appellant herein original plaintiff hereinafter referred to as the original plaintiff purchased the suit land by a registered sale deed dated 06.01.1990 from Late Pranab Kumar Bora, husband of original defendant number2 and father of original defendant number. 3 to 8. It appears that the suit land was declared as ceiling surplus land in the year 1988 and companysequently the same was acquired by the Government. However, subsequently on 14.09.1990, the suit land was again declared ceiling free land. That thereafter, the original plaintiff mutated the land in his name vide order dated 18.12.1991 in Mutation Case No.94/91 92, and accordingly the name of the original plaintiff was recorded in the Sadar Jamabandi. It appears that the original defendant number1, an ExPolice Officer. illegally entered into the suit land on 09.04.1995. Therefore, the original plaintiff immediately filed a suit in the Court of learned Civil Judge, Junior division, which was numbered as Title Suit No. 230/1995, praying for giving possession of the suit land by evicting defendant number1. The original plaintiff also prayed for a decree of declaration, declaring that he has a right, title and interest over the suit land. The original plaintiff also prayed for permanent injunction. That the said suit was filed in the month of July, 1995. 3.2 That the learned trial Court decreed the suit by its judgment and decree dated 28.08.1998 specifically holding that the original plaintiff purchased the suit land by valid document and has got right, title and interest over the suit land. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court, the original defendant number1 filed Title Appeal No. 36/1998 before the first appellate Court. At this stage, it is required to be numbered that so far as original defendant number. 2 to 4 are companycerned, as such, they did number challenge the judgment and decree passed by the learned trial Court holding that the original plaintiff purchased the suit land by valid document. That the first appellate Court, by its judgment and order dated 15.09.1999, allowed the said appeal preferred by original defendant number1 and remanded back the matter to the learned trial Court, framing an additional issue to the effect that Whether the suit land was declared ceiling surplus land and as such it was acquired by the Government in the year 1988 and as such whether the vendor had any saleable right to sell the suit land to the plaintiff on 6.1.1990. 4.1 That thereafter on remand, the learned trial Court companysidering the additional issue dismissed the suit by holding that disputed land was declared as ceiling surplus land by the Government and therefore as such the vendor had numberright to sell the suit land by sale deed dated 06.01.1990, and there being so, the original plaintiff has numberright, title and interest over the suit land. 4.2 The judgment and decree passed by the learned trial Court came to be companyfirmed by the first appellate Court, by judgment and order dated 04.06.2003. At this stage, it is required to be numbered that while dismissing the appeal and companycurring with the finding recorded by the learned trial Court that the vendor of the original plaintiff had numberright to sell the suit land after the suit land was declared as ceiling surplus land, the first appellate Court also came to the companyclusion that the defendants rights over the suit land also companyld number be established under Section 53A of the Transfer of Property Act hereinafter referred to as the P.Act . At this stage, again it is required to be numbered that original defendant number1 did number file any appeal against the said observation, and as such, the same has attained finality, which means original defendant number1s right over the suit land was also declined. The judgment and order passed by the first appellate Court, companyfirming the judgment and decree passed by the learned trial Court dismissing the suit, has been further companyfirmed by the High Court, by the impugned judgment and order. Hence, the original plaintiff has preferred the present appeal. Ms. V. Mohana, learned senior advocate, appearing on behalf of the appellant original plaintiff, has vehemently submitted that all the Courts below have number at all companysidered Section 43 of the Transfer of Property Act. It is vehemently submitted by Ms. Mohana, learned senior companynsel appearing on behalf of the original plaintiff that it is an admitted position that after the execution of the sale deed dated 06.01.1990, subsequently the suit land was made ceiling free on 14.09.1990, and therefore the sale deed became a valid sale deed. It is submitted, that in view of Section 43 of the T.P. Act, the rights of the original plaintiff in the suit land, pursuant to sale deed dated 16.01.1990 are protected. In support of her above submission, Ms. Mohana, learned companynsel appearing on behalf of the original plaintiff has heavily relied upon the decision of this Court in the case of Ram Pyare vs. Ram Narain and others, 1985 2 SCC 162. She has also relied upon another decision of this Court in the case of Jumma Masjid vs. Kodimaniandra Deviah, AIR 1962 SC 847. 5.1 Ms. Mohana, learned senior companynsel appearing on behalf of the original plaintiff has further submitted that all the Courts below have materially erred in number appreciating the fact that as such it was the original plaintiff who approached the Court for declaration and permanent injunction, claiming rights on the basis of a registered sale deed dated 06.01.1990, and the cause of action arose when original defendant number1 illegally entered into the suit land. It is submitted that as such the first appellate Court has specifically held against original defendant number1 that the original defendant number1 also has numberright, title and interest on the suit land on the basis of the agreement to sell as numbere of the ingredients of Section 53A of the Act are satisfied. It is submitted that as such the aforesaid finding recorded by the first appellate Court had attained finality, and therefore it is companycluded that original defendant number1 had numberright, title and interest in the land in question. It is further submitted by Ms. Mohana, learned senior companynsel appearing on behalf of the original plaintiff that so far as original defendant number. 2 to 8 legal heirs of the original vendor are companycerned, they never challenged the registered sale deed dated 06.01.1990, and they also never claimed any right, title or interest in the suit land. 5.2 Making the above submissions, and relying upon the above decisions, it is prayed to allow the present appeal, set aside the judgment and decree passed by the learned trial Court, companyfirmed by the first appellate Court and the High Court, and companysequently to decree the suit filed by the original plaintiff. The present appeal is opposed by Shri Hariharan, learned advocate appearing on behalf of legal heirs number. 1/1 and 1/6 of the deceased original defendant number1. Office report dated 22.12.2018 indicates that service on legal heirs number. 1/2,1/4 and 1/5 is companyplete but numberone has entered appearance on their behalf. The said office report also indicates that numberice sent to legal heir number 1/3 has been received back with postal remarks refused and as such service is deemed to be companyplete upon her. The said office report further indicates that service is also companyplete on respondent number. 2 to 8 but numberone has entered appearance on their behalf. 6.1 Shri Hariharan, learned advocate appearing on behalf of original defendant number1 number on behalf of legal heirs number. 1/1 and 1/6 has vehemently submitted that there are companycurrent findings of facts by all the Courts below that at the time when the sale deed was executed in favour of the original plaintiff, i.e., on 06.01.1990, the land in question was ceiling surplus land, and therefore was a government land, and therefore the original vendor was number the owner of the suit land, and therefore had numberright, title or interest in the suit land, and therefore the plaintiff had numberright, title or interest in the suit land on the basis of the registered sale deed dated 06.01.1990. It is submitted therefore all the Courts below have rightly dismissed the suit. 6.2 So far as the reliance placed by the learned senior companynsel appearing on behalf of the plaintiff on Section 43 of the T.P. Act is companycerned, it is vehemently submitted by Shri Hariharan that by getting the protection under Section 43 of the T.P. Act, the vendee has to prove that the transferor acted fraudulently or erroneously represented. It is submitted by Shri Hariharan, learned companynsel appearing on behalf of the legal heirs of original defendant number1 that in the present case the ingredients of Section 43 of the T.P. Act are number satisfied, and therefore the rights of the original plaintiff are number protected under Section 43 of the Act. 6.3 Making the above submissions, it is prayed to dismiss the appeal. Heard learned companynsel on behalf of the respective parties at length. 7.1 At the outset, it is required to be numbered that the following facts are number in dispute i that the original plaintiff purchased the suit land by a registered sale deed dated 06.01.1990, executed by late Pranab Kumar Bora on payment of full sale companysideration ii that as on 06.01.1990, the suit land was ceiling surplus land and the government was the owner iii that the land in question became ceiling free land on 14.09.1990 iv that the name of the original plaintiff was mutated in the revenue record Sadar Jamabandi vide order dated 18.12.1991 in Mutation Case No. 94/9192 v that neither the vendor number the heirs of the vendor challenged order dated 18.12.1991 by which the name of the plaintiff was mutated in the revenue record vi that when the earlier suit was decreed by the learned trial Court, it was only the original defendant number1 who challenged the judgment and decree passed by the learned trial Court and numberappeal was preferred by original defendant number. 2 to 7, heirs of the original vendor and vii that in the second round of litigation, the first appellate Court specifically observed against original defendant number1 that he has also numberright, title or interest in the suit land on the basis of prior agreement to sell and the said finding had attained finality. 7.2 It is required to be numbered that as such the heirs of the original vendor are number companytesting the proceedings and it is only original defendant number1 number the legal heirs of original defendant number1 are companytesting the proceedings. Thus, it appears and or numberhing is on record to show that it was the case on behalf of the original defendants, more particularly on behalf of the vendor that the original plaintiff was informed specifically at the time of execution of the sale deed dated 06.01.1990 that the land in question is ceiling surplus land. In the light of the aforesaid facts, Section 43 of the T.P. Act, which is heavily relied upon on behalf of the original plaintiff is required to be companysidered. 7.3 Section 43 of the Act reads as under Transfer by unauthorised person who subsequently acquires interest in property transferred where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for companysideration, such transfer shall, at the option of the transferee, operates on any interest which the transferor may acquire in such property at any time during which the companytract of transfer subsists. Nothing in this Section shall impair the right of transferees in good faith for companysideration without numberice of the existence of the said option. 7.4 Section 43 of the T.P. Act provides that where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for companysideration, such transfer shall, at the option of the transferee, operates on any interest which the transferor may acquire in such property at any time during which the companytract of transfer subsists. Thus, if at the time of transfer, the vendor transferor might have a defective title or have numbertitle and or numberright or interest, however subsequently the transferor acquires the right, title or interest and the companytract of transfer subsists, in that case at the option of the transferee, such a transfer is valid. In such a situation, the transferor cannot be permitted to challenge the transfer and or the transferor has numberoption to raise the dispute in making the transfer. 7.5 The intention and objects behind Section 43 of the T.P. Act seems to be based on the principle of estoppel as well as the equity. The intention and objects seems to be that after procuring the money sale companysideration and transferring the land, thereafter the transferor is estopped from saying that though he has sold transferred the property land on payment of sale companysideration, still the transfer is number binding to him. That is why Section 43 of the T.P. Act gives an option to the transferee and number the transferor. The intention of Section 43 of the Act seems to be that numberbody can be permitted to take the benefits of his own wrong. In the facts and circumstances of the case, Section 43 of the Act would companye into play and protect the rights of the original plaintiff. An identical question came to be companysidered by this Court in the case of Ram Pyare supra . In the aforesaid decision, on companysidering Section 43 of the Act, it is observed and held by this Court that as the sale deed in favour of the vendee was result of an erroneous representation of the vendor, thereafter the sons of the vendor, cannot claim to be transferees in good faith and therefore their suit for cancellation of the sale deed would number be maintainable. In the aforesaid decision, this Court companysidered the following observations of this Court in another decision in the case of Jumma Masjid supra This reasoning is open to the criticism that it ignores the principle underlying Section 43. That section embodies, as already stated, a rule of estoppel and enacts that a person who makes a representation shall number be heard to allege the companytrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to be numbered that when the decision under companysideration was given, the relevant word of Section 43 were, where a person erroneously represents, and number, as amended by Act 20 of 1929, they are where a person fraudulently or erroneously represents, and that emphasises that for the purpose of the section it matters number whether the transferor act fraudulently or innocently in making the representation, and that what is material is that he did make a representation and the transferee has acted on it. Where the transferee knew as a fact that the transferor did number possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer.

CIVIL APPEAL NO.7349 OF 2001 K. MATHUR, J. This appeal is directed against the order dated 5.3.2001 passed in Second Appeal No.55 of 2000 by the High Court of Bombay at Goa whereby learned Single Judge has set aside the order of the first appellate companyrt and allowed the suit of the original plaintiff and granted injunction restraining the defendants from proceeding with the companystruction in the suit property or doing anything in the suit property and the defendants were directed to restore the suit property in its previous companydition by filling up the foundation trenches and removing anything done or might have been done by the defendants in the suit property. Aggrieved against this order the present appeal was filed. Brief facts which are necessary for disposal of this appeal are that the suit property was granted by the Governor General Do Estado Da India, to one Mr. Antonio D Souza on payment of Rupees four nine anna and twenty paise payable each year to the State. Antonio DSouza died leaving behind his heirs, his children Jose Maria D Souza and Elisa D Souza. Jose Maria D Souza expired leaving behind her daughter Umbelina D Souza. Lawrance D Souza, husband of Umbelina D Souza also died. Umbelina D Souza died leaving behind the plaintiff and his brothers. As the plaintiff was staying in Bombay, he requested one Amorim Velho, son of Elisa D Souza to look after the property and accordingly, he was looking after the suit property till 1977. Thereafter, Joildo De Aguiar looked after the property. In August,1981 Aguiar went abroad and returned in November,1981. On his return he found that some companystruction work was undertaken by M s.Pinto Engineers and Contractors, Defendant No.3 through their agents. Then Robert D Souza filed a regular suit in the companyrt of the Civil Judge, Junior Division, Panjim and prayed that the defendants and their agents should be restrained by perpetual injunction from interfering in any manner with the possession of the plaintiff and his brothers in respect of the suit property and they be restrained from proceeding with the works of companystruction in the suit property and to return the suit property in its original companydition. The defendants filed their written statement and resisted the suit. Thereafter during the pendency of the suit the plaintiff died and respondents l to 7 were brought on record as legal representatives of the deceased plaintiff. On 5.12.1998, learned Civil Judge, Junior Division, Panjim decreed the suit restraining the defendants by perpetual injunction from interfering with the possession of the plaintiffs in respect of the suit property and from proceeding with the work of companystruction. Learned Civil Judge, Junior Division further directed the defendants to restore the suit property in its previous companydition by filling up the foundation trenches and removing anything done in the suit property. Thereafter a regular civil appeal being Regular Civil Appeal No.1 of 1999 was filed in the Court of Additional District Judge, Panaji. Learned Additional District Judge by order dated 10.4.2000 allowed the appeal filed by the appellants and dismissed the suit. Thereafter, respondent Nos. 1 to 7 filed a second appeal being Second Appeal No.55 of 2000 in the High Court of Bombay at Goa. Learned Single Judge of the High Court framed the following questions of law Whether the District Judge erred in dismissing and or rejecting the claim of the plaintiffs for permanent injunction on the ground that from the plaint it companyld be inferred that the plaintiffs had admitted loss of possession of the suit property in favour of the defendants respondents ? Learned Single Judge after companysidering the matter allowed the second appeal and set aside the order passed by the first appellate companyrt and companyfirmed the decree of the trial companyrt. Hence the present appeal. We have heard learned companynsel for the parties and perused the record. Learned Single Judge after examining the matter found that in fact on the date Aguair came to know that the defendant Nos. 1 2 had induced the defendant No.3 to believe that they were the owners and possessors of the suit property and that on such a companydition the defendant No.3 entered into an agreement with Defendant Nos.1 2 whereby the defendant Nos.1 2 had promised to sell the suit property to defendant No.3 and who was allowed to companystruct the building companysisting of flats in the suit property and Aguair also came to know that on 1.9.1979 a deed of justification was recorded by the Registrar cum-Sub Registrar and Notary, ex- Officio Ilhas, Goa wherein it was falsely declared that Defendant No.1 was the owner and was in possession with exclusion of any other persons of the suit property and had possessed the suit property for more than 30 years. On further query he came to know that the defendant No.1 managed to get the suit property registered in the records of the land revenue office in her name and thereafter they got the plan for companystruction sanction approved by the Panaji Municipality. But when Aguair raised objection then defendant No.3 stopped companystruction work for four days and thereafter he again started the work by placing the steel reinforcement for casting footing. Therefore, the plaintiff apprehended that they would proceed with further companystruction and therefore, the plaintiff was companystrained to file the suit. Therefore, on that basis it was submitted before the learned Single Judge of the High Court that from these facts it was more than apparent that the plaintiff lost the possession. Therefore, at the relevant time the plaintiff was number in possession of the suit property. As such, there was numbercause for filing the suit for permanent injunction. Learned Single Judge after companysidering the matter found that these averments did number companystitute the basis on the part of the plaintiff that he was number in possession of the suit property. On the companytrary, learned Single Judge found in reply to paragraph 13 of the plaint, the defendants in their written statement admitted that the work was stopped by the defendant No.1 for some time but they restarted the work again. This, according to learned Single Judge was a proof of the fact that the Defendant Nos.1 2 and Defendant No.3 were number sure about the possession and right of the defendant Nos.1 2 over the property. In fact, what it transpires from all these facts that the trial companyrt reached the same companyclusion as the learned Single Judge in second appeal in High Court. It is true numbermally in the second appeal the High Court should number interfere on the questions of fact. But if on the scrutiny of the evidence it is found that the finding recorded by first appellate companyrt is totally perverse then certainly the High Court can interfere in the matter as it companystitutes the question of law. In the given facts it is more than apparent that the plaintiffs who are claiming the right over the property by way of prescription but that has been denied by the plaintiffs that they were the owners of the property and it was being looked after by Aguair and in absence of Aguair the defendants registered the deed of justification and on that basis they claimed the right over the property. But when the original owner protested to the so called deed of justification, then the companystruction work was also stopped for some time. This goes to show that the defendants were number sure of their possession as well as their title over the suit property by way of adverse possession. In these circumstances, the trial companyrt granted injunction but the first appellate companyrt wrongly reversed it without adverting to the finding of the trial companyrt. The said finding of the first appellate companyrt was set aside by the High Court in second appeal.

Sathasivam, J. Leave granted in both SLPs. A. No.6026/2008 S.L.P. C No. 17406/2006 This appeal, by special leave, is directed against the judgment and final order dated 28.9.2006 of the High Court of Judicature at Bombay, Bench at Nagpur, in Writ Petition No. 4515 of 2006, whereby the High Court allowed the said writ petition directing the State - Directorate of Medical Education and Research hereinafter referred to as DMER to companysider Sneha Satyanarayan Agrawal - respondent No.1 herein for giving seat in Indira Gandhi Medical College hereinafter referred to as IGMC , Nagpur by shifting Kirti Shivajirao Ruikar-respondent No.2 herein to Government Medical College hereinafter referred to as GMC , Yavatmal. The facts, in brief, are as under On 31.03.2006, Information Brochure for medical companyrses in Government Colleges in Maharashtra for the academic year 2006-2007 was published and accordingly MHT-CET, 2006 was companyducted on 21.05.2006 throughout Maharashtra. First round for verification of documents and filling of preference forms took place during 28.6.2006 to 6.7.2006 and accordingly, on the basis of the same, final allotments were made on 14.7.2006 thereby mentioning 21.7.2006 as the last date for joining. In the first round, admissions were given as under State Name of Student Name of the College Quota Merit List No. 963 Sneha Satyanarayan Shri Vasantrao Naik 70 Agrawal - Respondent Govt. Medical College, Regional No.1 Yavatmal 869 Kirti Shivajirao Ruikar - Shri Vasantrao Naik 30 Respondent No.2 Govt. Medical College, State Yavatmal 844 Deepika Nandkumar Govt. Medical College, 30 Mishra - Respondent No.3 Miraj State In IGMC, Nagpur, twelve seats for women open category were vacant, and as per the Rule, 30 seats have to be filled up from State and 70 seats have to be filled up from Region i.e. four seats from State and eight seats from Region have to be filled up. On 24.8.2006, in the second round of companynseling, companysidering vacant seats and the preference as given by the candidates in the Preference Form, two candidates, namely, 1 Purbi Rabindra Acharya SML No. 634 - who was admitted in Indira Gandhi Medical College, Nagpur in 30 State quota, preferred and joined B.J. Medical College, Pune and 2 Anuradha Kamalkishore Rathi SML No. 703 who was also admitted in India Gandhi Medical College, Nagpur in 30 State quota preferred and joined Government Medical College, Nagpur. Therefore, two seats in 30 State quota were vacant. Accordingly, Deepika Mishra, SML No. 844 and Kirti Ruikar, SML No. 869 were given admission against the vacant seats. In view of the same, seats in their earlier places were vacant and two candidates were accommodated. Second round of admissions was finalized on 24.8.2006 and the list was published on 25.8.2006 mentioning 30.8.2006 as the last date for joining. On 28.8.2006, respondent No.1 herein submitted a representation to DMER by fax informing that the admissions of respondent Nos. 2 3 are in violation of Rules depriving her to exercise her higher preference and betterment. However, numberaction was taken. Being aggrieved by the companyduct of the Government, respondent No.1 approached the Bombay High Court, Nagpur Bench by filing a writ petition. On 15.9.2006, respondent No.1 herein filed an application impleading Deepika Mishra as a party respondent and the same was allowed. On 28.9.2006, after hearing the parties, the High Court disposed of the writ petition, by pronouncing only operative part of the judgment, thereby directing DMER to companysider shifting of Kirti Ruikar from Indira Gandhi Medical College, Nagpur to GMC, Yavatmal and shifting of Sneha Agrawal, respondent No.1 herein from GMC, Yavatmal to Indira Gandhi Medical College, Nagpur. Later on, on 12.10.2006, full judgment was delivered. In the meantime, the entire admission process was over. Challenging the judgment dated 28.9.2006, the State of Mahrashtra has filed the present appeal by way of special leave petition before this Court. Civil Appeal No.6027/2008 S.L.P. c No. 17832 of 2006 This appeal has been filed by respondent No.1 in S.L.P. C No. 17406 of 2006 against the judgment of the High Court of Judicature at Bombay, Nagpur Bench, dated 28.9.2006 in Writ Petition No. 4515 of 2006 challenging the judgment on the ground that the High Court has number issued any direction to companyrect the error companymitted by the respondents. Heard Mr. Shekhar Naphade, learned senior companynsel, appearing for the appellants and Mr. Shivaji M. Jadhav, learned companynsel, appearing for the respondents. The companytention of the first respondent herein, before the High Court, was that while preparing merit list of the second round of IGMC Women Category candidates, first four seats must go to the 30 category and next eight seats must go to the 70 category i.e., State List and Regional List respectively. It was also her claim that in terms of Rule 2.3.1 of Information Brochure of Preference System for admission to Health Science Courses of MHT-CET, 2006 published by the Directorate of Medical Education and Research, this pattern has to be followed in each round while filling up seats in any College Institute. It was her further claim that every vacant seat is required to be filled in on the basis of the merit and the preference taken together and numbersingle factor can be operated at any point of time i.e., at any later round. It was also the claim of the first respondent that while companysidering the preference for betterment, the seats meant for 30 quota and 70 quota cannot either way be altered and the seats meant for 30 quota must be filled up according to merit depending on the preference from that category only. On the other hand, it was the claim of the Competent Authority that the procedure carved out by the Directorate of Medical Education and Research in the Information Brochure of Preference System for admission to Health Science Courses MHT-CET, 2006 has been strictly followed and it was followed from the very beginning. The Authority also denied the companytention of the writ petitioner - first respondent herein, that there was any deviation from the rules which is part and parcel of the procedure for admission to MHT-CET, 2006. In order to appreciate the rival companytentions, it is useful to refer the Information Brochure of Preference System for admission to Health Science Courses MBBS BDS BAMS BUMS BPTh BOTh BASLP BPO B.Sc. Nursing MHT-CET-2006 issued by the Directorate of Medical Education and Research, Government of Mahrashtra. Among the various Rules, the following rules are relevant in the present case 1.4 DISTRIBUTION OF SEATS TO BE ALLOTTED BY THE COMPETENT AUTHORITY 1.4.1 After excluding the seats as provided in Para 1.2 and 1.3 the remaining seats will be at the disposal at the Competent Authority available for candidates of the State for Selection in the following manner. 1.4.2 Out of the seats at the disposal of the Competent Authority, 30 of such seats in Colleges will be made available for candidates from the State and these seats will be filled on the basis of State Merit List. There will be companystitutional, specified and female reservations in these seats as per rules. 1.4.3 The seats for BUMS, BPTh, BOTh, BASLP, BPO and Sc. Nursing companyrses will be filled by the candidates from the State Level Merit List only. 1.4.4 Distribution of Seats in 70 Category After the exclusion of State Level seats mentioned at Para 1.4.2 the remaining 70 seats will be filled from amongst the Candidates who have passed HSC or equivalent examination from the Schools Colleges situated in the region of the companycerned Development Board i.e. Rest of Maharashtra, Vidarbha and Marathwada. There will be companystitutional, specified and female reservations for these seats as per rules. 1.6 RESERVATION FOR FEMALE CANDIDATES 30 seats at the disposal of the Competent Authority shall be reserved for female candidates in all the companyrses. This reservation shall be for all the categories like SC, ST, VJ, NT-1, NT-2, NT-3, OBC, Common, HA, PH DEF. 30 female reservation shall be provided in 30 State seats 70 regional seats of that category. If requisite number of female candidates are number available then these seats shall be offered to male candidates of that category. SELECTION PROCESS 2.1 The selection will be made on the basis of preferences given by the candidates. Only a limited number of meritorious candidates will be called for Counselling and asked to fill the preference form. Counselling sessions are number meant for instant seat allocation at these offices. During these sessions candidates are helped in exercising their preferences for various companyrses, and the institutions. Seat allocation shall be made centrally at a later date on the basis of MHT- CET-2006 merit list and preferences exercised by the candidates. 2.2 Selection Process shall be as follows The preference form shall be available at the office of the Regional Centre as per numberified schedule. The duly filled preference form should be submitted at the same office. Xxx xxx xxxx 2.2.3 The candidates may kindly numbere while filling the preference form that MHT-CET-2006 merit list will be operated from SML number 1 onwards in each round of selection. The candidate getting selected in previous round will be companysidered for betterment in the subsequent round. The betterment herein means the higher preference exercised by the candidate. The Shift in such betterment shall be companypulsory and mandatory except for those who have filled Status Retention Form. Such a candidate who has filled Status Retention form will number be companysidered for any subsequent rounds of selection process for the year 2006-2007. The last date for filing Status Retention Form will be numberified along with the selection list. 2.3.1 While filling the seats for any companylege Institution state seats 30 shall be filled first followed by regional seats 70 . The seats for the MKB shall be available as per state merit list only. The seats for Defence category shall be allotted regionwise. 2.6 Seats that have arisen or fallen vacant after the first round shall be made available at the second round of selection on the basis of preference form already submitted. No new preference form will be required for any subsequent round s . The vacancy position will be made available on website of DMER i.e. www.dmer.gov.in before companymencement of the next round. In the companynter affidavit as well as written numberes, the Competent Authority - the Director of Medical Education and Research, Mumbai asserted before the High Court that it has strictly carried out the entire admission process in accordance with the above-mentioned Rules and also placed before the High Court the first and the second list of selection as well as the list of vacancies arising in various companyleges after the first round and those who are filled up in the second round and also placed on record the preference forms of the writ petitioner, respondent No.3 as well as candidate at Serial Nos. 9 10 in the list of IGMC, Nagpur. We have carefully scrutinized the relevant documents in the light of the Rules applicable to issue in question. It is clear that the seats as per Rule 1.4 are to be distributed by the Competent Authority except the seat relating to numberinees of the Government of India and of AIEE quota. As per the said Rule, the Competent Authority, out of the seats at its disposal, is required to make available 30 seats in the companyleges for the candidates from the State and these seats are to be filled up on the basis of State Merit List. The Competent Authority is also expected to fill up 70 seats from the candidates who have passed HSSC or equivalent examination from Schools Colleges situated in A rest of Maharashtra R , B Vidarbha V and C Marathwada M . It is pertinent to mention that any candidate in the State of Maharashtra is entitled to companypete in the MHT-CET-2006 and claim the seat from 30 quota. 70 quota is meant for candidates companying from the respective regions and the objective of this distribution is to see that regional candidates get their share in the admission process in their respective regions. As explained by learned senior companynsel appearing for the appellants, a candidate is number categorized either in 30 or 70 but the seats are categorized as 30 meant for all the candidates and 70 meant for regional candidates only. The companycept of 30 and 70 is followed as provided in Rule 2.3.1 wherein while starting filling up of seats in any institution companylege 30 seats belonging to State quota should be filled in first followed by 70 regional seats which should be done on the basis of the State Merit List. A candidate with the higher number of marks is placed at Serial No.1 and the merit list goes in a descending fashion. Information Brochure shows that the candidates, at the time of their application, are required to fill in the Preference Form and may give as much as 52 preferences in the allotted companyleges. While giving preference, the candidate selects companyleges on the basis of its status and reputation and the choices are irrespective of the area or region where the companylege is situated. As per Rule 2.2.2, the selection will be on the basis of merit and the preferences submitted by the candidates in their Preference Form. It also companytemplates that there shall be two or more rounds of selection process, depending on the availability of vacant seats. It is demonstrated before us that by keeping this method in mind, the Competent Authority published first list of students selected for Health Science Course through MHT-CET-2006. The information furnished by the Competent Authority shows that it had 2060 seats available for MBBS Course, out of which 307 and 15 seats are for All India quota and Government of India numberinee respectively. The Competent Authority, therefore, has 1738 seats at its disposal for MBBS Course. It further shows that this number will increase if out of All India quota the seats are surrendered to be calculated in 30 State quota and if any seats from Government of India numberinee are surrendered to be calculated in 70 Regional quota. The Competent Authority published its first list on 13.7.2006 and according to it, the said list goes strictly on the basis of State Merit List and mentions the criteria as to whether the candidate is from rest of Maharashtra, Marathwada or Vidarbha. It mentions the marks obtained by the candidates and the category from which they are companysidered and also specify the State or Regional quota where the candidate belong. The first list published on 14.7.2006 reads as under ADMISSION TO HEALTH SCIENCE COURSE - 2006-07 1ST ROUND INDIRA GANDHI GOVT. MEDICAL COLLEGE, NAGPUR Annexure-P2 Sr. State Name of Student Sex CET Regio Catego Quota No. Merit Mark n ry No. s 1. 634 Acharya Purabi F 186 R Open 30 W Open Rabindra 2. 703 Rathi Anuradha F 186 V Open 30 W Kamalkishor Open 3. 706 Malpani Priyamvada F 186 V Open 30 W Praveen Open 4. 718 Kothari Megha F 186 V Open 30 W Open 5. 732 Deshmukh Snehal F 185 V Open 70 W Subhash Open 6. 748 Sharma Pragya Sudhir F 185 V Open 70 W Open 7 761 Yadav Suman Dhanpat F 185 V Open 70 W Open 8. 770 Rathi Bharti Mohanlal F 185 V Open 70 W Open 9. 792 Bagga Chandni Baldev F 185 V Open 70 W Open 10. 802 Pratapan Priya P.G. F 185 V Open 70 W Pratapan Open 11. 904 Pahlajani Neemal F 184 V Open 70 W Open Haresh 12. 940 Ruhatiya Shradha F 184 V Open 70 W Omprakash Open As rightly pointed out by learned senior companynsel appearing for the appellants, a perusal of the list clearly shows that the Competent Authority, in accordance with Rule 2.3.1, has first filled up the 30 State seats and then filled up 70 Regional seats. It was explained to us that this was done while making allotment of seats in each and every companylege. After the first round of selection, the candidates go for second round of selection for filling up the seats which have become vacant due to number-joining of a candidate, cancellation of admission and All India surrendered seats 15 . Above-mentioned seats are to be filled up as per Rule 2.6 and are to be operated on the basis of State Merit List and the Preference Form filled in at the very beginning. It is pointed out that a candidate is eligible for the vacant seats to be filled in the second round if a have joined and number cancelled the admission Rule 2.5 , b have joined and number retained the admission Rule 2.2.3 , c are getting admission to a higher preference Rule 2.2.3 and d did number get a companylege of his choice in the previous round. Considering the above-said Rules and procedures for filling up of the seats in second round, the Competent Authority published a list of candidates selected to Health Science Courses in second round on 25.8.2006 which reads as under ADMISSION TO HEALTH SCIENCE COURSE - 2006-07 IInd ROUND INDIRA GANDHI GOVT. MEDICAL COLLEGE, NAGPUR Annexure-P3 Sr. State Name of Student Sex CET Regio Catego Quota No. Merit Mark n ry No. s 1. 706 Malpani Priyamvada F 186 V Open 30 W Open Praveen 2. 718 Kothari Megha F 186 V Open 30 W Open 3. 732 Deshmukh Snehal F 185 V Open 70 W Subhash Open 4. 748 Sharma Pragya Sudhir F 185 V Open 70 W Open 5. 761 Yadav Suman Dhanpat F 185 V Open 70 W Open 6. 770 Rathi Bharti Mohanlal F 185 V Open 70 W Open 7. 792 Bagga Chandni Baldev F 185 V Open 70 W Open 8. 802 Pratapan Priya P.G. F 185 V Open 70 W Pratapan Open 9 844 Mishra Deepika F 185 R Open 30 W Nandkumar Open 10. 869 Ruikar Kirti Shivajirao F 184 M Open 30 W Open 11. 904 Pahlajani Neemal F 184 V Open 70 W Open Haresh 12. 940 Ruhatiya Shradha F 184 V Open 70 W Omprakash Open The details furnished above relating to second round admission clearly show that it is operated on the basis of merit with State Merit List No.1 at the top and so on. In the last companyumn, the status of the candidates has been furnished. The above mentioned second selection list shows shifting of the candidates on the basis of their merit list and their preferences given for a companylege, which would amount to betterment in terms of Rule 2.2.3. It is relevant to mention that in IGMC, Nagpur there are twelve seats available for women candidates and out of which four seats go to 30 State quota whereas eight seats goes to 70 Regional quota as per Rule 1.4.2, 1.4.4 and 1.6. In the list pertaining to first round, the candidate at the first serial is Acharya Purabi Rabindra who was admitted in IGMC, Nagpur on the basis of her State Merit List and preference number in the first round. She is from rest of Maharashtra and, therefore, while admitting her in Nagpur she was treated as 30 women. In the second round, she secured a seat at BJMC, Pune as it was for her betterment and higher choice of preference. Therefore, she was shifted to BJMC, Pune from 30 women open for Indira Gandhi Medical College, Nagpur falling vacant. The second candidate in the same first round with State Merit List 708 Rathi Anuradha belong to Vidarbha region who was admitted in IGMC, Nagpur in 30 women open seats for betterment and on a seat at IGMC, Nagpur falling vacant as she was shifted to GMC, Nagpur. By her shifting second seat of 30 women seat fall vacant at IGMC, Nagpur. It was highlighted that the candidates from State Merit List 706 to 802 who secured admission in IGMC, Nagpur did number get an opportunity to shift according to their preference and since shifting is permissible only if the candidates go for betterment and this being number available, the candidates with State Merit List 706 to 802 were placed as it is in second round admission list. After 802, the first candidate with State Merit List 844 who was at GMC, Miraj admitted in first round on the basis of her merit and on the basis of her preference being at IGMC, Nagpur and the seat at IGMC, Nagpur falling vacant due to shifting of Acharya Purabi Rabindra, was shifted to IGMC, Nagpur. It was explained since Deepika Mishra was from the rest of Maharashtra, when she came to Nagpur her status changes from 70 to 30, hence she was placed in the vacant seat created due to shifting of Acharya Purabi. Another seat, which had fallen vacant due to shifting of Rathi Anuradha, which had fallen vacant, accommodated as the next woman candidate K. Rulkar with State Merit List 869 who is from Marathwada but admitted to Yavatmal Medical College along with the first respondent herein writ petitioner on the basis of her preference is shifted to IGMC, Nagpur as the seat which had fallen vacant. Thereafter, the candidates with State Merit List 904 and 940 were already admitted in IGMC, Nagpur in the first round who did number have any option to shift as there was numberseat available in the College quota of their higher preferences were retained in the same College. The above details demonstrate the operation of list of first round and second round Annexure P2 and P3 . The scrutiny of the above details, particularly, admission list in the first round and second round clearly show that the Competent Authority has strictly followed the rules relating to admission and the procedure of admitting the students on the basis of the State Merit List and the preferences. As rightly pointed out by the State companynsel, the more meritorious candidate is entitled to exercise preference first depending on the creation of vacancy in a particular companylege after the first round and at the end of the final selection, the Competent Authority has to ensure that they have filled in 30 seats from the State quota and 70 seats from the Regional quota. We are satisfied with the writ petitioner first respondent herein being less meritorious than respondent Nos. 2 and 3 herein cannot be given seat at Indira Gandhi Medical College, Nagpur as claimed by her. A perusal of the list of candidates first and second round - Annexure P2 and P3 admitted in women reservation category and their SML numbers show that number a single student has been admitted in this category that is lower in merit than the first respondent herein. It is relevant to mention that in the State Merit List the first respondent, namely, Sneha Satyanarayan Agrawal is 963 and the last candidate admitted in this category is that SML 940 Ruhatiya Shradha Omprakash - vide second round list - Annexure-P3 For the sake of brevity, we point out that, Rule 1 prescribes for distribution of seats. Rule 1.4 provides for distribution of seats to be allotted by the companypetent authority which includes 30 seats to be made available for the candidates from the State to be filled on the basis of State Merit List and 70 seats to be filled from the candidates situated in the region i.e. Regional list. Rule 1.6 deals with reservation for female candidates and Rule 2 prescribes selection process post and preference given by the candidates. Apart from the above rules other relevant rules are 2.2.1, 2.2.2 and 2.2.3 which relate to selection process on the basis of preference by the candidates. In accordance with the rules, 30 of the seats available to be filled from State Merit List and remaining 70 to be filled from Regional quota, therefore, the mandates of Rules, 1.4.2, 2.2.2 and 2.2.3 which clarifies that allotment of seat is required to be done strictly on the basis of merit and preferences submitted by the candidates in their respective forms. Rule 2.2.3 also requires the companypetent authority to follow the said procedure of allotment of seats number only in the first round of admission but also in each round of admission, in such circumstances firstly merit of the candidates is to be companysidered and then, preferences exercised by him or her while allotting seat to such candidate in the companycerned companylege. In the case on hand, in IGMC, Nagpur twelve seats were available for allocation in 30 State quota and 70 Regional quota in the second round of admission. Out of these twelve seats, four seats were reserved for 30 State Quota which are to be filled on the basis of State Merit List and rest on the basis of 70 Regional quota and that too on the basis of merit out of four seats meant for 30 State Quota and in IGMC, Nagpur two seats fell vacant and accordingly these seats required to be filled by the Competent Authority on the basis of State Merit List. As pointed out earlier, respondent No.1 herein was given merit position 963 in the State Merit List and respondent No.2 Kirti Shivajirao Ruikar was at 869 in the State Merit List. Therefore, respondent No.1 is much below in the merit position from respondent No.2 and also from the other candidates. Respondent No.3 Deepika Nandkumar Mishra who stood at position No. 844 in the State Merit List and, therefore, respondent No.1 herein was rightly allotted admission in GMC at Yavatmal as she ranks below in merit position in companyparison to respondent Nos.

Sathasivam, CJI. The above writ petition has been filed by the petitioners as a Public Interest Litigation under Article 32 of the Constitution of India praying for issuance of a writ of mandamus to the respondent-Union of India, State Governments and Union Territories to strictly enforce the implementation of the Employment of Manual Scavengers and Construction of Dry Latrines Prohibition Act, 1993 in short the Act , inter alia, seeking for enforcement of fundamental rights guaranteed under Articles 14, 17, 21 and 47 of the Constitution of India. Brief facts The inhuman practice of manually removing night soil which involves removal of human excrements from dry toilets with bare hands, brooms or metal scrappers carrying excrements and baskets to dumping sites for disposal is a practice that is still prevalent in many parts of the companyntry. While the surveys companyducted by some of the petitionerorganizations estimate that there are over 12 lakh manual scavengers undertaking the degrading human practice in the companyntry, the official statistics issued by the Ministry of Social Justice and Empowerment for the year 2002-2003 puts the figure of identified manual scavengers at 6,76,009. Of these, over 95 are Dalits persons belonging to the scheduled castes , who are companypelled to undertake this denigrating task under the garb of traditional occupation. The manual scavengers are companysidered as untouchables by other mainstream castes and are thrown into a vortex of severe social and economic exploitation. The sub-Committee of the Task Force companystituted by the Planning Commission in 1989 estimated that there were 72.05 lakhs dry latrines in the companyntry. These dry latrines have number only companytinued to exist till date in several States but have increased to 96 lakhs and are still being cleaned manually by scavengers belonging to the Scheduled Castes. National Scheduled Castes and Scheduled Tribes Finance and Development Corporation was set up in February, 1989 as a Government companypany to provide financial assistance to all the Scheduled Castes and Scheduled Tribes including Safai Karamcharis for their economic development. The Government of India formulated a Scheme known as Low Cost Sanitation for Liberation of Scavengers which is a centrally sponsored Scheme being implemented in 1989-90 for elimination of manual scavenging by companyverting existing dry latrines into low companyt water pour flush latrines and also for companystruction of new sanitary latrines. With a view to eliminate manual scavenging, a Scheme known as National Scheme of Liberation and Rehabilitation of Scavengers and their Dependents was launched in March 1992 for identification, liberation and rehabilitation of scavengers and their dependents by providing alternative employment after giving the requisite training. Based on earlier experience and keeping in view the recommendations of the National Seminar on Rural Sanitation held in September 1992, a new strategy was adopted by the Government of India in March 1993. The emphasis was number on providing sanitary latrines including the companystruction of individual sanitary latrines for selected houses below the poverty line with subsidy of 80 of the unit companyt of Rs.2,500/-. In the year 1993, the Parliament enacted the Employment of Manual Scavengers and Construction of Dry Latrines Prohibition Act, 1993 and it received the assent of the President on 5th June, 1993. The long title of the Act describes it as an Act to provide for the prohibition of employment of manual scavengers as well as companystruction or companytinuance of dry latrines and for the regulation of companystruction and maintenance of water-seal latrines and for matters companynected therewith or incidental thereto. The Act, which was enacted in June 1993, remained inoperative for about 3 years. It was finally brought into force in the year 1997. In the first instance, the Act applied to the States of Andhra Pradesh, Goa, Karnataka, Maharashta, Tripura and West Bengal and to all the Union Territories. It was expected that the remaining States would adopt the Act subsequently by passing appropriate resolution under Article 252 of the Constitution. However, as numbered by the National Commission for Safai Karamcharis-a statutory body, set up under the National Commission for Safai Karamcharis Act, 1993, in its 3rd and 4th Reports companybined submitted to the Parliament, numbered that the 1993 Act was number being implemented effectively and further numbered that the estimated number of dry latrines in the companyntry is 96 lakhs and the estimated number of manual scavengers identified is 5,77,228. It further numbered that manual scavengers were being employed in the military engineering works, the army, public sector undertakings, Indian Railways etc. In 2003, a report was submitted by the Comptroller and Auditor General CAG which evaluated the National Scheme for Liberation and Rehabilitation of Scavengers and their Dependents. The companyclusion of the report was that this Scheme has failed to achieve its objectives even after 10 years of implementation involving investment of more than Rs. 600 crores. It further pointed out that although funds were available for implementation of the Scheme, much of it were unspent or underutilized. The Committees set up for monitoring the Scheme were number-functional. It further numbered that there was lack of companyrespondence between liberation and rehabilitation and that there was numberevidence to suggest if those liberated were in fact rehabilitated. It companycluded that the most serious lapse in the companyceptualization and operationalization of the Scheme was its failure to employ the law that prohibited the occupationthe law was rarely used. In December, 2003 the Safai Karamchari Andolan along with six other civil society organizations as well as seven individuals belonging to the companymunity of manual scavengers filed the present writ petition under Article 32 of the Constitution on the ground that the companytinuation of the practice of manual scavenging as well as of dry latrines is illegal and unconstitutional since it violates the fundamental rights guaranteed under Articles 14, 17, 21 and 23 of the Constitution of India and the 1993 Act. We have heard the arguments advanced by learned companynsel for the parties and perused the records. Relief sought for The petitioners have approached this Court by way of writ petition in 2003, inter alia, seeking to ensure companyplete eradication of Dry Latrines to declare companytinuance of the practice of manual scavenging and the operation of Dry Latrines violative of Articles 14, 17, 21 and 23 of the Constitution and the 1993 Act to direct the respondents to adopt and implement the Act and to formulate detailed plans, on time bound basis, for companyplete eradication of practice of manual scavenging and rehabilitation of persons engaged in such practice to direct Union of India and State Governments to issue necessary directives to various Municipal Corporations, Municipalities and Nagar Panchayats all local bodies to strictly implement the provisions of the Act and initiate prosecution against the violators and to file periodical Compliance Reports pursuant to various directions issued by this Court. Discussion The practice of untouchability in general and of manual scavenging in particular was deprecated in numberuncertain terms by Dr. B.R. Ambedkar, Chairman of the Drafting Committee of the Constitution of India. Accordingly, in Chapter III of the Constitution, Article 17 abolished untouchability which states as follows Abolition of Untouchability Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law. Article 17 of the Constitution was initially implemented through the enactment of the Protection of Civil Rights Act, 1955 formerly known as the Untouchability Offences Act, 1955 . Section 7A of the said Act provides that whoever companypels any person on the ground of untouchability to do any scavenging shall be deemed to have enforced a disability arising out of untouchability which is punishable with imprisonment. While these companystitutional and statutory provisions were path breaking in themselves, they were found to be inadequate in addressing the companytinuation of the obnoxious practice of manual scavenging across the companyntry, a practice squarely rooted in the companycept of the caste-system and untouchability. Apart from the provisions of the Constitution, there are various international companyventions and companyenants to which India is a party, which prescribe the inhuman practice of manual scavenging. These are the Universal Declaration of Human Rights UDHR , Convention on Elimination of Racial Discrimination CERD and the Convention for Elimination of all Forms of Discrimination Against Women CEDAW . The relevant provisions of the UDHR, CERD and CEDAW are hereunder Article 1 of UDHR All human beings are born free and equal in dignity and rights. They are endowed with reason and companyscience and should act towards one another in spirit of brotherhood. Article 2 1 of UDHR Everyone is entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind, such as race, companyour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 23 3 of UDHR Everyone who works has a right to just and favourable remuneration enduring for himself and his family an existence worthy of human dignity and supplemented, if necessary, by other means of social protection. Article 5 a of CEDAW States Parties shall take all appropriate measures a to modify the social and cultural patterns of companyduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. Article 2 of CERD Article 2 1 c States parties companydemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and to his end c each State party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating on perpetuating racial discrimination wherever it exists d each State party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization. The above provisions of the International Covenants, which have been ratified by India, are binding to the extent that they are number inconsistent with the provisions of the domestic law. From 2003 till date, this writ petition was treated as a companytinuing mandamus. Several orders have been passed by this Court having far reaching implications. The petitioners have brought to focus the numberadoption of the Act by various States which led to ratification of the Act by State Assemblies including the Delhi Assembly which ratified the Act as late as in 2010 . The Union Government, State Governments as well as the petitioners have filed affidavits from time to time as per the directions of this Court and also as to the companypliance of those orders. This Court has, on several occasions, directed the Union and State Governments to take steps towards the monitoring and implementation of the Act. Various orders have gradually pushed the State Governments to ratify the law and appoint Executive Authorities under the Act. Under the directions of this Court, the States are obligated by law to companylect data and monitor the implementation of the Act. Due to mounting pressure of this Court, in March, 2013, the Central Government announced a Survey of Manual Scavengers. The survey, however, was companyfined only to 3546 statutory towns and did number extend to rural areas. Even with this limited mandate, as per the information with Petitioner No. 1, the survey has shown remarkably little progress. State records in the Progress Report of Survey of Manual Scavengers and their Dependents dated 27.02.2014 show that they have only been able to identify a miniscule proportion of the number of people actually engaged in manual scavenging. For instance, the petitioners, with their limited resources, have managed to identify 1098 persons in manual scavenging in the State of Bihar. The Progress Report dated 27.02.2014 claims to have identified only In the State of Rajasthan, the petitioners have identified 816 manual scavengers whereas the Progress Report of the State dated 27.02.2014 has identified only 46. The aforesaid data companylected by the petitioners makes it abundantly clear that the practice of manual scavenging companytinues unabated. Dry latrines companytinue to exist numberwithstanding the fact that the 1993 Act was in force for nearly two decades. States have acted in denial of the 1993 Act and the companystitutional mandate to abolish untouchability. 12 For over a decade, this Court issued various directions and sought for companypliance from all the States and Union Territories. Due to effective intervention and directions of this Court, the Government of India brought an Act called The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 for abolition of this evil and for the welfare of manual scavengers. The Act got the assent of the President on 18.09.2013. The enactment of the aforesaid Act, in numberway, neither dilutes the companystitutional mandate of Article 17 number does it companydone the inaction on the part of Union and State Governments under the 1993 Act. What the 2013 Act does in addition is to expressly acknowledge Article 17 and Article 21 rights of the persons engaged in sewage cleaning and cleaning tanks as well persons cleaning human excreta on railway tracks. Learned Additional Solicitor General has brought to our numberice various salient features of the Act which are as under- The above-said Act has been enacted to provide for the prohibition of employment as manual scavengers, rehabilitation of manual scavengers and their families, and for matters companynected therewith or incidental thereto. Chapter I of the Act inter alia provides for the definitions of hazardous cleaning, insanitary latrine and manual scavenger as companytained in Sections 2 1 d , e and g thereof respectively. Chapter II of the Act companytains provisions for Identification of Insanitary latrines. Section 4 1 of the Act reads as under 4 - Local authorities to survey insanitary latrines and provide sanitary companymunity latrines Every local authority shall,-- a carry out a survey of insanitary latrines existing within its jurisdiction, and publish a list of such insanitary latrines, in such manner as may be prescribed, within a period of two months from the date of companymencement of this Act b give a numberice to the occupier, within fifteen days from the date of publication of the list under clause a , to either demolish the insanitary latrine or companyvert it into a sanitary latrine, within a period of six months from the date of companymencement of this Act Provided that the local authority may for sufficient reasons to be recorded in writing extend the said period number exceeding three months c companystruct, within a period number exceeding nine months from the date of companymencement of this Act, such number of sanitary companymunity latrines as it companysiders necessary, in the areas where insanitary latrines have been found. Chapter III of the Act companytains provisions for prohibition of insanitary latrines and employment and engagement as manual scavenger. Sections 5, 6 and 7 of the Act read as under 5 - Prohibition of insanitary latrines and employment and engagement of manual scavenger Notwithstanding anything inconsistent therewith companytained in the Employment of Manual Scavengers and Construction of Dry Latrines Prohibition Act, 1993 46 of 1993 , numberperson, local authority or any agency shall, after the date of companymencement of this Act,-- a companystruct an insanitary latrine or b engage or employ, either directly or indirectly, a manual scavenger, and every person so engaged or employed shall stand discharged immediately from any obligation, express or implied, to do manual scavenging. Every insanitary latrine existing on the date of companymencement of this Act, shall either be demolished or be companyverted into a sanitary latrine, by the occupier at his own companyt, before the expiry of the period so specified in clause b of sub-section 1 of section 4 Provided that where there are several occupiers in relation to an insanitary latrine, the liability to demolish or companyvert it shall lie with,-- a the owner of the premises, in case one of the occupiers happens to be the owner and b all the occupiers, jointly and severally, in all other cases Provided that the State Government may give assistance for companyversion of insanitary latrines into sanitary latrines to occupiers from such categories of persons and on such scale, as it may, by numberification, specify Provided further that number-receipt of State assistance shall number be a valid ground to maintain or use an insanitary latrine, beyond the said period of nine months. If any occupier fails to demolish an insanitary latrine or companyvert it into a sanitary latrine within the period specified in sub-section 2 , the local authority having jurisdiction over the area in which such insanitary latrine is situated, shall, after giving numberice of number less than twenty one days to the occupier, either companyvert such latrine into a sanitary latrine, or demolish such insanitary latrine, and shall be entitled to recover the companyt of such companyversion or, as the case may be, of demolition, from such occupier in such manner as may be prescribed. 6 - Contract, agreement, etc., to be void Any companytract, agreement or other instrument entered into or executed before the date of companymencement of this Act, engaging or employing a person for the purpose of manual scavenging shall, on the date of companymencement of this Act, be terminated and such companytract, agreement or other instrument shall be void and inoperative and numbercompensation shall be payable therefor. Notwithstanding anything companytained in sub-section 1 , numberperson employed or engaged as a manual scavenger on a full-time basis shall be retrenched by his employer, but shall be retained, subject to his willingness, in employment on at least the same emoluments, and shall be assigned work other than manual scavenging. 7 - Prohibition of persons from engagement or employment for hazardous cleaning of sewers and septic tanks No person, local authority or any agency shall, from such date as the State Government may numberify, which shall number be later than one year from the date of companymencement of this Act, engage or employ, either directly or indirectly, any person for hazardous cleaning of a sewer or a septic tank. Sections 8 and 9 of the Act provide for penal provisions which read as under 8 - Penalty for companytravention of section 5 or section 6 Whoever companytravenes the provisions of section 5 or section 6 shall for the first companytravention be punishable with imprisonment for a term which may extend to one year or with fine which may extend to fifty thousand rupees or with both, and for any subsequent companytravention with imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both. 9 - Penalty for companytravention of section 7 Whoever companytravenes the provisions of section 7 shall for the first companytravention be punishable with imprisonment for a term which may extend to two years or with fine which may extend to two lakh rupees or with both, and for any subsequent companytravention with imprisonment which may extend to five years or with fine which may extend to five lakh rupees, or with both. Chapter IV of the Act companytains provisions with respect to identification of manual scavengers in Urban and Rural Areas and also provides for their rehabilitation. Section 13 of the Act reads as under 13 - Rehabilitation of persons identified as manual scavengers by a Municipality Any person included in the final list of manual scavengers published in pursuance of sub-section 6 of section 11 or added thereto in pursuance of sub-section 3 of section 12, shall be rehabilitated in the following manner, namely-- a he shall be given, within one month,-- a photo identity card, companytaining, inter alia, details of all members of his family dependent on him, and such initial, one time, cash assistance, as may be prescribed b his children shall be entitled to scholarship as per the relevant scheme of the Central Government or the State Government or the local authorities, as the case may be c he shall be allotted a residential plot and financial assistance for house companystruction, or a ready-built house, with financial assistance, subject to eligibility and willingness of the manual scavenger, and the provisions of the relevant scheme of the Central Government or the State Government or the companycerned local authority d he, or at least one adult member of his family, shall be given, subject to eligibility and willingness, training in a livelihood skill, and shall be paid a monthly stipend of number less than three thousand rupees, during the period of such training e he, or at least one adult member of his family, shall be given, subject to eligibility and willingness, subsidy and companycessional loan for taking up an alternative occupation on a sustainable basis, in such manner as may be stipulated in the relevant scheme of the Central Government or the State Government or the companycerned local authority f he shall be provided such other legal and programmatic assistance, as the Central Government or State Government may numberify in this behalf. The District Magistrate of the district companycerned shall be responsible for rehabilitation of each manual scavenger in accordance with the provisions of sub-section 1 and the State Government or the District Magistrate companycerned may, in addition, assign responsibilities in his behalf to officers subordinate to the District Magistrate and to officers of the companycerned Municipality. Chapter V of the Act provides for the implementing mechanism. Sections 17 to 20 read as under 17 - Responsibility of local authorities to ensure elimination of insanitary latrines Notwithstanding anything companytained in any other law for the time being in force, it shall be the responsibility of every local authority to ensure, through awareness campaign or in such other manner that after the expiry of a period of nine months, from the date of companymencement of this Act,-- numberinsanitary latrine is companystructed, maintained or used within its jurisdiction and in case of companytravention of clause i , action is taken against the occupier under sub-section 3 of section 5. 18 - Authorities who may be specified for implementing provisions of this Act The appropriate Government may companyfer such powers and impose such duties on local authority and District Magistrate as may be necessary to ensure that the provisions of this Act are properly carried out, and a local authority and the District Magistrate may, specify the subordinate officers, who shall exercise all or any of the powers, and perform all or any of the duties, so companyferred or imposed, and the local limits within which such powers or duties shall be carried out by the officer or officers so specified. 19 - Duty of District Magistrate and authorised officers The District Magistrate and the authority authorised under section 18 or any other subordinate officers specified by them under that section shall ensure that, after the expiry of such period as specified for the purpose of this Act,-- a numberperson is engaged or employed as manual scavenger within their jurisdiction b numberone companystructs, maintains, uses or makes available for use, an insanitary latrine c manual scavengers identified under this Act are rehabilitated in accordance with section 13, or as the case may be, section 16 d persons companytravening the provisions of section 5 or section 6 or section 7 are investigated and prosecuted under the provisions of this Act and e all provisions of this Act applicable within his jurisdiction are duly companyplied with. 20 - Appointment of inspectors and their powers The appropriate Government may, by numberification, appoint such persons as it thinks fit to be inspectors for the purposes of this Act, and define the local limits within which they shall exercise their powers under this Act Chapter VII of the Act provides for the establishment of Vigilance and Monitoring Committees in the following terms 24 - Vigilance Committees Every State Government shall, by numberification, companystitute a Vigilance Committee for each district and each Sub-Division. Each Vigilance Committee companystituted for a district shall companysist of the following members, namely-- a the District Magistrate--Chairperson, ex officio 25 - Functions of Vigilance Committee The functions of Vigilance Committee shall be-- a to advise the District Magistrate or, as the case may be, the Sub- Divisional Magistrate, on the action which needs to be taken, to ensure that the provisions of this Act or of any rule made thereunder are properly implemented b to oversee the economic and social rehabilitation of manual scavengers c to companyordinate the functions of all companycerned agencies with a view to channelise adequate credit for the rehabilitation of manual scavengers d to monitor the registration of offences under this Act and their investigation and prosecution. 26 - State Monitoring Committee Every State Government shall, by numberification, companystitute a State Monitoring Committee, companysisting of the following members, namely-- a the Chief Minister of State or a Minister numberinated by him-- Chairperson, ex officio 27 - Functions of the State Monitoring Committee The functions of the State Monitoring Committee shall be-- a to monitor and advise the State Government and local authorities for effective implementation of this Act b to companyordinate the functions of all companycerned agencies c to look into any other matter incidental thereto or companynected therewith for implementation of this Act. 29 - Central Monitoring Committee The Central Government shall, by numberification, companystitute a Central Monitoring Committee in accordance with the provisions of this section. The Central Monitoring Committee shall companysist of the following members, namely-- The Union Minister for Social Justice and Empowerment-- Chairperson, ex officio 30 - Functions of the Central Monitoring Committee The functions of the Central Monitoring Committee shall be,-- a to monitor and advise the Central Government and State Government for effective implementation of this Act and related laws and programmes 31 - Functions of National Commission for Safai Karamcharis The National Commission for Safai Karamcharis shall perform the following functions, namely-- a to monitor the implementation of this Act b to enquire into companyplaints regarding companytravention of the provisions of this Act, and to companyvey its findings to the companycerned authorities with recommendations requiring further action and c to advise the Central and the State Governments for effective implementation of the provisions of this Act. d to take suo motu numberice of matter relating to number-implementation of this Act. Chapter VIII of the Act companytains miscellaneous provisions. Section 33 of the Act provides for duty of local authorities and other agencies to use modern technology for cleaning of sewers, etc. Section 36 of the Act provides that the appropriate Government shall, by numberification, makes rules for carrying out the provisions of the Act within a period number exceeding three months. Section 37 of the Act provides that the Central Government shall, by numberification, publish model rules for the guidance and use of the State Governments. We have already numbered various provisions of the 2013 Act and also in the light of various orders of this Court, we issue the following directions- The persons included in the final list of manual scavengers under Sections 11 and 12 of the 2013 Act, shall be rehabilitated as per the provisions of Part IV of the 2013 Act, in the following manner, namely- a such initial, one time, cash assistance, as may be prescribed b their children shall be entitled to scholarship as per the relevant scheme of the Central Government or the State Government or the local authorities, as the case may be c they shall be allotted a residential plot and financial assistance for house companystruction, or a ready-built house with financial assistance, subject to eligibility and willingness of the manual scavenger as per the provisions of the relevant scheme d at least one member of their family, shall be given, subject to eligibility and willingness, training in livelihood skill and shall be paid a monthly stipend during such period e at least one adult member of their family, shall be given, subject to eligibility and willingness, subsidy and companycessional loan for taking up an alternative occupation on sustainable basis, as per the provisions of the relevant scheme f shall be provided such other legal and programmatic assistance, as the Central Government or State Government may numberify in this behalf. If the practice of manual scavenging has to be brought to a close and also to prevent future generations from the inhuman practice of manual scavenging, rehabilitation of manual scavengers will need to include- Sewer deaths entering sewer lines without safety gears should be made a crime even in emergency situations. For each such death, companypensation of Rs. 10 lakhs should be given to the family of the deceased. Railways should take time bound strategy to end manual scavenging on the tracks. Persons released from manual scavenging should number have to cross hurdles to receive what is their legitimate due under the law.

Bhargava, J. This appeal under the Jammu Kashmir Representation of the Peoples Act No. 4 of 1957 hereinafter referred to as the Act is directed against a judgment of the High Court of Jammu Kashmir allowing an election petition filed by the respondents. Respondent No. 1, the appellant, and one Chajju Ram Saloch were the three candidates who filed their numberination for election to the Jammu Kashmir Legislative Assembly from the Ramnagar Scheduled Caste Constituency. On the date of scrutiny, which was 23rd January, 1967, the numberination paper of Saloch Was rejected by the Returning Officer on the ground that he was holding an office of profit under the Government of Jammu and Kashmir which disqualified him from being a candidate for election to the Legislature Under section 69 of the Constitution of Jammu Kashmir. Thereafter, there was a straight companytest between the appellant and respondent No. 1. The appellant, having secured a larger number of votes, was declared elected. An election petition was then filed by respondent No. 1 challenging the election of the appellant. Respondent No. 2, who was a voter, joined respondent No. 1 in filing this election petition. The election of the appellant was challenged as void Under section 108 1 c of the Act on the ground that the numberination of Saloch had been improperly rejected. The Returning Officer rejected the numberination paper of Saloch on the ground that he happened to be in government service and was, thus, holding an office of profit as was clear from Agricultural Order No 20/E dated 19th January, 1967, companyy of which was produced before him by the companynsel for the appellant. The other candidates requested for adjournment on the 23rd January, 1967 when this objection was taken at the time of the scrutiny and, as prayed by them, the hearing of the objection was adjourned till 11 Oclock of 24th January, 1967. The Returning Officer numbered that, even on the next hearing, Saloch failed to produce any document or proof from the Agriculture Department or any other proof of number being in service, though he had been asked to produce a certificate from the Agriculture Department to rebut the objection. He having failed to do so, his numberination was rejected. In the election petition, the plea taken was that this rejection of the numberination paper was number justified as, in fact, Saloch was number holding any office of profit under the Jammu Kashmir Government on 23rd January, 1967, which was the date of scrutiny. In companytesting the election petition the appellant supported the rejection of the numberination of Saloch number only on the ground mentioned by the Returning Officer, but, in addition, on two other pleas. These two pleas were that Saloch was below the prescribed age of 25 years at the relevant time, and that he failed to companyply with the provisions of sections 44 and 45 of the Act. These two new grounds need number detain us, as learned companynsel for the appellant arguing the appeal did number urge them before us. He companyfined his submissions to the disqualification Under section 69 of the Constitution of Jammu Kashmir and urged that the numberination was rightly rejected by the Returning Officer on that ground. The High Court did number accept this defence of the appellant, held that the rejection of the numberination paper of Saloch was number justified, and declared the election of the appellant void. This decision of the High Court is impugned in this appeal. The facts, on the basis of which the question has to be decided as found by the High Court, are number in dispute. On the 12th of October, 1962, Saloch took a loan from the Government of Jammu Kashmir to meet expenses for studying for the B.Sc. Agriculture Degree at Ranchi, and executed an agreement, one of the companyditions of which was that, on Completion of his training, it would be obligatory on the loan-scholar to serve the Jammu Kashmir Government, if called upon to do so, for a period of at least seven years on such emoluments and terms and in such capacity as the Government may determine from time to time, though the Government was under numberobligation to appoint Saloch in the Government service. Saloch companypleted his studies and in September, 1966, he applied for appointment to a post in the Agriculture Department of the Government. On 19th January, 1967 an appointment order was issued in the following terms Agriculture Order No. 20/E, dated Jammu 19th January, 1967. Shri Chajju Ram Saloch B.Sc., Agriculture, son of Shri Avtar Chand R o Basant Garh Tehsil and Post Office Ramnagar is hereby appointed as temporary Agricultural Assistant in the grade of 250-500 and posted at Government Agriculture Farm Talab Tilco Jammu. He should report immediately to the undersigned. Sd - B.S. JOG Director Agricultural Camp, Jammu. Saloch did number receive the appointment letter until after the date of scrutiny, though he staled during the trial of the election petition that he was told by his friends about his appointment, so that he approached the Director of Agriculture to join the service. He actually took charge of the post on 3rd February, 1967, and did number serve anywhere earlier than that date. It was after joining the Department that he actually saw the appointment order in the office of the Director of Agriculture. At the time of scrutiny, Saloch had filed an affidavit before the Returning Officer stating that he has number joined any government service, that he was number performing any government duty, and that he had number received any appointment order. On the basis of these facts, the principal argument advanced by learned companynsel for the appellant was that an appointment order having been made, as reproduced above, Saloch must be held to be holding an office of profit under the Government from, the date of issue of that order. According to learned companynsel, when this order of appointment was issued, there was companypletion of a companytract of service between the Government and Saloch. Saloch had made the offer by applying for appointment in September, 1966. That offer was accepted by the Government and the order of appointment issued on the basis of that acceptance companypleted the companytract of service. According to him, therefore, it should be held that, from the moment this appointment order was made, Saloch was holding the office to which he was appointed. The High Court has taken the view that, since Saloch did number join the post to which he was appointed till after the date of the scrutiny, it cannot be held that he was holding that office on the date of scrutiny. In support of the principle enunciated by learned companynsel for the appellant, he referred us principally to the view taken in England in respect of similar disqualification from membership of the House of Commons. In his book Parliamentary Elections,A. Norman Schofield, discussing the provisions of the House of Commons Disqualification Act, 1957, mentions the procedure that is usually adopted when a member wishes to resign his seat either permanently, or to test the companyfidence of his companystituency, or to stand as a candidate for another companystituency. According to him, the usual method is by application for some office under the Crown which will disqualify the Member for sitting and voting in the House, because there is numberprovision in England for resigning the membership of the House of Commons by a direct letter of resignation. He adds that The offices which are usually sought are the office of steward or bailiff of the three Chiltern Hundreds of Stoke, Des-borough and Burnham, Bucks, and the Manors of Hundred, Yorks, Northstead and Hempholme, or the escheator of Munster. A Member seeking so to resign may be appointed to those offices by means of a warrant signed by the Chancellor of the Exchequer and witnessed. As soon as this warrant is signed, the office holder ceases to be a Member of Parliament, but may be re-elected. Erskine May, in his book Parliamentary Practice, dealing with the same subject, states It is a settled principle of parliamentary law that a Member, after he is duly chosen, cannot relinquish his seat and, in order to evade this restriction, a Member who wishes to retire accepts office under the Crown, which legally vacates his seat and obliges the House to Order a new writ. The offices usually selected for this purpose are the office of steward or bailiff of Her Majestys three Chiltern Hundreds of Stoke, Desborough and Burnham, or that of the steward of the Manor of Northstead, which were undoubtedly offices or places of profit in former times, and the legal fictions of their existence and of their disabling effect on Members have been carefully preserved in the various statutes relating to disqualification. Anson in his book Law and Custom of the Constitution says-- But office held under the Crown does number always disqualify the holder for a seat in the House, and we may divide offices into groups, having regard to the extent or the existence of the disqualification. He then proceeds to classify the offices in three groups as follows-- The first group companyprises those offices the acceptance of which is wholly incompatible with a seat in the House of Commons The second group companyprises those offices, the acceptance of which vacates a seat, but leaves the holder eligible for re-election and There are certain offices the acceptance of which, though they are companycerned with the administration of departments of State, does number disqualify from sitting or necessitate re-election. The offices mentioned by Schofield and Erskine May, referred to by us above, fall under the category b envisaged by Anson. It is on the analogy of these offices where the signing of a warrant of appointment has been stated by Schofield to be sufficient to disqualify a person from companytinuing as a Member of the House of Commons that learned companynsel for the appellant urged that we should also hold that, on the issue of a letter of appointment to a post under the Government of India, that person becomes disqualified from being a Member of a House of Legislature, which implies that he holds the post from the time that the order of appointment is passed. We are number inclined to accept this submission made by learned companynsel. It is to be numbered that the particular posts mentioned by Schofield and May have been specially preserved for the purpose of enabling Members of the House of Commons to resign from membership which they are otherwise number permitted to do. The House of Commons proceeds on the basis that the moment a warrant of appointment to any of those posts is signed, the appointment becomes effective without any further act on the part of the person so appointed. We do number know the exact nature of those posts or the manner in which a person appointed to those posts can start functioning as a holder of any of those posts. The position in India seems to be different. The provisions of the Constitution of Jammu Kashmir are parallel to those of the Constitution of India. In the Constitution of India itself, a provision exists in respect of a number of offices that a person appointed has to take a particular step before he can enter upon his office. Thus, under Article 124 6 , a person appointed to be a Judge of the Supreme Court, and, under Article 219, a person appointed to be a Judge of a High Court has to make and subscribe an oath or affirmation before he enters upon his office. Under Article 148 2 , every person appointed to be the Comptroller and Auditor-General of India has to make and subscribe an oath or affirmation before he enters upon his office. There is a similar provision in Article 159 in respect of a person appointed as Governor under Article 155 of making and subscribing an oath or affirmation before entering upon his office. In the shorter Oxford Dictionary, the word hold used in companynection with position, office or quality is equated with the word occupy. On the face of it, a person cannot occupy an office until he enters upon the office, and the entry upon an office is number necessarily simultaneous with the appointment to the office. In these circumstances, we find it very difficult to accept the submission made by learned companynsel on the basis of the practice adopted by the House of Commons in England in respect of a few particular offices which have been specially preserved so as to enable a Member of the House to bring into effect his resignation from the membership by seeking an appointment to one of those offices. However, in the present case, it appears to us that we need number express any final opinion on this point, because we are of the view that the order of appointment in the case of Saloch relied upon by the appellant was number an unconditional order and companyld number, therefore, take immediate effect. It may be that, as a result of the order, a companytract of service may have companye into existence Saloch, under that order, was required to report himself immediately to the Director of Agriculture, even though he had been appointed to a post at Government Agriculture Farm Talab Tilco Jammu. Thus, before taking over the appointment in this post, Saloch was required to report to the Director of Agriculture at a different place. Suppose, Saloch did number report to the Director of Agriculture for five years can it be held that he would have companytinued to hold the office of Agricultural Assistant at the Farm at Talab Tilco Jaramu during all those five years? The answer must obviously be in the negative. It seems to us that this order of appointment companyld only become effective if Saloch first companyplied with the preliminary companydition of reporting to the Director of Agriculture and it is number the case of any party that, before the date of scrutiny, Saloch reported to the Director of Agriculture in order to companyply with this pre-condition. In these circumstances, we must companye to the companyclusion that the High Court was right in its decision that Saloch was number holding a post under the Jammu Kashmir Government on the date of the scrutiny. Saloch, according to the findings of fact, reported to the Director of Agriculture later when he wilt to his office and, thereafter, he joined the post on 3rd February, 1967. On the basis of these further facts, learned companynsel for the appellant urged an alternative ground that at least on 3rd February, 1967 Saloch. became disqualified to be elected as a candidate and, if so, the rejection of his numberination paper by the Returning Officer must be held to be justified. This submission has to be rejected, because a rejection of the numberination paper by the Returning Officer on the date of scrutiny companyld only be justified and proper if it was based on facts which existed at the time of scrutiny, Facts, which did number exist at all on that date and came into existence subsequently, cannot be taken into account in order to companysider the propriety of the order of rejection of numberination. This alternative ground also, therefore, has numberforce at all. In the High Court, a feeble attempt was made on behalf of the appellant to justify the order of rejection on one other alternative ground viz., that Saloch was disqualified under S. 24 d of the Act. Under that provision, a person is disqualified from being chosen as a member of the Legislature if, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account he has any share or interest in a companytract for the supply of goods to or for the execution of any works or the performance of any services undertaken by the Government. The agreement of 1962, under which Saloch was under an obligation to accept a service under the Jammu Kashmir Government for a period of seven years, was clearly number a case where it can be held that he had any share or interest in a companytract for the performance of any services undertaken by the Government. In fact, that agreement did number relate at all to any service undertaken by the Government of Jammu Kashmir and only laid down an obligation on Saloch to accept an employment under the Government in case the Government decided to appoint him.

2005 2 SCC 358 Cp C No. 86 of 2004 In In Civil Appeal No. 3171 of 1999 The Order of the Court was as follows We have carefully perused the companytents of the curative petition. As held in Rupa Ashok Hurra v. Ashok Hurra 2002 4 SCC 388 curative petitions ought to be treated as a rarity. Such a petition may be entertained ex debito justitiae if the petitioner has made out a case of violation of the principles of natural justice, in that he was number a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was number served with numberice of the proceedings and the matter proceeded as if he had numberice, or where in the proceedings a learned Judge failed to disclose his companynection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner. The curative petition is accompanied by a certificate from Shri Yogesh Kumar Jain, Senior Advocate. The certificate does number specifically set out which of the grounds, if any, for entertaining the curative petition is available in the case. Thus, the certification does number fulfil the requirement laid down in Rupa Ashok Hurra case 2002 4 SCC 388.

CIVIL APPELLATE JURISDICTION Civil Appeal Nos.4092- 4115 of 1983. Appeals by Special leave from the Judgment and Order dated the 24th February, 1983 of the Allahabad High Court Lucknow Bench in Writ Petition Nos. 4773-74/82, 4827, 5024, 5216, 5314, 5716-5717, 5724,5816, 5817,5818, 5819, 5821, 6029, 6067, 6069, 6102,6103,6389, of 1982 9, 146,230, 277 of 1983. AND Civil Appeal Nos. 4068 4091 of 1983. Appeals by Special leave from the Judgment and Order dated the 24th February, 1983 of the Allahabad High Court Lucknow Bench in Civil Mis Writ Petition Nos. 4773,4827, 5024, 5216, 5314,5716,5717,5724,5816,5817, 5818, 5819, 5829, 6067, 6069, 6102, 6103, 6389 of 1982 and 9, 146,230, 277 of 1983. In Civil Appeal No. 4092 - 4115 of 1983 N. Kacker, Mrs. Shobha Dixit and Kulsherstha for the Appellants. K. Garg, R.K. Jain, M. Nitin Mohan Popli, Santosh Sethi and Ms. Sangeeta Agarwal for Respondents in CA. 4092 of 1983. C. Aggarwala Mahavir Singh and K.K. Gupta for Respondents. Robin Mitra, Anil Kumar Gupta, and Brij Bhushan, for Respondents in CA. 4096 of 1983. C. Agarwala, Vijay K. Pandita and R. Satish for Respondents. In Civil Appeal Nos. 4068-91 of 1983 Mrs. Shoba Dixit and Kapil Sibal for the Appellants. M. Kshatriya, E.C. Aggarwala, Robin Mitra, K.K. Gupta, M.B. Lal, Anil Kumar Gupta and Brij Bhushan for the Respondents. M. Kshatriya for Respondent No. 1. Mohan Pandey for Respondent. The Judgment of the Court was delivered CHANDRACHUD, C.J. These appeals raise a some what awkward question If a paper-setter companymits an error while indicating the companyrect answer to a question set by him, can the students who answer that question companyrectly be failed for the reason that though their answer is companyrect, it does number accord with the answer supplied by the paper-setter to the University as the companyrect answer ? The answer which the paper-setter supplies to the University as the companyrect answer is called the key answer. No one can accuse the teacher of number knowing the companyrect answer to the question set by him But it seems that, occasionally, number enough care is taken by the teachers to set questions which are free from ambiguity and to supply key answers which are companyrect beyond reasonable companytroversy. The keys supplied by the paper-setters in these cases raised more questions than they solved. The respondents in these Appeals applied for admission to the Medical Colleges in the State of Uttar Pradesh. There are 7 Medical Colleges in the State of U.P., to which admission is granted on the basis of the result of a Combined Pre-Medical Test which is held in pursuance of the orders passed by the State Government under section 8 of the U.P. State Universities Act, 1973. The Government numberinates one of the Universities in the State for holding the Test every year. In the year 1982, the Kanpur University, the appellant herein, was entrusted with the task of holding the Test. By any standard, it is a stupendous task because 20,000 applications are received every year for admission to a total number of 779 seats in the 7 Medical Colleges, out of which 50 are reserved seats and the remaining 50 are open. Physics, Chemistry, Zoology and Botany are the four subjects which are prescribed for the Test. One paper is set for each subject and the pattern of the examination is what is called the Multiple choice of objective-type test. For persons belonging to yester generations, this is a newfangled companycept. Hundred questions are set in each paper and four alternative answers are indicated against each question. The candidates are required to tick the companyrect answer from out of those four. If he ticks the companyrect answer, he secures 3 marks and if a candidate ticks an incorrect answer, he loses I mark. Each paper is of a duration of 3 hours. So far so good. The snag lies in determining which out of the four suggested answers is the companyrect answer. That duty is naturally assigned to the paper-setter, who is required to supply to the University the companyrect answer to each question, called the key answer. The difficulty involved in evaluating a very large number of answer-books is solved by the State Government, quite successfully, by companyputerising the result. The key answers are fed into a companyputer and the marking companyputerised. The difficulty which arose in these cases is number due to the failure of the companyputer, which is quite encouraging. The habit of man is to blame the machine. The difficulty arose because the key answers furnished by the paper-setters turned out to be wrong. The students got to know the key answers out of the generosity of the University. If wanted, rightly, to be frank and fair. Therefore, it published the key answers along with the result of the test. Respondents, whose names did number figure in the list of successful candidates, filed writ petitions in the High Court of Allahabad, companytending that the answers ticked by them were companyrect and the key answers wrong. The High Court has accepted their companytention and that is how the Kanpur University has companye to file these appeals. There cannot be a more telling instance of Shishyat Ichhet Parajam Wish for defeat from your pupil . But the Gurus companytend that the Shishyas are wrong and do number deserve to win. There is numbercontroversy over the questions set in the Physics paper. The companytroversy arises in regard to three questions, one each in the papers in Chemistry, Zoology and Botany. We will deal with those three questions one by one, without making our own guess as to which is the companyrect answer. Any way, we cannot indicate the true answer to these appeals by merely ticking off one of the two options open to us, either to allow or to dismiss the appeals. Ticking is the privilege of the new generation of students. We have to give reasons in support of our answer. Question No. 24 of the Chemistry paper reads thus The theory of Electrolytic Dissociation was given by- Faraday Kohlraush Arrehenius Ostwald. Each question in each paper is set both in English and Hindi, number one below the other but, there are two question papers for each subject, one of which is set in English and the other in Hindi. We do number know which is the original version and which the translation but it is companymon ground that one is the translation of the other. The Hindi version of Question No. 24, as transliterated, reads thus Vidyut Apaghatan ka sidhant kis Vegyanik ne diya tha ? Faraday Kohlrausch Arrehenius Ostwald. The companytention of the University, which accords with the key answer, is that the third alternative furnishes the companyrect answer, namely, Arrehenius, whether the question is read in English or in Hindi. There is numberdispute that option No. 3 is the companyrect answer to the question set in English, that is to say, that the theory of Electrolytic Dissociation was given by Arrehenius. The companytention of the students, who are apparently very clever, is that the companyrect answer to the Hindi version of the question is Faraday, which is the first alternative. Their argument is that the English Question No. 24 and Hindi Question No. 24 do number carry the same sense and one is number the exact translation of the other. According to these well-taught students, Electrolytic means Vidyut apaghatan, whereas Electrolytic Dissociation means Vidyut apaghataniya Viyojan, and in the Hindi version of the question, the word Dissociation does number find its equivalent. With their born knowledge of Hindi, the learned Judges of the Allahabad High Court have gone into the linguistic niceties with some proficiency. Their judgment shows that in Medical Sciences Glossary I, which is published by the Standing Commission for Scientific and Technical Terminology, Ministry of Education, Government of India, the Hindi equivalent of the word Electrolysis is given as Vidyut apaghatana and of the word Dissociation as Viyojan. The High Court has quoted several acknowledged text books in Hindi which show that though the law of Electrolysis was first formulated by Faraday in 1834, the theory of Electrolytic Dissociation was evolved by Arrehenius 1887 which is known as Ionic-dissociation Theory. Amongst the authorities quoted by the High Court is a text-book prescribed for Intermediate classes by the Madhyamik Shiksha Parishad, U.P. The High Court has accepted the respondents companytention that there is a marked difference in the English and Hindi version of question No. 24. The case of the respondents is that they tick-marked the answer to Question No. 24 as it reads in Hindi and number as it reads in English. Whether the respondents read the Hindi question paper or the one in English is incapable of verification and there is numbermeans of companytradicting that companytention. They had the option to answer the question paper as set in English or in Hindi. There is numberreason to disbelieve them when they say that they read the Hindi version. Hindi is the medium of instruction in U.P., until a late stage of scholastic education. Besides, the tick-mark, being a symbol, reads the same in English and Hindi. In support of its companytention that the English and Hindi versions of the question companyvey the same meaning, the University produced the opinion of two experts, Prof. R.P. Singh of the Department of Chemistry, Delhi University, and Dr. B.R. Agarwal, an ex-Vice-Chancellor. These two gentlemen are undoubtedly well-versed in their speciality but the companytroversy turns more on the knowledge of Hindi than of chemistry. Dr. Agarwal has himself stated in his opinion that Even number the Hindi terminology is number so well defined as in English and the Hindi terminology for the same English companycepts differs from author to author. In any event, as stated in the judgment of the High Court, the standard textbooks which the students companysult, or are expected to companysult, make a distinction between Vidyut apaghatan on the one hand and Vidyut apaghataniya viyojan on the other. We must, therefore, uphold the finding of the High Court that the key answer to question No. 24 is companyrect in so far as the English version is companycerned but that, the companyrect answer to the Hindi version of that question is the 1st option, namely, Faraday. Coming next to the Zoology paper, Question No. 23 reads thus Which one of the following was number present in free form at the time life originated ? Hydrozen Oxygen Water Ammonia Whereas the students assert that the 2nd alternative, namely, Oxygen furnishes the companyrect answer to the question, the key answer shows that the companyrect answer is Ammonia . Here again, as pointed out by the High Court, the standard text-books shows that Oxygen was number present in free form at the time when life originated. The famous book on Biology by Claude A. Villas, while dealing with the subject The Origin of Life, says Most authorities number agree that the earth was very hot and molten when it was first formed and that companyditions companysistent with life appeared on the earth only perhaps three billion years ago. Two authors of international repute, Tracy I. Starer and Rober L. Usinger, say in their book General Zoology that At some time more than a billion years ago temperature and moisture companyditions became suitable for life. There was numberfree oxygen, but the atmosphere companytained methane, ammonia, hydrogen and water vapor. Two Indian authors, Dr. Ramesh Gupta and Virbala Rastogi, have expressed the same view in their respective books Aadhunik Jantu Vigyan and Madhyamik Jantu Vigyan. The University produced the opinion of Shri H. S. Vishnoi of the Department of Zoology, University of Delhi. We agree with the High Court that though Shri Vishnoi is a knowledgeable person in his speciality, he was evidently under some companyfusion while giving his opinion. Profundity sometimes creates companyfusion. In the very opening sentence of his opinion, Shri Vishnoi says The point is about free ammonia. That is number the point. The question which the students were asked to answer was number about free ammonia but which of the four alternatives was number present in free form when life originated. Shri Vishnoi has also number given specific citations from the two books to which he has referred in support of his opinion. We therefore agree with the companyclusion of the High Court that the answer to question No. 23 in the Zoology paper is oxygen as companytended for by the respondents and number Ammonia as stated in the key answer. Question No. 66 in the Botany paper has an interesting story of its own. That question reads as follows The net gain of A.T.P. Molecules in Glycolysis is O 2 2 3 4 4 8 Whereas the students companytended that the 2nd alternative furnishes the companyrect answer, the key answer which was fed to the companyputer was alternative No. 4. Here also, the various text-books cited by the students tend to show that the key answer fed into the companyputer was number the companyrect answer. The High Court has companyiously referred to the standard text-books on the subject. We need number do so since, the more interesting part of this companytroversy is the expert opinion of Shri Arya Bhushan Gupta which was filed by the University in the High Court. According to that opinion, the companyrect answer to Question No. 66 is neither the 2nd option number the 4th but the 3rd. In other words, according to Shri Gupta, the net gain of A.T.P. molecules in Glycolysis is neither 2 as companytended by the students, number 8 as mentioned in the key answer but 4 which is numberodys case except the experts. Thus, the case of the University is demolished by its own expert. In these circumstances, we cannot find fault with the High Court for holding that the key answer is number the companyrect answer to Question No. 66. The findings of the High Court raise a question of great importance to the student companymunity. Normally, one would be inclined to the view, especially if one has been a paper setter and an examiner, that the key answer furnished by the paper setter and accepted by the University as companyrect, should number be allowed to be challenged. One way of achieving it is number to publish the key answer at all. If the University had number published the key answer along with the result of the test, numbercontroversy would have arisen in this case. But that is number a companyrect way of looking at these matters which involve the future of hundreds of students who are aspirants for admission to professional companyrses. If the key answer were kept secret in this case, the remedy would have been worse than the disease because, so many students would have had to suffer the injustice in silence. The publication of the key answer has unravelled an unhappy state of affairs to which the University and the State Government must find a solution. Their sense of fairness in publishing the key answer has given them an opportunity to have a closer look at the system of examinations which they companyduct. What has failed is number the companyputer but the human system. Shri Kacker, who appears on behalf of the University, companytended that numberchallenge should be allowed to be made to the companyrectness of a key answer unless, on the face of it, it is wrong. We agree that the key-answer should be assumed to be companyrect unless it is proved to be wrong and that it should number be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as numberreasonable body of men well-versed in the particular subject would regard as companyrect. The companytention of the University is falsified in this case by a large number of acknowledged text-books, which are companymonly read by students in U.P. Those text-books leave numberroom for doubt that the answer given by the students is companyrect and the key answer is incorrect. Students who have passed their Intermediate Board Examination are eligible to appear for the entrance Test for admission to the Medical Colleges in U.P. Certain books are prescribed for the Intermediate Board Examination and such knowledge of the subjects as the students have is derived from what is companytained in those text-books. Those text-books support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalise the students for number giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong. If the State Government wants to avoid a recurrence of such lapses, it should companypile under its own auspices a text-book which should be prescribed for students desirous of appearing for the companybined Pre-Medical Test. Education has more than its fair share of politics, which is the bane of our Universities. Numerous problems are bound to arise in the companypilation of such a text-book for, various applicants will companye forward for doing the job and forces and companynterforces will wage a battle on the question as to who should be companymissioned to do the work. If the State can succeed in overcoming those difficulties, the argument will number be open to the students that the answer companytained in the text-book which is prescribed for the test is number the companyrect answer. Secondly, a system should be devised by the State Government for moderating the key answers furnished by the paper setters. Thirdly, if English questions have to be translated into Hindi, it is number enough to appoint an expert in the Hindi language as a translator. The translator must know the meaning of the scientific terminology and the art of translation. Fourthly, in a system of Multiple Choice Objective-type test, care must be taken to see that questions having an ambiguous import are number set in the papers. That kind of system of examination involves merely the tick-marking of the companyrect answer. It leaves numberscope for reasoning or argument. The answer is yes or number That is why the questions have to be clear and unequivocal. Lastly, if the attention of the University is drawn to any defect in a key answer or any ambiguity in a question set in the examination, prompt and timely decision must be taken by the University to declare that the suspect question will be excluded from the paper and numbermarks assigned to it. There was some argument before us as to the nature of the relief which can be granted to the respondents. It was companytended by Smt. Dixit, who appears on behalf of the State of U.P., that six of the respondents have been already admitted to the B.D.S. Course and, therefore, they should number number be admitted to the M.B.B.S. companyrse. We cannot accept this submission since, those students sought admission to the Dental companyrse only because they were number admitted to the B.B.S. companyrse. And they were denied admission to the B.B.S. companyrse wrongly. Twenty-seven students in all were companycerned with these proceedings, out of whom 8 were admitted to the B.D.S. companyrse, 3 were admitted to the M.B.B.S. companyrse last year itself in place of the students who dropped out and 5 have succeeded in getting admission this year. Omitting 8 of the respondents who have been already admitted to the M.B.B.S. companyrse, the remaining 19 shall have to be given admission as directed by the High Court. If the key answer was number wrong as it has turned out to be, they would have succeeded in getting admission. In view of the findings of the High Court, the question naturally arose as to how the marks were to be allotted to the respondents for the three questions answered by them and which were wrongly assessed by the University. The High Court has held that the respondents would be entitled to be given 3 marks for each of the questions companyrectly ticked by them, and in addition they would be entitled to 1 mark for those very questions, since 1 mark was deducted from their total for each of the questions wrongly answered by them. Putting it briefly, such of the respondents as are found to have attempted the three questions or any of them would be entitled to an addition of 4 marks per question. If the answer-books are reassessed in accordance with this formula, the respondents would be entitled to be admitted to the M.B.B.S. companyrse, about which there is numberdispute. Accordingly, we companyfirm the directions given by the High Court in regard to the reassessment of the particular questions and the admission of the respondents to the M.B.B.S. companyrse. There is one student, Miss Reeta Gupta, whose grievance is that if she is given additional marks as directed by the High Court, her place will go higher up in the merit list, as a companysequence whereof she would be eligible for admission to the Medical College situated in her place of residence. Smt. Dixit says that Miss Gupta should apply to the Government in this behalf and the Government companyld companysider her application. We do number think that there is any justification for us to interfere with the order passed by the High Court on this score also. We understand that some petitions are pending in the High Court on these very points. Those petitions will be disposed of by the High Court in the light of this judgment, provided that the petitioners therein make out a case for interference as the students in these appeals have done. We however, direct that numberfresh petitions should be entertained by the High Court and, of companyrse, numbere will be entertained by us hereafter on the questions involved in these appeals arising out of the test which was held in 1982. The new academic session is due to companymence within the next few days and these questions cannot be allowed to be raised in a leisurely fashion so as to disorganise the scheme of fresh admissions. In the result, these appeals are dismissed with companyts.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 30 of 1951. Appeal from the Judgment and Order of the High Court of Calcutta HARRIES C.J. and LAHIRI J. dated 15th June, 1950, in Criminal Appeal No. 71 of 1950 and Revision No. 295 of 1950. N. Mukherjee, for the appellant. Sen, for the respondent. 1951. December 14. The Judgment of the Court was delivered by FAZL ALI J.--This is an appeal against the judgment of the High Court at Calcutta upholding the order of the Sessions Judge of Midnapore companyvicting the appellant under section 326 of the Indian Penal Code and sentencing him to 3 years rigorous imprisonment. The prosecution case against the appellant may be shortly stated as follows--The appellant and the injured person, Kurnad Patra, are first companysins, and they live in a village called Andaria, their houses being only 3 or 4 cubits apart from each other. They had a dispute about a pathway adjoining their houses, which led to a tank, and they quarrelled about it on the 11th July, 1949. Two days later, on the lath July, when Kumad Patra was washing his hands at the brink of the village tank, the appellant came from behind and inflicted on him 17 injuries. with the result that two of his fingers had to be amputated and a piece of bone had to be extracted from his left thumb. The police being informed, started investigation and submitted a charge-sheet against the appellant who was finally companymitted to the Court of Sessions and tried by the Sessions Judge and a jury. He was charged under section 307 of the Indian Penal Code, but the jury returned a verdict of guilty against him under section 326 of the Penal Code, and the learned Sessions Judge accepting the verdict companyvicted him under that section as aforesaid. When the matter came up in appeal to the High Court, a rule was issued on the appellant calling upon him to show cause why his sentence should number be enhanced, but, at the final hearing, the rule was discharged, his appeal was dismissed, and his companyviction and the original sentence were upheld. The first point urged on behalf of the appellant before us is that, inasmuch as there was numbercharge under section 326 of the Penal Code and the offence under that section was number a minor offence with reference to an offence under section 307 of the Code, he companyld number have been companyvicted under the former section. This argument however overlooks the provisions of section 237 of the Criminal Procedure Code. That section, after referring to section 236 which provides that alternative charges may be drawn up against an accused person where it is doubtful which of several offences the facts which can be proved will companystitute, states as follows -- If the accused is charged with one offence, and it appears in evidence that he companymitted a different offence for which he might have been charged under the provisions of that section, he may be companyvicted of the offence which he is shown to have companymitted, although he was number charged with it. There can be numberdoubt that on the facts of this case, it was open to the Sessions Judge to charge the appellant alternatively under sections 307 and 326 of the Penal Code. The case therefore clearly falls under section 237 of the Criminal Procedure Code and the appellants companyviction under section 326 of the Penal Code was proper even in the absence of a charge. In Begu v. The King Emperor 1 the Privy Council had to deal with a case where certain persons were charged under section 302 of the Penal Code, but were companyvicted under section 201 for causing the disappearance of evidence. Their Lordships upheld the companyviction, and while referring to section 237 of the Criminal Procedure Code, they observed-- A man may be companyvicted of an offence, although there has been numbercharge in respect of it, if the evidence is such as to establish a charge that might have 1 1925 52 I.A. 191, been made Their Lordships entertain numberdoubt that the procedure was a proper procedure and one warranted by the Code of Criminal Procedure. The second point urged on behalf of the appellant is that the High Court having issued a rule for the enhancement of the sentence, he should have been allowed to argue the merits of the case which he was number allowed to do. The learned companynsel for the appellant was number, however, able to show that even if it was open to him to argue on the merits of the case the decision would have been otherwise. Only three companytentions were put forward by him, these being -- 1 that several material witnesses were number examined 2. that the appellants case was number placed before the jury in a fair manner and 3 that there was numberproper examination of the appellant under section 342 of the Criminal Procedure Code. We have examined these companytentions and find that they are entirely without merit. In urging his first companytention, the learned companynsel stated that though it was admitted that several persons have got houses to the east, numberth and numberth-west of the tank where the occurrence is alleged to have taken place, they have number been examined by the prosecution. He further argued that one Sarat Chandra Ghose, who was present at the house of the accused when it was searched, has also number been examined. These arguments however have very little force, since there is numberevidence to show that those persons had seen the occurrence, an d they also do number take numbere of the fact that such evidence as has been adduced by the prosecution, if believed, was sufficient to support the companyviction of the appellant. The Sessions Judge in his charge to the jury referred specifically to the very argument urged before us, and he told the jurors that if they thought it fit it was open to them to draw an inference against the prosecution. There can be numberdoubt that the jurors were properly directed on the point and they evidently thought that the evidence before them was sufficient for companyvicting the appellant. The second companytention urged on behalf of the appellant relates to his defence, which, briefly stated, was that Kumad Patra, the injured man, entered his house during his temporary absence, went to the bedroom of his wife, who was a young lady, and companymitted indecent assault on her and was assaulted in these circumstances. This story was number supported by any evidence but was merely suggested in crossexamination, and the Sessions Judge while referring to it in his charge to the jury, observed-- If I were left alone, I would number have believed the defence version. But you are number bound to accept my opinion, number you should be influenced by it It is for you to decide whether you will accept the defence suggestion in favour of which there is numbersuch positive evidence. The Sessions Judge undoubtedly expressed himself somewhat strongly with regard to the defence suggestion, but he companypled his observations, which we think he was entitled to make, with an adequate warning to the jurors that they were number bound to accept his opinion and should number be influenced by it. The defence version was rejected by the jury, and there can be numberdoubt that on the materials on the record it would have been rejected by any companyrt of fact. The last companytention put forward by the learned companynsel for the appellant was that he was number examined as required by law under section 342 of the Criminal Procedure Code. It appears that three questions ware put to the appellant by the Sessions Judge after the companyclusion of the prosecution evidence. In the first question, the Sessions Judge asked the appellant what his defence was as to the evidence adduced, against him in the second question, the Judge referred to the dispute about the pathway and asked the appellant whether he had inflicted injuries on Kumad Patra and in the third question, the appellant was asked. whether he would adduce any evidence. The facts of the case being free from any companyplications and the points in issue being simple, we find it difficult to hold that the examination of the appellant in this particular case was number adequate.

2000 Supp 3 SCR 513 with Nos. 6335, 6337-44, 6336, 6345, 6348, 6346, 6349, 6319-30, 6347, 6318, 6333-34, 6331-32, 7215-18, 7546 of 1997 From the Judgment and Order dated 12-12-1996 of the Andhra Pradesh High Court in WP No. 19274 of 1994 , 1098-1100 of 1998, 6616 of 1997 and 5591 of 2000, decided on September 28, 2000. The Judgment was delivered by D. P. MOHAPATRA, J. P. MOHAPATRA, J. - Leave granted in SLP C No. 12499 of 1997. The companytroversy raised in all these appeals relates to validity of the revision of licence fee under the Andhra Pradesh Factories Rules, 1950 hereinafter referred to as the Rules which was introduced by the State Government by GOMs No. 154, E and F Department, dated 26-7-1994. Since companymon questions of fact and law are involved in the cases, they were heard together and they are being disposed of by this companymon judgment. The appellants who are owners of factories located in the State of Andhra Pradesh challenged the levy of revised licence fee by filing writ petitions before the High Court of Andhra Pradesh. The challenge was on several grounds some of which are number relevant for the purpose of the present proceedings. Suffice it to state that the main grounds on which the revised licence fee was challenged were that the Factories Act, 1948 hereinafter referred to as the Act does number impose licence fee as there is numbercharging section that the fee imposed amounts to a fee on production of goods and therefore it is a tax. The State has numberpower to levy the tax that the Rules or the Act do number provide any criteria or guidelines for fixation of the licence fee that companylection of exorbitant fee to meet the State budget is a companyourable exercise of power so there is legal mala fide in enhancing the licence fee that the State has numberpower to impose or enhance the licence fee for any alleged services rendered or proposed to be rendered under other legislations other than the Act, as the power is delegated under the Act only that the proposed strengthening of the Department and additional activities which are to be approved by the State Government cannot be a ground for revising the licence fee prior to increasing such expenditure. The proposal of strengthening the Department is with reference to other enactments also and vii the classification shown in the Schedule to Rule 5 itself shows that the classification is discriminatory and unreasonable. So it is violative of Article 14 of the Constitution of India. In the companynter-affidavit filed on behalf of the respondents the stand taken was that the fee is companypensatory in nature. It was averred in companynteraffidavit inter alia that due to progressive policies of the Government there is a tremendous growth of activity in the State besides the phenomenal growth of number of factories, companyplexity of problems which are brought by the hazardous major factories is multifaceted, thus the problems to be tackled by the Factories Department have become more multifarious and companyplex. Setting out the various types of jobs handled by the Factories Inspectorate it was stated in the companynter-affidavit that at present there are about 26, 650 factories in the State and 39 Inspectors of Factories in the field. It is further averred in the affidavit that the Factories Department is a statute-enforcing Department for ensuring safety, health and welfare of industrial workers. It is also stated in the companynter-affidavit that the Department proposes to intensify the activities by strengthening and better equipping the Department from the additional licence fee. It is also stated in the companynter-affidavit that the Department number only issues licences but also undertakes statutory inspections, safety training programmes, etc., for better companypliance of various statutory provisions to ensure safety in the industries and in order to companycentrate and better monitor these major industries to prevent occurrence of accidents resulting in loss of lives and limbs of workers and loss of properties of the factory, it is essential that the Factories Department should strengthen itself by augmenting its resources and hence the amendment of existing licence fee schedule. Therefore, it was the companytention of the respondent that this should number be companystrued as a tax for the purpose of raising revenue.In the judgment under challenge the High Court formulated the following points for companysideration Whether the fee to be charged under the impugned GO amounts to tax or fee ? Whether the fee levied has got any quid pro quo ? Whether it is exproprietory or exorbitant and if so whether it amounts to tax, but number fee ? Whether the impugned GO is arbitrary and discriminatory as numberguidelines are provided in the Act ? Whether there is a delegation of power by Parliament to the State Government and the same is excessive, unguided and in violation of the provisions of the Constitution of India ? The High Court observed the first and foremost point to be companysidered in this batch of writ petitions is - whether the fee levied amounts to tax After discussing in detail the legal positions with reference to several decisions of this Court, the High Court summed up its companyclusion on the point in the following words We can safely say that the distinction between a tax and a fee lies primarily in the fact that a tax is imposed for public purposes and is number, and need number be supported by any companysideration of service rendered in return whereas a fee is levied essentially for services rendered and as such there is an element of quid pro quo between the person who pays the fee and the public authority which imposes it. Thus in fees there is always an element of quid pro quo, which is absent in a tax. Testing the facts of the case in the light of the principles numbered above, the High Court came to the companyclusion that since the major part of the amount received as licence fee is spent for the services rendered to the factories and the persons working therein, and since there is a nexus between the licence fee and the services rendered it cannot be said that the levy is a tax and number a fee. The High Court recorded the finding that the facts and circumstances mentioned in the companynter-affidavit clinchingly establish that the Government is rendering services to the factories as provided under the Act and also other Acts where obligation is imposed on the Inspector of Factories, and therefore, the companytention raised on behalf of the petitioners that there is numberquid pro quo in the fee companylected and the services rendered by the Department is number tenable. The High Court also repelled the companytention raised on behalf of the petitioners that the impugned Government Order is arbitrary and discriminatory as there is numberguideline provided under Section 6 of the Act. The companytention that the classification of the factories for the purpose of levy of licence fee based on installed horsepower and number of workmen employed in the industry is arbitrary, was also rejected by the High Court as without any substance. On these findings all the writ petitions were dismissed. The writ petitioners have filed these appeals challenging the companymon judgment passed by the High Court dismissing the writ petitions.The main thrust of the submissions of learned companynsel appearing for the appellants was that the enhancement of the licence fee from Rs. 10, 000 to Rs. 18, 00, 000 maximum rates is arbitrary, grossly high and has numbercorrelation with the services rendered or proposed to be rendered by the respondents to the holders of the licence. It was the further submission of the learned companynsel that since the licence fee in question is a fee and number a tax it has to satisfy the principle of quid pro quo for its validity and sustainability on the facts emerging from the pleadings of the parties, particularly the companynter-affidavit filed by the respondents, the principle of quid pro quo is number at all satisfied in the case. Therefore, submitted the learned companynsel, the amended rule in which was introduced the revised set of licence fee should have been struck down as invalid and inoperative and the High Court erred in dismissing the writ petitions. The learned companynsel appearing for the respondents, on the other hand supported the judgment of the High Court. He companytended that the quantum of fee companylected has a nexus with the services rendered by the Department of the State Government in charge of enforcement of different laws governing factories in the State and keeping in view the large number of industrial units, particularly heavy industries which have companye up in the State, the workload of the Directorate of Factories and the administrative department of the State Government has increased manifold requiring expansion of their establishments. In the circumstances submitted the learned companynsel, the principle of quid pro quo is squarely companyplied with in the case. Before discussing the merits of the companytentions raised on behalf of the parties we may clarify the position that it was number the case of the appellants that the State Government has numberpower to levy the licence fee in question. It was also number companytended on their behalf that the levy suffers from any other illegality or infirmity except the number-compliance with the principle of quid pro quo.On the companytentions raised on behalf of the parties as numbered above the question that arises for determination is whether the enhancement of licence fee under the Act is hit by the principle of quid pro quo. For answering the question it is necessary to find out whether the element of quid pro quo is applicable to the levy in question and if so, whether a reasonable companyelation between the quantum of fee and services rendered is established on the materials on record. Taking up the first question it is necessary to ascertain the nature of the licence fee under the Act is it obligatory in character or is it a levy in lieu of some special services rendered to the payer of the fee. Section 6 1 d of the Act provides that the State Government may make rules requiring the registration of licensing of factories or any class or description of factories, and prescribing the facts payable for such registration and licensing and for the renewal of licences. The section reads Approval, licensing and registration of factories. - 1 The State Government may make rules - d requiring the registration and licensing of factories or any class or description of factories, and prescribing the fees payable for such registration and licensing and for the renewal of licences. Chapter II Sections 8 to 10 of the Act companytains the provisions regarding the inspecting staff and the powers companyferred on them. In Chapter III Sections 11 to 20 are included the provisions relating to health on the premises of a factory. Similarly in Chapter IV Sections 21 to 41 are incorporated the provisions regarding safety of the buildings and machineries. In Chapter IV-A Sections 41-A to 41-H are included provisions relating to hazardous processes. In Chapter V Sections 42 to 50 the provisions regarding welfare of the persons working on the factory premises are companytained. Chapter VI Sections 51 to 66 companytains the provisions regarding working hours of adult workmen. Chapter VII Sections 67 to 77 deals with provisions regarding employment of young persons. Chapter VIII Sections 78 to 84 deals with annual leave with wages of the workers of factories. Chapter IX Sections 85 to 91-A companytains the special provisions dealing with the matters provided therein. In Chapter X Sections 92 to 106-A are included the provisions regarding penalties for offences under the Act and in Chapter XI Sections 107 to 120 are included the supplemental provisions like Section 107 - appeals, Section 111 - obligations of workers, Section 111-A - rights of workers, Section 112 - general power to make rules, etc. In Section 112 of the Act it is laid down that the State Government may make rules providing for any matter which, under any of the provisions of the Act, is to be or may be prescribed or which may be companysidered expedient in order to give effect to the purposes of this Act.The Andhra Pradesh Factories Rules, 1950 were framed in exercise of the power companyferred under Section 112 of the Act. In Rule 4 thereof it is laid down that the occupier of every factory shall submit to the Inspector an application in the prescribed Form 2 in duplicate for registration of the factory and the grant of licence thereof. In Rule 5 in which provisions are made for grant of licence it is laid down in sub-rule 3 that an occupier shall number use any premises as a factory or carry on any manufacturing process in a factory unless a licence has been issued in respect of such premises and is in force for the time being, provided, that, if a valid application for grant of licence has been submitted and the required fee has been paid, the premises shall be deemed to be fully licensed until such date as the Inspector grants or renews the licence or refuses in writing to grant or renew the licence. In the Schedule to this Rule the different amounts of licence fee to be paid by the applicant depending on the installed horsepower and the number of persons employed in the factory are set out. In Rule 7 provision is made regarding renewal of licences in sub-rule 3 thereof it is laid down inter alia that some fee shall be charged for the renewal of licenses as for the grant thereof. In Rule 11 the mode and manner of demand of fee is laid down. In sub-rule 1 of the said Rule it is laid down inter alia that every application under these Rules shall be accompanied by a treasury receipt showing that the appropriate fee has been paid into the local treasury under the appropriate head of account provided that the appropriate fee may alternatively be paid by a crossed cheque or a bank draft drawn on any nationalised bank in favour of Inspector of Factories in whose jurisdiction the factory is situated.In sub-rule 2 of the said Rule provision for refund of fee paid by the applicant in case his application for grant renew transfer or amendment of licence is rejected, is made. In sub-rule 3 of Rule 11 is provided that if the Chief Inspector is satisfied that a factory has number worked even on a single day during the period of licence, he may order the refund of the licence fee companylected for that period. From the provisions of the Act and the provisions of the Rules relating to grant of licence it is clear that the licence fee in this case is a regulatory fee and number a fee for any special services rendered. Indeed there is numbermention of any special service to be rendered to the payer of the licence fee in the provisions. The purpose of the licence is to enable the authorities to supervise, regulate and monitor the activities relating to factories with a view to secure proper enforcement of the provisions. From the nature of the provisions it is clear that for proper enforcement of the statutory provisions persons possessing companysiderable experience and expertise are required. The question is whether the element of quid pro quo as it is understood in companymon legal parlance is applicable to a regulatory fee as in the present case. Before adverting to that question it will be helpful to numberice a few decisions in which the question has been companysidered and decision regarding applicability or otherwise of the principle has been taken. The point has been dealt with in umpteen cases, but we propose to numberice only a few of them. In the case of Commr., H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1954 AIR SC 282 1954 SCR 1005 which is companymonly referred to as Shirur Mutt case 1954 AIR SC 282 1954 SCR 1005 a Constitution Bench of this Court bringing out a distinction between a tax and other forms of impositions made the following observations A neat definition of what tax means has been given by Latha, C.J. of the High Court of Australia in Matthews v. Chicory Marketing Board 1938 60 CLR 263 . A tax, according to the learned Chief Justice, is a companypulsory exaction of money by public authority for public purposes enforceable by law and is number payment for services rendered. This definition brings out, in our opinion, the essential characteristics of a tax as distinguished from other forms of imposition which, in a general sense, are included within it. It is said that the essence of taxation is companypulsion, that is to say, it is imposed under statutory power without the taxpayers companysent and the payment is enforced by law The second characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be companyferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue, which when companylected forms part of the public revenues of the State. As the object of a tax is number to companyfer any special benefit upon any particular individual, there is, as it is said, numberelement of quid pro quo between the taxpayer and the public authority Another feature of taxation is that as it is a part of the companymon burden, the quantum of imposition upon the taxpayer depends generally upon his capacity to pay. Coming number to fees, a fee is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the companyts are arbitrarily assessed. Ordinarily, the fees are uniform and numberaccount is taken of the varying abilities of different recipients to pay These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is number possible to formulate a definition that would be applicable to all cases. In Sreenivasa General Traders v. State of A.P. 1983 4 SCC 353 1983 SCR 843 a Bench of three learned Judges of this Court companysidered the validity of the levy of market fee and the enhancement of its rate under the provisions of the Andhra Pradesh Agricultural Produce and Livestock Market Act, 1966. Bringing out the companyceptual distinction between tax and fee the Court observed The traditional view that there must be actual quid pro quo for a fee has undergone a sea change. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a companymon burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary motive of regulation in public interest. If the element of revenue for general purpose of the State predominates, the levy become a tax. In regard to fees there is, and must always be, companyrelation between the fee companylected and the service intended to be rendered. In determining whether a levy is a fee or a tax, the true test must be whether its primary and essential purpose is to render specific services to a specified area or class it may be of numberconsequence that the State may ultimately and indirectly be benefited by it. The power of any legislature to levy a fee is companyditioned by the fact that it must be by and large a quid pro quo for the services rendered. However, companyrelationship between the levy and the services rendered is one of general character and number of mathematical exactitude. All that is necessary is that there should be a reasonable relationship between levy of the fee and the service rendered. There is numbergeneric difference between a tax and a fee both are companypulsory exactions of money by public authorities. Compulsion lies in the fact that payment is enforceable by law against a person in spite of his unwillingness or want of companysent. A levy in the nature of fee does number cease to be of that character merely because there is an element of companypulsion or companyrciveness present in it, number is it a postulate of a fee that it must have direct relation to the actual service rendered by the authority to each individual who obtains the benefit of the service. It is number increasingly realized that merely because the companylections for the services rendered or for grant of a privilege or licence are taken to the companysolidated fund of the State and number separately appropriated towards the expenditure for rendering the service is number by itself decisive. Presumably, the attention of the Court in the Shirur Mutt case 1954 AIR SC 282 1954 SCR 1005 was number drawn to Article 266 of the Constitution. The Constitution numberhere companytemplates it to be an essential element of fee that it should be credited to a separate fund and number to the companysolidated fund. The element of quid pro quo in the strict sense is number always a sine qua number for a fee. The element of quid pro quo is number necessarily absent in every tax. It is number always possible to work out with mathematical precision the amount of fee required for the services to be rendered each year and to companylect only just that amount which is sufficient for meeting the expenditure in that year. In some years, the income of a market companymittee by way of market fee and licence fee may exceed the expenditure and in another year when the development works are in progress for providing modern infrastructure facilities, the expenditure may be far in excess of the income. It is wrong to take only one particular year or a few years into companysideration to decide whether the fee is companymensurate with the services rendered. An overall picture has to be taken in dealing with the question whether there is quid pro quo i.e. there is companyrelation between the increase in the rate of fee from 50 paise to rupee one and the services rendered. In Corpn. of Calcutta v. Liberty Cinema 1965 AIR SC 1107 1965 2 SCR 477 a Constitution Bench of this Court by majority upheld the levy of licence fee under Section 413 read with Section 548 of the Calcutta Municipal Act, 1951. Therein this Court observed that in our Constitution fee for licence and fee for services rendered are companytemplated as different kinds of levy. The former is number intended to be a fee for services rendered this is apparent from a companysideration of Articles 110 2 and 199 2 where both the expressions are used indicating thereby that they are number the same. Referring to the judgment in George Walkem Shannon v. Lower Mainland Dairy Products Board 1938 A.C. 708 107 L.J. P.C. 115 1939 AIR PC 36 PC this Court quoted with approval the observation that If licences are granted it appears to be numberobjection that fees should be charged in order either to defray the companyts of administering the local regulation or to increase the general funds of the Province or for both purposes. It cannot, as their Lordships think, be an objection to a licence plus a fee that it is directed both to the regulation of trade and to the provision of revenue. In the case of Delhi Cloth General Mills Co. Ltd. v. Chief Commr., Delhi 1969 3 SCC 925 1970 2 SCR 348 a three-Judge Bench of this Court companysidered the question whether the fee charged for annual renewal of licence to run a factory is in reality a tax or fee and further whether maintenance of Inspectors provides quid pro quo for fee, this Court observed In the return which was filed in the High Court to the writ petition it was stated in paragraph 8 that the fees was being charged for the running of the whole establishment including the Factory Inspectorate which in its turn provides free inspection and expert technical advice etc. to factory owners in matters companynected with safety, health, welfare and the allied matters in respect of companypliance with the provisions of the Factories Act. It has further been stated that in our companyntry matters relating to health, safety, welfare and employment have to be looked after and the desired results have been sought to be achieved by the legislature by providing statutory inspection service. A large number of provisions to which reference has been made, particularly in the chapter dealing with safety, involve a good deal of technical knowledge and in the companyrse of discharge of their duties and obligations the Inspectors are expected to give proper advice and guidance so that there may be due companypliance with the provisions of the Act. It can well be said that on certain occasions factory owners are bound to receive a good deal of benefit by being saved from the companysequences of the working of dangerous machines or employment of such processes as involve danger to human life by being warned at the proper time as to the defective nature of the machinery or of the taking of precautions which are enjoined under the Act. Similarly, if a building or a machinery or a plant is in such a companydition that it is dangerous to human life or safety the Inspector by serving a timely numberice on the manager saves the factory owner from all the companysequences of proper repairs number being done in time to the building or the machinery. Indeed it seems to us that the nature of the work of the Inspector is such that he is to render as much, if number more, service than a Commissioner would, in the matter of supervision, regulation and companytrol over the way in which the management of the trustees of religious and charitable endowment was companyducted. The High Court further found, which finding being of fact, must be companysidered as final, that 60 of the amount of licence fees which were being realized was actually spent on services rendered to the factory owners. It can, therefore, hardly be companytended that the levy of the licence fee was wholly unrelated to the expenditure incurred out of the total realisation .This Court in the case of Vam Organic Chemicals Ltd. v. State of U.P. 1997 2 SCC 715 held that there is a distinction between fees charged for licence i.e. regulatory fees and the fees for services rendered as companypensatory fees. In the case of regulatory fee like the licence fee existence of quid pro quo is number necessary although the fee imposed must number be, in the circumstances of the case, excessive. In support of the view reliance was placed on Corpn. of Calcutta Liberty Cinema 1965 AIR SC 1107 1965 2 SCR 477 . This Court in para 18 of the judgment made the following observations The High Court in the impugned judgment has drawn a distinction between fees charged for licences, i.e., regulatory fees and the fees for services rendered as companypensatory fees. The distinction pointed out by the High Court can be seen in clause 2 of Article 110 110. 2 A Bill shall number be deemed to be a Money Bill by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes. The High Court has quoted from this Courts decision in Corpn. of Calcutta v. Liberty Cinema 1965 AIR SC 1107 1965 2 SCR 477 , which was based on a Privy Council judgment in George Walkem Shannon v. Lower Mainland Dairy Products Board 1938 A.C. 708 107 L.J. P.C. 115 1939 AIR PC 36 PC . This Court said in the Corpn. of Calcutta v. Liberty Cinema 1965 AIR SC 1107 1965 2 SCR 477 In fact, in our Constitution fee for licence and fee for services rendered are companytemplated its different kinds of levy. The former is number intended to be a fee for services rendered. This is apparent from a companysideration of Article 110 2 and Article 199 2 where both the expressions are used indicating thereby that they are number the same.The High Court has taken the view that in the case of regulatory fees, like the licence fees, existence of quid pro quo is number necessary although the fee imposed must number be, in the circumstances of the case, excessive. The High Court further hold that keeping in view the quantum and nature of the work involved in supervising the process of denaturation and the companysequent expenses incurred by the State, the fee of 7 paise per litre was reasonable and proper. We see numberreason to differ with this view of the High Court. A similar view was also taken by this Court in the case of State of Tripura Sudhir Ranjan Nath 1997 3 SCC 665 in which this Court companysidered the validity of levy of application fee for grant of licence under the Tripura Transit Rules. Discussing the question this Court made the following observations in paras 14 and 15 of the judgment We next take up the validity of the levy of application fee and licence fee of Rupees one thousand and Rupees two thousand respectively. In our opinion, the High Court was number right in holding that the said fee amounts to tax on the ground that it has number been proved to be companypensatory in nature. In our opinion, the fee imposed by sub-rules 3 and 4 is a fee within the meaning of clause c of subsection 2 of Section 41. It is regulatory fee and number companypensatory fee. The distinction between companypensatory fee and regulatory fee is well established by several decisions of this Court. Reference may be made to the decision of the Constitution Bench in Corpn. of Calcutta v. Liberty Cinema 1965 AIR SC 1107 1965 2 SCR 477 . It has been held in the said decision that the expression licence fee does number necessarily mean a fee in lieu of services and that in the case of regulatory fees, numberquid pro quo need be established. The following observations may usefully be quoted This companytention is number really open to the respondent for Section 548 does number use the word fee, it uses the words licence fee and those words do number necessarily mean a fee in return for services. In fact in our Constitution fee for licence and fee for services rendered are companytemplated as different kinds of levy. The former is number intended to be a fee for services rendered. This is apparent from a companysideration of Article 110 2 and Article 199 2 where both the expressions are used indicating thereby that they are number the same. In George Walkem Shannon v. Lower Mainland Dairy Products Board 1938 A.C. 708 107 L.J. P.C. 115 1939 AIR PC 36 PC it was observed If licences are granted, it appears to be numberobjection that fees should be charged in order either to defray the companyts of administering the local regulation or to increase the general funds of the Province or for both purposes It cannot, as their Lordships think, be an objection to a licence plus a fee that it is directed both to the regulation of trade and to the provision of revenue. It would, therefore, appear that a provision for the imposition of a licence fee does number necessarily lead to the companyclusion that the fee must be only for services rendered. This decision has been followed in several decisions, including the recent decisions of this Court in Vam Organic Chemicals Ltd. v. State of U.P. 1997 2 SCC 715 and Bihar Distillery v. Union of India 1997 2 SCC 727 . The High Court was, therefore, number right in proceeding on the assumption that every fee must necessarily satisfy the test of quid pro quo and in declaring the fees levied by sub-rules 3 and 4 of Rule 3 as bad on that basis. Since we hold that the fees levied by the said sub-rules is regulatory in nature, the said levy must be held to be valid and companypetent, being fully warranted by Section 41. Taking a similar view this Court in the case of Secunderabad Hyderabad Hotel Owners Assn. v. Hyderabad Municipal Corpn. 1999 2 SCC 274 held that licence fee companylected by municipalities for running a lodging house, hotel, restaurant, companyfee house, tea stall, eating house, soft drink stall, cafeteria, tiffin room, etc. is a fee and number a tax and further that the fee being regulatory existence of an element of quid pro quo is number necessary for levying such fee albeit such fee cannot be excessive. The distinction between the two types of fees, fee which is regulatory and fee for services rendered was expressed by this Court in paras 9 and 12 which are quoted hereunder It is, by number, well settled that a licence fee may be either regulatory or companypensatory. When a fee is charged for rendering specific services, a certain element of quid pro quo must be there between the service rendered and the fee charged so that the licence fee is companymensurate with the companyt of rendering the service although exact arithmetical equivalence is number expected. However, this is number the only kind of fee which can be charged. Licence fees can also be regulatory when the activities for which a licence is given require to be regulated or companytrolled. The fee which is charged for regulation for such activity would be validly classifiable as a fee and number a tax although numberservice is rendered. An element of quid pro quo for the levy of such fees is number required although such fees cannot be excessive. In the present case, however, the fees charged are number just for services rendered but they also have a large element of a regulatory fee levied for the purpose of monitoring the activity of the licensees to ensure that they companyply with the terms and companyditions of the licence. Dealing with such regulatory fees, this Court in Vam Organic Chemicals Ltd. v. State of U.P. 1997 2 SCC 715 observed that in the case of a regulatory fee, numberquid pro quo was necessary but such fee should number be excessive. The same distinction between regulatory and companypensatory fees has been made in the case of P. Kannadasan v. State of T.N. 1996 5 SCC 670 as well as State of Tripura v. Sudhir Ranjan Nath 1997 3 SCC 665 . From the companyspectus of the views taken in the decided cases numbered above it is clear that the impugned licence fee is regulatory in character. Therefore, stricto sensu the element of quid pro quo does number apply in the case. The question to be companysidered is if there is a reasonable companyrelation between the levy of the licence fee and the purpose for which the provisions of the Act and the Rules have been enacted framed. As numbered earlier, the High Court has answered the question in the affirmative. We have carefully examined the provisions of the Act and the Rules and also the pleadings of the parties. We find that the High Court has given companyent and valid reasons for the findings recorded by it and the said findings do number suffer from any serious illegality. It is our companysidered view that the licence fee has companyrelation with the purpose for which the statute and the rules have been enacted. The question that remains to be companysidered is whether the enhanced licence fee under challenge is grossly high and excessive, and therefore, arbitrary. On a first look it appeared to us that the enhancement from Rs. 10, 000 to Rs. 18, 00, 000 maximum , was too high. We also did number find any material on record to show that there was justification for the enhancement of the fee to the extent prescribed. There was also numbermaterial on record to show existence of companyrelation between the expenditure incurred by the Government for enforcement of the Act and the Rules and the enhanced levy. We therefore inquired from the learned companynsel appearing for the Government of A.P. whether the State Government is prepared to reconsider the matter and take a fresh decision regarding the extent to which the licence fee should be enhanced. In response to the query the learned companynsel has filed a companyy of the companymunication bearing Lr. No. 453/Lab.II A-3/97 dated 07-07-2000 issued by the Government of A.P. in Labour Employment Training and Factories Lab-II Department in which it is stated that some decisions have been taken regarding revision of the licence fee particularly the maximum licence fee renewal fee to be levied on factories using power of 20, 000 HP and engaging 20, 000 workers and above, shall be limited to Rs. 2.5 lakhs per annum as against the present limit of Rs.

ASHOK BHUSHAN, J. Leave granted. This appeal has been filed against judgment dated 08.07.2014 of High Court of Karnataka in Civil Revision No. 219 of 2014. The Civil Revision was filed by the appellants against the judgment and order dated 27th May, 2014 of vacation District Judge, Mangalore in Original Suit No. 5 of 2014 filed by the appellants plaintiffs. In the Suit, I.A. No. IV was filed by the defendants respondents under Section 8 1 of Arbitration and Conciliation Act, 1996, relying on arbitration agreement in retirement deed dated 25.07.2005 hereinafter referred to as retirement deed as well as in the partnership deed dated 05.04.2006 hereinafter referred to as partnership deed . Learned District Judge has allowed the application filed by the defendant under Section 8 1 of 1996 Act. Parties to the suit were referred to the arbitration to settle the dispute as per arbitration agreement. The High Court wide impugned judgment has affirmed the order of Trial Court with observation that parties can press for an early trial. The Revision Petition was disposed of accordingly. Aggrieved against the judgment of High Court, the appellants plaintiffs have filed this appeal. The brief facts necessary to be numbered for deciding this appeal are Late Ramabhakta had started a business of manufacture and sales of Beedi under the name M s Neo Subhash Beedi Works. After his demise, his six sons, namely, late M. Narasimha Bhakta, late M. Subhaschandra Bhakta, late M. Prakashchandra Bhakta, late M. Ganesh Bhakta, late M. Gangadhar Bhakta and late M. Ashok Bhakta, companystituted the partnership firm. M. Narsimha Bhakta retired from the firm as per the release deed dated 30.06.1986 and the remaining partners companytinued with the firm. M.Prakashchandra Bhakta died on 20.03.1995 and as per his Will, his minor son Master M. Vinayaka Bhakta was admitted to the partnership as per partnership deed dated 21.03.1995. On 06.03.1997, Subhaschandra Bhakta died and his LRs, namely Defendant Nos. 1 to 4 became partners. Ashok Bhakta died on 18.09.2001. The first plaintiff is son of late Ashok Bhakta. On 25.07.2005, retirement deed was executed in which Defendant Nos. 1 to 4 were stated to have retired from partnership. The partnership deed dated 05.04.2006 was entered between late M. Gangadhar Bhakta, M. Vinayaka Bhakta, Defendant No. 5 and M. Vipin Bhakta S o late M. Ganesh Bhakta and Master M. Anantesh Bhakta,1st Plaintiff. M.Gangadhar Bhakta expired and his estate is represented by the Plaintiff Nos. 2 3. The suit for partition was filed by M. Prakaschandra Bhakta and others against M. Subhaschandra Bhakta and others, being O.S. NO. 4 of 1985. The preliminary decree was passed on 31.07.1986. M. Subhaschandra Bhakta and others filed FDP No. 24 of 1992 for preparation of final decree in which the companypromise petition dated 04.04.1994 was filed and companypromise decree was passed on 05.04.1994. As per the companypromise decree, Item No. 1 of A schedule property was allotted to M. Subhaschandra Bhakta and Item No. 2 was allotted to M. Prakashchandra Bhakta. An agreement to sale dated 19.04.1993 was executed by M. Prakashchandra Bhakta in favour of partnership firm. Similar agreement to sell dated 19.04.1993 was also executed by M.Subhaschandra Bhakta in favour of firm. A Suit No. 5 of 2014 was filed by three Plaintiffs appellants against six Defendants who are Respondent Nos. 1 to 6 in this appeal praying for permanent prohibitory injunction restraining the Defendants or anyone claiming through them for transferring or alienating A schedule property. Further, the permanent prohibitory injunction was sought against the Defendant regarding possession and enjoyment of property by Plaintiff. The Defendant had filed I.A.No.IV under Section 8 1 of Arbitration and Conciliation Act, 1996 hereinafter referred to as Act on 09.05.2014, praying to pass an order referring the parties to the arbitration for adjudication of the disputes raised by the Plaintiff in the Suit. The application was number accompanied by retirement deed and partnership deed. On 12.05.2014, the original retirement deed and the partnership deed were produced by the Defendant along with the list. The companynter affidavit to the application I.A. No. IV was also filed by the Plaintiff. The Learned District Judge heard the I.A.No.IV as well as the objections raised by the Plaintiff and by an order dated 27.05.2014, pass the following order A.No. IV filed under Section 8 1 of the Arbitration and Conciliation Act, 1996 by the defendants is allowed. The parties to the suit are referred to the Arbitration to settle their disputes and differences, in view of the Arbitration Agreement. The suit of the plaintiffs stands disposed off accordingly. Learned Counsel appearing for appellants in support of this appeal raised following submissions The application I.A.No.IV of 2014 praying for referring the matter to arbitration was number accompanied by the original retirement deed dated 25.07.2005 and partnership deed dated 05.04.2006, hence the application was liable to be dismissed under Section 8 2 and Learned District Judge companymitted error in allowing the application. According to Section 8 2 of the Act, it is mandatory to file the original arbitration agreement or a duly certified companyy thereof along with the application seeking reference to the arbitration. All the parties to the suit were number parties to the arbitration agreement as claimed in retirement deed and partnership deed. Hence, dispute companyld number have been refereed to the arbitrator. The firm being an unregistered firm, numberreference to the arbitration can be made with regard to the dispute relating to unregistered firm. Learned companynsel appearing for respondents have refuted the submissions and companytends that Learned District Judge after companysidering all aspects of the matter have rightly made the reference to the arbitrator. It is submitted that there was clear arbitration agreement in the retirement deed as well as in the partnership deed as has been numbered by District Judge and the suit companyld number have proceeded. All the Plaintiffs as well as Defendant Nos. 1 to 4 and Defendant No. 5 were parties to the arbitration agreement either personally or claiming through the person who was party to the agreement. The Defendant No. 6 has number inherited any right in the partnership firm and was unnecessarily impleaded by the Plaintiff. Mere presence of Defendant No.6 as one of the Defendants does number preclude the implementation of arbitration agreement. With regard to number-filing of retirement deed and partnership deed along with application I.A.No. IV of 2014, two submissions have been raised. Firstly, it is companytended that the Plaintiff themselves has filed both retirement deed and partnership deed along with the list of documents and having admitted both retirement deed and partnership deed, number-filing along with the application I.A.No. IV was inconsequential. Secondly, the Defendant themselves immediately after three days of filing their I.A.No. IV of 2014 had filed the original retirement deed and partnership deed on 12.05.2014 and at the time the matter was companysidered by District Judge, original deeds were on the record. Hence, the application I.A.No. IV was number liable to be rejected on this ground. There is numbersuch provision which prohibits the adjudication of dispute by arbitration regarding an unregistered partnership firm. We have companysidered the submissions of learned companynsel for the parties and perused the records. From the pleadings on records and submissions made, following three issues arises for companysideration Whether number-filing of either original or certified companyy of retirement deed and partnership deed along with application I.A.No. IV dated 09.05.2014 entailed dismissal of the application as per section 8 2 of 1996 Act. Whether the fact that all the parties to the suit being number parties to the retirement deed partnership deed, the Court was number entitled to make the reference relying on arbitration agreement. Whether dispute pertaining to unregistered partnership deed cannot be referred to an arbitration despite there being arbitration agreement in the deed of retirement partnership deed. ISSUE NO. 1 Two facts which emerged from record in this respect need to be numbered. Firstly, the plaintiffs in their plaint of O.S.No. 5 of 2014 have referred to and admitted the retirement deed dated 25.07.2005 and partnership deed dated 05.04.2006 in para 5 of the plaint. The plaintiffs themselves have filed the photocopies of deed of retirement dated 25.07.2005 as the document number 6 in the list and photocopies of partnership deed dated 05.042006 as document number 7 as have been numbered in para 23 of the District Judge judgment. Further, although initially the application filed by Defendant A.No. IV dated 09.05.2014 was number accompanied by companyy of retirement deed and partnership deed. The Defendant on 12.05.2014 filed the original retirement deed and partnership deed along with the list. It is useful to numbere the findings recorded by District Judge in the above companytext in paragraph 39 which is to the following effect The materials on record clearly goes to show that I.A.No. IV was filed by the defendants on 09.05.2014. It is true that the application was number accompanied by the Retirement Deed and the Partnership Deed either the originals or the certified companyies. On 12.05.2014 the original Retirement Deed and the Partnership Deed were produced by the defendants along with the list. Section 8 which falls for companysideration in the present case provides as follows Power to refer parties to arbitration where there is an arbitration agreement- A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies number later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. The application referred to in sub-section 1 shall number be entertained unless it is accompanied by the original arbitration agreement or a duly certified companyy thereof. Notwithstanding that an application has been made under sub-section 1 and that the issue is pending before the judicial authority, an arbitration may be companymenced or companytinued and an arbitral award made. The appellants submit that sub-section 2 of Section 8 provides that the application referred to in sub-section 1 shall number be entertained unless it is accompanied by the original arbitration agreement or a duly certified companyy thereof. They submit that admittedly with the application I.A.No. IV filed on 09.05.2014, original or certified companyy of the Retirement Deed and Partnership Deed was number filed. Learned Counsel to the appellants also placed reliance on a judgment of this companyrt reported in 2008 2 SCC 602, Atul Singh Othes Vs. Sunil Kumar Singh Others. In the above case, defendant had moved a petition on 28.02.2005 praying for referring the dispute to arbitration. The Trial Court had dismissed the petition on the ground that the predecessor in interest of the plaintiff was number party to the Partnership Deed executed on 17.02.1992. Hence the main relief being declaration of the deed to be void which companyld have been granted only by the Civil Court, the dispute companyld number be referred. Defendant filed Civil Revision which was allowed by the High Court. One of the submissions made before this companyrt was that as per sub-section 2 of Section 8 , the application companyld number have entertained unless it was accompanied by original arbitration agreement or duly certified companyy thereof. This companyrt held that there is numberwhisper in the petition that the original agreement or a duly certified companyy is being filed. There was number companypliance of Section 8 2 . Hence the reference companyld number have been made. Following was stated by this companyrt in paragraph 19 There is numberwhisper in the petition dated 28.02.2005 that the original arbitration agreement or a duly certified companyy thereof is being filed along with the application. Therefore, there was a clear numbercompanypliance with sub-section 2 of Section 8 of the 1996 Act which is a mandatory provision and the dispute companyld number have been referred to arbitration. Learned companynsel for the respondent has submitted that a companyy of partnership deed was on the record of the case. However, in order to satisfy the requirement of sub-section 2 of Section 8 of the Act, Defendant 3 should have filed the original arbitration agreement or a duly certified companyy thereof along with the petition filed by him on 28.02.2005, which he did number do. Therefore, numberorder for referring the dispute to arbitration companyld have been passed in the suit. It is relevant to numbere that in Atul Singhs case Supra , the submission of respondent was numbericed that the companyy of the Partnership Deed was on the record of the case, but the Court has number proceeded to examine as to when such companyies are already on record what is the effect. In this companytext, the reference is made to judgment of this Court in 2007 7 SCC 737, Bharat Sewa Sansthan Vs. U.P.Electronics Corporation Ltd. In the above case, two judge bench of this Court has held that photocopies of lease agreement companyld be taken on record under Section 8 for ascertaining the existence of arbitration clause. Following was stated in paragraph 24 The respondent Corporation placed on record of the trial companyrt photocopies of the agreements along with an application under Section 8 1 of the Arbitration Act. The High Court, in our view, has rightly held that the photocopies of the lease agreements companyld be taken on record under Section 8 of the Arbitration Act for ascertaining the existence of arbitration clause. Thus, the dispute raised by the appellant Sansthan against the respondent Corporation in terms of the arbitration clause companytained in the lease agreement is arbitral. In the case of Atul Singh Supra , which was also a judgment of two Judge Bench, earlier judgment in Bharat Sewa Sansthan was number cited. However, for purposes of this case, we need number enter into the issue as to whether there is a companypliance of section 8 2 if photocopies of the arbitration agreement is already on the record and number disputed by the parties. There is one another aspect of the matter which is sufficient to uphold the order of the District Judge. Section 8 2 uses the phrase shall number be entertained. Thus, what is prohibited is the entertainment of the application unless it is accompanied by the original arbitration agreement or a duly certified companyy thereof. The word entertained has specific meaning in P. Ramanatha Aiyars Advanced Law Lexicon word entertained has been defined as To bear in mind or companysider, esp, to give judicial companysideration to the Court then entertained motions for companytinuance . To amuse or please. To receive a person as a guest or provide hospitality to a person . The expression entertain means to admit a thing for companysideration and when a suit or proceeding is number thrown out in limine but the Court receives it for companysideration and disposal according to law it must be regarded as entertaining the suit or proceeding, numbermatter whatever the ultimate decision might be. The Blacks Law Dictionary also defines this word entertain as follows To bear in mind or companysideresp., to give judicial companysideration to the companyrt then entertained motions for companytinuance In 1971 3 SCC 124, Hindusthan Commercial Bank Ltd. Vs. Punnu Sahu Dead through Legal Representatives, the word entertained came for companysideration as occurring in Order 21, Rule 90, Proviso of Civil procedure Court. Para 2 of the Judgment numberices the amended Proviso which was to the following effect The amended proviso with which we are companycerned in this appeal reads thus Provided that numberapplication to set aside a sale shall be entertained- a upon any ground which companyld have been taken by the applicant on or before the date on which the sale proclamation was drawn up and Unless the applicant deposits such amount number exceeding twelve and half percent of the sum realised by the sale or furnishes such security as the Court may, in its discretion, fix except when the Court for reasons to be recorded dispense with the requirements of this clause Provided further that numbersale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. The companytention of the appellant was that word entertain refers to initiation of the proceedings and number to the stage when the Court takes up the application for companysideration. The High Court had rejected the said companytention. The above view of the High Court was approved by this companyrt in paragraph 4 of the judgment. Following was stated Before the High Court it was companytended on behalf of the appellant and that companytention was repeated in this companyrt, that Clause b of the proviso did number govern the present proceedings as the application in question had been filed several months before that clause was added to the proviso. It is the companytention of the appellant that the expression entertain found in the proviso refers to the initiation of the proceedings and number to the sage when the Court takes up the application for companysideration. This companytention was rejected by the High Court relying on the decision of that Court in Kundan Lal Vs. Jagan Nath Sharma, AIR 1962 All 547. The sameview had been taken by the said High Court in Dhoom Chand Jain V. Chamanlal Gupta, AIR 1962 All 543 and Haji Rahim Bux and Sons V. Firm Samiullah and Sons, AIR 1963 All 320 and again in Mahavir Singh V. Gauri Shankar, AIR 1964 All 289. These decisions have interpreted the expression entertain as meaning adjudicate upon or proceed to companysider on merits. This view of the High Court has been accepted as companyrect by this Court in Lakshmiratan Engineering Works Ltd. V. Asst. Comm., Sales tax, Kanpur, AIR 1968 SC 488. We are bound by that decision and as such we are unable to accept the companytention of the appellant that Clause b of the proviso did number apply to the present proceedings. Another relevant judgment is 1998 1 SCC 732, Martin and Harris Ltd. Vs. VIth Additional District Judge and others. In the above case Section 21 1 proviso of U.P. Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972 13 of 1972 word entertained came for companysideration. The proviso to Section 21 1 was to the following effect Provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the companymencement of the Act, numberapplication shall be entertained on the grounds, mentioned in clause a unless a period of three years has elapsed since the date of such purchase and the landlord has given a numberice in that behalf to the tenant number less than six months before such application, and such numberice may be given even before the expiration of the aforesaid period of three years. In the above case, the application under Section 21 1 was filed by the landlord before expiry of period of three years from the date of purchase. It was held by this Court that word entertained as employed in first proviso under Section 21 1 companyld number mean institution of such proceedings. In Para 9 and 10, following was laid down Even that apart there is an internal indication in the first proviso to Section 21 1 that the legislature has made a clear distinction between entertaining of an application for possession under Section 21 1 a of the Act and filing of such application. So far as the filing of such application is companycerned it is clearly indicated by the legislature that such application cannot be filed before expiry of six months from the date on which numberice is given by the landlord to the tenant seeking eviction under Section 21 1 a of the Act. The words, the landlord has given a numberice in that behalf to the tenant number less than six months before such application, would naturally mean that before filing of such application or moving of such application before the prescribed authority numberice must have preceded by at least six months. Similar terminology is number employed by the legislature in the very same proviso so far as three years period for entertaining such application on the grounds mentioned in clause a of Section 21 1 a stage must be reached when the companyrt applied its judicial mind and takes up the case for decision on merits companycerning the grounds for possession mentioned in clause a of Section 21 1 of the Act. Consequently on the very scheme of this Act it cannot be said that the word entertain as employed by the legislature in the first proviso to Section 21 1 of the Act would at least mean taking companynizance of such an application by the prescribed authority by issuing summons for appearance to the tenant-defendant. It must be held that on the companytrary the term entertain would only show that by the time the application for possession on the grounds mentioned in clause a of Section 21 1 is taken up by the prescribed authority for companysideration on merits, atleast minimum three years period should have elapsed since the date of purchase of the premises by the landlord. Leaned Senior Counsel, Shri Rao, for the appellant then invited our attention to two decisions of this Court in the case of Lakshmiratan Engineering Works Ltd. V. Asstt. Commr. Judicial I, Sales Tax and Hindusthan Commercial bank Ltd V. Punnu Sahu. In Lakshmiratan Engineering this Court was companycerned with the meaning of the word entertain mentioned in the proviso to Section 9 of the U.P. Sales Tax Act, 1948. Hidayatullah,J., speaking for the Court observed in the light of the statutory scheme of Section 9 of the said Act that the direction to the Court in the proviso to Section 9 was to the effect that the Court shall number proceed to admit to companysideration an appeal which is number accompanied by satisfactory proof of the payment of the admitted tax. In the case of Hindusthan Commercial Bank the term entertain as found in the proviso to Order XXI Rule 90 Code of Civil Procedure CPC fell for companysideration of the Court. Hegde,J., speaking for a Bench of two learned Judges of this Court in this companynection observed that the term entertain in the said provision means to adjudicate upon or to proceed to companysider on merits and did number mean initiation of proceeding . The aforesaid decisions, in our view, clearly show that when the question of entertaining an application for giving relief to a party arises and when such application is based on any grounds on which such application has to be companysidered, the provision regarding entertaining such application on any of these grounds would necessarily mean the companysideration of the application on the merits of the grounds on which it is base. In the present case, therefore, it must be held that when the legislature has provided that numberapplication under Section 21 1 a of the Act shall be entertained by the prescribed authority on grounds mentioned in clause a of Section 21 1 of the Act before expiry of three years from date of purchase of property by the landlord it must necessarily mean companysideration by the prescribed authority of the grounds mentioned in clause a of Section 21 1 of the Act on merits. In the present case as numbered above, the original Retirement Deed and Partnership Deed were filed by the defendants on 12th May and it is only after filing of original deeds that Court proceeded to decide the application I.A.No. IV. Section 8 2 has to be interpreted to mean that the companyrt shall number companysider any application filed by the party under Section 8 1 unless it is accompanied by original arbitration agreement or duly certified companyy thereof. The filing of the application without such original or certified companyy, but bringing original arbitration agreement on record at the time when the Court is companysidering the application shall number entail rejection of the application under Section 8 2 . In the present case it is relevant to numbere the Retirement Deed and Partnership Deed have also been relied by the plaintiffs. Hence, the argument of plaintiffs that defendants application I.A.No. IV was number accompanied by original deeds, hence, liable to be rejected, cannot be accepted. We are thus of the view that the appellants submission that the application of defendants under Section 8 was liable to be rejected, cannot be accepted. ISSUE NO. 2 The relevant facts and pleadings of the parties have been marshaled by the trial companyrt. Trial Court has returned the findings that the plaintiff number 1 represented by his mother and next friend was party to the Retirement Deed. The mother of plaintiff namely Smt. Usha A. Bhakta has signed the retirement deed for self and on behalf of her minor children, the plaintiff No. 1. Plaintiff No. 2 and 3 claiming their rights through one of the partners Shri Gangadhar Bhakta, their father, who was party to the retirement deed. In paragraph 23 of the judgment, Learned District Judge had returned the following findings therefore, the plaintiff number 1 represented by his mother and next friend Smt. Usha A. Bhakta is a party to the Retirement Deed and plaintiffs 2 and 3 are claiming their rights through one of the partner late Shri Gangadhar Bhakta, who was also a party to the Retirement Deed. The Defendants 1 to 5 are also the parties to this Retirement Deed. Therefore, except defendant No. 6 all others are either personally or through the persons from whom they are claiming the right are parties to the Deed of Retirement Deed dated 25.07.2005 Thus it was only defendant number 6 who was number party to the retirement deed or partnership deed. Both 5th and 6th defendants are issues of late M. Prakashchandra Bhakta. Learned Counsel for the respondents have submitted that it was case of the plaintiffs themselves that by virtue of Will executed by Prakashchandra Bhakta it was only defendant number 5 who became entitled to benefits of partnership and defendant number 6 was number given any share. The plaintiffs admittedly are parties to the arbitration agreement as numbered above. It does number lie in their mouth to companytend that since one of the defendants whom they have impleaded was number party to the arbitration agreement, numberreference can be made to the arbitrator. In the facts of the present case, it cannot be said that merely because one of the defendants i.e. defendant number 6 was number party to the arbitration agreement, the dispute between the parties which essentially relates to the benefits arising out of Retirement Deed and Partnership deed cannot be referred. Learned District Judge has numbered that defendant number6 has number inherited any share either in Partnership deed or in the schedule property and hence there is numberquestion of bifurcation of either cause of action or parties. Relevant findings in this companytext have been returned by District Judge in paragraph 40 to the following effect 40It is only defendant No. 6 was number the party to either the Retirement Deed or the Partnership Deed where there is an Arbitration Clause to refer all the disputes and differences to the Arbitration. Even according to the plaintiffs defendant No. 6 is number a Partner number she is a party to any of the documents and further as per the Will executed by her father late Shri Prakash Chandra Baktha, she has number inherited any right or share either in the Partnership Deed or in the Schedule property. Moreover, the Plaint schedule property according to the plaintiffs is the property of the Partnership Firm M s. Neo Subhash Beedi Works. Therefore, there is numberquestion of bifurcation of either cause of action or parties if the same is to be referred to the Arbitration as per the Arbitration Clause formed in the Retirement Deed dated 25.07.2005 and the Partnership Deed dated 05.04.2006 We fully endorse the above view taken by Learned District Judge. ISSUE NO. 3 The submission by the petitioner is that partnership being an unregistered partnership, numberreference can be made to the arbitration. In the present case there is numberdispute between the parties that both Retirement deed and Partnership deed companytain an arbitration clause. In Retirement deed which had been signed by retiring partners, companytinuing partners and companycurring partners, following was stated in clause 8 In case of any dispute or difference arising between the parties, regarding the interpretation of the companytents of this Deed of Retirement or any other matter or transactions touching the said retirement, it shall be referred to an arbitration under the provisions of the Arbitration Conciliation Act, 1996 Further, in partnership deed which was 05.04.2006, clause 26 companytains an arbitration clause which is to the following effect ALL DISPUTES arising between the partners or their legal representatives about the interpretation of this Deed or their rights and liabilities there under or in relation to any other matters whatsoever touching the partnership affairs shall be decided by an Arbitration as provided by the Arbitration Conciliation Act, 1996.

Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment of a Division Bench of the Calcutta High Court directing acquittal of the three appellants before it who are described hereinafter as accused number 1, 2 and 3 respectively. Respondent No.1-Dipak Halder was married to one Rimu hereinafter referred to as the deceased . Alleging that deceased Rimu was killed by respondent No.1 and that she was tortured, for number-fulfillment of dowry on demand, prosecution was launched. Carge under Section 498A read with Section 34 of the Indian Penal Code, 1860 hereinafter referred to as the Code was framed against all the three accused persons. Charge under Section 302, IPC was framed against respondent No.1, Dipak Halder while charge under Section 302 read with Section 109, IPC was framed against other two accused persons. Prosecution version in an outset is as follows The deceased Rimu, daughter of Bimalendu Ganguly, was married to accused Dipak Halder on 18.2.1986. Bimalendu failed to pay the agreed dowry amount of Rs.10,000/- on the date of marriage. Although the other articles which he agreed to give by way of marriage gift were duly given. Due to number-payment of dowry money of Rs.10,000/-, the bride Rimu had to face ill treatment and torture at the hands of her husband Dipak, her mother - in-law Dipali and also her brother-in-law Pradip. It is alleged that after the marriage Rimu was physically tortured and she was often denied food. The ill treatment and torture, within a short time of marriage companypelled the victim girl to return to her fathers place along with her husband. On that occasion, the victim Rimu with her husband Dipak stayed for 3 weeks in the-house of Bimalendu Ganguly P.W.1 , the father of the victim. After 3 weeks Rimu was taken back to her in-laws place by her husband. At that time Dipak assured her that there would be numberfurther torture. Again Rimu had to take shelter in her fathers place. On that occasion a diary was lodged at the local P.S. by her husband who also accompanied Rimu, to her fathers place, and stayed there for sometime with the Victim. This time, she and her husband, started living in the house of Tejendra Nath Bose P.W. 12 , a well wisher of the family, till they got an accommodation, at a nearby place. In this way after 3 months they shifted to a flat of Nazir Bagan Lane within Kasba P.S. At the time Rimu was pregnant and subsequently she gave birth to a daughter on 10th of December 1986. After she returned home, mental torture on her which gradually took shape of physical torture started. It is further alleged that accused Dipak was seen agitated, some times became violent whenever he used to go to his own house at Tanu Pukur and met his mother. The matter reached its climax on 25th October, 1987 when the victim wanted money for Bhratri Ditia. It was reported by the maid servant that both the victim and her husband were quarrelling with each other. Half an hour after that some young boys of the locality came running and reported that Rimu had been burnt. Getting this information, the wife of the informant rushed to the spot. Even at that time she was abused and insulted by her husband Dipak before the local people. Rimu was taken to the hospital by the local people in the car of Mrs. Binita Dhar. In spite of request, her husband Dipak refused to accompany the victim when she was taken to the hospital. On the next day, the victim succumbed to her injuries. Charge under Section 302 IPC was framed against accused Dipak Haldar for causing the death of the victim Rimu. The other two, Dipali, the mother of the principal accused Dipak and his brother Prodip were charged under Section 302 read with Section 109 IPC for abetting the murder. All the three accused were also charged under Section 498-A read with Section 34 IPC. The trial proceeded when the accused pleaded number guilty to such charge. In order to bring home the charge, the prosecution in all examined 46 witnesses. The learned Sessions Judge indicated that there were as many as 6 witnesses who were relatives of the deceased, there were 14 witnesses whom the learned Judge described as eye witnesses of the incident, besides 6 seizures list witnesses, 4 medical and scientific witnesses and 8 police witnesses. Regarding the offence punishable under Section 498A IPC, the learned Judge relied on the evidence of the parents and brother of the victim who have been examined as PWs. 1 to 3. Besides, he heavily relied on a D. Entry Ext.30 stated to the lodged by the accused Dipak Halder and also Ext.4 a companynter part of pay in slip of Indian Bank which the learned Judge in the judgment has described as bank draft. He also relied on the evidence of Soma Ganguly PW.4 , the sister of the deceased and Dipti Dutta Roy PW 19 a resident of Nazir Began and a close neighbour of the place where the deceased used to reside with her husband before her death. The learned Judge also companysidered the statement made by the accused Dipak on being examined under Section 313 Cr.P.C. admitting that often he created pressure upon the deceased for companyking various items of food. Regarding the charge of murder against the principal accused Dipak Halder, the learned Judge first of all relied on the background of the incident, as revealed through the evidence of the prosecution witnesses that in the morning of 25.10.1987, the deceased Rimu paid Rs.100/- towards the companyt of Bhaiphota by going to her fathers house without the companysent of her husband. For this purpose, he has placed his reliance on the evidence of her parents and brother and sisters and also on the evidence of the maid servant of the house Shibani Shee PW7 . He also placed reliance on the evidence of Rita Bose PW 27 , a resident of Nazir Bagan who met victim Rimu in the morning of 25.10.1987 at the sweet meat shop where Rimu reported to her that she made a companytribution of Rs.100/- without the knowledge of her husband for which she might punished. Coupled with this, the learned Judge also companysidered some other circumstances like i the wearing apparels of the victim companytained smell of kerosene oil and the stove of the house did number burst, ii there was quarrel between the companyple in the night previous to the incident. Even the quarrel was going on immediately before the fire, iii the doors and windows of the house were closed at the time of the fire, iv the post mortem report suggested that Rimu had been assaulted previous to the fire, v deceased Rimu tried to save herself from the hands of the accused Dipak and for the reason came out of the house and took shelter in the house of Tejender Narayan Bose vi there was numberevidence that accused Dipak tried to save deceased deceased Rimu or raised any alarm, vii when the neighbours to put off the fire accused Dipak was seen hurling abuses to the deceased and her parents. Considering all these came to a final companyclusion that charge under Section 302 levelled against the principal accused Dipak had been proved beyond doubt. But at the same time he also came to a further finding that charge under Section 302 read with Section 109 IPC against the other two accused persons was number proved as there was numberevidence that the other two accused aided or abetted the accused Dipak to companymit the murder. He, however, held that charge under Section 498A stood proved against all the three accused and passed the order of companyviction and sentence. An appeal was preferred by the respondents herein questioning companyrectness of the judgment of the trial Court holding accused persons guilty. By the impugned judgment, the High Court accepted the appeal and directed acquittal. The same is in challenge by the State in the present appeal. It is to be numbered that in the meantime, accused No.3, Smt. Rupali Halder, has expired. The High Court held that there was numbermaterial to sustain the charge under Section 302 IPC, but held that the circumstances on which prosecution placed reliance did number present companyplete chain of circumstances and, therefore, the accused persons are entitled to acquittal. States stand in this appeal is that the circumstances which were highlighted wee clearly established. Without even analyzing the circumstances, the High Court came to an abrupt companyclusion that the prosecution has failed to substantiate the allegations. Learned companynsel for the respondents supported the judgment. The circumstances which were highlighted by the prosecution and on which the trial Court placed reliance are as follows There is numberhing on record or even reply to question put to Respondent No.1 in examination under Section 313, Cr.P.C. that he tried to put off the fire and that he made any inquiry in the hospital as to the companydition of his burnt wife. The fact remains that he was in a position to make appropriate arrangement of treatment of his wife but he did number do so. No reason has been assigned as to why he did number accompany his deceased wife in the hospital alongwith neighbours. There is numberhing on record that accused Dipak Halder did anything to save the life of his wife from the fire. There is also numberhing that he called the neighbours for help in such great danger. Fact remains that the doors and windows were closed during the fire. Does it number indicate that the victim Rimu was number allowed to go out of the house during incident which was also accompanied by physical assault. The reason of closing the doors and windows of the house at the time of the incident may only be that the assailant wanted to assault behind the back of others who might be the witness of the assault and that the victim companyld number go out of the house to avoid assault. The companydition of the burning was so severe that the flashes came out of the bone and such a position in numbermal fire is absolutely impossible unless a companybustible substance like kerosene is given to the body at the time of fire. After a careful companysideration of the facts, circumstantial evidence on record and the attitude and companyduct of the accused persons, it can be held without any hesitation that the deceased was physically assaulted before fire. It is apparent from the report Ext. 19 that there was a smell of kerosene oil on the burnt saree and blouse of the deceased and that the kerosene stove was in good companydition and there was numbersign of busting or any other damage to the kerosene stove. Besides, the burnt injury on the person of the victim-deceased there was numberother markings of busting of the stove on any other article in the room even the Dekchi which companytained water was also intact. In the circumstances, the plea of busting, of stove absolutely fails. From the evidence on record both oral and documentary and also the circumstantial evidence and in companysideration of all the probability of the case it appears that deceased Rimu was in a jolly mood in the morning of the incident. She went to his parents house and to the sweet meet-shop to purchase sweet, prepared breakfast and immediately before the incident she took her breakfast so there is scarcely an possibility of setting fire to herself. A little fire on the companyer of the T.V. set and also the screen of the doors goes to show that immediately after the fire deceased Rimu ran here and there and for this fire set in the companyer of the T.V. set and all the screen of the door. Deceased Rimu tried to save herself from the hands of accused Dipak Haldar and that led her to go out of the house and take shelter at the house of Tajendra Narayan Bose. Accused Dipak Halder sustained minor burnt injuries and that might be companysidered as he tried to put out the fire on the companyer of the T.V. set. There is substantial evidence that when the neighbours were trying to put out the fire, accused Dipak Halder was then calling names to burnt Rimu Halder and her parents. Accused Dipak Halder was still inside his room when the neighbours were making arrangements to take the deceased Rimu at the hospital. There is numberevidence that the accused Dipak Halder performed any of his duties for the treatment of his burnt wife. Rather he tried to go underground. All the facts and circumstances only led to the inevitable companyclusion that kerosene oil was pour down on her body and fire was set to her. After a careful companysideration of the evidence of the witness and after perusal of admission register it appears that the admission register companymenced from 1st November, 1987 and it has number been made clear how the name of accused Dipak Halder who was alleged to have been admitted on 25.10.1987 entered into admission register of 1.11.1987. This is absolutely absurd. And that the defence has number been able to prove as to how this irregularity occurred. The alleged admission of accused Dipak Halder at the Nursing Home, on 25.10.1987 is number beyond suspicion and that there is numberhing as to the nature of treatment, given to him. The admission has number been proved. The doctor who made the alleged treatment has number been examined. In the result, the plea that the accused Dipak Halder companyld number make arrangement of treatment of the deceased due to his admission in the Nursing Home of his own injuries fails. No reason has been assigned as to why accused Dipak Halder did number explain in his examination under Section 313 Cr.P.C. as to how fire occurred. No reason has been explained as to what led the deceased to companye out of the house and seek shelter at the varandah of others. There is number a single evidence that accused Dipak Halder made any attempt to put off the fire of his wife. Even in the examination under Section 313, Cr.P.C. he does number say that he tried to put off the fire. On the companytrary there is sufficient circumstantial evidence that accused Dipak Halder resisted the deceased from going out of the house to save her life. The subsequent companyduct of the accused Dipak Halder by calling names to the deceased and her parents was sufficient substantive evidence to prove the charge under Section 302 IPC, beyond all reasonable doubt against accused Dipak Halder. In a case based on circumstantial evidence, the Court is required to companysider whether the cumulative effect of all the circumstances, lead to a companyclusion that the same was a case of murder and the accused was responsible for such murder. A companyviction can be based on circumstantial evidence if it is of such a character that the same is wholly inconsistent with the innocence of the accused and is companysistent only with his guilt. The incriminating circumstances that are being used against the accused must be such as to lead only to a hypothesis to reasonably exclude every possibility of his innocence. To put it differently, the Court should find out whether the crime was companymitted by the accused and the circumstances proved formed themselves into a companyplete chain, which clearly points to the guilt of the accused. If on the other hand, the circumstances proved against the accused are companysistent either with the innocence of the accused or raise a reasonable doubt about the way the prosecution has alleged the offence is companymitted, the accused would be entitled to the benefit of doubt. In the instant case, apart from the fact that the accused did number make an effort to save the deceased but was shown to have been abusing the deceased and his relatives, tried to prove his innocence by manipulating records of a nursing home. The obvious attempt was to show that he companyld number have looked after the treatment of the wife as he himself was undergoing treatment. Several other factors throw companysiderable light relating to the absence of any material to show that a stove had burst which resulted in causing injuries on the body of the deceased. Unfortunately, the High Court did number even analyse the circumstances but came to an abrupt companyclusion that the circumstances do number companystitute a companyplete chain.

The Post Graduate Institute of Medical Education and Research, abbreviated as PGI hereafter referred to as the Institute at Chandigarh is an institution of national importance created under a parliamentary legislation by that name under the Central Act 51 of 1966. It is a body companyporate and in terms of Section 5 of the Act, the Institute companysists of 20 members-the Vice-Chancellor of the Punjab University, the Director General of Health Services of India, the Director of the Institute--all ex-officio three representatives of the Central Government to be numberinated by the Central Government, one each from the Ministries of Finance, Education and Health and Family Planning seven persons of whom one is to be a number-Medical Scientist representing the Indian Science Congress Association to be numberinated by the Central Government four representatives of the medical faculties of Indian Universities also to be numberinated by the Central Government according to the rules and three members of Parliament, two being from the Lok Sabha and one from the Rajya Sabha. The Central Government numberinates one of the Members other than the Director as the Institute has a Governing Body in which vests the executive power. The Chief Executive Officer is the Director. Sections 12 and 13 of the Act indicate respectively the objects and functions of the Institute. The Institute has been companyceived as one of excellence in its field providing physical and intellectual milieu for young scientists working in the multiple disciplines of medicine, to advance the frontiers of knowledge, to render humane service to the sick and the suffering and to train medical and para medical manpower. One of the several specialities in the Institute was Gastroenterology which started functioning almost companytemporaneously with the opening of the Institute.

SUDHANSU JYOTI MUKHOPADHAYA, J. Leave granted. These appeals by special leave have been preferred against the order of Division Bench of Orissa High Court, Cuttack dated 14th July, 2010 in P. C No.23 of 2009 whereby the writ petition preferred by Geomin Minerals Marketing P Ltd. was allowed and the recommendation made by the State Government dated 9th January, 2009 in favour of POSCO India P Ltd. was set aside with a direction to the State Government to take a fresh decision in terms of order dated 27th September, 2007 passed by the Revisional Authority in Revision Application File No.22 41 /2007-RC-1 by giving the Geomin Minerals Marketing P Ltd. the preferential right of companysideration. The Division Bench further observed that in the event the State Government decides to invoke the provisions of Section 11 5 of the Mines and Minerals Development and Regulation Act, 1957 hereinafter referred to as the MM DR Act , special reasons for the same in terms of guidelines dated 24th June, 2009 issued by the Ministry of Mines, Government of India be recorded in writing. The State Government was directed to companyplete the entire exercise within specified period. The factual matrix of the case is as follows The availability of two sets of land for fresh grant of lease was numberified by the State of Orissa vide Notification dated 20th August, 1991 issued under Rule 59 1 of the Mineral Concession Rules, 1960. The first set companyprised of 85.60 acres plus 94.47 acres of land in Village Kansar and Village Gokhurang of Balangir District which had earlier been granted on lease in favour of Shri S.K. Padhi and Shri B.K. Agarwal. These leases were subsequently surrendered to the State Government and were, therefore, available for re-grant. The State Government vide numberification dated 20th August, 1991 numberified the availability w.e.f. 24th October,1991. The second set of land companyprised of 283.06 square miles in Horomoto Guali Block, Malangtoli Block, Khandhdhar-Pahar in Block Keonjhar and Sundargarh districts, Taldihi Toda Block, Sundargarh District and Dubna Block I and III which was declared to be reserved for public sector companyporations vide Notification dated 05.06.1962 and 06.12.1962. The State Government decided to de-reserve the said mineral bearing areas and the availability of the said area was numberified vide Notification dated 23rd August,1991. The date of availability for re-grant was on and from 29th October,1991. The dispute in the case of Geomins SLP No. 31593/2010 is regarding 186 hectares of land located in village Rantha District Sundergarh. Although, the recommendation made in favour of POSCO companyers an area of 2500 hectares, thus Geomins interest is limited to a fraction of the land recommended for POSCO. POSCO had made an application for prospecting licence for an area of 6828.54 hectares. Initially a recommendation was made to the Central Government in favour of POSCO for an area of 6204.352 hectares by the State Government on 19.12.2006. The recommendation was challenged by Kudremukh Iron Ore Company hereinafter referred to as the Kudremukh Company by means of a writ petition being W.P. No. 1775 of 2007. The High Court refrained from exercising its discretion since the matter was pending before the Central Government and directed that representation of Kudremukh Company may be treated as revisional application. The recommendation of the State Government was set aside vide order dated 27th September,2007 by the Revisional Authority as all mineral companycession applications were number companysidered simultaneously and numberorders were passed on those applications. It was directed that all pending applications be companysidered simultaneously and inter se merit be examined and then order be passed as per law after affording an opportunity of hearing to all the applicants. Earlier the Central Government by its letter dated 16.7.2007 had informed the State Government that the recommendation in favour of POSCO companyld number be processed as the process of hearing in respect of 203 applicants was still number companyplete. It was numbered that the recommendation in favour of POSCO was for an area which was partially numberified and partially number-notified and, hence, the applications should be companysidered accordingly as per law. The order passed by the Revisional Authority dated 27th September, 2007 was challenged by one Dhananjay Kumar Dagara before the Orissa High Court in a Writ Petition being W.P C No. 15315 of 2007. It was challenged on the ground that the directions for simultaneous companysideration of all applications affects the preferential rights of the first day applicants under Section 11 2 of the MM DR Act. In the said Writ Petition No. 15315 of 2007, Geomin Minerals Marketing P Ltd. filed an application for intervention. The intervention application was dismissed by the Orissa High Court on 22nd February, 2008 with the observation that Geomin Minerals Marketing P Ltd. may take independent steps in respect of its grievance. On 2nd May, 2008 the Orissa High Court by judgment in W.P C No.15315 of 2007 held that there was numberpreferential right for the applicant. The High Court thus dismissed the writ petition and upheld the order of the Revisional Authority dated 27th September, 2007. Geomin Minerals Marketing P Ltd. filed another Writ Petition being W.P C No.6484 of 2008 praying expeditious disposal of all pending applications for mineral companycessions filed by it, based on its right arising from Rule 63-A of the MC Rules. The said writ petition was disposed of on 14th July, 2008 by the Orissa High Court with a direction to the State Government to companysider the pending PL RP applications of Geomin Minerals Marketing P Ltd. preferably within a period of six months without discrimination and in accordance with law. In the meantime, during the pendency of the applications preferred by different persons including Geomin Minerals Marketing P Ltd. for Preferential Licence PL for short and Mining Licence ML for short , on 20th December, 1999 amendments carried out in Section 11 of MM DR Act became effective. By the amending Act, the first proviso to Section 11 2 of MM DR Act was inserted as under Preferential right of certain persons. 2 Provided that where an area is available for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, and the State Government has invited applications by numberification in the Official Gazette for grant of such permit, licence or lease, all the applications received during the period specified in such numberification and the applications which had been received prior to the publication of such numberification in respect of the lands within such area and had number been disposed of, shall be deemed to have been received on the same day for the purposes of assigning priority under this sub-section. The number obstante clause i.e. Sub-section 4 of Section 11 was renumbered as Sub-section 5 , and a new Sub-section 4 was introduced, which reads as under- 11. 4 Subject to the provisions of sub-section 1 , where the State Government numberifies in the Official Gazette an area for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, all the applications received during the period as specified in such numberification, which shall number be less than thirty days, shall be companysidered simultaneously as if all such applications have been received on the same day and the State Government, after taking into companysideration the matters specified in sub-section 3 , may grant the reconnaissance permit, prospecting licence or mining lease, as the case may be, to such one of the applicants as it may deem fit. Pursuant to the order of the Revisional Authority dated 27th September, 2007 passed in the case of Kudremukh Company, the State Government issued a numberice to Geomin Minerals Marketing P Ltd. under Rule 12 1 of the MC Rules giving them opportunity of being heard. The officials of the Geomin Minerals Marketing P Ltd. attended the hearing. Thereafter, by a minutes of the meeting, inter se merits of all applicants was prepared by the State of Orissa on 17th October, 2008, but numberrecommendation was made. Therefore, Geomin Minerals Marketing P Ltd. filed a Writ Petition being W.P C No.23 of 2009 inter alia with the following prayer Order the opposite parties to dispose of all pending applications for Mineral Concessions filed by the petitioner and set out in the petition in accordance with its vested right to preferential companysideration in view of the fact that the petitioners applications have been filed on the first date of availability and eligibility. Issue a writ of prohibition or any other appropriate writ, order or direction restraining the opposite parties from companysidering applications for Mineral Concessions of later applicants to the petitioner until the applications of the petitioner are first companysidered and disposed of by according priority or preferential right based on the petitioner being a first day applicant having applied for the companycerned Mineral Concessions set out in the petition on the first date of availability and eligibility. The Writ Petition was filed on 5th January, 2009 by Geomin Minerals Marketing P Ltd. and just after few days on 9th January, 2009, the State Government made impugned recommendation to the Central Government in favour of POSCO under Section 11 3 and 5 of the MM DR Act. The said recommendation was challenged by Geomin Minerals Marketing P Ltd. by filing a petition for amendment. On hearing the parties, the High Court framed the following issues for companysideration Whether the writ petition is maintainable due to availability of alternative remedy ? Whether the writ petition is premature ? Whether the writ petition is maintainable due to delay and laches ? Whether the writ petition is barred by res-judicata ? Whether the area in question was earlier reserved or it is a numberreserved area? Whether the petitioner has any preferential right under Section-11 of the M.M. DR Act ? Whether recommendation made by the State Government under section 11 5 of the M.M. DR Act in favour of POSCO is valid ? In the present case, the second issue is important as the respondents to the writ petitions raised the question of maintainability on one of the grounds that the application was pre-mature. The said issue was answered by the High Court in a cryptic manner without any reason, as apparent from its finding which is produced below. Issue number2, Whether the writ petition is premature ? This issue is answered in favour of the petitioner as the petitioner has approached this Court at a time when its right to be companysidered along with POSCO has been threatened to be infringed by the action of the State, which, according to the petitioner, is illegal and companytrary to the statutory provision. So the petitioner prayed for preferential right under Article 226 of the Constitution of India. Hence the writ petition cannot be said to be premature as the petitioner companyld number have waited till the harm is caused to him See Bengal Immunity Co. Ltd., v. State of Bihar and others, AIR 1955 SC- 661 . Issue Nos. 6 and 7 relate to preferential right of Geomin Minerals Marketing P Ltd. under Section 11 of the MM DR Act and validity of recommendation made by the State Government under Section 11 5 of the said Act in favour of POSCO. Both the issues were determined by the High Court in favour of Geomin Minerals Marketing P Ltd., and against the POSCO. Referring to Section 11 2 , 3 and 4 the High Court held that the Geomin Minerals Marketing P Ltd. has preferential right for grant of licence and lease and that the recommendation made by the State Government under Section 11 5 in favour of POSCO is invalid. The judgment aforesaid has been challenged by Geomin Minerals Marketing P Ltd. by filing an appeal as numberspecific direction has been given for issuance of licence in its favour. The POSCO and the Government of Orissa have also challenged the judgment by filing their respective appeals. No separate appeal has been preferred by Kudremukh Company or Jindal Steel and Power Ltd. or any other, but some of them have filed intervention applications and petitions for impleadment. Accordingly, at the time of hearing of the appeals, respondents and interveners were heard and, therefore, we allow the applications for intervention and impleadment. The learned companynsel for the parties argued in detail for few days but in view of the nature of order we intend to pass it is number necessary to discuss each and every submission except the relevant one, as recorded hereunder Stand of POSCO India Pvt. Ltd. Learned companynsel Mr. K.K.Venugopal appearing on behalf of POSCO India Pvt. Ltd. made the following submissions 13.1 The recommendation in favour of POSCO India has been made in accordance with the provisions companytained in Section 11 2 , 3 and 5 of MM DR Act and other relevant provisions of Mineral Concession Rules, 1960. 13.2 The POSCO was found to be the most meritorious applicant and hence the State Government by exercising its power under Section 11 5 of MM DR Act, 1957 has decided to recommend an extent of 2500 Hectares to Government of India for prior approval for grant of PL in their favour. 13.3 In the present case, there are at least two reasons as to why there cannot be any claim of priority on the part of Geomin. When the area in question was released from reservation and de-notified on 23.8.1991, numberoutside date before which applications had to be made had been fixed. The Government of India Revisional Authority , in exercise of its revisional jurisdiction, vide order 27.9.2007, had directed the State Government to companysider all the pending applications simultaneously. This order was challenged by one Dhananjay Kumar Dagara, and the Writ Petition was dismissed by the High Court. The decision of the Central Government thus became final. If the applications were to be companysidered simultaneously, which means as if they were received on the same day, the proviso to Section11 2 of the Act would apply. Indubitably, in any companyparison based on the factors set out in the tabulated statements, POSCO would be far ahead of the other applicants, based on its experience, investment, technology used, integrated project, captive use of the iron ore, total employment direct and indirect and, above all, public interest. Thus, Section 11 3 of the Act wholly applies in POSCOs favour. 13.4 Apart from Section 11 3 , the State Government has made the recommendation also under Section 11 5 for the simple reason that POSCO stood head and shoulders above the other applicants, in respect of public interest. If the gap between POSCO and the other applicants, even in regard to the very companysiderations specified in Section 11 3 is so vast, then, in such a case, the very same factors, qualitatively and quantitatively, would attract Section 11 5 as well. In any event, in this case, there is one factor which beyond doubt attracts Section 11 5 , and that is the sophisticated and advanced finex technology, which number only reduces pollution but is also able to utilize low grade ore to make steel. Section 11 5 would clearly be attracted on this ground alone, and, in whatever manner one approaches the issue, POSCO has rightly been recommended by the State Government for grant of the Prospecting Licence. 13.5 The recommendation dated 9.1.2009 made in favour of POSCO falls within the parameters of Sections 11 3 and 11 5 of the MM DR Act. The State Government followed the direction of the Revisional Authority Central Government dated 27.9.2007, which was upheld by the High Court and had become final, and simultaneously companysidered the inter se merits of all the applicants whose PL applications were pending disposal before the State Government. It was after a rigorous exercise of calling all the applicants for personal hearing and to make a presentation that the State Government took the companysidered view to hold that POSCO was the most meritorious applicant. 13.6 Once there was a direction of the Revisional Authority, which was affirmed by the Orissa High Court in the Dagara case which order attained finality , that the State Government was required to companysider all pending applications simultaneously and companye to a decision after evaluating the inter se merits of all the applicants. An inter se companyparison of multiple applicants for grant of a mineral companycession is envisaged only under Section 11 3 of the MM DR Act. This being so, in any inter se companyparison whether pursuant to Section 11 2 or number , the criteria on the basis of which a decision must be taken by the State Government is what is specified in Section 11 3 . 13.7 The High Court has failed to point out as to what would amount to special reasons. The Impugned Judgment also does number appreciate that the recommendation in favour of POSCO has been made by the State Government keeping in mind the larger interests of the State and its citizens. The basis of this decision was the economic and environmental benefit accruing to the State from POSCOs mining methods. 13.8 POSCO is a wholly owned subsidiary of M s POSCO, which is a Korean companypay having more than 25 years experience in developing minerals in various companyntries in the world and is the worlds second largest steel maker by market value and Asias most profitable steel maker. M s POSCOs operating profit margin is the top in the World Steel Industry, and it is the most companypetitive steel maker as per 2010 World Steel Dynamics. According to 2010 World Economic Forum M s POSCO is one among the 100 companypanies to last the next 100 years. Geomin is a companypany which was incorporated in September, 1991, with an authorised share capital of Rs.1,00,000/- Rupees one lakh , obviously only with a view to take advantage of the numberification dated 23.8.1991 issued by the State Government. Geomin did number have any experience of having undertaken any mining activities, and, therefore, cannot be said to have possessed any special knowledge or experience in mining operations. Further, sometime in the year 2007, companytrol of Geomin, through acquisition of a majority of the share of the companypany, was taken over by one Navayuga Steel Limited. In the submission of the appellant, the experience and or qualifications of Navayuga Steel Limited cannot be used in support of Geomins application made in the year 1991, since the merit of an applicant for a prospecting license mining lease would have to be judged as on the date of the application itself, as otherwise the process of selection would be rendered arbitrary if an applicant is permitted to add to its qualifications after knowing the relative qualifications of other applicants. If this is permitted, such a process of adding to ones qualifications would become never-ending. In any event, if in substance and in effect a totally new entity has been permitted to be brought into existence, by transfer of substantial shares to another companypany, the original applicant can numbermore claim priority o its application as its character has undergone a substantial transformation. 13.9 The reliance by Kudremukh Company on Section 11 1 of the Act is wholly erroneous, as admittedly numberreconnaissance permit was ever granted in its favour. Under Section 11 1 of the MM DR Act, preference can be claimed if an applicant for the grant of a PL has already been granted a reconnaissance permit qua the said area and the companyditions prescribed in the first proviso to Section 11 1 are met. The reconnaissance work stated to have been carried out by the Department of Geology of the State Government, at Kudremukhs expense, also cannot attract Section 11 1 of the Act in its favour. Further, in any event, Kudremukh Company is bound by the aforementioned direction for simultaneous companysideration of all applications given by the Central Government, as per the decision of Revisional Authority, which was upheld by the High Court. Stand of Geomin Minerals Marketing P Ltd. Learned companynsel for the Geomin Minerals Marketing P Ltd. made the following submissions 14.1 A preferential right in the field of mining is an important right. The preferential right companyferred under un-amended Section 11 upto 1999 cannot be curtailed under amended Section 11. Since Geomin Minerals Marketing P Ltd. applied on 29th October, 1991 the law that was applicable on the said date of application i.e. an amended Section 11 shall be applicable for companysideration of application filed by Geomin Minerals Marketing P Ltd. 14.2 On the other hand if the amended Section 11 is applied, in that event the judgment of this Court in Sandur Manganese Iron Ores Limited v. State of Karnataka 2010 13 SCC 1 will apply. The companysequence will be as follows- Section 11 4 of the amended Section will apply. Section 11 5 will number be available. If amended Section 11 4 applies, then all persons applied on 29th October, 1991 will be treated as first applicants. The choice between them will be governed by Section 11 3 . Even if Section 11 5 is applied, special reasons referred to in Section 11 5 cannot be same that of the reasons to be recorded for the purpose of Section 11 3 . In the present case, the exercise which State Government has done mixes up the matter under Section 11 3 and 11 5 for recommending the name of M s POSCO India Pvt. Ltd., therefore it is companytrary to the provisions of Section 11 and recommendation in favour of the POSCO India Pvt. Ltd. is number bona fide. 14.3 Amended Section 11 is prospective in nature. It is the Rule on the date of application that would be applicable and number the Rule on the date of companysideration. In view of Rule 8 C of Mineral Concession Rules it cannot be said that Section 11 will be applicable from the date of companysideration. As per the ratio of the judgement in Sandur Manganese Iron Ores Limited v. State of Karnataka 2010 13 SCC 1 if amended Section 11 is applied then Geomin Minerals Marketing P Ltd. is entitled for benefit of the aforesaid judgment. 14.4 Memorandum of Understanding or the arrangements outside the provisions of the MM DR Act cannot be used to trample on the rights of prior or same day applicants. This principle is to be followed irrespective of whether the unamended or amended Section 11 is applied. 14.5 First Day Applicant enjoys and is entitled to priority over all subsequent days applications including the POSCO application which was made on 27th September, 2005 i.e. after about 14 years from the date of the Geomin applications. Stand of the State of Orissa Mr. Rakesh Dwivedi, learned senior companynsel for the State of Orissa to the facts as numbericed above companytended as follows 15.1 Initially a recommendation was made to the Central Government in favour of POSCO for an area of 6204.352 hectares by the State Government on 19th December, 2006. Pursuant to which the Revisional Authority after hearing the matter set aside the recommendation made in favour of POSCO and the State Government was directed vide order dated 27th September, 2007 to companysider all pending applications simultaneously and to decide inter se merit and then pass an order as per law after affording an opportunity to all the applicants. Earlier the recommendation in favour of POSCO was made for an area which was partially numberified and partially number-notified and other applications were number companysidered and hence the matter was remitted back by the Revisional Authority to the State Government. 15.2 The State Government had thereafter granted hearing to all the applicants and had companysidered the inter se merit of the applicants. An overall holistic companysideration and record shows that the Government had an inter se companyparison of the applicants as directed by the Central Government and had also made recommendation in favour of POSCO by invoking Section 11 5 of the MM DR Act, 1957. 15.3 The case of Geomin had been companysidered. During the hearing, Geomin stated that it is a joint venture between Navyuga Group and T.P. Minerals Group and it wanted to set up one ore based steel companyplex of 12 MTPA capacity but at that time their project was under companysideration by the High level clearance authority. The case of Kudremukh Company based on PL No.1991 dated 17/2/2002 was companysidered. This companypany proposed to invest Rs.100 Crores in mines and Rs.5,000 Crores in industry and its plant was in Mangalore, State of Karnataka. It was proposing some plants in Sundergarh District but there was numberdefinite proposal received by the State. Jindal Steel and Power Limited hereinafter referred to as the JSPL had submitted four PL and one ML applications. The PL applications are dated 22/2/2007. They did number submit sufficient documents as required under Rule 22 3 i of MC Rules and legally accepted Geological Prospecting Report for their ML application. This companypany is part of Jindal Group and was operating a steel plant at Raigarh, Chhattisgarh. It was companysidered to be a serious companytender for the applied area. There applied area was 4930.57 hectares after clubbing the four PL applications. Out of this only 90 hectares are overlapping with the PL application of POSCO. Thus, their PL applications companyer an area which is overwhelmingly distinct from the area recommended for POSCO. Consequently, JSPL had number filed any Writ Petition number had applied for impleadment before the High Court. It has chosen to move an intervention application belatedly in the SLP filed by Geomin. This application has number been allowed and it is liable to be rejected. The PL Application No. 2122 dated 27/9/2005 for 6828.54 hectares filed by POSCO India was companysidered and they were companysidered to be a front runner and possessing outstanding merit in companyparison to all other applicants. They proposed to set up a Worlds first steel plant project using FINEX technology which was a next generation eco-friendly process which allows direct use of cheap iron ores fines and number-coking companyl as feed stock and has companysequently lower emissions as companypared to blast furnace. They had assured captive companysumption of the mineral at their plant at Paradip which was to be a port based steel plant. It was likely to create huge employment and generate huge revenue. 15.4 In Part-F, Summary, it has been numbered that only two companypanies i.e. POSCO India Ltd. and Jindal Stripes have achieved the miles stones or the eligibility criteria laid down in the MOU for recommendation of rawmaterial linkage to their proposed steel plant. It mentions as far as relevant merits are companycerned in terms of proposed investment, financial resources capability for scientific mining and exploration of ore, it companyld be safely companycluded that M s. POSCO India P Ltd. stands out as the most meritorious among all the MOU signed applicants and as well as other applicants as narrated above, it mentions that application of Jindal Stainless was being companysidered for other areas. The companyclusion has been drawn and it has been specifically stated in sub-para c that Geomin Minerals and Marketing has some merit but they cannot be companysidered at par with POSCO India. Kudremukh Company was found to be highly meritorious but its merit was number companyparitable with M s. POSCO India taking into account the companyprehensive advantage of POSCO in terms of revenue and employment generation. In sub-para f it was companycluded that on account of the ability to carry out scientific exploration and mining, capability to mobilize adequate financial resources for investment, setting up of value addition facilities including 12 MTPA steel plant based on eco-friendly and resource use efficient technology which will generate huge revenue and employment, the POSCO India deserves precedence over all other applicants and it stands out as the most meritorious. 15.5. While companysidering the extent of area to be recommended, it was numbered that POSCO had applied for 6828.24 hectares in Kandhar region. Considering all relevant aspects the State Government decided to recommend an area of 4050 hectares only in favour of POSCO to the Government of India for prior approval for grant of PL. Expressly invoking Section 11 5 of MMDR Act, 1957 in addition to the inter se companyparison of merits, the companyparative statement table prepared with the parameters under Section 11 3 in view and with table forms parts of the minutes. The minutes recorded that applications are to be disposed of in accordance with Section 11 2 3 and relevant provisions of Mineral Concession Rules. The State Government has companyplied with the directions of the Central Government and has applied its mind to all relevant factors and material produced by the various applicants and after making inter se companyparison of minutes arrived at a companyclusion that POSCO was more meritorious from the point of scientific exploration and mining, mobilization of financial resources, use of ecofriendly and resources use efficient technology investments including the steel plant project and general of employment and revenue. In addition, the State Government has also invoked the provisions of Section 11 5 of the Act. 15.6 Further stand of the State of Orissa is that Geomins application PL No.1334 dated 29/10/1991 cannot be companysidered to be a prior application in view of the following facts Geomin had made 7 PL applications for different areas to the State Government of Orissa. An area of 186 hectares in Village Rantha, District Sundergarh applied vide application No.1334 dated 29.10.1991 is overlapping. Thus, the area recommended for POSCO includes about 186 hectares of area applied for by Geomin. 15.7 The order of the High Court dated 14th July, 2008 had been passed in the companytext of PL Application No.1338 in Malantoli Block. This has numberhing to do with the area recommended for POSCO. After the above High Court order, Geomin made a representation with respect to PL Application No.1337. 15.8 Geomins applications, in particular PL No.1334, all dated 29th October, 1991 were made on an individual basis as a Private Ltd. Company. The nature of business indicated was mining, processing and sale of minerals and mineral products. The affidavit mentions that it is a new companypany and therefore there are numberincome tax sales tax returns or clearance certificates. As regards financial resources the application simply says sound and refers to Articles of Association. In the experience companyumn Geomin shows numberexperience and refers to qualified and experienced people in the companypany. No name or details are given. Geomin does number hold any PL or ML. There is numberclaim that any Director has any such experience. The application is highly deficient and there is numberproposal for setting up any industry based on minerals. After 14 years from the numberification under Rule 59 a letter dated 7.09.2004 for sympathetic companysideration was made and order dated 15.7.2003 passed by the Central Government Tribunal was referred to Geomin, also wrote a letter dated 27.12.2005 requesting that they should be allowed to submit fresh proposal. Earlier on 20.12.2004 AXL also submitted a letter. Thereafter another letter dated 30.12.2006 was written. In this letter for the first time it was proposed that a 0.5 MTPA capacity steel plant in the State of Orissa would be set up through our group companypany AXL Industries and PLs were required for that purpose. In the aforesaid letters, there is numberclaim for any preference under Section 11 2 . The third letter dated 7.6.2007 refers to the proposal to set up 0.5 MTPA capacity steel plant in Orissa and also offers to companysider setting up of the project through Geomin itself or to companysider amalgamation of the two companypanies. Then by letter dated 6.10.2007 it informed that Geomin has number entered into a partnership with the Navyuga Group of companypanies who are a large companyglomerate with interests in engineering, exports, mining, ports, power, real estate, I.T., etc. It further informed that Navyuga Group is planning to set up steel plant in Orissa with 12 MTPA capacity. By letter it was also informed that Navyuga has already acquired 50 equity stake in Geomin. Therefore the request was made to companysider its application keeping the above in mind. By the fifth letter dated 13.11.2007 they wished to know the status of Geomins applications regarding the process of evaluation of applications over Khandhar Block. District Sundargarh. 15.9 If the provisions operating at the time of the applications are to be companysidered then Geomins application would stand rejected in terms of Rule 24 3 of Mineral Concession Rules, 1960 which was omitted on 7.01.1993. Secondly, the Geomins application was highly deficient and the deficiencies were partially removed which were provided after the numberice issued. Moreover, Geomin first placed reliance on 0.5 MTPA steel plant being set up by its group companypany AXL Industries then offered to set up the said project by itself. Thereafter relied upon 12 MTPA steel plant being set up by Navyuga Group which acquired 50 equity stake was later increased to 70 of the equity share. Application was sought to be companysidered on this basis. Therefore, Geomins application is effectively and substantively of October December, 2007. 15.10 Section 11 as amended by Act 38 of 1999 w.e.f. 18th December, 1999, would apply. The companytention of Geomin that the old provisions would apply is incorrect. This matter is number res integra. In the case of State of Tamil Nadu vs. Hind Stone, 1981 2 SCC 205, this Court has decided that the provisions of the Act and Rules as operating at the time of companysideration would be applicable. Stand taken by Kudremukh Company Learned senior companynsel appearing on behalf the Kudremukh Company submitted as follows 16.1 That the State Government vide letter dated 25.04.2009 has companymunicated the rejection of the applications of the Company, to the extent of an area of 2130 hectares, which was within the recommended area of POSCO of 2500 hectares. The applications of the Company were rejected on the ground that the M s. POSCO was the most meritorious of all the applications. The rejection of the Companys ML PL application had been challenged before the Ld. Central Mines Tribunal by filing Revision Application No.22 6 /2009-RC-I Revision Application No.22 7 /2009-RC-I respectively. The Revisional Authority vide final orders dated 23.8.2011, has been pleased to allow the revision applications and set aside the orders dated 25.4.2009 passed by the State Government rejecting the ML and PL applications of the Company. 16.2. The State of Orissa has filed two Writ Petitions being W.P. C No.6429 of 2012 and W.P. C No.6431 of 2012 against the Final Order No.550/2011 549/11 dated 23.09.2011 passed by Government of India in Revision Application No.22 6 /2009-RC-I Revision Application No.22 7 /2009-RC-I respectively. The same is pending adjudication before the Orissa High Court. The Company is number aware if M s. POSCO has challenged the said order passed by the Ld. Revisional Authority. 16.3 The recommendation in favour of POSCO purportedly under Section 11 5 is number a valid recommendation as per the provisions of the Act. Section 11 5 would have numberapplication in the present case where the applicants were being companysidered simultaneously and the same has to be granted to the applicant who satisfies the criteria under Section 11 3 when companypared with the others. The Revisional Authority vide order dated 27.09.2007 had directed to companysider all applications simultaneously. Therefore, all the applications had to be companysidered taking into companysideration the parameters of Section 11 3 . The State Government itself in its recommendation dated 9.01.2009 had stated that the applicants were evaluated and taken up for disposal in accordance with Section 11 2 and 3 of the Act. But ultimately made the purported recommendation in favour of POSCO under Section 11 5 of the Act, which is number applicable. 16.4 Section 11 5 would be applicable only if the area is number-notified and the State Government has for special reasons wants to give preference to a later applicant to an application which was received earlier. The special reasons need number be other than what has been mentioned in Section 11 3 but may be over and above the reasons mentioned in Section 11 3 . Section 11 5 will have numberapplication where applications are companysidered simultaneously for areas which are numberified, which is the present case. The recommendation dated 9.01.2009 made by the State Government is number sustainable. As far as the companytentions raised by Geomin Mienrals claiming priority by virtue of being an earlier applicant, it was submitted that the said companytention numberlonger holds force after the amendment of Section 11 2 of the Act. As per the amended Section 11 2 , all applications which were made during the period of numberification and all applications received prior to the publication and had number been disposed of shall be deemed to have been received on the same day for the purpose of assigning priority. Therefore, a prior applicant has numberpreferential right to be companysidered over a later applicant. It is submitted that the right, if any, under the pre-amended provisions stands obliterated after the amendment came into force and cannot be companystrued as a vested right. It was further companytended that the Court, if it so deems fit may direct the Central Government to companysider all applications while deciding grant of prior approval under Section 5 1 of the Act, after giving the parties a right to represent and decide the same taking all factors into companysideration that Kudremukh Company is a public sector undertaking and the substantial area of the proposed recommended area was prospected at the companyt of Kudremukh Company. The same may be decided uninfluenced by any observations made in the impugned judgment and the recommendation made under Section 11 5 . The companytentions of the Kudremukh Company was summarised as follows The Kudremukh Company is a public sector undertaking which is best suited to protect national resources of the companyntry. ii The Company may be allotted at least the portion of the area which was prospected by the Department of Geology at the companyt of more than 1 crore iii Based on the assurances of the State Government at the highest level, the Company has altered its position to its detriment and the Government ought to have granted the Pl ML to the petitioner iv The Company is more meritorious as companypared to others, as it has special knowledge in mining operations, the nature and quality of the technical staff and adequate financial resources, which are the prescribed companysiderations in Section 11 3 of the Act. As far as the so-called proposed investment in Industry based on mines by POSCO is companycerned, it is still illusory and numberhing tangible has been invested on the ground. The Companys merit has also been recognised by the State Government, but it erroneously claimed that POSCO is more meritorious on the ground of the so-called proposed steel plant which is yet to take off and the work on the plant has number yet companymenced. In the aforesaid factual background and rival companytentions made in the appeals, intervention petitions as well as companynter affidavits, the main issue emerges for companysideration is whether the writ petition was premature and in the case of applicants whether pre amended Section 11 or amended Section 11 of the MM DR Act is applicable. Before deciding the aforesaid issues it is relevant to numbere that the issue relating to companypetence of the State Government to make reservation and the 1962 numberification issued by the State Government reserving certain areas fell for companysideration before this Court in Monnet Ispat and Energy Limited v. Union of India Ors. 2012 11 SCC 1. In the said case, this Court held that the authority of the State Government to make reservation of a particular mining area within its territory for its own use is the offspring of ownership, and it is inseparable therefrom unless denied to it expressly by an appropriate law. By MM DR Act that has number been done by Parliament. Setting aside by a State of land owned by it for its exclusive use and under its dominance companytrol, is an incident of sovereignty and ownership. In the light of aforesaid observation made by this Court in Monnet Ispat Energy v. Union of India Ors. 2012 11 SCC 1 and in view of the relevant facts of the present case, it is to be determined as to whether the writ petition preferred by Geomin was pre-mature. Under Section 5 of the MM DR Act, the State Government cannot grant a reconnaissance permit, prospective licence or mining lease to any person unless previous approval of the Central Government has been obtained. The proviso to Section 5 1 expressly prohibits grant of PL except with previous approval of Central Government as quoted hereunder Further, where Section 11 5 is invoked, there also prior approval of the Central Government is also required. The proviso to Section 11 5 prescribes that prior approval of Central Government shall be obtained before passing any order under the sub-section. In the present case the State Government has only made recommendations and has sought approval of Central Government under proviso to Section 5 1 and proviso to Section 11 5 but numberfinal decision has been taken. The State Government can pass final order granting mining licence only if approval is granted by the Central Government under Section 5 1 or Section 11 5 which reads as follows 5 1 . A State Government shall number grant a reconnaissance permit, prospecting licence or mining lease to any person unless such person a is an Indian national, or a companypany as defined in sub-section 1 of section 3 of the Companies Act, 1956 1 of 1956 and b satisfies such companyditions as may be prescribed Provided that in respect of any mineral specified in the First Schedule, numberreconnaissance permit, prospecting licence or mining lease shall be granted except with the previous approval of the Central Government. 11 5 . Notwithstanding anything companytained in sub-section 2 , but subject to the provisions of sub-section 1 , the State Government may, for any special reasons to be recorded, grant a reconnaissance permit, prospecting licence or a mining lease, as the case may be, to an applicant whose application was received later in preference to an applicant whose application was received earlier Provided that in respect of minerals specified in the First Schedule, prior approval of the Central Government shall be obtained before passing any order under this sub-section. Iron ore is a major mineral specified in Para C of the First Schedule. In matters of such major mineral, even State Government itself cannot undertake prospective or mining operations without having prior companysultation with the Central Government as per Section 4 3 of the Act, and if prospecting licence or mining lease is to be granted to any other person, then previous approval of Central Government is to be obtained under proviso to Section 5 1 . The companysideration of recommendation made by the Central Government for grant of prior approval is an exclusive jurisdiction of the Central Government under the MM DR Act, 1957 and there is numbergood reason for pre-empting the Central Government from companysidering the merits of the recommendation. Until the Central Government has passed an order either granting or refusing approval under Section 5 1 and Section 11 5 of the Act, it would number be permissible for any person to file a writ petition under Article 226 of the Constitution of India and any such petition if filed would be premature. In the instant case, the High Court companymitted a grave error of law in proceeding to observe that special reasons did number exist on invoking Section 11 5 and that there was numbercomparison of merits in the record. The record has been shown to this Court and it is apparent that the State Government has tabulated and evaluated the inter se merits and has companycluded that POSCO is more meritorious. All applications were given a hearing. In the circumstances, the High Courts observations are number justified and in fact the High Court appears to have usurped the jurisdiction of the Central Government in proceeding to make these remarks. The scrutiny of the merits was premature and the High Court should have refrained from entering into the merits. The second proviso to Rule 63A also provides that the disposal of the applications by the State Government in case of minerals listed in the First Schedule to the Act shall mean either recommendation to the Central Government for grant of mineral companycession, and in all other cases disposal shall mean refusal to grant the mineral companycession. This is also an indication that the recommendation made by the State Government does number companystitute an order as envisaged by Section 30 of the Act. The next issue relates to application of Section 11 i.e. whether preamended Section 11 or post amended Section 11 shall apply. We have numbericed that by amending Act, First Proviso to Section 11 2 was inserted. Pre-amended number obsente clause i.e. sub Section 4 of Section 11 was re-numbered as sub Section 5 to Section 11 and a new sub Section 4 to Section 11 was introduced by amending Act. The pre amended provisions of Section 11 2 , 3 and 4 and the post amended provisions of Section 11 2 , 3 , 4 and 5 read as follows Pre-amended provisions of Section 11 2 , 3 and 4 are as follows- 11 2 . Subject to the provisions of sub-section 1 , where two or more persons have applied for a prospecting licence or a mining lease in respect of the same land, the applicant whose application was received earlier shall have a preferential right for the grant of the licence or lease, as the case may be, over an applicant whose application was received later Provided that where any such applications are received on the same day, the State Government,after taking into companysideration the matters specified in sub-section 3 , may grant the prospecting licence on mining lease, as the case may be, to such one of the applicants as it may deem fit. 11 3 . The matters referred to in sub-section 2 are the following- a any special knowledge of, or experience in, prospecting operations or mining operations, as the case may be, possessed by the applicant b the financial resources of the applicant c the nature and quality of the technical staff employed or to be employed by the applicant d such other matters as may be companysidered. 11 4 . Notwithstanding anything companytained in subsection 2 but subject to the provisions of sub-section 1 , the State Government may for any special reasons to be recorded and with the previous approval of the Central Government, grant a prospecting licence or a mining lease to an applicant whose application was received later in preference to an applicant whose application was received earlier. Post amended provisions of Section 11 2 , 3 , 4 and 5 are as follows 11 2 . Subject to the provisions of sub-section 1 , where the State Government has number numberified in the Official Gazette the area for grant of reconnaissance permit or prospecting licence or mining lease, as the case may be, and two or more persons have applied for a reconnaissance permit, prospecting licence or a mining lease in respect of any land in such area, the applicant whose application was received earlier, shall have the preferential right to be companysidered for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, over the applicant whose application was received later Provided that where an area is available for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, and the State Government has invited applications by numberification in the Official Gazette for grant of such permit, licence or lease, all the applications received during the period specified in such numberification and the applications which had been received prior to the publication of such numberification in respect of the lands within such area and had number been disposed of, shall be deemed to have been received on the same day, for the purposes of assigning priority under this sub section. Provided further that where any such application are received on the same day, the State Government, after taking into companysideration the matter specified in sub-section 3 , may grant the reconnaissance permit, prospecting licence or mining lease, as the case may be, to such one of the applicants as it may deem fit. 11 3 . The matters referred to in sub-section 2 are the following - a any special knowledge of, or experience in, reconnaissance operations, prospecting operations or mining operations, as the case may be, possessed by the applicant b the financial resources of the applicant c the nature and quality of the technical staff employed or to be employed by the applicant d the investment which the applicant proposes to make in the mines and in the industry based on the minerals e such other matters as may be prescribed. 11 4 . Subject to the provisions of sub-section 1 , where the State Government numberifies in the Official Gazette an area for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, all the applications received during the period as specified in such numberification, which shall number be less than thirty days, shall be companysidered simultaneously as if all such applications have been received on the same day and the State Government, after taking into companysideration the matters specified in sub-section 3 , may grant the reconnaissance permit, prospecting licence or mining lease, as the case may be, to such one of the applicants as it may deem fit. 11 5 . Notwithstanding anything companytained in sub-section 2 , but subject to the provisions of sub-section 1 , the State Government may, for any special reasons to be recorded, grant a reconnaissance permit, prospecting licence or a mining lease, as the case may be, to an applicant whose application was received later in preference to an applicant whose application was received earlier Provided that in respect of minerals specified in the First Schedule, prior approval of the Central Government shall be obtained before passing any order under this sub-section. The State of Orissa and some others have taken plea that amended Section 11, as amended by Act 38 of 1999 w.e.f. 20th December, 1999, would apply. According to the State of Orissa the preferential right envisaged in Section 11 1 is companysiderably distinct from the preference envisaged by Section 11 2 . It is only in the case of Section 11 1 where a person has already held a reconnaissance permit or a prospective licence that he gets a preferential right for obtaining a prospecting licence or mining lease. It may be seen that Section 11 5 is subject to the provisions of subsection 1 and, therefore, the State Government has numberauthority to give special reasons for overriding the preference. Further, Section 11 5 is numberwithstanding Section 11 2 , thus the preference under Section 11 2 can be overridden by special reasons. Another distinction is that while Section 11 1 uses the expression shall have a preferential right for obtaining, Section 11 2 uses the expression shall have the preferential right to be companysidered for grant. Thus, under Section 11 2 , the preferential right is only in relation to companysideration. The preference envisaged under Section 11 2 does number mean that the other applicants are number to be companysidered. It companyld only mean that if on an inter se companysideration, the applicants are at par, then the prior application may be given a preference. On the other hand learned companynsel for the Geomin has submitted that pre-amended Section 11 2 shall be applicable. In State of Tamil Nadu v. M s Hind Stone, 1981 2 SCC 205 similar question fell for companysideration before this Court. That was a case relating to renewal of lease for mining minerals. The argument was that Rule 9 itself laid down the criteria for grant of renewal of lease and therefore, Rule 8-C should be companyfined, in companysidering applications for grant of leases in the first instance. This Court held that an application for the renewal of a lease is, in essence an application for the grant of a lease for a fresh period and, therefore, the Rule 8C is attracted. Amended Section 11 2 is applicable where the State Government has number numberified in the Official Gazette the area for grant of reconnaissance permit or prospective licence or mining lease and two or more persons have applied for reconnaissance permit, prospective licence or mining lease in respect of any land in such area, the applicant whose application was received earlier, shall have the preferential right to be companysidered for grant of reconnaissance permit, prospective licence or mining lease, over the applicant whose application was received later. However, as per First proviso to Section 11 2 where an area is available for grant of reconnaissance permit, prospecting licence or mining licence, and the State Government has invited applications by numberification in the Official Gazette for grant of such permit, licence or lease, all the applications received during the period specified in such numberification and the applications which had been received prior to the publication of such numberification in respect of the lands within such area and had number been disposed of, shall be deemed to have been received on the same day for the purposes of assigning priority under said sub-section. Thus under amended Proviso to Section 11 2 , even those applications received prior to the publication but had number been disposed of, shall be deemed to have been received on the same day for the purpose of assigning priority under the said sub Section. According to us, this is number the stage to decide as to whether in the present case the pre-amended or amended Section 11 2 shall be applicable and thereby priority should be assigned under pre-amended or amended Section 11 2 as the matter has already been companysidered by the State Government and recommendation is required to be companysidered by the Central Government under Section 5 1 of the Act. The Central Government is required to go through the relevant facts of each case to determine whether the recommendation is to be approved or number. While deciding the question the Central Government will keep in mind the order which was passed by the Revisional Authority Central Government in the case of Dagara on 2nd May, 2008. It is well settled that numberapplicant has statutory or fundamental right to obtain prospecting licence or a mining lease. In this companynection one may refer to this Court decision in Monnet Ispat supra . Therefore, the High Court before interfering with the recommendation, ought to have looked into the nature of recommendation.

ORIGINAL JURISDICTION Writ Petition c No. 857/87 etc. etc. Under Article 32 of the Constitution of India . Altaf Ahmed, Addl. SolicitorGeneral, M.L. Verma, G.L. Sanghi. K. Labiri, Sarva Miner, Narain, S. Bhattacharya, Vivek Gambhir, S.K. Gambhir, Vijay-Hansaria, P. Pameswaran, K.Jain, Rajiv Dutta, M.N. Shroff, Ms. A.Subhashini, Ms. PratibhaJain, L.K. Gupta, M.A. Firoz, Naresh K. Sharma, A.K. Goel, Ashok K. Mahajan, Ms. Sushma Suri and Kailash Vasdev for the appearing parties. The judgment of the Court was delivered by P. JEEVAN REDDY, J. The petitioners in this batch of writ petitions question in the validity of the levy and companylection of cess under section 3 of the Vegetable Oils Cess Act, 1983 for the period companymencing 1st March, 1986 and ending with 31st March, 1987. Parliament enacted in the year 1983 the National Oilseeds and Vegetable Oils Development Board Act, 1983 being Act 29 of 1983 hereinafter referred to as the Board Act. The Act was intended to provide for the development, under the companytrol of the Union, of the oilseeds Industry and the Vegetable Oils Industry and for matters companynected therewith. The Act companytemplated establishment and companystitution of a board called the National Oilseeds and Vegetable Oils Development Board. The functions of the Board were specified in section 9. In short the duty of the Board was to promote the development, by such measures as it thought fit, subject to the companytrol of the Central Government, the Oilseeds Industry and the Vegetable Oils Industry. Section 12 provided for companystitution of Oilseeds and Vegetable Oils Development Fund. The fund was to be applied for promoting the purposes of the Act. Simultaneously with the Board Act was enacted the Vegetable Oils Cess Act, 1983 being Act 30 of 1983 , hereinafter referred to as the Cess Act. The purpose of this Act is stated in sub-section 1 of section 3. It is to levy and companylect by way of cess, for the purposes of the National Oilseeds and Vegetable Oils Development Board Act, 1983, a duty of excise on vegetable Oils produced in any mill in India at such rate number exceeding Rs.5 per quintal on vegetable oil, as the Central Government may, from time to time, specify by numberification in the Official Gazette. Sub-section 2 of Section 3 clarified that the duty of excise levied under sub-section 1 section 3 shall be in addition to the duty of excise leviable on vegetable oils under the Central Excises and Salt Act, 1944 or any other law for the time being in force. Sub-section 3 stated that the duty of excise levied on section 3 1 shall be payable by the occupier of the mill in which the vegetable oil is produced. Sub-section .4 provided that the provisions of the Central Excise Act and the Rules made thereunder including those relating to refunds and exemptions from duty, shall so far as may be, apply in relation to the levy and companylection of the said duty of excise as they apply in relation to the levy and companylection of the duty of excise on vegetable oils under that Act. Section 4 provided that the proceeds ,of the duty of excise levied under section 3 1 shall first be credited to the Consolidated Fund of India. Subject to appropriation made by law by the Parliament, the Central Government companyld pay to the Board from time to time such amounts from out of the said companylections as it thought fit for being utilised for the purposes of the Board. Section 7 amended certain provisions of the Produce Cess Act, 1966. It is thus clear that the cess, which is called a duty of excise, levied under section 3 of the cess Act was intended to serve the purposes of the Board Act. The said cess was accordingly levied and companylected on and from 1983. The Cess Act was, however, repealed by section 12 of the Cotton, Copra and Vegetable Oils Cess Abolition Act, 1987 being Act 4 of 1987 , hereinafter referred to as the Repeal Act. Chapter IV of the Repeal Act provides for the repeal inter alia of the Vegetable Oil Cess Act, 1983. Section 12 is the repealing section. Chapter V, companytaining only one section namely section 13, is relevant for purposes. Chapter V carries the heading COLLECTION OF ARREARS OF DUTIES OF EXCISE,. Section 13 reads as follows Collection and payment of arrears of duties of excise-Notwithstanding anything companytained in the amendments made to the Produce Cess Act, 1966 15 of 1966 or the repeal of the Copra Cess Act, 1979 4 of 1979 or the Vegetable Oils Cess Act, 1983 30 of 1983 , by this Act, any duty of excise, levied under any of the said Acts immediately before the companymencement of this Act, but has number been companylected before such companymencement, shall be liable to be companylected after such companymencement in accordance with the provisions of the said Acts for being paid into the Consolidated Fund of India as if this Act had number been enacted, The Statement of Objects and Reasons appended to the Bill,. which became the Repeal Act stated inter alia that the abolition of the said cess was with a view to reduce the number of cesses and multiplicity of taxes. The petitioners do number dispute the validity of the levy of the said cess duty of excise till the 28th February, 1986. Their submission is companyfined, as stated hereinbefore, to the period companymencing on. March 1, 1986 and ending with March 31, 1987. As numbericed here in before, the Cess Act was repealed on and with effect from March 31, 1987 by section 12 of the Repeal Act. Section 13 of the Repeal Act expressly provides numberwithstanding the said repeal, the duty of excise levied under the said Act immediately before the companymencement of the Repeal Act, but which has number been companylected before such companymencement, shall be liable to be companylected even after the repeal, in accordance with the Cess Act, as if the said Cess Act has number been repealed. In the face of this provision, it would appear that the petitioners dispute as to their liability to pay the said cess for the period March 1, 1986 to March 31, 1987 is of little avail. The petitioners, however, rely upon certain circumstances grounds in support of their companytention which we may number deal with. The petitioners are manufacturers of vegetable oil, which was subject to the cess duty of excise under section 3 of the Cess Act. They rely upon the following circumstances and ground in supports of their plea In his Budget Speech delivered on 28.2.1986, presenting the Budget 1986-87, the Union Minister of Finance stated the long term Fiscal Policy recognises that cesses levied as excise duties companytribute to the multiplicity of taxes. As an endeavour to reduce the number of the cesses it has been decided to dispense with the cess on companyton, companyra and vegetable oils. The Ministry of Agriculture will take appropriate action in the matter. The loss to the exchequer on this account will be Rs.5.90 crores. The Budget proposals also specify the loss of revenue on account of the decision to dispense with the cess on vegetable oils among others. This, Speech made on the floor of the Lok Sabha speaks of a decision already taken by the Government and is enforceable and effective from the said date. In pursuance of the said decision of the Government of India, the Directorate of Vanaspati, Vegetable Oils and Fats addressed the letter dated August 11, 1986 to the Commissioner Tax Research Department of Revenue,. New Delhi asking him to issue instructions to all companycerned indicating that the cess on vegetable oils has been dispensed with and as such the cess shall number be companylected. It was further directed that the cess companylected, if any, since April 1, 1986 shall be refunded. A companyy of this letter was sent to the President, Central Organisation for Oil Industries and Trade, Bombay. Counsel for the petitioners Shri M.L. Verma and G.L. Sanghi urged the following companytentions The Budget Speech of the Finance Minister delivered on the floor of the Lok Sabha companystitutes a enforceable and effective decision upon which the petitioners were entitled to act. The said decision was exemplified and implemented by way of a companymunication from the Directorate of Vanaspati, Vegetable Oils and Fats referred to above. In view of the said companymunication, the petitioners did number pass on the burden of the said cess to their purchasers on and from March 1, 1986. It is number open to the Government to go back upon the said decision and demand cess for the period subsequent to March 1, 1986. By virtue of sub-section 4 of section 3 of the Cess Act, Rule 8 of the Central Excise Rules is attracted among other provisions of the Central Excise Act and Rules. Rule 8 empowers the Central Government to grant exemption on any excisable goods from the whole or any part of duty leviable on such goods. Sub rule 1 of Rule 8 empowers the Central Government to grant exemption while Sub-rule 2 empowers the Central Board of Excise and Customs to grant exemption. Inasmuch as section 3 4 of the Cess Act applies the provisions of the Central Excise Act and the Rules subject to the rider so far as may be, the provisions in Rule 8 should be read with the necessary modification. In other words, while sub-rule 1 of rule 8 must be read as empowering the Central Government to grant exemption, sub-rule 2 must be read as companyferring a similar power upon the Central Government and or the Directorate of Vanaspati, Vegetable Oils and Fats. Unlike sub-rule 1 , sub-rule 2 does number require the order of exemption to be published in the Official Gazette number does it require that such exemption should be through a numberification. The budget proposals of the Finance Minister and the letter of the Directorate of the Vanaspati and Vegetable Oils aforesaid are relatable to sub-rule 2 or Rule 8 of Central Excise Rule read with sub-section 4 of section 3 of the Cess Act. Reading them together it must be held that the Government and the Directorate have exempted the vegetable oils from the levy under section 1 of section 3. We find it difficult to agree. It is number brought to our numberice that the budget proposals companytained in the Finance Ministers speech were accepted by the Parliament. The cess having been imposed by a Parliamentary enactment companyld be rendered inoperative only by a Parliamentary enactment. Such repealing enactment came only in the year 1987 with effect from April 1, 1987. Not only that. The repealing Act expressly provided in section 13 that the cess due before the date of said repeal. but number companylected, shall be companylected according to law as if the Cess Act is number repealed. This provision amounts to a positive affirmation of the intention of the Parliament to keep the said imposition alive and effective till the date of the repeal of the Cess Act. In the face of the said statutory provisions, numberrights can be founded-nor can the levy of the cess be said to have been dispensed with by virtue of the alleged decision referred to in the Finance Ministers speech or on account of the letter dated August 11, 1986. The Finance Ministers speech is number law. The Parliament may or may number accept his proposal. Indeed, in this case, it did number accept the said proposal immediately but only a year later. It is only from the date of the repeal that the said levy becomes inoperative. Now companying to the argument based upon Rule 8 of the Central Excise Rules read with section 3 4 of the Cess Act, we find it totally unacceptable. No numberification has been issued under rule 8 1 by the Central Government-much less was any such numberification published in the Gazette. No special order has also been made by the Central Board of Excise and Customs in this behalf under rule 8 2 . The cess imposed under section 3 1 of the Cess Act, it may be remembered, is a duty or Excise as stated in section 3 itself. Therefore, the Central Board of Excise and Customs was perhaps companypetent to grant exemption even in the case of said cess-though we do number wish to express any definite opinion on this question since it was number debated at the Bar. Suffice it to say that the Central Government cannot again be brought in under sub-rule 2 of rule 8 in the place of Central Board number can the Directorate of Vanaspati and Vegetable Oils be equated to Central Board of Excise and Customs. The words so far as may be occurring in section 3 4 of the Cess Act can number be stretched to that extent. Above all it is extremely doubtful whether the power of exemption companyferred by rule 8 can be carried to the extent of nullifying the very Act itself. It would be difficult to agree that by virtue of the power of exemption, the very levy created by section 3 1 can be dispensed with. Doing so would amount to nullifying the Cess Act itself. Nothing remains thereafter to be done under the Cess Act. Even the language of rule 8 does number warrant such extensive power. Rule 8 companytemplates merely exempting of certain excisable goods from the whole or any part of the duty leviable on such goods. The principle of the decision of this Court in Kesavananda Bharti Sripadagalvaru and others v. State of Kerala and another A.I.R. 1973 S.C. 1461 applies here perfectly. It was held therein that the power of amendment companyferred by Article 368 cannot extend to scrapping of the Constitution or to altering the basic structure of the companystitution. Applying the principle of the decision, it must he held that the power of exemption cannot be utilised for, number can it extend to, the scrapping of the very Act itself. To repeat, the power of exemption cannot be utilised to dispense with the very levy created under section 3 of the Cess Act or for that matter under section 3 of the Central Excise Act. Mr. Sanghi submitted that the Board companytemplated under the Board Act never did actually start functioning and, therefore, the levy of cess is impermissible. It is difficult to agree with this companytention either. As the Preamble to the Cess Act indicates, the levy of the said cess was number for the purpose of the Board but for the purpose of the development of the Oilseeds Industry and Vegetable Oils Industry. The Board was merely a medium in that effort. It must be numbericed that the cess was to be credited to the Consolidated Fund of India, out of which requisite sums of money to be utilised for the purpose of the Board Act. In any event there is numberhing to show that the Board did number become operational except the bare assertion to that effect. A vague allegation cannot merit any credence. In Writ Petition 963 of 1987 Mr. Sanghi raised an additional companytention that the goods companycerned therein cannot be called Vegeatable Oil within the meaning of section 3 1 of the Cess Act and, therefore, the levy of the cess thereon is incompetent.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 64 of 1951. On appeal from the Judgment and Decree dated the 16th April. 1948, of the High Court of Judicature at Allahabad Malik C.J. and Prasad J. in First Appeal No 358 of 1943 arising out of the ent and Decree dated the 22nd February, 1943, Judgment and Decree dated the 22nd February, 1943 of the Court of the Additional Civil Judge Benares, in Original Suit No. 33 of 1938. Gopi Nath Kunzru K. B, Asthana, with him the appellants. Krishna Shankar for the respondents. 1952. April 25. The judgment of the Court was delivered by DAs J. - This appeal arises out of an application by five out of ten judgment-debtors made under section 8 of the P. Debt Redemption Act No. of 1940 for ascertaining the amount due by them in accordance with the provisions of sections 9 and 10 of that Act and for amending the decree passed on March 31, 1939, by the Additional Civil Judge, Banaras, in O.S. No. 33 of 1938. The facts material for the purposes of this appeal may number be briefly stated. By a mortgage deed executed on June 22, 1922, Madho Ram, Sita Ram, Jai Ram aud Lakshman, all sons of Pandit Raja Ram Pant Sess, mortgaged cer-tain immovable properties in favour of Damodarji, son of Kamta Nathji, owner of the Kothi Joshi Shivanath Vishwanath for the due repayment of the sum of Rs. 8,000 advanced on that date by a cheque together with interest thereon at 12 annas per cent per mensem with quarterly rests. On July 28, 1931, the said mortgagors and their sons executed a mortgage over the same properties in favour of Kothi Kamta Nathji Vishwanathji for the due repayment of Rs. 3,000 with interest thereon at twelve annas per cent per mensem with quarterly rests. It is recited in the deed that the sum of Rs. 8,000 was advanced on this date by a cheque and that the amount was utilised in paying up the amount due under the earlier mortgage deed to Damodarji proprietor of Kothi Shivanath Vishwanath. In 1935 the U.P. Agriculturists Relief Act No. XXVII of 1934 came into force. On May 1938, Girjadharji, son of Damodarji, and Murlidharji, minor son of Gangadharji who was another son of Damodarji, filed suit No. 33 of 1938 in the Court of the Additional Civil Judge, Banaras, against the mortgagors and their sons for the recovery Rs. 9,477-2-0 due as principal and interest up to date of suit and for further interest under the mortgage deed of July 28, 1931. It appears from the judgment of the High Court underappeal that in their written statement the mortgagors claimed the benefit of the U.P. Agriculturists Relief Act No. XXVII of 1934 . The plaintiffs companytended that the mortgagors were members of a joint Hindu family and as Sita Ram one of the mortgagors was assessed to income-tax the mortgagors were number agriculturists as defined in section 2 2 of that Act and, therefore, companyld number claim the benefit companyferred on the agriculturists by that Act. The trial Court, by its judgment dated March 31, 1939, held that though Sita Ram was assessed to incometax for the year 1931-32, the amount of such incompanyetax did number exceed the amount of cess payable on the land held by him and companysequently the second proviso to section 2 2 did number apply to him and he was, therefore, an agriculturist and as the other mortgagors were also agriculturists all of them were entitled to the benefits under the Act. Accordingly, after scaling down the interest, a sum of Rs. 9,497-14-1 was declared to be due for principal, interest and companyts up to March 31, 1939, and a preliminary mortgage decree for sale was passed in that suit. In 1940 the U.P. Debt Redemption Act No. XIII of 1940 came into force. On April 11, 1942, five of the judgmentdebtors made an application under section 8 of this Act before the Additional Civil Judge, Banaras, who passed the decree. In the petition it was stated that the debt was actually advanced in 1922, that the petitioners were agriculturists within the meaning of Act XIII of 1940, that the decreeholders can only get interest at the reduced rate of Rs. 4-8-0 per cent. per annum from 1922, and that after adjustment of accounts numberhing will be found ,outstanding against the petitioners. The prayer was that an account of the moneylending business be made from the beginning of 1922 and the decree in suit No. 33 of 1938 be modified by reducing the amount due thereunder. The decree-holders filed a petition of objection asserting, inter alia, that the petitioners were by numbermeans agriculturists, that they and the respondents Nos. 3 to 7 were members of a joint Hindu family at the time of the execution of the mortgage deed of July 28, 1931, that Sita Ram used to pay income-tax at the date of the mortgage in suit and paid even at the time of the application, that all the members of the petitioners family were number agriculturists within the meaning of the Act and were, therefore, number entitled to the benefits thereof, that the debt advanced under the mortgage deed of July 28, 1931, was number a loan as defined in the Act and, therefore, the Act did number apply. It will be numbericed that although the judgment-debtors-applicants specifically prayed for the accounts being taken from 1922, when the loan was said to have been actually advanced, the decree-holders, in their petition of objection, did number companytest that position. At the hearing of the application before the Additional Civil Judge, the learned pleader for the decree-holders admitted that with the exception of Sita Ram the remaining judgment-debtors were agriculturists under Act No. XIII of 1940 but that as Sita Ram was a party to the mortgage in suit they were number entitled to the benefit of the Act. Two witnesses, namely Suraj Mani Tripathi and Sita Ram, were examined on behalf of the judgment-debtors applicants. Sita Ram stated that since 1907 he had been a teacher in Harish Chandra Intermediate College of Banaras, that in 1930 his salary was Rs. 90 per month, that since February 1932 to 1936 he paid incometax and that after that he paid numberincompanye-tax. His evidence was companyroborated by Suraj Mani Tripathi who was the Accountant of the College from 1930 to 1042. Referring to the College Acquittance Roll Suraj Mani Tripathi deposed that the pay of Sita Ram was Rs. 90 per month throughout 1930, that in 1930 numberincome-tax was levied, that in 1931 also his salary was Rs. 90 per month and that numberincome-tax was deducted in 1931 too, that the first deduction of incompanye-tax from his salary was made in February 1932. No rebutting evidence was adduced by the decree-holders on the hearing of the application under section 8 of the Act of 1940. The income-tax assessment form filed during the trial of the mortgage suit and marked as exhibits is dated February 9, 1933, and shows that on that date Sita Ram was assessed at Rs. 1-14-0 as income-tax on Rs. 180 for the year 1931-32. By his judgment delivered on February 22, 1943, the Additional Civil Judge found that Sita Ram was number assessed to income-tax either at the date of the application under section 8 or at the date of the mortgage of 1931 and, therefore, held that the applicants were agriculturists and that the case related to a loan as defined in Act XIII of 1940. He then went on to discuss the question whether the account should be reopened from June 2, 1922, when the earlier mortgage was executed or from July 28, 1931, when the mortgage in suit was executed. The decree-holders who did number adduce any evidence on the hearing of the application evidently relied on the evidence adduced in suit No. 33 of 1938. After discussing that evidence the learned Judge came to the companyclusion that so far as the judgment-debtors were companycerned the mortgagees in the two mortgages were one and the same. He adversely companymented on the number-production of the books of account by the decree-holders. Re-opening the accounts from June 2, 1922, the learned Judge companycluded that the whole of the principal and interest payable according to the Act had been fully discharged and that numberhing remained due by the judgmentdebtors under the decree in suit No. 33 of 1938. He accordingly declared that the decree stood discharged in full and directed a numbere to that effect to be made in the Register of Suits. The decree-holders having appealed to the High Court, a Division Bench B. Mallik, C.J. andBind Basni Prasad J. by its judgment delivered on April 16, 1948, held that the question whether Sita Ram was or was number an agriculturist on July 28, 1931, was number material as it was number denied that all the judgment, debtors were agriculturists on the date of suit. Reference was made by the learned Judges to section 21 and it was stated that by reason of that section the mortgage amount companyld be recovered only from the mortgaged property and number personally from the mortgagors and accordingly the proviso to the definition of loan in section 2 9 of the Act had numberapplication and it was, therefore, number necessary to show that the borrowers were agriculturists at the date when the advance was made and that as the judgment-debtors were admittedly agriculturists at the date of the suit, the case was fully companyered by the Full Bench decision of that High Court in Ketki Kunwar v. Ram Saroop 1 . The High Court, therefore, dismissed the appeal on this point alone. The question whether the account should be reopened from 1922 or from 1931 was number raised by the decree-holders at all. he decree-holders have number companye up on appeal before us on a certificate granted by the High Court under section 110 of the Code of Civil Procedure. Sri G.N. Kunzru appearing in support of this appeal has strongly questioned the companyrectness of the Full Bench decision relied on by the High Court and the interpretation put by the High Court on section 21 and section 2 9 of the Act. As we think this appeal can be decided on a simpler ground we do number companysider it necessary, on this occasion, to express any opinion on either of these questions which are by numbermeans free from doubt. I.L.R. 1943 All. 35 A.I.R. 1942 All. 390 1942 A. J. 578. The present application has been made under section 8 of the U. P. Debt Redemption Act, 1940, subsection 1 of which, omitting the proviso, runs as follows-- Notwithstanding the provisions of any decree, or of any law for the time being in force, an agriculturist or a workman liable to pay the amount due under a decree to which this Act applies passed before the companymencement of this Act, may apply to the Civil Court which passed the decree or to which the execution of the decree has been transferred, for the amendment of the decree by reduction according to the provisions of this Act of the amount due under it, and on receipt of such application the Court shall, after numberice to the opposite party, calculate the amount due from the applicant in accordance with the provisions of sections 9 and 10 and shall amend the decree accordingly. It is clear from the wording of the sub-section that there are three pre-requisites for exercise of the right companyferred by it, namely, 1 that the application must be by an agriculturist and 2 that that agriculturist must be liable to pay the amount due under a decree to which this Act applies and 3 that that decree was passed before the companymencement of this Act. That the judgment-debtors applicants were agriculturists at the date when suit No. 33 of 1938 was filed and also in 1942 when the application under section 8 was made is companyceded by Sri G.N. Kunzru. The decree in that suit was passed on March 31, 1939, which was well before the companymencement of the Act. The only question that remains is whether the amount was due under a decree to which the Act applies. Under section 2 6 of the Act the phrase decree to which this Act applies means a decree passed before or after the companymencement of this Act in a suit to which this Act applies. Section 2 17 defines the phrase suit to which this Act applies as meaning any suit or proceeding relating to a loan. The question then, arises was the decree under which the judgment-debtors applicants are liable passed in a suit relating to a loan ? Loan is thus defined in section 2 9 Loan means an advance in cash or kind made before the first day of June, 1940, recoverable from an agriculturist or a workman or from any such person and other persons jointly or from the property of an agriculturist or workman and includes any transaction which in substance amounts to such advance, but does number include an advance the liabilityfor the repayment of which has, by a companytract with the borrower or his heir or successor or by sale in execution of a decree been transferred to another person or an advance by the Central or Provincial Government to make advances or by a companyoperative society or by a schedule bank Provided that an advance recoverable from an agriculturist or from an agriculturist and other persons jointly shall number be deemed to be a loan for the purposes of this Act unless such advance was made to an agriculturist or to an agriculturist and other persons jointly. In order to be a loan the advance must be recoverable from an agriculturist. The word recoverable seems, prima facie, to indicate that the crucial point of time is when the advance becomes recover-able, i.e., when the amount advanced becomes or falls due. Under the mortgage of 1931 the date of redemption was 6 years from the date of execution, i.e., in July 1937. Sri Kunzru companycedes that Sita Ram was number assessed to income-tax.since 1936. Assuming, but without deciding, that the proviso to section 2 9 applies and that in order to be a loan it must be shown that the advance was made to one who, at the date of the advance, was an agriculturist as defined in section 2 3 of the Act the question has yet to be answered, namely, had Sita Ram ceased to be an agriculturist by reason of clause b of the proviso to section 2 3 , that is to say, by reason of his being assessed to income-tax on July 28, 1931. According to the evidence of Surai Mani Tripathi and Sita Ram income-tax was first deducted at the source in the month of February 1932 by the College authorities and the actual assessment was made on February 9, 1933. Therefore, Sita Ram was number assessed to incometax on July 28. 1931. It is number disputed that the taxable minimum was reduced from Rs. 2,000 perannum to Rs. 1,000 per annum by the Indian Finance Supplementary Extending Act, 1931, which was enacted on November 26, 1931. Therefore, at the date of the advance, i.e., on July 28, 1931, Sita Ram Whose salary was below Rs. 2,000 per annum was number only number actually assessed to incompanye-tax but was number even liable to such assessment. The evidence of Suraj Mani Tripathi shows that the first deduction of incometax out of the salary was in the month of February 1932 and the income-tax assessment form for 1931-32 Ex.S shows that tax was assessed on Rs. 180 which was evidently salary for February and March 1932 being the last two months of the assessment year. The position therefore is that Sita Ram was number assessed to income-tax at the date of the advance in 1931 or on the due date under the deed, i.e., in July 1937, or on the date of suit in 1938 or on the date of the application under section 8 in 1942. It companysequently follows that he was an agriculturist on all these dates. The other judgment-debtors were admittedly agriculturists. Therefore, the application under section 8 was made by persons who were all agriculturists and who were liable to pay under a decree to which the Act applies, i.e., under a decree passed in a suit relating to a loan as defined by section 2 9 . The Courts below therefore, were right in their companyclusion that the judgment-debtors applicants were entitled to the benefit of the Act. Sri G.N. Kunzru finally submitted that in any case the accounts companyld number be taken from 1922, for the mortgagees under the two mortgages were different. We have already pointed out that this point was number specifically taken in the decree-holders petition of objection. The trial Court held as a fact that so far as the judgment-debtors were companycerned the mortgagees were the same in both the mortgages.

L. Dattu, J These appeals are directed against the judgment and order passed by the High Court of Judicature at Patna in Death Reference No. 6 of 2009 and Criminal Appeal DB Nos. 989 of 2009 and 158 of 2010, dated 19.08.2010. By the impugned judgment and order, the High Court has companyfirmed the judgment of companyviction, dated 17.09.2010 and order of sentence, dated 30.10.2009 passed by the Additional Sessions Judge cum FTC No. 2, Vaishali at Hazipur in Sessions Trial No. 195 and 571 of 2006, whereby the learned Sessions Judge has companyvicted the three accused-appellants for offence under Sections 120B, 148, 302 read with 149, 307 read with 149, 326, 429, 436 and 452 of Indian Penal Code, 1860 for short the IPC and sentenced them to death. Facts The Prosecution case in a nutshell is On the fateful night of 01.01.2006, the deceased informant PW-7 was sleeping in the Varanda of his house and his wife alongwith the children, two daughters aged 12 and 10 years, respectively and three sons aged 8, 6 and 3 years, respectively were sleeping in the room inside the house. At around 01.00 M., he was awakened by the sound of footsteps of several people. In the dim light of a night bulb and further from their voices, he identified the persons who had companye near his house armed with lethal weapons as appellant-accused persons and nine other villagers besides 10-11 unknown persons. Before the informant companyld escape, appellantaccused-Jagat Rai A1 and Deepak Rai A2 caught hold of him and pushed him on the ground whereafter 3-4 unknown persons got over his body and gagged him. Then A1 instructed few others to surround the house from all sides and sprinkle kerosene over it, while the other accused persons locked the door of the room where the informants wife was sleeping alongwith the children and set the house on fire trapping them inside. Thereafter, they sprinkled kerosene over the informants body and held him to the ground while A1 set the informants mouth on fire by lighting a matchstick. Upon rising of a blazing flash of fire, the accused persons fled away leaving the informant behind. While the informant also attempted to escape, A2 fired at him but the informant managed an escape and raised alarm. On hearing such numberse, the informants four brothers and other family members who resided in the adjoining houses woke up, reached the spot and witnessed the accused persons running away while the informant was on fire. Until then the fire in informants house had reached its enormity, swallowing the informants family and injuring the buffalo and calf on the property. The informant PW-7 was rushed to the Primary Health Centre, Raghopur. The fardbayan was recorded at 730 AM, on the basis of which an FIR was registered against the three appellantaccused and few others for the offence under Sections 147, 148, 149, 452, 342, 324, 326, 427, 436, 307 and 302 of the IPC at 900 AM on 01.01.2006. The motive of the occurrence was alleged to be the informants refusal even after companysistent threats by A1 to withdraw the FIR lodged by him for the theft of informants buffalo against A1 and his family, in pursuance of which two members of his family were arrested. Upon investigation, the chargesheet was drawn against the aforesaid accused persons on 21.03.2006. The learned Judicial Magistrate, First Class, Hazipur, Vaishali bifurcated the case of the absconded accused persons-A1, A2 and 8 others and companymitted the case of Bacchababu Rai A3 and 5 others for trial as Sessions Trial No. 195 of 2006, by order dated 06.05.2006. Upon arrest of the accused persons-A1, A2 and one other, their case was separated from other absconder-accused persons and companymitted to trial as Sessions Trial No. 571 of 2006, by order dated 15.12.2006. While in Sessions Trial No. 195 of 2006, 17 witnesses were examined and 14 exhibits were produced, in Sessions Trial No.571 of 2006, 14 witnesses were examined and 11 exhibits were produced by the prosecution. Since both the cases arose out of the same FIR, they were companysolidated by order dated 12.01.2008, whereafter their trial proceeded together. While A2 examined 8 witnesses, other two accused persons- Binay Rai and Ranjay Rai examined five and three witnesses, respectively in their defence. Since the evidence of prosecution witnesses recorded in the two trials companyroborates the prosecution case in material particulars, brevitatis causa and to avoid repetition we would only numberice them once. The informant PW-7 has identified the appellant-accused persons, supported the prosecution case in his evidence and testified in respect of the time and manner of occurrence of the fateful incident and the motive of the accused persons. PWs 1, 2, 3 and 4 are the brothers of PW-7 who resided adjacent to PW- 7s house. They have identified the accused persons and further companyroborated the prosecution case in respect of time of occurrence and motive of the appellant-accused persons. PW-1 has stated that as soon as he heard PW-7s shrieks and numberse from the blazing fire, he rushed outside his house and witnessed the accused persons fleeing away. He found PW-7 on fire and immediately companyered him with a blanket to douse it whereafter, he along with others attempted to set the fire off at PW-7s house but the fire having transformed into a companyflagration it was too late to save the six deceased persons. PW-5 wife of PW-2 , PW-6 mother of PW-7 , PW-14 wife of PW-1 , PW-15 sister of PW- 7 and PW-16 wife of PW-4 have also supported the prosecution case in respect of PW-1s account of the incident, i.e., the fleeing away of the three appellantaccused persons along with others and the motive of the accused persons behind the incident. PW-8, the Doctor who companyducted post mortem examination of the six deceased persons, has companyroborated the prosecution case that the death occurred by 100 burn injuries. PW-10, the Doctor who treated PW-7, has testified in respect of the injuries suffered by PW-7. His evidence alongwith the post-mortem report companyroborate the time and manner of the fateful incident. Further, PW-11 the Investigating Officer supported the prosecution case with regard to the time and place of the occurrence and the presence of charred dead bodies of the six deceased persons. The Trial Court discarded the testimonies of the defence witnesses at the outset and proceeded with the trial. Upon meticulous companysideration of the evidence on record and the submissions made by the parties, the learned Sessions Judge has observed that even though the witnesses examined by the prosecution are related to the victims, their testimonies when companysidered with due care and caution are companyroborated by the evidence of informant PW-7 , the post mortem reports, evidence of the Doctors PW-9 and 10 and the evidence of PW-11, the Investigating Officer and therefore, cannot be rejected on the prima facie ground of them being interested witnesses. The Trial Court has believed the aforesaid evidence companyroborating the prosecution case in respect of A1, A2 and A3 however, doubted the presence of other accused persons since their names have neither been mentioned in the fardbayan number has the evidence produced against them proved their offence beyond reasonable doubt. In light of the aforesaid observations, the Trial Court has reached the companyclusion that the three appellant-accused persons are guilty of the aforesaid offence and has companyvicted them accordingly while acquitting the others, by judgment dated 17.09.2009. Further, after affording an opportunity of hearing to the appellant-accused persons on the question of sentence, the Trial Court has sentenced them to death, by order dated 30.10.2009, relevant paragraphs of which are reproduced as under Heard both sides on the question of sentence on behalf of the held guilty accused Bachcha Babu Rai, Jagat Rai, Bipat Rai alias Deepak Rai, it has been submitted that before this, they have number been punished in any case of them Bipat Rai Deepak is a retired military personnel. Keeping in mind, their age has also first companyviction, minimum of sentence may be inflicted. On behalf of the prosecution it has been said that the guilty held persons Bachcha Babu Rai, Jagat Rai, Bipat Rai Deepak Rai have companymitted a heinous offence and their offence falls under the category of RARE OF RAREST. Their heinous crime has ruined the informant of this case, his wife and five children. So far Bipat Rai is companycerned, he is a retired military personnel his companyduct should be all the more decent. They are number of tender age number old. They do number deserve any mercy and they deserve death sentence. In the light of the reasoning of both sides as also on an appreciation, it is manifest, that the occurrence is of night when the informant, his wife and five minor children and cattle all have been burnt to death. The informant also subsequently died in this way, the entire family is ruined. In the light of the guidelines as given by Honble Supreme Court, this case falls under the heading of RARE OF RAREST cases. Because of this the guilty held accused persons Bachcha Babu Rai, Jagat Rai and Bipat Rai allias Deepak Rai are sentenced to death or offence u s 302/ 149 IPC. Aggrieved by the aforesaid judgment and order, the three appellant-accused persons filed appeals before the High Court which were heard alongwith the Death Reference No. 6 of 2009 and disposed of by a companymon judgment and order, dated 19.08.2010. The High Court has elaborately dealt with the evidence on record and extensively discussed the judgment and order of the Trial Court in order to ascertain the companyrectness or otherwise of the companyviction and sentence awarded to the appellant-accused persons. The High Court has observed that since, the informant is the only witness who was present at the scene of crime, his testimony alone companyld substantiate upon the specific role of accused persons in the companymission of the ghastly offence. In so far as the identification of the appellant-accused persons, the High Court has observed that the informant in the fardbeyan specifically mentions their names and, infact, attributes specific roles to them in the companymission of the offence, i.e., A1 companymanding the house to be set on fire and lighting the matchstick to set the informants mouth on fire and later, when the informant was attempting to escape, A2 firing at the informant. Further, that during the companymission of the offence the accused persons were in close proximity to the informant and the presence of dim light of bulb in the night and the illumination by flames of burning house companypled with them being known to the informant establishes their identity in the evidence of informant, which is supplemented and strengthened by the evidence of PWs 1, 2, 3, 4, 5 and 6. The High Court has further observed that the prosecution case in respect of the time and place of occurrence and the factum of accused persons fleeing the spot of occurrence immediately after setting the house on fire causing death of six persons by burning them alive and injury to the informant has been well established by companyent, reliable and unimpeachable eyewitnesses and further companyroborated by the testimonies of the Doctors, post-mortem report, medical report and the evidence of Investigating Officer. On the basis of the aforesaid, the High Court has companycluded towards the guilt of the accused appellants and sentenced them as follows since the occurrence is ghastly murder of wife and five children of the informant by closing in room for number withdrawing the case of theft of buffalo shocked the entire companymunity bringing the case in the category of rare of rarest to attract the maximum punishment and hence the reference is answered in the affirmative and I do number find any merit in the two appeals and hence the appeals are dismissed Aggrieved by the aforesaid companyviction and sentence, the appellants are before us in these appeals. The appeals before us are limited to the question of sentence. Submissions We have heard Dr. Sumant Bharadwaj learned companynsel appearing for A2, Shri Ramesh Chandra Mishra, learned companynsel appearing for A1 and A3 and Shri Nagendra Rai, learned senior companynsel appearing for the respondent-State. Dr. Bharadwaj would submit that the Courts below have erred in sentencing A2 as the reasons recorded by the Courts below do number companyform to the statutory mandate prescribed under Section 354 3 of the Code of Criminal Procedure, 1973 for short the Code , which require the judgment to record reasons in case of sentence of life imprisonment and special reasons in case of death sentence. He would submit that the since numberextraordinary reasons have been assigned by the Courts below to sentence the appellant to death instead of a less harsher sentence and that this Court in appellate jurisdiction cannot go into the same for the first time while companyfirming the death sentence, the matter requires to be remanded to the Trial Court for fresh companysideration on the question of sentence as per Section 354 3 of the Code. Further, he would place reliance upon the judgments of this Court in Ambaram v. State of M.P., 1976 4 SCC 298, Balwant Singh v. State of Punjab, 1976 1 SCC 425, Dagdu v. State of Maharashtra, 1977 3 SCC 68, Muniappan v. State of T.N., 1981 3 SCC 11 and Rajesh Kumar v. State, 2011 13 SCC 706 wherein this Court has held that special reasons are essential for awarding death sentence under Section 354 3 of the Code and in absence of such reasons has companymuted the sentence passed by the Courts below from death to life imprisonment and submit that since, in the instant case, numberspecial reasons were recorded by the Courts below while sentencing the appellants, the sentence of the appellants ought to be companymuted to life imprisonment. Shri Mishra would assail the sentence awarded by the Trial Court and companyfirmed by the High Court and submit that in the instant case mitigating circumstances overwhelmingly outweigh the aggravating circumstances and therefore, ends of justice would only be achieved by companymuting the sentence of the two appellant-accused persons, A1 and A3, from death to imprisonment for life. He would put forth the following factors in support of his submission Mitigating Circumstances Appellants are number hard companye criminals, They are number threat menace to the Society, They have numbercriminal antecedent background, They are number antisocial elements, Their companyduct in Jail has been satisfactory, The State has failed to prove that they are incapable of being reformed They have been in Jail for about seven years, Delay of seven years in execution of death sentence companyfirmed in death anticipating imminent death any moment, Death sentence is exception and life-imprisonment is rule, Global move to abolish death sentence. 138 nations have abolished death sentence while 59 companyntries including India have retained death sentence. 2009 6 SCC 498. Relevant page- 544, paras 111-112, Jagat Rai at the time of companymission of offence was 48 years while Bachcha Babu Rai was 43 years, companyparatively young, Offence was companymitted when the appellant were under the influence of extreme of mental disturbance due to pendency of criminal case, There is every probability that the appellants can be reformed and rehabilitated, All the four main objectives which state intends to achieve namely deterrence, prevention, retribution and reformation can be achieved by keeping the appellants alive. Aggravating Circumstances It was a planned, companyd-blooded brutal murder, Entire family was wiped out. A companytrario Shri Rai would support the judgment and order passed by the Courts below companyvicting the appellants of the aforesaid offence and sentencing them to death. He would submit that the reasons recorded by the Courts below fall within the statutory requirements under Section 354 3 of the Code as well as the parameters laid down by this Court for recording special reasons while sentencing a companyvict to death. He would distinguish the cases cited by Shri Bharadwaj as cases wherein the sentence of the accused persons was companymuted due to reasons besides absence of special reasons for sentencing the accused therein in the judgments and orders of the Courts below and further place reliance upon the decision of this Court in Gurdev Singh v. State of Punjab, 2003 7 SCC 258 amongst others, wherein this Court has sentenced the accused persons therein who were responsible for causing the death of fifteen persons, besides causing grievous injuries to eight others to death after balancing the aggravating and mitigating circumstances. We have given our anxious companysideration to the materials on record in its entirety, the submissions made by the learned companynsel for the parties and the judgments and orders of the Courts below. Issues for companysideration The questions which fall for our companysideration and decision are first, whether the reasons assigned by the Courts below while sentencing the appellants are special reasons under Section 354 3 of the Code and second, whether the offence companymitted by the appellants fall into the category of rarest of the rare cases so as to warrant death sentence. Cases cited by Shri Bharadwaj At the outset we would examine the decisions relied upon by Dr. Bharadwaj and examine whether at all should the sentence in the present case, for lack of special reasons being assigned by the Trial Courts as well as the High Courts, ought to be companymuted to imprisonment for life. In Ambaram case supra , the appellant-accused was tried along with four others for murder of two persons. It was the appellant therein who shot one while his companypanions assaulted the other to death with sharp-edged weapons and a lathi. He was companyvicted under Section 302 of the IPC by the Trial Court and sentenced to death alone by the Trial Court as well as the High Court against which he had approached this Court by filing a special leave petition. It is pertinent to numbere that his appeal was limited to the question of sentence. This Court has numbericed the change in the law introduced under Section 354 3 of the Code in 1973 which companyfers discretion on the Courts to inflict the death sentence or the sentence of life imprisonment each according to the circumstances and exigencies of each case but enjoins duty upon them to justify it by giving special reasons and reasons, respectively. This Court has observed as follows The High Court has number given any special reasons why Ambaram has been singled out for the award of the extreme penalty. Nor do we find any such reason to treat him differently in the matter of sentence from his companypanions who have been awarded the lesser penalty. On this short ground we allow this appeal and companymute Ambarams death sentence to that of imprisonment for life. emphasis supplied In Balwant Singh v. State of Punjab, 1976 1 SCC 425 this Court has observed as follows On the facts of this case, it is true that the appellant had a motive to companymit the murder and he did it with an intention to kill the deceased. His companyviction under Section 302 of the Penal Code was justified but the facts found were number such as to enable the Court to say that there were special reasons for passing the sentence of death in this case. emphasis supplied Thereafter, this Court has observed the error companymitted by the High Court in applying the principle of extenuating circumstances under the older Code even after the present Code companying into force in 1973 which requires the Court to assign special reasons while awarding death penalty and observed the follows The High Court has referred to the two decisions of this Court namely in Mangal Singh v. State of U.P., 1975 3 SCC 290 and in Perumal v. State of Kerala, 1975 4 SCC 109 and has then said There are numberextenuating circumstances in this case and the death sentence awarded to Balwant Singh appellant by the Sessions Judge is companyfirmed As we have said above, even after numbericing the provisions of Section 354 3 of the new Criminal Procedure Code the High Court companymitted an error in relying upon the two decisions of this Court in which the trials were held under the old Code. It wrongly relied upon the principle of absence of extenuating circumstances a principle which was applicable after the amendment of the old Code from January 1, 1956 until the companying into force of the new Code from April 1, 1974. In our judgment there is numberspecial reason number any has been recorded by the High Court for companyfirming the death sentence in this case. We accordingly allow the appeal on the question of sentence and companymute the death sentence imposed upon the appellant to one for imprisonment for life. emphasis supplied In Muniappan v. State of T.N., 1981 3 SCC 11, this Court has observed that number only has the Trial Court failed to provide adequate hearing to the accused under Section 235 2 , but also it as well as the High Court have number assigned appropriate reasons while awarding and companyfirming the sentence of the accused, respectively and thus, reached the companyclusion that the sentence of death companyld number be imposed. Further, in Dagdu case supra and Rajesh Kumar case supra this Court has companysidered the facts and circumstances of the case in its entirety while balancing the aggravating and mitigating circumstances to decide upon the adequacy of sentence awarded by the Courts below and upon reaching such satisfaction that the case did number fall into the category of rarest of the rare warranting special reasons for the award of death sentence has companymuted the sentence of the accused. Thus in the aforementioned cases, this Court has upon examination of both-the evidence on record and the reasoning of the Courts below while sentencing the accused reached an independent companyclusion that the facts and circumstances of the case do number warrant imposition of sentence of death. Therefore, it is number the absence or adequacy of special reasons alone what weighed in the mind of this Court while companymuting the sentence. The facts in toto and procedural impropriety, if any loomed large in exercising such discretion. Hence, the reliance placed on the aforementioned decisions is rejected. Scope of Article 136 vis--vis examination of special reasons Further, we are unable to accept the submission that in any case the failure on the part of the Court, which has companyvicted an accused and heard him on the question of sentence but failed to express the special reasons in so many words, must necessarily entail a remand to that Court for elaboration upon its companyclusion in awarding the death sentence for the reason that while exercising appellate jurisdiction this Court cannot delve into such reasons. Since the appellants are before us by way of an appeal by special leave, we would first examine the scope of jurisdiction of this Court under Article 136 of the Constitution of India vis--vis criminal appeals. The appellate jurisdiction vested in this Court by virtue of Article 136 is number plain statutory but expansive and extraordinary. The Court exercises its discretion and grants leave to appeal in cases where it is satisfied that the same would circumvent a grave miscarriage of justice. Such jurisdiction is number fettered by rules of criminal procedure but guided by judicially evolved principles. We are fortified by the decision of this Court in State of P. v. Dharmendra Singh, 1999 8 SCC 325, where while examining the applicability of Section 377 3 of the Code to an appeal under Article 136 has observed as follows A perusal of this section shows that this provision is applicable only when the matter is before the High Court and the same is number applicable to this Court when an appeal for enhancement of sentence is made under Article 136 of the Constitution. It is to be numbered that an appeal to this Court in criminal matters is number provided under the Code except in cases companyered by Section 379 of the Code. An appeal to this Court under Article 136 of the Constitution is number the same as a statutory appeal under the Code. This Court under Article 136 of the Constitution is number a regular companyrt of appeal which an accused can approach as of right. It is an extraordinary jurisdiction which is exercisable only in exceptional cases when this Court is satisfied that it should interfere to prevent a grave or serious miscarriage of justice, as distinguished from mere error in appreciation of evidence. While exercising this jurisdiction, this Court is number bound by the rules of procedure as applicable to the companyrts below. This Courts jurisdiction under Article 136 of the Constitution is limited only by its own discretion see Nihal Singh v. State of Punjab, AIR 1965 SC 26. In that view of the matter, we are of the opinion that Section 377 3 of the Code in terms does number apply to an appeal under Article 136 of the Constitution. This does number mean that this Court will be unmindful of the principles analogous to those found in the Code including those under Section 377 3 of the Code while moulding a procedure for the disposal of an appeal under Article 136 of the Constitution. Apart from the Supreme Court Rules applicable for the disposal of the criminal appeals in this Court, the Court also adopts such analogous principles found in the Code so as to make the procedure a fair procedure depending on the facts and circumstances of the case. emphasis supplied More so, it is settled law that an appeal by special leave under Article 136 is a companytinuation of the original proceedings. In Moran M. Baselios Marthoma Mathews II v. State of Kerala, 2007 6 SCC 517, this Court categorically observed as follows We, therefore, are of the opinion that despite the fact that the appellants had insisted upon before the High Court for issuance of a writ or in the nature of mandamus upon the State or its officers for the purpose of grant of police protection as this Court has exercised its appellate jurisdiction under Article 136 of the Constitution of India, it can and should go into that question as well viz. as to whether the writ petition itself companyld have been entertained or number, particularly, when the appeal is a companytinuation of the original proceedings. Further, this Court in Netai Bag v. State of W.B., 2000 8 SCC 262 while observing that the scope of an appeal under Articles 136 and 226 cannot be wider than the earlier proceedings, has numbericed that the appeals under said provisions are companytinuation of the original proceedings. Thus, jurisdiction of this Court in appeal under Article 136 though circumscribed to the scope of earlier proceedings is neither fettered by the rules of criminal procedure number limited to mere companyfirmation or rejection of the appeal. This Court while companysidering the question of companyrectness or otherwise of the sentence awarded by the Courts below has exercised discretionary jurisdiction under Article 136 and hence can number only examine the reasons so assigned under Section 354 3 but also substantiate upon the same, if need so be. With the aforesaid in view, let us number examine the issues before us. Issue one Special reasons under Section 354 3 of the Code Under Section 367 5 of the Code of Criminal Procedure, 1898 for short old Code , the numbermal sentence to be awarded to a person found guilty of murder was death and imprisonment for life was an exception. The Amending Act 26 of 1955 amended Section 367 5 of the old Code resulting in vesting of discretion with the Court to inflict the sentence of life imprisonment or death each according to the circumstances and exigencies of the case. The amended Section 367 5 of the old Code reads as follows 367. 5 If the accused is companyvicted of an offence punishable with death, and the companyrt sentences him to any punishment other than death, the companyrt shall in its judgment state the reason why sentence of death was number passed. The present Code which was legislated in 1973 brought a shift in the then existing penological trend by making imprisonment for life a rule and death sentence an exception. It makes it mandatory for the Court in cases of companyviction for an offence punishable with imprisonment for life to assign reasons in support of the sentence awarded to the companyvict and further ordains that in case the Court awards the death penalty, special reasons for such sentence shall be stated in the judgment. It reads as follows When the companyviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. For the first time, this shift in sentencing policy has been observed by Krishna Iyer J. as he then was in Ediga Anamma v. State of Andhra Pradesh, 1974 4 SCC 443, as follows It cannot be emphasised too often that crime and punishment are functionally related to the society in which they occur, and Indian companyditions and stages of progress must dominate the exercise of judicial discretion in this case. It is obvious that the disturbed companyscience of the State on the vexed question of legal threat to life by way of death sentence has sought to express itself legislatively, the stream of tendency being towards cautious, partial abolition and a retreat from total retention. Also Ambaram case supra , Joseph v. State of Goa, 1977 3 SCC 280, Triveniben v. State of Gujarat Further, this Court in Harnam v. State of U.P., 1976 1 SCC 163 supplemented the aforesaid observations and numbered as follows The seminal trends in current sociological thinking and penal strategy, tampered as they are by humanistic attitude and deep companycern for the worth of the human person, frown upon death penalty and regard it as cruel savage punishment to be inflicted only in exceptional cases. It is against this background of legislative thinking which reflects the social mood and realities and the direction of the penal and procedural laws that we have to companysider whether the tender age of an accused is a fetor companytra-indicative of death penalty. In Allauddin Mian v. State of Bihar, 1989 3 SCC 5 this Court has examined the purpose of inclusion of special reasons clause as follows When the law casts a duty on the judge to state reasons it follows that he is under a legal obligation to explain his choice of the sentence. It may seem trite to say so, but the existence of the special reasons clause in the above provision implies that the companyrt can in fit cases impose the extreme penalty of death which negatives the companytention that there never can be a valid reason to visit an offender with the death penalty, numbermatter how cruel, gruesome or shocking the crime may be While rejecting the demand of the protagonist of the reformatory theory for the abolition of the death penalty the legislature in its wisdom thought that the special reasons clause should be a sufficient safeguard against arbitrary imposition of the extreme penalty. Where a sentence of severity is imposed, it is imperative that the judge should indicate the basis upon which he companysiders a sentence of that magnitude justified. Unless there are special reasons, special to the facts of the particular case, which can be catalogued as justifying a severe punishment the judge would number award the death sentence. It may be stated that if a judge finds that he is unable to explain with reasonable accuracy the basis for selecting the higher of the two sentences his choice should fall on the lower sentence. In all such cases the law casts an obligation on the judge to make his choice after carefully examining the pros and companys of each case. It must at once be companyceded that offenders of some particularly grossly brutal crimes which send tremors in the companymunity have to be firmly dealt with to protect the companymunity from the perpetrators of such crimes. Where the incidence of a certain crime is rapidly growing and is assuming menacing proportions, for example, acid pouring or bride burning, it may be necessary for the companyrts to award exemplary punishments to protect the companymunity and to deter others from companymitting such crimes. Since the legislature in its wisdom thought that in some rare cases it may still be necessary to impose the extreme punishment of death to deter others and to protect the society and in a given case the companyntry, it left the choice of sentence to the judiciary with the rider that the judge may visit the companyvict with the extreme punishment provided there exist special reasons for so doing. In Bachan Singh case supra , while determining the companystitutional validity of the death penalty, this Court has examined the sentencing procedure embodied in Section 354 3 of the Code. Following issue was framed by this Court in the aforesaid companytext 15. i ii whether the sentencing procedure provided in Section 354 3 of the Code of Criminal Procedure, 1973 2 of 1974 is unconstitutional on the ground that it invests the companyrt with unguided and untrammelled discretion and allows death sentence to be arbitrarily or freakishly imposed on a person found guilty of murder or any other capital offence punishable under the Penal Code with death or, in the alternative, with imprisonment for life. To answer the said issue, this Court referred to and companysidered Jagmohan Singh v. State of U.P. which was decided under the old Code and culled out several propositions from that decision. Keeping in view of the changed legislative policy, this Court agreed with all the observations in Jagmohan Singh case supra but for twofirst, that the discretion in the matter of sentencing is to be exercised by the Judge after balancing all the aggravating and mitigating circumstances of the crime and second, that while choosing between the two alternative sentences provided in Section 302 of the IPC, i.e., sentence of death and life imprisonment, the companyrt is principally companycerned with the aggravating or mitigating circumstances companynected with the particular crime under inquiry. This Court observed that whilst under the old Code, both the sentence of death was the rule and life imprisonment was an exception, Section 354 3 of the Code has reversed the sentencing policy with the legislative mandate that if a sentence of death is to be awarded, special reasons need to be recorded by the Courts. That is to say, the legislative policy number virtually obviated the necessity of balancing the aggravating and mitigating circumstances for the award of punishment in respect of an offence of murder. The Court observed as follows in companytext of departures from Jagmohan Singh case supra 164. a The numbermal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The companyrt can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence. While companysidering the question of sentence to be imposed for the offence of murder under Section 302 of the Penal Code, the companyrt must have regard to every relevant circumstance relating to the crime as well as the criminal. If the companyrt finds, but number otherwise, that the offence is of an exceptionally depraved and heinous character and companystitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the companyrt may impose the death sentence. In the aforesaid background this Court observed that special reasons, in the companytext of the said provision, obviously mean exceptional reasons founded on the exceptionally grave circumstances relating to the crime as well as the criminal. It being extremely difficult to catalogue such special reasons, they have to be companystrued in the facts of the case and relative weight has to be given to mitigating and aggravating factors. This Court observed that these two aspects are so intertwined that isolation of one from the other would defeat the mandate of law and held with hope that in view of the broad illustrative guidelines laid down therein, the Courts 209. will discharge the onerous function with evermore scrupulous care and humane companycern, directed along the highroad of legislative policy outlined in Section 354 3 viz. that for persons companyvicted of murder, life imprisonment is the rule and death sentence an exception. Also State of Maharashtra v. Goraksha Ambaji Adsul, 2011 7 SCC 437 Sangeet v. State of Haryana, 2013 2 SCC 452 Sandesh v. State of Maharashtra, 2013 2 SCC 479 In Swamy Shraddananda 2 v. State of Karnataka, 2008 13 SCC 767 this Court opined that the term special reasons as explained in the Bachan Singh case supra indicates a relative category based on companyparison with other cases under Section 302 as under The matter can be looked at from another angle. In Bachan Singh it was held that the expression special reasons in the companytext of the provision of Section 354 3 obviously means exceptional reasons founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal. It was further said that on companyviction for murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases. In companyclusion it was said that the death penalty ought number to be imposed save in the rarest of rare cases when the alternative option is unquestionably foreclosed. Now, all these expressions special reasons, exceptional reasons, founded on the exceptional grave circumstances, extreme cases and the rarest of rare cases unquestionably indicate a relative category based on companyparison with other cases of murder. Machhi Singh, for the purpose of practical application sought to translate this relative category into absolute terms by framing the five categories. In doing so, it is held by some, Machhi Singh companysiderably enlarged the scope for imposing death penalty that was greatly restricted by Bachan Singh . The said five categories of rarest of the rare crimes delineated in Macchi Singh case supra are as follows Manner of companymission of murder When the murder is companymitted in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the companymunity. For instance, when the house of the victim is set aflame with the end in view to roast him alive in the house. when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death. when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II. Motive for companymission of murder When the murder is companymitted for a motive which evinces total depravity and meanness. For instance when a a hired assassin companymits murder for the sake of money or reward b a companyd-blooded murder is companymitted with a deliberate design in order to inherit property or to gain companytrol over property of a ward or a person under the companytrol of the murderer or vis--vis whom the murderer is in a dominating position or in a position of trust, or c a murder is companymitted in the companyrse of betrayal of the motherland. III. Anti-social or socially abhorrent nature of the crime 35. a When murder of a member of a Scheduled Caste or minority companymunity, etc. is companymitted number for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is companymitted in order to terrorise such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits companyferred on them with a view to reverse past injustices and in order to restore the social balance. In cases of bride burning and what are known as dowry deaths or when murder is companymitted in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. IV. Magnitude of crime When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, companymunity, or locality, are companymitted. Personality of victim of murder When the victim of murder is a an innocent child who companyld number have or has number provided even an excuse, much less a provocation, for murder b a helpless woman or a person rendered helpless by old age or infirmity c when the victim is a person vis--vis whom the murderer is in a position of domination or trust d when the victim is a public figure generally loved and respected by the companymunity for the services rendered by him and the murder is companymitted for political or similar reasons other than personal reasons. emphasis supplied This Court has cautioned that though the aforesaid are extremely important factors companyld number be taken as inflexible, absolute or immutable, they must be perceived only as indicators which the Courts must bear in mind while deciding upon the sentence and assigning special reasons, if required. The Constitutional Bench of this Court in Shashi Nayar v. Union, 1992 1 SCC 96 has observed that the special reasons clause means reasons, specific to the fact of a particular case, which can be catalogued as justifying a severe punishment and unless, such reasons are number recorded death sentence must number be awarded. Under this provision, if the basis for awarding the higher sentence can be explained with reasonable accuracy, after examining the pros and companys of sentencing options achieving proportional balance with the severity of the crime companymitted only then should the higher punishment be awarded. This Court has numbered that thus, Section 345 3 is a sufficient safeguard against the arbitrary imposition of the extreme penalty and unless the nature of crime and the circumstances of the offender reveal that the sentence to life imprisonment would be wholly inadequate, the Courts should ordinarily impose a lesser punishment. This Court in Sandesh v. State of Maharashtra, 2013 2 SCC 479 has discussed the aforesaid principles and observed as follows 21it is number only the crime and its various facets which are the foundation for formation of special reasons as companytemplated under Section 354 3 CrPC for imposing death penalty but it is also the criminal, his background, the manner in which the crime was companymitted and his mental companydition at the relevant time, the motive of the offence and brutality with which the crime was companymitted are also to be examined. The doctrine of rehabilitation and doctrine of prudence are the other two guiding principles for proper exercise of judicial discretion. The aforesaid would reflect that under this provision the legislature casts a statutory duty on the Court to state reasons for choice of the sterner sentence to be awarded in exceptional cases as against the rule of life imprisonment and by necessary implication, a legal obligation to explain them as distinguished from the expression reasons follows. The legislative mandate of assigning special reasons assures that the imposition of the capital punishment is well companysidered by the Court and that only upon categorization of the case as rarest of rare, thus leaving numberroom for imposition of a less harsh sentence, should the Court sentence the accused person to death. Incontrovertibly, the judicial approach towards sentencing has to be cautious, circumspect and careful. The Courts at all stagestrial and appellate must therefore peruse and analyze the facts of the case in hand and reach an independent companyclusion which must be appropriately and companyently justified in the reasons or special reasons recorded by them for imposition of life imprisonment or death penalty. The length of the discussion would number be a touchstone for determining companyrectness of a decision. The test would be that reasons must be lucid and satisfy the appellate Court that the Court below has companysidered the case in toto and thereafter, upon balancing all the mitigating and aggravating factors, recorded the sentence. We must number briefly advert to the sentencing procedure prescribed by law. Under Section 235 2 of the Code, the Court on companyvicting an accused must unquestionably afford an opportunity to the accused to present his case on the question of sentence and under Section 354 3 record the extraordinary circumstances which warrant imposition of death sentence keeping in view the entire facts of the case and the submissions of the accused. In doing so if, for any reason, it omits to do so or does number assign elaborate reasons and the accused makes a grievance of it before the higher companyrt, it would be open to that Court to remedy the same by elaborating upon the said reasons. Even when the reasons recorded by the Courts below do number companyform to the statutory mandate or the judicially evolved principles, this Court, should reach the companyclusion that harsher sentence of death requires to be imposed, companyld supplement them so as to justify the imposition of such sentence instead of remanding the matter to Courts below for recompanysideration on the question of sentence. Further, should this Court opine to the companytrary that the facts and circumstances of the case do number require imposition of capital punishment and the ends of justice would be achieved by a less harsh sentence, it companyld accordingly companymute the sentence awarded by the Courts below. This Court in Dagdu case supra has observed that remand is an exception, number the rule, and therefore ought to be avoided as far as possible in the interests of expeditious, though fair, disposal of cases. Herein, it is number the case of the appellants that the opportunity to be heard on the question of sentence separately as provisioned for under Section 235 2 of the Code was number provided by the Courts below. Further, the Trial Court has recorded and discussed the submissions made by the appellants and the prosecution on the said question and thereafter, rejected the possibility of awarding a punishment less harsh than the death penalty. However, the High Court while companyfirming the sentence has recorded reasons though encapsulated. The High Court has numbericed the motive of the appellants being number withdrawal of the case by the informant and the ghastly manner of companymission of crime whereby six innocent persons as young as 3 year old were charred to death and companycluded that the incident shocks the companyscience of the entire society and thus deserves numberhing lesser but death penalty. There being numberimpropriety by the Courts below in companypliance with the procedure prescribed under law for sentencing the appellants, only the question of adequacy and companyrectness of the special reasons assigned for awarding sentence of death requires to be companysidered by us. In our companysidered opinion, as numbericed above, it is only upon examination of the facts and circumstances of the case companyld the adequacy of the special reasons recorded by the Courts below be determined by us. Therefore, we would number companysider the second issue to determine whether at all the case falls in the category of rarest of the rare offences. Issue two Does this case fall into the category of rarest of the rare cases? We are mindful of the principles laid down by this Court in Bachan Singh v. State, 1980 2 SCC 684 and affirmed in Macchi Singh v. State of Punjab, 1983 3 SCC 470 to be observed on the sentencing policy in determining the rarest of the rare crimes. In Bachan Singh case supra this Court has held as follows While companysidering the question of sentence to be imposed for the offence of murder u s 302 of the Penal Code, the companyrt must have regard to every relevant circumstance relating to the crime as well as the criminal. If the companyrt finds, but number otherwise, that the offence is of an exceptionally depraved and heinous character and companystitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the companyrt may impose the death sentence. In Machhi Singh case supra , this Court has awarded death sentence to the accused who had methodically in a preplanned manner murdered seventeen persons of a village including men, women and children. Therein, this Court has besides outlining the five broad categories of rarest of rare cases held that in order to apply the guidelines of Bachan Singh case supra the following questions ought to be answered 39. a Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? Are the circumstances of the crime such that there is numberalternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender? This Court has held that if the answer to the above is in affirmative, then death sentence is warranted. This Court has further observed that the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof are few of the many factors which numbermally weigh in the mind of the Court while awarding death sentence in a case terming it as the rarest of the rare cases. While applying the test of rarest of the rare case, the Court has to look into variety of factors like societys abhorrence, extreme indignation and antipathy to certain types of crimes which shake the companylective companyscience of the society. This Court in Rajesh Kumar v. State, 2011 13 SCC 706 has numbericed the observations and principles evolved in Bachan Singh case supra resonating through the international sentiments on death penalty, as follows The ratio in Bachan Singh has received approval by the international legal companymunity and has been very favourably referred to by David Pannick in Judicial Review of the Death Penalty Duckworth see pp. 104-05 . Roger Hood and Carolyn Hoyle in their treatise on The Death Penalty, 4th Edn. Oxford have also very much appreciated the Bachan Singh ratio see p. 285 . The companycept of rarest of rare which has been evolved in Bachan Singh by this Court is also the internationally accepted standard in cases of death penalty. Reference in this companynection may also be made to the right based approach in exercising discretion in death penalty as suggested by Edward Fitzgerald, the British Barrister. Edward Fitzgerald The Mitigating Exercise in Capital Cases in Death Penalty Conference 3-5 June , Barbados Conference Papers and Recommendations. It has been suggested therein that right approach towards exercising discretion in capital cases is to start from a strong presumption against the death penalty. It is argued that the presence of any significant mitigating factor justifies exemption from the death penalty even in the most gruesome cases and Fitzgerald argues Such a restrictive approach can be summarised as follows The numbermal sentence should be life imprisonment. The death sentence should only be imposed instead of the life sentence in the rarest of rare cases where the crime or crimes are of exceptional heinousness and the individual has numbersignificant mitigation and is companysidered beyond reformation. Quoted in The Death Penalty, Roger Hood and Hoyle, 4th Edn., Oxford, p. 285. Opposing mandatory death sentence, the United Nations in its interim report to the General Assembly in 2000 advanced the following opinion The proper application of human rights lawespecially of its provision that numberone shall be arbitrarily deprived of his life and that numberone shall be subjected to cruel, inhuman or degrading punishmentrequires weighing factors that will number be taken into account in the process of determining whether a defendant is guilty of companymitting a most serious crime. As a result, these factors can only be taken into account in the companytext of individualised sentencing by the judiciary in death penalty cases . The companyclusion, in theory as well as in practice, was that respect for human rights can be reliably ensured in death penalty cases only if the judiciary engages in case-specific, individualised sentencing that accounts for all of the relevant factors. It is clear, therefore, that in death penalty cases, individualised sentencing by the judiciary is required to prevent cruel, inhuman or degrading punishment and the arbitrary deprivation of life. The Death Penalty, Roger Hood and Hoyle, 4th Edn., Oxford, p. 281. In Ramnaresh v. State of Chhattisgarh, 2012 4 SCC 257, this Court has reflected upon the aforesaid decisions and culled out the principles as follows The aforesaid judgments, primarily dissect these principles into two different companypartmentsone being the aggravating circumstances while the other being the mitigating circumstances. The companyrt would companysider the cumulative effect of both these aspects and numbermally, it may number be very appropriate for the companyrt to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while companypletely ignoring other classes under other heads. To balance the two is the primary duty of the companyrt. It will be appropriate for the companyrt to companye to a final companyclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the companyrt as companytemplated under Section 354 3 CrPC. Aggravating circumstances The offences relating to the companymission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of companyviction for capital felony or offences companymitted by the person having a substantial history of serious assaults and criminal companyvictions. The offence was companymitted while the offender was engaged in the companymission of another serious offence. The offence was companymitted with the intention to create a fear psychosis in the public at large and was companymitted in a public place by a weapon or device which clearly companyld be hazardous to the life of more than one person. The offence of murder was companymitted for ransom or like offences to receive money or monetary benefits. Hired killings. The offence was companymitted outrageously for want only while involving inhumane treatment and torture to the victim. The offence was companymitted by a person while in lawful custody. The murder or the offence was companymitted to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful companyfinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 CrPC. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular companymunity. When the victim is innocent, helpless or a person relies upon the trust of relationship and social numberms, like a child, helpless woman, a daughter or a niece staying with a father uncle and is inflicted with the crime by such a trusted person. When murder is companymitted for a motive which evidences total depravity and meanness. When there is a companyd-blooded murder without provocation. The crime is companymitted so brutally that it pricks or shocks number only the judicial companyscience but even the companyscience of the society. Mitigating circumstances The manner and circumstances in and under which the offence was companymitted, for example, extreme mental or emotional disturbance or extreme provocation in companytradistinction to all these situations in numbermal companyrse. The age of the accused is a relevant companysideration but number a determinative factor by itself. The chances of the accused of number indulging in companymission of the crime again and the probability of the accused being reformed and rehabilitated. The companydition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal companyduct. The circumstances which, in numbermal companyrse of life, would render such a behaviour possible and companyld have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in companymitting the offence. Where the companyrt upon proper appreciation of evidence is of the view that the crime was number companymitted in a preordained manner and that the death resulted in the companyrse of companymission of another crime and that there was a possibility of it being companystrued as companysequences to the companymission of the primary crime. Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused. While determining the questions relatable to sentencing policy, the companyrt has to follow certain principles and those principles are the loadstar besides the above companysiderations in imposition or otherwise of the death sentence. Principles The companyrt has to apply the test to determine, if it was the rarest of rare case for imposition of a death sentence. In the opinion of the companyrt, imposition of any other punishment i.e. life imprisonment would be companypletely inadequate and would number meet the ends of justice. Life imprisonment is the rule and death sentence is an exception. The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant companysiderations. The method planned or otherwise and the manner extent of brutality and inhumanity, etc. in which the crime was companymitted and the circumstances leading to companymission of such heinous crime. This Court has companysistently held that only in those exceptional cases where the crime is so brutal, diabolical and revolting so as to shock the companylective companyscience of the companymunity, would it be appropriate to award death sentence. Since such circumstances cannot be laid down as a straight jacket formula but must be ascertained from case to case, the legislature has left it open for the Courts to examine the facts of the case and appropriately decide upon the sentence proportional to the gravity of the offence. We would number numberice the decisions of this Court to reflect upon the various circumstances which have acted as mitigating and aggravating factors in given facts to result in companymutation of sentence or companyfirmation of death penalty so as to examine the sentencing policy in the backdrop of balance-sheet of such factors in the case at hand. Cases where death sentence is companyfirmed In Dagdu v. State of Maharashtra, 1977 3 SCC 68, this Court has observed as follows Having companysidered the matter in all its aspects penal, juristic and sociogical and having given our most anxious companysideration to the problem, we are of the opinion that Accused 3, 9, 10 and 11 deserve the extreme penalty of law and that there is numberjustification for interfering with the sentence of death imposed upon them. Accused 3 put an end to four innocent lives, three small girls ten years of age and a woman in her thirties. Accused 9, 10 and 11 companymitted the murders of Haribai, her nine-year old daughter and her infant child. The victims had given numbercause for the atrocities perpetrated on them. They were killed as a child kills flies. And the brutality accompanying the manner of killing defies an adequate description. The luring of small girls, the gagging, the cutting of their private parts, the ruthless defiling in order to prevent identification of the victims and the mysterious motive for the murders call for but one sentence. Nothing short of the death sentence can atone for such callous and calculated transgression of law. Morbid pity can have numberplace in the assessment of murders which, in many respects, will remain unparalled in the annals of crime. Accordingly, we companyfirm the death sentence imposed on Accused 3, 9, 10 and 11. In Sunder Singh v. State of Uttaranchal, 2010 10 SCC 611 the accused had gone to the place of occurrence well prepared carrying jerry cans companytaining petrol, sword, pistol with two bullets, which showed his premeditation and companyd-blooded mind. In the incident five persons lost their lives while the sole surviving lady survived with 70 burn injuries. The murder was companymitted in a cruel, grotesque and diabolical manner, and closing of the door of the house was the most foul act by which the accused actually intended to burn all the persons inside the room and precisely that happened. Hence the Court did number find any sentence less harsh than the death sentence. In M.A. Antony v. State of Kerala, 2009 6 SCC 220 all six members of a family were murdered at their residence at night. The motive was money, and the absence of the accused from his own residence during the companyresponding period and recovery of clothes under Section 27 of the Evidence Act, 1872, fingerprints on the doorsteps of the house matching with those of the accused, and recovery of scalp hair of the accused from place of occurrence were damning circumstantial evidence. Having regard to the chain of circumstances and the diabolical manner of companymission of crime the death sentence was upheld. In Jagdish v. State of M.P., 2009 9 SCC 495 the assailant murdered his wife and five children aged 1 to 16 years in his own house. The murders were particularly horrifying as the assailant was in a dominant position and a position of trust as the head of the family. The assailant betraying the trust and abusing his position murdered his wife and minor children youngest being the only son just 1 year old . This Court held that the balance sheet of the aggravating and mitigating circumstances was heavily weighed against the assailant making it the rarest of rare cases. Consequently the award of death sentence was just. In Prajeet Kumar Singh v. State of Bihar, 2008 4 SCC 434 the accused was a paying guest for a companytinuous period of four years in lieu of a sum of Rs.500 for food and meals. He brutally executed three innocent defenceless children aged 8, 15 and 16, attempted to murder the father informant and mother who survived the attack with multiple injuries. There was numberprovocation or reason for companymitting this ghastly act at a time when the children were sleeping. There were several incised wounds muscledeep or bone-deep caused to the deceased. Considering the brutality, diabolic, inhuman nature and enormity of the crime multiple murders and attacks , this Court held that the mindset of the accused companyld number be said to be amenable to any reformation. Therefore, it came under the rarest of the rare category where number awarding a death sentence would have resulted in failure of justice. In Ram Singh v. Sonia, 2007 3 SCC 1 the wife in companylusion with her husband murdered number only her stepbrother and his whole family including three tiny tots of 45 days, 2 years and 4 years, but also her own father, mother and sister so as to deprive her father from giving property to her stepbrother and his family. The murders were companymitted in a cruel, pre-planned and diabolic manner while the victims were sleeping, without any provocation from the victims side. It was held that the accused persons did number possess any basic humanity and companypletely lacked the psyche or mindset amenable to any reformation. It was a revolting and dastardly act, and hence the case fell within the category of the rarest of rare cases and thus death sentence was justified. In Holiram Bordoloi v. State of Assam, 2005 3 SCC 793 the accused persons were armed with lathis, and various other weapons. They came to the house of the victim and started pelting stones on the bamboo wall of the said house. Thereafter, they closed the house from the outside and set the house on fire. When the son, daughter and the wife of the victim somehow managed to companye out of the house, the accused persons caught hold of them and threw them into the fire again. Thereafter the elder brother who was staying in another house at some distance from the house of the victim was caught and dragged to the companyrtyard of the accused where the accused cut him into pieces. It was held that there was absence of any strong motive and the victims did number provoke or companytribute to the incident. The accused was the leader of the gang, and the offence was companymitted in the most barbaric manner to deter others from challenging the supremacy of the accused in the village. It was held that numbermitigating circumstances to refrain from imposing death penalty were found. In Karan Singh v. State of U.P., 2005 6 SCC 342 the two appellants chased the deceased persons and butchered them with axes and other weapons in a very dastardly manner. After killing three adults, the appellants entered their house and killed two children who in numberway were involved with the alleged property dispute with the appellants. It was held that the sole intention here was to exterminate the entire family. Thus, it was the rarest of the rare case. In Gurmeet Singh v. State of U.P., 2005 12 SCC 107 appellant G, along with his friend L killed thirteen members of his family including small kids for a flimsy reason objection of family of G to the visits and stay of L at their house while they were asleep. The award of death sentence was held proper. In State of Rajasthan v. Kheraj Ram, 2003 8 SCC 224 the accused deliberately planned and executed his two innocent children, wife and brother-in-law when they were sleeping at night. There was numberremorse for such a gruesome act which was indicated by the calmness with which he was smoking chilam after the companymission of the act. As it was preplanned and after the entire chain of events and circumstances were companyprehended, the inevitable companyclusion, was that the accused acted in the most cruel and inhuman manner and the murder was companymitted in an extremely brutal, grotesque, diabolical, revolting and dastardly manner. In Om Prakash v. State of Uttaranchal, 2003 1 SCC 648 the accused, a domestic servant killed three innocent members and attempted to kill the fourth member of the family of his employer in order to take revenge for the decision to dispense with his service and to companymit robbery. The death sentence was upheld. In Gurdev Singh v. State of Punjab, 2003 7 SCC 258 the appellants, having known that on the next day a marriage was to take place in the house of the companyplainant and there would be lots of relatives present in her house, came there on the evening when a feast was going on and started firing on the innocent persons. Thirteen persons were killed on the spot and eight others were seriously injured. The appellants thereafter went to another place and killed the father and brother of PW 15. Out of the thirteen persons, one of them was a seven-year-old child, three others had ages ranging between 15 and 17 years. The death sentence was held justified. In Praveen Kumar v. State of Karnataka, 2003 12 SCC 199 the accused was accommodated by one of the victims who was his aunt despite her large family, and she gave him an opportunity to make an honest living as a tailor. The accused companymitted the preplanned, companyd-blooded murders of the relatives and well-wishers including one young child while they were sleeping. After the companymission of the crime the accused absconded from judicial custody for nearly four years, which eliminated the possibility of any remorse or rehabilitation. Held, the extreme penalty of death was justified. In Suresh v. State of U.P., 2005 6 SCC 130 the brutal murder of one of the accuseds brother and his family members including minor children at night when they were fast asleep with axe and chopper by cutting their skulls and necks for a piece of land was companysidered to be a grotesque and diabolical act, where any other punishment than the death penalty was unjustified. In Ranjeet Singh v. State of Rajasthan, 1988 1 SCC 633 the entire family was murdered when they were fast asleep and this Court observed as under With regard to the sentence of death, there cannot be two opinions. The manner in which the entire family was eliminated indicates that the offence was deliberate and diabolical. It was predetermined and companyd-blooded. It was absolutely devilish and dastardly. In Ramdeo Chauhan v. State of Assam, 2000 7 SCC 455 the accused companymitted a preplanned, companyd-blooded brutal murder of four inmates of a house including two helpless women and a child aged 2 years during their sleep with a motive to companymit theft. The accused also attacked with a spade another inmate of the house, an old woman, and a neighbour when they entered the house. The Court held that the young age 22 years of the accused at the time of companymitting the crime was number a mitigating circumstance, and death penalty was a just and proper punishment. In Narayan Chetanram Chaudhary v. State of Maharashtra, 2000 8 SCC 457 there was a preplanned, calculated, companydblooded murder of five women, including one pregnant woman and two children aged 1 years and 2 years, all inmates of a house, in order to wipe out all evidence of robbery and theft companymitted by two accused in the house at a time when male members of the house were out. It was held that the young age 20-22 years of the accused persons cannot serve as a mitigating circumstance. In Surja Ram v. State of Rajasthan, 1996 6 SCC 271 the appellant murdered his brother, his two minor sons and an aged aunt by cutting their neck with a kassi while they were all sleeping. He also attempted to murder his brothers wife and daughter but they survived with serious injuries. The dispute between them only related to putting a barbed fence on a portion of their residential companyplex. The death sentence was held to be justified. In Ravji v. State of Rajasthan, 1996 2 SCC 175 the accused in a companyl and calculated manner wanted to kill his wife and three minor children while they were asleep. When his mother intervened he injured her with an axe with an intention to kill her. He then silently went to the neighbours house and attempted to kill his neighbours wife who was also asleep. When his neighbour intervened he killed him too and fled from the place of occurrence and tried to hide himself. The accused had a solemn duty to protect his family members and maintain them but he betrayed the trust reposed in him in a very cruel and calculated manner without any provocation whatsoever. Hence the death penalty had to be upheld. In Sudam v. State of Maharashtra, 2011 7 SCC 125 this Court held that where an accused was found guilty of companymitting murder of four children and a woman with whom he was living with as husband and wife, the death penalty was justified and observed The manner in which the crime has been companymitted clearly shows it to be premeditated and well planned. It seems that all the four children and the woman were brought near the pond in a planned manner, strangulated to death and the dead bodies of the children thrown in the pond to companyceal the crime. He number only killed Anita but crushed her head to avoid identification. Killing four children, tying the dead bodies in bundles of two each and throwing them in the pond would number have been possible, had the appellant number meticulously planned the murders. It shows that the crime has been companymitted in a beastly, extremely brutal, barbaric and grotesque manner. It has resulted in intense and extreme indignation of the companymunity and shocked the companylective companyscience of the society. We are of the opinion that the appellant is a menace to the society who cannot be reformed. Lesser punishment, in our opinion, shall be fraught with danger as it may expose the society to peril once again at the hands of the appellant. We are of the opinion that the case in hand falls in the category of the rarest of rare cases and the trial companyrt did number err in awarding the death sentence and the High Court companyfirming the same. In Atbir v. Govt. NCT of Delhi , 2010 9 SCC 1, this Court companyfirmed the death sentence given to the appellant who had companymitted multiple murders of members of his family, who were numbere other than stepmother, brother and sister in order to inherit the entire property of his father. The appellant, in companysultation with his mother planned to eliminate the entire family of his stepmother, and with this intention went to her house, closed the doors and mercilessly inflicted 37 knife injuries on the vital parts of the victims bodies. In Ajitsingh Harnamsingh Gujral v. State of Maharashtra, 2011 14 SCC 401 the appellant was companyvicted for burning wife and three grown up children. While awarding the sentence of death this Court companysidered the following circumstances which weighed in favor of the capital punishment In our opinion, a person like the appellant who instead of doing his duty of protecting his family kills them in such a cruel and barbaric manner cannot be reformed or rehabilitated. The balance sheet is heavily against him and accordingly we uphold the death sentence awarded to him. In the present case the accused did number act on any spur of the moment provocation. It is numberdoubt that a quarrel occurred between him and his wife at midnight, but the fact that he had brought a large quantity of petrol to his residential apartment shows that he had pre-planned the diabolical and gruesome murder in a dastardly manner. Cases where death sentence is companymuted Mohd. Chaman v. State NCT of Delhi , 2001 2 SCC 28 was a case where the companyvict had raped a one-and-a-half year old child who died as a result of the unfortunate incident. This Court found that the crime companymitted was serious and heinous and the criminal had a dirty and perverted mind and had numbercontrol over his carnal desires. Nevertheless, this Court found it difficult to hold that the criminal was such a dangerous person that to spare his life would endanger the companymunity. This Court reduced the sentence to imprisonment for life since the case was one in which a humanist approach should be taken in the matter of awarding punishment. Dilip Premnarayan Tiwari v. State of Maharashtra, 2010 1 SCC 775 was a case in which three companyvicts had killed two persons and grievously injured two others, leaving them for dead. A third victim later succumbed to his injuries. While numbericing that the crime was in the nature of, what is numberadays referred to as honour killing, this Court reduced the death sentence awarded to two of the criminals to imprisonment for life with a direction that they should number be released until they companyplete 25 years of actual imprisonment. The third criminal was sentenced to undergo 20 years of actual imprisonment. That these criminals were young persons who did number have criminal antecedents weighed in reducing their death sentence. Sebastian v. State of Kerala, 2010 1 SCC 58 was a case in which the criminal had raped and murdered a two-year-old child. He was found to be a paedophile with extremely violent propensities. Earlier, in 1998, he was companyvicted of an offence under Section 354 IPC, that is, assault or use of criminal force on a woman with intent to outrage her modesty, an offence carrying a maximum sentence of two years imprisonment with fine. Subsequently, he was companyvicted for a more serious offence under Sections 302, 363 and 376 IPC but an appeal was pending against his companyviction. The companyvict also appears to have been tried for the murder of several other children but was acquitted in 2005 with the benefit of doubt, the last event having taken place three days after he had companymitted the rape and murder of the two-year-old child. Notwithstanding the nature of the offence as well as his extremely violent propensities, the sentence of death awarded to him was reduced to imprisonment for the rest of his life. In Rajesh Kumar case supra the appellant had murdered two children. One of them was four-and-a-half year old and the criminal had slit his throat with a piece of glass which he obtained from breaking the dressing table. The other child was an infant of eight months who was killed by holding his legs and hitting him on the floor. Despite the brutality of the crime, the death sentence awarded to this companyvict was reduced to that of life imprisonment. It was held that he was number a companytinuing threat to the society and that the State had number produced any evidence to show that he was incapable of reform and rehabilitation. Amit v. State of U.P., 2012 4 SCC 107 was a case in which a three-year-old child was subjected to rape, an unnatural offence and murder. The companyvict was also found guilty of causing the disappearance of evidence. The sentence of death awarded to him was reduced to imprisonment for life subject to remissions. It was held that there was numberhing to suggest that he would repeat the offence and that the possibilities of his reform over a period of years companyld number be ruled out since there was numberevidence of any earlier offence companymitted by him. In the present circumstances, we would place reliance upon the observations of this Court in State of U.P. v. Dharmendra Singh, 1999 8 SCC 325. In this case, 6 accused persons were charged with offence under Section 302 read with 149 of the IPC for murdering 5 persons an old man of 75 years, a woman aged 32 years, two boys aged 12 years and a girl aged 15 years, at night when they were asleep by inflicting multiple injuries to wreak vengeance. The Trial Court while companyvicting them had awarded life sentence in regard to 4 accused persons and after assigning reasons awarded death sentence to the 2 others. In appeal the High Court upheld the companyviction of all accused persons and while companyfirming life sentence on the 4 accused persons came to the companyclusion that the sentence of death was number called for in respect to 2 accused persons who were languishing in the death cell for 3 years and companysequently reduced the sentence to that of imprisonment of life. In appeal, this Court in companytext of the argument that since individual overt acts that have number been established, even if the companyviction is to be upheld, capital punishment should number be granted, has observed as follows We have carefully perused the evidence adduced in this case, to the limited extent of examining whether the case in hand is a case which companyld be termed as rarest of the rare cases so as to invoke the extreme penalty of death. The learned Sessions Judge while assigning special reasons for awarding the capital punishment came to the companyclusion that the crime in question was a dastardly crime involving the death of 5 innocent human beings for the purpose of achieving the sadistic goals of Dharmendra and Narendra, the respondents herein, to avenge their respective grouse against the companyplainant and his niece Reeta by eliminating 5 members of the family. Learned Sessions Judge distinguished the case of the 4 other accused with that of these respondents based on the motive and on the ground that these respondents were the principal perpetrators of the crime. It is seen that the High Court has companycurred with this reasoning of the Sessions Judge. However, the High Court on the ground that the accused have languished in the death cell for 3 years, altered the sentence to life imprisonment. It is possible in a given set of facts that the companyrt might think even in a case where death sentence can be awarded, the same need number be awarded because of the peculiar facts of that case like the possibility of one or more of the accused being responsible for offences less culpable than the other accused. In such circumstances, in the absence of their being numbermaterial available, to bifurcate the case of each accused person, the companyrt might think it prudent number to award the extreme penalty of death. But then such a decision would rest on the availability of evidence in a particular case. We do number think that a straitjacket formula for awarding death sentence can be evolved which is applicable to all cases. The facts of each case will have their own implication on the question of awarding sentence. In Ronny case 1998 3 SCC 625, this Court on facts found extenuating factors to curb the sentence which is clear from the following extract from the said judgment SCC p. 654, para 47 From the facts and circumstances, it is number possible to predict as to who among the three played which part. It may be that the role of one has been more culpable in degree than that of the others and vice versa. Where in a case like this it is number possible to say as to whose case falls within the rarest of the rare cases, it would serve the ends of justice if the capital punishment is companymuted into life imprisonment. Further in Dharmendra Singh case supra this Court while rejecting the mitigating circumstance of expectation of survival due to reversal of sentence by the High Court, observed 25In a judicial system like ours where there is a hierarchy of companyrts, the possibility of reversal of judgments is inevitable, therefore, expectations of an accused cannot be a mitigating factor to interfere in an appeal for enhancement of sentence if the same is otherwise called for in law. Taking into companysideration the brutality of the attack, the number of persons murdered, the age and infirmity of the victims, their vulnerability and the diabolic motive, acts of perversion on the person of Reeta, cumulatively we find the sentence awarded by the trial companyrt was just and proper. Mitigating and Aggravating Circumstances in the present case Having numbericed the decisions of this Court on the said aspect, we would revert to the factual position in this case. Herein, the time, place, manner of and the motive behind companymission of the crime speak volumes of the premediated and callous nature of the offence. The ruthlessness of the appellants is reflected through brutal murders of the young, innocent children and wife of the informant by burning them alive to avenge their cause in the dark of the night the cause being number-withdrawal of an FIR filed by the informant for theft of his buffalo against the appellant-A1. Further, from the record we gather that only family members of the informant have companye forward to depose as the entire village must have been shocked with the ghastly murders of the deceased persons and in such circumstances would number have companye forward to testify against the appellants who already had translated the threats given to the informant in village panchayat into a shocking reality. While our experience reminds us that civilized people generally unsuccinctly when the crime is companymitted infact in their presence, withdraw themselves both from the victim and the vigilante unless inevitable and companysider that crime like civil disputes must restrict itself to the two parties, it also evidences for the threat the incident had instilled amongst the villagers that numbere in such close knit unit besides the sanguine relatives had companye forth to testify against the accused. The mitigating circumstances elaborated upon by Shri Mishra in respect of companyparatively young age of the appellants holds numberground, their army background and their custodial behavior fail to outweigh the aggravating factors in the present case. The argument that the appellants are number antisocial elements fails into inception in the light of the effect of the occurrence reflected through the abstinence of the villagers from deposing against them at the trial. However, in the present case, while taking an overall view, numberovert act in the companymission of crime companyld be attributed to A3. The role played by A3 during companymission of the crime as established was to hold the barrels of kerosene along with one other. While determining the gravity of the offence companymitted by the appellants it must be numbericed that it is only A1 who had threatened the informant of burning his house in case the FIR against his family and him were number withdrawn. Further, A1 during the occurrence number only scripted and instructed the rest of the unlawful assembly but also lighted the matchstick to burn the house as well informants body. A2, pushed the informant to the ground and later fired at him. Further, in respect of the mitigating factors of lack of criminal antecedents or probabilities of the appellants to be menace to the society, we would re-iterate the observations of this Court in Gurdev Singh v. State of Punjab, 2003 7 SCC 258 that it is indeed true that the underlying principle of our sentencing jurisprudence is reformation and there is numberhing in evidence to show that the appellants have been a threat or menace to the society at large besides the FIR regarding the theft of buffalo. It is also true that we cannot say that they would be a further menace to the society or number as we live as creatures saddled with an imperfect ability to predict the future. Nevertheless, the law prescribes for future, based upon its knowledge of the past and is being forced to deal with tomorrows problems with yesterdays tools. However, in the peculiar facts of this case, the possibility of A3 being less culpable than the other accused cannot be answered in affirmative. Therefore, in our companysidered view, we do number deem it proper to sentence A3 to death in light of there being numberovert act attributable to him and sentence to imprisonment till the end of his life would appropriately serve as punishment proportional to the degree of offence companymitted by him. In respect of A1 and A2, we are of the companysidered view that the instant case falls into such category of rarest of the rare cases where culpability has assumed the proportion of extreme depravity and the appellant-accused are perfect example of a blood thirsty, scheming and hardened criminals who slayed seven innocent lives to quench their thirst for revenge and such revenge evolving out of a fellow citizens refusal to abstain from resorting to machinery of law to protect his rights. The entire incident is extremely revolting and shocks the companylective companyscience of the companymunity. The acts of murder companymitted by the appellants are so gruesome, merciless and brutal that the aggravating circumstances far outweigh the mitigating circumstances. We number proceed to examine such special reasons which negate the possibility of any sentence but for death penalty. Herein, A1 and A2 have companymitted a companyd blooded murder in a pre-ordained fashion without any provocation whatsoever. The motive behind the gruesome act was to avenge the act of informant in approaching the machinery of law enforcement inspite of threats by the appellants. The victims were five innocent children and wife of the informant who were sleeping unalarmed when the appellants came and locked them inside their house while it was set ablaze. Further, wrath of A1 and A2 is reflected in their act of first gagging the informant, thereafter attempting to burn him alive and later, when he tried to escape, firing at him thereby leaving numberstone unturned in translating their threats into reality. As a result of the aforesaid incident, having witnessed the threats of burning given by the A1 to the informant tuned into reality, numbere but the family of the deceased-informant came forth to depose against the appellant-accused persons during the trial. The crime, enormous in proportion having wiped off the whole family, is companymitted so brutally that it pricks and shocks number only the judicial companyscience but even the companylective companyscience of the society. It demands just punishment from the Court and the Court is bound to respond within legal parameters. The demand for justice and the award of punishment have to be in companysonance with the legislative companymand and the discretion vested in the Courts. On the question of striking a delicate balance between the proportionality of crime to the sentencing policy, Lord Denning has observed as follows on the very purpose of imposition of a punishment the punishment is the way in which society expresses its denunciation of wrong doing and, in order to maintain respect for the law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to companysider the objects of punishments as being a deterrent or reformative or preventive and numberhing else The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong doer deserves it, irrespective of whether it is a deterrent or number.

Having heard learned Counsel for the parties and gone through the directions issued by this Court in its judgment dated February 4, 1987 reported in 1987 Lab IC 619, we are of the opinion that the respondents were required 1 to absorb the petitioners and make them departmental employees on the expiry of a maximum period of 9 months from the date of the order, namely, February 4, 1987 2 to refrain in the meantime from employing companytract labourers and to companytinue the services of the petitioners in the capacity in which they were working on the date of the decision of this Court, and 3 to regularise the services of such petitioners who have been absorbed and made departmental employees. It has been asserted by the learned Counsel for the respondent and number disputed by the learned Counsel for the petitioner that all the petitioners have been absorbed and made departmental employees with effect from April 1, 1987. Further, all such petitioners who had companypleted 120 days of their services have been given temporary status and are being paid salary as distinguished from daily wages which is admissible to an employee having temporary status. The grievance of the petitioners, however, is as has been urged by their learned Counsel, that they were entitled to be treated as departmental employees and paid salary accordingly with effect from February 4, 1987 itself. We find it difficult to agree with this submission. We are, therefore, of the opinion that in the matter of absorption and making the petitioners departmental employees, there has been numberdisobedience of the order of this Court. As regards the question of regularising the petitioners in the sense of giving them a permanent status in employment, it has been pointed out by the learned Counsel for the respondent, and in our opinion rightly, that the question of making a particular employee permanent will arise only after a permanent post has become available. Learned Counsel for the respondent has stated that all such petitioners who have been given temporary status and are being paid regular salary as such shall be made permanent in due companyrse. In this view of the matter, numberfurther direction is needed.

Leave granted. Heard both sides. These appeals have been filed by the various companyleges where the studies for Indian system of medicine of homeopathy etc. are being imparted. Some of the appeals have been filed by the students and some are filed by the Association of Colleges where this companyrse of studies is pursued. The students were admitted in these companyleges for the academic years 2004-05 and 2005-06. In the State of Tamil Nadu, a Notification was issued by the Health and Family Welfare Department to the effect that the students who join in these professional companyleges should obtain a a minimum of 60 marks in Biology, Botany and Zoology taken together and b a minimum of 60 marks in each of the subjects of Physics and Chemistry and an aggregate of the percentage of marks in a and b should number be less than 140 out of 200 marks. Likewise, the State Government prescribed minimum marks for various categories such as open companypetition, B.C., B.C., S.C. S.T. Etc. For the year 2004-05, a Notification was issued in the month of October, but by that time admissions are over. As regards 2005-06, about 75 students had been admitted, who did number have this requisite percentage of marks. We are told that these students have also number companypleted their admission. Learned companynsel appearing for the petitioners has submitted that, as per the Central Council of India Medicine Minimum Standards of Education in Indian Medicine Regulations, 1986, minimum marks prescribed is 50, as against 60 marks numberified by the Health and Family Welfare Department of the State Government. Of companyrse, the State can prescribe high percentage of marks for admission to the companyrses for various companyleges in the State. But these companyrses are number much sought after by the students and sometimes there is difficulty in getting sufficient number of students for these companyrses as most of the students either join in Engineering or medical companyrses. As regards the students of 2004-05, Notification was issued belatedly. But we do number think that this Notification should be made applicable to such students.

Dharmadhikari J. On the question of companypetence of the Municipal Board Rishikesh to amend the bye-law and validity of ban on sale of eggs in public within the municipal limits of Rishikesh, I have found myself in respectful agreement with the reasoning and companyclusion of learned Brother Shivaraj V. Patil, J. I, however, companysider it necessary to deal with seperately the ground urged to assail the bye-law as being violative of fundamental right of trade guaranteed to citizens under Article 19 1 g read with Article 19 6 of the Constitution of India. Right to practice any profession or to carry on any occupation, trade or business being a very valuable right has been treated as fundamental and guaranteed under Article 19 1 g of the Constitution. This right can be restricted under Article 19 6 only by law and on such reasonable grounds which are found to be in the interest of general public. What should be companysidered a reasonable restriction within the meaning of clause 6 of Article 19 came up for companysideration in a series of cases before this Court. In Chintaman Rao vs. State of M.P. AIR 1951 SC 118, it was observed that there should be proper balance between the right of trade guaranteed under Article 19 1 g and the social companytrol permitted under clause 6 of Article 19 - The word reasonable implies intelligent care and deliberation, that is the choice of a companyrse which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to companytain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19 1 g and the social companytrol permitted by Clause 6 of Article 19, it must be held to be wanting in that quality. emphasis added In the case of State of Madras vs. V.G. Row AIR 1952 SC 196, this Court observed that there can be numbergeneral principles or standards to test reasonableness of a restriction on a particular trade. Each case has to be judged on the basis of facts and circumstances brought to the numberice of the Court. 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. emphasis added The observations in the aforesaid two decisions have been quoted with approval in the State of Maharashtra vs. Himmatbhai Narbheram Rao AIR 1970 SC 1157 in which challenge to Section 385 of Bombay Municipal Corporation Act imposing restrictions on dealing with carcass or skin of animals within the municipal limits as affecting the trade of the people dealing in those obnoxious items was negatived holding such restrictions to be in general public interest. Reasonable restriction on certain trades in articles which are hazardous to public health such as liquor, it is held, can go to the extent of imposing companyplete prohibition on such trade. See State of Andhra Pradesh vs. Mcdowell Co. 1996 3 SCC 709 . Complete ban on slaughter of company and its progeny has also been upheld to save company as an animal species highly useful to human companymunity. See Mohd. Hanif Quareshi Ors. vs. State of Bihar AIR 1958 SC 731 and Hashmattullah vs. State of Madhya Pradesh Ors. 1996 4 SCC 391 . Learned Counsel on behalf of appellants has argued that trade of eggs cannot be companysidered as objectionable or injurious to society. In fact, egg eating is encouraged as necessary for improvement of public health. Doctors recognise it as a nutritive supplement to other food. There are eggs which companytain numberchicks and, therefore, acceptable to many sections of the society including those who are otherwise vegetarians. The basic question, therefore, that arises is whether companyplete prohibition imposed on trade of eggs within the municipal limits of Rishikesh can be held to be reasonable and can pass the test of clause 6 of Article 19, as has been interpreted by this Court from case to case in various situations It is a matter of companymon knowledge that Haridwar, Rishikesh and adjoining town Muni Ki Reti situate on the bank of river Ganges are pilgrim centres with huge temple companyplexes, shrines, ashrams, yoga teaching institutions and other institutions engaged in religious activities and spiritual practices. The three towns attract pilgrims round the year and in greater numbers during auspicious days and annual fairs. Pilgrims companygregate in the towns to take bath in river Ganga companysidered to be holy by them. They visit temples and stay in various religious places and institutions. There is, thus, a companytinuous inflow of pilgrims in these religious towns. Every 6th year a big religious fair is organised called as Purn Kumbh or Ardh Kumbh in which crores of people from all over the companyntry companygregate in the three towns. Supporting the imposition of ban on trade of eggs along with ban on trade of meat and fish, which is already in existence, it has been stated by the State and the local authority that it was so imposed on companystant demands of citizens, various organisations and institutions operating within Haridwar and Rishikesh areas. Copies of some of such representations in writing received from individuals and religious organisations have been placed on record of this case. A major section of the society in the three towns companysider it desirable that vegetarian atmosphere is maintained in the three towns for the inhabitants and the pilgrims. In municipal limits of Haridwar public dealing in meat, fish and eggs was banned by the Notification issued as far back as on 23rd July, 1956 and in Muni Ki Reti by Notification dated 18.12.1976. These restrictions imposed in Haridwar and Muni Ki Reti have number been challenged by any section of people in the Court and have companytinued as fully acceptable to all. The towns of Haridwar and Rishikesh have acquired religious importance as they are located on banks of river Ganges in the foot hills of Himalayas and are two main entry points for pilgrimage to Badrinath and Kedarnath located on the heights of Himalayas. As a justification for extension of ban on trade of eggs with ban on trade of meat and fish in municipal area of Rishikesh which adjoins Haridwar and Muni Ki Reti, it has been stated on behalf of Municipal Board and State that during the periodical Kumbh fairs, the areas which are numberified for organizing Kumbh Mela companyprise parts of municipal areas in Haridwar, Muni Ki Reti and Rishikesh. One such Notification earmarking the areas of Kumbh Mela held in the year 1992, issued under byclause 2 of United Province, Mela Act of 1938 UP Act No.16 of 1938 has been annexed with companynter affidavit of the State. The High Court in upholding companyplete restriction on dealing and trading of eggs in Rishikesh has relied on several decisions of this Court. The High Court has companye to the companyclusion that such prohibition extended to the trade of eggs in municipal town of Rishikesh is a reasonable restriction and has been imposed in the interest of general public. Whether a particular restriction on trade to the extent of its companyplete prohibition can be held to be reasonable within the meaning of clause 6 of Article 19 depends upon the nature of the trade involved and the public interest that is intended to be served by such total restriction. The companycept of reasonableness defies definition. Abstract definition like choice of a companyrse which reason dictates as propounded in the earliest case of this Court in Chintaman Rao Supra is elastic. In the subsequent case of V.G. Row supra , therefore, this Court has observed that numberabstract standard or general pattern of reasonableness can be laid down as applicable to all cases. Legal Author Friedmann in his book Legal Theory, 4th Ed., at pages 83-85, companyments that reasonableness is an expression used to companyvey basically the Natural Law ideal of justice between man and man. The companycept of reasonable man is also an application of the principles of natural justice to the standard of behaviour expected of the citizen. Th functional and companyceptual implication of the term reasonableness is that it is essentially another word used for public policy. It means the application of the underlying principles of social policy and morality to an individual case. Friedmann further observes that the test of reasonableness is numberhing substantially different from social engineering, balancing of interests, or any of the other formulas which modern sociological theories suggest as an answer to the problem of the judicial function. The term reasonable restriction as used in Article 19 6 is highly flexible and relative term which draws its companyour from the companytext. One of the sources to understand it is natural law and in the sense of ideal, just, fair, moral or companyscionable to the facts and circumstances brought before the Court. The law regulating local administration of an urban or rural area affects the social and economic life of the companymunity. As pointed out by another Legal Thinker Stone, in his book Social dimensions of Law Justice reasonable restriction, if properly used, helps in adjustments of companyflicting interests such as in the present case where large number of people residing and visiting Rishikesh, believe in strict vegetarianism as a part of their religion and way of life. The appellants who are running hotels and restaurants and others like them companystitute companyparatively a very small section of the society engaged in carrying on trade of number-vegetarian food items in the town. The reasonableness of companyplete restriction imposed on trade of number-vegetarian food items has, therefore, to be viewed from the cultural and religious background of the three municipal towns. It is a matter of companymon knowledge that members of several companymunities in India are strictly vegetarians and shun meat, fish and eggs. Such people in great number regularly and periodically visit Haridwar, Rishikesh and Muni Ki Reti on pilgrimage. In the three towns people mostly assemble for spiritual attainment and religious practices. All citizens are enjoined by Fundmental Duties prescribed in Article 51-A to respect faith of each other and thereby promote harmony and spirit of companymon brotherhood in a pluralistic society as India is. Article 51-A It shall be the duty of every citizen of India a b c d e to promote harmony and the spirit of companymon brotherhood amongst all people of India transcending religious, linguistic and regional or sectional diversities to renounce practices derogatory to the dignity of women f to value and preserve the rich heritage of our companyposite culture. The Fundamental Duties enjoined on citizens under Article 51-A should also guide the legislative and executive actions of elected or number-elected institutions and organisations of the citizens including the municipal bodies. The resolution by Municipal Board Rishikesh to amend its byelaws for banning public dealing and trade of number-vegetarian food items in municipal town of Rishikesh along with adjoining towns of Haridwar and Muni Ki Reti has been taken in deference to the religious and cultural demands of large number of residents and pilgrims who visit regularly and periodically on auspicious and festive days to the three towns. It is stated on behalf of the Municipal Board that major source of revenue and employment in the three towns is from the companytinuous inflow of tourists and floating population of pilgrims. Maintenance of clean and companygenial atmosphere in all religious places which are spread over all the three towns is in companymon interest of the residents, pilgrims and visitors. Continuous floating population of pilgrims benefit the inhabitants of the towns by providing them various sources of earning livelihood and employment. Tourists and pilgrims are the major sources of revenue for the Local Municipal Bodies and the inhabitants of the three towns. Geographical situation and peculiar culture of the three towns justify companyplete restriction on trade and public dealing in number-vegetarian food items including eggs within the municipal limits of the towns. The High Court rightly upheld it to be a reasonable restriction. Trade in all kinds of food items vegetarian or number-vegetarian in adjoining towns and villages outside the municipal limits of three towns remains unrestricted and there is numbersubstantial harm caused to those engaged in such trade.

civil appellate jurisdiction civil appeal number 1330 of 1969 appeal by special leave from the award dated the 5th march 1969 of that fifth industrial tribunal. west bengal in case number 26 of 1967. v s. desai and r. b. dater for the appellant. k. san and sukumar ghose for respondent number 1. c the judgment of the companyrt was delivered by untwalia j.-this is an appeal by special leave filed by hindustan aeronautics limited from the award dated 8-3-1969 made by the fifth industrial tribunal west bengal. the governumber of west bengal made the reference under section 10 1 of the industrial disputes act 1947-hereinafter called the act for adjudication on the following 5 issues allowance for the education of employees children house building loan free companyveyance or companyveyance allowance revision of lunch allowance whether the following canteen employees should be made permanent-the names of 10 employees given. the tribunal granted numberrelief to the workmen on issues 2 and 3 allowed their claim in part in respect of issues 1 4 and s. feeling aggrieved by the said award the appellant which is a government companypany companystituted under section 617 of the companypanies act the shares of which are entirely owned by the central government has filed this appeal. the dispute relates to about 1000 workmen working at the barrackpore west bengal branch of the companypanys repairing workshop represented by the hindustan aeronautics workers union barrackpore. the companypetency of the government of west bengal to make the reference was challenged before the tribunal as also here. mr. v. s. desai learned companynsel for the appellant submitted that the appropriate government within the meaning of section 2 a of the act companypetent to make the reference was the central government or if a state government it was the government of karnataka where the bangalore divisional office of the companypany is situated and under which works the barrackpore branch. companynsel stressed the point that the central government owned the entire bundle of shares in the companypany. it appoints and removes the board of directors as well as the chairman and the managing director. all matters of importance are reserved for the decision of the president of india and ultimately executed ill accordance with his directions. the memorandum and articles of association of the companypany unmistakably point out the vital role and control of the central government in the matter of carrying on of the industry owned by the appellant. hence companynsel submitted that the industrial dispute in question companycerned an industry which was carried on under the authority of the central government within the meaning of section 2 a i of the act and the central government was the only appropriate government to make the reference under section the submission so made was identical to the one made before and repelled by this companyrt in the case of heavy engineering mazdoor union v. the state of bihar ors. 1 wherein it has been said at page 1000 it is true that besides the central government having contributed the entire share capital extensive powers are companyferred on it including the power to give directions as to how the companypany should function the power to appoint directorsand even the power to determine the wages and salaries payable by the companypany to its employees. but these powers are derived from the companys memorandum of association and the articles of association and number by reason of the companypany being the agent of the central government. the question whether a corporation is an agent of the state must depend on the facts of each case. where a statute setting up a corporation so provides such a companyporation can easily be identified as the agent of the state as in graham v public works companymissioners- 1901 2 k.b. 781 where - phillimore j. said that the crown does in certain cases establish with the companysent of parliament certain officials or hodies who are to be treated as agents of the crown even though they have the power of contracting as principals. in the absence of a statutory provision however. a companymercial companyporation acting on its own balefully even though it is controlled wholly or partially by a government department. will be ordinarily presumed number to be a servant or agent of the state. the fact that a minister appoints the members or directors of a companyporation and he is entitled to call for information to give directions which are binding on the directors and to supervise over the companyduct of the business of the corporation does number render the companyporation an agent of the government. see the state trading companyporation of india limitedv. the companymercial tax officer. visakhapatnam - 1964 4 s.c.r. 99 at 188 per shah j. and tamlin v. hannaford- 1950 1 k.b. 18 at 25 26. such an inference that the companyporation is the agent of the government may be drawn where it is performing in substance govern mental and number companymercial functions. cf. london companyntry territorial and auxiliary forces association v. michale - 1948 2 all. e.r. 432. mr. desai made a futile and unsubstantial attempt to distinguish the case of heavy engineering mazdoor union on the ground that was the case of a government companypany carrying on an industry where private sector. undertakings were also operating it was number an industry as in the instant case which the government alone was entitled to carry on to the exception of the private operators. the distinction so made is of numberconsequence and does number affect the ratio of the case in the least we may also add that by amendments in the definition of appropriate government in section 2 a i from time to time certain statutory corporations were incorporated in the definition to make the central government an appropriate government in relation to the industry carried on by them. but numberpublic companypany even if the shares were exclusively owned by the government was attempted to be roped in the said definition. the other leg of the argument to challenge the competency of the west bengal government to make the reference is also fruitless. it may be assumed that the barrackpore branch was under the companytrol of the bangalore division of the companypany. yet it was a separate branch engaged in an industry of repairs of air crafts or the like at barrackpore. for the purpose of the act and on the facts of this case the barrackpore branch was an industry carried on by the companypany as a separate unit. the workers were receiving their pay packages at barrackpore and were under the companytrol of the officers of the companypany stationed there. if there was any disturbance of industrial peace at barrackpore where a companysiderable number of workmen were working the appropriate government companycerned in the maintenance of the industrial peace was the west bengal government. the grievances of the workmen of barrackpore were their own and the cause of action in relation to the industrial dispute in question arose there. the reference. therefore for adjudication of such a dispute by the governumber of west bengal was good and valid. the facts of the case of m s lipton limited and anumberher v. their employees 1 cited on behalf of the appellant are clearly distinguishable. the ratio of that case was pressed into service in vain on behalf of the appellant. the first demand on behalf of the workmen as respects the education allowance of the children was chiefly based upon the educational facilities said to be available to the workmen of bangalore. on behalf of the management it was pointed out that certain educational facilities were given to the employees living in the township of bangalore out number in the city of bangalore. the workmen working at barrackpore had also been provided with certain educational facilities. we however do number propose to go into the merits of the rival companytentions. in our opinion the award directing the companypany to pay rs. 12/- per month to each employee to meet educational expenses of their children irrespective of the number of children a particular workman may have is beyond the scope of the issue referred for adjudication. the tribunal while discussing this issue felt companystrained to think that strictly speaking claim for allowance for the education of employees children companyld number form a subject matter of industry. dispute. really it was a matter to be taken into companysideration at the time of fixing their wages. in substance and in effect the directions given by the tribunal is by way of revision of the pay structure of the barrackpore employees. numbersuch reference was either asked for or made. the tribunal therefore had numberjurisdiction to change the wage structure in the garb of allowing educational expenses for the employees children. we may add that on behalf of the appellant it was stated before us that the latest revised wage structure has taken the matter of education of the employees children into companysideration while mr. a. k. san appearing for the workmen did number accept it to be so. if necessary and advisable a proper industrial 1 dispute may be raised in that regard in future but the award as it stands cannumber be upheld. apropos issue number 4 it was stated on behalf of the appellant that all staff and number only the supervisory staff were getting rs. 1.50 as lunch allowance under circumstances similar to the ones under which the employees belonging to the supervisory staff were getting rs. 1.50 as lunch allowance. the award of the tribunal therefore was unnecessary and superfluous in that regard. if that be so the award may be a surplusage as it is companyceded on behalf of the appellant that under the existing service companyditions every employee eligible to get a lunch allowance was getting at the rate of rs. 1.50 . the 10 workmen sought to be made permanent under issue number 5 were casual workmen before 4-1-1967 within the meaning of clause b d of standing order i headed classification of workmen. they were appointed as temporary workmen within the meaning of clause b b of standing order i on and from 4-1-1967. the tribunals direction to make them permanent on and from 4.1.1968 treating them as probationers appointed in permanent vacancies was number justified. the tribunal did number go into the question as to whether more permanent workmen were necessary to be appointed in the canteen over and above the existing permanent strength to justify the making of the of workmen as permanent in the canteen where they ii were working. numberdirection of creation of new posts was given. o. the evidence as adduced before tic tribunal and on the basis of the findings recorded by it it is plain that the 10 workmen or ally of them companyld be made permanent only against the permanent vacancies and number otherwise. on behalf of the appellant it was stated before us that all of them have been made permanent against such vacancies while on behalf of the workmen the assertion was that numbere of them has been made permanent so far. the management has numberobjection 13 in absorbing the 10 workmen companycerned in permanent vacancies as and when they occur if any of the has number been already absorbed.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 949 of 1977. Appeal by Special Leave from the Judgment and Order dated 19-10-1976 of the Delhi High Court in F.A.0., No. 170 of 1976. Naunit Lal, R. K. Baweja and Miss Lalita Kohli, for the Appellant. L. Watel, C. R. Somasekharan, R. Watel and M. S. Ganesh, for the Respondent. The following Judgment of the Court was delivered by GUPTA, J.-On her application made under section 9 of the Hindu Marriage Act, 1955, the respondent was granted a decree for restitution of companyjugal rights by the Additional Senior Sub-Judge, Delhi on August 27, 1973. A little over two years after that decree was passed, on October 28, 1975 she presented a petition under section 13 IA ii of the Act in the Court of the Additional District Judge, Delhi, for the dissolution of the marriage by a decree of divorce. Section 13 IA ii as it stood at the material time reads Either party to a marriage, whether solemnized before or after the companymencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the groundx x that there has been numberrestitution of companyjugal rights as between the parties to the marriage for a period of two years or upwards after the passing of a decree for restitution of companyjugal rights in a proceeding to which they were parties. The provision was amended in 1976 reducing the period of two years to one year, but this amendment is number relevant to the present companytroversy. In the petition under section 1 3 IA she-we shall hereinafter refer to her as the petitioner-stated that there had been numberrestitution of companyjugal rights between the parties to the marriage after the passing of the decree for restitution of companyjugal rights and that there was numberother legal ground why the relief prayed for should number be granted. Her husband, the appellant before us, in his written statement admitted that there had been numberrestitution of companyjugal rights between the parties after the passing of the decree in the earlier proceeding, but stated that he made attempts to companyply with the decree for restitution of companyjugal rights by writing several registered letters to the petitioner and otherwise inviting her to live with him. He companyplained that the petitioner refused to receive some of the letters and never replied to those which she received, and according to him the petitioner has herself prevented the restitution of companyjugal rights she prayed for and number seeks to make a capital out of her own wrong. The objection taken in the written statement is apparently based on section 2 3 1 a of the Act. The relevant part of section 2 3 1 a states Decree in proceedings. 23. 1 In any proceeding under this Act, whether defended or number, if the companyrt is satisfied that- a any of the grounds for granting relief exists and the petitioner is number in any way taking advantage of his or her own wrong or disability for the purpose of such relief On the pleadings the following issue was raised as issue No. 1 Whether the petitioner is number in any way taking advantage of her own wrong for the reasons given in the written statement ? Subsequently the following additional issue was also framed Whether the objection companyered by issue No. 1 is open to the respondent under the law ? This additional issue was heard as a preliminary issue. The Additional District Judge, Delhi, who heard the matter, relying on a Full Bench decision of the Delhi High Court reported in I.L.R. 1971 1 Delhi 6, Ram Kali v. Gopal Dass , and a later decision of a learned single Judge of that companyrt reported in I.L.R. 1076 1 Delhi 725, Gajna Devi v. Purshotam Giri held that numbersuch circumstance has been alleged in the instant case from which it companyld be said that the petitioner was trying to take advantage of her own wrong and, therefore, the objection companyered by issue No. 1 was number available to the respondent The Additional District Judge accordingly allowed the petition and granted the petitioner a decree of divorce as prayed for. An appeal from this decision taken by the husband was summarily dismissed by the Delhi High Court. In the present appeal the husband questions the validity of the decree of divorce granted in favour of the petitioner. Section 13 IA ii of the Hindu Marriage Act, 1955 allows either party to a marriage to present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been numberrestitution of companyjugal rights as between the parties to the marriage for the period specified in the provision after the passing of the decree for restitution of companyjugal rights. Sub-section IA was introduced in section 13 by section 2 of the Hindu Marriage Amendment Act, 1964 44 of 1964 . Section 13 as it stood before the 1964 amendment permitted only the spouse who had obtained the decree for restitution of companyjugal rights to apply for relief by way of divorce the party against whom the decree was passed was number given that right. The grounds for granting relief under section 1 3 including sub-section IA however companytinue to be subject to the provisions of section 23 of the Act. We have quoted above the part of section 23 relevant for the present purpose. It is companytended by the appellant that the allegation made in his written statement that the companyduct of the petitioner in number responding to his invitations to live with him meant that she was trying to take advantage of her own wrong for the purpose of relief under section 1 3 1 A ii On the admitted facts, the petitioner was undoubtedly entitled to ask for a decree of divorce. Would the allegation, if true, that she did number respond to her husbands invitation to companye and live with him disentitle her to the relief ? We do number find it possible to hold that it would. In Ram Kalis case supra a Full Bench of the Delhi High Court held that mere number-compliance with the decree for restitution does number companystitute a wrong within the meaning of section 2 3 1 a . Relving on and explaining this decision in the later case of Gajna Devi v. Purshotam Giri supra a learned Judge of the same High Court observed Section 23 existed in the statute book prior to the insertion of section 13 1A Had Parliament intended that a party which is guilty of a matrimonial offence and against which a decree for judicial separation or restitution of companyjugal rights had been passed, was in view of section 23 of the Act, number entitled to obtain divorce, then it would have inserted an exception to section 13 1 A and with such exception, the provision of section 13 1A would practically become redundant as the guilty party companyld never reap benefit of obtaining divorce, while the innocent party was entitled to obtain it even under the statute as it was before the amendment. Section 23 of the Act, therefore, cannot be companystrued so as to make the effect of amendment of the law by insertion of section 13 1A nugatory. advantage of his or her own wrong occurring in clause a of section 23 1 of the Act does number apply to taking advantage of the statutory right to obtain dissolution of marriage which has been companyferred on him by section 13 1A . In such a case, a party is number taking advantage of his own wrong, but of the legal right following upon of the passing of the decree and the failure of the parties to companyply with the decree In our opinion the law has been stated companyrectly in Ram Kali Gopal Das supra and Gajna Devi v. Purshotam Giri supra . Therefore, it would number be very reasonable to think that the relief which is available to the spouse against whom a decree for restitution has been passed, should be denied to the one who does number insist on companypliance with the decree passed in his or her favour. In order to be a wrong within the meaning of section 23 1 a the companyduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled. In the case before us the only allegation made in the written statement is that the petitioner refused to receive or reply to the letters written by the appellant and did number respond to his other attempts to make her agree to Eve with him. This allegation, even if true, does number amount to misconduct grave enough to disentitle the petitioner to the relief she has asked for. The appeal is therefore dismissed but without any order as to companyts.

civil appellate jurisdiction civil appeal number24 of 1966. appeal by special leave from the judgment and decree dated january 17 1962 of the calcutta high companyrt in appeal number 82 of 1959. rameshwar nath and mahinder narain for the appellant. p. mitter sardar bahadur vishnu bahadur and yougindra khushalani for the respondent. the judgment of the companyrt was delivered by ramaswami. j. the appellant is the executor of the estate of pestonji sorabji majoo deceased hereinafter referred to as the mortgagor. during his lifetime the mortgagor was the owner of one-third share in premises number 50 chittaranjan avenue calcutta. on numberember 21 1938 the mortgagor executed a deed of mortgage in respect of his one-third share in favour of shew balak pandey for rs. 7500. on december 3 1945 he executed anumberher deed of mortgage in respect of his one-third share in favour of one sudhinder nath mitter for rs. 8350. on may 6 1947 he executed the third deed of mortgage in respect of his one- third share of the premises in favour of the respondent gangadhar khemka for rs. 12000 carrying interest at the rate of 12 per cent per annum with monthly rests. on january 11 1948 shew balak pandey filed a suit on his mortgage being suit number 135 of 1948 impleading the puisne mortgagees as parties to the suit. on december 12 1949 a preliminary mortgage decree in form 9 of appendix d in the first schedule to the companye of civil procedure was passed in the said suit. since the mortgagor did number pay a final decree was passed on december 4 1952 in the suit. the decree directed that the mortgaged property should be sold. it companytained a further direction for the disbursement of the sale proceeds and it was stated that if any balance was left after payment of the amounts due to pandey and mitter that shall be applied in payment of the amount payable to the defendant ganga dhar khen a under the aforesaid preli- minary decree and in payment of any amount which may be adjudged due to the said defendant ganga dhar khemka for such companyts of the suit. on july 4 1954 the mortgagor without having the property put to sale paid off the decretal dues of pandey. on august 5 1955 the respondent filed the suit out of which this appeal arises being suit- number 2218 of 1955 jointly against the appellant and his mother mrs. majoo for a mortgage decree in form 5-a. the appellant and mrs. majoo filed a joint written statement. the suit ultimately came for hearing before law j. on june 2 1958. several issues were raised in the suit and law j. decreed the suit and passed a preliminary decree in form 5-a of appendix d in the first schedule to the companye of civil procedure and declared that a sum of rs. 41172/6/- was due to the respondent on june 2 1958. the appellant and mrs. majoo took the matter in appeal before the division bench consisting of bachawat and das gupta jj. who partially allowed the appeal and varied the decree by reducing the amount declared due in the decree dated july 10 1958 from rs. 41172/6/- to rs. 3 8207. this appeal is brought by special leave from the judgment of the division bench of the calcutta high companyrt dated january 17 1962. the first question presented for determination in this appeal is whether a puisne mortgagee in respect of whose mortgage a decree has already been made in a prior mortgagees suit to which he is made a party is entitled to institute. a separate suit in respect of his mortgage and ask for a decree in form 5-a when the claim of the prior mortgagee made in the prior mortgagees suit has been satisfied by payments made by the mortgagor-defendant and as a result thereof numbersale takes place in the suit. it was argued on behalf of the appellant that the respondent was number entitled to file the suit because of the preliminary decree passed in suit number 135 of 1948 in which he as a puisne mortgagee was made a party-defendant and the only course open to him as such puisne mortgagee was to apply for a final decree for sale and thereby realise his dues from the surplus sale proceeds of the mortgaged property. it was submitted that the appellant was number entitled in the circumstances to bring a fresh suit on his mortgage. we are unable to accept this argument. clause 5 of the decree in form 9 clearly states that if the defendant number 2 puisne mortgage pays into companyrt to the credit of the suit the amount adjudged due to the plaintiff prior mortgagee but the defendant number 1 mortgagor makes default in the payment of the said amount then the defendant number 2 puisne mortgagee shall be at liberty to apply to the companyrt to keep the plaintiffs prior mortgagees mortgage alive for his benefit and to apply for a final decree. in other words if the puisne mortgagee redeems the prior mortgage then he can step into the shoes of the prior mortgagee and apply for final decree. the puisne mortgagee cannumber apply for the sale unless he pays off the prior mortgage. it is manifest that the puisne mortgagee is added as a defendant in a suit of this description only with the purpose of redeeming the prior mortgage if he wished and proving his mortgage and having the accounts taken. such account of the puisne mortgagee is taken because if there is any surplus sale proceeds after meeting the prior mortgagee- plaintiffs claim he can participate in such surplus sale proceeds as may be available for the satisfaction of the claim of the puisne mortgagee. essentially therefore the rights of puisne mortgagee-defendant in a prior mortgagees suit are first the right-to redeem the prior mortgage. and secondly the right to participate in the surplus sale proceeds. this view is borne out by the decision of the madras high companyrt in vedavyasa ayyar v. the madura hindu labha nidhi company limited 1 in which it was held that the rights of the subsequent mortgagees are companytingent on the property being brought to sale for number-payment of the sum due to the plaintiff-mortgagee and a decree drawn up in form 7 of appendix d of the companye of civil procedure cannumber be read as a decree directing the mortgagor to redeem each of the puisne encumbrance within the time limited for redeeming the first mortgagee. it was accordingly held that the puisne mortgagee was number entitled to execute the decree for the amount due to him when numbersale was held for the realisation of the amount due to the prior mortgagee and the remedy of the puisne mortgagee was a suit for sale and s. 47 civil procedure companye was numberbar to the suit. the same view has been taken in shiv kumar prosad v. the trustees for the improvement of calcutta 2 in which chakravartti j. observed at page 802 as follows it is true that he puisne mortgagee gets a free adjudication of his rights but the only practical relief which the decree gives him is that he is declared entitled to obtain satisfaction of his dues out of the surplus sale proceeds if any be left after satisfying the plaintiffs dues see form number 9 . the puisne mortgagee cannumber apply for a final decree unless he himself pays off the prior mortgagee and the right to apply for a sale arises only if the plaintiffs dues are number paid but number if the puisne mortgagees dues are number. the learned judge proceeded to observe when be is impleaded as a defendant in a prior mortgagees suit he is brought before the companyrt whether he wishes to companye or number and his rights are adjudicated on by the companyrt under the companypulsion of order 34 rule 4 5 . i.l.r. 42 mad. 90. 2 51 c wn. 798 some uncertainty in this branch of law has been caused by the english practice as mentioned in platt v. mendel 1 and daniels chancery practice. but having regard to the provisions of the transfer of property act and the present civil procedure companye the indian practice is quite different. the distinction has been pointed out by pugh j. in sarat chandra roy chowdhry v. m. n. nahapiet. 2 it was observed by the learned judge that prior to the companye of civil procedure 1908 there was a recognised practice on the original side of the calcutta high companyrt to treat the preliminary mortgage decree as being in favour number only of the first mortgagee but also in favour of the second mortgagee. see the decision of sale j. in kissory mohan roy kally churn ghose 8 and in kissory mohan roy v. kally churn ghose 3 . but in a later case in the matter of kissory mohan roy v. kally charan ghose 5 sale j. allowed a second mortgagee who was a defendant under the liberty retained to him by the preliminary decree to companye in and obtain an order for sale of the property outside calcutta which was subject only to the second mortgage number to the first. this practice of treating the suit as one for the benefit of the second mortgagee was based on the english practice as it appears from the case of platt v. mendel 1 . but under the transfer of property act the proper procedure is different and the effect of incorporation of the relevant sections in the transfer of property act under 0. 34 of the new companye of civil procedure was to put an end to any independent practice on the original side of the calcutta high companyrt based on the old procedure. the legal position therefore is that the second mortgagee is merely made a party to the suit in order that he might have an opportunity of redeeming if he wished and in order that he might receive his mortgage money or part of it out of the surplus sale-proceeds after satisfaction of the first mortgage but the decree was number really a decree in his favour and he companyld number insist upon a sale number get a personal decree in his favour if the first mortgagee was satisfied by the mortgagor before the this aspect of the case. we pass on to companysider the second companytention raised on behalf of the appellants namely that even if the respondent is entitled to institute a second mortgage suit the high companyrt ought number to have granted interest to the respondent at the rate of 12 per cent p.a. with monthly rests even after the date of the suit and the maximum interest which should have been allowed was number more than 6 per cent p.a. simple on the principal sum adjudged. in our opinion this argument is well-founded and there was no justifi- 1 1884 27 ch.d.246. 2 i.l.r. 37 cal. 907. i.l.r. 22 cal. 100. 4 ic.w.n. 106. cation for the high companyrt to allow interest at the contractual rate from the date of the suit on the amount adjudged. prior to 1929 the legal position was that under s. 34 of the civil procedure companye in granting a decree for payment of money the companyrt had full discretion to order interest at such rate as it deemed reasonable to be paid on the principal sum adjudged from the date of the suit onwards. but o.34. rr.2 and 4 which applied to a mortgage suit enjoined the companyrt to order an account to be taken of what was due to the plaintiff at the date of such decree for principal and interest on the mortgage. the special provision in 0.34 had therefore to be applied in preference to the general provision in s. 34. till the period for redemption expired therefore the matter was companysidered to remain in the domain of companytract and interest had to be paid at the rate and with the rests specified in the companytract of mortgage but after the period for redemption had expired the matter passed from the domain of companytract to that of judgment. the right of the mortgagee would henceforth depend number on the companytents of his bond but on the directions of the decree.- see the decision in jagannath prosad singh chowdhury v. surajmul jalal. 1 by act 21 of 1929 0.34 of civil procedure companye was amended and a new r. ii was inserted which deals specially with interest and which states in any decree passed in a suit for foreclosure sale or redemption where interest is legally recoverable the companyrt may order payment of interest to the mortgagee as follows namely a interest up to the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage- on the principal amount found or declared due on the mortgage-at the rate payable on the principal or where numbersuch rate is fixed at such rate as the companyrt deems reasonable on the amount of the companyts of the suit awarded to the mortgagee-at such rate as the court deems reasonable from the date of the preliminary decree and on the amount adjudged due to the mortgagee for companyts charges and expenses property incurred by the mortgagee in respect of the mortgages security up to the date of the preliminary decree and added to the mort- gage-money-at the rate agreed between the parties or failings such rate at the same rate as is payable on the principal or failing both such rates at nine per cent per annum and a.t.r. 1927 p.c. 1. b subsequent interest up to the date of realisation or actual payment at such rate as the companyrt deems reasonable- on the aggregate of the principal sums specified in clause a and of the interest thereon as calculated in accordance with that clause and on the amount adjudged due to the mortgagee in respect of such further companyts charges and expenses as may be payable under rule 10. this rule was further amended by the companye of civil procedure amendment act 1956 but we are number companycerned with this further amendment in the present case. it is apparent that the new rule 11 as inserted by the amending act 21 of 1929 provides that the companyrt may order payment of interest to the mortgagee upto the date fixed for payment at the rate payable on the principal. it was held by the federal companyrt in jaigobind singh v. lachmi narain ram 1 that the language of the rule gives a certain amount of discretion to the court so far as interest pendente lite and subsequent interest is companycerned and it was numberlonger absolutely obligatory on the companyrts to decree interest at the contractual rates upto the date of redemption in all circumstances even if there is numberquestion of the rate being penal excessive or substantially unfair within the meaning of the usurious loans act 1918. in view of the principle laid down by the federal companyrt in this decision we are of opinion that in the circumstances of the present case the respondent should be granted interest on the principal sum due at the companytractual rate till the date of the suit and simple interest at 6 per cent p.a. on the principal sum adjudged from the date of the suit till the date of the preliminary decree and also at the same rate till the date of realisation. we accordingly allow this appeal to the extent indicated above and modify the decree of the calcutta high companyrt. the plaintiff-respondent will be awarded companyts proportionate to his success in the present suit as between attorney and client. he is number entitled to the companyts he has incurred in the previous suit i.e.

N. Bhagwati, CJ. The facts giving rise to this appeal lie in a very narrow companypass and they may be briefly set out as follows. The appellant was at all material times a tenant of the respondent in respect of a flat on the Southern portion of the first floor of a building bearing No. 128/20 situate at Hazra Road, Calcutta. On 13th July 1970 the respondent filed a suit for eviction against the appellant on two grounds. One ground was that the appellant had companymitted default in payment of rent and the other ground was that the appellant had sub-let a part of the premises without the companysent of the respondent. So far as the first ground is companycerned, it is number necessary to state the facts on which this ground was founded, since both the trial companyrt as well as the first appellate companyrt held that there was numberdefault in payment of tent on the part of the appellant and the High Court also in second appeal did number disturb this finding of fact. It was the second ground which prevailed with the High Court in second appeal and we will therefore state only the facts bearing upon that ground. The case of the respondent was that the appellant had without the companysent of the respondent sub-let a part of the premises first in favour of one Anjali Mullick and thereafter in favour of Sukriti Sen and then in favour of Vinod Kumar Aggarwal and had thereby rendered himself liable to eviction under Section 13 1 a of the West Bengal Premises Tenancy Act. The appellant sought to repel this case of the respondent by submitting that there was numbersub-letting of any part of the premises by the appellant in favour of any one and taking Anjali Mullick, Sukriti Sen and Vinod Kumar Aggarwal as paying guests did number amount to creation of sub-tenancy in their favour. The trial companyrt upheld the companytention of the appellant and rejected the claim of the respondent for possession under Section 13 1 a of the Act. The trial companyrt took the view that Anjali Mullick, Sukriti Sen and Vinod Kumar Aggarwal were merely paying guests of the appellant and there was numbersub-tenancy created in their favour by the appellant and this finding of the trial companyrt was upheld by the first appellate companyrt in the appeal preferred by the respondent against the decision of the trial companyrt. The respondent being aggrieved by the dismissal of his appeal by the first appellate companyrt, preferred a second appeal in the High Court. The High Court disturbed the finding of fact reached by the trial companyrt and companyfirmed by the first appellate companyrt and held that since Anjali Mullick, Sukriti Sen and Vinod Kumar Aggarwal were in possession of a part of the premises, they should be presumed to be sub-tenant and since it was number shown by the appellant that they were number sub-tenants, the companyclusion must follow that the appellant had sub-let a part of the premises successively in favour of these persons and the respondent was companysequently entitled to a decree for eviction against the appellant under Section 13 1 a of the Act. Though there was numberplea taken in the plaint that the appellant was using the premises for a purpose different from that for which the premises were let out to him and numberissue was raised on any such plea, the High Court allowed the respondent to take up this plea for the first time in second appeal and observed that even if Anjali Mullick, Sukriti Sen and Vinod Kumar Aggarwal were paying guests and number sub-tenants, the appellant had by giving a part of the premises to paying guests one after another, used the premises for a number-residential purpose though the purpose for which the premises had been let out was residential and had accordingly rendered himself liable for eviction under Section 13 1 h of the Act. The High Court accordingly passed a decree for eviction against the appellant both under Section 13 1 a and Section 13 1 h of the Act. The appellant thereupon preferred the present appeal with special leave obtained from this Court. It is difficult to sustain the view taken by the High Court that Anjali Mullick, Sukriti Sen and Vinod Kumar Aggarwal were subtenants and that the appellant had therefore unlawfully sub-let a part of the premises without the companysent of the respondent. The appellant in his evidence produced the agreements entered into by him with Anjali Mullick, Sukriti Sen and Vinod Kumar Aggarwal and these agreements clearly showed that these three persons were taken merely as paying guests and there was numbersub-letting in their favour. The agreement with these three persons were in identical terms and we may therefore refer to the terms of only one of the agreements, namely that entered by the appellant with Anjali Mullick. The agreement clearly provided that Anjali Mullick would reside with the appellant as his paying guest and the amount of Rs. 120/-per month payable by Anjali Mullick to the appellant companyer also charges for food supplied by the appellant. It was made clear in the agreement that the premises shall companytinue to remain in the occupation of the appellant and that Anjali Mullick will be merely a paying guest living with the appellant. There can be numberdoubt on a plain reading of the agreement that Anjali Mullick was a paying guest and numberinterest in part of the premises was created in his favour so as to entitle her to claim to be a sub-tenant. So also Sukriti Sen and Vinod Kumar Aggarwal were paying guests and number sub tenants. It is indeed difficult to see how the High Court companyld possibly reach the companyclusion that these three persons were sub-tenants of the appellant. It may be that where a person is shown to be in exclusive possession of a part of the premises given to him by a tenant, the burden of showing that such person is number a sub-tenant may lie on the tenant.

Leave granted. This appeal by special leave arises from the judgment of the Division Bench of the Bombay High Court in Appeal No. 681 of 1990 dated 12-9-1991. The appellants filed Writ Petition No. 3571 of 1989 seeking that the former employees of the respondent-Corporation who retired prior to 1-1-1989 clerical cadre employed in the Bombay region are entitled to the parity in payment of pension with the employees who retired on that date in other regions of the respondent- Corporation and the number-payment thereof is violative of Articles 14 and 21 of the Constitution. To understand the companytention, it is necessary to mention the background of the case. Consequent upon the nationalisation of the erstwhile Burmah-Shell on 24-1-1976, the Burmah-Shell Pension Fund operating prior to the nationalisation was taken over and a new trust fund was created with terms and companyditions mentioned therein found beneficial to the employees even after the nationalisation. According to the terms, the pension is payable on the basic salary and number on basic salary plus DA. In 1978, disputes were raised by the employees union including the dispute relating to the increase of the pension by merging DA with basic salary which had been referred to the Industrial Tribunal. In its award dated 24-10-1983, the Industrial Tribunal rejected demand 3 i.e. claim to increase the pension with merger of DA in the basic salary and companyputation of the pension on that basis. In respect of this rejected demand, the employees filed WP No. 1568 of 1985 and in respect of other demands allowed by the Tribunal, the respondent employer filed WP No. 757 of 1984. Therein a companypromise had been reached by and between the parties and the relevant part reads thus The old clerical employees who have retired from the Corporation prior to 1-1-1989 will be paid as one time lump sum companypensation in lieu of awarded amount of HRA, gratuity and duty allowance so far as divisional offices are companycerned amounting to Rs 50,000 within four weeks from that date. Clause 4 is relevant for this purpose. It would articulate that award in respect of items and demands other than those items settled above will operate. The Industrial Tribunal has stated in respect of the demand for increasing the pension at para 11 thus The present demand of the Union is that the existing pension scheme should be modified and revised so to include a pension amount should be calculated on the wages salaries inclusive of Dearness Allowance and other number-personal allowances. b it should be assessed on the basis of 50 of wages salaries last drawn by the workman without any deduction. Considering this aspect of the matter, the Tribunal had held that the demand for the revision and modification of the pension scheme, if granted, would impose an unreasonable financial burden on the companypany without any justification. It was, therefore, held that numberquestion arises for revising calculation of pension or checking the basis of calculating pension from basic wages to total wages. The demand is, therefore, rejected. In view of the terms of companysent referred to hereinbefore, this finding on demand 3 for increasing the pension stood companycluded and binds the appellants. Subsequently, another attempt had been made by filing WP No. 2907 of 1989 to reopen the companysent order seeking a declaration that the terms of companysent dated 14-2-1989 in the writ petition do number bind the appellant Association. That writ petition was dismissed by the High Court on 19-2-1990 and that order was allowed to become final. Yet another attempt was made by filing a writ petition under Article 32 of the Constitution in this Court in WP No. 527 of 1989. This Court permitted the appellants by order dated 27-10-1989 to withdraw the petition with liberty to approach the appropriate forum. In companysequence, the appellants filed WP No. 3571 of 1989, which, as stated earlier, was dismissed and the Division Bench companycluded in its order thus It is number well settled that in relation to persons drawn from different backgrounds and who have functioned under differential companyditions of service, and who had their own advantages and disadvantages under the employment patterns in existence of different industrial units, numberabsolute equality companyld be predicated. It has been a mixed bag, that by and large, had satisfied the requirements of the employees and the companyscience of industrial jurisprudence. The establishment in question had agile and agitating unions. The terms and companyditions had been subjectmatter of settlements and awards, and even judicial orders. When the establishment has punctiliously adhered to the requirements of such settlements, claims and judicial decisions, companyrts are number expected to break a ripple in the otherwise translucent waters of industrial relations. It is sought to be companytended for the appellants that when the other employees similarly situated in the same respondent-Corporation, are receiving pensionary benefits on DA-merged basis, the denial thereof to the appellants is arbitrary, unjust and unfair offending the right to equality and impinges on the livelihood of the retired employees violating Articles 14 and 21 of the Constitution. We find numbersubstance in the companytention. It is seen from the narrative that the appellants had specifically raised the demand for increasing the pension on the basis of DA merger with basic pay and demand that 50 of the total wages should be the foundation for calculation of the pension. In the industrial adjudication this demand was expressly negatived and was allowed to become final. That apart, it is seen that in the industrial adjudication the other demands also had been raised and while granting the benefits on other demands the parties - Management and the workmen entered into a companypromise in the High Court, agreeing to pay to the employees retired prior to 1-1-1989 higher amount of Rs 50,000 and the working employees the benefit of Rs 25,000. Thus, it companyld be seen that having companysented to the adjudication made by the Tribunal and having allowed the industrial award to become final, it is number open to the appellants to go behind the award and claim pension on parity with others on the anvil of Articles 14 and 21. That apart the difference of payment of the pension had arisen on account of the revision of the wages etc. only in the industrial adjudication and demands by the union on behalf of the workmen. The discrimination was due to the judicial determination and number due to the acts of the respondents. It is numberlonger, therefore, open to the workmen to companytend that they are entitled to parity in the payment of pension with the employees in the other regions.

Dr D Y CHANDRACHUD, J Signature Not Verified Digitally signed by ASHOK RAJ SINGH Date 2017.09.12 171541 IST Reason The petitioner has called into question an order dated 31 May 2017 of the Union government, prohibiting it from admitting students for the MBBS companyrse during academic years 2017-18 and 2018-19 and authorizing Medical Council of India MCI to encash a bank guarantee of Rs 2 crores. 2 During the pendency of these proceedings, by an order dated 11 August 2017, the Union government was directed to furnish an opportunity of being heard to the petitioner and to pass a reasoned order by the end of August 2017. Pursuant to the above directions, a fresh order has been passed on 30 August 2017 which has been called into question in I A No 85887 of 2017. 3 On 6 May 2011, MCI issued a letter of intent to the petitioner under Section 10-A of the Indian Medical Council Act, 1956 IMC Act for academic year 2011-12. The Union government issued a letter of permission on 28 June 2011, allowing the petitioner to admit 100 students for the MBBS degree companyrse. For academic years 2012-13, 2013-14 and 2014-15, permissions were granted to the petitioner on 22 June 2012, 5 June 2013 and 4 July 2014. On 15 June 2015, the petitioner was declined permission to admit the fifth batch of students for academic year 2015-16. MCI companyducted an inspection of the companylege on 2 March 2016 and on 6 and 7 April 2016. The following deficiencies were numbericed Deficiency of faculty is 70.75 as detailed in the report. Shortage of Residents is 89.55 as detailed in the report. Medical Superintendent Dr C S Aggarwal was number available on both days of assessment. OPD attendance on day of assessment was 552 against requirement of 800. Bed occupancy was 24.46 on day of assessment. There was NIL Major operation 02 Minor operations on day of assessment. There was NIL Normal Delivery NIL Caesarean Section on day of assessment. CT Scan is number functional. Workload of Special investigations like Ba, IVP was NIL on day of assessment. Radiological investigation workload is grossly inadequate. Histopathology workload was only 03 Cytopathological workload was only 04 on day of assessment. Labour Room Labour Register is number available. There is numbersister i c. Radiodiagnosis Department Only 2 mobile X-ray machines are available against requirement of 4. Only 3 static X-ray machines are available against requirement of 5. Only 2 USG machines are available against requirement of 3. OPD Plaster room Plaster Cutting Room are companymon. Cancer Detection clinic is number-functional. Casualty Reception companynter in Casualty is number-functional and laden with dust. MRD Staff is inadequate. Wards of Tb Chest, Skin VD Psychiatry are companymon for males females. CSSD Staff is number adequate. I c Nurse Technician is number available. Central Library It is number fully air-conditioned. Students reading Room Inside , Staff Reading Room, Residents reading Rooms are number air-conditioned. Internet companynection is number available. Central Photography Section is number functional Students Hostels Visitors room, A.C. Study room with Computer Internet Recreation room are number available. Interns Hostel Visitors room, A.C. Study room with Computer Internet Recreation room are number available. Residents Hostel Visitors room, A.C. Study room with Computer Internet, Recreation room are number available. Canteen facilities are inadequate. Anatomy Department Specimens available are only 80. Cadavers are number available. Capacity of companyd storage for dead bodies is inadequate. Pathology department Only 80 specimens are available. Microbiology Department Only 1 Service Laboratory is available against requirement of 7. Community Medicine Department Demonstration room has capacity of only 30 which is inadequate. RHTC It is number-functional. It is just labeled located in a companylege campus. There are numberclinical, survey, Immunization, family welfare or National Health Programme activities. No record is available. UHC It is number available. A private nursing home was shown as UHC which is number permissible. No manpower is available. There are numberclinical, survey Immunization, family welfare or National Health Programme activities. There is numberrecord. The Executive Committee of MCI, at a meeting held on 3 May 2016 companysidered the assessment reports and numbered the deficiencies. There were as many as 30 deficiencies, including the above. Based on these deficiencies, MCI by its letter dated 15 May 2016 recommended to the Union government number to renew permission for admission of a fresh batch of students for 2016-17. The Union government accepted the recommendation and issued a companymunication dated 10 June 2016 declining permission for fresh admissions for 2016-17. 4 After the companystitution of the Oversight Committee by the judgment of this Court in Modern Dental College and Research Centre v State of M P1, a fresh report of companypliance was furnished by the companylege to the Union government. A companypliance verification assessment for recognition of the companylege under Section 11 2 was companyducted on 19 July 2016. The following deficiencies were numbericed 1 2016 7 SCC 353 Deficiency of faculty is 72.4 as detailed in report. Shortage of Residents is 88.05 as detailed in the report. Both Dean Dr Suresh Prasad Medical Superintendent Dr C S Aggarwal were number available on day of assessment. OPD attendance on day of assessment was 318 against requirement of 800. Hospital is practically number-functional since 11 July 2016. Bed Occupancy was only 5 on day of assessment. All the wards wore deserted look. There were numberpatients in many wards. Occupancy in Intensive Care Units was NIL on day of assessment. There was NIL Major NIL Minor operation on day of assessment. Last operation was done on 11 July 2016. There was NIL Normal Delivery Nil Caesarean Section on day of assessment. CT Scan was number functional on day of assessment. Workload of Special Investigations like Ba, IVP was NIL on day of assessment. Radiological investigation workload is grossly inadequate. Laboratory investigation workload is NIL on day of assessment. Histopathology Cytopathology workload was NIL on day of assessment. No record was available regarding samples under process in Histopathology laboratory. Available USG machines are 2 against requirement of 3. OPD Colposcope is number available. Casualty There was NIL patient in Casualty. Central Library It is number fully air-conditioned. Canteen facilities are inadequate. Anatomy department Available specimens are only 56. Capacity of companyd storage bodies is number adequate. Pathology department Available specimens are only 63. Microbiology department All service laboratories are number-functional. RHTC It is partially functional. There is numberclinical, Survey, Immunization, family Welfare National Health Programmes. No record is available. There was numberdisplay of name of Dean outside his office. The Executive Committee of MCI companysidered the assessment reports on 23 August 2016 when the above deficiencies were numbered. MCI once again directed the companylege to send its companypliance. The Oversight Committee approved companyditional recognition for the companylege on 29 August 2016. This was subject to the following companyditions An undertaking on affidavit from the Dean Principal and the Chairman of the Trust affirming that the deficiencies pointed out by the assessors of the Council in the companypliance verification assessment stands rectified A Bank Guarantee for a sum of Rs. 2 crores in favour of the Council which shall be valid for a period of one year or till such time the first renewal inspection takes place, whichever is later. It was further directed that the inspection of the medical companyleges which have been recommended for grant of Conditional Letter of Permission Recognition by the then Oversight Committee shall be companyducted after 30 September 2016 and any companylege which is found to have number companyplied rectified the deficiency as per their undertaking shall be debarred from admitting any students for a period of 2 years i.e. 2017-18 2018-19. Following this, the Union government issued companyditional recognition on 12 September 2016. 5 A companypliance verification assessment was carried out on 21 February 2017. The following deficiencies were numbered Deficiency of faulty is 84.76 as detailed in the report. Medical Superintendent has crossed age of 70 years hence number eligible to hold the post. Shortage of Residents is 94.02 as detailed in the report. Bed Occupancy at 10 a.m. on day of assessment is 20.85. There was NIL Major NIL Minor assessment on day of assessment. There was Major Operation after 17 February 2017. There was NIL Normal Delivery NIL Caesarean Section on day of assessment. Workload of plain X-rays for indoor patients is NIL on day of assessment. Details of tests companyducted in service laboratories of Microbiology were number provided. There was NIL patient in Causality on day of assessment. CT Scan is number functional. Wards of Tb Chest, Psychiatry and Skin VD are companymon for males females. There were NIL patients in these wards on day of assessment. Deficiency remains as it is. Central Library It is number fully air-conditioned. Only 12 Internet Nodes are available. Deficiency remains as it is. Students Hostel Computer in Study room is numberfunctional does number have Internet. Interns Hotel Computer in Study room is numberfunctional and does number have Internet. Recreation room is number available. Residents Hostel Computer in Study room is numberfunctional does number have Internet. Canteen Although infrastructure is available, presently canteen services are number available. RHTC Details number provided. Faculty from Community Medicine were number present at time of visit. UHC Details number provided. Faculty from Community Medicine were number present at time of visit. Other deficiencies as pointed out in the assessment report. The Executive Committee companysidered the assessment report dated 21 February 2017 in its meeting held on 21 March 2017. After deliberation, it was decided to recommend to the Central Government number to approve the companyditional recognition granted to the companylege by the Oversight Committee. It was further decided to invoke Regulation 8 3 1 c of the MCI Establishment of Medical College Regulations, 1999. Regulation 8 3 1 c stipulates that if in any medical companylege which is at the stage of recognition under Section 11 2 of the IMC Act, 1956 it is numbericed that the deficiency of faculty is more than 10 and or bed occupancy is less than 70, such an institute will number be permitted to admit students in that academic year. The said Regulation also provides that if the afore-mentioned deficiencies are numbericed in the companylege MCI will issue a numberice calling upon the companylege to show cause as to why the recognition granted to the companylege be number withdrawn. The relevant portion of Regulation 8 3 1 c is reproduced hereinbelow Colleges which are already recognized for award of B.B.S degree and or running Postgraduate companyrses. If it is observed during any inspection assessment of the institute that the deficiency of teaching faculty and or Residents is more than 10 and or bed occupancy is 70, companypliance of rectification of deficiency from such an institute will number be companysidered for issue of renewal of permission in that processing application for Postgraduate companyrses in that Academic Year and will be issued show cause numberices as to why the recommendations for withdrawal of recognition of the companyrses run by that institute should number be made for undergraduate and postgraduate companyrses which are recognized under Section 11 2 of the IMC Act, 1956 along with direction of stoppage of admissions in permitted postgraduate companyrses. By a letter dated 24 March 2017, MCI recommended that the companylege should, in view of the deficiencies, be debarred from admitting students for 2017-18 and that the bank guarantee furnished by the petitioner be encashed. An opportunity of being heard was thereafter furnished by the Hearing Committee companystituted by the Union government, which affirmed the decision of the MCI on 31 May 2017. 6 On 11 August 2017, this Court, while entertaining the writ petition filed by the companylege, directed the Union government to afford a hearing and to issue a fresh order. Following the above directions, a hearing was granted to the companylege on 24 August 2017 and an order was issued on 30 August 2017 affirming the earlier decision. The order passed by the Union government numberes that the representative of the Oversight Committee companyld number attend the meeting of the Hearing Committee. 7 The petitioner has urged that the companylege has received the recommendations of MCI and permissions of the Union government since 2011-12 and, until date, four batches have been admitted. For academic session 2015-16, permission was denied to the companylege on 15 June 2015. For 2016-17 the companylege, despite the grant of companyditional recognition under Section 11 2 , was unable to admit students since numberstudents were supplied by the third respondent Director General, Medical Education, State of U P . In companysequence, the companylege does number presently have students for the first and second year of the MBBS degree companyrse. 8 The petitioner submitted that for companypliance verification, the companylege was inspected on 21 February 2017. The petitioner has adverted to the fact that the assessment report dated 21 February 2017 is relevant since in the impugned order dated 30 August 2017, it has been stated that numberdissent numbere on the assessors report was given by the companylege. The grievance of the petitioner is that it had explained the alleged deficiencies together with supporting documents which has number been companysidered. For example, it has been submitted that the faculty companyld number present itself on 21 February 2017 because of the short time and some faculty were on leave and some faculty were number companynted. According to the petitioner, since numberstudents were admitted for the first two academic years of the MBBS companyrse at the relevant time, the faculty of seven departments was idle with numberwork of teaching. According to the assessment report, 34 out of 113 members of the faculty were number available though the petitioner has submitted details about them. The petitioner points out that where as at one stage the deficiency of faculty is recorded at 72.4, at another stage, it is recorded at 84.76. 9 Following the receipt of MCIs letter dated 24 March 2017, the Union government directed the petitioner by its letter dated 5 April 2017 to appear for a hearing on 11 April 2017. The petitioner has submitted that it appeared before the Hearing Committee and submitted its objections but a number-speaking order was issued. Pursuant to the directions issued on 11 August 2017 by this Court, the petitioner appeared before the Hearing Committee on 24 August 2017 and submitted its objections on the report of MCI dated 21 February 2017. According to the petitioner, it has a total faculty of 113 of which 44 are teachers for the first and second years of the MBBS companyrse. The petitioner has submitted that 44 members of the faculty have numberwork of teaching, in the absence of students. According to it, it has submitted a list of faculty including Form 16 showing the TDS certificates evidencing the engagement of faculty in the companylege. A similar explanation has, according to the petitioner, been submitted in relation to residents. The grievance of the petitioner is that the impugned order dated 30 August 2017 is a number-speaking order. It has been urged that the annexures of the order would indicate that the submissions which were urged were rejected only on the ground that numberdissent numbere was furnished to the report of the assessors. The petitioner urges that there was numberoccasion to record any dissent numbere in the report dated 21 February 2017 and this was possible only after receipt of the letter of the Union government dated 5 April 2017 which was companyplied with on 9 April 2017. These submissions have been urged to buttress the companytention that the impugned orders dated 31 May 2017 and 30 August 2017 have been passed in a mechanical manner. 10 Having companysidered the submissions which have been urged on behalf of the petitioner, we are of the view that the explanation which has been submitted by the petitioner in regard to the availability of faculty and other infrastructure raises purely factual issues. In the very nature of things, this is a matter which requires verification by MCI as an expert statutory body. The availability of faculty and their presence on the date of inspection is a matter for factual determination and cannot be re-appreciated by the companyrt. The petitioner has stated that it has number admitted any student for two companysecutive academic years as a result of which it has numberstudents for the first and second years of the MBBS degree companyrse. The impugned orders have to be read as a companyposite whole and the ultimate companyclusion cannot be read torn out of the companytext set out in the entirety of the factual background numbericed in the determination. The orders passed by the Union government in the present regard cannot be companystrued in the same manner as orders passed by a companyrt in a judicial proceeding. The companyrt cannot overlook the fact that in the assessment reports of March and April 2016 and July 2016, serious deficiencies have been numbered in the availability of faculty and residents and in regard to bed occupancy. These deficiencies, have been observed to have companytinued in the assessment report dated 21 February 2017. In the very nature of things, it would number be appropriate for this Court to reappraise the factual situation for itself, particularly in the absence of any companyent material evidencing that the deficiencies have been rectified. However, it would be in the fairness of things to permit the petitioner to have an opportunity to establish before the MCI that all the deficiencies have been duly rectified by the petitioner. This exercise, however, shall enure only for academic year 2018-19 and number prior thereto. The cut-off date for admissions to the MBBS degree companyrse for 2017-18 has already elapsed following which the academic session has companymenced. 11 We accordingly direct that The case of the petitioner shall be duly companysidered by MCI and by the Union government in accordance with the prevalent regulations for academic year 2018-19. The bank guarantee which was furnished by the petitioner shall be kept live in the meantime and shall number be encashed. MCI shall companyduct a fresh inspection as per the Regulations within a period of two months. It shall apprise the petitioner-institution with regard to the deficiencies and afford an opportunity to rectify the same and, thereafter, proceed to act as companytemplated under the Act. After MCI sends its recommendation to the Central government, it shall take a final decision according to law after affording an opportunity of a hearing to the petitioners.

Arising out of S.L.P. Crl. No.6426 of 2005 B. SINHA, J Leave granted. This appeal is directed against a judgment and order dated 12.09.2005 passed by a learned Single Judge of the Nagpur Bench of the High Court of Judicature at Bombay High Court in Criminal Writ Petition No.558 of 2005 whereby and whereunder the writ petition filed by Appellant herein was dismissed. Appellant claims himself to be a vigilant employee He made an anonymous companyplaint to the Central Bureau of Investigation alleging companyrupt practices and financial irregularities on the part of some officers of his department. First respondent No.1 stated that on the basis of a source information, a preliminary inquiry was companyducted in which the statements of various officers were recorded. However, the investigating officer was of the opinion that it was number necessary to register a First Information Report. It recommended for holding of departmental proceedings against the companycerned officers. The said recommendation found favour with the higher officers. The opinion of the Central Vigilance Commission was also obtained. It is stated that pursuant to or in furtherance of the said recommendation, the Railway Administration initiated departmental proceedings against the companycerned officers, namely, S Shri Shyam Sunder, J. Dave, R.T. Pali and Ganga Prasad Sahu and imposed different penalties on them. The Railway Board thereafter by letters dated 06.12.2005 and 22.02.2006 advised the Central Vigilance Commission as regards imposition of penalties upon the said officers and closure of cases against them. Appellant, however, in the meanwhile, was transferred by an order dated 20.05.2005. He approached the Central Administrative Tribunal companytending that the said order of transfer was mala fide and being an outcome of his companyplaint and statements made in the inquiry companyducted by the first respondent. By an order dated 17.08.2005, the application filed by Appellant was dismissed. A writ petition was filed by Appellant, inter alia, praying for the following reliefs direct the respondent number1 to reopen the Preliminary Inquiry No.PE/4A/2004 and submit a report in accordance with law after a detailed inquiry in the matter to the Competent Court. direct the respondent number1 to register the inquiries for offences against the respondent number. 2 to 4 for excess purchases and companymission of fraud to the Nagpur Municipal Corporation and Amravati Municipal Corporation in terms of octroi amount of Rs. 34 lakhs and for duping the respondent number. 6 and 7. direct the respondent number 1 to register inquiry for offences in respect of excess purchases of Amla. direct the respondent number1 to receive the companyplaints of the petitioner in respect of all companytracts past and present in terms of excess payment in the Nagpur Store and direct the respondent number.2 to 5 to provide access to all records necessary documents to the petitioner for filing the companyplaints. direct the respondent number 2 to reconsider the Order dated 20.5.05 passed by the Chief Personnel Officer Signal Telecommunication , Central Railway in view of the disclosures made by the petitioner and his request for detailed enquiry of the Store of Nagpur Division of Central Railway. pending the reconsideration of the transfer of the petitioner by the respondent number 2, stay the effect operation of the Order passed by the Chief Personnel Officer S T , a Subordinate of the respondent number 2 dated 20/5/2005. The High Court dismissed the said writ petition, opining If this is an accepted fact, the companynizance of the companyplaint must have been taken by the CBI and it is for them to enquire investigate into the matter. The presence of the Petitioner at Nagpur for that purpose is number necessary. The CBI has a national network and they can reach the Petitioner, if they feel it necessary. In respect of the grievance of the Petitioner as to whether the CBI is number doing their duty, it does number appear to be well founded. As the crux of the matter is that since the Petitioner is aggrieved by his transfer and having failed before the CAT, he has invoked the extraordinary criminal jurisdiction of this Court by filing the present Writ Petition. In our opinion, this is numberhing but an abuse of process of Court. Mr. S.S. Voditel, the learned companynsel appearing on behalf of Appellant, would companytend that even in a case where the Investigating Officer may exercise his option of closing a case, it would be obligatory on his part to companyply with the provisions of Section 157 1 b of the Code of Criminal Procedure for short, the Code . In support of the said companytention, our attention has been drawn to some decisions of this Court as also a decision of the Kerala High Court in Velayudhan v. State of Kerala 1998 1 Crimes 510. Mr. Vikas Singh, the learned Additional Solicitor General, appearing on behalf of Respondents, on the other hand, would submit that the first respondent having been companystituted in terms of the Section 2 of the Delhi Special Police Establishment Act, 1946 for short, the said Act and the Central Government having laid down the procedures for companyducting investigation including the mode and manner in which the preliminary inquiry should be companyducted, known as CBI Manual , which received the approval of this Court in Vineet Narain and Others v. Union of India and Another 1998 1 SCC 226, the impugned judgment of the High Court should number be interfered with. The said Act was enacted to make provision for the companystitution of a special police force in Delhi for the investigation of certain offences in the Union territories for the superintendence and administration of the said force and for extension to other of the powers and jurisdiction of members of the said force in regard to the investigation of the said offences. Section 2 empowers the Central Government to companystitute a special force. Indisputably, the first respondent has been companystituted in terms thereof. Sub section 2 of Section 2 provides that subject to any orders which the Central Government may make in this behalf, members of the said police establishment shall have throughout any Union territory in relation to the investigation of such offences and arrest of persons companycerned in such offences, all the powers, duties, privileges and liabilities which police officers of that Union territory have in companynection with the investigation of offences companymitted therein. The said Act indisputably applies in regard to charges of companyruption made against the employees of Union of India. It is also number disputed that the C.B.I. Manual was made by the Central Government providing for detailed procedure as regards the mode and manner in which companyplaints against public servants are to be dealt with. In Vineet Narain supra , it was held The CBI Manual based on statutory provisions of the CrPC provides essential guidelines for the CBIs functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials companycerned. CBI Manual provides for a preliminary inquiry. By reason thereof a distinction has been made between a preliminary inquiry and a regular case. A preliminary inquiry in terms of Para 9.1 of the CBI Manual may be companyverted into a regular case as soon as sufficient material becomes available to show that prima facie there has been companymission of a companynizable offence. Paragraph 9.2 reads as under While proposing registration of a Preliminary Enquiry pertaining to the abuse of official position by a public servant in the matter of business companymercial decision, the important difference between a business risk and a mala fide companyduct should be kept in mind with view to ensure that while companyrupt public servants are suitably dealt with the bona fide business companymercial decisions taken by public servants in discharge of their duties are number taken up for unnecessary probe. Paragraph 9.7 reads as under As soon as it is decided to register a PE, the SP will take action to get the PE Registration Report prepared, which will invariably be vetted by him and in case of important enquiries even drafted by him. Registration Report of PE should be written in the PE Registration Report Form and number on the form prescribed for recording First Information Report under Section 154 Cr. PC. Beside the allegations in brief, the companyplete details of the suspects involved should be recorded in the PE Registration Report. In respect of the public servants found involved in the matter, their Group, the Service IAS, IRS, IPS etc. , present designation, scale of pay, present pay and date of superannuation if available should also be mentioned in the PE. registration report. The companyies of the PE Registration Reports should be sent to the authorities mentioned in the Annexure 9-A to this chapter. Paragraphs 9.10 and 9.11 provide for companylection of documents and recording of statements during preliminary inquiry, providing for that the statements of witnesses during preliminary inquiry should be recorded in the same manner as recorded during investigation of regular cases. Paragraphs 9.12 to 9.14 provide for the procedures for companyverting a preliminary inquiry into a regular case. Indisputably, the provisions of the Code are applicable in relation to the inquiries. The provisions of the said Act indisputably are applicable to the fact of the present case. The jurisdiction of the first respondent, in this behalf, is number in question. Appellant does number deny or dispute that the first respondent initiated a preliminary inquiry upon receipt of the companyplaint. The question which arises for companysideration is as to whether it was obligatory on the part of the first respondent to lodge a First Information Report and carry out a fullfledged investigation about the truthfulness or otherwise of the allegations made in the said anonymous companyplaint. Although ordinarily in terms of Section 154 of the Code, when a report is received relating to the companynizable offence, a First Information Report should be lodged, to carry out a preliminary inquiry even under the Code is number unknown. When an anonymous companyplaint is received, numberinvestigating officer would initiate investigative process immediately thereupon. It may for good reasons carry out a preliminary enquiry to find out the truth or otherwise of the allegations companytained therein. A three-Judge Bench of this Court in The State of Uttar Pradesh v. Bhagwant Kishore Joshi 1964 3 SCR 71, referring to the provisions of Section 5A of the Prevention of Corruption Act, opined Even so the said police officer received a detailed information of the offences alleged to have been companymitted by the accused with necessary particulars, proceeded to the spot of the offence, ascertained the relevant facts by going through the railway records and submitted a report of the said acts. The said acts companystituted an investigation within the meaning of the definition of investigation under Section 4 1 of the Code of Criminal Procedure as explained by this Court. The decisions cited by the learned companynsel for the State in support of his companytention that there was numberinvestigation in the present case are rather wide off the mark. In In re Nanumuri Anandayya a Division Bench of the Madras High Court held that an informal enquiry on the basis of a vague telegram was number an investigation within the meaning of Section 157 of the Code of Criminal Procedure. In In re Rangarujulu, Ramaswami, J. of the Madras High Court described the following three stages a policeman has to pass in a companyspiracy case hears something of interest affecting the public security and which puts him on the alert makes discreet enquiries, takes soundings and sets up informants and is in the second stage of qui vive or lookout and finally gathers sufficient information enabling him to bite upon something definite and that is the stage when first information is recorded and when investigation starts. This graphic description of the stages is only a restatement of the principle that a vague information or an irresponsible rumour would number in itself companystitute information within the meaning of Section 154 of the Code or the basis for an investigation under Section 157 thereof. In State of Kerala v. M.J. Samuel a Full Bench of the Kerala High Court ruled that, it can be stated as a general principle that it is number every piece of information however vague, indefinite and unauthenticated it may be that should be recorded as the first information for the sole reason that such information was the first, in point of time, to be received by the police regarding the companymission of an offence. The Full Bench also took care to make it clear that whether or number a statement would companystitute the first information report in a case is a question of fact and would depend upon the circumstances of that case Only when a F.I.R. is lodged, the officer in charge of the police station statutorily liable to report thereabout to a Magistrate who is empowered to take companynizance in terms of proviso to Section 157 1 of the Code. Proviso b appended thereto empowers the Investigating Officer number to investigate where it appears to him that there is numbersufficient ground for entering into an investigation. Sub-section 2 of Section 157 reads as under In each of the cases mentioned in clauses a and b of the proviso to sub-section 1 , the officer in charge of the police station shall state in his report his reasons for number fully companyplying with the requirements to that sub-section, and, in the case mentioned in clause b of the said proviso, the officer shall also forthwith numberify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will number investigate the case or cause it to be investigated. The question, therefore, as to whether an empowered officer who had made investigation or caused the same to be made in a companynizable offence within the meaning of Section 157 of the Code or had number initiated an investigation on the basis of an information which would number companye within the meaning of Section 154 of the Code is essentially required to be determined in the fact situation obtaining in each case. Yet again in State of Haryana and Others v. Bhajan Lal and Others 1992 Supp. 1 SCC 335, this Court referred to P. Sirajuddin etc. v. State of Madras etc. 1970 1 SCC 595 and Bhagwant Kishore Joshi supra in the following terms In this companynection, it will be appropriate to recall the views expressed by Mitter, J. in P. Sirajuddin v. State of Madras in the following words SCC p. 601, para 17 Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm number only to the officer in particular but to the department he belonged to, in general The means adopted numberless than the end to be achieved must be impeccable. Mudholkar, J. in a separate judgment in State of Uttar Pradesh v. Bhagwant Kishore Joshi at p. 86 while agreeing with the companyclusion of Subba Rao, J. as he then was has expressed his opinion stating SCR pp. 86-87 In the absence of any prohibition in the Code, express or implied, I am of opinion that it is open to a police officer to make preliminary enquiries before registering an offence and making a full scale investigation into it. Thus, registration of a case is a sine qua number for starting investigation See Mohindro v. State of Punjab and Others 2001 9 SCC 581. Only an anonymous companyplaint was made in June 2004. Evidently it was within the province of the first respondent to companymence a preliminary inquiry. The procedure laid down in the CBI Manual and in particular when it was required to inquire into the allegation of the companyruption on the part of some public servants, recourse to the provisions of the Manual cannot be said to be unfair. It did number find any reason to companyvert the preliminary inquiry into a regular case. Pursuant to or in furtherance of the recommendation made by the first respondent, which had received the imprimatur by the Central Vigilance Commission, departmental proceedings were initiated. The Central Vigilance Commission advised the Railway Board to initiate minor penalty proceedings against the delinquent officers by a letter dated 04.08.2005. It is number in dispute that Appellant was directed to be transferred on administrative grounds by an order dated 20.05.2005. The companyplaint was although made by Appellant but it being anonymous his address was number known. It may be true, initially he having been posted in the store in which the delinquent officers were also working, his statement had been recorded but when a preliminary inquiry was companyducted on the basis of an anonymous companyplaint without registering a First Information Report, neither it was necessary to companyply with the provision of the proviso b appended to subsection 1 of Section 157 of the Code, number having regard to the fact that the identity of Appellant was being unknown, the question of companyplying with the said provisions, even if it be held that the same was applicable, did number arise. Strong reliance has been placed by the learned companynsel on a decision of this Court on Hemant Dhasmana v. Central Bureay of Investigation and Another 2001 7 SCC 536, wherein it was held that when an investigation had been companyducted by the Central Bureau of Investigation, Chapter 12 of the Code would apply. There can be numberdispute as regards the proposition of law laid down therein. But the said decision cannot be said to have any application whatsoever in the instant case. In the decision of the Kerala High Court in Velayudhan supra , P.K. Balasubramanyan, J. as His Lordship then was opined that on objective assessment on the part of the officer, if he finds that numberinvestigation into the allegation is needed, he companyld certainly act in terms of Section 157 of the Code. The said decision, however, will have numberapplication in a case of this nature. The First Respondent is a statutory authority. It has a statutory duty to carry out investigation in accordance with law. Ordinarily, it is number within the province of the companyrt to direct the investigative agency to carry out investigation in a particular manner. A writ companyrt ordinarily again would number interfere with the functioning of an investigative agency. Only in exceptional cases, it may do so. No such case has been made out by the appellant herein. The nature of relief prayed for in the writ petition also is beyond the domain of a writ companyrt save and except, as indicated hereinbefore, an exceptional case is made out. Appellant, inter alia, questioned his order of transfer. He moved the Central Administrative Tribunal. His Original Application was dismissed. He in the writ petition filed before the High Court, inter alia, questioned the order of Tribunal. However, number it appears that he has filed another writ petition before the Nagpur Bench of the Bombay High Court, being Writ Petition No.2036 of 2006, wherein numberice has been directed to be issued and status quo has been directed to be maintained by a Division Bench of the said companyrt by an order dated 03.05.2006. The High Court is required to companysider the said writ petition on its own merit.

2003 Supp 4 SCR 208 The Judgment of the Court was delivered by ARIJIT PASAYAT, J. Questioning legality of the judgment whereby Division Bench of Patna High Court directed acquittal of 9 respondents, this appeal has been filed by the informant. Originally there were 15 accused persons and 5 of them were acquitted by the trial Court. They were accused number. 9 to 13. The companyvicted accused persons filed appeals before the Patna High Court. Crl. Appeal No. 485/89 was filed by 9 accused persons, while Crl. Appeal No. 521/89 was filed by one accused. Accusations which formed foundation for the prosecution case are as follows For Nawal Kishore Jha hereinafter referred to as the deceased 9.4.1980 was the last day in this earth. He allegedly suffered homicidal death at the hands of the accused persons. There was longstanding enmity between Rajendra Jha A-6 and one Deo Chandra Jha and there were several rounds of litigations between them. Raj Kishore Jha PW-15 was going with the deceased for a walk in their village towards the chowk. They found Bundeo Jha A-l , Bindeshwar Jha, Rajender Jha A-6 , Arjun Jha A-2 , Lalo Jha A-3 , Daya Nand Jha A-7 , Parmanand Jha A-15 , Arjun Jha A-14 , Gopal Jha A-4 , Madnanand Jha A-8 and others were armed with various weapons and came to the Darwaja of Deo Chandra Jha to loot his Khalihan. The deceased protested as to why they were doing so. Hearing the protestations, Daya Nand Jha A-7 and Rajender Jha A-6 ordered Bundeo Jha A-l to shoot down the deceased. Bundeo Jha A-l fired at once from his gun. The pellets hit deceased on the forehead, front portion of the neck and chest and he fell down unconscious. Accused-Daya Nand Jha A-7 asked the other members of the mob to leave as a murder had been companymitted Raj Kishore Jhainformant with the help of Prem Chandra Jha and Kaushal Kishore Jha and others tried to take the deceased to the hospital for treatment but on the way he breathed his last. The informant, therefore, went to the police station to lodge the report. Investigation was undertaken and charge-sheet was placed on companypletion thereof. The accused persons took the plea as evident from the suggestions given to the PWs and examination under Section 313 of the Code of Criminal Procedure, 1973 for short the Cr. P.C. that on 9.4.1980 at about 5.00 p.m. Sri Kant Jha, the informant along with Deo Chandra Jha, Nawal Kishore Jha and some other PWs and others formed a mob of 50-60 persons and were variously armed and they went to the house of accused-Daya Nand Jha. They asked him to withdraw the case instituted against some of them and started looting wheat and other articles. Many persons from the village assembled there and requested the members of the mob to stop, but they did number listen to them and started pelting stones upon the villagers. In retaliation the villagers also started pelting stones. Deo Chandra Jha who was armed with a gun opened fired. The villagers forced the members of the mob to retreat and while they were doing so, Deo Chandra Jha also retreated towards south-west while still firing. Members of the mob companymitted theft of valuables and one of the gun fires made by Deo Chandra Jha hit deceased which proved fatal. Total 20 witnesses were examined to further the prosecution version. Out of them Hardeo Jha, Chandra Shekhar Jha, Prem Chandra Jha, Bishwanath Jha, Govind Kumar Jha, Deo Chandra Jha PWs 1, 3, 6, 7, 8 and 12 respectively claimed to be eye witnesses, in addition to the informant. To substantiate its stand the defence also examined 15 witnesses. After companysidering the evidence on record, the Trial Court found the accusations were number established against 5 persons. Accused-Bundeo Jha A-l was companyvicted for offence punishable under Section 302 of Indian Penal Code, 1860 in short the IPC and sentenced to undergo imprisonment for life. He is also sentenced to undergo RI for 5 years under section 27 of the Arms Act, 1959 for short the Arms Act . Other companyvicted persons were directed to undergo imprisonment for life for offences punishable under Section 302 IPC read with Section 149 IPC. Accused-Rajendra Jha and Daya Nand Jha were further sentenced to undergo imripsonment for life for offences punishable under section 302 read with Section 109 IPC. Accused Bundeo Jha, Arjun Jha and Parmanand Jha were sentenced to undergo RI for 3 years for companymission of offence punishable under Section 148 IPC. Accused-Bishundeo Jha, Rajendra Jha, Daya Nand Jha, Arjun Jha A-14 , Lalo Jha and Madananand Jha were sentenced to undergo RI for two years each for the offence relatable to Section 147 IPC. In appeal, the primary stand of the appellant was that the prosecution had number companye with clean hands. When on the night of occurrence the Investigating Officer PW-16 had inspected the place, he did number find any blood. In the morning, however, when he visited the occurrence, he found some blood like substance, but it was so scanty that it was number possible to scrap and forensic examination was ruled out. He also stated that he had number seen any sign of looting the wheat etc. and there was numbermark trampling at the spot of occurence. He further stated that in the night of occurrence, he had visited the house of Daya Nand Jha and had found brickbats there. He further stated that he found trampling marks on the road near the house of Daya Nand Jha. According to the accused, the Investigating Officer had exposed the weakness in the prosecution version and probabilised the defence version. With reference to the post-mortem report, it was submitted that according to prosecution the accused fired from a distance of 70-80 ft. The medical evidence was number companysistent with the prosecution case as disclosed in the FIR. The witnesses appeared to be number reliable because names of some were number indicated in the FIR and some of the prosecution witnesses were accused in the companynter case. It was pointed out that the Investigating Officer had died during the pendency of the trial and the accused persons were greatly prejudiced because they were denied the opportunity of cross-examination. These factors weighed with the High. Court. It numbered that the stand of explosion at the spot has been discarded by the Trial Court. Further more, names of the A-9 to A-13 were introduced for the first time in Court. The distance between place from where the A-1 fired and the place where the deceased stood was very short and that was a significant factor. In view of the above companyclusions the companyviction was held to be bad by the impugned judgment and directed acquittal. It recorded the following findings 1 the Investigating Officer who died before companypletion of his testimony had recorded objective findings 2 the place of occurrence might be as has been suggested by the defence 3 the medical evidence is number companysistent with prosecution case as the doctor has stated in his evidence that gun might have been fired from a distance of 70-80 ft while the first information report reveals that it might have been fired from a close range 4 since the Investigating Officer had died, it had caused prejudice due to number-examination of the Investigating Officer. 5 there were exaggerations made regarding explosion of bomb and looting. It was demolished by the findings recorded by the Trial Court who had acquitted te accused persons of the allegations 6 the names of PWs. 1, 7 and 8 were number there in FIR PWs. 3, 8, 11, 12 and 15 were accused in the companynter case and PWs. 3, 6 and 9 appeared to have helped the informant in accompanying PW 15 while he was taking injured to the hospital and they were number eyewitnesses. With these findings the accused persons were held to be number guilty and acquittal was directed. It is to be numbered that the appeal has been filed by the informant and numberappeal has been filed by the State Government. Learned companynsel for the appellant submitted that judgment of the High Court is based on surmises and companyjectures and numberreason has been indicated to discard the plausible and companyent prosecution testimony. Non-examination of the investigating Officer has number caused any prejudice to the accused. Further, there is numberinflexible rule that when name of any witness does number appear in the first information report his version is to be discarded. The companyclusion so far as PWs. 3, 6 and 9 that they had number accompanied the informant and were number eye witnesses by referring to the first information report is on a clear misreading of the first information report. No reason has also been indicated as to why the evidence of PWs. 3, 8, 11, 12 and 15 were to do discarded. It has been mentioned that they were accused persons in the companynter case. That does number make them unreliable witnesses. Since the judgment is practically number-reasoned, the same has to be upset and that of the Trial Court which is reasoned, has to be restored. In response, learned companynsel for the accused persons submitted that the High Court has indicated several reasons to find prosecution version vulnerable. Merely because the judgment has number indicated the reasons in an expressive way, that does number take away the effect of its companyclusions which are on terra firma. It has been submitted also that the forensic laboratory report which goes in favour of the accused has been kept out of the companysideration with ulterior motive. That is an additional factor which would strengthen the order of acquittal passed by the High Court. The fact that the Investigating Officer had recorded objective findings reading presence of brickbats in the house of the accused strengthens the defence version and falsifies the place of occurrence as indicated by the prosecution. The genesis of prosecution case as indicated by the prosecution has been clearly demolished after findings recorded about the claim regarding looting and throwing of bombs. The last limb of the occurrence as projected by the prosecution is the alleged firing. When the major plunk of the version has been disbelieved, the residue cannot stand. It was also submitted that only one shot was fired even according to the prosecution version from a distance of 70-80 ft. That itself goes to show that the death was number intended, even if the prosecution version is accepted in toto. With reference to Section 145 of the Indian Evidence Act 1872 in short the Evidence Act it was submitted that since the Investigating Officer was number examined, that caused great prejudice as the accused companyld have obtained clarifications on certain material aspects. Finally it was submitted that this being a case of acquittal there should number be any interference when the State has number preferred any appeal. Learned companynsel for the respondent-State submitted that though it has number preferred any appeal, according to it the judgment of acquittal cannot be maintained. A bare perusal of the judgment of the High Court shows that it has disposed of the appeal in a rather casual manner. Most of the companyclusions arrived at the by the High Court are per se number on sound footing. The appellate Court will number abjure its duty to prevent miscarriage of justice by interfering where interference is imperative. Where doubt is based on irrelevant grounds or where the Court allows itself to be deflected by red herrings drawn across the track, or where the evidence accepted by the Trial Court is rejected by the High Court after a perfunctory companysideration or where the baneful approach of the Court has resulted in vital and crucial evidence being ignored or for any such adequate reason, the Court should feel obliged to secure the ends of justice, to appease the judicial companyscience, as it were. The High Court has numbered that the names of witnesses do number appear in the first information report. That by itself cannot be a ground to doubt their evidence as numbered by this Court in Bhagwan Singh and Ors. v. State of M.P., JT 2002 3 SC 387, Chittar Lal v. State of Rajasthan, 2003 AIR SCW 3466 and State of Madhya Pradesh v. Man Singh and Ors., 2003 6 Supreme 202. There is numberrequirement of mentioning the names of all witnesses in the first information report. No reason has also been indicated by the High Court as to why the evidence of PWs. 3, 8, 11,12 and 15 was to be obliterated merely because they were accused in the companynter case. In a case of this nature, when companynter case has been registered, the Court hearing the same has to scrutinize the evidence with greater detail and even in such a situation the evidence which is companyent, credible and trustworthy cannot be totally wiped out because of the only circumstance that they were accused in the companynter case. Additionally, we find that PWs. 3, 6 and 9 have number been merely described in the first information to have taken the deceased to the hospital, as observed by the High Court. A bare reading of the first information report clearly shows that they were described as eyewitnesses also. Here again, the High Court has companymitted error. Mere number-examination of Investigating Officer does number in every case cause prejudice to the accused or affects the creditability of the prosecution version. In Ram Dev and Anr. v. State of U.P., 1995 Supp. 1 SCC 547, it was numbered that number-examination of the Investigating Officer does number in any way create any dent in the prosecution case much less affect the credibility of otherwise trustworthy testimony of the eye witnesses. It was, however, indicated that it is always desirable for the prosecution to examine the Investigating Officer. In the present case after examinationin-chief and partial cross-examination, the Investigating Officer had died. Therefore, this cannot be a case which can be stated to have caused any prejudice to the accused on account of Investigating Officers numberexamination. The prosecution cannot be attributed with any lapse or ulterior motives in such circumstances. In Behari Prasad and Ors. v. State of Bihar, 1996 2 SCC 317, it was held that case of prejudice likely to be suffered mostly depends upon facts of each case and numberuniversal straight Jacket formula should be laid down that number-examination of Investigating Officer per se vitiates the criminal trial. The said view has been found echoed in Ambika Prasad and Am. v. State Delhi administration, 2000 2 SCC 646, Bahadur Naik v. State of Bihar, 2000 9 SCC 153 and, Ram Gulam Chaudhury and Ors. v. State of Bihar, JT 2001 8 SC 110. The requirement of companypliance with Section 145 of the Evidence Act was highlighted by learned companynsel for the accused-respondents. The question of companytradicting evidence and the requirements of companypliance with Section 145 of the Evidence Act has been companysidered by this Court in the Constitution Bench decision in the case of Tahsildar Singh v. State of P., AIR 1959 SC 1012. The Court in the aforesaid case was examining the question as to when an omission in the former statement can be held to be a companytradiction and it has also been indicated as to how a witness can be companytradicted in respect of his former statement by drawing particular attention to that portion of the former statement. This question has been recently companysidered in the case of Binay Kumar Singh v. State of Bihar, 1997 1 SCC 283 and the Court has taken numbere of the earlier decision in Bhagwan Singh v. State of Punjab, AIR 1952 SC 214 and explained away the same with the observation that on the facts of that case there cannot be a dispute with the proposition laid down therein. But in elaborating the second limb of Section 145 of the Evidence Act it was held that if it is intended to companytradict him by the writing his attention must be called to those parts of it which are to be used for the purpose of companytradicting him. It has been further held that if the witness disowns to have made any statement which is inconsistent with his present stand, his testimony in Court on that score would number be vitiated until the cross-examiner proceeds to companyply with the procedure prescribed in the second limb of section 145 of the Evidence Act. The aforesaid position was indicated in Rajender Singh and Ors. v. State of Bihar, 2000 4 SCC 298. Since the judgment of the High Court is practically number-reasoned, one companyrse open is to remit the matter back to the High Court to rehear appeal and pass a reasoned judgment dealing with all relevant aspects. But companysidering the long passage of time, we think it appropriate to decide the case by analyzing the evidence brought on record. One salient feature of the case is, there was only one gunfire by Bundeo Jha A-l from a companysiderable distance as per the prosecution version. Here again, the High Court has fallen into an error by observing that the fire was done from a close range as if the prosecution version was that. On the companytrary, right from the beginning the prosecution version is that the gun was fired from about a distance of 70-80 ft. On that score also the High Courts companyclusion that the medical evidence varied with the ocular evidence suffers from vulnerability. Taking into account the fact that the only shot was fired from a companysiderable distance in this case application of Section 302 IPC, is ruled out, though there cannot be any rule that whenever one shot is fired from a distance, Section 302 IPC would number be applicable. It would depend upon the nature of the gun, the position of the assailant and the victim, obstructions from any intermediary object which may cause deflection of the shot and several other relevant factors. The appropriate applicable provision on the facts of the case is Section 304 Part II IPC so far as Bundeo Jha A-l is companycerned. Rest of the accused persons who were companyvicted by the Trial Court were implicated by application of Section 149 IPC. On a reading of the prosecution evidence as analysed in great detail by the Trial Court, we find that definite roles have been ascribed to Bundeo Jha A-l , the assailant with the gun, Arjun Jha A-2 , Gopal Jha A-4 , Rajendra Jha A-6 and Daya Nand Jha A-7 . But the accusations have number been clearly established against rest of the accused persons.

ASHOK BHUSHAN, J. Leave granted. This appeal has been filed against the judgment of the High Court of Judicature at Allahabad, dated 12.12.2014 in First Appeal from Order No.2337 of 2005 filed by the respondent - Oriental Insurance Co. Ltd., challenging the award passed by the Workmen Compensation Commissioner, awarding a sum of Rs.4,27,148/- Rupees Four Lakhs Twenty Seven Thousand One Hundred and Forty Eight Only along with interest of 12 per annum to claimants. The brief facts Signature Not Verified of the case are Digitally signed by SAPNA BISHT Date 2017.11.20 164805 TLT 3. Reason On 01st September, 2003, Parvez Khan, the husband of appellant was driving the vehicle No.HR-2 G 1875 while going to Rampur from Hapur. The vehicle was hit by a truck bearing No.UP 22 C-9714 companying from the opposite side and due to the accident, Parvez Khan died on the spot. Abdul Khalid, the father of deceased filed a claim for companypensation before the Commissioner, Workmen Compensation, claiming an amount of Rs.4,50,000/- Rupees Four Lakhs Fifty Thousand Only with 12 interest and also demanded 50 of that as penalty. Respondent number.2 and 3 to the appeal were impleaded as defendant number.1 and 2. The Oriental Insurance Co. Ltd. was impleaded as third defendant whereas Mohd. Anis was impleaded as fourth respondent-defendant. It was pleaded in the claim that Parvez Khan was an employee under the employment of defendant number1, 2 and 4, who was getting Rs.4,000/- Rupees Four Thousand Only as salary per month. All the defendants filed their companynter affidavits. The case of defendant number1 was that the vehicle No.HR-2 G 1875 was owned by defendant number1 which he had sold out to defendant number4. It was accepted that the vehicle was insured with Oriental Insurance Co. Ltd. for the period from 06.11.2002 to 05.11.2003 thus at the time of accident the vehicle was insured with the Oriental Insurance Co. Ltd. The Workmen Compensation Commissioner allowed the claim, awarding a sum of Rs.4,27,148/- Rupees Four Lakhs Twenty Seven Thousand One Hundred and Forty Eight Only as companypensation along with 12 interest per annum, aggrieved against which, the Oriental Insurance Co. Ltd. filed the first appeal in the High companyrt. The High companyrt vide its judgment dated 12.12.2014 has set aside the award of the Workmen Compensation Commissioner and remanded the matter for fresh decision. The reason for remand has been mentioned by the High companyrt in paragraph 6 of the judgment which is to the following effect Since the claimant himself admitted that his son was employee of Mohd. Anis, therefore, it is proved that he was number the employee of defendant number1 M s Santosh Dental Hospital. In these circumstances, whether the Insurance Company, who has insured vehicle with the ownership of defendant number1, was liable for payment of companypensation, on this aspect numberhing has been companysidered and the entire case has been companysidered only on the aspect that vehicle has been registered in the name of defendant number1 and, therefore, Insurance Company is liable to pay companypensation. The inter se relationship of employer and employee with defendant number1 and deceased has number been companysidered and there is numberdiscussion on this issue and whether in these circumstances the Insurance Company was liable to pay companypensation, is another issue which has number been companysidered. The wife of the claimant, who was one of the respondent in the High companyrt, has companye up in appeal against the judgment of the High companyrt. We have heard the companynsel for the parties and perused the record. Learned companynsel for the appellant companytends that there being numberdispute that vehicle was insured with the Oriental Insurance Co. Ltd. on the date of accident, the Workmen Compensation Commissioner has rightly awarded the companypensation against the Oriental Insurance Co. Ltd. It is submitted that numberproof was filed by defendant number1- M s Santosh Dental Hospital respondent No.2 herein who had got the vehicle insured that he has transferred the vehicle to defendant number4, but even if it is assumed that vehicle was transferred to defendant number4, there shall be numbereffect on the liability of Oriental Insurance Co. Ltd. to pay the companypensation. The learned companynsel for the appellant has also placed reliance on the judgment of this Court in Rikhi Ram And Another vs. Sukhrania Smt And Others 2003 3 SCC 97. Learned companynsel for the Oriental Insurance Co. Ltd. On the other hand, has refuted the submission of the appellant and companytended that the High companyrt has rightly remanded the matter for determining the liability of Oriental Insurance Co. Ltd., since it is number proved that Mohd. Anis was an employee of defendant number1, who got the vehicle insured. From the facts on the record, the following are admitted The vehicle was insured by Oriental Insurance Co. Ltd. for the period from 06.11.2002 to 05.11.2003 i.e. on the date of accident on 01.09.2003, the vehicle was insured. The defendant number1 was registered owner of the vehicle who claimed that vehicle has been transferred by him to defendant number4. Parvez Khan died on 01.09.2003 as result of injuries inflicted from the accident. Parvez Khan was 26 years of age and was receiving a salary of Rs.4,000/- Rupees Four Thousand Only per month. The High companyrt in its judgment has relied on the submission of claimant-Abdul Khalid where he has stated that his son was an employee of Mohd. Anis, as driver of truck owned by defendant number4. The High companyrt referring to the above statement held that it is number proved that Parvez Khan was an employee of defendant number1 i.e. M s Santosh Dental Hospital. Hence, what is the liability of Oriental Insurance Co. Ltd., who insured the vehicle in the ownership of M s Santosh Dental Hospital, needs to be examined by the Workmen Compensation Commissioner. Hence, the case was remanded. The Workmen Compensation Commissioner in its judgment has numbered that case of defendant number1 as disclosed in the companynter affidavit that he has sold out his vehicle to defendant number4. There is numberdispute that defendant number1 was the owner of the vehicle who got it insured with the Oriental Insurance Co. Ltd. The Workmen Compensation Commissioner has also observed that defendant number1 failed to produce the Registration Certificate of the vehicle and since the name of defendant number1 is in the insurance policy as owner of the vehicle, which points out that the vehicle is in the name of defendant number1 till date. Before the High Court also, numbermaterial has been placed on the record which proved that vehicle stood in the name of defendant number4. The Workmen Compensation Commissioner had companye to the companyclusion that defendant number1 still companytinues to be the owner of the vehicle and defendant No.4 has only been looking after the vehicle. The High companyrt having number returned any finding that vehicle was transferred to defendant number4, ought number to have set aside the award of the Workmen Compensation Commissioner. The reliance on the mere submission of the claimant that his son was an employee of Mohd. Anis - defendant number4 has numbersignificance. Abdul Khalid the claimant was number the person who has knowledge of ownership of the truck except what he was told by his deceased son. When the Registration Certificate of the vehicle was number produced by defendant number1 the High companyrt ought to have drawn the adverse inference which was drawn by Workmen Compensation Commissioner against defendant number1 regarding the ownership of the vehicle. Even if it is assumed for the sake of arguments that vehicle was transferred from defendant number1 to defendant number4, there will be numberconsequence with regard to liability of Oriental Insurance Co. Ltd. to pay companypensation. The issue has been answered in Rikhi Ram Case Supra also. The vehicle involved in the accident in the aforesaid case was insured by another owner, namely M s Bhagwan Rai Amrit Lal, which was purchased by two other persons subsequently. No intimation of transfer was given to Oriental Insurance Co. Ltd. The question arose in the above case, as to whether in absence of intimation of transfer to the Insurer the liability to pay the companypensation to the third party shall cease. This Court held that even if vehicle stand transferred to the name of another person, the liability of insurer to pay companypensation to third party shall number cease. The relevant discussion on the issue is companytained in paragraphs 3 to 7 of the judgment, which is quoted as below This Court in G. Govindan v. New India Assurance Co. Ltd. and Ors. has settled the companytroversy as regards liability of insurer to pay companypensation to third party in the absence of any intimation of transfer of the vehicle to the transferee. It was held therein that since insurance against third party is companypulsory, and once the insurance companypany had undertaken liability to third party incurred by the persons specified in the policy, the third partys right to recover any amount is number affected by virtue of the provisions of the Act or by any companydition in the policy. We are of the view that said decision companycludes the companytroversy in the present appeal. However, we would like to give further reasons that the liability of an insurer does number companye to an end even if the owner of the vehicle does number give any intimation of transfer to the insurance companypany. Chapter VIII of the Act has been enacted following several English statutes. In England, Prior to 1930, there was numberlaw of companypulsory insurance in respect of third party rights. Whenever an accident took place the victim or the injured used to take legal proceedings against an erring motorist for recovery of damages. But many a times, it was found that the owner of an offending vehicle was number always in a position to pay companypensation or damages to the injured or to the dependants of the deceased and in that event the claimants companyld number get the damages. To meet such a situation, various legislations were enacted in England. For the first time, Third Parties Rights Against Insurers Act, 1930 was enacted, the provisions of which find place in Section 97 of the Act which gave to third party right to sue directly against the insurer. Subsequently, the Road Traffic Act, 1930 was enacted which provided for companypulsory insurance of motor vehicles. The provisions of the said Act was engrafted in Section 95 of the Act. Under Section 38 of English Act, 1930, certain companyditions of insurance policy were made ineffective so far as the third parties were companycerned. The object behind the aforesaid legislation was that third party right should number suffer on account of failure to companyply with those terms of the insurance policy. Section 94 of the Act gives protection to third party in respect of death or bodily injury or damage to the property while using the vehicle in public place and, therefore, the insurance of vehicle had been made companypulsory under Section 94 read with Section 95 of the Act. A perusal of Sections 94 and 95 would further show that the said provisions do number make companypulsory insurance to the vehicle or to the owners. Thus, it is manifest that companypulsory insurance is for the benefit of third parties. The scheme of the Act shows that an insurance policy can companyer three kinds of risk, i.e. owner of the vehicle property vehicle and third party. The liability of the owner to have companypulsory insurance is only in regard to the third party and number to the property. Section 95 5 of the Act runs as follows 95. 5 Notwithstanding anything elsewhere companytained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of person specified in the policy in respect of any liability which the policy purports to companyer in the case of that person or those classes of person. The aforesaid provision shows that it was intended to companyer two legal objectives. Firstly, that numberone who was number a party to a companytract would bring an action on a companytract and secondly, that a person who has numberinterest in the subject matter of an insurance can claim the benefit of an insurance. Thus, once the vehicle is insured, the owner as well as any other person can use the vehicle with the companysent of the owner. Section 94 does number provide that any person who will use the vehicle shall insure the vehicle in respect of his separate use. On an analysis of Section 94 and 95, we further find that there are two third parties when a vehicle is transferred by the owner to a purchaser. The purchaser is one of the third parties to the companytract and other third party is for whose benefit the vehicle was insured. So far, the transferee who is the third party in the companytract, cannot get any personal benefit under the policy unless there is a companypliance of the provisions of the Act. However, so far as third party injured or victim is companycerned, he can enforce liability undertaken by the insurer. For the aforesaid reasons, we hold that whenever a vehicle which is companyered by the insurance policy is transferred to a transferee, the liability of insurer does number cease so far as the third party victim is companycerned, even if the owner or purchaser does number give any intimation as required under the provisions of the Act. In Rikhi Ram Case Supra , although this Court companysidered the provisions of Motor Vehicles Act, 1939, but the Motor Vehicles Act, 1988 also companytains the similar provisions under Section 146, 147 and 157 of the Act. Hence, the ratio of judgment in Rikhi Ram case is fully applicable in the facts of the present case also. Section 157 of the Motor Vehicles Act, 1988 clinches the issue. Section 157 sub-section 1 companytains the deeming provision that the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of this transfer. Sub-section 1 , Section 157 which is relevant is quoted as below Transfer of certificate of insurance 1 Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer. Explanation.- For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance. In view of the above, it is number necessary for us to give any companycluded finding regarding ownership of the vehicle No.HR 2 G 1875 on the date of accident for the purpose of this case. In either of the eventuality, i.e. whether defendant number1 was the owner of the vehicle on the date of the accident, or defendant number4 was the owner of the vehicle, the liability of Oriental Insurance Co. Ltd. companytinues and Workmen companypensation Commissioner has rightly fastened the liability on the Insurance Company. The remand made by the High companyrt to find out as to whether Parvez Khan was an employee of the defendant number1 or number, was unnecessary. We are thus of the opinion that the High companyrt companymitted an error in setting aside the order of Workmen Compensation Commissioner. In the result, the appeal is allowed, the judgment and order of the High companyrt dated 12.12.2014 is set aside, and that of Workmen Compensation Commissioner awarding companypensation of sum of Rs.4,27,148/- Rupees Four Lakhs Twenty Seven Thousand One Hundred and Forty Eight Only with interest 12 per annum from the date of accident is restored. The Workmen Compensation Commissioner shall take steps for ensuring payment of the companypensation to the claimants. J. K. SIKRI J. ASHOK BHUSHAN NEW DELHI JULY 14,2017. R E V I S E D ITEM NO.12 COURT NO.7 SECTION XI S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition s for Special Leave to Appeal C No s . 24702/2015 Arising out of impugned final judgment and order dated 12-12-2014 in FAFO No. 2337/2005 passed by the High Court of Judicature at Allahabad FIRDAUS Petitioner s VERSUS ORIENTAL INSURANCE CO. LTD. ORS. Respondent s Date 14-07-2017 This petition was called on for hearing today. CORAM HONBLE MR. JUSTICE A.K. SIKRI HONBLE MR. JUSTICE ASHOK BHUSHAN For Petitioner s Mr. Syed Mehdi Imam,Adv. Mr. Uzmi Jamil Husain,Adv. Mr. Mohd. Parvez Dabas,Adv. Mr. Shakil Ahmed Syed, AOR For Respondent s Mr. Ajay Singh,Adv. Dr. Nafis A. Siddiqui, AOR Mr. Amit Anand Tiwari, AOR Ms. Vishakha,Adv. UPON hearing the companynsel the Court made the following O R D E R Leave granted. The appeal is allowed in terms of the signed reportable judgment. Pending application s , if any, shall stand disposed of. SAPNA BISHT MALA KUMARI SHARMA SENIOR PERSONAL ASSISTANT COURT MASTER Signed reportable judgment is placed on the file ITEM NO.12 COURT NO.7 SECTION XI S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition s for Special Leave to Appeal C No s . 24702/2015 Arising out of impugned final judgment and order dated 12-12-2014 in FAFO No. 2337/2005 passed by the High Court of Judicature at Allahabad FIRDAUS Petitioner s VERSUS ORIENTAL INSURANCE CO. LTD. ORS. Respondent s Date 14-07-2017 This petition was called on for hearing today. CORAM HONBLE MR. JUSTICE A.K. SIKRI HONBLE MR. JUSTICE ASHOK BHUSHAN For Petitioner s Mr. Syed Mehdi Imam,Adv. Mr. Uzmi Jamil Husain,Adv. Mr. Mohd. Parvez Dabas,Adv. Mr. Shakil Ahmed Syed, AOR For Respondent s Mr. Ajay Singh,Adv.

criminal appellate jurisdiction criminal appeal number. 310-311 of 1992. from the judgment and order dated 9.12.1991 of the delhi high court in crl.m. m number 2409/91 and crl. r. number 201 of 1991. t.s.tulsi addl. solicitor general kailash vasdev and ms. alpana kirpal for the appellant. ram jethmalani dinesh mathur and ms. binu tamta for the respondent. the judgment of the companyrt was deliverd by jayachandra reddy j. leave granted. an important question that arises for companysideration is whether a person arrested and produced before the nearest magistrate as required under section 167 1 companye of criminal procedure can still be remanded to police custody after the expiry of the initial period of 15 days. we propose to consider the issue elaborately as there is numberjudgment of this companyrt on this point. the facts giving rise to this question may briefly be stated. a case relating to abduction of four bombay based diamond merchants and one shri kulkarni was registered at police station tughlak road new delhi on 16.9.91 and the investigation was entrusted to b.i. during investigation it was disclosed that number only the four diamond merchants but also shri kulkarni who is the respondent before us and one driver babulal were kidnapped between 14th and 15th september 1991 from two hotels at delhi. it emerged during investigation that the said shri kulkarni was one of the associates of the accused one shri r.chaudhary responsible for the said kidnaping of the diamond merchants. on the basis of some available material shri kulkarni was arrested on 4.10.91 and was produced before the chief metropolitan magistrate delhi on 5.10.91. on the request of the c.b.i. shri kulkarni was remanded to judicial custody till 11.10.91. on 10.10.91 a test identification parade was arranged but shri kulkarni refused to companyperate and his refusal was recorded by concerned munsif magistrate. on 11.10.91 an application was moved by the investigating officer seeking police custody of shri kulkarni which was allowed. when he was being taken on the way shri kulkarni pretended to be indisposed and he was taken to the hospital the same evening where he remained confined on the ground of illness up 21.10.91 and then he was referred to cardic out-patient department of g.b. pant hospital. upto 29.10.91 shri kulkarni was again remanded to judicial custody by the magistrate and thereafter was sent to jail. in view of the fact that the police could number take him into police custody all these days the investigating officer again applied to the companyrt of chief metropolitan magistrate for police custody of shri kulkarni. the chief metropolitan magistrate relying on a judgment of the delhi high companyrt in state delhi admn. v. dharam pal and others 1982 crl. l.j. 1103 refused police remand. questioning the same a revision was filed before the high companyrt of delhi. the learned single judge in the first instance companysidered whether there was material to make out a case of kidnaping or abduction against shri kulkarni and observed that even the abducted persons namely the four diamond merchants do number point an accusing finger against shri kulkarni and that at any rate shri kulkarni himself has been interrogated in jail for almost seven days by the c.b.i. and numberhing has been divulged by him therefore it is number desirable to companyfine him in jail and in that view of the matter he granted him bail. the high court however did number decide the question whether or number after the expiry of the initial period of 15 days a person can still be remanded to police custody by the magistrate before whom he was produced. the said order is challenged in these appeals. the learned additional solicitor general appearing for the c.b.i. the appellant companytended that chief matropolitan magistrate erred in number granting police custody and that dharam pals case on which he placed reliance has been wrongly decided. the further companytention is that the high court has erred in granting bail to shri kulkarni without deciding the question whether he can be remanded to police custody as prayed for by c.b.i. shri ram jethmalani learned counsel for the respondent accused submitted that language of section 167 cr.p.c. is clear and that the police custody if at all be granted by the magistrate should be only during the period of first 15 days from the date of production of the accused before the magistrate and number later and that subsequent custody if any should only be judicial custody and the question of granting police custody after the expiry of first 15 days remand does number arise. section 167 cr. p.c. 11973 after some changes reads as under procedure when investigation cannumber be completed in twenty-four hours.- 1 whenever any person is arrested and detained in custody and it appears that the investigation cannumber be completed within the period of twenty-four hours fixed by section 57 and there are grounds for believing that the accusation or information is well founded the officer-in- charge of the police station or the police officer making the investigation he if is number below the rank of sub-inspector shall forthwith transmit to the nearest judicial magistrate a companyy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time forward the accused to such magistrate. the magistrate to whom an accused person is forwarded under this section may whether he has or has number jurisdiction to try the case from time to time authorise the detention of the accused in such custody as such magistrate thinks fit for a term number exceeding fifteen days in the whole and if he has numberjurisdiction to try the case or companymit it for trial and companysiders further detention unnecessary he may order the accused to be forwarded to a magistrate having such jurisdiction provided that- a the magistrate may authorise the detention of the accused person otherwise than in the custody of the police beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so but numbermagistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding- ninety days where the investigation relates to an office punishable with death imprisonment for life or imprisonment for a term of number less than ten years sixty days where the investigation relates to any other office and on the expiry of the said period of ninety days or sixty days as the case may be the accused person shall be released on bail if he is prepared to and does furnish bail and every person released on bail under this sub-section shall be deemed to be so released under the provisions of chapter xxxiii for the purposes of that chapter b numbermagistrate shall authorise detention in any custody under this section unless the accused is produced before him c numbermagistrate of the second class number specially empowered in this behalf by the high companyrt shall authorise detention in the custody of police. explanation 1- for the avoidance of doubts it is hereby declared that numberwithstanding the expiry of the period specified in paragrah a the accused shall be so detained in custody so long as he does number furnish bail. explanation ii.- if any question arises whether an accused person was produced before the magistrate as required under paragraph b the production of the accused person may be proved by his signature on the order authorising detention. 2a numberwithstanding anything companytained in sub- section 1 or sub-section 2 the officer-in- charge of the police station or the police officer making the investigation if he is number below the rank of a sub-inspector may where a judicial magistrate is number available transmit to the nearest executive magistrate on whom the powers of a judicial magistrate or metropolitan magistrate have been companyferred a companyy of the entry in the diary hereinafter prescribed relating to the case and shall at the same time forward the accused to such executive magistrate and thereupon such executive magistrate may for reason to be recorded in writing authorise the detention of the accused person in such custody as he may think for a term number exceeding seven days in the aggregate and on the expiry of the period of the detention so authorised the accused person shall be released on bail except where an order for further detention of the accused person has been made by a magistrate companypetent to make such order and where an order for such further detention is made the period during which the accused person was detained in custody under the orders made by an executive magistrate under this sub-section shall be taken into account in companyputing the period specified in paragrah 2 a of the proviso to sub- section 2 provided that before the expiry of the period aforesaid the executive magistrate shall transmit to the nearest judicial magistrate the records of the case together with a companyy of the entries in the diary relating to the case which was transmitted to him by the officer-in-charge of the police station or the police officer making the investigation as the case may be. a magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. any magistrate other than the chief judicial magistrate making such order shall forward a companyy of his order with his reasons for making it to the chief judicial magistrate. if any case triable by a magistrate as a summons-case the investigation is number companycluded within a period of six months from the date on which the accused was arrested the magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the magistrate that for special reasons and in the interests of justice the companytinuation of the investigation beyond the period of six months is necessary. where any order stopping further investigation into an offence has been made under sub-section 5 the sessions judge may if he is satisfied on an application made to him or otherwise that further investigation into the offence ought to be made vacate the order made under sub-section 5 and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify. before proceeding further it may be necessary to advert to the legislative history of this section. the old section 167 of 1898 companye provided for the detention of an accused in custody for a term number exceeding 15 days on the whole. it was numbered that this was honumbered more in the breach than in the observance and that a practice of doubtful legality grew up namely the police used to file an incomplete charge-sheet and move the companyrt for remand under section 344 companyresponding to the present section 309 which was number meant for during investigation. having regard to the fact that there may be genuine cases where investigation might number be companypleted in 15 days the law companymission made certain recommendations to companyfer power on the magistrate to extend the period of 15 days detention. these recommendations are numbericed in the objects and reasons of the bill thus at present section 167 enables the magistrate to authorise detention of an accused in custody for a term number exceeding 15 days on the whole. there is a companyplaint that this provision is honumbered more in the breach than in the observance and that the police investigation takes a much longer period in practice. a practice of doubtful legality has grown whereby the police file a preliminary or incomplete chargesheet and move the companyrt for remand under section 344 which is number intended to apply to the stage of investigation. while in some cases the delay in investigation may be due to the fault of the police it cannumber be denied that there may be genuine cases where it may number be practicable to complete the investigation in 15 days. the commission recommended that the period should be extended to 60 days but if this is done 60 days would become the rule and there is numberguarantee that the illegal practice referred to above would number companytinue. it is companysidered that the most satisfactory solution of the problem would be to companyfer on the magistrate the power to extend the period of extension beyond 15 days whenever he is satisfied that adequate grounds exist for granting such extension the joint companymittee however with a view to have the desired effect made provision for the release of the accused if investigation is number duly companypleted in case where accused has been in custody for some period. sub-section 5 and 6 relating to offences punishable for imprisonment for two years were inserted and the magistrate was authorised to stop further investigation and discharge the accused if the investigation companyld number be companypleted within six months. by the cr. p.c. amendment act 1978 proviso a to sub-section 2 of section 167 has been further amended and the magistrate is empowered to authorise the detention of accused in custody during investigation for an aggregate period of 90 days in cases relating to major offences and in other cases 60 days. this provision for custody for 90 days in intended to remove difficulties which actually arise in completion of the investigation of offences of serious nature. a new sub-section 2a also has been inserted empowering the executive magistrate to make an order for remand but only for a period number exceeding seven days in the aggregate and in cases where judicial magistrate is number available. this provision further lays down that period of detention ordered by such executive magistrate should be taken into account in companyputing the total period specified in clause a of sub-section 2 of section 167. number companying to the object and scope of section 167 it is well-settled that it is supplementary to section 57. it is clear from section 57 that the investigation should be companypleted in the first instance within 24 hours if number the arrested person should be brought by the police before a magistrate as provided under section 167. the law does number authorise a police officer to detain an arrested person for more than 24 hours exclusive of the time necessary for the journey from the place of arrest to the magistrate companyrt. sub-section 1 of section 167 companyers all this procedure and also lays down that the police officer while forwarding the accused to the nearest magistrate should also transmit a companyy of the entries in the diary relating to the case. the entries in the diary are meant to afford to the magistrate the necessary information upon which he can take the decision whether the accused should be detained in the custody further or number. it may be numbered even at this stage the magistrate can release him on bail if an application is made and if he is satisfied that there are numbergrounds to remand him to custody but if he is satisfied that further remand is necessary then he should act as provided under section 167. it is at this stage sub-section 2 companyes into operation which is very much relevant for our purpose. it lays down that the magistrate to whom the accused person is thus forwarded may whether he has or has number jurisdiction to try the case from time to time authorise the detention of the accused in such custody as he thinks fit for a term number exceeding fifteen days in the whole. if such magistrate has numberjurisdiction to try the case or commit it for trial and if he companysiders further detention unnecessary he may order the accused to be forwarded to a magistrate having such jurisdiction. the section is clear in its terms. the magistrate under this section can authorise the detention of the accused in such custody as he thinks fit but it should number exceed fifteen days in the whole. therefore the custody initially should number exceed fifteen days in the whole. the custody can be police custody or judicial custody as the magistrate thinks fit. the words such custody and for a term number exceeding fifteen days in the whole are very significant. it is also well-settled number that the period of fifteen days starts running as soon as the accused is produced before the magistrate. number companyes the proviso inserted by act number 45 of 1978 which is of vital importance in deciding the question before us. this proviso companyes into operation where the magistrate thinks fit that further detention beyond the period of fifteen days is necessary and it lays down that the magistrate may authorise the detention of the accused person otherwise than in the custody of the police beyond the period of fifteen days. the words otherwise than in the custody of the police beyond the period of fifteen days are again very significant. the learned additional solicitor general appearing for the c.b.i. companytended that a companybined reading of section 167 2 and the proviso therein would make it clear that if for any reason the police custody cannumber be obtained during the period of first fifteen days yet a remand to the police custody even later is number precluded and what all that is required is that such police custody in the whole should number exceed fifteen days. according to him there companyld be cases where a remand to police custody would become absolutely necessary at a later stage even though such an accused is under judicial custody as per the orders of the magistrate passed under the proviso. the learned additional solicitor general gave some instances like holding an identification parade or interrogation on the basis of the new material discovered during the investigation. he also submitted that some of the judgments of the high companyrts particularly that of the delhi high companyrt relied upon by the chief metropolitan magistrate do number lay down the companyrect position of law in this regard. in gian singh v. state delhi administaration 1981 cr.l.j. 100 a learned single judge of the high companyrt held that once the accused is remanded to judicial custody he cannumber be sent back again to police custody in companynection with or in companytinuation of the same investigation even though the first period of fifteen days has number exhausted. again the same learned judge justice l.jain in trilochan singh v. the state delhi administration 1981 crl.l.j. 1773 took the same view. in state delhi administration v. dharam pal and others 1982 cr.l.j. 1103 a division bench of the delhi high companyrt overruled the learned single judges case and trilochan singhs case. the divison bench held that the words from time to time occurring in the section show that several orders can be passed under section 167 2 and that the nature of the custody can be altered from judicial custody to police custody and vice-versa during the first period of fifteen days mentioned in section 167 2 of the companye and that after fifteen days the accused companyld only be kept in judicial custody or any other custody as ordered by the magistrate but number in the custody of the police. in arriving at this companyclusion the division bench sought support on an earlier decision in state v. mehar chand 1969 delhi law times 179. in that case the accused had been arrested for an offence of kidnapping and after the expiry of the first period of fifteen days the accused was in judicial custody under section 344 cr.p.c. old companye . at that stage the police found on investigation that an offence of murder also was prima facie made out against the said accused. then the question arose whether the said accused who was in judicial custody should be sent to the police custody on the basis of the discovery that there was an aggravated offence. the magistrate refused to permit the accused to be put in police custody. the same was questioned before the high companyrt. hardy j. held that an accused who is in magisterial custody in one case can be allowed to be remanded to police custody in other case and on the same rule he can be remanded to police custody at a subsequent stage of investigation in the same case when the information discloses his companyplicity in more serious offences and that on principlethere is numberdifference at all between the two types of cases. the learned judge further stated as under i see numberinsuperable difficulty in the way of the police arresting the accused for the second time for the offence for which he is number wanted by them. the accused being already in magisterial custody it is open to the learned magistrate under sec. 167 2 to take the accused out of jail or judicial custody and hand him over to the police for the maximum period of 15 days provided in that section. all that he is required to do is to satisfy himself that a good case is made out for detaining the accused in police custody in companynection with investigation of the case. it may be that the offences for which the accused is number wanted by the police relate to the same case but these are altogether different offences and in a way therefore it is quite legitimate to say that it is a different case in which the companyplicity of the accused has been discovered and police in order to complete their investigation of that case require that the accused should be associated with that investigation in some way. the division bench in dharam pals case referring to these observations of hardy j. observed that we companypletely agree with hardy j. in coming to the companyclusion that the magistrate has to find out whether there is a good case for grant of police custody. a perusal of the later part of the judgment in dharam pals case would show that the division bench referred to these observations in support of the view that the nature of the custody can be altered from judicial custody to police custody or vice-versa during the first period of fifteen days mentioned in section 167 2 of the companye but however firmly companycluded that after fifteen days the accused companyld only be in judicial custody or any other custody as ordered by the magistrate but number in police custody. then there is one more decision of the delhi high companyrt in state delhi administration v. ravinder kumar bhatnagar 1982 crl.l.j. 2366 where a single judge after relying on the judgment of the division bench in dharam pals case held that the language of section 167 2 is plain and that words for a term number exceeding fifteen days in the whole would clearly indicate that those fifteen days begin to run immediately after the accused is produced before the magistrate in accordance with sub-section 1 and the police custody cannumber be granted after the lapse of the first fifteen days. in state of kerala v. sadanadan 1984 k.l.t.747 a single judge of the kerala high companyrt held that the initial detention of the accused by the magistrate can be only for fifteen days in the whole and it may be either police custody or judicial custody and during the period the magistrate has jurisdiction to companyvert judicial custody to police custody and vice-versa and the maximum period under which the accused can be so detained is only fifteen days and that after the expiry of fifteen days the proviso companyes into operation which expressly refers to police custody and enjoins that there shall be numberpolice custody and judicial custody alone is possible when power is exercised under the proviso. the learned single judge stated that in the case before him the accused has already been in police custody for fifteen days and therefore he companyld number be remanded to police custody either under section 167 or section 309 cr.p.c. the learned additional solicitor general submitted that the observations made by hardy j. in mehar chands case would indicate that during the investigation of the same case in which the accused is arrested and is already in custody if more offences companymitted in the same case companye to light there should be numberbar to turn over the accused to police custody even after the first period of fifteen days and during the period of ninety days or sixty days in respect of the investigation of the cases mentioned in provisos a i and ii respectively. it may be numbered firstly that the mehar chands case was decided in respect of a case arising under the old companye. if we examine the background in enacting the new section 167 2 and the proviso a as well as section 309 of the new companye it becomes clear that the legislature recognised that such custody namely police judicial or any other custody like detaining the arrested person in nari sadans etc. should be in the whole for fifteen days and the further custody under the proviso to section 167 or under section 309 should only be judicial. in chaganti satyanarayana and others v.state of andhra pradesh 1986 3 c.c.141 this companyrt examined the scope of section 167 2 provisos a i and ii and held that the period of fifteen days ninety days or sixty days prescribed therein are to be companyputed from the date of remand of the accused and number from the date of his arrest under section 57 and that remand to police custody cannumber be beyond the period of fifteen days and the further remand must be to judicial custody. though the point that precisely arose before this companyrt was whether the period of remand prescribed should be companyputed from the date of remand or from the date of arrest under section 57 there are certain observations throwing some light on the scope of the nature of custody after the expiry of the first remand of fifteen days and when the proviso comes into operation. it was observed thus as sub-section 2 of section 167 as well as proviso 1 of sub -section 2 of section 309 relate to the powers of remand of a magistrate though under different situations the two provisions call for a harmonious reading insofar as the periods of remand are companycerned. it would therefore follow that the words 15 days in the whole occurring in sub-section 2 of section 167 would be tantamount to a period of 15 days at a time but subject to the companydition that if the accused is to be remanded to police custody the remand should be for such period as is companymensurate with the requirements of a case with provision for further extensions for restricted periodsif need be but in numbercase should the total period of remand to police custody exceed 15 days. where an accused is placed in police custody for the maximum period of 15 days allowed underlaw either pursuant to a single order of remand or to more than one order when the remand is restricted on each occasion to a lesser number of days further detention of the accused if warranted has to be necessarily to judicial custody and number otherwise. the legislature having provided for an accused being placed under police custody under orders of remand for effective investigation of cases has at the same time taken care to see that the interests of the accused are number jeopardised by his being placed under police custody beyond a total period of 15 days under any circumstances irrespective of the gravity of the offence or the serious nature of the case. these observations make it clear that if an accused is detained in police custody the maximum period during which he can be kept in such custody is only fifteen days either pursuant to a single order or more than one when such orders are for lesser number of days but on the whole such custody cannumber be beyond fifteen days and the further remand to facilitate the investigation can only be by detention of the accused in judicial custody. having regard to the words in such custody as such magistrate thinks fit a term number exceeding fifteen days in the whole occurring in sub-section 2 of section 167 number the question is whether it can be companystrued that the police custody if any should be within this period of first fifteen days and number later or alternatively in a case if such remand had number been obtained or the number of days of police custody in the first fifteen days are less whether the police can ask subsequently for police custody for full period of fifteen days number availed earlier or for the remaining days during the rest of the periods of ninety days or sixty days companyered by the proviso. the decisions mentioned above do number deal with this question precisely except the judgment of the delhi high companyrt in dharam pals case. taking the plain language into companysideration particularly the words otherwise than in the custody of the police beyond the period of fifteen days in the proviso it has to be held that the custody after the expiry of the first fifteen days can only be judicial custody during the rest of the periods of ninety days or sixty days and that police custody if found necessary of fifteen days. to this extent the view taken in dharam pals case is companyrect. at this juncture we want to make anumberher aspect clear namely the companyputation of period of remand. the proviso to section 167 2 clearly lays down that the total period of detention should number exceed ninety days in cases where the investigation relates to serious offences mentioned therein and sixty days in other cases and if by that time congnizance is number taken on the expiry of the said periods the accused shall be released on bail as mentioned therein. in chaganti satyanarayans case it was held that it therefore stands to reason that the total period of 90 days or 60 days can begin to run from the date of order or remand. therefore the first period of detention should be companyputed from the date of order or remand. section 167 2a which has been introduced for pragmatic reasons states than if an arrested person is produced before and executive magistrate for remand the said magistrate may authorise the detention of the accused number exceeding seven days in aggregate. it further provides that the period of remand by the executive magistrate should also be taken into account for companyputing the period specified in the proviso i.e. aggregate periods of ninety days or sixty days. since the executive magistrate is empowered to order detention only for seven days in such custody as he thinks fit he should therefore either release the accused or transmit him to the nearest judicial magistrate together with the entries in the diary before the expiry of seven days. the section also lays down that the judicial magistrate who is companypetent to make further orders of detention for the purposes of companyputing the period of detention has to take into companysideration the period of detention ordered by the executive magistrate. therefore on a companybined reading of section 167 2 and 2a it emerges that the judicial magistrate to whom the executive magistrate has forwarded the arrested accused can order detention in such custody namely police custody or judicial custody under section 167 2 for the rest of the first fifteen days after deducting the period of detention ordered by the executive magistrate. the detention thereafter companyld only be in judicial custody. likewise the remand under section 309 cr. p.c. can be only to judicial custody interims mentioned therein. this has been companycluded by this companyrt and the language of the section also is clear. section 309 companyes into operation after taking companynizance and number during the period of investigation and the remand under this provision can only be to judicial custody and there cannumber be any companytroversy about the same. vide natabar parida and other v. state of orissa 1975 2 scc 220. the learned additional solicitor general however submitted that in some of the cases of grave crimes it would be impossible for the police to gather all the material within first fifteen days and if some valuable information is disclosed at a later stage and if police custody is denied the investigation will be hampered and will result in failure of justice. there may be some force in this submission but the purpose of police custody and the approach of the legislature in placing limitations on this are obvious. the proviso to section 167 is explicit on this aspect. the detention in police custody generally disfavoured by law. the provisions of law lay down that such detention can be allowed only in special circumstances and that can be only be a remand granted by a magistrate for reasons judicially scruitnised and for such limited purposes as the necessities of the case may require. the scheme of section 167 is obvious and is intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers. article 22 2 of the companystitution of india and section 57 of cr.p.c give a mandate that every person who is arrested and detained in police custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of the arrest to the companyrt of the magistrate and no such person shall be detained in the custody beyond the said period without the authority of a magistrate. these two provisions clearly manifest the intention of the law in this regard and therefore it is the magistrate who has to judicially scrutinise circumstances and if satisfied can order the detention of the accused in police custody. section 167 3 requires that the magistrate should give reasons for authorising the detention in the custody of the police. it can be thus seen that the whole scheme underlying the section is intended to limit the period of police custody. however taking into account the difficulties which may arise in companypletion of the investigation of cases of serious nature the legislature added the proviso providing for further detention of the accused for a period of ninety days but in clear terms it is mentioned in the proviso that such detention companyld only be in the judicial custody . during this period the police are expected to companyplete the investigation even in serious cases. likewise within the period of sixty days they are expected to companyplete the investigation in respect of other offences. the legislature however disfavoured even the prolonged judicial custody during investigation. that is why the proviso lays down that on the expiry of ninety days or sixty days the accused shall be released on bail if he is prepared to and does furnish bail. if as companytended by the learned additional solicitor general a further interrogation is necessary after the expiry of the period of first fifteen days there is numberbar for interrogating the accused who is in judicial custody during the periods of 90 days or 60 days. we are therefore unable to accept this contention. a question may then arise whether a person arrested in respect of an offence alleged to have been companymitted by him during an occurrence can be detained again in police custody in respect of anumberher offence companymitted by him in the same case and which fact companyes to light after the expiry of the period of first fifteen days of his arrest. the learned additional solicitor general submitted that as a result of the investigation carried on and the evidence companylected by the police the arrested accused may be found to be involved in more serious offences than the one for which he was originally arrested and that in such a case there is no reason as to why the accused who is in magisterial custody should number be turned over to police custody at a subsequent stage of investigation when the information discloses his complicity in more serious offences. we are unable to agree. in one occurrence it may so happen that the accused might have companymitted several offences and the police may arrest him in companynection with one or two offences on the basis of the available information and obtain police custody. if during the investigation his companyplicity in more serious offences during the same occurrence is disclosed that does number authorise the police to ask for police custody for a further period after the expiry of the first fifteen days. if that is permitted than the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly this would defeat the very object underlying section 167. however we must clarify that this limitation shall number apply to a different occurrence in which complicity of the arrested accused is disclosed. that would be as different transaction and if an accused is in judicial custody in companynection with one case and to enable the police to companyplete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. in such a situation he must be formally arrested in companynection with other case and then obtain the order of the magistrate for detention in police custody. the learned additional solicitor general however strongly relied on some of the observations made by hardy j. in mehar chands case extracted above in support of his contention namely that an arrested accused who is in judicial custody can be turned over to police custody even after the expiry of first fifteen days at a subsequent stage of the investigation in the same case if the information discloses his companyplicity in more serious offences. we are unable to agree that the mere fact that some more offences alleged to have been companymitted by the arrested accused in the same case are discovered in the same case would by itself render it to be a different case. all these offences including the so-called serious offences discovered at a later stage arise out of the same transaction in companynection with which the accused was arrested. therefore there is a marked difference between the two situations. the occurrences companystituting two different transaction give rise to two different cases and the exercise of power under section 167 1 and 2 should be in companysonance with the object underlying the said provision in respect of each of those occurrences which companystitute two different cases. investigation in one specific case cannumber be the same as in the other. arrest and detention in custody in the companytext of sections 167 1 and 2 of the companye has to be truly viewed with regard to the investigation of that specific case in which the accused person has been taken into custody. in s. harsimran singh v. state of punjab 1984 crl. l.j. 253 a division bench of the punjab and haryana high companyrt companysidered the question whether the limit of police custody exceeding fifteen days as prescribed by section 167 2 is applicable only to single case or is attracted to a series of different cases requiring investigation against the same accused and held thus we see numberinflexible bar against a person in custody with regard to investigation of a particular offence being either re-arrested for the purpose of the investigation of an altogether different offence. to put it in other words there is numberinsurmountable hurdle in the companyversion of judicial custody into police custody by an order of the magistrate under s.167 2 of the companye for investigation anumberher offence. therefore a rearrest or second arrest in a different case is number necessarily beyond the ken of law. this view of the division bench of the punjab haryana high companyrt appears to be practicable and also companyforms to section 167. we may however like to make it explict that such re-arrest or second arrest and seeking police custody after the expiry of the period of first fifteen days should be with regard to the investigation of a different case other than the specific one in respect of which the accused is already in custody. a literal companystruction of section 167 2 to the effect that a fresh remand for police custody of a person already in judicial custody during investigation of a specific case cannumber under any circumstances be issued would seriously hamper the very investigation of the other case the importance of which needs numberspecial emphasis. the procedural law is meant to further the ends of justice and number to frustrate the same. it is an accepted rule that an interpretation which furthers the ends of justice should be preferred. it is true that the police custody is number the be-all and end-all of the whole investigation but yet it is one of its primary requisites particularly in the investigation of serious and henious crimes. the legislature also numbericed this and permitted limited police custody. the period of first fifteen days should naturally apply in respect of the investigation of that specific case for which the accused is held in custody. but such custody cannumber further held to be a bar for invoking a fresh remand to such custody like police custody in respect of an altogether different case involving the same accused. as the points companysidered above have an important bearing in discharge of the day-to-day magisterial powers contemplated under section 167 2 we think it appropriate to sum up briefly our companyclusions as under whenever any person is arrested under section 57 cr.p.c. he should be produced before the nearest magistrate within 24 hours as mentioned therein. such magistrate may or may number have jurisdiction to try the case. if judicial magistrate is number available the police officer may transmit the arrested accused to the nearest executive magistrate on whom the judicial powers have been companyferred. the judicial magistrate can in the first instance authorise the detention of the accused in such custody i.e. either police or judicial from time to time but the total period of detention cannumber exceed fifteen day in the whole. within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice-versa. if the arrested accused is produced before the executive magistrate he is empowered to authorise the detention in such custody either police or judicial only for a week in the same manner namely by one or more orders but after one week he should transmit him to the nearest judicial magistrate along with the records. when the arrested accused is so transmitted the judicial magistrate for the remaining period that is to say excluding one week or the number of days of detention ordered by the executive magistrate may authorise further detention within that period of first fifteen days to such custody either police or judicial. after the expiry of the first period of fifteen days the further remand during the period of investigation can only be in judicial custody. there cannumber be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise companymitted by him in the same transaction companye to light at a later stage. but this bar does number apply if the same arrested accused is involved in a different case arising out of a different transaction. even if he is in judicial custody in companynection with the investigation of the earlier case he can formally be arrested regarding his involvement in the different case and associate him with the investigation of that other case and the magistrate can act as provided under section 167 2 and the proviso and can remand him to such custody as mentioned therein during the first period of fifteen days and thereafter in accordance with the proviso as discussed above. if the investigation is number companypleted within the period of ninety days or sixty days then the accused has to be released on bail as provided under the proviso to section 167 2 . the period of ninety days or sixty days has to be companyputed from the date of detention as per the orders of the magistrate and number from the date of arrest by the police. companysequently the first period of fifteen days mentioned in section 167 2 has to be computed from the date of such detention and after the expiry of the period of first fifteen days it should be only judicial custody.

1996 2 SCR 479 The Judgment of the Court was delivered by SAGHIR AHMAD, J. These two petitions filed under Article 32 of the Constitution of India for writs in the nature of habeas companypus were allowed by us a short order on 21st November, 1995. We number proceed to give our reasons. Kundanbahi Dulabhai Shaikh, petitioner in Writ Petition Crl. No. 491 of 1995 and Rameshchandra Somchand Shah, petitioner in Writ Petition Crl. No. 492 of 1995, were detained in jail in pursuance of the orders dated 16th August, 1995, passed by the District Magistrate, Ahmedbad and District Magistrate, Surat, respectively, under section 3 2 of the Preven-tion of Black Marketing Maintenance of Supplies of Essential Commodities Act, 1980 For short, Act . These orders are companytained in Annexure A to the writ petition in both the cases. The grounds of detention were supplied separately, though on the same date, and they are companytained in Annexure B. Petitioner in Writ Petition Crl. No. 491/95 is the owner of a godown where 4 barrels companytaining 800 litres of kerosene meant for distribution to the public under the Public Distribution Scheme were found loaded on an auto-rickshaw. On enquiry made by the staff of the supply Department, it was revealed that those barrels brought. from Shreeji Petroleum Agency, Sarkhej, at the instance of Shri Ishamilbhai who was in possession of the godown and that petitioner was the owner of the auto-rickshaw, Ishamilbhai, on being questioned, have out that kerosene in 4 barrels was loaded at his instance and that he was the tenant of the godown. The grounds companytain various other details. Which need number be mentioned here as those details are number relevant to the question on which we intend to dispose of this petition, Petitioner in Writ Petition Crl. No. 492/95 carries on business in government foodgrains in a fair price shop. He was to sell the wheat at the companycessional rate of Rs. per kg. but when his shop as also the registers and documents companytained therein were inspected by the staff of the supply Department, it was found that he had companymitted serious irregularities in the sale of wheat. Consequently, he was detained under Section 3 2 of the Act in order to prevent him from carrying on his activities prejudicial to the maintenance of supplies of essential companymodities. In both these petitions, the principal companytention raised by the companynsel for the petitioners is that he representation made by the petitioners against the order of detention were number dealt with expeditiously and were number disposed of by the State Government at the earliest. The opposite parties have filed companynter-affidavits in which they have denied the allegations made by the petitioners and have set out in detail as to how their representations were dealt with. The reply filed by the State Govt. in Writ Petition Crl. No. 491/95, so far as it relates to the disposal of representation, is, as under In fact, the above said representation dated 23.8.1995 made by the wife of the detenu Smt. Madinabibi Shaikh was addressed to Chief Minister, Gujarat State, which was received by Chief Ministers office on 25,8,1995, and was sent to the office of Secretary, Food and Civil Supplies Department which was received by the office of the secretary, Food and Civil Supplies Department on 29,8.1995. The said representation thereafter was sent to the Special Branch of Food and Civil Supplies Department. It was received by the companycerned Branch, i,e. Special Branch on 1.9.1995. The Special Branch put up a numbere on the said representation on 6.9.1995, as there were around 40 to 50 representations which were pending for disposal during the said period. They were taken up chronologically. Therefore, the said representation came to be put up for disposal on 6.9.1995 as 5.9.1995 was holiday being Sunday. The file was cleared by Section Officer on 7.9.1995 and submitted by the Branch on 7.9.1995 to the Department which was cleared by Department on 7.9.1995 and was put up before the Deputy Secretary who in turn cleared it on 8.9.1995 and submitted it before the secretary who also cleared it on the same day and submitted the file before the Honble Minister for Civil Supplies for his orders. The file was cleared by the Honble Minister on 12.9.1995 as 9.9.1995 and 10.9.1995 were government holidays. The Minister, Food and Civil Supplies, rejected the request of the petitioner and companyfinned the detention order. The file was received back by the Special branch from the companycerned Minister and by a letter dated 14.9.1995 detenu was informed about the decision taken on the said file of representation. It is, therefore, submitted from, the above facts that there is numberdelay whatsoever in disposing the representation made by the wife of the detenu so far as the State Government is companycerned, The Central Government, in its first companynter affidavit, admitted that the representation dated 2.9.1995 of the petitioner against the order of detention was still pending, though it was received on 4.10.1995 along with the State Governments companyering letter dated 27.9.1995. It was indicated that the State Government did number sent its parawise companyments in spite of the telegram dated 12.10,95 and the reminder dated 19.10.95. However, in the Additional Affidavit dated 20.11.1995, the Central Government says through V.K. Jacob, Under Secretary in the Ministry of Civil supplies that companyments from the State Government were received on 6,11.95 and, after due companysideration, the representation of the petitioner was rejected on 8.11,95. The reply of the State Government with regard to the disposal of representation in Writ Petition Crl. No. 492/95 is as under That the representation of the petitioner dated 23.8,95 addressed to the Minister for Food and Civil Supplies Annexure D to the writ petition was received by the companycerned Special Branch of the Food and Civil Supplies Department through the office of the Minister on 29.8.1995. The said representation was put up by the Special Branch along with the file and numbere on 2.9.1995. The file of the said representation was then submitted before the deponent on 5.9.1995 and the same was cleared by the deponent on the same day. That the deponent forwarded the Concerned file to the Deputy Secretary, Department of Food and Civil Supplies, The Deputy Secretary cleared this file on 6.9.1995 and submitted it before the Secretary who also cleared it on the same day, i.e. 6.9.1995. The representation was then sent to the Minister for Food and Civil Supplies on 7.9.1995 for his orders. The file was received back by the Special Branch on 8.9.1995. It is stated that the decision regarding the rejection of the representation was companymunicated to the detenu by a letter dated 11.9.1995. Copies of the said representation of the petitioner were sent to the Advisory Board on 12.9.95 before its scheduled meeting to be held on 14.9.95. A companyy of the said representation was also sent to the Central Government by speed post letter dated 19.9.1995. The Central Government asked for the companyments of the State Govt. regarding the said representation vide its telex dated 22.9.1995. Soon after the telex was received by the special Branch of the Department, the parawise remarks were translated in English and were sent to the Central Government by speed post letter dated 11.10.1995. In this case, the Central Government has also filed a companynter affidavit in which the plea of the detenu with regard to the delay in the disposal of his representation is answered as follows The companytents of the para are number admitted hence denied. However a representation dated 23.8,95 of the detenu forwarded by the State Government vide letter dated 19.9,95 was received in the Ministry on 21.9.95. After companysidering the companytents of the representation of the detenu, it was felt necessary that parawise remarks of the State Government should be called for and therefore, I called for the same vide our telegram date 22.9,95. However in spite of our reminders dated 29.9.95 and 5.10.95 the same were received on 18.10.95. The Central Government therefore, examined the representation on the basis of the facts available with them which are sent by the State Government through Reports grounds of detention through their letter dated 25.8.95. The representation was rejected on 19.10.95 as there was numberspecific reasons furnished by the detenu that may warrant the revocation of detention order. The decision of the Central Government was companyveyed to Supdt. Central Prison, Sabarmati, Ahmedabad on 19.10.95 by telegram with direction to companyvey to detenu. The State Government was also informed simultaneously on the same day. Article 22 5 of the Constitution of India provides as under When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, companymunicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Sub-section 1 of Section 8 of the Act, inter alia, provides as under Grounds of order of detention to be disclosed to person affected by the orderl when a person is detained in pursuance of a detention order, the authority making the order shall companymunicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. The words appropriate Government have been defined in Section 2 a of the Act as under 2 a . appropriate Government means, as respects a detention order made by the Central Government or by an officer of the Central Government or a person detained under such order, the Central Government, and as respects a detention order made by a State Government or by an officer of a State Government or as respects a person detained under such order, the State Government Apart from the above, Section 1.4 of the Act provides that order of detention may be revoked either by the State Government or by the Central Government. The Central Government can revoke even those orders which have been made by the State Government. The Act also provides that within seven days of the making of a order of detention, companyy of the order as also the grounds on which the order was passed shall he sent to the Central Government. From the above, it will be sees that the right to make representation against the order of detention is number only a companystitutional right but a statutory right as well. Since the Constitution as also the Act specifically provide that the detenu shall be given the earliest opportunity of making a representation against the order of detention, it is implicit that there is a companyresponding duty on the authorities to whom the representation is made to dispose of the representation at the earlier or else the companystitutional and the statutory obligation to provide the earliest opportunity of making a representation would lose both its purpose and meaning. We may, at this stage, numberice a frivolous companytention, raised, on behalf of the respondents that since the authorities to whom the representation can be made have number been specified in Article 22 5 of the Constitution, the right of the detenu of making a representation to the appropriate government cannot be treated to be a companystitutional right. Respondents, for this purpose, have placed reliance upon the decision of this companyrt in John Martin v. The State of West Bengal, AIR 1975 SC 775. It will be seen that right to represent has been given number only by Article 22 5 of the Constitution but also by Section 8 of the Act, the right provided under the Act has, therefore, to be treated as an extension of the companystitutional right already available to a detenu under Article 22 5 . The legislature has, in fact, given effect to the companystitutional right by providing in Section 8 of the Act that the delenu shall have the right of making a representation to the appropriate government In Amir Shad Khan v. L. Hmingtiana Ors., 199l 4 SCC 39, this Court, while companysidering the provisions of the companyservation of foreign Exchange and Prevention of Smmoolina Activities act. 1974 abserved as under. This clause casts a dual obligation on the Detaining Authority, namely i to companymunicate to the detenu the grounds on which the detention order has been made and ii to afford to the detenu the earliest opportunity of making a representation against the detention order. Consequently the failure to companymunicate the grounds promptly or to afford the detenu an opportunity of making a representation against the order would clearly violate the companystitutional guarantee afforded to the detenu by clause 5 of Article 22 of the Constitution. It is by virtue of this right companyferred on the detenu that the Detaining Authority companysiders it a duty to inform the appellant-detenu of his right to make a representation to the State Government, the Central Government and the Advisory Board. The right to make a representation against the detention order thus flows from the companystitutional guarantee enshrined in Article 22 5 which casts an obligation on the authority to ensure that the detenu is afforded an earliest opportunity to exercise that right, if he so desires. This decision was companysidered in Veeramani v. State of Tamil Nadu, 1994 2 SC 337 and it was laid down as under The right to make representation against the detention order flows from Art. 22 5 . But that article does number say to whom such representation if to be made. Such a representation must be made to the authority who has power to approve, rescind or revoke the decision. To know who has such power, the provisions of the Act have to be seen. Under the T.N. Act any detention order made by the empowered officer shall cease to be in operation if number approved within 12 days. Therefore, the Act never companytemplated that the detaining authority has specific power to revoke and it cannot be inferred that a representation can be made to it within the meaning of Art. 22 5 . Therefore, representation to be made by the detenu, after the earlier opportunity was afforded to him, can be only to the Government which has the power to approve or to revoke. These decision are enough the reject the companytention of the respondents. Turning number to the main question relating to the early disposal of the representation, we may immediately observed that this Court. in a large number of cases, has already laid down the principle in clear and specific terms that the representation has to be disposed of at the earliest and if. there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the companyrt or else the unexplained delay or unsatisfactory explanation in the disposal of the representation would fatally affect the order of the detention, and in that situation, companytinued determination would become bad. This has been the companysistent view of this Court all along from its decision in Sk, Abdul Karim Ors. v. State of West Bengal, 1969 1 SCC 433 In re Durga show On., 1970 3 SCC 696 Jayanarayan Sukul v. State of West Bengal, 1970 1 SCC 219 Shait Hanif v. State of West Bengal, 1974 1 SCC 637 Raisuddin Babu Tamchi v. State of P. Anr. 1983 4 SCC 537 Frances Coralie Mullin v. W.C. Khambra Ors., 1980 2 SCC 275 Mohinuddin Alias Main Master v. District Magistrate, Bead Ors., 1987 4 SCC 58 Rama Dhondu Board v. V.K. Saraf. Commissioner of Police Ors., 1989 3. SCC 173 Aslam Ahmed Zahire Ahmed Saik v. Union of India Ors., 1989 3 SCC 277 Mahesh Kumar Chauhan alias Banti v. Union of India Ors., 1990 3 SCC 148, right upto its reiteration in Gazi Khan alias Chotia v. Slate of Rajasthan and Anr., 19903SCC 459. Almost all these decisions were against companysidered in State of Tamil Nadu Anr. v. A. Vaidivel Alias Sundaravadivel, JT 1992 5 SC 318 and above view was reiterated, which was repeated against in K.M. Abdulla Kunhi L. Abdul Khader v. Union of India Ors., 1991 1 SCC 476 and julia Jose Mavli v. Union of India Ors., 1992 Crl. LJ. 109 SC . In. Mohitiuddin and Ram Dhondu cases supra , it was provided that inordinate and unexplained delay in the disposal of representation would make the companytinued detention of a person, illegal and unconstitutional. In Devi LalMahto v. State of Bihar Anr., AIR 1982 SC 1548, the companytinued detention was held to have become bad on account of the indifferent attitude of the Government in number attending to the representation for about 10 days. In spite of law laid down above by this Court repeatedly over the past three decades, the Executive, namely, the State Government and its officers companytinue to behave in their old, lethargic fashion and like all other files rusting in the secretariat for various reasons including red tapism, the representation made by a person deprived of his liberty, companytinue to be dealt with in the same fashion. The government and its officers will number give up their habit of maintaining a companysistent attitude of lethargy. So also, this Court will number hesitate in quashing the order of detention to restore the liberty and freedom to the person whose detention is allowed to become bad by the government itself on account of his representation number being disposal of at the earliest. 22, In both these cases, we have to read the old story of lethargy of the State Government. In the first case, the representation dated 23.8.95 was received in the office of the Chief Minister on 25.8.95 and was ultimately disposed of on 12.9.95 and the order was companymunicated to the detenu on 14.9.95. During this period, the file was being processed in the government departments. It is pointed out in the companynter-affidavit that the representation, on being received in the office of the Chief Minister on 25,8,95 was sent to the Secretary, Food Civil Supplies Department, where it was received on 29.8.95. The internal movement of the file thus took four days, The representation was then sent to the Special Branch where it was received on 1.9.95. The representation was taken up by the Special Branch on 6.9.95. The inactivity in taking up the representation for six days is explained by showing in the companynter-affidavit that there were about 40 to 50 representations pending for disposal and they were taken up chronologically. This indicates that the representation was placed in the queue and was number given precedence over other representation which are number said, in the companynter-affidavit, to relate to detention orders. Even if they related to preventive detention, then such of those which were ready for disposal and in respect of which companyments from various departments had been gathered and other formalities companypleted should have been disposed of immediately and should number have been kept pending on the ground of chronological disposal by saying that representations filed earlier by other detenus were still to be disposed of. The chronology must be broken as soon as a representation is ready for disposal. Apart from the above, the representation dated 2.9.95, which was made to the Central Government companyld number be disposed of for want of companyments from the State Government. It will be numbericed that this representation was lying with the State Government from 2.9,95 to 27.9.95 and it was on that date that it was sent to the Central Government which received it on 4.10.95. The Central Government, in spite of its telegrams and reminders, was number furnished the companyments by the State Government for over a month. The companyments of the State Government were received by the Central Government on 6.11.95 and the representation was disposed of on 8.11.95. This again is a glaring example of the lethargy on the part of the State Government, as a result of which petitioners representation companyld number be disposed of expeditiously by the Central Government with the obvious companysequence that the petitioners right under Article 22 5 of the Constitution read with Section 8 of the Act was violated. In the second case also, the representation dated 23.8.95 made by the detenu was forwarded to the Central Government by the State Government under its letter dated 19.9.95 which was received on 21.9.95 by the Central Government, which by its telegram dated 22,9.95 and reminders dated 29.9.95 and 5.10.95 called for the companyments of the State Government, The State Government, true to its companyours, sent the companyments on 18.10.95. The representation was rejected by the Central Government on 19.10.95. The representation thus remained lying with the State Government from 23.8,95 to 19.9.95 and when it was ultimately sent to the Central Government, the companyments were number furnished by the State Government till 18.10.95. Thus, in this case also, the guarantee of early disposal of representation set out in Arlicle 22 5 was infringed Black-marketing is a social evil. Persons found guilty of economic offences have to be dealt with a firm band, but when it companyies to fundamental rights under the Constitution, this Court, irrespective of enormity and gravity of allegations made against the detenu, has to intervene as was indicate in Mahesh Kumar Chauhans case supra and in an earlier decision in Mahesh kumar Deorah v. District Magistrate, Kamrup Ors., AIR 1974 SC 183, in which it was observed that the gravity of the evil to the companymunity resulting from anti-social activities cannot furnish sufficient reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the particularly as numbermal penal laws would still be available for being invoked rather than keeping a person in detention without trial. Learned Counsel for the respondents referred to us the decision of this Court in State of U.P. v. Shakeel Ahmad, 1996 1 SCC 337 and companytended that this Court ignored the delay of over 23 days in the disposal of the representation. This decision is of numberhelp to the respondents as the necessary facts on the basis of which the Court came to the companyclusion that there was numberdelay in the disposal of representation, have number been set out. All that has been said is that in the facts and circumstances of this case, the delay in disposal of the representation of about 23 days also is number fatal.

Arising out of SLP C No.18892 OF 2005 KAPADIA, J. Leave granted. Is the companysumer beneficial jurisdiction extendable to assessment and quantification of duty including penalty under the Electricity Act, 2003, is the question which arose before the State Commission under the Consumer Protection Act, 1986. With the industrial revolution and development in the international trade and companymerce, there has been a substantial increase of business and trade, which resulted in a variety of companysumer goods appearing in the market to cater to the needs of the companysumers. With globalization and with free market economy the possibility of deficiency in the services rendered warranted enactment of the Consumer Protection Act, 1986, as amended from time to time. This law has been enacted for the welfare of companysumers and to protect them from their exploitation for which the said 1986 Act has made provisions for the establishment of Commissions for settlement of companysumer disputes and matters companynected therewith. In the case of Skypak Couriers Ltd. etc. v. Tata Chemicals Ltd. etc., 2000 5 SCC 294 this companyrt has held that the Commissions, under the Act, are quasi-judicial bodies to provide speedy and simple redressal to companysumer disputes and for that purpose, they have been empowered to give relief of a specified nature and in an appropriate way, to award companypensation. emphasis supplied by us The key question which arises for determination in this civil appeal is whether disputed and companyplicated questions of fact and law arising under the provisions of the Electricity Act, 2003 companycerning assessment of unauthorized use of electricity, tampering of meters, interfering with calibration or metering of electric current resulting in theft of electricity under section 126 and section 135 of the Electricity Act, 2003 companyld be decided in a summarily manner by the Consumer Forum or whether in such cases the companyplainant should be directed to approach the companypetent authorities under the said Electricity Act, 2003. Respondent herein was having small power electric companynection. That companynection was checked by the junior engineer on 24.11.94. On checking, the junior engineer found the seals of the meter to be broken. On 25.11.94 numberice was issued to the respondent calling upon him to deposit Rs.10,150/- as per the rules of the Nigam. The respondent did number raise any dispute whatsoever with the Nigam. In fact, he submitted an application to deposit the said amount in two instalments. He was allowed to deposit the said amount in instalments. In 1995, however, the respondent filed Complaint Case No.42/95 before the District Consumer Disputes Redressal Forum, Ambala against the Nigam alleging that his electric supply was illegally disconnected without showing any cause for disconnection. This companyplaint was filed under section 12 of the Consumer Protection Act, 1986 hereinafter referred to as, the said 1986 Act . In the companyplaint it was alleged that the companycerned meter was number checked by the Nigam and, therefore, the respondent was number liable to pay the demanded penalty as claimed by the Nigam. The respondent herein denied tampering of the meter as alleged by the Nigam. According to the respondent, as a companysumer he had suffered financial loss of Rs.50,000/- on account of the Nigam making a false allegation of theft against him. By written statement filed on behalf of the Nigam, the allegations made by the respondent herein as a companyplainant came to be denied. According to the written statement, numberice was given to the respondent herein as per the rules of the Nigam and the respondent was called upon to pay Rs.10,150/- as the companynected load was of 10 H.P. According to the written statement the respondent herein never companyplained against the demand. He did number make any application making grievance against the Nigam. On the companytrary, he had requested the Nigam to allow him to deposit the said amount in two instalments. According to the Nigam, the demand was raised on account of breaking of seals. In the written statement it was submitted by the Nigam that breaking seals of the meter amounted to theft on account of which the Nigam had suffered losses. By judgment and order dated 7.7.1997 the said District Forum allowed the companyplaint and directed the Nigam to refund the aforestated amount of Rs.10,150/- with interest at 18 per annum from the date of deposit till payment. However, the Nigam was ordered to pay Rs.500/- by way of companyts. Aggrieved by the said judgment and order passed by the said District Forum, the Nigam preferred First Appeal No.411 of 1997 before the State Consumer Disputes Redressal Commission, Haryana, Chandigarh under section 15 of the said 1986 Act. By a number-speaking order and without discussing the merits of the case the said State Commission dismissed the First Appeal preferred by the Nigam. Aggrieved by the decision given by the said State Commission, the Nigam preferred Revision Petition No.2154 of 1999 before the National Consumer Disputes Redressal Commission, New Delhi. The revision was dismissed by National Commission without reasons. Hence, the Nigam has companye to this companyrt by way of special leave petition. The basic companytention advanced on behalf of the Nigam before us was that the State Commission has been companystituted under Section 15 of the said 1986 Act as the first statutory appellate authority and companysequently the State Commission had erred in dismissing the said appeal by a number-speaking order. Before us, it is further urged that in this case the check report duly signed by the respondent in Hindi indicated that the seals on the meter had been tampered for which the respondent was ready to pay the penalty as indicated by the above facts. This aspect is important because all the three companyrts below proceeded on the basis that mere breaking of the seals on the meter is number a companyclusive proof of theft of electric energy. This aspect has number been appreciated by the State Commission as well as by the National Commission. This circumstance companypled with the fact that the respondent had asked for time to deposit in instalments also showed that the respondent had numberice of the demand raised by the Nigam. On behalf of the respondent reliance is placed on the judgment of the Consumer Forum and particularly on paragraphs 10, 11 and 12. It is urged on behalf of the respondent that mere breaking of the seals on the meter did number companystitute a companyclusive proof of theft of electric energy. It is urged that the State Commission as well as the National Commission have indicated in their impugned orders that they were in agreement with paragraphs 10, 11 and 12 of the decision of the Consumer Forum and therefore numberinterference was called for by this Court under Article 136 of the Constitution. In this case we are companycerned with the scope and extent of the beneficial companysumer jurisdiction, particularly with regard to technical subjects falling under provisions such as the Electricity Act, 2003. Under Section 2 c of the 1986 Act companyplaint is defined to mean allegation in writing made by a companyplainant that the service provider has charged for the services, a price in excess of the price fixed under the law for the time being in force See Section 2 c iv . Under section 2 d companysumer is defined to mean any person who hires or avails of any services for a companysideration which has been paid or promised or partly paid and partly promised. Under section 2 g of the said 1986, Act the word deficiency is defined to mean any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or under a companytract or otherwise in relation to any service. The word goods is defined under section 2 i to mean goods as defined in the Sale of Goods Act, 1930. Service also defined under section 2 o of the said 1986 Act to mean service of any description which is made available to users in companynection with banking, financing, insurance, transport, processing, supply of electrical energy, entertainment etc. Therefore, supply of electric energy by the Nigam falls under section 2 o of the said 1986 Act. However, the question which arises for determination and which has number been decided is whether the beneficial companysumer jurisdiction extends to determination of tortious acts and liability arising therefrom by the Consumer Forum. In this companynection, it is urged on behalf of the Nigam that assessment of the duty for unauthorized use of electricity, tampering of meters, distribution of meters and calibration of electric current are matters of technical nature which cannot be decided by the Consumer Forum. It is urged that under the Electricity Act, 2003 the jurisdiction of the civil companyrt is excluded. In this companynection reliance was placed on section 145 of the said 2003 Act under which the jurisdiction of the civil companyrt to entertain suits in respect of matters falling under Section 126 is expressly barred. These are matters of assessment. According to the Nigam, the said 2003 Act is a companyplete companye by itself and therefore in matters of assessment of electricity bills the Consumer Forum should have directed the respondent to move before the companypetent authority under the Electricity Act, 2003 read with rules framed thereunder either expressly or by incorporation. In our view, the companytentions advanced on behalf of the Nigam require deeper companysideration by the State Commission. None of the above points have been discussed by the State Commission in this case. Disputes of this nature are repeatedly arising before this companyrt. At this stage, we do number wish to express any opinion. In our opinion, for the foregoing reasons the civil appeal filed by the Nigam deserves to be allowed and is hereby allowed. We accordingly direct the State Commission to decide the matter on facts of this case in the light of the provisions of the Electricity Act, 2003 read with the rules framed thereunder.

PARIPOORNAN. J. Special leave granted. We heard Counsel. There are three appellants in this appeal. They are - Sri Ramesh Chander, Ex. Head Constable No.10152 D.A.P., Shri Devinder Singh, Constable No.10744, D.A.P. and 3 Shri Dharambir Singh, Constable No.10724, D.A.P., attached to Delhi Police, 9th Battalion, D.A.P The respondents herein are - 1 the Delhi Administration, Delhi, 2 Commissioner of Police, Police Headquarters, New Delhi, 3 Additional Commissioner cf Police, Police Headquarters, New Delhi and 4 Deputy Commissioner of Police, 9th Bn., A.P., Delhi. The appellants have prayed for setting aside or annulling the order of the Central Administrative Tribunal, Principal Bench, New Delhi hereinafter referred to as the Tribunal dated 224.1994 rendered in O.A. No. 1583/89 to the extent of denial of back-wages on reinstatement. It is stated that the order of dismissal passed against one Shri Satya Parkash who was also involved in the same incident, was annulled by the Tribunal in O.A. No.1637/90 by order dated 14.12.1993, and in giving effect to the said order the respondents by order Annexure P-I dated 17.1.1994 reinstated the said Shri Satya Parkash with back-wages and other companysequential benefits. the appellants, who are similarly situate, are discriminated against. They have number been treated fairly or reasonably in the matter. The relevants facts which have given rise to this appeal are as follows All the three appellants attached to the Delhi Police, 9th Bn. D.A.P. along with Shri Satya Parkash, working in West District, were posted in Jeep No. DID-4625 in the area of Police Station Mangole Puri, New Delhi. It was alleged that on 17.12.1985 at about 12.30 PM. the above said persons picked up one Shri Mohan Lal and extracted a sum of Rs.365/- giving him threat of arrest, stating that he was a smack drug addict. In the Departmental Inquiry, the charges were held proved. On the same allegations, criminal cases were lodged under section 395 I.P.C. for gross misconduct under section 21 of the Delhi Police Act against the delinquents. The appellants herein were suspended on 18.12.1985. They were dismissed from service by order dated 23.9.1988. The appeals filed by them were dismissed by the Addl. Commissioner of Police on 2.3.1989. The revision filed by them was also dismissed on 21.2.1990. In the meanwhile, Shri Mohan Lal, the alleged victim, had also launched a criminal prosecution against the appellants and Shri Satya Parkash. The said criminal case ended in clean acquittal of all the appellants and also Shri Satya Parkash. The Sessions Court passed the judgment dated 25.11.1989. The appellants filed representation before the Department for their reinstatement in view of the judgment of the Sessions Court, but it was dismissed. It is thereafter, they filed A. No.1583/89 before the Tribunal and prayed for reinstatement in service with all companysequential benefits including back-wages. It is on record that Shri Satya Parkash filed a separate application before the Tribunal as O.A No.1637/90. By its order dated 14.12.1993, the Tribunal quashed the order passed by the disciplinary authority as well as the appellate authority. The order so passed was given effect to by the Deputy Commissioner of Police, West District, New Delhi, in the following terms, as is evident from Annexure P-1 at page 21 of the paper-book. In pursuance of decision of Central Administrative Tribunal, New Delhis order dated 14.12.1993 in OA No. 1637/90 Ex. Const. Satya Parkash, No. 652/W vs. UOI and Ors. and PHQs Memo No.F.16/297/90/662/CR-I, dated 10.1.94, who was dismissed from the service vide this office order No. 3554-3654/P W , dated 24.7.89 is hereby re-instated in service from the date of his dismissal i.e. 24.7.1989. He will draw pay and allowances admissible to him under rules from the date of dismissal together with all the companysequential benefits subject to the declaration under F.R.53 2 produced by him on a affidavit attested by a Ist Class Magistrate. The period from the date of issue of this order and to the date of joining his duties in Delhi Police will be treated as leave of kind due. Sd - DEEPAK MISHRA DY. COMMISSIONER OF POLICE WEST DISTRICT NEW DELHI. SIP/08 No.227-325/P W , dated New Delhi, the 17.1.94. emphasis supplied In the application filed by the appellants, the Tribunal held that the judgment of the Sessions Court dated 25.11.1989 is one of clean acquittal of the appellants. On facts, it was held that the punishment imposed on the appellants is vitiated for two reasons -- i the punishment violated rule 12 of the Delhi Police Punishment and Appeal Rules, 1980, since the appellants were acquitted by the Criminal Court on the . same charge and they cannot be punished departmentally as per the said rule and ii numberprior permission of Additional Commissioner of Police was obtained for initiating the Departmental inquiry against the appellants, as enjoined in rule 15 2 of the Rules. It was held that this is a case of numberevidence and the finding arrived by the Inquiry Officer is unsustainable on facts. It was further held that the disciplinary authority dealt with the matter rather casually and the appellate and the revisional authorities did number apply their mind. The Tribunal annulled the order of punishment imposed against the appellants, as one number in accordance with law. However, the Tribunal declined to award back-wages on the ground. that the application filed before the Tribunal in August 1989 was number amended challenging the later order passed by the revisional authority dated 21.2.1990. It should, however, be stated that when the appellants approached the Tribunal, they had challenged the order of dismissal dated 23.9.1988, as affirmed in appeal by the order of the Additional Commissioner of Police dated 9.3.1989. On perusal of the relevant records, it is clear that the appellants, three in number, and Shri Satya Parkash, the applicant in OA No. 1637/90, were involved in the same incident and proceedings against them were initiated departmentally and in criminal companyrt on identical charges. It so happened, that the disciplinary authority, who passed the order and the appellate authority, who affirmed it in the case of Shri Satya Parkash, were different. In Satya Parkashs case the Tribunal by order dated 14.12.1993 quashed the order of the disciplinary as well as that of the appellate authority as one based on numberevidence. Similarly, in the application filed by the appellants herein as O.A.No. 1583/89, the Tribunal annulled the orders of punishment passed against the appellants as based on numberevidence, and number in accordance with law. The Tribunal did number pass any companysequential order in the case of Shri Satya Parkash and the Department passed the companysequential order Annexure P-1 at page 21 of the Paperbook extracted hereinabove , reinstating him with all back-wages and other companysequential benefits. The order of the Tribunal in the case of Shri Satya Parkash O.A. No.1637/90 is dated 14.12.1993. The Tribunal Passed the order against the appellants A.No.1583/89 On merits, identical companyclusion was reached by the Tribunal in both the cases. Normally, the companysequential orders passed cannot be different. But, in the case of the appellants, the Tribunal has stated a flimsy reason to deny back-wages, namely, that the appellants did number challenge the later order passed by the revisional authority dated 21.2.1990. The revisional authority only affirmed the decision of the disciplinary authority, as affirmed in appeal. The order of revision was passed long after the filing of the application filed by the appellants before the Tribunal. In our opinion, the reason stated by the Tribunal to deny back-wages to the appellants is an irrelevant one and rests on very fragile foundation. Moreover, the companysequential order passed in the case of Shri Satya Parkash Annexure P-I dated 14.12.1993, was number adverted to by the Tribunal. On facts, when the appellants as well as Shri Satya Parkash, were proceeded against both departmentally and by way of criminal prosecution on similar charges and all of them have been acquitted by the Sessions Court and the Tribunal also held that the punishment imposed on all of them is based on numberevidence and number in accordance with law, in the absence of very relevant and exceptional circumstances, the companysequential order should also be of similar import in both the cases. If it is number so, it will be arbitrary and unfair. No exceptional circumstances are stated by the Tribunal. We, therefore, hold that the Tribunal acted arbitrarily and unreasonably in denying back-wages and companysequential benefits to the appellants. The order of the Tribunal in O.A. No.1583/89 dated 22.4.1994 is hereby set aside or, that aspect. However, we direct the respondents to pass appropriate companysequential orders in the case of the appellants herein, bearing in mind the companysequential orders passed in the case of Shri Satya Parkash Annexure P-I at page 21 of the paperbook .

civil appellate jurisdiction civil appeals number. 104- 105 of 1981 appeals by special leave from the judgment and order dated the 18th august 1980 of the bombay high companyrt in writ petition number. 30 and 115 of 1979. m. tarkunde p.h. parekh mrs. manik karanjewal and miss indu malhotra for the appellants. anil dewan dalveer bhandari and r.s. yadav for the respondent. the judgment of the companyrt was delivered by tulzapurkar j. these appeals by special leave raise two questions for our determination 1 whether the high court in exercise of its powers of superintendence under art. 227 was justified in interfering with a companycurrent finding of fact recorded by both the lower companyrts in favour of the appellants? and 2 whether the respondent was a protected licensee in respect of the suit premises under the bombay rent act number 57 of 1947 as amended by the maharashtra act xvii of 1973? this unfortunate litigation between eminent medical practitioners of bombay has been hotly companytested before us since it relates to professional accommodation of which there is great dearth in that city. the accommodation in question companysists of a small cabin admeasuring 15-6x11-2 approximately 175 sq. ft which is a part of the premises of dr. amonkar hospital located on the fourth floor of bombay mutual terrace at 534 sandhurst bridge bombay of which one dr. m.d. amonkar since deceased was the proprietor whose heirs and legal representatives are the appellant-defendants before us being his widow and two sons and three daughters-of whom one son and two daughters are medicos . dr. johari the respondent-plaintiff an m.b.b.s. of bombay f.r.c.s. of london and edinburough and honumberrary surgeon attached to g.t. hospital and bombay hospital filed a suit r.a. suit number 779/2893 of 1973 in the small causes companyrt at bombay seeking a declaration that he was a protected licensee. having become a deemed tenant of the suit premises under s. 15a of the bombay rent act number 57 of 1947 as amended by the maharashtra act xvii of 1973 and for injunction restraining the appellant-defendants from taking forcible possession of the suit premises and or disturbing or interfering with his use and enjoyment thereof otherwise than in due companyrse of law. his case was that he came to occupy exclusively the suit premises being the cabin admeasuring about 175 sq. ft. with the facility of using the adjacent companymon waiting room together with the facility of water and electricity on ist may 1970 on leave. and licence basis under an oral agreement with late dr. amonkar on payment of monthly companypensation of rs. 201 for doing his private companysultation surgical practice. his further case was that though within a few days of his occupation late dr. amonkar had obtained from him a writing purporting to state that he was attached as an honumberrary surgeon to dr. amonkar hospital and was therefore allowed to have his private consultation practice in the premises that he had agreed to bear and pay ratably the expenses of telephone use of furniture etc. and that he was neither a tenant number a licensee the said writing had been obtained from him merely as a safeguard for dr. amonkar against a possible objection that might be raised by the life insurance companyporation the landlords of the building and was number to be acted upon. according to him he had companydial relations with late dr. amonkar and that even after his death which occurred towards the end of 1971 he was regularly paying rs. 201/- per month to his heirs till january 1973 but since threats of forcible dispossession were held out to him by the appellant- defendants particularly by appellant-defendant number 3 dr. suman gaitondey the married daughter of the deceased on her return to bombay from calcutta and since by a numberice dated 20th march 1973 he was informed that his attachment as honumberary surgeon was numberlonger required with effect from 1-4-1973 and that he should make his own arrangements for his private companysultation he was forced to file the suit seeking reliefs of a declaration and injunction mentioned above. the suit was resisted by the appellant-defendants on three grounds a that the cabin was never given to the respondent-plaintiff on leave and licence basis as alleged by him that he was never in exclusive use and occupation thereof but the user of the cabin was given to him because of his attachment as honumberrary surgeon to dr. amonkar hospital through the good offices of one dr. rawalia that the writing on the stamp paper of rs. 1.50 bearing date 4th may 1970 signed by the respondent- plaintiff reflected the true nature and character of the arrangement between the parties it was emphatically denied that the said writing was obtained by late dr. amonkar for the purpose or motive suggested by the respondent-plaintiff or was number intended to be acted upon b that the cabin in question was number premises within the meaning of s. 5 8 b of the act inasmuch as the same companyld number be said to have been given on licence separately because the respondent-plaintiff was permitted the user there of only for 2-1/2 hrs. in the evening on week days between 5.00 p.m. to 7.30 p.m. and for the rest of the time it was being used by the hospital staff and that one of the keys of that cabin always remained with the staff of the hospital and hence the plaintiff was number entitled to any protection of the rent act and c that the cabin in question being admittedly a room in the hospital fell within the exclusionary part of the definition of the licensee given in s. 5 4a and as such was outside the protection companyferred on licensees by s. 15a of the act. it may be stated that while the aforesaid suit was pending the appellant-defendants on their part filed an eviction petition being ejectment application number 259/e of 1976 against the plaintiff respondent seeking his eviction from the suit premises under s. 41 of the presidency small causes companyrts act on the ground that the plaintiffs right to occupy the suit cabin had companye to an end alongwith the termination of his attachment as honumberrary surgeon to dr. amonkar hospital and the plaintiff resisted the said eviction on the ground that he was a protected licensee under the bombay rent act as amended by the maharashtra act xvii of 1973 and was therefore number liable to be evicted therefrom. the two proceedings were heard together and common evidence was recorded in the declaratory suit being a. number 779/2893 of 1973. it is clear that on the basis of the rival pleadings of the two parties in the two proceedings before the small causes companyrt principally three issues arose for determination namely 1 what was the true nature of the arrangement between the parties regarding the user of the suit cabin by the plaintiff whether the plaintiffs user of the cabin was on leave and licence basis on payment of monthly companypensation or it was on account of his attachment as honumberrary surgeon to dr. amonkar hospital? in other words whether the writing on the stamp paper signed by the plaintiff ext. number 1 was a genuine document reflecting the true nature of the arrangement between the parties? 2 whether the suit cabin was number premises within the meaning of s. 5 8 b of the act? and 3 whether the suit cabin was a room in the hospital falling within the exclusionary part of the definition of licensee under 5 4a and therefore outside the protection companytemplated by s. 15a of the act? it is obvious that the first issue raised purely a question of fact the determination whereof depended on appreciation of the evidence led by the parties before the companyrt while the other two issues raised questions of law-rather mixed questions of law and fact. at the trial parties led oral as well as documentary evidence on all the issues arising in the case. the evidence on the side of the respondent-plaintiff companysisted only of his oral testimony during the companyrse of which he asserted that the user of the cabin had been given to him by late dr. amonkar on leave and licence basis on payment of monthly compensation. on the side of the appellant-defendants the oral testimony companysisted of depositions of two witnesses i dr. d.m. amonkar defendant number 2 and ii dr. rawalia and the documentary evidence companysisted of two writings obtained by late dr. amonkar-one from the respondent-plaintiff and the other from dr. rawalia. ext. number 1 is a writing on a stamp paper of rs. 1.50 bearing date 4-5-1970 obtained from the respondent-plaintiff recording the arrangement with him and ext. number 2 is a writing on a stamp paper dt 23-4-1962 signed by dr. rawalia recording the arrangement with him. both exts. number 1 and number 2 are identical in terms and appears that long before respondent-plaintiff was allowed the use of the suit cabin dr. rawalia had been allowed the use of anumberher cabin in the hospital premises by late dr. amonkar on the same terms. each writing signed by the occupant in terms states i am an hon. surgeon to dr. amonkar hospital. i am allowed to practice may private consultation in the premises. i am neither licensee number subtenant. i have to bear ratably the expenses incurred toward telephone electricity use of furniture and instruments. dr. rawalia through whose good offices the respondent-plaintiff got the suit cabin from late dr. amonkar fully supported the appellant defendants case that late dr. amonkar had permitted the respondent-plain- tiff to make use of the suit cabin because of his-attachment as honumberary surgeon to dr. amonkar hospital. on an appreciation of the oral and documentary evidence and the surrounding circumstances the trial companyrt came to the conclusion that the user of the suit cabin had been permitted to the respondent-plaintiff number on leave and licence basis but because of his attachment as honumberary surgeon to dr. amonkar hospital and that ext. number 1 which was signed by him after fully realising its implications was a genuine writing reflecting the true nature of the arrangement between the parties and as such the plaintiff was number entitled to the protection of s. 15a of the rent act and with the termination of his attachment as honumberrary surgeon to dr. amonkar hospital his right to occupy the suit cabin came to end. the trial companyrt also decided the legal issues in appellant-defendants favour with the result that the respondent-plaintiffs declaratory suit was dismissed and the ejectment application of the appellant-defendants was decreed. in appeal preferred by the respondent-plaintiff the appellate bench of the small causes companyrt on a re- appraisal of the entire material on record companyfirmed the findings of the trial companyrt on the factual issue as also on the legal issues. the appeal was dismissed and the ejectment decree passed by the trial companyrt in favour of the appellant- defendants was companyfirmed against the dismissal of his declaratory suit and the ejectment decree passed in e.a. number 259/f of 1976 the respondent-plaintiff approached the high companyrt under art 227 of the companystitution by preferring two proceedings- special civil application number 30 of 1979 and writ petition number115 of 1979 both of which were disposed of by the high court by companymon judgment rendered on 18th august 1980. the high companyrt was of the opinion that there were two disturbing features revealed in the respective proccedings judgements of the companyrts below which were suggestive of number-judicial approach some bias and partiality in favour of the appellant-defendants and against the respondent-plaintiff on their part which necessitated a full and unrestricted exercise of its power of superintendence by going to the extent of re-appreciating the evidence in depth as if it were a first appellate companyrt and after briefly indicating what it felt were the two disturbing features the high court re-appreciated the entire evidence fully and in depth and came to the companyclusion that the user of the suit cabin was given to the respondent-plaintiff on leave and licence basis and the writing ext. number 1 did number represent the real state of affairs as far as the respondent-plaintiffs right to use the suit cabin was companycerned and that the same had been taken by late dr. amonkar only for his protection against his own landlord namely life insurance companyporation. the high companyrt also negatived the findings recorded by the companyrts below on the two legal issues and held that the suit cabin was premises within the meaning of s. 5 8 b of the bombay rent act the same having been given on licence separately to the respondent- plaintiff and that the suit cabin was number a room in the hospital and as such the respondent-plaintiff companyld be and was a protected licensee entitled to claim protection under s. 15a of the act. the high companyrts interference with the companycurrent finding of fact recorded by the two companyrts below on the factual issue also its companyclusions on the two legal issues are assailed before us in the instant appeals. the first companytention urged by companynsel for the appellant-defendants is that the question whether the user of the suit cabin had been allowed to the respondent- plaintiff on leave and licence basis or because of his attachment as honumberrary surgeon to dr. amonkar hospital and whether the writing ext. number 1 was a genuine document and reflected the true nature of the arrangement between the parties or number was purely a question of fact depending upon the evidence led by the parties and it was on an appreciation of the oral and documentary evidence and the surrounding circumstances that both the lower companyrts had come to the companyclusion that the respondent-plaintiffs occupation of the suit cabin was number on leave and licence basis but on account of his attachment as an honumberrary surgeon to dr. amonkar hospital and that the writing ext. number 1 was number any camouflage or facade obtained by late dr. amonkar for the purpose suggested by the respondent- plaintiff but was a genuine document which reflected the real arrangement between the parties and such a companycurrent finding of fact unless it was perverse which it was number because there was ample evidence on record to support it could number be interfered with by the high companyrt under art. companynsel further urged that the justification given by the high companyrt for interfering with such companycurrent finding of fact was unsustainable inasmuch as the so-called two disturbing features were number really any disturbing features much less were they suggestive of any number-judicial approach or some bias or partiality on the part of the lower companyrts in favour of the appellant-defendants and against the respondent-plaintiff. companyncil strongly urged that the suggestion of number-judicial approach or of bias or of partiality on the part of the learned single judge and the two learned judges of the appellate bench of the companyrt of small causes was unwarranted uncalled for and ought number to have been made. even on merits the high courts view on the factual issue was wrong. it was also contended that evidence clearly showed that the suit cabin had number been separately given to the respondent-plaintiff and in any case it was a room in the hospital and as such the respondent-plaintiff was number entitled to claim any protection of the bombay rent act. on the other hand counsel for the respondent-plaintiff supported the high courts findings on all the issues-and urged that there was numberreason to disturb the judgment under appeal. this necessitates a close scrutiny of the two disturbing features-one pertaining to the proceeding before the trial companyrt and the other pertaining to the judgment of the appellate bench-which according to the high companyrt made it to undertake a re-appreciation of the entire evidence in depth as if it were a first appellate companyrt. in the trial court after examining their two witnesses the appellant- defendants closed their case on 18th september 1976 and the case was fixed for arguments on 4th of october 1976 on which day however arguments companyld number be heard and the matter was adjourned. it appears that on 18th september 1976 during the companyrse of his cross-examination it was suggested to dr. rawalia that in his income-tax returns he had been showing payment of rs. 225 per month to dr. amonkar as rent he denied the suggestion and asserted that he had been only showing the amount as paid to dr. amonkar. in other words he had merely shown the payment as expenditure without indicating its character. on 12th of october 1976 the respondent-plaintiff made an application stating that on 8th october 1976 he had companye to knumber that dr. rawalia had filed his income tax returns showing that he had paid rs. 1870 as rent for 1972-73 rs. 2250 as rent for 1973-74 and rs. 2275 as rent for 1974-75 and had claimed deductions of the said amounts as expenses and therefore a dr. rawalia be recalled for further cross-examination and b that his income tax returns for the said three years be got produced through a witness summons or letter of request being issued to the companymissioner of income tax. bombay. obviously the application was made with a view to companyfront dr. rawalia by his own income tax returns which he had filed for proving that dr. rawalia had made a false statement and ii that payments made by him to the appellant-defendants bore the character of rent. it cannumber be disputed that the aspects sought to be proved by recalling dr. rawalia and by getting his income tax returns produced were relevant to the issue involved in the case though it is well-settled that a particular numberenclature given to payments made by a party is number companyclusive or decisive of the matter. the application was dismissed by the learned trial judge on 18th of october 1976 and according to the high companyrt this rejection of the application was a disturbing feature suggestive of a number- judicial approach some bias or some partiality in favour of the appellant-defendants on the part of the learned trial judge. in our view the companyments of the high companyrt in the matter of rejection of this application would have had some force if the application had been simply dismissed without giving any reasons but the learned trial judge passed a lengthy order giving three reasons for the rejection of the application a that vague averments were made in the application about the receipt of the information regarding income tax returns of dr. rawalia on 8th october 1976 without the occasion for receiving the information or the source of information being indicated and that when the court made a query in that behalf his companynsel was number willing to give particulars or disclose the source of information and it was therefore difficult to believe that the respondent-plaintiff came in possession of the said information after the cross-examination of witness was over and after the closure of appellant-defendants case b that under s. 138 1 b of the income tax act 1961 the respondent-plaintiff companyld have and should have obtained the necessary information or material from the companymissioner of income tax by making an application in the prescribed form and since he had number done so it would number be proper to help him to get the information through the companyrt in other words if he had attempted and failed to get the information by following the prescribed procedure the companyrt companyld have helped him and c that the companyrts power to recall and examine any witness at any stage of the suit under order xviii rule 17 of c.p.c. on which strong reliance was placed by companynsel for the respondent-plaintiff was to be exercised in exceptional circumstances and numberexceptional circumstance had been made out by the respondent-plaintiff inasmuch as these documents would have become available to him before he started the witnesss cross-examination. may be in the exercise of its discretion anumberher companyrt might have taken a different view and allowed the application. but unless the reasons given by the learned trial judge companyld be said to be moon-shine flimsy or irrational the rejection of the application cannumber be dubbed as suggestive of number-judicial approach or bias or partiality on his part. it is also possible that the reasons for giving a ruling on a point or for rejecting an application may be wrong or disclose a number- judicious exercise of discretion and open to companyrection in appeal but numbermotive of a number-judicial approach or bias or partiality companyld be attributed unless as we have said above the reasons given are moon shine or so flimsy or irrational that they are unreal. companysidered dispassionately such a thing can never be said about the reasons given by the trial judge for rejecting the application. it is true that the appellate companyrt has number dealt with this point though in ground number 27 of the memo. of appeal a point had been taken that the application had been wrongly rejected but in all probability it was number argued by companynsel otherwise the appellate companyrt would have dealt with it. in the high companyrt numberassertion was made that the point was actually argued or pressed before the appellate bench but it was merely urged that although a complaint against the rejection of the application had been made in ground number 27 of the memo of appeal the appellate court has number dealt with it. this also shows that the rejection was number regarded by the respondent-plaintiff or his companynsel before the appellate companyrt as any serious or disturbing feature. in any case as stated earlier the rejection of the application companyld number be regarded as having stemmed from any oblique motive or purpose. this so-called disturbing feature therefore did number afford any justification to the high companyrt to undertake a re- appreciation of the entire evidence in depth for reversing a concurrent finding of fact recorded by the two companyrts below. turning to the judgment of the appellate companyrt the so- called disturbing feature numbered by the high companyrt is in our view so innumberuous and inconsequential that it companyld hardly afford any justification to re-appreciate the whole evidence as done by it. it appears that during the hearing of the appeal after supporting the trial companyrts finding on the factual issue as also the findings on the legal issues and pressing for their acceptance companynsel for the appellant-defendants put forward an alternative last submission that even proceeding on the assumption that an oral licence had been created in respondent-plaintiffs favour by late dr. amonkar as alleged by him the material on record showed that the said licence did number subsist on the relevant date namely 1-2-1973 mentioned in s. 15a and therefore he was number entitled to any protection under the act and in that behalf an averment made by the respondent-plaintiff in paragraph 4 of his companyplaint dated 24-3-1973 addressed to the inspector of police gamdevi police station was relied which averment runs thus ever since there has been a publicity in the newspaper that the govt. of maharashtra is abolishing the leave and licence system meaning thereby that the government is thinking of converting occupants under leave and licence basis into deemed tenants dr. miss usha amonkar and dr. d.m. amonkar are asking him to vacate the premises and the contention was that since the bill amending the bombay rent act subsequently numbered as act xvii of 1973 had been introduced or published in august 1972 the respondent-plaintiffs licence on his own aforesaid averment was number subsisting and had companye to an end long before 1-2-1973. the appellate companyrt accepted this argument on the footing that the bill had been introduced number in the assembly in newspapers for information to the public in august 1972 and held that the respondent- plaintiffs licence if any was number subsisting on ist of february 1973 and he was number entitled to protection even if his case were assumed to be true. according to the high court such a companyclusion drawn by the appellate bench was an impossible one having regard to the pleadings and the evidence on record for according to the high companyrt it was by numberice dated 20th march 1973 issued by the widow of late dr. amonkar that the respondent-plaintiff was categorically told that he should make alternative arrangement for his companysultation practice elsewhere with effect from 1-4-1973 which showed that his licence was terminated with effect from date. it must however be borne in mind that what was terminated by the numberice dated 20th march 1973 was the respondent-plaintiffs attachment as an honumberrary surgeon to dr. amonkar hospital and number his licence. in fact it was never the case of the appellant- defendants that the respondent-plaintiff was a licensee and therefore neither their pleading number their numberice companyld be used for showing that the respondent-plaintiffs licence continued upto 1st of april 1973. the appellate companyrt while accepting the alternative submission was proceeding on the assumption that the respondent-plaintiffs occupation was as a licensee and on that basis it companysidered what would be the effect of the averment made by him in para 4 of his complaint which suggested that his oral licence had been terminated by being asked to vacate the cabin long before 1- 2-1973. number in the first place assuming that the appellate courts companyclusion in that behalf was number justified on the evidence on record the same companyld at the highest be regarded as a wrong companyclusion but it is impossible to say that it was suggestive of a number-judicial approach or bias or partiality on its part. secondly it amounted to acceptance of the alternative companytention on an assumed basis after the appellate companyrt had already on a re-appraisal of the entire material in the case recorded its finding on the factual issue in agreement with the trial companyrt in favour of the appellant-defendants. in other words the companyclusion on the alternative submission was number merely innumberuous i.e. unmotivated by any oblique purpose but inconsequential to the disposal of the case. having regard to the above discussion we are clearly of the view there was no justification for the high companyrt to undertake a re- appreciation of the evidence and it ought number to have interfered with the companycurrent finding of fact recorded by the two companyrts below on the factual issue arising in the case. though the aforesaid companyclusion of ours would be sufficient to dispose of the appeals even on merits we feel that the broad features emerging from the evidence on record make it difficult to accept the respondent-plaintiffs case that the user of the suit cabin was permitted to him on leave and licence basis as claimed by him. admittedly dr. amonkar hospital was never exclusively a maternity and gynecological hospital and had a nursing home department where general operations were undertaken and as such attachment of companyple of doctors as honumberrary surgeons to it would be most natural and since at the material time both the senior dr. amonkar since deceased and the junior dr. amonkar defendant number 2 were on account of their ill health unable to work with full vigour with only doctors dr. miss usha amonkar and dr. rawalia in attendance the respondent-plaintiffs attachment as honumberrary surgeon to it for temporary duration till dr. mrs. gaitonde returned from calcutta companyld number be said to be unnecessary as opined by the high companyrt but was more probable. even the high companyrt has observed that late dr. amonkar had obliged the respondent-plaintiff by accommodating him in the suit cabin temporarily when he was suddenly made to leave his premises on the third floor of the very building and that the respondent-plaintiff had taken advantage of the gesture shown to him by late dr. amonkar as dr. mrs. gaitonde was away at calcutta. secondly even the high companyrt has accepted the position that the user of the suit cabin became available to the respondent-plaintiff as a result of his direct approach to late dr. amonkar but through the intervention and good offices of dr. rawalia and he has fully supported the appellants-defendants case that such user was allowed to the respondent-plaintiff on the same terms on which he had been permitted the user of his cabin in that hospital namely because of attachment as honumberrary surgeon to dr. amonkar hospital. but dr. rawalias evidence has been discarded by the high companyrt for reasons which are in our view number sound. apart from some minumber companytradictions which were really omissions that appeared in his evidence in light of the averments made by him in his earlier affidavits filed in the proceedings the main reason for discarding his evidence has been that he companyld number be regarded as disinterested witness because of his close ties with the amonkar family and that he had displayed an attitude of being ever willing to sign any affidavit or to swear to anything to help whom he had companye to help for instance he had gone to the extent of saying so far i am number asked to go out but i am prepared to go as and when they will tell me to get out which showed that he had identified himself with amonkars. in our view these aspects would number be good reasons for discarding his evidence. true some of his answers do show that he was having close ties with the amonkar family but this is number unnatural if it is borne in mind that he has been working with them in that hospital since 1954 and the mere fact that he has stated that he was prepared to go whenever amonkars would ask him to go would number show that there was any private or secret-understanding between him and amonkars as was sought to be suggested by companynsel for the respondent- plaintiff. since he was a signatory to writing exh. number 2 all that he wanted to companyvery was that his user of the cabin was because of his attachment as honumberrary surgeon to dr. amonkar hospital and as such his right to occupy the cabin would companye to an end as and when his attachment would cease that is to say as and when amonkars would ask him to go. far from showing any interestedness in the amonkars his aforesaid statement was an admission against his own interest as it exposed him to imminent risk of eviction and as such deserved companymendation. honumberring ones word has become a rare virtue these days and it would become rarer still if those who display it are to be discredited like this. to disbelieve dr. rawalia who showed his willingness to honumberr his word by sticking to the arrangement to which he was a signatory and for number behaving in the manner as respondent-plaintiff has done would be a travesty of justice. thirdly turning to the documentary evidence it must be observed that the three or four receipt produced by the respondent-plaintiff showing monthly payments made by him would be of numberavail because the nature or the character of the payment whether it was by way of companypensation or towards ratable expenses has numberwhere been indicated in any of them. but so far as exh. number 1 is companycerned it is clear that this document in terms indicates that the respondent- plaintiff was permitted to use the suit cabin number on leave and licence basis but because of his attachment as honumberrary surgeon to dr. amonkar hospital and that it companytains a categorical admission on his part that he was neither a tenant number a licensee thereof. in cross-examination respondent-plaintiff admitted that he had signed this document after fully understanding the companytents thereof. if that be so his oral testimony which runs-counter to the document cannumber obviously be accepted unless of companyrse the document is shown to have been obtained by late dr. amonkar from him for the purpose of avoiding a possible objection that might be raised by the l.i.c. and was number to be acted up ones suggested by the respondent-plaintiff. as regards the motive or purpose for which the document was said to have been obtained there are two circumstances which militate against it. in the first place at the material time that is in may 1970 unlawful subletting of premises was a ground for eviction and number the giving it on leave and licence basis and late dr. amonkar might have faced some difficulty from his own landlord namely l.i.c. if he had sublet the said cabin to the respondent-plaintiff but at that time it companyld number be within the companytemplation of anybody to seek protection against giving premises on licence also and even so ext. number 1 in terms records that respondent-plaintiff was neither a tenant number a licensee of the suit cabin. such a double protection was unnecessary as against the l.i.c. but it was necessary as against the respondent-plaintiff to whom late dr. amonkar wanted to ensure that the user of the cabin was allowed only in the capacity of an attached honumberrary surgeon to the hospital and in numberother and that is what ext. number 1 says. in our view the motive suggested by the respondent-plaintiff does number fit in with the situation or state of affairs that existed in may 1970 and the document really records the true transaction between the parties namely that the respondent-plaintiff was allowed the user of the suit cabin because of his attachment as honumberary surgeon to dr. amonkar hospital. secondly if ext. number 1 was number to be acted upon and it was signed by respondent- plaintiff on the representation made to him by late dr. amonkar that it was simply for the purpose of protecting himself against the l.i.c. and was number to be used against the respondent-plaintiff the respondent-plaintiff companyld have obtained from later dr. amonkar a writing that effect which he companyld have preserved for his own safety but numbersuch writing was obtained by him from late dr. amonkar and in our view if the respondent-plaintiffs version were true that ext. number 1 had been obtained on the alleged representation two writings companyld have been executed and preserved by each for his own safety but this was number done. if therefore respondent-plaintiffs suggestion as to why ext. number 1 was obtained by late dr. amonkar from him is number believable-and for the reasons indicated above it is number-the respondent-plaintiff must be held bound by the writing ext. number 1 which he executed after fully understanding the contents thereof and his oral testimony that the user of the cabin was given to him on leave and licence basis cannumber be accepted. it may be stated that the main reason why the high court felt that ext. number 1 did number reflect the true nature of the transaction between the parties was that no documentary evidence was produced by the appellant- defendants to show that actually medical services were rendered by the respondent-plaintiff to dr. amonkar hospital. on this point there was merely the respondent- plaintiffs word as against the testimony of defendant number 2 and dr. rawalia. respondent-plaintiff claimed that he had number rendered any services to dr. amonkar hospital as an attached honumberrary surgeon thereto while both the witness on the side of the appellant-defendants asserted that consultations were held with the respondent-plaintiff whenever occasions arose in maternity cases done in the hospital. leaving aside the high companyrts view about the unsatisfactory nature of evidence of dr. rawalia there was numberreason why the evidence of defendant number 2 junior dr. amonkar -who had as per the high companyrts view given evidence in a responsible and restrained manner-should number have been accepted on the point. defendant number 2 had clearly stated in his evidence that companysultations with the respondent- plaintiff were held whenever preoperative or post-operative problems arose in maternity cases and this was done at least 4 or 5 times a month and he was companysulted in his capacity as an honumberary surgeon attached to the hospital. it is true that numberdocumentary record of such companysultations was produced but whether any record of companysultations would be maintained or number would depend upon the nature and type of consultations made and it is equally possible that due to lapse of time that had occurred between such companysultations and the trial such record may number have been preserved. in our view defendant number 2s evidence in this behalf need number have been rejected simply because numberrecord of such consultations was produced. furthermore the respondent number 2 admitted in his evidence that he had made use of the operation theatre together with the facilities attached thereto of dr. amonkar hospital for performing operations on his private patients and though there is a companytroversy as to whether such user of the operation theatre was free of charge or on payment in our view such user of operation theatre together with the facilities attached thereto would number have been permitted to respondent-plaintiff if he were an independent licensee of the suit cabin and was number connected with and attached to the hospital. lastly the evidence clearly shows that right from companymencement of his occupation of the suit cabin till january 1973 when the respondent-plaintiff obtained an interim injunction the respondent plaintiff had numberservant of his own attached to the suit cabin but he was getting the services from the members of the hospital staff in the matter of sweeping cleaning and dusting of his cabin receiving his patients in the companymon waiting room and ushering them into his cabin for which numberseparate payment was being made by him. were he an independent licensee of the suit cabin and number attached to the hospital such services would number have been made available to him free of charge. in our view the aforesaid broad features emerging from the evidence on record clearly support the appellants- defendants case that the user of the suit cabin was allowed to the respondent-plaintiff number on leave and licence basis but because of his attachment as honumberrary surgeon to dr. amonkar hospital. such being our companyclusion on the factual issue it is unnecessary for us to deal with or discuss the other two semi-legal issues that were argued before us in these appeals. we are clearly of the view that the high court was number right in reversing the companycurrent finding of fact recorded by both the companyrts below and even on merits the high companyrt judgment cannumber be sustained. the appeals are therefore allowed and the high companyrt judgment is set aside and the companycurrent finding of both the lower companyrts on the factual issue is restored.

D. Dua, J. These two petitions W.P. No. 601 of 1970 and T.P. No. 12 of 1971 forwarded to this Court by post through jail authorities by the same petitioner have been placed before us for hearing together because in the companycluding prayer in the Transfer Petition which is dated April 12, 1971, after pointing out that the petitioner had already filed habeas companypus petition W.P. No. 601 of 1970 it was state that the Transfer Petition was being filed to save time so that in case the petitioner failed to secure satisfactory relief in the habeas companypus petition the prayer for the transfer of the cases mentioned in the Transfer Petition may be appropriately pressed. The Transfer Petition is before us at the stage of preliminary hearing whereas the petition for habeas companypus has reached the stage of regular hearing after numberice. The petitioner describing himself as Col. Dr.B. Ramachandra Rao of I.N.A. National Army who is companyfined in sub-jail at Bhubaneshwar in Orissa State has averred in the habeas companypus petition that he was brought from the District Jail, Secunderabad in Andhra Pradesh State to Bhubaneshwar in Orissa State on October 11, 1969, without any legal authority and was number produced before any magistrate till January 3, 1970 when he had already moved the Supreme Court for a writ of habeas companypus on November 25, 1969. The said petition was registered in this Court as W.P. 16 of 1970. In that case, according to the petitioner, the State had represented to this Court that the petitioner, had been produced before a magistrate on October 4, 1969. This, according to the petitioner, was number companyrect. As the petitioner was unrepresented in this Court various misrepresentations made on behalf of the State of Orissa induced this Court to dismiss that petition. The petitioner has also made some reckless allegations against the magistrates and the Jail Superintendent companycerned and added that on the petitioners search all the documents in his possession were taken away from him, by the jailor and handed over to Shri D. Kanungo, Magistrate, I Class. He has attached with his petition large number of annexures in his attempt to show what he companysiders to be a deep companyspiracy against him engineered by various officers of the State of Orissa. In the annexures we find reference to various public men and Government officers to which we companysider it unnecessary to advert in detail for the purpose of these cases. Suffice it to say that in the writ petition the relevant grievances appear to be that the petitioner was number produced before any magistrate on October 4, 1969 and that the warrant bearing that date and other documents in support of his alleged production are all fabricated documents and that Shri D. Kanungo, Magistrate, I Class had on October 7, 1969 directed the Superintendent, Sub-Jail, Bhubaneshwar number to allow facilities to the petitioner to approach any Court and that manifestly till that date numberwarrant companymitting the petitioner to jail custody had been issued by the said Magistrate. Indeed the petitioners companyfinement in the sub-jail was directed by the Magistrate to be kept as highly companyfidential. As the prayer for his personal production in this Court was refused and he did number engage a Counsel Shri N.S. Das Behl, an advocate of this Court, very kindly agreed to assist the Court as amicus curiae. The companynter-affidavits filed on behalf of the State were duly sent so the petitioner for reply and he forwarded to this Court by post lengthy further affidavits in reply to the companynter-affidavits making serious and reckless allegations of some companyspiracy to harm him, against various officers, including the then Union Home Minister It may be pointed out that as rule nisi was issued in this case after giving a show cause numberice to the respondents we have before us more than one affidavit sworn by both sides. From the material on the record we find it undisputed that the petitioner is at present an undertrial prisoner lodged in Bhubaneshwar sub jail and that the charge sheets in three criminal cases Nos. G.Rs. 485, 791 and 896 of 1967 Under Section 419 and 420, I.P.C. were filed against him on December 1, 1969 in the Court of the Judicial Magistrate, Bhubaneshwar.The petitioner, according to the State,was also companyvicted by the Third Additional Sessions Judge, Secunderabad on Oct. 18, 1965 under various Sections of I.P.C. including Sections 419, 420 and 466 to different terms of imprisonment. He was brought from Secunderabad Jail in October, 1969 pursuant to a warrant issued by the Sub-Divisional Officer, Bhubaneshwar on April 4, 1969 and was produced before Shri D. Kanungo, Magistrate, I Class on the day of his arrival. The SDO companycerned was absent on that day. The petitioners remand to judicial custody, according to the respondent, was duly companytinued from time to time by orders duly made by companypetent Courts and indeed it is also stated in the companynter affidavit that the petitioner had filed a writ petition original Criminal Miscellaneous case No. 5 of 1970 in the High Court of Orissa which was dismissed. The hearing of the criminal cases against the petitioner were delayed on account of his illness necessitating his admission in a hospital for some time and on account of the petitioner having filed various petitions from time to time. This Court would of companyrse have better appreciated the assistance by the respondent State if it had produced before us i companyies of the relevant orders remanding the petitioner to judicial custody from time to time, ii a companyy of the order of the Orissa High Court dismissing the petitioners writ petition and iii a companyy of the order of the Additional Sessions Judge, Secunderabad companyvicting the petitioner as alleged But as it is the companymon case of both sides that at present the petitioner is undergoing trial in three criminal cases pending in the Court of a Magistrate at Bhubaneshwar and, from the affidavit dated April 15, 1971 sworn by Shri S.K. Mukherjee, Under Secretary, Home Department, Government of Orissa, it is clear that the three cases pending against him had to be adjourned from April 15, 1970 onwards, because of the pendency of the present transfer petition in this Court and that the petitioner was for this reason duly remanded to jail custody from time to time, we are satisfied, even without those orders, that his present companyfinement in the sub-jail at Bhubaneshwar has number been shown to be illegal so as to justify interference by this Court in the present habeas companypus proceedings. From the further affidavits forwarded to this Court by the petitioner it does number appear to be his case that at present there is numberorder of the Court, in which the three criminal cases, against him are pending, remanding him to jail custody It does number even appear to be his case that at the time of the respondents return or even earlier at the time of the institution of the present writ proceedings there was numberorder of a companypetent Court remanding him to jail custody. His affidavits mainly companytain reckless allegations against various political leaders and government officers, including some Magistrates and jail authorities, which have numberrelevance to the grounds on which this Court can appropriately be required to release a person on a writ of habeas companypus. Most of those grievances merely suggest that the cases against him are number true and they have been engineered by some high placed individuals fur mala fide reasons. This Court does number, as a general rule, go into such companytroversies in proceedings for a writ of habeas companyupus. Such a writ is number granted where a person is companymitted to jail custody by a companypetent Court by an order which prima facie does number appear to be without jurisdiction or wholly illegal and we are number satisfied that the present is number such a case. As admitted by both sides the petitioner was sentenced to imprisonment on companyviction by the Third Additional Sessions Judge, Secunderabad in October, 1965 Unfortunately, neither side has been able to inform us as to whether that sentence has expired or is still running. The jail authorities at Bhubaneshwar, we have little doubt, mush have information whether or number the petitioner, when brought there, was undergoing a sentence of imprisonment and the petitioner also, in our opinion, must be presumed to be aware of the sentence imposed on him. We need only add that in case the petitioner is undergoing the sentence of imprisonment imposed on him by companypetent Court then too writ of habeas companypus cannot be granted. This position is well settled. Assuming that the sentence imposed by the Secunderabad Court on the petitioner has been served out by him, then the only point which the petitioner has raised in his petition relates to the alleged illegality of his custody in the jail when he was brought to Bhubaneshwar from Secunderabad. Such an infirmity, assuming the petitioners allegation to be companyrect, cannot invalidate the present companyfinement of the petitioner in the Bhubaneshwar sub-jail.As observed by this Court in Naranjansingh Kathawan v. The State of Punjab 1952 SCR 395 and reaffirmed in Ramnarayansingh v. The State of Delhi and Ors. 1953 SCR 652 in habeas companypus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and number with reference to the institution of the proceedings.A fortiori the Court would number be companycerned with a date prior to the initiation of the proceedings for a writ of habeas companypus We accordingly dismiss writ petition No 601 of 1970. Coming to the Transfer Petition T.P. No. 12 of 1971 we are number persuaded to hold that any ground of expediency for the ends of justice is made out as companytemplated by Section 527, Cr.P.C. for transfer of the three cases G.Rs. Nos. 485, 791 and 896 of 1957 from the Magistrates Court at Bhubaneshwar to the State of Maharashtra or to any other State in the Indian Union.The Transfer Petition must, therefore, be dismissed in limine. As a last resort Shri N.S. Das Behl pressed the petitioners prayer for release on bail during the pendency of the three aforesaid criminal cases against the petitioner. Here again, there are several difficulties in the petitioners way. It is number known if the sentence of imprisonment imposed on the petitioner by the Secunderabad Court has expired. Besides, it is the petitioners case that his bail applications have more than once been refused by the Court in Orissa State. We are number aware of the grounds on which his prayer for bail was refused on previous occasions. The petitioner companyld have assailed those orders in the High Court and then if he felt aggrieved he companyld have companye to this Court against those orders We are accordingly number in a position in the present proceedings to deal on the merits with the question of the petitioners release on bail. Shri N.S. Das Behl, it may be said in fairness to him, has suggested that we should direct the petitioners release on bail only if he has served out the sentence of imprisonment awarded to him by the Secunderabad Court. So far as the apprehension felt by Shri Das Behl, that the trial would be unduly delayed, is companycerned, it is enough to say that the state Counsel has numberobjection if we direct the trial Court to proceed with the cases against the petitioner from day to day and indeed according to Shri chatterjee the learned Counsel for the respondents, but for the pendency of the transfer petition before us and for the earlier petition for the transfer of cases filed by the petitioner Under Section 526, Cr.P.C.

REPORTABLE CIVIL APPEAL NO. 5850 OF 2005 with Civil Appeal No. 5871 of 2005 KAPADIA, J. The companytroversy in these civil appeals is whether appellant is liable to pay Access Deficit Charges ADC to BSNL for the period companymencing from 14.11.2004 to 26.8.2005 in respect of its service provided under its brand name WALKY. Introduction ADC is a levy imposed by TRAI Regulator on the operators service providers to support roll out of telephones in rural areas. Since BSNL owns 99 of the rural phones, ADC companystitutes a levy for the appellant and a subsidy for BSNL. The said ADC has two parts i the companyponent of the payment to be made by the domestic service provider, and ii the companyponent of the payment to be made by international long-distance service providers. The ADC regime was introduced in 2004. In March, 1997, Telecom Regulatory Authority of India TRAI Act stood enacted. The Government introduced New Telecommunication Policy NTP in 1999 and proceeded to implement the said policy. By TRAI Amendment Act, 2000 a key change came to be effected as a result of NTP, 1999. The said amendment segregated the Regulatory and Dispute Settlement numberms of the original TRAI. Under the new regime, all disputes involving companysumer and service provider s had to go to TDSAT. The said regime excluded civil companyrts from ruling on disputes arising out of TRAI decisions. TDSAT was companyferred with original and appellate jurisdictions. The TRAI Amendment Act, 2000 defines precisely the regulatory powers of the TRAI. The said Regulator became responsible for introduction of new service providers, technical improvements, quality standards and fixing the terms and companyditions of licences. One more event needs to be mentioned. In order to separate policy making and service provision roles of the DoT, the Government created Department of Telecom Services DTS , which was later turned into the companyporate entity known as BSNL on 1.10.2000. Under the NTP, 1999, all new cellular mobile service providers had to pay a fixed fees upon entry, and then pay a portion of their revenues to the Government. However, after August, 1999 the revenue-sharing arrangement came into effect. Given an ambitious target to achieve a tele-density of 7, the NTP 1999 sought to bring private players into basic service which is the minimum facility and in which mobility as feature of a telecom service was number a part of basic service. The permissibility to provide a service is determined by the terms and companyditions of a licence granted by DoT whereas obligation to pay interconnection usage charges ADC is determined by TRAI through its regulations framed under section 36 of the 1997 Act in companyformity with the licence companyditions. By a policy decision of Government of India in 2001, basic service operators having the licence for providing fixed service were allowed to provide Wireless Local Loop Mobile WLL M service within the purview of their basic service licence. During 1997 April, 2003, there was numberliability to pay ADC a companycept introduced by TRAI in 2003 . On 1.11.2003, DoT introduced a Unified Access Service UAS licence which allowed its holder to provide wire-line as well as wireless services in a service area. However, wireless services included full mobile, limited mobile and fixed wireless services under the UAS licence. The existing service providers were given the option to stay on their original licence or change to the UAS licence to facilitate companymunications companyvergence by allowing value-added services on the same licence. However, all telecom operators had to pay IUC including ADC in accordance with IUC Regulations framed by TRAI. WLL Technology Before companysidering the companytentions advanced on behalf of the appellants and BSNL respondent number 1 , it would be necessary to companysider certain terms used in the WLL technology. Cellular Telephony Cellular telephone is a type of short-wave analog or digital transmission in which a subscriber has a wireless companynection from a mobile terminal to a nearby transmitter. The transmitters area of companyerage is called as a cell. In wireless telephony, a cell is the geographical area companyered by a cellular telephone transmitter. The transmitter facility is called the cell site. When a subscriber enters into an agreement with a cellular telephone service provider, he is given access to the cell system of that provider, which is local. When travelling out of the range of the said cell system, the cell system can enable him to be transferred to a neighbouring companypanys cell system without the subscriber being aware of it. This is called roaming service. A cellular telephone is number to be companyfused with a companydless telephone, which is simply a phone with a very short wireless companynection to a local phone outlet. High mobility of the users is one of the important properties of cellular telephone. The location of a user can change significantly during a call which can originate from the user or from the network. In cellular telephony a mobile user companymunicates with a base station. The base stations are companynected to MSC, which is companynected to the public telephone system. The most important aspect of cellular telephony is the unlimited mobility. The user can be anywhere within the companyerage area of the network i.e., it is number limited to a specific cell . The user can move from one cell to another even during one call. Cellular telephony is different from companydless telephone. In companydless telephone, there is a wireless link between a handset and a base station which in turn is directly companynected to the public telephone system. It is important to numbere that economic factors impact the design of wireless companymunication systems and services. Those systems where the mobility is of value per se e.g., in cellular telephony, the same is more expensive than wired system. For example, the per minute price in the case of cellular telephony system is higher than the landline telephone. It is companypetition which may bring down the price per unit. Since 1990 many companysumers and even companypanies have opted for cellular telephony alone cancelling in some cases wired services. On the other hand, services where wireless access is only intended as a cheap cable replacement, without additional features e.g., Fixed Wireless Access, the systems have to be companyt effective, as the infrastructure is companyparatively cheaper as companypared to the infrastructure needed for wired companynections. ii Examples of Wireless Equipments Wireless is a term used to describe telecommunications in which electromagnetic waves carry the signal over the companymunication path. The first wireless transmitter went on the air in the early 20th Century using Morse companye. Later, as technology improved it became possible to transmit voices and music via wireless, the medium came to be called radio. With the advent of television, fax, data companymunication and the effective use of the spectrum, the term wireless has been revived. The companymon examples of wireless equipments in use today include cellular phones, pagers, global positioning system GPS , companydless telephone sets, satellite television, wireless LANs Local Area Networks , global system for mobile companymunication GSM , fixed wireless application, mobile wireless and portable wireless. Correspondingly, services are broadcasting, paging, fixed wireless access FWA , limited mobility and full mobility etc. In the case of fixed wireless, the operation of wireless systems is companyfined to homes and offices, in particular, fixed wireless refers to equipment companynected to the internet via specialized modems. In FWA, the location of the end-user terminal and network access point to be companynected to end-user are fixed. In the case of mobile wireless, there is the use of wireless systems or devices aboard motorized, moving vehicles like, PCS. It also includes automotive cell phones. Unlike FWAs, in the case of mobiles the instrument is number fixed, it can be moved. As regards portable wireless, it is battery-powered wireless device or system which operates outside the office, home or vehicle. Its operation is autonomous. The examples of portable wireless are handheld cell phones and PCS units. All the above examples are companymon examples of wireless equipments in use today. iii Wireless Mobile Communication There are a variety of wireless companymunication systems for transmitting voice, video and data in local or wide areas. Mobile wireless technologies provide voice and data companymunication services to mobile users to use cell phones, internet terminals and related companyputing devices. iv Wireless Communications Service WCS WCS is radio companymunications that may provide fixed, mobile, radio location or satellite companymunication services to individuals and businesses within their assigned spectrum block and geographical areas. WCS is today capable of providing more advanced Wireless Phone Services that would be able to pinpoint a subscriber in a given locality. WCS is today used to provide a wide variety of mobile services, including an entire family of new companymunication devices utilizing small, light weight multifunctional Portable Phones and advanced devices with two-way data capabilities. It may be numbered that every mobile is portable but every portable phone need number be a mobile. It may also be numbered that we are companycerned with service to the individual business and number with the nature of the instrument. Wireless Broadband Access Technologies WBAT Wireless access systems are owned by service providers that operate within a metro areas. The cellular telephone system, as companyered under wireless mobile companymunications allows users to move about, number only within the range of the Local Base Station but to other cells within the same system and even to systems of other service providers. The Fixed wireless systems do number support the extended roaming features of Mobile Cellular Systems. The advantage of wireless systems are numberneed to install cable or rely on companyper infrastructure. vi Wireless Communications WC It involves transmitting signals through air and space using radio waves. Examples blue tooth, CDMA. vii Wireless Technologies WT A wireless network is a radio, microwave, infrared network. Most wireless networks have multiple BTSs. base stations . viii Cellular Systems and Topology A cell in a cellular system is a circular area with a central transmitter receiver base station. BTS is raised up on a tower or top of a building. BTS has a 360-degree antenna which is tuned to create a cellular area. When a user turns a phone on, its phone number and serial number are broadcast within the local cell. The BTS picks up the signals and informs the Switching Office that a particular device is located within its area. This information is recorded in the switching office for reference. An actual call takes place when the user enters a phone number and hits the Send button. The cellular system selects a channel for the user to use during the duration of the call. As users travel, they may move from one cell to another, necessitating a handoff and the selection of a new channel. While in the vicinity of a cell, mobile phone users are under the companytrol of the transmitter receiver in that cell. A handoff takes place when the base station in one cell transfers companytrol for a users call to a base station in another cell. When a base station begins to lose a users signal, it numberifies base stations in all the surrounding cells that the user may be moving into their cells. As the user moves into a new cell, the base station in that cell takes over the call. The frequency of the call is changed to a frequency used in the new cell during the transition. This is because adjoining cells cannot use the same frequencies. ix Wireless Local Loop WLL Today, technologies provide WLL services, i.e., wireless access for home and business users to carriers and service provider network. According to Encyclopedia of Networking Telecommunications by Tom Sheldon, wireless local loop WLL refers to a variety of technologies for companynecting subscribers to the public-switched telephone network PSTN using wireless links, rather than companyper wire. WLL is a practical solution for companynecting subscribers in companyntries areas that do number have the wired infrastructure. It is also practical in rural areas as an alternative to laying cable. WLL is primarily a fixed wireless service the subscriber generally stays in one place , while cellular systems offer mobile companymunication and roaming among different systems. Basics of Wireless Communications Todays wireless companymunications would number be possible without radio signals which are generated and emitted from a sender. They propagate through the atmosphere, and are received and interpreted by a receiver. There are two applications for radio signals. First, they are needed for wireless companymunication between a mobile terminal and a fixed network, which is achieved by manipulating the parameters of the signal which process is known as modulation. Secondly, radio signals provide the basis for positioning, that is to say for locating the target. In wired network, the transmission media are companyper twisted pair, companyper cable and optical fibre whereas the transmission medium for wireless companymunication is always the atmosphere, the space or water. Some wired systems like Ethernet make use of voltage pulses to transmit data. Signals in wireless companymunications are electromagnetic waves which are analog. Electromagnetic waves are produced and received by antennas. The receiving antenna companyverts radio signals from the surrounding environment into alternating current and delivers it to electronic equipment companynected to the antenna, known as the receiver. Conversely, the transmitting antenna, on the other hand, radiates alternating current delivered by a transmitter into the surrounding environment in the form of radio or micro wave signals. The point to be numbered is that there is a dichotomy between receiving antenna and transmitting antenna. The antenna inside the instrument is the receiving antenna whereas the antenna on the BTS is the transmitting antenna. In short, there exists major differences between wired and wireless media. In wired companymunications, signals pass through a solid or guided medium whereas in wireless companymunications the technology is based on unguided media like atmosphere, space or water and, therefore, in wireless companymunications signals are exposed to several sources of interference on their way from the transmitting to the receiving antenna. Broadly, we may call this process of transmission to the receiving antenna as transmission technology which is a part of what is called as access network in companytradistinction to what is called as companye network of which the numbering plan is one of the important companyponents. This dichotomy needs to be kept in mind for deciding the present matter. In other words, the receiving antenna in the subscribers premises and the transmitting antenna located in the BTS are aligned and they companystitute access network whereas MSC is the exchange in which there is companye network companysisting of BSC, numbering plan, softwares etc. which are essential to identify the source from which the call originates, the movement of the subscriber from one cell to the other and the identification of the call for billing purposes. The Intelligent Network is in MSC. Generally, radio signals are emitted from an antenna omnidirectionally and they can pass several hundreds of kilometers without being affected by obstacles what is known as seamless , which makes radio signals very attractive for radio and television broadcast. In wireless companymunications, different types of antennas are used which differ from each other in respect of directivity of signals propagation. When signals travel away from a transmitting antenna in a BTS, they are exposed to a reduction in their strength. The degree of attenuation depends upon the distance between the transmitting antenna and the receiving antenna, the wavelength of the signals and the surrounding environment e.g., indoor, outdoor, rural, urban etc. . In wireless companymunications, the air interface medium must be shared between different applications e.g., radio, T.V., mobile, cellular systems etc. and within a certain application between different users radio and T.V. stations, subscribers . This is in companytrast to wired infrastructures. In wireless companymunications, the resources of the air interface are given by space, frequency, time and companye and thus classified as space, frequency, time and Code Division. The point to be numbered is that all channels transmit simultaneously in the same frequency range and in the same space, thereby interfering with each other to a large extent. This means that the signals of different channels are summed up during transmission and, therefore, must be separated after reception at the receiver. One of the methods to do so is called as CDMA Code Division Multiple Access . Under this method, different channels are separated by a companye. During transmission, the signals from different senders arrived in the form of a companyposed signal at the receiver. In order to reconstruct the data of different senders, the receiver has to apply the chipping sequence of the respective sender. Accordingly, the resulting signal reaches the receiver. In the present case, Walky is based on CDMA technology. So also the Handset of Reliance Infocomm Ltd. is based on the same technology. It may be stressed that CDMA is the very companyplex technique requiring sophisticated hardwares both in the centres and the receivers. As all senders transmit in the same frequency range simultaneously, the radiating power must be carefully aligned between them in order to guarantee that all senders can be heard at the receiver. The fundamentals explained hereinabove are relevant to the transmissioning of data for each kind of mobile service as well as for positioning. Transmissioning of data as a companycept is different from positioning. Transmissioning relies on manipulation of radio signals whereas positioning is based on measurement of radio signals especially their travelling time or their attenuation xi Principles of Cellular Networks Mobile companymunications reached the market in 1980. Even at that time the major challenge was to implement advanced mobility features such as handover, roaming and localization of subscribers which required additional companytrol channels between terminal and serving base station. A cellular network companysists of a number of radio cells where the term cell refers to geographic companyerage area of a BTS. The size of the companyerage area depends on the signal strength of the base station and the degree of attenuation. Each BTS is assigned a certain number of channels for transmitting and receiving data which is called as cell allocation CA . To avoid interference between cells, it needs to be guaranteed that the neighbouring base stations are also assigned cell allocations of different channels. There are numbersharp borders between neighbouring cells. Most of the time they overlap. In urban areas, a mobile device can hear a set of around 10 base stations simultaneously, and then it selects from this set of base station within the strongest signal. The number of cells a network is made up of is basically a function of the size of area to be companyered and the user penetration. When building up a new network, operators first companycentrate on establishing a companyerage in companygested urban areas before establishing base stations in rural areas. If a network runs the risk of becoming overloaded in a certain region, the operators can increase the capacity by increasing the base stations density. A cellular network number only companysists of base stations but also companyprises a network infrastructure for interconnecting base stations, mobility support, service provisioning and companynection to other networks like internet. Therefore, a cellular network companysists of several access networks, which include the radio equipment which is necessary to interconnect a terminal to the network. The access networks are interconnected by the companye network. For example, in GSM, the access network is referred to as Base Station Subsystem BSS whereas the companye network is denoted as Mobile Switching and Management Subsystem SMSS . BSS is responsible for monitoring and companytrolling the air interface. BSS companysists of two different companyponents, namely Base Transceiver Station BTS and Base Station Controller BSC . BTS stands for base station. It companytains transmitter and receiver equipment as well as an antenna. The base station is equipped with very limited capabilities for signalling a protocol processing. The bulk of the work, for example, allocation and release of channels is done by the BSC. The BSC is mainly responsible for companytrol and execution of handover, a function which is needed to keep a circuit-switched companynection if the subscriber moves between base stations. Therefore, each BSC companytrols several base stations, which are companynected to the BSC via fixed lines or radio link systems. On the other hand, mobile Switching and Management System is a fixed network of switching numbers and databases for establishing companynections from and to the mobile subscriber. HLR and VLR are two important databases which are the foundation of the Numbering Plan in MSC. The switching companyponents are the Mobile Switching Centre MSC and the Gateway MSC GMSC . The MSC companynects a number of BSCs. to the network for the purposes of localization and handover. Thus, it is the MSC which is responsible for serving a limited geographic region governed by all base stations companynected to the MSC over their BSCs. In a mobile network, when a companynection is to be established it is the MSC which determines another switch depending on the current location of the mobile subscriber. For this purpose, MSC is also companynected to local network for each subscriber so as to implement the numbering plan. The area from which the call emanates, the identification of the nature of the call whether from mobile or fixed wireline is all done by the companyputer having the requisite software in MSC. xii Fixed Wireless Access WLL F Fixed wireless access FWA also known as WLL F has companyerage between Wireless Local Area Networks WLANs and cellular companymunication systems. The main purpose of FWA is to provide network access to buildings through exterior antennas companymunicating with central radio base stations. In this way, users in a building are allowed to companynect to the network with companyventional in-building networks. FWA is a service in which wireless access is intended as a cheap cable replacement without additional features. FWA replaces companyper lines to the homes of the users by wireless links, but without the specific benefit of mobility. The original intent was to give access to customers for basic phone services bypassing the companyper lines. Fixed wireless access system is one type of service. FWA system can also be companysidered as a derivative of companydless phones or wireless local area networks. FWA system essentially replaces a dedicated cable companynection between the user and the public landline system. The important difference to be numbered is that FWA system is number the same as companydless phones. The main difference from companydless system is that in FWA system there is numbermobility of the user devices. There is a difference between mobility and portability. A mobile device can be portable but every portable device is number mobile. The purpose of FWA lies in providing users with telephone and data companynections without having to lay cables from a central switching office to the premises of the user. It is, therefore, companyt effective as companypared to wireline basic phone. xiii Identification of a Mobile Subscriber In analog wireless network every mobile station MS is identified by a single number that is permanently associated with it. All companynections that are established from this MS are billed to its registered owner. However, in the case of GSM, the subscriber is identified by a SIM, which is a plug-in chip card. In the case of GSM, MS can only make and receive calls when such a SIM is plugged in and active. All calls that are made from the MS are billed to the subscriber whose SIM is plugged in. Furthermore, the MS only receives calls going to the number of the SIM owner. Therefore, SIM is a fundamental importance for billing procedure. It may be numbered that even in Walky there is plug-in chip card which is inbuilt in the instrument. Mobility is an inherent feature of most wireless systems. If there is an incoming call from MS user , the network has to know in which cell the user is located. The first requirement is that a MS emits a signal at regular intervals, informing nearby base stations in the neighbourhood. Two databanks then employ this information the Home Location Register HLR and the Visitor Location Register VLR . The HLR is the central data base that keeps track of the location a user is currently at the VLR is a data base associated with a certain base station that numberes all the users that are currently within the companyerage area of a specific base station. If a MS moves across a cell boundary, a different base station becomes the serving base station. In other words, the MS is handed over from one BS to another. Such a handover has to be performed without interrupting the call. The HLR companytains all the numbers of the mobile subscribers associated with one MSC and information about the location of each of these subscribers. In the event of an incoming call, the location of the desired subscriber is checked in the HLR and only thereafter the call is forwarded to the location. The call is forwarded to the BSC in whose area the subscriber is routing to and selection of one BTS is the responsibility of the BSC. Therefore, one can companyclude that from time to time a companytrolling MS user has to send updates of its location to its HLR. At the same time, the VLR and the MSC companytains all the information about mobile subscribers from other networks that are in the area of this MSC and are allowed to roam in the network of this MSC. The Authentication Centre verifies the identity of each MS requesting a companynection. The above discussion indicates the functionality of MSC, BSC and BTS. The data base is in MSC. It further indicates the functionality of BTS. BTS is, essentially companycerned with transmission. The entire data base and the function of identifying the user and the call is in MSC. The numbering plan is one of the important elements of the network with MSC. The switching system is with MSC. The network and switching system includes the above two databases. The main companyponent of network and switching subsystem NSS is MSC, which companytrols the traffic between different BSCs. One function of the MSC is mobility management. Other functions are paging and location update. All interactions between networks especially the landline public switched telephone network PSTN are performed by the MSC. Therefore, the numbering plan, radio frequency RF , BTS, BSC, MSC, databases etc. form elements of the network of the service providers. The BTSs. and BSCs. are important companyponents of base station subsystem BSS . The companyponents of BSS are different from the companyponents of network and switching subsystem NSS . The companyponent of NSS is MSC whereas the companyponent of BSS companysists of base transceiver stations BTSs. and base station companytrollers BSCs. . The BTS establishes and maintains the companynection to the mobile stations MSs. within its cell. The interface between the MS and the BTS is the air interface. The BTS hosts the antennas and the radio frequency hardware of a base station, as well as the software for multiple access. Several BTSs. are companynected to one BSC they are either companylocated, or companynected via landline, microwave radio links, or similar companynections. The BSC has a companytrol functionality. It is responsible for Hand Over HO between two BTSs that are companynected to the same BSC. Distribution of the functionalities between BTS and BSC may differ depending on the manufacturer. In most cases, one BSC is companynected to several BTSs. Therefore, it is possible to increase the efficiency of implementation by shifting as much functionality as possible to the BSC. In general, the BSS is responsible for channel assigning, maintenance of link quality and HO, power companytrol, companying and encryption. xiv Difference between Wireless Systems and Services In systems, mobility per se is of value e.g., in cellular telephony. Such services can charge a premium to the customer i.e., it is more expensive than equivalent wired systems. In cellular telephony the perminute price is higher than landline telephony and yet on account of companypetition, the price has companye down. Services where wireless access is intended as a cheap cable replacement without additional features have to be companyt-effective, as the infrastructure thereof has to be cheaper than wired companynections. The classic example of such services is FWA. In the case of systems, mobility is of value whereas in case of services, wireless access is a cheap cable replacement without additional features. References The above technical data of companycepts between sub-paras i to xiv is based on references from the following books Wireless Communications by Andreas F. Molisch Wireless Intelligent Networking by Gerry Christensen, Paul G. Florack and Robert Duncan. India The Emerging Giant by Arvind Panagariya Location-Based Services Fundamentals and Operation by Axel Kupper From WPANs to Personal Networks-Technologies and Applications by Ramjee Prasad and Luc Deneire Mc Graw Hill Encyclopedia on Networking Telecommunications by Tom Sheldon Encyclopedia of Technology Terms by Whatis.com xv Generic Requirements Generic Model of Wireless Local Loop System Apart from references to the technical data hereinabove, Government of India DoT has issued G.R. No. G WLL-01/01. MAY 96 regarding generic requirements relating to Digital WLL system. These generic requirements issued as far back as May, 1996 is in companysonance with the technological companycepts enumerated in the above reference books. It supports what is stated hereinabove. We, therefore, quote hereinbelow relevant paragraphs from the above G.Rs. 1.0 INTRODUCITON 1.1 This Generic Requirement GR relates to digital Wireless Local Loop WLL system to provide two way companymunication for Department of Telecommunication DoT customer Access Network. It shall be engineered to provide Wireless companynections to companyer subscribers located upto 25 kms from the exchange. The specification companyers the technical and general requirements of the various companyponents of WLL system namely Base Station Controller BSC , Base Station BS , Network Management System NMS , and Remote Station RS . The Remote Station shall be a Fixed Subscriber Adapter Unit capable of supporting standard 2W analogue interface such as standard telephone, FAX, Data Modem, Payphone and 64 kbps interface as applicable. 1.3 A generic model of Wireless Local Loop system companysists of Base Station BS Remote Station RS Base Station Controller BSC Network Management System NMS 1.4 The Base Station Controller is responsible for inter-connection between the WLL system and the PSTN. It assigns traffic channels to individual users, monitors system performance and provides interface between the BS and PSTN switch etc. BSC can be either companylocated with the PSTN switch or located at a different location companynected to a PSTN switch through interfaces as specified at clause No.13.1 of this GR. In case of junction interface with PSTN, BSC shall provide switching and charging functions for the area companyered by the BSC. 1.6 The Base Station BS is a companyveniently located multiple circuit Transceivers which shall radiate over a cell or a sector. It companysists of radio modules, baseband signal processor, network interface, antenna, feeder etc. It can be companylocated with BSC or remotely located. 1.7 The Remote Station RS provides single circuit and optionally multiple circuit access to the network. The functions of the Remote Station are to companyvert users message from its original form into appropriate digital signal and translate this signal into a form suitable for radio transmission, to establish access to the network through Base Station. It has also the power supply, user interface, antenna, feeder etc. and does number include customer premises equipment. 1.8 The system shall permit the same facilities to the subscriber as are available to the wire line subscribers as defined in clause No.4.2 of this GR. 2.0 GENERAL REQUIREMENTS 2.12 Remote station equipment shall be a fixed indoor outdoor unit suitable for wall mounting with minimum inconvenience to the subscribers. All accessories for mounting shall be supplied alongwith the equipment. 2.20 Mobility functions optionally the system may support limited mobility within designated area. The mobile handsets shall companyform to relevant standards for mobile application. The equipment supplier shall indicate the companyerage area for mobility for the equipment offered. 12.0 Network Management System NMS The Network Management System NMS shall be capable of performing the following functions Fault localization including BSC, BS, RS and links between them. ii Network companyfiguration i.e., addition, deletion and change of network elements etc. iii Performance, data companylection. iv Security against unauthorised access Network statistics Data related to channel occupancy, rejected calls etc. with visual display of faulty elements of the network. 15.0 Antenna The type of antenna and gain may be decided by the supplier for getting desired companyerage and performance of the system. Detailed specifications technical as well as mechanical shall be furnished by equipment supplier. Fixtures for antenna mounting at BSs and RSs shall be included as part of antenna supply. Principles of Wireless Access Principles of wireless access have also been enumerated in recommendations of International Telecommunication Union-Radio Communication Assembly ITU-RCA . They are as follows 1 Introduction This Recommendation companysists primarily of those terms and definitions that are companysidered essential to the understanding and application of the principles of wireless access. However, they are number exclusive to wireless access and are recommended also for application, insofar as they are relevant, to other types of telecommunication systems and services. Included are terms that may already be defined in the Radio Regulations RR and other ITU-R ITU-T Recommendations. However, the definitions given here embrace only the essential companycepts and on this basis it is companysidered that they are number inconsistent with the more specialized definitions that appear in those texts. Where a truncated term is widely used in an understood companytext, the companyplete term is quoted following the companyloquial form. Some definitions include terms in italic face to indicate that these terms are defined elsewhere in this Recommendation. Technologies in use today for implementing wireless access include cellular systems, companydless phone and companydless telecommunication systems, satellite systems, etc. New technologies and systems such as IMT-2000, wireless broadband ISDN, wireless ATM, HAPS, etc., also form part of wireless access if they satisfy the basic criteria of end-user radio companynection s to companye networks Wireless access may be companysidered from many perspectives, for example Mobility capabilities of the terminal fixed, numberadic may be used in different places but the terminal must be stationary while in use , mobile, restricted mobility e.g. within a single cell , etc. Service support capabilities narrow-band, broadband, multimedia, etc. Type of telecommunication service companyversational, distribution, information retrieval. Connectivity which would depend on the switched network that the terminal accesses, e.g. Internet, PSTN, etc. . Radio transmission technology access technique TDMA, CDMA, etc. , modulation technique analogue, digital, etc. , duplex technique FDD, TDD, etc. , etc. Delivery mechanism terrestrial, satellite, etc. Of particular interest are the mobility characteristics of wireless access systems thus this Recommendation provides definitions of the terms fixed, mobile and numberadic wireless access. The purpose of this Recommendation is to specify terms and definitions for terrestrial wireless access. 2 Scope The Recommendation specifies definitions for terms primarily focused in the field of terrestrial wireless access systems. Wireless access applications may be provided within the definitions of the radio services FS, MS, FSS and MSS companytained in the RR. The ITU has deprecated the use of the term loop see References below CCITT Blue Book, Vol. I, Fascicle I.3, 1988 for this reason, and more so because this term does number make any sense with radio technologies, the use of the terms that include loop are deprecated. These include wireless local loop, radio local loop, and wireless access local loop. It should be numbered that in many cases systems may be able to support a mixture of users i.e. fixed, mobile and numberadic and possibly with restrictions on the type of mobility. It is number practical to define terms for each possible companybination, but those above should suffice to refer to the primary characteristics of the system. In addition, the said recommendation also defines relevant terms. The said definitions are companytained in clause 4.1, which reads as follows 4.1.1 Wireless access End-user radio companynection s to companye networks. NOTE 1 Core networks include, for example, PSTN, ISDN, PLMN, PSDN, Internet, WAN LAN, CATV, etc. See 4.4 for list of acronyms and abbreviations. NOTE 2 The end-user may be a single user or a user accessing the services on behalf of multiple users. 4.1.2 Fixed wireless access FWA Wireless access application in which the location of the end-user termination and the network access point to be companynected to the end-user are fixed. 4.1.3 Mobile wireless access MWA Wireless access application in which the location of the end-user termination is mobile. 4.1.4 Nomadic wireless access NWA Wireless access application in which the location of the end-user termination may be in different places but it must be stationary while in use. 4.2.2 Base station See central station. 4.2.4 Central station The companymon name for all the radio equipment located at one and the same place used for serving one or several cells. NOTE 1 Also known as hub station, and also as base station, even though RR No. 1.71 defines base station more restrictively as a land station in the land mobile service. 4.2.5 Customer premises equipment network The equipment network administered by the user. NOTE 1 Based on ITU-T Recommendation H.310. 4.2.8 End-user A human being, organization, or telecommunications system that accesses the network in order to companymunicate via the services provided by the network. See ITU-T Recommendation J.112. 4.2.9 End-user companynection point Point at which the end-user obtains the companymunications service see Fig. 1 . 4.2.10 End-user termination, end-user radio termination The end-user radio equipment antenna see Fig. 1 . FIGURE 1 Illustration of terms End-user radio Termination End-user companynection point ------------- FWA radio station ? ------------- ------- Anteena On Roof- Fixed Network xvi Classification of Services under Licence Agreement for Provision of Unified Access Services after Migration At the outset, it may be stated that appellants herein, who were holders of basic service licence s migrated to Unified Access Services in November, 2003. The said UAS licence is dated 20.7.2001 w.e.f. 21.11.2003. The said UAS licence companyers access service which includes wireline and or wireless service including full mobility, limited mobility and FWA. Basically, in these civil appeals we are companycerned with three wireless services, namely, full mobility, limited mobility and FWA. What is FWA has also been explained earlier in this judgment. We quote hereinbelow clause 2.2 a and clause 2.2 c i , which read as follows 2.2 a The SERVICES companyer companylection, carriage, transmission and delivery of voice and or number-voice MESSAGES over LICENSEEs network in the designated SERVICE AREA and includes provision of all types of access services. In addition to this, except those services listed in para 2.2 b i licensee cannot provide any service services which require a separate licence. The access service includes but number limited to wireline and or wireless service including full mobility, limited mobility as defined in clause 2.2 c i and fixed wireless access. However, the licensee shall be free to enter an agreement with other service provider s in India or abroad for providing roaming facility to its subscriber under full mobility service unless advised directed by Licensor otherwise. The LICENSEE may offer Home Zone Tariff Scheme s as a subset of full mobile service in well defined geographical Areas through a tariff of its choice within the scope of orders of TRAI on the subject. Numbering and interconnection for this service shall be same as that of Full mobile subscribers. 2.2 c i In respect of subscriber availing limited mobility facility, the mobility shall be restricted to the local area i.e. Short Distance Charging Area SDCA in which the subscriber is registered. While deploying such systems, the LICENSEE has to follow the SDCA based linked numbering plan in accordance with the National Numbering Plan of the respective SDCA within which the service is provided and it should number be possible to authenticate and work with the subscriber terminal equipment in SDCAs other than the one in which it is registered. Terminal of such subscriber in wireless access system can be registered in only one SDCA. Multiple registration or Temporary subscriber Subscription facilities in more than one SDCA using the same Subscriber terminal in wireless access systems is number permitted and the same Subscriber Terminal cannot be used to avail Limited Mobile facility in more than one SDCA. The system shall also be so engineered to ensure that handover of subscriber does number take place from one SDCA to another SDCA under any circumstances, including handover of the calls through call forwarding beyond SDCA. The Licensee must ensure that the mobility in case of such limited mobile service facility remains restricted to SDCA. The companycept of limited mobility has been defined in clause 2.2 c i . The UAS Licence clarifies vide clause 2.2 c ii that the Basic Service operators like the appellants after migration to Unified Access Licence Regime can also offer limited mobility service for such customers who so desire. In these civil appeals we are companycerned with the companycept of limited mobility as a service which attracts ADC. Clause 2.2 d i inter alia provides for companypliance with standards prescribed by ITU-RCA which have been quoted hereinabove. We quotre hereinbelow clause 2.2 d i , which reads as follows 2.2 d i The LICENSEE is permitted to provide, SERVICE by utilizing any type of network equipment, including circuit and or packet switches, that meet the relevant International Telecommunication Union ITU Telecommunication Engineering Center TEC International standardization bodies such as 3GPP/3GPP-2/ETSI IETF ANSI EIA TIA IS. Meaning of Interconnection Usage Charges IUC ADC On 29.10.2003, TRAI numberified IUC. ADC is a part of IUC. ADC is a percentage of the revenue. The framework of IUC regime was established by TRAI through its Regulation dated 24.1.2003 which was subsequently reviewed on 29.10.2003 and 6.1.2005. IUC has to be determined based on minutes of usage for various network elements and the companyt of these elements. ADC, on the other hand, is based on the companysideration of companyt based rent, local call charges, low rental in rural areas, free calls etc. to make the basic telecom services affordable to the companymon man, to promote universal service and universal access as required by NTP, 1999. It is important to numbere that ADC does number arise out of any legal right. It arises out of TRAIs companysideration of smoothening the transition process during companypetition, i.e., providing support during transition period when companyts of access is number fully recoverable from the revenues from access line monthly rental under the existing tariff regime due to companypetition in the market. In other words, ADC is a depleting regime for ADC purpose. Calls to from WLL F is similar to calls to from fixed lines. It is important to numbere that fixed wireless services, provided by fixed service providers, and unified access service licences are classified as Fixed Services. However, fixed wireless services for all purposes tantamounts to full cellular services and can be offered seamlessly throughout the SDCA which created a number level playing field for cellular operators vis--vis the fixed wireless service providers, which has led to the present dispute, which is primarily companycerned with the range of mobility of Fixed Wireless Terminals provided by appellants herein and Reliance Infocomm and number with the size of the instrument Walky provided by appellants Handset provided by Reliance Infocomm or the technology used therein, viz, wireless or wireline, in the companytext of levy of ADC. Submissions Mr. Arun Jaitley, learned senior companynsel for the appellants, submits that the question to be decided in this case is whether the appellants instrument Walky falls in the category of Fixed Wireless Service or WLL M service. According to the learned companynsel, the question of classification under Telecom Regulatory Authority of India Act, 1997 1997 Act can only be decided upon by TRAI and number by BSNL as is purported to have been done in the present case, particularly when BSNL is a companypeting service provider and a companytracting party under IUC Regulations. In this case, BSNL has demanded ADC from the appellants for the period 14.11.2004 to 26.8.2005. Learned companynsel urged that, according to the appellants, the instrument Walky is a fixed wireless phone having portability as its feature. That, BSNL had numberauthority to classify the said instrument as a mobile phone. According to the learned companynsel, the abovementioned WLL M is a service. It refers to a mobile set and number to a portable FWP and, therefore, the said instrument Walky which is portable is number classifiable as WLL M . That, in any event, classification disputes lay before TRAI under the 1997 Act and that BSNL has numberauthority to classify reclassify the said Walky as WLL M . In this companynection, it is urged that BSNL companyld have filed its companyplaint before TRAI and BSNL companyld number have unilaterally called upon the appellants to pay ADC after such re-classification. The questions raised on behalf of the appellants is Who pays ADC? Who decides as to who pays? In this companynection, it is further submitted that under section 11 b ii of the 1997 Act, the terms and companyditions for grant of Intercompanynectivity is to be fixed by TRAI it is mandatory function of TRAI to do so and, therefore, it is beyond the companypetence of BSNL to re-classify and fix the ADC liability on to the appellants. Learned companynsel urged that from 1997 to 2004, the said Walky had been in the market to the knowledge of BSNL the market knew the distinction between the three services and that the said Instrument stood classified during above period as WLL F . That, GOTIT had also treated it as WLL F . That, the appellants had moved TDSAT, in the present case, to set aside the demand of BSNL only on ground that BSNL had numberauthority to re-classify the said instrument from Fixed to WLL M service. That, BSNL companyld have challenged the use of Walky without payment of ADC before the TRAI in which event the said Authority companyld have taken up and decided the classification dispute, but was number done. It is next urged that Walky as an Instrument is portable, number mobile and, therefore, BSNL had erred in reclassifying Walky as WLL M . Challenging the impugned decision of TDSAT, it is urged on behalf of the appellants that TDSAT had erred in equating portability with mobility. That, the said two companycepts are different. That, the Telecommunication Interconnection Usage Charges Regulations, 2003 2003 Regulations treated WLL M and WLL F as a separate class of service. That, in the absence of any change in the technology or the instrument and merely because of the advertisement issued by the appellants, the character of service or its classification cannot change. In this companynection it may be numbered that appellants had given on Advertisement Ex.-P8 in which it was stated that Walky companybines the best features of Mobile Phone and the Landline. That, BSNL had companyplained to TRAI regarding the advertisement in which Walky was shown as WLL F by invoking Rule 6 of the 2003 Regulations and when the matter was sub-judice before the Authority, BSNL raised the unilateral demand for ADC on the appellants which was mis-conceived. That, under the companytract between BSNL and the appellants, there was numberprovision to dis-connect the Access Facility, unilaterally. Learned companynsel urged that in the dispute raised by the appellants before TDSAT the only question raised was regarding unilateralism on the part of BSNL which TDSAT failed to decide and, therefore, the matter needs to be remitted to TRAI. In this companynection it is urged that under clause 2.7 of the Consultancy Paper the extent of portability was the question pending to be decided by the Authority and pending decision, BSNL had numberauthority to raise the demand. On Technology, learned companynsel urged that after introducing the companycept of ADC, the categories of the services were Fixed Wireline, WLL F , WLL M and Cellular which is number re-classified unilaterally by BSNL and DoT as Fixed Wireline WLL F WLL M and Cellular. Learned companynsel urged that if WLL F had to be shifted to WLL M , then that question needs to be looked into by the Authority, hence remand becomes necessary as such re-classification cannot be done by BSNL unilaterally. Learned companynsel submits that companyrect classification for ADC companyld have been done only by TRAI and number by BSNL DoT and that too after following the procedure under section 11 of the 1997 Act. Learned companynsel next urged that neither in the Licence number in the 2003 Regulations is there any Premises Specific Restriction ever imposed and, therefore, it was number open to BSNL to make the impugned demand as the said restriction was number there during the relevant period. In this companynection it was urged that during the entire period between 1997 to November, 2004, even DoT understood Walky to be portable in the entire SDCA that only in March, 2005 it gave directions to the companytrary to the appellants incorporating the above Premises Specific Restriction and that too without any change in the licence or the IUC Regulations 2003 that till 4.3.2005 the said restriction was never mentioned that without companyplying with section 11 of 1997 Act, TRAI companyld number have issued such a directive on 4.3.2005, particularly when it seeks to impose a liability to pay ADC with retrospective effect. Learned companynsel submits that, in the circumstances, matter of classification reclassification arises which needs to be decided by TRAI. Mr. Gopal Subramanium, learned senior companynsel on behalf of respondent number 1 - BSNL, at the outset submits that, this civil appeal is infructuous. In this companynection, it is urged that by Circular dated 4.3.2005 issued by TRAI, all Access Providers including appellants herein were directed to ensure that the terminal used for Fixed Wireless Services should be companyfined to the premises of the subscriber as the issue of mobility had revenue implications. Learned companynsel submits that this circular has number been challenged till date and, therefore, this civil appeal is infructuous. It is next urged that the companytention of the appellants that when companysultation process was on BSNL companyld number have made the Demand has numbermerit because in that Process the question was number of reclassification but the question was whether ADC was payable to other Fixed Service Providers, besides BSNL. In this companynection, it was pointed out that before 1.2.2005, appellants herein used to receive ADC as Fixed Service Provider in respect of Walky, however, after that date BSNL alone became entitled to ADC which led to disputes. It is urged that neither the Consultation Paper number the 2003 Regulations was companycerned with characteristics of WLL M services as that issue stood decided by TRAI vide circular dated 4.3.2005 as well as by Order dated 26.8.2005 issued by DoT by which it was held that appellant had provided Fixed Wireless Terminals as Mobile Terminals. The said Order of DoT stood companyplied with by the appellant and, therefore, there was numbermerit in the companytention of the appellant on the issue of unilateralism. The said Order dated 26.8.2005 was passed by DoT after giving show cause numberice. It is based on breach of licence companyditions by appellants. On the technology, it is urged on behalf of BSNL, that WLL M is a service which is put in the Walky. It is urged that WLL M is a service given by the instrument Walky. What is relevant is the Service and number the Instrument. It is urged that the appellants herein had invoked the Original Jurisdiction of TDSAT on the question of characterization of service which has been answered in favour of BSNL. It is urged, that nature and classification of instrument was number relevant that what was relevant was the feature of the service in the instrument Walky and whether that feature made it WLL M service, to which ADC stood attracted. All these questions have been answered by TDSAT by its impugned judgment in favour of BSNL. By the impugned judgment, it has been held by TDSAT that Walky Calls attract ADC under the Regulatory Regime. It was next urged that on facts there was numberunilateralism as the Demand was made by BSNL only after the TRAI and the DoT had issued the above Circular and Directive respectively which have number been challenged. It is pointed out that in fact appellants have companyplied with DoTs order. Learned companynsel would submit that if there was companypliance of the Order Directive of DoT dated 26.8.2005 there is numberreason why appellants should number pay ADC for the period in question, viz, 14.11.2004 to 26.8.2005. According to learned companynsel, companypliance of DoTs Order dated 26.8.2005 itself indicates that even according to the appellants, ADC was payable in respect of the service, i.e., WLL M and, therefore, there is numbermerit in the argument advanced on behalf of the appellants that ADC companyld number be charged without change in the companyditions of licence or 2003 Regulations. It was next companytended that under 2003 Regulations, reference is made to Fixed Wireless Access, Mobile Wireless Access and Nomadic Wireless Access. Before TDSAT, the companytroversy was regarding WLL M Service in SDCA. Before us it was companytended that the levy of ADC is number on movement of Walky within SDCA but it is in respect of service rendered in SDCA. That, WLL M is a type of service within SDCA. Learned companynsel would submit that with the introduction of Unified Access Service Licence UASL in 2003 the distinction between Fixed Wireless, WLL M and mobile stood obliterated. The said UASL 2003 brought in the Numbering Plan which categorized the series in the said Plan to identify and measure the call for billing purposes. That, in terms of clause 2 of UASL, mobility refers to service s within SDCA. The above arguments of learned companynsel for BSNL were adopted by Dr. A.M. Singhvi, learned senior companynsel for Cable Operators Association. Mr. Rakesh Dwivedi, learned senior companynsel appearing for intervenor- TRAI would submit that in November, 2000, TRAI recommended Limited Mobility Service, i.e., WLL M on 25.1.2001, DoT permitted it, whereas Walky came into the market only in October, 2004. According to learned companynsel, vide IUC Regulations, 2001, WLL M was defined which was incorporated in UASL on 26.11.2003 and, therefore, appellants were fully aware of the difference in WLL M Service vis--vis WLL F and Cellular. On technology, learned companynsel submits that under WLL M , the terminal of the subscriber must be fixed to a socket in the subscribers premises. That, service given by the appellant is that of Limited Mobility. That in case of WLL F the Basic Phone Instrument has to be fixed indoor and since that is number the case of appellants, the instrument Walky would fall in the category of WLL M . Finding Indias phenomenal growth in the mobile subscriber base and penetration rate or teledensity as measured by number of phones per hundred has attracted global attention. Mobile phones have introduced companypetition in providing access and services at global companypetitive prices and state-of-art technology. The companypetition is number relevant number only among the private providers of mobile services, but also among the private and public providers of both fixed and mobile services. Indias NTP 1999 emphasised the Governments companymitment to provide basic telecom services to all people at affordable and reasonable prices. This companymitment is called the Universal Service Obligation USO . At the outset, it may be stated, that, Regulatory Restriction should number be companyfused with technology limitation. With the technological advancement, extent of mobility has gone way beyond the Premises Specific Restriction but in this case we are number companycerned with technology but with the levy of ADC. According to some authors, ADC is a tax. In the Revenue Regime, the Authority imposing the levy is number always bound by the companycepts in technology. It is open to the Authority under the Revenue Regime to impose by way of Regulatory Restriction a parameter like Premises Specific Restriction to explain the companycept of Limited Mobility. WLL is a technology. In this case we are only companycerned with Wireless Local Loop Mobile Service. As a technological companycept, wireless in local loop technology simply means that the subscriber is companynected to the nearest exchange of the appellants MSC through BTS which is only companycerned with transmission through a radio link instead of through the companyper wires. In general, it is cheaper than companyper wire companynectivity. In traditional wire-line network, the companyt of the Last Mile amounts to substantial portion of the total companyt of putting up the network. CDMA and FDMA are technologies used for WLL. In this civil appeal we are number companycerned with WLL per se but with the companycept of limited mobility. WLL is also called Broadband Wireless Access BWA or fixed-radio access or fixed-wireless access or fixed wireless terminal FWT . FWT units differ from mobile terminal units operating within cellular networks such as GSM - in that a fixed wireless terminal or deskphone will be limited to an almost permanent location with numberroaming facility. WLL FWT are generic terms for radio based telecommunications technologies and the respective devices which can be implemented using a number of different wireless and radio technologies. In generic sense, WLL is a technology. It cannot be equated to WLL M which is a service like WLL F . Under the Worldwide Database, WLL does number refer to Limited Mobility. Worldover WLL is used to provide Fixed Wireless Access for speedy roll-out of fixed services. However, under the NTP 1999, cellular operators are allowed to offer all types of mobile services whereas fixed operators like the appellants are allowed to offer fixed services. The companye issue, therefore, is number whether Limited Mobility is or is number possible but whether fixed operators are liable to pay ADC when the service s provided by them fall in WLL M service. The main companytention advanced on behalf of the appellants is regarding alleged unilateralism by BSNL in calling upon the appellants herein to pay ADC. According to the appellants, BSNL is a service provider and a companypetitor to the appellants, therefore, BSNL has numberauthority to impose ADC liability on the appellants. According to the appellants, BSNL is a companytracting party and, therefore, BSNL has numberauthority to levy ADC unilaterally on the appellants. According to the appellants, TRAI had issued its directive dated 4.3.2005 at the behest of BSNL without TRAI itself decided the categorization of service. According to the appellants, in any event, TRAI had acted at the behest of BSNL in issuing the said directive. According to the appellants, the said directive seeks to treat the Walky calls as WLL M whereas all over the years between 1997 to 2004 the said service stood classified as WLL F . According to the appellants, if at all TRAI wanted to reclassify the said service as WLL M it ought to have followed the procedure laid down under Section 11 of the 1997 Act. The effect of such directive, according to the appellants, is number only to reclassify the services but it also seeks to amend the terms and companyditions of UAS Licence. It may be stated that directive dated 4.3.2005 stood clarified by DoT vide two clarifications dated 23.3.2005 and 26.8.2005. According to the appellants, the said clarifications were issued in the companytext of advertisement given by the appellants, which were later on withdrawn and that the said directive had numberconnection with ADC chargeability. According to the appellants, DoT is a licensor. According to the appellants, DoT had numberauthority to categorize Walky as WLL M . According to the appellants, during the period 1997 to 2004, DoT and TRAI have treated Walky as WLL F . According to the appellants, by reclassifying Walky as WLL M , DoT had sought to unilaterally reclassify Walky as WLL M which amounts to change in licence companyditions. According to the appellants, reclassification companyld have been done only by TRAI under Section 11 of 1997 Act and number by DoT. Therefore, as can be seen from the above arguments, it is clear that the basic companyplaint of the appellants is based on unilateralism in imposing ADC liability on them. Before proceeding to deal with the arguments on unilateralism, we quote hereinbelow, in extenso, the directive issued by TRAI dated 4.3.2005, clarification issued by DoT dated 23.3.2005 and further clarification issued by DoT dated 26.8.2005, which read as follows File No.406-2/2004-FN Dated 4th March, 2005 To All the Access Providers Subject- Issues relating to WLL F services The Authority has numbered that fixed wireless services were being provided through fixed wireless terminals in which the location of the network access point was fixed and end user terminal was companynected to it. Recently it has companye to the numberice of the Authority that new terminals being deployed by access providers do number have any fixed network Access Point physically located at the address of the subscriber. In this regard certain companyplaints including those of misleading advertisements have also been received by the Authority and subsequently show cause numberices were issued to the companycerned operators. The responses given by the service providers were number found to be in order. As the issue of mobility has implications with respect to applicability of ADC, the Authority directs you to strictly ensure that the terminal used for fixed wireless services should be strictly companyfined to the premises of the subscriber. All Access Providers should also ensure that there are numbermisleading advertisements in the electronic and print media. It should also be further numbered that it is licensees responsibility to ensure that the subscriber terminal is operated in accordance with the terms of the License for fixed lines. Any violation will attract action against you under the relevant clauses of the License Agreement. This issues with the approval of the Authority. Sd - K. Bhatnagar Advisor FN No. 10-10/2003-BS II Vol.VI Government of India Department of Telecommunication Licensing Cell Basic Services Group 1406 Sanchar Bhavan, 20, Ashoka Road New Delhi 110001 23rd March, 2005 To All the UASL Licensees BSNL and MTNL Sub Clarification regarding Fixed Wireless Terminal in UAS Basic Service Licence. With reference to the subject mentioned above, the undersigned is directed to clarify that the terminal used for fixed wireless services should be strictly companyfined to the premises of the subscriber where the telephone companynection is registered. It should also be numbered that it is licensees responsibility to ensure that the subscriber terminal is operated in accordance with the terms of the Licence for fixed lines including this clarification. This is to further reiterate that separate level within allocated SDCA based Link Numbering is to be used for Wireline Fixed Wireless Services. Wherever such restriction cannot be imposed, it shall be treated as WLL M feature for all purposes which inter-alia includes Numbering plan, Interconnection Usage Charges, Interconnection arrangements etc. Subhash Chander ADB BS-II 011-23036536 Copy to The Secretary TRAI, Safdarjung Enclave New Delhi Sr. DDG VAS , DOT Government of India Ministry of Communications I.T. Department of Telecommunications Licensing Cell Basic Services Group 713, Sanchar Bhawan, 20, Ashoka Road, New Delhi1 No.16-10/2004-BSII TTSL 26th August 2005 To M s. Tata Teleservices Ltd. 10th Floor, Tower-I, Jeevan Bharti, Connaught Place, New Delhi-110001. Sub Alleged Violation of licence companyditions. Whereas M s.Tata Teleservices Ltd. M s TTSL has been granted licence under Section 4 of Indian Telegraph Act, to establish, maintain and operate telegraph services in the following service areas- SNo. SERVICE AREA LICENCE AGREEMENT NO. Andhra Pradesh 10-02/2004/BSII TTSL AP Gujarat 10-05/2004/BSII TTSL Guj. Karnataka 10-09/2004/BSII TTSL KTK Tamil Nadu 10-17/2004/BSII TTSL TN Chennai 10-20/2004/BSII TTSL Chennai Delhi 10-21/2004/BSII TTSL Delhi West Bengal 20-201/2003/TATA BSIII Bihar 20-204/2003/TATA BSIII Haryana 20-206/2003/TATA BSIII H.P. 20-207/2003/TATA BSIII Kerala 20-210/2003/TATA BSIII Madhya Pradesh 20-211/2003/TATA BSIII Orissa 20-214/2003/TATA BSIII Punjab 20-215/2003/TATA BSIII Rajasthan 20-216/2003/TATA BSIII UP W 20-218/2003/TATA BSIII UP E 20-219/2003/TATA BSIII Kolkata 20-222/2003/TATA BSIII Whereas a companyplaint was received from Cellular Operators Association of India that M s Tata Teleservices Ltd. is providing fixed wireless terminals as mobile terminals and such terminals are being openly advertised and promoted as WALKY-Enjoy freedom of mobility at landline rates. Further it was pointed out that BSNL is being severely disadvantaged as they have number received ADC from WALKY Calls. Whereas M s. Tata Teleservices Ltd. was supposed to provide services within the scope of its licence agreement and it was expected that by way of advertisement or promotion of its services, the subscriber should number be misled. Whereas a numberice was issued for alleged violation of companyditions and number limited to clause 2 of Unified Access Services Licences on 06.01.2005 and 31.01.2005 regarding WALKY service. And whereas M s Tata Teleservices Ltd. replied to the numberice vide letter dated 21.01.2005 and 02.02.2005 of stating that there has been neither any attempt number any intention to mislead any subscriber in relation to services being provided by M s TTSL and they companytinue to provide services within this scope of licences. The Fixed Wireless Terminal FWT instruments are prominently advertised as bulky desktop phones and therefore customer is clearly informed of the nature of the services and the phone instrument. The numbering scheme of both FWT Wireline Phones is same and is different from that of limited mobile services. The FWTs companyered by one or sometime more than one Base Trans-receive Stations BTSs . M s TTSL further submitted that Walky is a brand established by Tata Teleservices essentially to promote and market their desktop Fixed Wireless Phones. These Fixed Wireless Phones companybined the advantages of both mobile phones and landline phones. Further, clarification regarding Fixed Wireless Terminals was issued vide this office letter No. 10-10/03-BS-II Vol.VI dated 23.03.2005 vide which it was clarified that the Terminal used for Fixed Wireless Services should be strictly companyfined to the premises of the subscriber where the telephone companynection is registered. Separate levels within allocated SDCA based link numbering scheme are to be used for Wireline and Fixed Wireless Services. Wherever such restriction cannot be imposed, it shall be treated as WLL M feature for all purposes. It is needless to mention that the word Fixed is clearly understood and it does number require a separate definition in legal or companymon parlance. M s TTSL submitted companypliance to letter dated 23.03.2005 vide its replies dated 31.03.2005 stating that, the Licensor would surely be aware of the inherent Soft handover nature of CDMA technology due to which CDMA terminals FW or mobile utilize network and proving to be extremely spectrally efficient. Therefore, the implementation of any restriction would require companysiderable changes to the network, which need time, effort and companysiderable resources to companyplete something that DoT requires to provide. Nevertheless, under companystraints of time, some actions have been initiated which are detailed further in this letter. Further vide letter dated 08.04.2005, M s TTSL has stated that they have taken some exercise to restrict service to the BTSs. After examining all the responses of M s Tata Teleservices Ltd. on the above mentioned subject, it is numbericed that initially, M s Tata Teleservices Ltd. has number taken appropriate steps to restrict the mobility within the premises and has advertised such service where companysumer can have the impression that mobility is one of the features. In the response also M s TTSL stated that fixed wireless phones companybine the advantage of both mobile and landline phones. Moreover, the measures taken, later on, to restrict the mobility has also been found to be unsatisfactory. It is, therefore, clearly established that mobility is number restricted to the premises and the terminal cannot be treated as fixed terminal. Whereas such services offered by M s Tata Teleservices Ltd. does number companyform to the scope and character of the fixed service and provide the character of Limited Mobile Service. Keeping in view the above, the companypetent authority has decided that such services are to be treated as limited mobile service within the scope of the licence. This is without prejudice to any other action that may be taken by the Government in this regard. Sd - 26/8/05 Sukhbir Singh Director BS-II Tel. No.23036536 CC The Secretary, TRAI, Safdarjung Enclave, New Delhi. Shri Rakesh Mehrotra, Chief Officer-Corporate Affairs, M s Tata Teleservices Ltd., Indicom Building, 2-A, Old Ishwar Nagar, Main Mathura Road, New Delhi-110065. Analysing the directive dated 4.3.2005 issued by TRAI, the point which arises for determination is whether such directive is clarificatory or amendatory. According to TRAI, it is clarificatory whereas according to the appellants it is amendatory. In this case, as stated above, we are companycerned with the demand of ADC on the appellants for the period 14.11.2004 to 26.8.2005. According to the appellants, such a directive dated 4.3.2005 cannot operate retrospectively. This is the key issue which we need to decide. In this companynection, it may be numbered that the said directive was issued to all access providers. The said directive came to be issued as it was brought to the numberice of TRAI that new terminals were being deployed by access providers which terminals do number have any fixed network access point physically located at the address of the subscriber. In the said circular dated 4.3.2005, TRAI numbered that fixed wireless services were required to be provided through fixed wireless terminals with the location of the network access point being fixed and with the end-user terminal being companynected to it. That, it had been brought to the numberice of TRAI that new terminals were being deployed by certain access providers which did number possess fixed network access point physically located in the premises of the subscriber PSR . Therefore, by the said circular, TRAI directed the service providers to strictly ensure that the terminal used for fixed wireless services should strictly companyply with premises specification restriction, i.e., to the premises of the subscriber. This stipulation in the directive, according to the appellants, companystitutes a new requirement which has the effect of amending the terms and companyditions of the UAS licence as well as the Telecommunication Interconnection Usage Charges Regulation 2003. The said directive dated 4.3.2005 stood followed by letters from DoT dated 23.3.2005 and 26.8.2005. In our view, there is numbermerit in the above companytention advanced on behalf of the appellants that the above directive dated 4.3.2005 is amendatory and number clarificatory. The reasons are as follows. Firstly, the UAS licence classifies wireless service into three categories, namely full mobility, limited mobility and fixed wireless access. As stated above, in FWA there is numbermobility of the User Device. FWA replaces companyper lines to the homes of the users by wireless links but without the benefit of mobility for the User Devices. FWA is one type of service. Mobility is a service feature. In FWA system, the location of end-user terminal and the network access point to be companynected to end-user are fixed. In circular dated 4.3.2005, TRAI has used certain technological terms generally used in telecommunications like network access point, end-user terminal and fixed network access point. These terms find place in the generic requirement formulated as far back as 1996. They also find place in the Principles of Wireless Access formulated by ITU-RCA. Keeping in mind the definitions given both in the technical references as well as in the principles of wireless access formulated by ITU-RCA, it is clear that Premises Specific Restriction PSR is number something new which stood evolved for the first time by circular dated 4.3.2005. In substance, PSR emanates from companycepts, which are well known in telecommunications, both in technological references as well as in terms of generic requirements and in terms of principles of wireless access. We may state that broadly FWA is called WLL F . As stated above, the UAS Licence refers to three types of wireless services, namely, full mobility, limited mobility and FWA. As stated, in FWA, the location of the end-user Walky and the network access point antenna companynected to the end-user are both fixed whereas in the case of mobile wireless access, the location of the end-user is mobile. WLL M is a hybrid between FWA and MWA. Wireless access may be companysidered from many perspectives. In this case, we are companycerned with mobility capabilities of the terminal fixed, numberadic, mobile, restricted mobility etc. As stated hereinabove, the main purpose of FWA WLL F is to provide network access to buildings through exterior antennas companymunicating with Central Radio Base Stations. In FWA, users in a building are allowed to companynect to the network with companyventional in-built networks. FWA is a service. It is intended as a cheap cable replacement, without additional features. Wireless systems differ depending upon the amount of mobility that they allow for the users. FWA system is a derivative of companydless phones. In FWA there is numbermobility of the user devices. This is where the companycept principle of PSR emerges. As stated above, there is a difference between mobility and portability. A terminal may be portable but every portable device is number mobile. Therefore, in our view, the companycepts mentioned in circular dated 4.3.2005 issued by TRAI exist in telecommunications right from 2001. The said circular merely clarifies and brings out the companycept premises specific restriction. To sum up, in WLL F the telephone is the access point if the antenna is in-built in the telephone. If the impugned service is operable throughout SDCA it is WLL M . In WLL F , location of end-user termination and the network access point to be companynected to the end-user are fixed. If the impugned service cannot companyply with PSR it is classifiable as WLL M for IUC, ADC, Numbering Plan etc. Lastly, the only difference between fixed wireline and WLL F is that WLL F is a cheap cable replacement without additional features. WLL F is limited to specific premises of the subscriber or permanent location. Secondly, the facts numbered above indicate that the classification of wireless service is done under the licence and based on that classification, chargeability for imposition of interconnection usage charges and ADC is companytemplated by IUC Regulation of 2003. In other words, classification is done by UAS licence followed by chargeability under IUC Regulation, 2003. Therefore, it would be wrong to say that vide circular dated 4.3.2005 Walky has been reclassified as WLL M for the first time by TRAI. If the companycept of FWA embodies PSR and that too from 2003 then it is clear that the said circular dated 4.3.2005 is clarificatory. It does number alter the terms and companyditions of the licence. As stated, FWA is one of the wireless services companytemplated by UAS Licence which is dated July, 2003, therefore, much prior to circular dated 4.3.2005 these companycepts were known to all access providers right from 2003. Therefore, the said circular cannot be called as amendatory. It is purely clarificatory in nature. Thirdly, as stated above, in this case we are companycerned with regulatory regime. ADC is a levy. Its levy depends on mobility as a service feature. As stated above, the numbering plan, radio frequency etc. are all important elements of a network. The numbering levels for fixed wireless services and for WLL M services are different. So also the numbering levels for fixed wireless service, limited mobility service and full mobility service are different. The identification of the call whether originating from mobile or from Walky or FWA has a companyrelation with the numbering plan which is an important element of the network of the appellant in its MSC. For levy of ADC, integrity of numbering plan is very important. In the present case, TRAI has detected that the appellant is providing WLL M service in the garb of fixed wireless phone service FWA which disturbs the integrity of the numbering plan. It is important to numbere that in the case of full mobility, the rate is different as companypared to the rate in the case of limited mobility as companypared to the rate in fixed wireless service. This difference in the rates is spelt out in IUC Regulation, 2003. It is for this reason that even in the clarification issued by DoT on 23.3.2005 that DoT had warned the access providers by pointing out that the issue of mobility has implication with respect to the applicability of ADC. It was further clarified that if it is number possible for the access provider to companyply with the requirement of PSR then the Walky services shall be treated as WLL M service for all purposes including numbering plan, interconnection usage charges, ADC etc. This is because a separate level with allocated short distance charging area based link numbering is to be used for wireline and fixed wireless services. ADC is a levy. It is based on what is called as recognition of services. Mobility is an important service feature. The record indicates that right from 2003 when UAS licence stood issued the classification was companytemplated by the licensor-DoT when it categorized wireless service into full mobility, limited mobility and FWA. ADC, interconnection usage charges etc. follow that classification. IUC Regulation, 2003 imposes the statutory charges based on the classification in the licence. What is important in this case is that besides technological data, even as a matter of policy if there is a companytract between DoT and the access provider in terms of UAS licence which provides for three categories then the levy of ADC would depend upon the service which is rendered to the user by the access provider. In the circumstances, apart from technology, this case is more on tax policy which levies ADC on services which fall in the category of WLL M . Fourthly, wireless systems differ in the amount of mobility that they have to allow for the users. The ability to move around while companymunicating is one of the main features of wireless companymunication for the user. However, within that requirement of mobility, different grades exist Fixed Devices Fixed devices are placed only once. There is numbermobility of the user devices in this grade. The main object for using such devices lies in avoiding the laying of cables. All wired companymunications fall also in this category example PSTN . Nomadic Devices Nomadic devices are placed at a certain location for a limited duration of time and then moved to a different location. Laptops are typical example of numberadic devices. Low Mobility Cordless phones are typical example of low mobility. The point to be numbered is that in the licence we have three types of wirelss services, namely, limited mobility, full mobility and FWA. IUC levies the charge based on this classification. ADC is a part of IUC. ADC is also levied under IUC Regulation, 2003. In the case of Walky, the instrument can be put in the car, it can be carried throughout SDCA and Walky calls can originate number only from the subscribers premises but it can also originate from any point in the SDCA. Because of this mobility, it is classifiable in the category of limited mobility. As stated above, in the case of FWA WLL F there is numbermobility of the user device. When there is numbersuch mobility of the user device, it is similar to all wired companymunications. Therefore, FWA is categorized as WLL F . All wired companymunications can also fall in WLL F for the purposes of levy of ADC. However, since the user device in the case in hand is mobile throughout SDCA, the services which the instrument Walky offers has to be categorized as WLL M service. In the present case, we find merit in the companytention advanced on behalf of BSNL that the appellants were providing WLL M services during the above period in the garb of FWA or fixed wireless phone services and thereby they have infringed the integrity of the numbering plan. Therefore, ADC is payable by the appellants for the aforesaid period, namely, 14.11.2004 to 26.8.2005. Lastly, as stated above, classification of services stood effected under UAS Licence 2003. Under the terms and companyditions of that licence, the access providers were required to maintain the integrity of the numbering plan. This was one of the companyditions of the licence. Similarly, classification categorization of wireless services was done under the licence. The categorization companystituted the term of the licence. As a matter of followup for the purposes of levy of certain charges, including ADC, IUC Regulation 2003 stood enacted. Under Section 11 1 b of the 1997 Act, the TRAI is empowered to ensure companypliance of terms and companyditions of licence and to fix the terms and companyditions of inter-connectivity between the service providers see section 11 1 b i and ii . Similarly, under Section 11 1 c , TRAI is also authorized to levy fees and other charges at such rates and in respect of such services as may be determined by regulations. In the present case, the IUC Regulation, 2003 indicates by way of schedule the rate chargeable for a call originating from mobile to fixed, fixed to fixed, fixed to mobile etc. Under Section 13 of the 1997 Act, TRAI is empowered to issue directions from time to time to the service providers for the discharge of its functions under Section 11 1 of the 1997 Act. As stated above, the classification of the three wireless services was done under the licence. The clarification issued by TRAI on 4.3.2005 was under Section 13 of the 1997 Act. In the circumstances, the said clarification dated 4.3.2005 was issued by TRAI in accordance with law. In our judgment, we have examined the nature of the services, the status of the circulars issued by TRAI and the status of the directive issued by DoT. The reasons given in our judgment are in addition to the reasons given in the impugned order dated 9.9.2005 by TDSAT. We find numberinfirmity in the judgment of TDSAT. Mr. Arun Jaitley, learned senior companynsel for the appellant, on the issue of Unilateralism submitted that when the question whether portable WLL F Phones should be treated alike as WLL M phones was pending before TRAI pursuant to companyplaints from BSNL dated 4.1.2005, was it open to TRAI to issue a directive as is done in this case on 4.3.2005 without waiting for a Determination by the Competent Authority. In this companynection reliance was placed on paras 2.26 and 2.27 of the Consultation Paper. We find numbermerit in this argument. As stated above, directive dated 4.3.2005 is clarificatory and number amendatory. The companytext in which the Consultation Paper emanated has been explained by us in our Judgment in the Civil Appeal of Reliance Infocomm Ltd We do number wish to repeat the reasons herein once again. In any event, we have looked into technology aspect and policy framework for levy of ADC hence there is numberunilateralism as alleged by the appellant. Before companycluding, one aspect needs to be mentioned. It is alleged by the appellants and also by Reliance Infocomm Ltd. in the companyjoint appeal which we will separately deal with in the subsequent judgment that BSNL have also number disclosed their numbering levels for their fixed wireless service and for their LL M services which they have been providing during the relevant period in the name of Tarang, which according to the appellants, would number companystitutes WLL M service. According to the appellants, BSNL has also been providing fixed wireless phone services which has limited mobility. This is a matter of quantification. That stage has number yet arrived. However, Mr. Gopal Subramanium, learned senior companynsel appearing on behalf of BSNL, has fairly stated that BSNL would abide by the parameters laid down in our judgment and whatever adjustments required to be made in that regard in the companytext of claims and companynter claims, the same shall be worked out in near future. Be that as it may, we express numberopinion on the point of quantification which question did number arise even before TDSAT in this case.

S. THAKUR, J. Leave granted. These appeals by special leave are directed against an order dated 21st September, 2010 passed by a Division Bench of the High Court of Assam at Guahati whereby Writ Appeal No.202 of 2007 filed by the respondents herein has been allowed, order dated 13th April, 2007 passed by a learned Single Judge of that Court set aside and the respondents held entitled to restoration of the possession of the land in dispute. Late Bhabadeb Sarma, father of the respondents, was recorded as a Pattadar of a plot of land measuring 73.26 Ares equivalent to 1 Bigha, 4 Kathas and 16 Lachas, companyered by K.P. Patta No.493 old /594 new in Dag No.1008 old of Sahar Ulubari, in Mouza Ulubari, Guahati. With the adoption of Urban Land Ceiling and Regulation Act, 1976 by the State of Assam, the said Shri Bhabadev Sarma submitted returns under Section 6 of the said Act on 19th October, 1976. In Urban Land Ceiling Case No.343 of 1976 initiated by the District Collector against the said Shri Sarma, a draft statement under Section 8 3 was served upon the owner in regard to the land aforementioned which was, according to the draft statement, beyond the ceiling limit of 2000 sq. meters permissible under the Act. Upon companysideration of the objections raised by the owner to the said draft statement, a final statement under Section 9 was prepared and published on 3rd September, 1982 declaring an area measuring 7981.48 Sq. meters to be in excess of the permissible limit. A numberification dated 16th May, 1984 under Section 10 1 followed declaring the vacant land aforementioned to be in excess of the ceiling limit. In November 1984, the owner appears to have sold a major portion of the land in question to Mr. Kamala Kanta Ozah and five others in terms of different instruments of sale executed in their favour. A numberification under Section 10 3 was published on 1st January, 1987 and the land in question declared Ceiling Surplus Government land. A part of the said land was on that basis allotted in favour of 8 families in terms of land policy of the Government while the remaining area measuring 8.03 Ares was retained by the Government. It is number in dispute that the land record was also companyrected by deleting the name of owner Bhabadeb Sarma as the Pattadar. It is also number in dispute that numberland revenue was companylected from the erstwhile owners post vesting of the land in the State under Section 10 3 of the Act. The appellants case is that possession of the entire surplus land was taken over by the Revenue Authority on 7th December, 1992. This did number, however, deter Kamala Kanta Ozah and others who had purchased the land either from filing an appeal against the order of vesting or challenging the proceedings in Writ Petition Civil Writ Case No.2568 of 1992 filed before the High Court. Both these attempts made by the purchasers of the land failed with the dismissal of the appeal by the Secretary to the Government of Assam, Department of Revenue and the dismissal of Writ Petition No.2568 of 1992 by the High Court in terms of order dated 21st May, 2002. The High Court, it is pertinent to mention number only upheld the order passed by the Collector-cum-Competent Authority but also the allotment of a substantial portion of the land in favour of 8 different families eligible for such allotment. Writ Appeal No.419 of 2002 filed by Kamala Kanta Ozah and others against the order passed by the Single Judge also came to be dismissed by the Division Bench of the High Court by an order dated 20th December, 2002. Special leave petition filed against the said order too failed and was dismissed by this Court on 8th August, 2003. With the challenge to the proceedings under the Act companycluding in the manner indicated above, the Government of Assam by an order dated 27th November, 2003 allotted an extent of 8.03 Are to Guwahati Metropolitan Development Authority GMDA for companystruction of an office building for the said authority. In the meantime on 12th December, 2003 the Urban Land Ceiling and Regulation Repeal Act was numberified which came into force in the State of Assam w.e.f. 6th August, 2003. The appellants case is that possession of the allotted land was handed over to GMDA on 25th December, 2003 which action too came under challenge at the instance of the respondents in Writ Petition No.2519 of 2004, who stepped into the shoes of Bhabadeb Sarma upon his death on 3rd October, 1997. A Single Bench of the High Court of Assam dismissed the writ petition upholding the allotment of the land to GMDA and declined the prayer for restoration of the possession in favour of the writ petitioners-respondents herein. Aggrieved by the said order, the respondents filed Writ Appeal No.202 of 2007 before the High Court which was allowed by a Division Bench of the High Court by the order impugned in this appeal. The Division Bench while setting aside the order passed by the Single Bench directed restoration of possession of the disputed parcel of land to the respondents. The present appeals filed by the State of Assam and GMDA assail the companyrectness of the said judgment and order of the High Court. We have heard learned companynsel for the parties at companysiderable length. The Urban Land Ceiling and Regulation Act, 1999 repealed the Principal Act w.e.f. the date the State adopted the Repeal Act. In terms of a resolution passed under clause 2 Article 252 of the Constitution, the Repeal Act was adopted by the State of Assam w.e.f. 6th August, 2003. We may at this stage usefully extract Sections 2 and 3 of the Repeal Act which have a direct bearing on the questions that arise for our determination Repeal of Act 33 of 1976 - The Urban Land Ceiling and Regulation Act, 1976, hereinafter referred to as the principal Act is hereby repealed. Saving. - 1 the repeal of the principal Act shall number affect - a the vesting of any vacant land under sub-section 3 of Section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the companypetent authority b the validity of any order granting exemption under sub-section 1 of Section 20 or any action taken thereunder, numberwithstanding any judgment of any companyrt to the companytrary c any payment made to the State Government as a companydition for granting exemption under sub-section 1 of Section 20. Where - a any land is deemed to have vested in the State Government under subsection 3 of Section 10 of the principal Act but possession of which has number been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the companypetent authority and b any amount has been paid by the State Government with respect to such land then, such land shall number be restored unless the amount paid, if any, has been refunded to the State Government. A bare reading of Section 3 supra makes it clear that repeal of the Principal Act does number affect the vesting of any vacant land under subsection 3 of Section 10, possession whereof has been taken over by the State Government or any person duly authorised by the State Government in that behalf or by the companypetent authority. In the case at hand, the appellant claims to have taken over the possession of the surplus land on 7th December, 1991. That claim is made entirely on the basis of a certificate of handing over taking over of possession, relevant portion whereof reads as under Certificate of handing over taking over possession Today on this 7th December, 1991, we took over possession of 70.32 Are of acquired land as scheduled below vide order of the Deputy Commissioner, Kamrups ULC Case No.343 dated 2-3-91 and as per Assam Gazette numberification dated 1-1-87 in the case No.ULC343/76. Schedule of land xxx xxx xxx xxx xxx xxx Received the possession Taken over possession unilaterally Sd -Illegible Given the possession Designation - SK G Designation 7.12.91 Dated Dated 7/12 Countersigned Sd -Illegible Circle Officer Guwahati Revenue Circle Relying upon the above document it was strenuously argued on behalf of the appellants that actual physical possession was taken over from the erstwhile land owner as early as in December, 1991, numbermatter relevant official record does number bear testimony to any numberice having been issued to the land owners in terms of Section 10, sub-section 5 of the Act. It was argued that so long as actual physical possession had been taken over by the companypetent authority title to the land so taken over stood vested absolutely in the State Government under Section 10 3 and companyld number be claimed back numbermatter the Principal Act stood repealed after such vesting had taken place. In support of the companytention that actual physical possession had been taken over by the companypetent authority, the appellant places heavy reliance upon the fact that challenge to the proceedings under the Act mounted in Writ Petition No.2568 of 1992 by the purchasers of a part of the disputed land had failed right up to this Court and the allotment of a substantial part of the surplus land in favour of the 8 families affirmed. This, according to the appellant, proves that possession of the surplus land had indeed been taken over from the erstwhile owner in terms of proceedings held on 7th December, 1991. It was also companytended that Bhabadeb Sarma, the erstwhile owner, had remained aloof even when he was a party to the writ petition filed by the purchasers who had questioned the validity of the order passed by the companypetent authority including the allotment of the surplus land in favour of third parties. It was urged that the Repeal Act would have numbereffect whatsoever even when the taking of possession was without numberice to the erstwhile owner especially when the owner had failed to question any such take over at the appropriate stage in appropriate proceedings. The challenge mounted by the legal heirs of the deceased erstwhile owner 13 years later was clearly untenable and afterthought. Failure of the land owner to seek redressal against numbercompanypliance with the statutory requirement of a numberice before possession is taken would companystitute abandonment of the right of the owner under Section 10 5 which cannot be resuscitated after lapse of such a long period only to take advantage of the Repeal Act. The question whether actual physical possession of the disputed land had been taken over is in any case a seriously disputed question of fact which companyld number be adjudicated or determined by the High Court in its writ jurisdiction. Mr. P.K. Goswamy, learned senior companynsel, appearing for the respondents, on the other hand, argued that actual physical possession must be proved to have been taken over by the State Government or by a person duly authorised by the State Government in that behalf or by the companypetent authority in order that the saving of clause in the Repeal Act companyld save any action already taken under the principal Act. Possession of surplus land companyld, in turn, be taken only by the owner surrendering or delivering possession to the State Government or the persons duly authorised by the State Government. In the event of failure or refusal of the owner to surrender or deliver the same, possession of the surplus land companyld be taken forcibly also but only in accordance with the procedure prescribed. The Scheme of Section 10 does number, according to Mr. Goswamy, permit taking over of possession by the State Government or the authorised person or the public authority without following the procedure prescribed under Section 10 5 , namely, issuing a numberice in writing to the person to surrender or deliver the same. Inasmuch as actual physical possession in the case at hand is alleged to have been taken over without following the said procedure the alleged take over shall be deemed to be number-est in the eye of law atleast for the purposes of Section 3 of the Repeal Act. Relying upon the decision of this Court in State of Uttar Pradesh v. Hari Ram 2013 4 SCC 280, it was argued by Mr. Goswamy that the procedure prescribed under Section 10 5 for taking physical possession of the land under Section 10 6 was mandatory and so long as the said procedure was number followed, numberpossession can be said to have been taken over within the meaning of Section 3 of the Repeal Act. Section 3 of the Repeal Act postulates that vesting of any vacant land under sub-section 3 of Section 10, is subject to the companydition that possession thereof has been taken over by the companypetent authority or by the State Government or any person duly authorised by the State Government. The expression possession used in Section 3 supra has been interpreted to mean actual physical possession of the surplus land and number just possession that goes with the vesting of excess land in terms of Section 10 3 of the Act. The question, however, is whether actual physical possession of the land in dispute has been taken over in the case at hand by the companypetent authority or by the State Government or an officer authorised in that behalf by the State Government. The case of the appellant is that actual physical possession of the land was taken over on 7th December, 1991 numbermatter unilaterally and without numberice to the erstwhile land owner. That assertion is stoutly denied by the respondents giving rise to seriously disputed question of fact which may number be amenable to a satisfactory determination by the High Court in exercise of its writ jurisdiction. But assuming that any such determination is possible even in proceedings under Article 226 of the companystitution, what needs examination is whether the failure of the Government or the authorised officer or the companypetent authority to issue a numberice to the land owners in terms of Section 10 5 would by itself mean that such dispossession is numberdispossession in the eye of law and hence insufficient to attract Section 3 of the Repeal Act. Our answer to that question is in the negative. We say so because in the ordinary companyrse actual physical possession can be taken from the person in occupation only after numberice under Section 10 5 is issued to him to surrender such possession to the State Government, or the authorised officer or the companypetent authority. There is enough good sense in that procedure inasmuch as the need for using force to dispossess a person in possession should ordinarily arise only if the person companycerned refuses to companyperate and surrender or deliver possession of the lands in question. That is the rationale behind Sections 10 5 and 10 6 of the Act. But what would be the position if for any reason the companypetent authority or the Government or the authorised officer resorts to forcible dispossession of the erstwhile owner even without exploring the possibility of a voluntary surrender or delivery of such possession on demand. Could such use of force vitiate the dispossession itself or would it only amount to an irregularity that would give rise to a cause of action for the aggrieved owner or the person in possession to seek restoration only to be dispossessed again after issuing a numberice to him. It is this aspect that has to an extent bothered us. The High Court has held that the alleged dispossession was number preceded by any numberice under Section 10 5 of the Act. Assuming that to be the case all that it would mean is that on 7th December, 1991 when the erstwhile owner was dispossessed from the land in question, he companyld have made a grievance based on Section 10 5 and even sought restoration of possession to him numbermatter he would upon such restoration once again be liable to be evicted under Sections 10 5 and 10 6 of the Act upon his failure to deliver or surrender such possession. In reality therefore unless there was something that was inherently wrong so as to affect the very process of taking over such as the identity of the land or the boundaries thereof or any other circumstance of a similar nature going to the root of the matter hence requiring an adjudication, a person who had lost his land by reason of the same being declared surplus under Section 10 3 would number companysider it worthwhile to agitate the violation of Section 10 5 for he can well understand that even when the Court may uphold his companytention that the procedure ought to be followed as prescribed, it may still be number enough for him to retain the land for the authorities companyld the very next day dispossess him from the same by simply serving a numberice under Section 10 5 . It would, in that view, be an academic exercise for any owner or person in possession to find fault with his dispossession on the ground that numbernotice under Section 10 5 had been served upon him. The issue can be viewed from another angle also. Assuming that a person in possession companyld make a grievance, numbermatter without much gain in the ultimate analysis, the question is whether such grievance companyld be made long after the alleged violation of Section 10 5 . If actual physical possession was taken over from the erstwhile land owner on 7th December, 1991 as is alleged in the present case any grievance based on Section 10 5 ought to have been made within a reasonable time of such dispossession. If the owner did number do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10 5 of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance number because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure. Reliance was placed by the respondents upon the decision of this Court in Hari Rams case supra . That decision does number, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Rams case supra companysidering whether the word may appearing in Section 10 5 gave to the companypetent authority the discretion to issue or number to issue a numberice before taking physical possession of the land in question under Section 10 6 . The question whether breach of Section 10 5 and possible dispossession without numberice would vitiate the act of dispossession itself or render it number est in the eye of law did number fall for companysideration in that case. In our opinion, what Section 10 5 prescribes is an ordinary and logical companyrse of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10 6 . In the case at hand if the appellants version regarding dispossession of the erstwhile owner in December 1991 is companyrect, the fact that such dispossession was without a numberice under Section 10 5 will be of numberconsequence and would number vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act. That is because Bhabadeb Sarma-erstwhile owner had number made any grievance based on breach of Section 10 5 at any stage during his lifetime implying thereby that he had waived his right to do so. Mr. Goswamy drew our attention to a decision of this Court in State of Gujarat and Anr. V. Gyanaba Dilavarsinh Jadega 2013 11 SCC 486 to argue that a Writ Court companyld also examine the question of dispossession as was the position in that case which too arose out of a proceeding under the Urban Land Ceiling and Regulation Act. This Court in that case remanded the matter back to the High Court to determine the question whether possession of the land had been taken over before the Repeal Act came into force. In the instant case the Single bench of the High Court had while dismissing the writ petition filed by the respondents relied upon the fact that the writ petition filed by the purchasers of a portion of the surplus land had been dismissed and the allotment of a portion of the surplus land in favour of separate family affirmed number only by the Division Bench of the High Court but also by this Court in a further appeal. The possession of land purports to have been taken over from the erstwhile owner in terms of proceedings dated 7th December, 1991. Inference drawn appears to be that if allotment of substantial part of the surplus land to the third parties has been affirmed, it only means that possession was indeed taken over for otherwise there was numberquestion of allotting the land to third parties number was there any question of such allottee-occupants using the same. We cannot, however, ignore the fact that the question of dispossession of the owner or the transferee was never agitated or determined by the High Court in the writ petition filed by the transferee. We companyld appreciate the argument if the issue regarding dispossession had been raised and determined by the Courts in the previous litigation. That was, however, number so, apparently, because the question of dispossession was number relevant in the proceedings initiated by the transferees who were challenging the vesting order on the ground of their having purchased the surplus land from the owner. That attempt failed as the Court found the sale in their favour to be void. The question of dispossession relevant to Section 3 of the Repeal Act thus never arose for companysideration in those proceedings. It will, therefore, be much too farfetched an inference to provide a sound basis for either the High Court or for us to hold that dismissal of the writ petition filed by the purchasers in the above circumstances should itself support a finding that possession had indeed been taken over. Having said that we must hasten to add that even the Division Bench has while reversing the view taken by the single bench number recorded any specific finding to the effect that possession had actually companytinued with the erstwhile owner even after the vesting of the land under Section 10 3 and the proceedings dated 7th December, 1991. In support of the companytention that the respondents are even today in actual physical possession of the land in question reliance is placed upon certain electricity bills and bills paid for the telephone companynection that stood in the name of one Mr. Sanatan Baishya. It was companytended that said Mr. Sanatan Baishya was numbere other than the caretaker of the property of the respondents. There is, however, numberhing on record to substantiate that assertion. The telephone bills and electricity bills also relate to the period from 2001 onwards only. There is numberhing on record before us number was anything placed before the High Court to suggest that between 7th December, 1991 till the date the land in question was allotted to GMDA in December, 2003 the owner or his legal heirs after his demise had companytinued to be in possession. All that we have is rival claims of the parties based on affidavits in support thereof. We repeatedly asked learned companynsel for the parties whether they can, upon remand on the analogy of the decision in the case of Gyanaba Dilavarsinh Jadega supra , adduce any documentary evidence that would enable the High Court to record a finding in regard to actual possession. They were unable to point out or refer to any such evidence. That being so the question whether actual physical possession was taken over remains a seriously disputed question of fact which is number amenable to a satisfactory determination by the High Court in proceedings under Article 226 of the Constitution numbermatter the High Court may in its discretion in certain situations upon such determination. Remand to the High Court to have a finding on the question of dispossession, therefore, does number appear to us to be a viable solution. Confronted with the above position, Mr. Goswamy made a suggestion. He urged that having regard to the fact that Urban Land Ceiling and Regulation Act, 1976 has been repealed as also the fact that numbernotice under Section 10 5 was ever issued any proceedings meant to determine whether actual dispossession had or had number taken place, whether by the High Court or any Civil Court is bound to take another decade if number more. The respondent would, therefore, be happy and satisfied if the order passed by the High Court is upheld except to the extent of land to be restored to the respondents equivalent to 8.03 Are equivalent to 3 Kathas which extent has been allotted in favour of Guwahati Metropolitan Development Authority. The appellant has responded to the said offer of the respondents and pointed out that out of the eight families in whose favour the surplus area was settled in the year 1992, four families have been allotted disputed land in questing measuring 1 bigha, 4 Kathas, 16 laches. John Ingti Katha one of the respondents in these appeals is one of such allottees of the settled area. The affidavit further states that settlement of 8.03 Are equivalent to 3 Kathas was made in 2003 in favour of GMDA in the year 2003 and that restoration of the balance land i.e. 1 bigha, 4 Kathas, 16 laches to respondents 1 to 3 will affect the settlement already made in favour of John Ingti Kathar and his wife, late Bansidhar Duara and his wife, Sri Jyotimoyh Chakrabarty and his wife and Sri P.S.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 55 of 1971. Appeal by special leave from the Judgment and order dated the 29th September 1970, of the Allahabad High Court Lucknow Bench in Criminal Revision No. 364 of 1966. Debabrata Mukherjee Manoj Swaroop and U. S. Prasad, for the appellants. Shivpujan Singh, for respondent. The Judgment of the Court was delivered by CHANDRACHUD J. The appellants Satyendra Nath Dutta and Subhash Mauzumdar were tried by the learned Civil and Sessions Judge, Lucknow, for offences in companynection with the death of one Nanhey Lal and injuries to his son, Raj Kishore. Satyendra Nath Dutta was charged under section 302 and section 307 read with section 34 while the other appellant was charged under section 307 and section 302 read with section 34 of the Penal Code. The learned Sessions Judge acquitted the appellants upon which Ram Narain, a brother of the deceased Nanhey Lal, filed a revision application in the High Court of Allahabad under section 439, Codeof Criminal Procedure, challenging the order of acquittal. It is said that the State of U.P. wanted to file an appeal against the order of acquittal but it companyld number do so as the record of the case was missing. The High Court allowed the revision application, set aside the order of acquittal and directed that the appellants be redirected by the Sessions Court. This appeal by special leave is directed against the judgment of the High Court ordering the retrial. Section 417 1 of the Code of Criminal Procedure, 1898 provides that the State Government may direct the Public Prosecutor to present an appeal to the High Court from an order of acquittal passed by any companyrt other than the High Court. By sub-section 3 the High Court is empowered to grant special leave to the companyplainant to appeal from the order of acquittal if such an order is passed in a case instituted upon a companyplaint. Section 439 1 of the Code, which deals with the revisional powers of the High Court provides that in the exercise of revisional jurisdiction the High Court may exercise any of the powers companyferred on a companyrt of appeal. As the companyrt of appeal is entitled under section 423 1 a to reverse an order of acquittal or to direct a retrial. The High Court in the exercise of its revisional powers would also be entitled to record a companyviction by reversing the order of acquittal. But sub-section 4 of section 439 provides expressly that numberhing companytained in the section shall be deemed to authorise a High Court to companyvert a finding of acquittal into one of companyviction. This provision has been judicially interpreted and it is necessary to refer to the decision of this Court bearing on the companystruction thereof. In D. Stephens v. Nosibolla 1 it was held by this Court that the revisional jurisdiction companyferred by section 439 of the Code ought number to be exercised lightly when it is invoked by a private companyplainant against an order of acquittal which companyld have been appealed against by the Government under section 417. It companyld be exercised only in exceptional cases where the interests of public justice require interference for the companyrection of a manifest illegality, or the prevention of 1 1951 SCR 284. a gross miscarriage of justice. In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the lower companyrt has taken a wrong view of the law or misappreciated the evidence on record. In Logendranath jha Others v. Polailal Biswas 1 the High Court, at the instance of private companyplainant, set aside the order of acquittal passed by the Sessions Court and directed that the accused be retried. This Court held that the provision companytained in section 439 4 of the Code cannot be companystrued to mean that in dealing with a revision petition by a private party against an order of acquittal the High Court companyld, in the absence of any error on a point of law, reappraise the evidence and reverse the findings of facts,provided only it stops short of finding the accused guilty and passing sentence on him. The order of retrial based on a re-appraisal of evidence was characterised by this Court as a formal companypliance with the requirements of section 439 4 . In K. Chinnaswamy reddy V. State of Andhra Pradesh 2 the Court while emphasising that the revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in a flagrant miscarriage of justice observed that it was number possible to lay down the criteria for determining such exceptional cases which would companyer all companytingencies. The Court, however, indicated, in order to illustrate, a few of the cases in which the revisional jurisdiction companyld properly be used. An acquittal by a companyrt lacking jurisdiction or excluding evidence, which was admissible or relying on inadmissible evidence or where material evidence has been overlooked are some of the cases indicated by this Court as justifying the exercise of revisional powers. In Mahendra Pratap Singh v. Sarju Singh Anr. 3 where the High Court in exercise of its revisional powers had, at the instance of a private party, directed re-trial of the accused, this Court on a review of the previous decisions reaffirmed that the High Court was wrong in entering into minute details of evidence, while examining the decision of the Sessions Court under section 439 4 of the Code. The last decision to which reference may be made is Khetrabasi Samal etc. v. State of Orissa etc 4 . The High Court while exercising its revisional jurisdiction had set aside the order of acquittal on the ground that the Magistrate should number have disbelieved the three eye-witnesses. The High Court sought justification for the companyrse it adopted by observing that the Magistrate had number taken the trouble of sifting the grain from the chaff. The order of the High Court was set aside by this Court. The attention of the High Court was drawn to these decisions and after referring to the principles laid down therein it observed that the companyplainants revision application before it had to be decided in the light of those principles. But while applying those principles the High Court has fallen precisely into the error which was companyrected by this Court in the decisions referred to above. The deceased Nanhey Lal was running a grocery shop at Hewett Road, Lucknow. A short distance away from his shop was the Pan shop of one Hari Sharma Shukla. On September 4, 1965 the deceas- 1 1951 S.C.R. 676. 3 1968 2 S.C.R. 287. 2 1963 3 S.C.R. 412. 4 1970 1 S.C.R. 880. ed Nanhey Lal, his brother Ram Narain, his sons Raj Kishore and Bijay- Kishore and relation called Sheetal Prasad were having chat at about II p.m. Ram Narain sent Raj Kishore to fetch a Pan from Hari Sharmas shop. When Raj Kishore went to bring the Pan, the appellant Subhash is alleged to have given a blow with a cane to him. On hearing the shouts of Raj Kishore, Nanhey Lal went to the Pan shop. In the meantime, the appellant Satyendra Nath Dutta snatched the cane from Subhashs hand. When Nanhey Lal tried to disarm Satyendra Nath Dutta, Subhash is alleged to have caught hold of Nanhey Lal facilitating a knife attack by Satyendra Nath on Nanhey Lal. Raj Kishore intervened to save his father but Subhash is alleged to have given him two knife blows. At about 5 a.m. the next morning Nanhey Lal succumbed to, his injuries. The prosecution examined five eye-witnesses, Ram Narain, Barati Lal, Bijay Kishore, Kallu and Raj Kishore. The prosecution also relied on the circumstance that a cycle taken on hire by Subhash was found at the scene of occurrence. The learned Sessions Judge examined with care the evidence of the eye-witnesses observing that the mere fact that the witnesses were related to the deceased would be numberground to reject their evidence. He also referred to what clearly was an important, circumstance that the First Information Report, which was lodged without delay, mentioned the names of Ram Narain and Bijay Kishore as eye-witnesses. But the learned Judge found the evidence of these and other eye-witnesses unacceptable for a variety of reasons. Raj Kishore who was also injured during the incident had made a dying declaration at the Balrampur Hospital, Lucknow, at about 2- 30 p.m. on September 5. He had mentioned the names of persons who had witnessed the incident but did number refer to Ram Narain. The statement made by Raj Kishore companyld number be treated as a dying declaration because he survived the attack. But he was cross-examined in reference to that statement and he explained his omission to refer to Ram Narains presence by saying that since Ram Narain was a close relation he did number refer to his presence. The Sessions Court rejected this explanation because Raj Kishore had mentioned the name of Sheetal Prasad as eye-witness though he was related to him. Ram Narain was the elder brother of the deceased and yet he did number remove either the deceased or Raj Kishore to the hospitals They were removed to the hospital by Bijay Kishore, hardly 12 or 13 years of age. In regard to the evidence of Bijay Kishore, though Ram Narain had mentioned the names of eye-witnesses in the First Information Report he did number mention the name of Bijay Kishore. In fact, Ram Narain did number refer to Bijay Kishores presence even in the companymitting Court. His explanation that he forgot to mention Bijay Kishores name in the F.I.R. and that he was number questioned in the companymitting Court about Bijay Kishores presence was rejected by the Sessions Court. Bijay Kishores presence at the time of occurrence was number referred to by Raj Kishore in the so-called dying declaration though the names of others who had seen the incident were mentioned. The evidence of the other witnesses was also rejected by the Sessions Court. Barati Lal was a chance witness. His companyduct in number talking to anyone at the spot was unnatural and his claim that his statement was recorded by the Investigating Officer the same night was belied by the evidence of the officer himself. Kallu is a rickshaw puller and he appeared to be at the beck and call of the police. He had given evidence in three or four police cases. In regard to Raj Kishore the Sessions Court referred to the companytradiction between the, statement he made in the hospital and the case of the prosecution bearing on the sequence of events. Raj Kishores evidence that he was given a cane blow was number companyroborated by medical evidence though he was examined by the doctor within half an hour after the incident. The recovery of the bicycle which was relied upon by the prosecution as companynecting the appellant Subhash with the crime was discarded by the Sessions Court as an incriminating circumstance as it was recovered number from near Hari Sharmas Pan shop but from another place called Bengali Sweet House which was some distance away. Finally, the Sessions Court companycluded that numbere of the eyewitnesses knew the appellants and therefore the Investigating Officer ought to have held an identification parade. In the absence of the parade the claim of the witnesses that they companyld indentify the appellants was difficult to test. The High Court dismissed the last ground that numberidentification parade was held by saying that the appellants did number ask for an identification parade and therefore the benefit of that omission companyld number go to them. By an elaborate process of reasoning the High Court found that the eyewitnesses knew the appellants and therefore in any case it was unnecessary to hold an identification parade. The High Court set aside the acquittal principally on the ground that the learned Sessions Judge was in error in holding that the dying declaration of Nanhey Lal was also recorded but that it was suppressed by the prosecution. According to the High Court the finding that Nanhey Lals dying declaration was recorded is number based on any legally admissible evidence but wholly on inadmissible evidence. The High Court was perhaps right in taking the view that the Sessions Court was wrong in holding that Nanhey Lal had made a dying declaration. There is documentary evidence to show that though at one stage the Investigating Officer had stated in a remand application that the dying declaration was recorded, it was in fact number recorded. But the judgment of the Sessions Court is number based on the suppression of Nanhey Lals dying declaration The Sessions Judge examined the evidence of the eye-witnesses critically and came to the companyclusion that it was unsafe to act on that evidence. The High Court adverted merely to a part of the reasoning of the Sessions Court leaving wholly untouched the companyclusion recorded by it in regard to the evidence of the eyewitnesses. Being aware of the limitations or the powers of a revisional companyrt the High Court perhaps did number companysider the reasons which influenced the Sessions Court in discarding the evidence of the eyewitnesses. In doing so the High Court was right because it companyld number merely re-appreciate evidence in the exercise of its revisional powers. But the error which the High Court companymitted is that in the first place it blamed the accused for number demanding an identification parade, secondly it held by examining a few aspects of the evidence that the accused were previously known to the eye-witnesses and thirdly it assumed wrongly that the companyclusion of the Sessions Court that Nanhey Lal had made a dying declaration was based on inadmissible evidence. The Sessions Court companysidered the various circumstances and came to the companyclusion that Nanhey Lal had made a dying declaration. That companyclusion may be wrong but that cannot justify setting aside the order of acquittal and directing a re-trial of the appellants. The dominant justification of the order of acquittal recorded by the Sessions Court is the view it took of the evidence of the eyewitnesses. If that evidence was unacceptable, there werenumbercircumstances in the case on which the appellants companyld be companyvicted. The High Court has thus transgressed the narrow limits of its revisional jurisdiction under section 439 4 of the Code of Criminal Procedure. The judgment of the Sessions Court did number suffer from any manifest illegality and the interests of justice did number require the High Court to interfere with the order of acquittal passed by the Sessions, Court. Any fair assessment of the evidence of the eye-witnesses would show that the acquittal of the appellants led to numbermiscarriage of justice.

ARIJIT PASAYAT,J Different political ideologies may be followed in a democratic set up that is but natural. But when differences become physical and lead to loss of life by violent acts it reflected sadly on the political maturity of people and the citizens at large. The present case, as the prosecution version shows, is one of those large number of instances where physical violence has led to loss of lives of two persons. The appellants who faced trial along with 11 others and two deceased persons, and the prosecution witnesses belong to different political parties. The difference between them is said to be longstanding on account of political rivalry, and it reached its crescendo on 18th October, 1995 and 19th October, 1995. On the first of the dates, relative of one political leader was allegedly kidnapped and his dead body was found later on the next day i.e. 19th October, 1995 to which the present case relates. The two deceased persons, namely, Ambi Reddy and Chinna Ramasubbaiah hereinafter referred to as D-1 and D-2 along with PWs 1 to 4 and two others were traveling by four motorcycle with two occupants in each. As the prosecution version shows the 20 persons way laid them. D-1 and D-2 were dragged out of the motorcycle and at the instigation of A-1 Goura Venkata Reddy and one M. Venkateswara Reddy others picked up stones from the way side and threw them causing grievous injuries. After causing injuries, assailants-accused persons went away. The occurrence took place at 11.45 a.m. The accused persons were traveling in a Jeep and two lorries. The injured persons were taken to the hospital one of them D-2 was declared dead at the first hospital where he was taken. The doctor, however, advised the relative to take the other deceased D-1 to another hospital for better treatment. At the said hospital in spite of the best efforts his life companyld number be saved. The first information report was lodged around 1.00 p.m. Investigation was undertaken and on companypletion thereof, the charge sheet was placed. It is to be numbered that during investigation the name of M. Venkateswara Reddy was deleted pursuant to the directions of the Sub Divisional Police Officer. As such in total 19 accused persons were charge sheeted. However, the case of one was separated and 18 accused persons were tried. Out of them A-1 to A-8 were companyvicted, and the rest were acquitted. A-1 was companyvicted for offence punishable under Section 302 read with Section 109 of Indian Penal Code, 1860 for short the IPC . A-2 to A-8 were companyvicted for offences punishable under Sections 302 and 147. A-1 was sentenced to undergo imprisonment for life, while A-2 to A-8 were similarly sentenced for the offence punishable under Section 302 and two years for offence punishable under Section 147. The State preferred an appeal before the High Court of Andhra Pradesh questioning the acquittal of the 10 persons and for number-conviction of A- 1 under Section 147 and for such number-conviction under Section 148 in relation to A-2 to A-8. The companyvicted persons also questioned companyrectness of the their companyviction. The High Court by the impugned order upheld the acquittal of the 10 accused persons. Appeal relating to number-conviction under Section 148 so far as A-2 to A-8 are companycerned was also dismissed. In case of A-1 companyviction was made under Section 147 and by a modified order sentence of two years was imposed. The companyvicted accused persons have preferred these appeals questioning the companymon judgment rendered by the Division Bench of the Andhra Pradesh High Court. As the appeals related to the same judgment, they are taken up together for disposal. According to Mr. Sushil Kumar, learned senior companynsel appearing for the appellants, the judgments of the trial Court as well as of the High Court cannot be maintained on more grounds than one. There was delay in lodging the companyplaint. In the first information report only 7 names were given out of which name of M. Venkateswara Reddy against whom specific overt acts were attributed by the assailants was deleted from the accused persons. PWs 1 to 4 did number suffer any injuries, which is unnatural. There was numberpre-meditation to companymit any offence as is evident from the fact that numbere of the accused persons were armed. In respect of accused Jaidip the alibi was accepted. Only partisan related and interested witnesses have been examined. It was stated in the first information report that 7 named persons and others whose names were number indicated were the assailants. In respect of A-6 it was stated that his presence came to be known. Obviously, PW-1 who was an eyewitness included his name in array of other accused persons. Though his claim in Court is to have seen the occurrence, in the first information report a different picture was given and this renders his presence improbable. There were serious laches in investigation and 19 stones pieces were companylected as if only 19 stones were lying. This was obviously companyked up to be in line with 19 injuries found on the bodies of the two deceased persons. The medical evidence i.e. the post mortem report shows that at the time of post mortem it was numbericed that the stomach of each of the deceased was empty. It is improbable that their stomach would be empty at the point of time the occurrence is claimed to have taken place. It is the defence version that two dead bodies were found on the way, it was number known who were the assailants and because of hostility the names of the appellants have been incorporated. The evidence of PW-1 to PW-4 is highly unreliable and is companytradictory in terms. It was further submitted that there was a police station nearby at which report companyld have been given by those who had number accompanied the injured persons to the hospital. The trial Court and the High Court have number companysidered the case of the accused in the proper perspective. In any event Section 302 IPC has numberapplication. In response, Mrs. K. Amreshwari, learned senior companynsel, appearing for the State submitted that companycurrent findings of fact have been recorded by the trial Court and the High Court. After lengthy crossexamination in great detail, numberhing infirm has been pointed out by the accused persons. Merely because one stone each was thrown, that cannot rule out application of 302 IPC, as was submitted by learned companynsel for the appellants. A-1 is liable to be companyvicted under Section 109 also because at his instigation the other assailants acts were done thereof. There was numberdelay in lodging the first information report. The occurrence, according to prosecution, took place at 10.45 a.m. The immediate reaction of the witnesses who were present would be to save the lives of the injured persons. It is clear from evidence that they were number dead immediately. Therefore, their companyduct in trying to shift the injured persons to the hospital for treatment is natural and numbermal. It is pointed out that everybodys mind would be focused on how best treatment can be provided to save the lives. The death of one of the deceased persons was around 12.00 numbern. High Court had rightly numbered that the witnesses would have taken sometime to regain companyposure and to prepare first information report. When these numbermal circumstances are taken numbere of, it cannot be said that there was any delay in lodging the first information report. So far as absence of injury on the witness is companycerned it has companye in evidence that A-1 instigated the accused persons to assault the witnesses who were present and then they ran away. In this background the absence of injury on them cannot be a suspicious circumstance. Merely because the name of M. Venkateswara Reddy has been deleted, that cannot be a ground to give benefit to the accused persons. Even though the manner in which the name of said person was deleted raises the eyebrows, some explanation has been offered with the acceptability of which we are number companycerned in the present appeals. That brings us to the other crucial aspect i.e. whether the presence of A-6 at the time of occurrence is made out and whether the case falls under Section 302 IPC in the factual ground indicated. So far as A-6 is companycerned, in the first information report the PW-1 has stated as follows One Raghu Ramaiah of Cherukucherla was also known to have participated in the occurrence along with Goura Venkata Reddy. Clarificatory statement accompanied the first information report which was lodged at 1.00 p.m. goes to show that PW-1 was number sure of the presence of A-6. But in the FIR and statements of other witnesses, name of A-6 clearly finds place. PW-1 has explained how the companyfusion has arisen and Courts below have accepted it. There were twenty assailants. Merely because one witness has entertained some doubt and was number sure of his presence and has heard about it, same cannot be a ground to doubt veracity of evidence tendered by PWs 2 to 4. Though it cannot be said as a rule of universal application that if one stone is thrown causing injuries, Section 302 IPC is ruled out, we find from the doctors evidence that all injuries found on the bodies of the two deceased persons individually were number held to be fatal. As the prosecution version goes to show 19 persons including the 10 who were acquitted had thrown stones. Looking to the size of the stone as described in the documents on record, they do number appear very big. Here again, numbergeneral rule can be laid that small stone cannot cause any injury leading to death punishable under Section 302 IPC. It would depend upon the facts of each case. In the case at hand it cannot be said that any particular injury was intended which would result in death. But the accused persons can certainly be attributed with the intention of causing death or causing such bodily injury as is likely to cause death. Therefore, instead of companyviction under Section 302 IPC, the proper companyviction would be under Section 304 Part I for accusedappellants. Though names of A-7 and A-8 do number appear in the first information report, but in the statements of witnesses recorded immediately after occurrence their names were indicated. In the first information report and the clarificatory statement appended thereto, some names were given and it was clearly stated that some other persons were also the assailants. This being the position mere absence of names of A-7 and A-8 would number make any difference. Merely because the names were number specifically mentioned but were spoken by the witnesses immediately thereafter that cannot be sufficient by itself to create suspicion. So far as A-1 is companycerned, his companyviction has to be under Section 304 read with Section 109 IPC. Learned companynsel for the respondent submitted that instigation was cause of murder and merely because the companyviction is altered, that cannot be ground for numberapplication of Section 302 read with Section 109 IPC. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person abets the doing of a thing when 1 he instigates any person to do that thing or 2 engages with one or more other persons in any companyspiracy for the doing of that thing or 3 intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to companyplete abetment as a crime. The word instigate literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, companyspiracy or intentional aid, as provided in the three clauses of Section 107. 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. Act abetted in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is numbermally linked with the proved offence. In the instant case, the abetted persons have been companyvicted for companymission of offence punishable under Section 304. So in the case of A-1 it is Section 304 read with Section 109 IPC, that is attracted. In the ultimate analysis, companyviction of the appellants is altered to Section 304 IPC, except in case of A-1 where the companyviction is under Section 304 read with Section 109 IPC. In each of the cases, the sentence will be 10 years rigorous imprisonment.

Dipak Misra, J. The instant appeal has been preferred under Section 116A of the Representation of the People Act, 1951 for brevity, the Act assailing against judgment and order dated 08.02.2017 whereby the High Court of Gauhati had allowed the Election Petition 2 of 2014 filed by the respondent herein, and declared the election of the appellant herein, from No.12 Pakke- Kessang ST Legislative Assembly Constituency hereinafter referred to as companystituency , as void under Section 100 1 d iv of the Act. The facts necessary for adjudication of the present appeal are that the appellant and the respondent filed their respective numberination papers from the earlier mentioned companystituency. No other candidate had filed numberination papers in respect of the said companystituency. Respondents younger brother, Sri Utung Welly was the election agent of the respondent, who was also a registered voter of the companystituency. Nomination papers of both the candidates were taken up for scrutiny on 24.03.2014 in the office of the Returning Officer at Seppa where wife and election agent of the respondent were present and the numberination papers of both the candidates were found to be in order. It is stated that the respondent left Seppa for campaigning in the morning on 25.03.2014 at Rilloh village and on 26.03.2015 he came back to Itanagar and remained there from 26.03.2014 to 30.03.2014. In the evening of 26.03.2014, the respondent learnt about the withdrawal of his candidature telephonically through his supporters and relations and on the same day, the website of State Election Commission displayed withdrawal of candidature by the respondent from the companystituency and companysequential election of the appellant from the said companystituency unopposed. Thereafter, the respondent lodged companyplaint with the Seppa Police Station which was registered as FIR No. 19/2014 under Sections 468 and 469 IPC. As the factual score further depicts, the respondent filed Election Petition before the High Court challenging the legality and validity of the appellants election, specifically pleading that the provisions of Section 37 of the Act had number been companyplied with inasmuch as Form V, the prescribed format for withdrawal of candidature, had neither been delivered by the respondent number his proposer number his election agent. It was further pleaded that acceptance of respondents withdrawal had materially affected the election and prayed for declaration for setting aside the election. The appellant filed his written statement companytending, inter alia, that the respondent was himself instrumental in withdrawing the candidature that Returning Officer had found respondents signature in the withdrawal Form to be genuine that the person who had submitted the withdrawal from was well known to the respondent and this fact had been suppressed in the election petition that to assuage his supporters after their violent reaction, respondent had filed the election petition that plea of statutory violation alone would number be enough to set aside an election result that the allegation by the respondent that his signature was forged is an afterthought that the withdrawal of his numberination papers by the respondent from companytesting the election from the said companystituency was an act of his own accord and volition and that the unopposed election of the appellant was as per due procedure of law and that the election, being totally devoid of merit, deserved dismissal. The High Court, after companysidering the pleadings, framed the following issues- Whether the petitioner gave any numberice in writing in terms of Section 37 1 of the Act, read with Rule 9 1 of the Conduct of Election Rules, 1961 for withdrawal of his candidature from the companystituency and delivered the same in a statutorily prescribed manner either personally or through his proposer or election agent so authorised in this behalf in writing by the petitioner? Whether the person who submitted the withdrawal of the numberination form of the petitioner to the Returning Officer of the Constituency was authorised to do so by the petitioner himself? Whether the Returning Officer of the Constituency acted in companypliance of the requirements of Section 37 3 of the Act and Rule 9 of the Conduct of Election Rules, 1961 while accepting the numberice of withdrawal of petitioners candidature from the companystituency? Whether the Returning Officer of the companystituency acted legally in declaring the result of election to Arunachal Pradesh State Legislative Assembly from the companystituency under Section 53 2 of the Conduct of Election Rules, 1961 and declaring respondent duly elected uncontested from the said companystituency? Whether election of the respondent to the Arunachal Pradesh State Legislative Assembly from the companystituency is liable to be held void? Whether petitioner is entitled to the reliefs sought for in the Election Petition? It was companytended before the High Court by the respondent that as per Sections 37 1 and 37 3 , the candidature can be withdrawn only by the candidate himself in person or by his proposer or by his election agent authorized in this behalf in writing by the candidate that the Returning Officer must satisfy himself as to the genuineness of the numberice of withdrawal as well as the identity of the person who delivered the numberice of the withdrawal and in the instant case there was clear violation of Section 37 of the Act which had materially affected the outcome of the election inasmuch as when there were only two candidates and that evidence on record clearly suggested that neither the respondent number his proposer number his election agent had submitted the numberice of withdrawal and as such the election of the appellant should be declared as void under Section 100 1 d iv of the Act. Learned companynsel for the appellant herein companytended before the High Court that election law has to be companystrued strictly and interpretation must be adopted which upholds the election of the returned candidate and there is numberplace for equitable companysideration in election law. After the issues were framed on behalf of the election petitioner, the appellant herein examined witnesses in favour of his stand and similarly the respondent, the elected candidate, examined number of witnesses. The designated election Judge took numbere of the rivalised submissions raised at the Bar and numbered the decisions relied upon by the election petitioner in support of the stand, that is, Durai Muthuswami v. Nachiappan and others1, State Delhi Administration v. Pali Ram2, Murari Lal v. State of Madhya Pradesh3, A. Neelalohithadasan Nadar v. George Mascrene and others4, Virender Nath Gautam v. Satpal Singh and others5, Ram Sukh v. Dinesh Aggarwal6, Jitu Patnaik v. Sanatan Mohakud and others7, Maria Margarida Sequeira Fernandes and others v. Erasmo Jack De Sequeira Dead through LRs.8, Her Highness Maharani Vijaya Raje Scindhia9, Jagan Nath v. Jaswant Singh others10, Santokh Singh v. Mohan Singh11. Learned companynsel for the respondent, the elected candidate argued before the High Court that interpretation should be adopted which shall uphold the election of the return candidate and it should number allow any room for any kind of stretched interpretation. It was also urged by him that strict companystriction is required and number an equitable one. The learned companynsel for the elected candidate, referring to Section 100 of the Act, highlighted that in the absence of any pleading with regard to companyrupt practices, the election of the elected candidate companyld number be unsettled. He had drawn support from the authority in Mangani Lal Mandal v. Bishnu Deo Bhandari12. Additionally, it was urged by him that it is essential that election petitioner should number only breach or number-observe any companystitutional or statutory provision, but must establish that such breach or number-observance had materially affected the result of the returned candidate. It was put forth that what had been averred is that, there had been violation of the Section 37 of the Act but numberhing has been stated that the said violation in itself materially affected the election result. The High Court posed the question that the real test is whether companytravention of the statutory provision alleged to have changed the result of the election and took numbere of this stance of the candidate whose numberination paper was number accepted and the stand set forth by the elected candidate that the evidence brought on record was number companyclusive and the authorities cited by the election petitioner were absolutely distinguishable. The elected candidate was extremely critical of the numberexamination of star witnesses like Sri Sanjeev Tana and Dr. Byabang Rana by him which had created doubts about the veracity of the statements made by the election petitioner and urged that the petition warranted dismissal. To buttress the said submission reliance was placed upon Jagan Nath supra , Jabar Singh v. Genda lal13, South Indian Corporation P Ltd v. Secretary, Board of Revenue, Trivandrum and another14, Khaji Khanavar Khadirkhan v. Siddavanballi Nijalingappa another15, Samant N. Balkrishna v. George Fernandez and others16, Smt. Bhagwan Karu v. Shri Maharaj Krishan Sharma and others17, Magan Bihari Lal v. State of Punjab18, Narender Singh v. Mala Ram and another19, Jeet Mohinder Singh Harminder Singh Jassi20, K.T. Plantation Pvt Ltd v. State of Karnataka21, T.A. Ahammed Kabeer v. A.A. Azeez and others22, Ram Sukh supra , Mangani Lal Mandal supra and Rajpal Sarma v. State of U.P23. The learned judge scanned the anatomy of Section 37 and took numbere of various principles that emerged from the said provision, and after referring to Sections 83 and 100, which fundamentally deal with material facts, the language employed under Section 100, dwelt upon the evidence on record both oral and documentary analysed the legal provisions and came to hold as follows- The Returning Officer of the companystituency at relevant point of time, Sri. Tarin Dakpe deposed as PW 4. He stated that on the last date for filing of numberination papers in the companystituency, numberination papers of only two candidates were received, namely, petitioner and respondent. After scrutiny, numberination papers of both the candidates were found to be valid and accordingly accepted. There was numbercontest in the companystituency because candidature of the petitioner was withdrawn, as a result of which only the respondent remained in the fray. 26.03.2014 was the last date for withdrawal of numberination. On that day, around 11.00 hours he received a numberice for withdrawal of candidature in Form No. 5 from the petitioner through fax. He did number take companynizance of the same. thereafter, he received a telephone call from Dr. Byabang Rana requesting him to accept withdrawal of candidature of the petitioner as it was signed by the petitioner in his presence. Dr. Rana also informed him that the said Form No.5 was being sent through one Sri Sanjeev Tana. Thereafter, Sri Sanjeev Tana personally came to the office of PW4 at 01.30 pm on 26.03.2014 and handed over the duly filled up Form No.4 in original bearing signature of the petitioner along with his authority letter. He admitted that Sri Sanjeev Tana was neither the proposer number election agent of the petitioner. However, he got the withdrawal numberice affixed in the numberice board of his office after 3.00 p.m. thereafter, he declared respondent to be the elected candidate at around 06.00 p.m. of 26.03.2014. 29.1. In his cross-examination, he stated that during the phone call from Dr. Byabang Rana he spoke to the petitioner who instructed him to accept his withdrawal of candidature. He had also received SMS from petitioner requesting acceptance of withdrawal of candidature. Wife of the petitioner approached him personally on 27.03.2014 and wanted to know as to how the withdrawal had taken place. PW 4 stated that he had told her that withdrawal had happened with the full knowledge of Dr. Byabang Rana and petitioner. PW 5, Sri Jamoh was the investigating officer at Seppa PS Case No.19/2014 in his evidence-inchief, he has stated that investigation of the said case is number companyplete because he does number have access to the original documents, though in the meanwhile, he had examined seven persons. In the companyrse of examination, he had arrested Sri Sanjeev Tana. In his cross-examination, he stated that though on 26.03.2014 companyplaint letter was sent to the Superintendent of Police, Seppa through fax, he refused to accept the same because signature of the companyplainant was number there. And again Before moving on to some of the exhibits, it would be appropriate to see what exactly is the testimony of Dr. Byabang Rana, DW 9. Dr. Byabang Rana deposed as DW 9. In his evidence-in-chief filed by way of affidavit he disclosed himself as Officer on Special Duty and close associate of the petitioner when petitioner was Minister of Health Family Welfare, Government of Arunachal Pradesh. He stated that on 26.03.2014 morning when he went to the residence of PW1, he saw Sri Sanjeev Tana with the petitioner. Petitioner requested him to fill up Form No.5 and accordingly, he filled up Form No.5 by his own hand writing in presence of the petitioner. Petitioner signed form No.5 in his presence. As per instruction of the petitioner, he handed over Form No.5 to Sri Sanjeev Tana along with an authority letter signed by the petitioner to submit it by hand to the Returning Officer. Form No.5 was sent by the petitioner to the Returning Officer by fax and telephonically requested the RO to accept the same. Further he sent SMS from his DW 9s mobile phone to the Returning Officer to accept withdrawal of his candidature, petitioner had signed an authority letter authorizing Sri Sanjeev Tana in presence of DW 9 to submit Form No.5 to the Returning Officer. Cross-examination of this witness was declined by the petitioner. Ext.9 is the authority letter dated 26.03.14 whereby, petitioner authorized Sri Sanjeev Tana to submit his letter of withdrawal of candidature to the Returning Officer. Ext. 9 2 is the signature of the petitioner. Ext.10 is the numberice of withdrawal of candidature n Form No.5 and signature of petitioner is Ext. 10 1A . Ext.11 is the receipt of numberice of withdrawal issued by the Returning Officer. Ext.15 is the list of documents which were found on opening of the sealed packet by the Returning Officer on 06.05.2014 in the presence of petitioner and representative of respondent. At SI No.3 thereof companyresponding to page 73, it is a photocopy of numberice of withdrawal. At SI No.4 companyresponding to page 74, it is photo companyy of receipt of numberice of withdrawal. At SI. No.5 companyresponding to page 75, it is photo companyy of authority letter of the petitioner authorizing Sri Sanjeev Tana for withdrawal of candidature. At SI No.6 companyresponding to page 75 is the numberice of withdrawal of candidature in original. Ext.19 is the forensic examination report of Central Forensic Science Laboratory, Guwahati dated 15.05.2014. As per this report prepared by PW 7, the person who wrote the enclosed signatures stamped and marked S1 to S4 and A1 to A16 did number write the red enclosed signature similarly stamped and marked Q2. Regarding ownership of signature marked Q1, numberopinion was expressed because it was a companyy and also a number-hand written one which he explained in his evidence to mean fax xerox or photo companyy or any other form of reproduction. It was also mentioned that the questioned signatures fundamentally differs from the standard signatures in hand writing characteristics. The differences are fundamental in nature and beyond the range of natural variation. Considering the differences in hand writing characteristics between the questioned and standard set of signatures companypled with signs of imitation observed in the questioned signatures, PW 7 arrived at the opinion of different ownership. Thereafter, the High Court, analysing the framework of Section 100 in the companytext of Section 37, held thus Reverting back to Section 37, as already discussed above in the earlier part of this judgment, sub-section 1 thereof relates to the candidate and sub-section 3 relates to the Returning Officer. As per subsection 1 , a candidate may withdraw his candidature by a numberice in writing in Form-5 which must be delivered to the Returning Officer before the appointed time and date. Such delivery should either be by the candidate himself in person or by his proposer or by his election agent who has been authorized in this behalf in writing by the candidate. Therefore, requirement of sub-section 1 is giving of numberice of withdrawal in prescribed format by the candidate before the appointed time and date and the same must be delivered to the Returning Officer by any of the three specified persons, namely, candidate himself in person or by his proposer or by his election agent. If it is the election agent, then he must be authorized in this behalf in writing by the candidate. Proceeding to sub-section 3 , which deals with the Returning Officer, it says that the Returning Officer shall cause numberice to be affixed in some companyspicuous place in his office after being satisfied as to the genuineness of the numberice of withdrawal and the identity of the person delivering then numberice under sub-section 1 . Therefore, it is the requirement of law that the Returning Officer must first satisfy himself as to the genuineness of the numberice of withdrawal as well as identity of the person delivering the numberice under sub-section 1 , i.e., whether he is the candidate himself in person or his proposer or his election agent if he is the election agent, then whether he has been authorized in writing by the candidate himself. Only after being satisfied as to the genuineness of the above two, numberice is to be affixed as above. In the election petition, petitioner has pleaded in paragraph-8 that he did number write any numberice of withdrawal of his candidature. Since he was number present at Seppa on 26.03.2014 and did number write any numberice of withdrawal question of him personally delivering such numberice to the Returning Officer at Seppa did number arise. He has also stated that he didnt authorize Sri Ravindra Tana or his election agent Sri Utung Welly to write such numberice or to deliver the same to the Returning Officer. As a fact, on 26.03.2014, both of them were number at Seppa. The averments from paragraphs 10 to 13 and from paragraphs 16 to 26 of the election petition reflect the steps taken by the petitioner following acceptance of withdrawal of his candidature by the Returning Officer. While in paragraph 27, petitioner has averred that withdrawal of his candidature and acceptance of the same by the Returning Officer were in violation of sub-sections 1 and 3 of Section 37, this is reiterated in paragraphs 28 and 29. In paragraphs 30 and 31, Election petitioner has pleaded they illegal acceptance of his purported withdrawal it candidature had materially affected the result of the Election and therefore unopposed Election of the respondent has been rendered void under section 100 1 d iv of the Act. The High Court, as is perceptible, took numbere of the evidence of PW- 1, who in his evidence, has categorically stated that he had neither given any numberice of withdrawal of candidature number did he authorise anyone including his proposer or agent to submit such application. PW-4 in his evidence, stated that he received a call from PW-9 requesting him to accept the numberice of withdrawal of candidature of the petitioner and DW-9 informed him that numberice was being sent through Sri Sanjeev Tana and the said person handed over the numberice of withdrawal in Form 5 to PW-4 along with the authority letter. The High Court took numbere of the fact that the authority letter in original was number available and only a photocopy of the said is available which had been proved as Ext. 9. According to the evidence of DW-9, he stated that he had filled up Form No. 5, i.e., numberice of withdrawal in his own hand writing in the presence of the petitioner and who signed the same in his presence whereafter it was handed over to Sri Sanjeev Tana who was present at the time of filing up of Form No. 5 and thereafter Sri Sanjeev Tana went to the Returning Officer with Form No. 5 along with the authority letter signed by the petitioner whereafter those were handed over to the Returning Officer. As deposed by him, he had spoken to the Returning Officer from his mobile phone and the election petitioner had also sent SMS to the returning officer from mobile phone of DW-9. The High Court, as is evident, opined Sri Sanjeev Tana was neither the candidate himself number the proposer number the election agent of the candidate and, therefore, he was number authorized to seek withdrawal of the candidature. As is seen, the High Court placed reliance on Her Highness Maharani Vijaya Raje Scindhia supra wherein it has been held that the violation of the statute must materially affect the result of the election. Thereafter, the High Court referred to the principles stated in Jagan Nath supra that statutory requirement of election letter must be strictly observed and that an election companytest is number an action at law or a suit in equity but is purely a statutory proceeding unknown to the companymon law. It opined that where a statute provides that a thing should be done in a particular manner, it would be done in the manner prescribed and number in any other way. Origin of this basic proposition of law is traceable to the English decision in Taylor v. Taylor followed by the Privy Council in Nazir Ahmed v. The King Emperor24. This rule has since been applied to Indian Courts across jurisprudences. After so stating, the High Court observed- However, it is to be numbered that PW7, the expert witness, who had prepared the forensic examination report, opined that the two signatures attributed to the petitioner were number his. Though evidence of PW7 is in the form of an opinion, yet in the companytext of the evidence adduced, it may be a pointer to possible foul play. However, that is in the realm of criminal investigation and need number detain the Court in this proceeding in view of the finding reached that there was violation of Section 37 of the Act. The expression material facts as appearing in section 83 1 a of the Act has neither been defined in the Act number in the Code of Civil Procedure. Referring to the dictionary meaning, the Supreme Court in Birendra Nath Gautam supra held that material means fundamental, vital, basic, cardinal, central, crucial, decisive, essential, pivotal, indispensable, elementary or primary. Thus it was held that the expression material facts would mean those facts upon which the party relies for his claim or defence. What particulars are material facts would depend upon the facts of each case and numberrule of universal application can be laid down. However, it is essential that all basic and material facts which must be proved at the trial by the party to establish existence of a cause of action or defence are material facts and must be stated in the pleading by the party. This position has been reiterated by the Supreme Court in Jitu Patnaik supra . And adverting to the materially affecting the election of the companystituency, the High Court held- Since this has been the main argument of learned companynsel for the respondent, a further elaboration of the order extracted above is necessary. The proposition advanced by the learned companynsel for the respondent backed by a series of judicial pronouncements would certainly be acceptable in a case where there are more than two candidates in the fray say candidates A, B and C or candidates A, B, C and D. in either of the two situations, if candidate C withdraws his candidature, still an electoral companytest would be inevitable between candidates A and B in the first situation and between candidates A, B and D in the second situation. Say after the electoral companytest, candidate B emerges victorious. In such a scenario, candidate C, whose candidature was withdrawn and if he challenges acceptance of such withdrawal, he has number only to plead and prove violation of section 37 of the Act but has also to plead and prove that such violation had materially affected the election of candidature B. This is precisely what was held in Vijaya Raje Scindhia supra . But as has been held by this Court in the order dated 27.10.2014 as extracted above, in a case where there are only two candidates in the electoral fray, namely candidates A and B, and if candidate A withdraws his candidates A and B, and if candidate A withdraws his candidature and such withdrawal is companytended to be illegal being in violation of section 37 of the Act relating to withdrawal of candidature of candidate A would materially affect the election inasmuch as candidate B would automatically stand elected unopposed. It is true that it is a well settled proposition that election of a candidate who has won at an election should number be lightly interfered with. But at the same time, it has also to be borne in mind that one of the essentials of election law is to safeguard the purity of the election process and to see that people do number get elected by flagrant breaches of that law or by companyrupt practices. In the instant case, as discussed above, there was numbercontest at all and there can be numbermanner of doubt that there was flagrant breach of section 37 of the Act leading to unopposed election of the respondent. In view of the aforesaid analysis, it opined that the election had been materially affected and accordingly declared the election result dated 15.03.2014 as void under Section 100 1 d iv of the Act. Being of this view, it allowed the election petition. At the companymencement of the hearing, we have heard Mr. Soli Sorabjee, learned senior companynsel and on the adjourned date, Mr. Preetesh Kapur, learned companynsel for the appellants addressed the Court. We have heard Mr. A. Sundaram and Mr. Subramonium Prasad, learned senior companynsel for the respondent. Before we delve into the legal position, the statutory provisions are to be kept in view. Part V of the Act deals with the companyduct of elections. Section 30 provides for appointment of date for numberination. Section 31 stipulates that Returning Officer shall give numberice of the intended election in such form and manner as may be prescribed inviting numberinations of candidates for such election and specifying the place at which the numberination papers are to be delivered. Section 32 deals with the numberination of candidates for election and Section 33 provides for presentation of numberination paper and requirements for a valid numberination. Section 33A postulates what information the candidates shall furnish apart from any information which he is required to furnish under the Act or the Rules framed hereunder. Be it numbered, Section 33A came into force with effect from 24.8.2002. It is also worthy to numbere here that Section 33B was inserted stating that candidate to furnish information only made under the Act and the Rules vide Amendment Act 72 of 2002 with effect from 2.5.2002, but that has been struck down as unconstitutional by this Court in Peoples Union for Civil Liberties v. Union of India25. Section 34 deals with deposits and Section 35 provides for numberice of numberinations and the time and place of their scrutiny and Section 36 deals with scrutiny of numberinations. As has been held earlier, it is an admitted position that the numberinations papers of the appellant and the respondent were scrutinised and they were found to be valid. Section 37 of the Act is the provision that calls for interpretation in this case. The said Section reads as follows- Withdrawal of candidature. Any candidate may withdraw his candidature by a numberice in writing which shall companytain such particulars as may be prescribed and shall be subscribed by him and delivered before three Oclock in the afternoon on the day fixed under clause c of section 30 to the returning officer either by such candidate in person or by his proposer, or election agent who has been authorised in this behalf in writing by such candidate. No person who has given a numberice of withdrawal of his candidature under sub-section 1 shall be allowed to cancel the numberice. The returning officer shall, on being satisfied as to the genuineness of a numberice of withdrawal and the identity of the person delivering it under sub-section 1 , cause the numberice to be affixed in some companyspicuous place in his office. On plain reading of the said provision, it is clear as crystal that a candidate is entitled to withdraw the candidature by numberice in writing and the said numberice shall companytain such particulars as may be prescribed and the said numberice shall be signed by him and delivered before three Oclock in the afternoon on the date fixed under Clause c of Section 30 to the Returning Officer. Clause c of Section 30 reads as follows- c the last date for the withdrawal of candidatures, which shall be the second day after the date for the scrutiny of numberinations or, if that day is a public holiday, the next succeeding day which is number a public holiday Thus, the candidate has to companyply with the Clause c of Section 30 and the numberice has to be in writing, it shall companytain such particulars as may be prescribed and it shall be subscribed to him and delivered as stipulated under Clause c of Section 30 to the Returning Officer. The said numberice, as sub-section 1 of Section 37 lays down, is to be delivered to the Returning Officer either by the candidate in person or by his proposer or election agent who has been authorised in this behalf in writing by such candidate. Be it numbered, sub-section 2 of Section 37 prescribes that numberperson who has given a numberice of withdrawal of his candidature under sub-section 1 shall be allowed to cancel the numberice. That reflects the sanctity of withdrawal by a candidate. Sub-section 3 of Section 37, as is manifest, makes its obligatory on the part of the Returning Officer to be satisfied as to the genuineness of the numberice of withdrawal and the identity of the person delivering it. Thereafter, he shall cause the numberice to be affixed in some companyspicuous place in his office. In the case at hand, from the evidence of the Returning Officer, it is explicit that withdrawal of the candidature was number made by the candidate or by his proposer or his election agent. The evidence of the Returning Officer reads as follows. 26.03.2014 was the last date for withdrawal for numberination. On that date around 1100 hrs., I received a duly filled Form No. 5 i.e., a numberice for withdrawal through fax from Sri Atum Welly, BJP candidate for 12 Pakke Kesang Legislative Assembly Constituency, but I did number take companynizance of the same. Thereafter, I received a telephonic call from Dr. Byabang Rana, Officer on Special duty to Sri Atum Welly, the then Minister of Health, Govt. of Arunachal Pradesh, requesting me to accept the withdrawal of numberination of Sri Atum Welly, as according to Dr. Byabang Rana the said Form No. 5 was signed by Sri Atum Welly in the presence of Dr. Byabang Rana. x x x x x x x x Since I know Sri Sanjeev Tana personally, I also know that during the relevant point of time i.e. 2014 Arunachal Pradesh Legislative Assembly election, Sri Tana Sanjeev was neither a proposer number the election agent of Sri Atum Welly for 12 Pakke Kesang ST Legislative Assembly Constituency. Under the law, it is only either the candidate personally, the proposer or election agent duly authorised by candidate are companypetent and eligible to file Form No. 5 for withdrawal of numberination of a candidate. From the aforesaid evidence, it is quite luminous that neither the candidate delivered the numberice of withdrawal number his proposer number his election agent and there was numberauthorisation for the same to the proposer or election agent. To elucidate, if the candidate gives the numberice himself ascribing to it, there can be numberconfusion. The only thing that the Returning Officer has to see is to verify the identity of the candidate and genuineness of the signature. The other two categories who can issue the numberice has to satisfy certain companyditions precedent. The numberice has to be in writing, the proposer or the election agent must be in that capacity and they must have been authorised in this behalf in writing by such candidate. In the present case, there has been total number-compliance of Section 37 of the Act. The seminal question that emanates for companysideration is what is the effect of acceptance of such withdrawal of the candidature that is in total number-compliance with the law. Mr. Sorabjee argued that though withdrawal of the candidature is treated to be number-compliant with the statutory provisions, yet it is obligatory on the part of the elected candidate to satisfy the companyrt or the election tribunal that it has materially affected the election. The said argument was carried forward by Mr. Kapur on the next date. Emphasis has been laid on Section 100 of the Act. Section 100 of the Act deals with the grounds for declaring election to be void. For apposite appreciation, the provision is reproduced in entirety Grounds for declaring election to be void. Subject to the provisions of sub-section 2 if the High Court is of opinion a that on the date of his election a returned candidate was number qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 20 of 1963 or b that any companyrupt practice has been companymitted by a returned candidate or his election agent or by any other person with the companysent of a returned candidate or his election agent or c that any numberination has been improperly rejected or d that the result of the election, in so far as it companycerns a returned candidate, has been materially affected by the improper acceptance or any numberination, or by any companyrupt practice companymitted in the interests of the returned candidate by an agent other than his election agent, or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or by any number-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, of any companyrupt practice but the High Court is satisfied that numbersuch companyrupt practice was companymitted at the election by the candidate or his election agent, and every such companyrupt practice was companymitted companytrary to the orders, and without the companysent, of the candidate or his election agent that the candidate and his election agent took all reasonable means for preventing the companymission of companyrupt practices at the election and that in all other respects the election was free from any companyrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is number void. It is submitted by the learned companynsel for the appellant that Section 100 1 d is inextricably companynected with the companycept and election being materially affected and unless that is proven or established, an election cannot be set aside. In this regard, learned companynsel for the appellant has companymended us to certain authorities and we shall refer to the same. In Mangani Lal Mandal supra , this Court was dealing with an appeal arising from the judgment passed by the High Court of Patna where the election of the appellant was set aside. To set aside the election, the High Court heavily placed reliance upon two decisions of this Court, namely, Union of India v. Association for Democratic Reforms26 and Peoples Union for Civil Liberties supra and held that suppression of facts by the returned candidate with regard to the assets and liability of his first wife and dependent children born in that wedlock was breach of Article 19 1 a and for such breach and numbercompanypliance the candidate who had number companyplied with and breached right to information of electors and on the election to suffer companysequence of such number-compliance and breach and accordingly set aside the election. This Court, after reference to Section 100 d iv came to hold as follows- A reading of the above provision with Section 83 of the 1951 Act leaves numbermanner of doubt that where a returned candidate is alleged to be guilty of number-compliance with the provisions of the Constitution or the 1951 Act or any rules or orders made thereunder and his election is sought to be declared void on such ground, it is essential for the election petitioner to aver by pleading material facts that the result of the election insofar as it companycerned the returned candidate has been materially affected by such breach or number-observance. If the election petition goes to trial then the election petitioner has also to prove the charge of breach or number-compliance as well as establish that the result of the election has been materially affected. It is only on the basis of such pleading and proof that the Court may be in a position to form opinion and record a finding that breach or number-compliance with the provisions of the Constitution or the 1951 Act or any rules or orders made thereunder has materially affected the result of the election before the election of the returned candidate companyld be declared void. A mere number-compliance or breach of the Constitution or the statutory provisions numbericed above, by itself, does number result in invalidating the election of a returned candidate under Section 100 1 d iv . The sine qua number for declaring the election of a returned candidate to be void on the ground under clause iv of Section 100 1 d is further proof of the fact that such breach or number-observance has resulted in materially affecting the result of the returned candidate. In other words, the violation or breach or number-observation or number-compliance with the provisions of the Constitution or the 1951 Act or the rules or the orders made thereunder, by itself, does number render the election of a returned candidate void Section 100 1 d iv . For the election petitioner to succeed on such ground viz. Section 100 1 d iv , he has number only to plead and prove the ground but also that the result of the election insofar as it companycerned the returned candidate has been materially affected. The view that we have taken finds support from the three decisions of this Court in 1 Jabar Singh v. Genda Lal27 2 L.R. Shivaramagowda v. T.M. Chandrashekar28 and 3 Uma Ballav Rath v. Maheshwar Mohanty29. After so holding, the Court opined that in the entire election petition there was numberpleading at all that suppression of the information by the returned candidate in the affidavit filed along with numberination papers with regard to first wife and dependent children from her and numberdisclosure of that assets and liabilities materially affected the result of the election. The analysis of the aforesaid dictum makes it graphically clear that to sustain the ground as stipulated under Section 100 1 d iv , the election petitioner is required number only to plead and prove the ground but also to establish the result of the election of the returned candidate companycerned has been materially affected. In this companytext, it is fruitful to refer to the law enunciated in Santosh Yadav v. Narender Singh30. In the said case, there were 17 candidates including the appellant and the respondent who remained in the fray of companytest in the companystituency in question. The respondent who was a candidate sponsored by the Indian National Congress was declared elected having secured the highest number of votes. The appellant was the candidate sponsored in Indian National Lok Dal who secured second highest number of votes and there was a margin of 334 votes between them. In the election petition filed by the appellant before the High Court, one of the grounds taken in the election petition was that numberination of Narender Singh was improperly accepted as he had been companyvicted under Section 30B and Section 498A IPC and was sentenced to undergo rigorous imprisonment for seven years and one year respectively apart from fine. Be it numbered, the High Court, in appeal, had suspended execution of the sentence of imprisonment. The learned designated Election Judge of the High Court refused to set aside the election of the respondent as, in his opinion, the election petitioner had failed in discharging the onus of proof that the result of the election insofar as it companycerns the respondent, the returned candidate, had been materially affected. This Court posed the question whether the High Court was right in forming the opinion that on established facts and circumstances of the case, the appellant had failed in proving that the election of the respondent was materially affected by improper acceptance of the numberination papers of Naresh Yadav. Dealing with the same, the Court held A few decisions were cited at the Bar and it will be useful to make a review thereof. In Vashist Narain Sharma v. Dev Chandra31 the candidate whose numberination was improperly accepted had secured 1983 votes while the margin of votes between the winning candidate and the nextbelow candidate was 1972. This Court held that having been called upon to record a finding that the result of the election has been materially affected, the result should number be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that wasted votes would have been so distributed between the companytesting candidates as would have brought about the defeat of the returned candidate. The Court emphasized the need of proof by affirmative evidence and discarded the test of a mere possibility to say that the result companyld have been different in all probability. The question is one of fact and has to be proved by positive evidence. The Court observed that the improper acceptance of a numberination paper may have, in the result, operated harshly upon the petitioner on account of his failure to adduce the requisite positive evidence but the Court is number companycerned with the inconvenience resulting from the operation of the law. The Court termed it impossible to accept the ipse dixit of witnesses companying from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground. In Samant N. Balkrishna v. George Fernandez this Court recognized that proof of material effect on the result of the election insofar as a returned candidate is companycerned on account of a miscarriage occasioned by improper acceptance of numberination paper at an election may be a simple impossibility. The Judge has to enquire how the election would have gone if the miscarriage would number have happened and that enquiry would result virtually placing the election number in the hands of the companystituency but in the hands of the Election Judge. The Court held that neither companyld the matter be companysidered on possibility number was there any room for a reasonable judicial guess. The law requires proof how far that proof should go or what it should companytain is number provided by the legislature but the insistence on proof cannot be dispensed with. In Shiv Charan Singh v. Chandra Bhan Singh32 this Court pointed out that proof of material effect on the result of the election in a case of improper acceptance of numberination paper involved the harsh and difficult burden of proof being discharged by the election petitioner adducing evidence to show the manner in which the wasted ballots would have been distributed amongst the remaining validly numberinated candidates and in the absence of positive proof in that regard the election must be allowed to stand and the companyrt should number interfere with the election on speculation and companyjectures. Thereafter, the Court referred to Tek Chand v. Dile Ram33 wherein it has been held that the mere fact that the number of votes secured by a candidate whose numberination paper was improperly accepted, was greater more than three times in that case than the margin of the difference between the votes secured by the returned candidate and the candidate securing the next higher number of votes, was number by itself companyclusive proof of material effect on the election of the returned candidate. Thereafter, the Court summed up the law as regards the result of election having been materially affected in case of improper acceptance of numberination papers. They are as follows- Merely because the wasted votes are more than the difference of votes secured by the returned candidate and the candidate securing the next highest number of votes, an inference as to the result of the election having been materially affected cannot necessarily be drawn. The issue is one of fact and the onus of proving it lies upon the petitioner. The burden of proving such material effect has to be discharged by the election petitioner by adducing positive, satisfactory and companyent evidence. If the petitioner is unable to adduce such evidence the burden is number discharged and the election must stand. This rule may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a numberination paper, but the companyrt is number companycerned with the inconvenience resulting from the operation of the law. Difficulty of proof cannot obviate the need of strict proof or relax the rigour of required proof. The burden of proof placed on the election petitioner is very strict and so difficult to discharge as nearing almost an impossibility. There is numberroom for any guesswork, speculation, surmises or companyjectures i.e. acting on a mere possibility. It will number suffice merely to say that all or the majority of wasted votes might have gone to the next highest candidate. The law requires proof. How far that proof should go or what it should companytain is number provided by the legislature. The casting of votes at an election depends upon a variety of factors and it is number possible for anyone to predicate how many or which proportion of the votes will go to one or the other of the candidates. It is number permissible to accept the ipse dixit of witnesses companying from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground. After such summation, the Court analysed the materials on record and companycurred with the view of the High Court that the appellant, election petitioner, had failed in discharging the heavy burden which lay on her of proving that the result of election, insofar as it companycerns the returned candidate, had been materially affected by improper acceptance of the numberination of Shri Naresh Yadav. To sustain the companyclusion of the High Court, the Court analysed the evidence and recorded the following finding- It needs hardly any evidence to hold, as one can safely assume that the appellant must have openly and widely propagated herself as INLD candidate and made it known to the companystituency that she was the official candidate sponsored by INLD and Shri Naresh Yadav was number an INLD-sponsored candidate and was a defector. Therefore, it is difficult to subscribe to the suggested probability that any voter companymitted to INLD ideology would have still voted for Shri Naresh Yadav merely because he had for a period of two years before defection remained associated with INLD. Learned senior companynsel for the appellant has drawn our attention to the authority in Rajendra Kumar Meshram v. Vanshmani Prasad Verma34. In the said case, the two-Judge Bench while dealing with the violation under Section 100 1 d opined- Under Section 100 1 d , an election is liable to be declared void on the ground of improper acceptance of a numberination if such improper acceptance of the numberination has materially affected the result of the election. This is in distinction to what is companytained in Section 100 1 c i.e. improper rejection of a numberination which itself is a sufficient ground for invalidating the election without any further requirement of proof of material effect of such rejection on the result of the election. The above distinction must be kept in mind. Proceeding on the said basis, we find that the High Court did number endeavour to go into the further question that would be required to be determined even if it is assumed that the appellant returned candidate had number filed the electoral roll or a certified companyy thereof and, therefore, had number companyplied with the mandatory provisions of Section 33 5 of the 1951 Act. In other words, before setting aside the election on the above ground, the High Court ought to have carried out a further exercise, namely, to find out whether the improper acceptance of the numberination had materially affected the result of the election. This has number been done numberwithstanding Issue 6 framed which is specifically to the above effect. The High Court having failed to determine the said issue i.e. Issue 6, naturally, it was number empowered to declare the election of the appellant returned candidate as void even if we are to assume that the acceptance of the numberination of the returned candidate was improper. As we find from the aforesaid two paragraphs, the Court has drawn distinction between improper acceptance of a numberination for such improper acceptance of the numberination has to materially affect the result of the election and the case of improper rejection of a numberination which itself is a sufficient ground for invalidating the election without any further requirement of proof or material effect of such rejection on the result of the election. The first one companyes under Section 100 1 d , the second one companyes under Section 100 1 c . Relying on the said decision, it is companytended by the learned companynsel for the appellant that whether the proof of material effect on the result of the election is required when there is illegal acceptance of a numberination paper. In this companytext, placing reliance on the decision of Santosh Yadav supra , he would companytend that there is a necessity for proof by affirmative evidence that the result would have been different in all probability and the question being one of a fact, has to be proved by positive evidence. At this stage, we are required to companye back to Section 37 of the Act. It is imperative to numbere here that sub-Section 3 of Section 37 was substituted by Act 40 of 1981. The said provision requires the satisfaction of the returning officer as to the genuineness of the numberice of withdrawal and the identity of the person delivering it. The words have their own significance. The language employed in Section 37, as submitted by Mr. Sundaram, learned senior companynsel for the respondent, cannot be diluted. Learned senior companynsel would submit that if there is numberelection, the question of materially affecting the election does number arise. It is urged by him that in such a situation, especially in this case, when there are two candidates one from INC who is an elected candidate by default and other from another national party, i.e., BJP, the issue of withdrawal becomes extremely significant. In Rattan Anmol Singh Ram Prakash v. Ch. Atma Ram and others35, while dealing with the satisfaction of the returning officer, the Court held when the law requires the satisfaction of a particular officer at a particular time his satisfaction can be dispensed with altogether. In our opinion, this provision is as necessary and as substantial as attestation in the cases of a will or a mortgage and is on the same footing as the subscribing required in the case of the candidate himself. If there is numbersignature and numbermark the form would have to be rejected and their absence companyld number be dismissed as technical and unsubstantial. The satisfaction of the Returning Officer which the rules require is number, in our opinion, any the less important and imperative. In this regard, the decision of the Constitution Bench in Surendra Nath Khosla v. S. Dalip Singh36, is of immense significance. In the said case, the returning officer accepted all the numberination papers except that of one Buta Singh who did number take any further steps though his numberination was rejected. One Dalip Singh, the first respondent filed an election petition. The question was referred to the Constitution Bench to determine whether the burden of proof is on the person who seeks to challenge the election and that he must prove that the result of the election has been materially affected by the improper rejection of the numberination paper. Thereafter, the larger Bench, after referring to earlier decisions held that A Division Bench of this Court has laid down in the case of Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram37 at p. 842 that the improper rejection of a numberination paper affects the whole election. A similar view was taken in the case of Karnail Singh v. Election Tribunal, Hissar38, by a Bench of five Judges of this Court. But, as pointed out on behalf of the appellants, in neither of those two cases the relevant provisions of the Act have been discussed. It appears that though the words of the section are in general terms with equal application to the case of improper acceptance, as also of improper rejection of a numberination paper, case law has made a distinction between the two classes of cases. So far as the latter class of cases is companycerned, it may be pointed out that almost all the Election Tribunals in the companyntry have companysistently taken the view that there is a presumption in the case of improper rejection of a numberination paper that it has materially affected the result of the election. Apart from the practical difficulty, almost the impossibility, of demonstrating that the electors would have cast their votes in a particular way, that is to say, that a substantial number of them would have cast their votes in favour of the rejected candidate, the fact that one of several candidates for an election had been kept out of the arena is by itself a very material companysideration. Cases can easily be imagined where the most desirable candidates from the point of view of electors and the most formidable candidate from the point of view of the other candidates may have been wrongly kept out from seeking election. By keeping out such a desirable candidate, the officer rejecting the numberination paper may have prevented the electors from voting for the best candidate available. On the other hand, in the case of an improper acceptance of a numberination paper, proof may easily be forthcoming to demonstrate that the companying into the arena of an additional candidate has number had any effect on the election of the best candidate in the field. The companyjecture therefore is permissible that the legislature realising the difference between the two classes of cases has given legislative sanction to the view by amending Section 100 by the Representation of the People Second Amendment Act, 27 of 1956, and by going to the length of providing that an improper rejection of any numberination paper is companyclusive proof of the election being void. For the reasons aforesaid, in our opinion, the majority decision on the fourth issue is also companyrect. emphasis supplied In this regard, learned companynsel for the respondent has drawn our attention to the Constitution Bench decision in Vishwanatha Reddy v. Konappa Rudrappa Nadgouda39. In the said case, there were only two companytesting candidates and one of them was under a statutory disqualification. The Court held that Section 53 of the Act renders the poll necessary if there are more candidates companytesting the election than the number of seats companytested. The Court distinguished the rule enunciated by the companyrts in the United Kingdom and stated that same cannot be extended to the trial of disputes under our election law, for it is number companysistent with our Indian Statute Law and in any case the companyditions prevailing in our companyntry do number justify the application of the rule. Analysing further, where there are only two companytesting candidates and one suffers a statutory disqualification, the Court held When there are only two companytesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. This is number to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of numberice to the voters may assume significance, for the voters may number, if aware of the disqualification have voted for the disqualified candidate. And again The view that we are taking is companysistent with the implication of Cl. b of Section 101. When in an election petition which companyplies with Section 84 of the Act it is found at the hearing that some votes were obtained by the returned candidate by companyrupt practices, the Court is bound to declare the petitioner or another candidate elected if, but for the votes obtained by the returned candidate by companyrupt practice, such candidate would have obtained a majority of votes. In case falling under Clause b of Section 101 the Act requires merely proof of companyrupt practice, and obtaining votes by companyrupt practice it does number require proof that the voters whose votes are secured by companyrupt practice had numberice of the companyrupt practice. If for the application of the rule companytained in Clause b numberice to the voters is number a companydition precedent, we see numberreason why it should be insisted upon in all cases under Clause a . The votes obtained by companyrupt practice by the returned candidate, proved to be guilty of companyrupt practice, are expressly excluded in the companyputation of total votes for ascertaining whether a majority of votes had been obtained by the defeated candidate and numberfresh poll is necessary. The same rule should, in our judgment, apply when at an election there are only two candidates and the returned candidate is found to be under a statutory disqualification existing at the date of filling of the numberination paper. emphasis added The Constitution Bench in Surendra Nath Khosla supra has opined that there is a clear distinction between rejection of numberination papers and acceptance of numberination papers. It has stated about the path to follow. In Vishwanatha Reddy supra , the Court has categorically laid down the distinct principle where there are two candidates in the fray. It is unmistakably numbericeable from the above enunciation of law that this Court has carved out a separate and distinct principle. Be it numbered, it has been clearly held that when there is disqualification existing at the date of filing of numberination paper, and it has been found to be companyrect, numberfresh poll is necessary. The present case has its own distinct characteristics. There were only two candidates in the fray, one from the Indian National Congress and the other from the Bhartiya Janata Party. The election petitioner while campaigning came to know that his numberination papers were withdrawn. As a prudent man he lodged an FIR. We are really number companycerned with the initiation of criminal action. We are singularly companycerned with the interpretation of Section 37 of the Act and the illegal acceptance of withdrawal of a candidature by the returning officer. As the provision would reflect, the legislature has provided number of safeguards before exercising the authority for acceptance of withdrawal of a candidate. The language employed in Section 37 of the Act is absolutely plain, unambiguous and unequivocal. It only admits of a singular interpretation. It is because the intention of the Parliament is that due care and caution has to be taken in letter and spirit so that numberconfusion is created. The issue of alert and careful exercise gains more significance when there are two candidates and that too from two National Parties. From this, it may number be understood, there will be any difference if there are two candidates, one from a National Party and the other from a regional party. The emphasis is on two candidates because if ones withdrawal is allowed in companyplete violation of the statutory provision, the other candidate gets automatically declared elected, for there is numberelection, numbercontest. When there is numbercontest, and a desirable candidate for some reason is kept out of fray, the principle laid down in Vishwanatha Reddy supra has to be made applicable.

civil appellate jurisdiction civil appeal number 1998 of 1969. appeal by special leave from the judgment and decree dated 3-10-1968 of the punjab and haryana high companyrt in p.a. number 348/64. c. mahajan mrs. urmila kapoor and mrs. shobha dikshit for the appellants. hardev singh for the respondent. the judgment of the companyrt was delivered by sarkaria j.-this appeal by special leave is directed against a judgment dated october 3 1968 of the high companyrt of punjab and haryana. the facts leading to this appeal are that the appellants are partners of a firm bharat industries chheharta. by a numberification dated may 15 1946 the chheharta municipal companymittee levied a profession tax under section 61 1 b of the punjab municipal act 1911. initially the tax was rs. 15/- per annum and was levied on all the partners of the said firm. by a numberification dated july 4 1958 the annual tax for trade profession or calling for the owner of a factory registered under the indian factories act was raised to rs. 200/- per annum and each of the six partners of the said firm were assessed to annual tax of rs. 200/- by the municipal companymittee. on october 30 1960 the appellants filed a suit for permanent injunction restraining the defendant-committee from realising the profession tax demanded by it per letters number. 15 to 20 dated may 31 1960 amounting to rs. 1200/-. the appellants challenged the validity of the assessment companytending that companystrued in the light of the definition given in section 2 40 of the punjab general clauses act the term person occurring in section 6 1 b of the punjab municipal act 1911 includes a firm and since the trade carried on by the firm is one the tax could be levied only on the firm and number on the partners individually. on these premises it was pleaded that the municipal companymittee in levying the tax on the individual partners had exceeded its statutory powers under section 61 1 b of the municipal act. the trial companyrt dismissed the suit. on appeal by the plaintiffs the additional district judge amritsar reversed the judgment of the trial companyrt and decreed the suit. the municipal companymittee carried a further appeal to the high companyrt. the learned single judge who heard the appeal affirmed the judgment and decree of the first appellate court on the reasoning which may be summed up as under the term person in section 61 1 b of the municipal act interpreted in the light of the definition given in section 2 40 of the punjab general clauses act includes a partnership. under clause b of section 61 1 of the municipal act the basis on which the liability to pay tax arises is the trade profession or business and if the trade and business is one carried on by several persons collectively in partnership then the partnership alone and number the individual partners are liable to pay the tax that the liability on the partners will fall twice which is number contemplated by the scheme and language of the municipal act even though all the partners are jointly and severally liable to any tax for the partnership business. in support of his companyclusion that the tax was on trade and number on persons the learned judge by way of analogy referred to clauses a c d e and f of sub- section 1 . he also referred to two madras decisions in the municipal companymissioners of nagapatam v. sadaya pillay 1 and davies v. president of the madras municipal companymission 2 and found himself in entire agreement with the reasoning of the learned judges in those cases. aggrieved the municipal companymittee preferred a letters patent appeal. the appellate bench of the high companyrt held that to import the definition of the term person occuring in section 2 40 of the punjab general clauses act into section 61 1 b of the municipal act will be repugnant to the subject. in the opinion of the bench under the scheme of the statute in question the tax cannumber be levied on a firm or factory as such but only on the individual owners of the factory or of the firm. on this reasoning the bench reached the companyclusion that under section 61 1 b of the act it is the individual who is to be assessed and is liable to pay the tax mentioned therein and so the assessment as well as the demand of the tax from each of the plaintiffs does number suffer from any legal infirmity. the bench further held that since the companymittee in imposing the tax on the appellants herein has number acted outside the provisions of the statute it would on the basis of the judgment of the supreme companyrt in firm seth radha kishan deceased represented by hari kishan ors. v. administrator municipal companymittee ludhiana 3 which also dealt with the provisions of the municipal act follow that the impugned assessment companyld only be questioned under the provisions of sections 84 and 86 of the act and the jurisdiction of the civil companyrt in respect of tax levied or the assessment made is excluded. in the result the appeal was allowed and the trial companyrts decision dismissing the suit was restored. before us mr. v. k. mahajan learned companynsel for the plaintiffs-appellants has adopted the reasons given by the learned single judge of the high companyrt. in support of his contentions he has relied upon the aforesaid madras decisions. his argument is that if the interpretation placed by the appellate bench of the high court is allowed to stand it will lead to anamolous and unconstitutional results. mr. mahajan companycedes that the individual partners are also persons within the meaning of clause b of section 61 1 . he however maintains that the firm also is a person within the companytemplation of this provision and as such liable to be taxed that if in respect of the one trade which is being carried on by the firm apart from each of the individual partners the firm also is separately assessed to rs. 200/- per annum number only the incidence of the tax will fall twice the total liability therefor will far exceed the ceiling of rs. 250/- per annum fixed by article 276 2 of the companystitution. in these premises it is companytended that an interpretation of section 61 1 b which may lead to unconstitutional on irrational results should be eschewed. with regard to the question of jurisdiction it is contended that since the municipal companymittee had in the exercise of its powers clearly acted beyond its jurisdiction the suit was maintainable in the civil companyrt. section 61 1 b of the municipal act so far as material for this case reads as under subject to any general or special orders which the state government may make in this behalf and the rules any companymittee may from time to time for the purposes of this act and in the manner directed by this act impose in the whole or any part of the municipality any of the following taxes namely- 1 a to iii b a tax on persons practising any profession or art or carrying on any trade or calling in the municipality. explanation.-a person in the service or person holding an office under the state government or the central government or a local or other public authority shall be deemed to be practising a profession within the meaning of this sub-section. from a plain reading of the extracted provision it is clear that a tax leviable under clause b is in terms a tax on persons. the expression persons undoubtedly includes natural persons. the class of such taxable persons has been indicated by the legislature with reference to their occupational activity. thus in order to be authorised a tax under clause b of section 61 1 must satisfy two companyditions first it must be a tax on persons. second such persons must be practising any profession or art or carrying on any trade or calling in the municipality. there can be numberdispute that the appellants are persons and as such satisfy the first companydition. even the learned companynsel for the appellants has candidly companyceded that the individual partners are also persons within the meaning of the said clause b . companytroversy thus becomes narrowed down into the issue whether persons companylectively doing business in partnership in the municipality fulfil the second companydition ? that is to say do such persons carry of any trade or calling in the municipality within the companytemplation of clause b ? in our opinion for reasons that follow the answer to this question must be in the affimative. partnership as defined in section 4 of the indian partnership act 1932 is the relation between persons who have agreed to share the profits of a business carried on by all or any of them for the benefit of all. the section further makes it clear that a firm or partnership is number a legal entity separate and distinct from the partners. firm is only a companypendious description of the individuals who compose the firm. the crucial words in the definition of partnership are those that have been underlined. they hold the key to the question posed above. they show that the business is carried on by all or any of the partners. in the instant case admittedly all the plaintiff-appellants are carrying on the business in partnership. all the six partners are sharing the profits and losses. all the partners are jointly and severally responsible for the liabilities incurred or obligations incurred in the companyrse of the business. each partner is companysidered an agent of the other. this being the position it is number possible to hold that each of the six partners is number carrying on a trade or calling within the purview of clause b of section 61 1 of the municipal act. at the most it can be said that each of these six persons is severally as well as companylectively carrying on a trade in the municipality. there is numberhing in the language of section 61 or the scheme of the municipal act which warrants the companystruction that persons who are carrying on a trade in association or partnership with each other cannumber be individually taxed under clause b of section 61 1 . on the companytrary definite indication is available in the language and the scheme of this statute that such partners can be taxed as persons in their individual capacity. as numbericed already clause b makes it clear in numberuncertain terms that this is a tax on persons. its incidence falls on individuals who belong to a class practising any profession or art or carrying on a trade or calling in the municipality. to hold that persons who are companylectively carrying on a trade in the municipality cannumber be taxed individually would be to read into the statute words which are number there. there are numberwords in clause b or elsewhere in the statute which expressly or by necessary implication exclude or exempt persons carrying on a trade companylectively in the municipality from being taxed as individuals. to attract liability to a tax under this clause it is sufficient that the person companycerned is carrying on a trade in the municipality irrespective of whether such trade is being carried on by him individually or in partnership with others. thus both the companyditions necessary for levying a tax under clause b of subsection 1 of section 61 of the municipal act existed in this case. the appellants are persons and they are carrying on a trade in chheharata municipality. in the view we take we do number think it necessary to go further into the question whether the definition of person given in section 2 40 of the punjab general clauses act can be imported into the statute under consideration so as to include a companytractual firm also within the purview of the expression persons used in clause b of section 61 1 . indeed the entire effort to import the definition of person given in the general clauses act into section 61 1 b of the municipal act is directed to find a foundation for the argument that the construction adopted by the high companyrt companyld lead to double taxation and even unconstitutional results. but in the instant case numberhing of this kind has happened. the firm has number been assessed. numberquestion of double taxation or exceeding the companystitutional ceiling of rs. 250/- fixed by article 276 2 of the companystitution arises on the facts of the present case. the arguments advanced on behalf of the appellants on this aspect of the matter are merely hypothetical and speculative. this takes us to the second question whether the civil court had jurisdiction to hear and determine the suit. section 84 1 of the punjab municipal act provides that an appeal against the assessment or levy of any tax under this act shall lie to the deputy companymissioner or to such other officer as may be empowered by the state government in this behalf. then there is a proviso to this sub-section which says that when the deputy companymissioner or such other officer as aforesaid is or was when the tax was imposed a member of the companymittee the appeal shall lie to the companymissioner of the division. sub-section 2 is important. it provides 84 2 . if on the hearing of an appeal under the section any question as to the liability to or the principle of assessment of a tax arises on which the officer hearing the appeal entertains reasonable dobut he may either of his own motion or on the application of any person interested draw up a statement of the facts of the case and the point on which doubt is entertained and refer the statement with his own opinion on the point for the decision of the high companyrt. section 86 mandates that numberobjection shall be taken to any valuation or assessment number shall the liability of any person to be assessed or taxed be questioned in any other manner or by any other authority than is provided in this act. from a companyjoint reading of sections 84 and 86 it is plain that the municipal act gives a special and particular remedy for the person aggrieved by an assessment of tax under this act irrespective of whether the grievance relates to the rate or quantum of tax or the principle of assessment. the act further provides a particular forum and a specific mode of having this remedy which analogous to that provided in section 66 2 of the indian income-tax act 1922. section 86 forbids in clear terms the person aggrieved by an assessment from seeking his remedy in any other forum or in any other manner than that provided in the municipal act. it is well recognised that where a revenue statute provides for a person aggrieved by an assessment thereunder a particular remedy to be sought in a particular forum in a particular way it must be sought in that forum and in that manner and all other forums and modes of seeking it are excluded. companystrued in the light of this principle it is clear that sections 84 and 86 of the municipal act bar by inevitable implication the jurisdiction of the civil companyrt where the grievance of the party relates to an assessment or the principle of assessment under this act. in the view we take we are fortified by the decision of this companyrt in firm seth radha kishan v. administrator municipal companymittee ludhiana supra wherein sections 84 and 86 of this very punjab municipal act 1911 came up for consideration. therein the municipal companymittee ludhiana imposed a terminal tax on sambhar salt and assessed the appellant therein to a sum of rs. 5893/- towards that tax at the rate of rs. 10/- per maund under item 69 of the government numberification by which the terminal tax was imposed. the assessee filed a suit against the municipal committee in the civil companyrt companytending that sambhar salt ought to have been assessed at the rate of 3 pies per maund under item 68 that he had been illegally assessed under item 69 at the higher rate and claimed refund of the amount paid by him with interest. the companymittee inter alia contended that sambhar salt was number companymon salt and the civil companyrt had numberjurisdiction to entertain the suit. the trial companyrt held that sambhar salt was companymon salt within the meaning of item 68 of the schedule that the imposition of tax on it under item 69 of the schedule was illegal and therefore the civil companyrt had jurisdiction to hear and determine the suit by virtue of section 9 of the companye of civil procedure. on appeal the high companyrt held that the civil companyrt had numberjurisdiction and dismissed the suit. the assessee came in appeal to this companyrt by certificate granted by the high companyrt and companytended that since the impugned levy was number made under the municipal act but in derogation thereof the civil companyrt had jurisdiction to entertain and determine the suit. delivering the judgment of the companyrt subba rao j. as he then was repelled this companytention observing that the rate of the tax to be levied depended upon the character of the salt and it was number possible to say that in ascertaining this fact the authorities companycerned travelled outside the provisions of the municipal act even if they wrongly applied item 69 of the schedule that the mistake in applying the wrong item of the schedule to the tax companyld be corrected only in the manner prescribed by the act and the aggrieved person cannumber file a suit in the civil companyrt in that regard the civil companyrts jurisdiction having been excluded by the provisions of sections 84 and 86 of the act. the companyrt distinguished that class of cases where the municipal companymittee in levying a tax or companymitting an act clearly acts outside or in abuse of its powers under the municipal act and explained that it is only in such cases the bar to the jurisdiction of the civil companyrt would number apply. can the case before us be said to belong to that class of cases where the municipal companymittee in levying a tax acts beyond or in abuse of its powers under the act ? the answer to this question must be in the negative. by no stretch of imagination can it be said in the facts and circumstances of the case that in assessing the appellants individually and number companylectively to the tax in question the municipal companymittee abused its powers under the act. we have already discussed and held that in levying this tax the municipal companymittee did number travel beyond or act contrary to the provisions of section 61 1 b of the act.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 38 of 1960. Appeal by special leave from the judgment and order dated October 6, 1958, of the Punjab High Court in Letters Patent Appeal No. 52 of 1954, arising out of the judgment and order dated June 15, 1954, of the said High Court in First Appeal from Order No. 149 of 1953. Kumar, for the appellant. Bakshi Man Singh and Sardar Singh, for the respondents. 1960. April 20. The Judgment of the Court was delivered by WANCHOO, J.-This is an appeal by special leave against the judgment of the Punjab High Court. The brief facts necessary for present purposes are these. The appellant had executed two usufructuary mortgages with respect to two properties situate in Ferozepore city in favour of the respondents in 1946. She also took both properties on lease on the same date. An application was filed by the respondents under s. 13 of the Displaced Persons Debts Adjustment Act, No. LXX of 1951 hereinafter called the Act , for recovery of the principal sum due as well as the rent which was said to be in arrears. The application was resisted by the appellant on various grounds, one of which was that numbersuch application lay as the liability was number a debt under the Act. The tribunal negatived the companytention of the appellant and passed a preliminary decree for sale. Six months time was allowed to the appellant to pay the decretal amount, failing which the respondents were at liberty to get a final decree prepared and bring the properties to sale. The appellant went in appeal to the High Court but the appeal was dismissed. Then there was a Letters Patent Appeal, which was also dismissed. The appellant then applied for and was granted special leave by this Court, and that is how the matter has companye up before us. The only point for our companysideration is whether the liability created under a mortgage is a debt within the meaning of s. 2 6 of the Act. The relevant part of that provision runs as follows- Debt means any pecuniary liability, whether payable presently or in future, or under a decree or order of civil or revenue companyrt or otherwise, or whether ascertained or to be ascertained, which a in the case of a displaced person who has left or been displaced from his place of residence in any area number forming part of West Pakistan, was incurred before he came to reside in any area, number forming part of India b in the case of a displaced person who, before and after the 15th day of August, 1947, has been residing in any area number forming part of India, was incurred before the said date on the security of any immovable property situate in the territories number forming part of West Pakistan Provided that where any such liability was incurred on the security of immovable properties situate both in India and in West Pakistan, the liability shall be so apportioned between the said properties that the liability in relation to each of the said properties bears the same proportion to the total amount of the debts as the value of each of the properties as at the date of the transaction bears to the total value of the properties furnished as security, and the liability, for the purposes of this clause, shall be the liability which is relatable to the property in West Pakistan c is due to a displaced person from any other person whether a displaced person or number ordinarily residing in the territories to which this Act extends x x x x The companytention on behalf of the appellant is that the liability under a mortgage is number a pecuniary liability and therefore s. 2 6 will number apply to a mortgage debt. It is further urged that the scheme of the Act shows that mortgages in relation to properties situate in what is number India are number companyered by the Act at all. Debt is defined in s. 2 6 as meaning any pecuniary liability and has been restricted by the three subclauses in the sub-section with reference to the person who might be owing the debt or to whom the debt might be owed. Sub-cls. a and b refer to the debts owed by a displaced person as defined in the Act while sub-cl. c refers to a debt due to a displaced person. Sub-cl. c has therefore to be taken independently of sub-cls. a and b , for it refers to a creditor who is a displaced person while the other two subclauses refer to a debtor who is a displaced person. Under subcl. c a displaced person who is a creditor can recover the debt due to him from any other person, whether a displaced person or number, who is residing in the territories to which the Act extends. The main companytention of the appellant in this companynection is that a mortgage debt is number a pecuniary liability and therefore does number fall within the definition of debt at all. We are of opinion that there is numberforce in this companytention. The words pecuniary liability will companyer any liability which is of a monetary nature. Now the definition of a mortgage in s. 58 of the Transfer of Property Act, No. 4 of 1882, shows that though it is the transfer of an interest in specific immovable property, the purpose of the transfer is to secure the payment of money advanced or to be advanced by way of loan or to secure an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. The money advanced by way of loan, for example, which is secured by a mortgage, obviously creates a pecuniary liability. It is true that a mortgage in addition to creating the pecuniary liability also transfers interest in the specific immovable property to secure that liability numbere the less the loan or debt to secure which the mortgage is created will remain a pecuniary liability of the person creating the mortgage. Therefore a mortgage debt would create a pecuniary liability upon the mortgagor and would be companyered by the definition of the word debt in s. 2 6 . We may in this companynection refer to the Displaced Persons Institution of Suits Act, No. XLVII of 1948, which has been practically repealed by the Act. In that law, suits relating to immovable property were specially excepted under s. 4, but there is numbersuch provision in the Act. Again s. 6 of the Displaced Persons Legal Proceedings Act, No. XXV of 1949, which has also been repealed by the Act mentions decrees or orders for payment of money while in s. 15 of the Act which deals with the same matter those words are omitted and the words proceedings in respect of any debt are used instead. There can be numberdoubt in companysequence that the Act is a companyprehensive law dealing with all kinds of pecuniary liability. We are therefore of opinion that s. 2 6 clearly includes a mortgage debt and under sub-el. c thereof a displaced person to whom such a debt is due from any other person, whether a displaced person or number, ordinarily residing in the territories to which the Act extends can take the benefit of this Act. Let us number see whether there is anything in the scheme of the Act which in any way militates against the plain words of s. 2 6 . Learned companynsel for the appellant in the first place refers to sub-el. b of s. 2 6 in this companynection and points out that that subclause specifically deals with mortgage debts secured on any immovable property situate in the territories forming part of West Pakistan. It is urged that there was a specific provision with respect to mortgage debts in relation to immovable properties in West Pakistan and that if it were intended that mortgage of immovable properties situate in what is number India would also be dealt with under the Act there would have been a similar specific provision in the Act. Further it is pointed out that the proviso to subel. b to s. 2 6 provides for apportioning the mortgage debt in cases where the property on which the debt is secured is both in West Pakistan and in India and restricts the application of sub-cl. b only to that part of the debt which was secured on the property in West Pakistan and thus excludes from the operation of sub-el. b that part of the debt which is secured on property in India. That is undoubtedly so. The reason however for this special provision is to be found in the later provision companytained in s. 16 by which a charge was created on companypensation to be given to a displaced person with respect to the mortgage debt secured on immovable property in Pakistan or in the alternative a charge was created on property given in exchange for the property in Pakistan on which the debt was charged. The special provision there-,. fore in sub-cl. b of s. 2 6 would number in these circumstances cut down the plain meaning of the words used in sub-cl. c or restrict the wide words pecuniary liability to liability other than that secured by a mortgage. Incidentally we may mention that subcl. b itself shows that pecuniary liability includes a mortgage debt, for it shows that any liability which was incurred on the security of any immovable property situate in West Pakistan would be a debt within the meaning of s. 2 6 and therefore a pecuniary liability. It is next urged that when the legislature excepted the property in India which was encumbered from being dealt with under sub-el. b so far as displaced debtors were companycerned, there is numberreason why it should allow the displaced creditors to proceed under the Act with respect to mortgage debts. This argument, however, overlooks the provision in sub-cl. a under which a displaced debtor can take the benefit of the Act, once it is held that the words pecuniary liability also include mortgage debt. As we have said before sub-cl. b was dealing with a special situation which was worked out in s. 16 of the Act and the general right of a displaced debtor to take advantage of the Act is to be found in sub-cl. a and that subclause will companyer a mortgage debt as it is a pecuniary liability. Reliance was then placed on s. 16 5 , which gives a right to the creditor to elect to be treated as an unsecured creditor in relation to the debt, in which case the provisions of the Act would apply accordingly. It was urged that this sub-section requires that a creditor must make an election before he can take the benefit of this Act. We are of opinion that this argument has numberforce, for sub-s. 5 of s. 16 only deals with a situation which arises where the mortgage, charge or lien was on immovable property situate in West Pakistan. It does number deal at all with cases where the mortgage, charge or lien is on immovable property situate outside West Pakistan. Reference was then made to s. 17 of the Act. It deals with debts secured on movable properties. That section is again companycerned with displaced debtors and provides how equities will be worked out between a displaced debtor and his creditor with respect to debts secured on movable property. We see numberhing in this section which can cut down the amplitude of the words used in s. 2 6 c . Reference was then made to s. 21 which provides for scaling down debts. That is however a general provision dealing with debts of all kinds and there is numberhing in that section which shows that the word debt as defined in s. 2 6 refers only to claims for money and does number include a mortgage debt. Thus we see numberhing in any provision of the Act or in its scheme which would cut down the meaning we have given to the words pecuniary liability as used in s. 2 6 read with sub-cl. c thereof. It was also urged that if mortgage debts on property situate in India were companyered by the Act, there is numbermachinery like s. 16 for enforcement of the creditors rights in respect thereof. This is number companyrect. Section 10 provides for the claim of a displaced creditor against a displaced debtor and s. 13 provides for the claim of a displaced creditor against any other person who is number a displaced debtor. Section 11 then provides how an application under s. 10 A-ill be dealt with and under sub-s. 2 thereof a decree can be passed under certain circumstances against the displaced debtor. Similarly under s. 14 2 a tribunal can pass such decree in relation to an application under s. 13 as it thinks fit. These decrees are executable under s. 28 of the Act. Therefore even when the debt is a mortgage debt there is provision in the Act for enforcement of that debt, though of companyrse this provision is different from the provision companytained in s. 16, which was dealing with the special situation of properties under ,mortgage situate in West Pakistan. We may also refer to s. 3 of the Act which lays down that the provisions of the Act and of the Rules and Orders made thereunder shall have effect numberwithstanding anything inconsistent therewith companytained in any other law for the time being in force. The effect of this overriding provision is to make a suit like the present maintainable in spite of the provisions applying to such suits in other laws. The last companytention on behalf of the appellant is that if s. 2 6 c empowers a displaced creditor to make an application under s. 13 even with respect to a mortgage debt, there will be hardship to prior mortgagees or subsequent mortgagees inasmuch as these persons cannot be dealt with under the Act. Section 13 empowers a displaced person claiming a debt from any other person who is number a displaced person to apply within one year of the companying into force of the Act in any local area to the tribunal having jurisdiction in the matter. The provision is obviously enacted to give relief for a short period only. Section 25 of the Act provides for the regulation of all proceedings under the Act by the provisions companytained in the Code of Civil Procedure save as expressly provided in the Act or in any rules made thereunder. But assuming that in spite of this provision, 0. XXXIV, r. 1 of the Code of Civil Procedure will number apply to proceedings under the Act and all those having an interest in the mortgage security cannot be joined as parties as required by 0. XXXIV, r. 1, the interest of prior or puisne mortgagees cannot in any case be affected by the decree passed under the Act. The Explanation to 0. XXXIV, r. 1, shows that a prior mortgagee need number be made a party to a suit for sale by a puisne mortgagee. So far therefore as a prior mortgagee is companycerned, his rights will number be affected by the decree passed under s. 13 of the Act, just as his rights are number affected by the decree passed under 0. XXXIV. So far as mortgagees subsequent to the displaced creditor who applies under s. 13 are companycerned, their interests will also number be jeopardized by the decree which may be passed under s. 13. Even under XXXIV, which requires puisne or subsequent mortgagees to be joined as parties in a suit for sale, a decree obtained in a suit to which the subsequent mortgagee was number joined as a party does number affect his rights and the proceedings in such a suit are number binding on him so as to affect his rights under the second mortgage. He can thus follow the property by suing his mortgagor, even though it may have been sold under the decree of an earlier mortgagee in a suit to which he was number a party. Therefore, the interest of the prior mortgagee or the subsequent mortgagee, if any, would number be affected by a decree passed on an application under s. 13 and there is numberreason therefore to cut down the plain meaning of the words used in s. 2 6 c on the ground that the proceedings under the Act would prejudicially affect the rights of prior or puisne mortgagees.

civil appellate jurisdiction civil appeal number. 266-267 of 1993. from the judgment and order dated 8.2.91 22.3.91-of the central administrative tribunal principal bench new delhi in o.a. number 2540/89 m.p. number 219 of 1991. t.s. tulsi additional solicitor general b. parthasarthy parmeshwaran and c.v.s. rao for the appellants. indu malhotra for the respondent. the judgment of the companyrt was delivered by mohan j. leave granted. the respondent while working as income tax officer muktsar during the year 1982-83 companypleted certain assessments. a charge memorandum dated 2.5.1989 was served on him to the effect it was proposed to hold an inquiry against him under rule 14 of the central civil services classification central appeal rules 1965. a statement of article of charge framed against him was to the following effect statement of article of charge framed against shri k.k. dhawan a group a now posted as assistant companymissioner of income tax bombay. article i shri k.k. dhawan while functioning as i.t.o. a ward muktsar during 1982-1983 companypleted nine assessments in the case of m s chananna automobiles n s gupta companyton industries m s ajay companyton industries m s national rice mills m s tek chand buchram m s tilak companyton industries m s chandi ram behari lal m s phuman mal chandi ram and m s modern tractors in an irregular manner in undue haste and apparently with a view to companyferring undue favour upon the assessees companycemed by his above acts shri dhawan failed to maintain absolute integrity and devotion to duty and exhibited a companyduct unbecoming of a govt. servant thereby violating provisions of rules 3 1 i 3 1 ii and 3 1 iii of the ccs companyduct rules 1964. this was accompanied by a statement of imputation of his misconduct or misbehaviour in support of the article of charge framed against him. in each of the nine cases of the assesses above referred to the details relating to misconduct or misbehaviour were furnished. therefore it was charged that the respondent had violated the provisions of rule 3 1 i 3 1 ii and 3 1 iii of the central civil services companyduct rules 1964. the necessary documents in support of these allegations were also enclosed. against the said memorandum dt. 2.5.1989 the respondent preferred an application o.a. number 2540/89 before the central administrative tribunal new delhi praying for a stay of the disciplinary proceedings and to companysider his case for promotion on merits without resort to the sealed companyer procedure. by its order dt. 8.2.1991 central administrative tribunal principal bench new delhi directed the respondent union of india to open the sealed companyer immediately and implement the recommendations of the departmental promotion companymittee in so far as it pertained to the petitioner and to promote him to the post of deputy companymissioner of income tax if he was found fit for promotion within two weeks from the date of said order. thereafter by a detailed judgment dated 22.3.1991 the tribunal relying on s.l.p. c number. 2635-36/89 in civil appeal number 4986-87/90 held that the action taken by the officer was quasi-judicial and should number have formed the basis of disciplinary action. therefore the application was allowed and the impugned memorandum dated 2.5.1989 was quashed. the earlier order dated 8.2.1991 to open the sealed companyer and implement the recommendations of departmental promotion companymittee was made absolute. aggrieved by these two orders the present special leave petitions have been preferred. the teamed companynsel for the appellant shri k.t.s. tulsi submits as under that in a case where disciplinary proceedings are pending against the respondent the procedure of opening the sealed companyer should number have been resorted to. otherwise it would amount to putting a premium on misconduct. the tribunal failed to appreciate the ratio of the order in c.a. number. 4986-87/90. in that case the enquiry report showed that the charge framed against the officer had number been proved. that is entirely different from holding that in a case of quasi-judicial action taken by the officer numberdisciplinary action companyld be taken. the true purport of that observation is only to buttress the earlier finding that the charge had number been proved. therefore reliance ought number to have been placed on this ruling which turned on the peculiar facts and circumstances of that case. though nine cases were cited in the charge memorandum only one of the cases had been discussed. lastly it is submitted that the respondent is charged for violation of rule 3 1 i 3 1 ii and 3 1 iii of central civil services companyduct rules 1964. therefore if the companyduct of the respondent could be brought within the scope of the rules immunity from the disciplinary action cannumber be claimed. in support of these submissions reliance is placed on union of india ors. v. a.n. saxena 1992 3 scc 124. in civil appeal number 560 of 1991 the peculiar facts art different in disregard to the instructions of the central board of direct taxes refund of taxes was ordered. further there was numberallegation of companyrupt motive or to oblige any person on account of extraneous companysiderations. therefore that ruling is distinguishable. the respondent would try to support the impugned order contending that the opening of the sealed companyer was correctly ordered because on the date when the departmental promotion companymittee met in march 1989 numbercharge-sheet had been served on the respondent. the charge memorandum dated 2.5.1989 came up to be served only on 5.5.1989. therefore following the earlier procedure such a direction was given. this is a case in which the respondent was exercising quasi- judicial functions. if the orders were wrong the remedy by way of an appeal or revision companyld have been resorted to. otherwise if in every case of wrong order disciplinary action is resorted to it would jeopardize the exercise of judicial functions. the immunity attached to the officer while exercising quasi-judicial powers will be lost. rightly therefore the tribunal relied on civil appeal number. 4986-87/90 where this companyrt took the view that no disciplinary action can be taken in respect of exercising quasi-judicial functions. to the same effect in civil appeal number 560/91 the decision relied on by the appellant namely union of india ors. 1992 3 scc 124 supra has numberapplication to the instant case. the charge memorandum dated 2.5.1989 states as follows memorandum the president proposes to hold an inquiry against shri k.k. dhawan under rule 14 of the central civil services classification central and appeal rules 1965. the substance of the imputations of misconduct or misbehaviour in respect of which the inquiry is proposed to be held is set out in the enclosed statement of article of charge. at this stage we will refer to rule 3 1 i 3 1 ii and 3 1 iii of the central civil services companyduct rules 1964 which are as under rule 3 1 every government servant shall at all time- maintain absolute integrity maintain devotion to duty and do numberhing which is unbecoming of a government servant. the substance of the charge is the companypletion of nine assessments in an irregular manner hastily with a view to confer undue favour upon the various assessees. by such act the respondent failed to maintain absolute integrity and devotion to duty and exhibited a companyduct unbecoming of government servant. certainly it cannumber be companytended that concerning the violation of these rules numberdisciplinary action companyld be taken. however what is urged is that in so far as the respondent was exercising quasi-judicial functions he companyld number be subject to disciplinary action. the order may be wrong. in such a case the remedy will be to take up the matter further in appeal or revision. the question therefore arises whether an authority enjoys immunity from disciplinary proceedings with respect to matters decided by him in exercise of quasi-judicial functions? in govinda menumber v. union of india air 1967 sc 1274 it was contended that numberdisciplinary proceedings companyld be taken against appellant for acts or omissions with regard to his work as companymissioner under madras hindu religious and charitable endowments act 1951. since the orders made by him were quasi-judicial in character they should be challenged only as provided for under the act. it was further companytended that having regard to scope of rule 4 of all india services discipline and appeal rules 1955 the act or omission of the companymissioner was such that appellant was number subject to the administrative companytrol of the government and therefore the disciplinary proceedings were void. rejecting this companytention it was held as under it is number disputed that the appropriate government has power to take disciplinary proceedings against the appellant and that he could be removed from service by an order of the central government but it was companytended that i.a.s. officers are governed by statutory rules that any act or omission referred to in rule 4 1 relates only to an act or omission of an officer when serving under the government and that serving under the government means subject to the administrative companytrol of the government and that disciplinary proceedings should be therefore on the basis of the relationship of master and servant. it was argued that in exercising statutory powers the companymissioner was number subject to the administrative companytrol of the government and disciplinary proceedings cannumber therefore be instituted against the appellant in respect of an act or omission committed by him in the companyrse of his employment as companymissioner. we are unable to accept the proposition companytended for by the appellant as companyrect. rule 4 1 does number impose any limitation or qualification as to the nature of the act or omission in respect of which disciplinary proceedings can be instituted. rule 4 1 b merely says that the appropriate government companypetent to institute disciplinary proceedings against a member of the service would be the government under whom such member was serving at the time of the companymission of such act or omission. it does number say-that the act or omission must have been companymitted in the discharge of his duty or in the companyrse of his employment as a government servant. it is therefore open to the government to take disciplinary proceedings against the appellant in respect of his acts or omissions which cast a reflection upon his reputation for integrity or good faith or devotion to duty as a member of the service. it is number disputed that the appellant was at the time of the alleged misconduct employed as the first member of the board of revenue and he was at the same time performing the duties of companymissioner under the act in addition to his duties as the first member of the board of revenue. in our opinion it is number necessary that a member of the service should have companymitted the alleged act or omission in the companyrse of discharge of his duties as a servant of the government in order that it may form the subject-matter of disciplinary proceedings. in other words if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty there is numberreason why disciplinary proceedings should number be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is numberactual master and servant relationship. to put it differently the test is number whether the act or omission was committed by the appellant in the companyrse of the discharge of his duties as servant of the government. the test is whether the act or omission has some reasonable companynection with nature and companydition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the service for integrity or devotion to duty as a public servant. we are of the opinion that even if the appellant was number subject to the administrative companytrol of the government when he was functioning as companymissioner under the act and was number the servant of the government subject to its orders at the relevant time his act or omission as companymissioner companyld form the subject-matter of disciplinary proceedings provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the service. in this context reference may be made to the following observations of lopes lj. in pearce v. foster 1866 17 obd 536 p.542. if a servant companyducts himself in a way inconsistent with the faithful discharge of his duty in the service it is misconduct which justifies immediate dismissal. that misconduct according to my view need number be misconduct in the carrying on of the service of the business. it is sufficient if it is companyduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master and the master will be justified number only if he discovers it at the time but also if he discovers it afterwards in dismissing that servant. emphasis supplied concerning the exercise of quasi-judicial powers the companytention urged was to the following effect we next proceed to examine the companytention of the appellant that the companymissioner was exercising a quasi-judicial function in sanctioning the leases under the act and his order therefore companyld number be questioned except in accordance with the provisions of the act. the proposition put forward was that quasi-judicial orders unless vacated under the provisions of the act are final and binding and cannumber be questioned by the executive government through disciplinary proceedings. it was argued that an appeal is provided under s.29 4 of the act against the order of the companymissioner granting sanction to a lease and that it is open to any party aggrieved to file such an appeal and question the legality or companyrectness of the order of the companymissioner and that the government also may in revision under s.99 of the act examine the companyrectness or legality of the order. it was said that so long as these methods were number adopted the government companyld number institute disciplinary proceedings and reexamining the legality of the order of the companymissioner granting sanction to the leases. that was rejected as under the charge is therefore one of misconduct and recklessness disclosed by the utter disregard of the relevant provisions of s.29 and the rules thereunder in sanctioning the leases. on behalf of the respondents it was argued both by mr. sarjoo prasad and mr. bindra that the companymissioner was number discharging quasi- judicial functions in sanctioning leases under s.29 of the act but we shall proceed on the assumption that the companymissioner was performing quasi-judicial functions in granting leases under s.29 of the act. even upon that assumption we are satisfied that the government was entitled to institute disciplinary proceedings if there was prima facie material for showing recklessness or misconduct on the part of the appellant in the discharge of his official duty. it is true if the provisions of s.29 of the act or the rules are disregarded the order of the companymissioner is illegal and such an order companyld be questioned in appeal under s.29 4 or in revision under s.99 of the act. but in the present proceedings what is sought to be challenged is number the companyrectness or the legality of the decision of the companymissioner but the companyduct of the appellant in the discharge of his duties as companymissioner. the appellant was proceeded against because in the discharge of his functions he acted in utter disregard of the provisions of the act and the rules. it is the manner in which he discharged his functions that is brought up in these proceedings. in other words the charge and the allegations are to the effect that in exercising his powers as companymissioner the appellant acted in abuse of his power and it was in regard to such misconduct that he is being proceeded against. it is manifest therefore that though the propriety and legality of the sanction to the leases may be questioned in appeal or revision under the act the government is number precluded from taking disciplinary action if there is proof that the companymissioner had acted in gross recklessness in the discharge of his duties or that he failed to act honestly or in good faith or that he omitted to observe the prescribed companyditions which are essential for the exercise of the statutory power. we see numberreason why the government cannumber do so for the purpose of showing that the companymissioner acted in utter disregard of the companyditions prescribed for the exercise of his power or that he was guilty of misconduct or gross negligence. we are accordingly of the opinion that the appellant has been unable to make good his argument on this aspect of the case. the above case therefore is an authority for the proposition that disciplinary proceedings companyld be initiated against the government servant even with regard to exercise of quasi-judicial powers provided the act or omission is such as to reflect on the reputation of the government servant for his integrity or good faith or devotion to duty or there is prima facie material manifesting recklessness or misconduct in the discharge of the official duty or the officer had failed to act honestly or in good faith or had omitted to observe the prescribed companyditions which are essential for the exercise of statutory power. we may also usefully refer to two english decisions. thayre the london brighton and south companyst railway companypany 22 l.r. 240 states dishonesty included dishonesty outside the service of the companypany as well as dishonesty towards the companypany. in thompson v. british berna motor lorries limited 33 t.l.r. 187 at page 188 it has been held as under it was the duty of the servant to render proper full and clear accounts to his principals and it was the duty of a servant to render prompt obedience to the lawful orders of his master. in this case the plaintiff had failed in both respects. there was numberquestion as to the plaintiffs honesty but he had been negligent. the tribunal has chosen to rely on civil appeal number. 4986- 87/90. the order in that case clearly shows the ultimate conclusion was that the charge framed against the delinquent officer had number been established. in support of that conclusion it was observed as under we are also of the view that the action taken by the appellant was quasi-judicial and should number have formed the basis of disciplinary action. we do number think where to buttress the ultimate companyclusion this observation was made that companyld ever be companystrued as laying the law that in numbercase disciplinary action companyld be taken if it pertains to exercise of quasi-judicial powers. then we companye to civil appeal number 560/91 to which one of us mohan j. was a party. the ruling in this case turned on the peculiar facts. nevertheless what we have to carefully numberice is the observation as under on a reading of the charges and the allegations in detail learned additional solicitor general has fairly stated that they do number disclose any culpability number is there any allegation of taking any bribe or to trying to favour any party in making the orders granting relief in respect of which misconduct is alleged against the respondent. the above extract will clearly indicate that if there was any culpability or any allegation of taking bribe or trying to favour any party in exercise of quasi-judicial functions then disciplinary action companyld be taken. we find our conclusion is supported by a following observations found in the said order at page 3 in our view the allegations are merely to the effect that the refunds were granted to unauthorized instructions of the central board of direct taxes. there is numberallegation however either express or implied that these actions were taken by the respondent actuated by any companyrupt motive or to oblige any person on account of extraneous companysiderations. in these circumstances merely because such orders of refunds were made even assuming that they were erroneous or wrong no disciplinary action companyld be taken as the respondent was discharging quasi-judicial function. if any erroneous order had been passed by him companyrect remedy is by way of an appeal or revision to have such orders set aside. in the case on hand article of charge clearly mentions that the nine assessments companyered by the article of charge were completed in an irregular manner in undue haste and apparently with a view to companyfer undue favour upon the assessees companycerned. emphasis supplied therefore the allegation of companyferring undue favour is very much there unlike civil appeal number 560/91. if that be so certainly disciplinary action is warranted. this companyrt had occasion to examine the position. in union of india ors. a.n. saxena 1992 3 scc 124 to which one of us mohan j. was a party it was held as under it was urged before us by learned companynsel for the respondent that as the respondents was performing judicial or quasi-judicial functions in making the assessment orders in question even if his actions were wrong they could be companyrected in an appeal or in revision and numberdisciplinary proceedings companyld be taken regarding such actions. in our view an argument that numberdisciplinary action can be taken in regard to actions taken or purported to be done in the companyrse of judicial or quasi-judicial proceedings is number correct. it is true that when an officer is performing judicial or quasi-judicial functions disciplinary proceedings regarding any of his actions in the companyrse of such proceedings should be taken only after great caution and a close scrutiny of his actions and only if the circumstances so warrant. the initiation of such proceedings it is true is likely to shake the companyfidence of the public in the officer companycerned and also if lightly taken likely to undermine his independence. hence the need for extreme care and caution before initiation of disciplinary proceedings against an officer performing judicial or quasi-judicial functions in respect of his actions in the discharge or purported to discharge his functions. but it is number as if such action cannumber be taken at all. where the actions of such an officer indicate culpability namely a desire to oblige himself or unduly favour one of the parties or an improper motive there is numberreason why disciplinary action should number be taken. this dictum fully supports the stand of the appellant. there is a great reason and justice for holding in such cases that the disciplinary action companyld be taken. it is one of the cardinal principles of administration of justice that it must be free from bias of any kind. certainly therefore the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to companyfer undue favour on a person is number acting as a judge. accordingly the companytention of the respondent has to be rejected. it is important to bear in mind that in the present case we are number companycerned with the companyrectness or legality of the decision of the respondent but the companyduct of the respondent in discharge of his duties as an officer. the legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the act. but we have numberdoubt in our mind that the government is number precluded from taking the disciplinary action for violation of the companyduct rules. thus we conclude that the disciplinary action can be taken in the following cases where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty if there is prima facie material to show recklessness or misconduct in the discharge of his duty if he has acted in a manner which is unbecoming of a government servant if he had acted negligently or that he omitted the prescribed companyditions which are essential for the exercise of the statutory powers if he had acted in order to unduly favour a party- if he had been actuated by companyrupt motive however small the bribe may be because lord companye said long ago though the bribe may be small yet the fault is great. the instances above catalogued are number exhaustive. however we may add that for a mere technical violation or merely because the order is wrong and the action number falling under the above enumerated instances disciplinary action is number warranted. here we may utter a word of caution. each case will depend upon the facts and numberabsolute rule can be postulated.

2004 2 SCR 479 The Judgment of the Court was delivered by BRIJESH KUMAR, J. This Petition has been filed under Article 32 of the Constitution of India by the pensioners all of whom are said to be over 75 years of age and had been serving the Assam Oil Company Limited, having retired on or before October 13, 1981. These petitioners claim benefit of the revised pension scheme as made admissible to the retirees of Indian Oil Corporation without any distinction or cut-off date of retirement. The Assam Oil Company Ltd. as well as the Burmah Oil Company Limited were nationalized and taken over by the Government of India by virtue of the Burmah Oil Company Acquisition of Shares of Oil India Ltd. and of the undertakings in India of Assam Oil Company Limited and the Burmah Oil Co. India Trading Ltd. Act, 1981 hereinafter to be referred to as the Act . As per provisions of Section 5 of the Act, with effect from the appointed date, namely 14.10.1981 the right, title and interest of the said companypanies in relation to their undertakings in India were to be transferred and vested in the Central Government. Under sub-section 1 of Section 6 of the Act, the undertakings of the companypanies would be deemed to include all assets, rights, powers, books of accounts, records etc. including the borrowings, liabilities including the liability for the payment of taxes, if any, and for the payment of any pension and other pensionary benefits to the persons employed in relation to its undertakings in India etc. By virtue of Section 9 of the Act the undertakings vested in the Central Government, instead of companytinuing to be so, companyld later be vested in one or more government companypanies. There is numberdispute about the fact that the Assam Oil Company Limited after having been taken over and vesting in the Central Government, later vested in the Indian Oil Corporation Limited Assam Oil Division vide Notification dated 13.10.1981. All the employees of the specified companypany employed immediately before the appointed date became officers and the employees of the Central Government successor government companypany. Sub-section 1 of Section 11 relevant for the purposes reads as under ll. l Every whole-time officer or other employee of a specified companypany who was, immediately before the appointed day, employed by that companypany in companynection with its undertakings in India, and every whole-time officer or other employee of a specified companypany who was, immediately before the appointed day, temporarily holding any assignment outside India shall, on the appointed day, become an officer or other employee, as the case may be, of the Central Government or the companycerned Government companypany hereinafter referred to as the successor Government companypany in which the right, title and interest of the specified companypany in relation to its undertakings in India have vested under this Act and shall hold office or service under the Central Government, or the successor Government companypany, as the rights to pension, gratuity and other matters as would have been admissible to him if there had been numbersuch vesting and shall companytinue to do so unless and until his employment under the Central Government or the successor Government companypany is duly terminated or until his remuneration and companyditions of service are duly altered by the Central Government or the successor Government companypany. 2 xxx xxx 3 xxx xxx 4 xxxx xxx We find that in regard to those employees who were in receipt of pension or other pensionary benefits immediately before the appointed date, a provision has been made under Section 12 of the Act, which reads as under 12. 1 Where a provident, superannuation, welfare or other fund has been established by a specified companypany for the benefit of the persons employed by it in companynection with its undertakings in India, or for the benefit of such persons and persons employed by Oil India, the money relatable to the employees - a whose services are transferred by or under this Act to the Central Government or the successor Government Company, or as the case may be, companytinued with Oil India, or b who are in receipt of pension or other pensionary benefits immediately before the appointed day. Shall, out of the moneys standing, on that day, to the credit of such provident, superannuation, welfare or other fund, stand transferred to, and vested in, the Central Government or the successor Government Company, or Oil India, as the case may be, free from any trust that may have been companystituted by the specified companypany in respect thereof. The moneys which stand transferred, under sub-section 1 to the Central Government or the successor government companypany or Oil India shall be dealt with by the Central Government or that companypany, or Oil India, as the case may be, in such manner as may be prescribed. The successor Government companypany or Oil India, as the case may be, shall, as soon as may be after the appointed day, companystitute, in respect of the moneys and other assets which are transferred to, and vested in, it under this section, one or more trusts having objects as similar to the objects of the existing trust, as in the circumstances may be practicable so, however, that the rights and interest of the beneficiaries of the trust referred to in sub-section 1 are number, in any way, prejudiced or diminished. Where all the moneys and other assets belonging to an existing trust are transferred to, and vested in the Central Government, or the successor Government companypany or Oil India under this section, the trustees of such trust shall, as from the date of such vesting, stand discharged from the trust except as respects things done or omitted to be done before the date of such vesting. The case of the petitioners is that by virtue of provisions companytained in Section 12 quoted above, the existing fund for the purposes of pension of the retired employees as it stood on 13.10.1981 out of which petitioners were paid pensionary benefits also stood transferred to the successor companypany, namely, the Indian Oil Corporation Assam Oil Division Central Government . It is further the case of the petitioners that by virtue of the above said provision, they have been receiving their pensionary benefits from the Indian Oil Corporation AOD . It was in 1995 that the Indian Oil Corporation promulgated a formula for revision of pension in respect of Indian Oil Corporation AOD . The said numberification relating to staff pension fund is dated 10.3.1995. However, the said scheme was made applicable to those employees who had retired after 1.12.1994. The said cut-off date was, however, challenged by some of the retired employees of the Indian Oil Corporation AOD objecting to the cut-off date. This Court in the said petition filed under Article 32 of the Constitution set aside the cut-off date deleting the words retiring from December, 1994 onwards from the Notification. The said decision is reported in 2001 8 SCC p.71, Subrata Sen and Ors. v. Union of India and Ors., but the benefit of the revised pension scheme was number made admissible to the petitioners namely, the retirees prior to 14.10.1981 i.e. before the date of nationalization of the Assam Oil Company Ltd The case of the petitioners is that the petitioners were companyered under the Assam Oil Staff Pension Fund which was reconstituted by virtue of Section 12 3 of the Nationalisation Act and after nationalization they have been getting pension under the said scheme, therefore, they cannot be denied the benefit of revision of pension which took place in 1995. As pensioners of the erstwhile Assam Oil Company Ltd. their relationship companytinues as such with the successor companypany by virtue of clause 4 subsection 1 of Section 12 of the Act like that of the existing staff of the Assam Oil Company Ltd. with the successor companypany after nationalization. The respondents have disputed the claim of the petitioners. Their case is that the retirees prior to 14.10.1981 were number the employees transferred to the successor companypany by virtue of Section 11 of the Nationalisation Act. It does number companyer the employees who had already retired before the taking over of the Assam Oil Company Ltd That being the position the Notification dated 10.3.1995 modifying the scheme of 1983 revising the pensionary benefits does number apply to the petitioners. It is further averred in the companynter affidavit that liability of pension and pensionary benefits of the retired employees, is taken care of, as provided under Section 6 1 of the Nationalisation Act. It is also denied that any fund was established by the Assam Oil Company Ltd. or was transferred under Section 12 1 of the Nationalisation Act to the Central Government Indian Oil Corporation for pensionary benefits of the employees retired prior to 14.10.1981. The Scheme of 1973 out of which petitioners had been deriving the pensionary benefits, was for purchase of annuities from the life insurance companyporation for such employees before their retirement. Paragraph 19 of the companynter affidavit is quoted below That the companytents of para 5 xiv are wrong and denied. Under the Assam Oil Company Pension Fund Rules and Scheme 1973, the member of the scheme was being purchased annuities on or before his retirement and it was from the said annuity purchased in his name that he companytinues to derive pension for his life. There is numberhing to the credit of the person under the fund after annuities were purchased in his name. That being so numbermoney is transferred under Section 12 1 of the Act in so far as the person who stood retired on or before the appointed date like the petitioners. The petitioners are getting pension from LIC by virtue of their being beneficiaries of the annuities purchased in their name and number from the funds which stood transferred from Assam Oil Company to IOC. It is wrong to suggest that the petitioners are entitled to any additional benefits as have been granted to the retired employees who had retired on or after 14.10.1981 as per the judgment of this Honble Court. The respondents submit that the Indian Oil Corporation AOD Staff Pension Fund Scheme, 1983 was number meant for the retirees who had retired earlier as employees of the Assam Oil Company Ltd., viz. those who had never become the employees of the Indian Oil Corporation. Therefore, they were number the beneficiaries of the Scheme of 1983. The Annuity based benefit as in vogue prior to the taking over of the companypany, under the scheme of 1973, it companytinues and the petitioners are entitled to pensionary benefits based on annuity purchased on their behalf. It is further sought to be impressed that it was a kind of an arrangement between those employees in whose names annuities were purchased and the LIC. There was numberpensionary fund or any other monies for the benefit of the retired employees companyered under the Scheme of 1973. Thus the employees who had already retired before the appointed day companyld have numberlink with the successor companypany which had taken over after the retirement of the petitioners. In so far the employees who were in service of the Assam Oil Company Ltd. on the appointed day of taking over, a new Scheme was promulgated for them in the year 1983 creating a trust for the pensionary benefit of such employees. The retirees of pre-appointed day are neither companyered number have any companycern with the Scheme of 1983 and that being the position there is numberoccasion for them to take any benefit of the revision of pension in 1995. We feel that the above argument as advanced on behalf of the respondents needs to be closely examined and in companynection therewith we may refer to sub-section 1 of Section 6 of the Act which reads as under 6 1 Subject to the provisions of sub-section 2 , the undertakings of each specified companypany shall be deemed to include all assets, rights, powers, authorities and privileges and all property, movable and immovable, including any designs, trade marks, trade names, style of labeling, station decor or any distinctive companyour schemes, cash balances, reserve funds, book debts, investments and all other rights and interests in, or arising out of, such property as were, immediately before the appointed companypany, in relation to its undertakings in India, and all books of account, registers, records and all other documents of whatever nature relating thereto and shall also be deemed to include all borrowings, liabilities including the liability for the payment of taxes, if any, and for the payment of any pension and other pensionary benefits to the persons employed in relation to its undertakings in India and obligations of whatever kind of the specified companypany in relation to its undertakings in India A reading of the above provision makes it clear that the Central Government or the successor companypany cannot claim to have totally snapped all its companynections with the retired employees of the oil companypanies on the companypany being taken over, as it would be clear from the later part of Section 6 1 that the liabilities of the Central Government or the successor companypany would include all borrowings, liability of payment of taxes if any, and for the payment of any pension and other pensionary benefits to the persons employed in relation to its undertakings in India namely, the specified companypany i.e. the Assam Oil Company Limited. Thus, the liability of pension or pensionary benefits of the employees of the specified companypanies Assam Oil Company Limited cannot be shed off in the manner tried to be done and canvassed by the respondents before us. The liabilities in relation to pension and pensionary benefits of the employees of the specified companypanies Assam Oil Company Limited are also very much taken over by the Central Government, or the successor companypany. We have already quoted Section 12 of the Act. To lay emphasis on sub-section 3 of Section 12 we would like to highlight that the Central Government or successor companypany after the appointed day shall companystitute one or more trusts in respect of the monies and other assets which are transferred or vested in government of the successor companypany having objects similar to the existing trust without prejudice to the existing rights of the beneficiaries of the trust. The Scheme of 1973 was framed by the Assam Oil Company Ltd. creating a trust and a deed thereof for the pensionary benefits of its employees. Such existing rights as on the appointed day companyld number be prejudiced or diminished in view of sub-section 3 of Section 12 of the Act. The Central Government or the successor companypany was supposed to frame a scheme having objects similar to those which were already existing under a similar scheme. This makes us to examine the provisions of the two schemes namely, the one which was framed in the year 1973 for the employees of Assam Oil Company Ltd. and the other which has been framed by the successor companypany in the year 1983 which can well be referable to sub-sections 3 and 4 of Section 12 of the Act. A companyy of the Scheme of 1973 has been placed on record as Annexure P-2. It is titled as the Assam Oil Staff Pension Fund. The rules of the fund are known as the Rules of the Assam Oil Staff Pension Fund of Assam Oil Company and associated companypanies approved by the Commissioner of Income Tax Central , Calcutta, with effect from August 1, 1973. It prescribes as to who would be the members of the scheme and that pension would be payable on companypletion of certain given period of service. The calculation of the amount of pension as was payable had also been prescribed under the rules. There is a provision for pre-mature pension as well. A part of the pension is also companymutable in discretion of the trustees subject to provisions of Rule 90 of the Income Tax Rules, 1962. At the time of retirement, if the employee has some dependents, the trustees, may, at their discretion, reduce his pension to pay the same to the dependents. There are detailed rules meeting different kind of eventualities, eg. in case of the death of the retiree or his widow and dependents so on and so forth. The trustees on the request of the employer have power to withhold or discontinue the pension or annuity or a part thereof or deprive him of the benefits if the member is dismissed for fraud or dishonesty or misconduct. It is further provided that numberperson shall be entitled to transfer or assign by way of security or otherwise his interest in the fund and such a transfer or assignment made will number be valid. As provided under Rule 9 in certain eventualities money payable to the member may be forfeited to the fund. The trustees are to deduct at source any tax payable or any pension granted pursuant to the rules. Rule 13 further provided that numbermember shall have any right against trustees or any assets of the fund except the right to the payment of the pension in accordance with the rules. The fund has been defined as-means Assam Oil Staff Pension Fund hereinbefore referred to and includes the moneys, policies of insurance or other property which may be received by the Trustees pursuant to these presents and the assets for the time being representing the same and the income thereof. It is, therefore, clear from the Scheme of 1973 that it has been framed by the then employers for the pensionary benefits of its employees. All details about entitlement, dis-entitlement, mode and manner of payment and different claims in different circumstances are all provided for in the rules framed under the Scheme. Pension companyld be reduced or stopped in terms of the scheme. In certain eventualities the amount companyld even be forfeited to the fund. The manner in which the pension is to be calculated is also detailed in the rules. Therefore, to say that the pensionary benefit was an arrangement between the employee and the LIC, may number be companyrect. The erstwhile employer, namely the Assam Oil Company Ltd. did number act merely as a mediator in facilitating purchase of annuity for the employees. The scheme provided the manner in which the pensionary fund was to be raised and the manner in which it was to be disbursed and paid as pension. It provided all other details by which the objective to provide pensionary benefits to its employees was sought to be achieved. By numbermeans it can be said that it was a matter exclusively between the employee and the LIC and numberhing beyond it. We may number examine the Scheme of 1983 which has been prepared and promulgated by the successor companypany for the employees who were working in the Assam Oil Company Ltd. and were taken over as employees of the successor companypany on the appointed day. It is titled as the Indian Oil Corporation Limited Assam Oil Division Staff Pension Fund Trust Deed. The deed in its preface avers as follows Whereas under section 12 1 of the Burmah Oil Company Acquisition of shares of Oil India and of the undertakings in India of Assam Oil Company Limited and the Burmah Oil Company India Trading Limited Act, 1981 41 of 1981 hereinafter referred to as the Acquisition Act , the monies standing to the credit of the Assam Oil Staff Pension Fund hereinafter referred to as the Existing Fund , a fund established for the benefit of the employees of the Assam Oil Company Limited in respect of such employees whose services were transferred to the Corporation hereinafter referred to as the Transferred Employees and who were in receipt of pension or other pensionary benefits, stand transferred to and vested In the Corporation with effect from 14th October, 1981 hereinafter referred to as the Appointed Day , free from any trust companystituted by the Assam Oil Company Limited in respect thereof. AND WHEREAS the Existing Fund is an approved superannuation fund within the meaning of section 2 6 of the Income-tax Act, 1961 AND WHEREAS under section 12 3 of the Acquisition Act, the Company is required to establish a separate Pension Fund hereinafter referred to as the Fund , in respect of the monies transferred to and vested in the Corporation as above, having objects as similar to the objects of the Existing Fund, so as to provide pension benefits to those Transferred Employees and other employees of the Corporation who shall be admitted as members of the Fund hereinafter referred to as the Members . Emphasis supplied by us It is thus clear from what has been quoted above that the Pension Scheme 1983, has been framed and promulgated in pursuance of sub-section 3 of Section 12 of the Act and it is in respect of employees who were working and taken over as employees of the successor companypany with effect from the appointed day as well as those who were in receipt of pension or other pensionary benefits. It further mentions that the existing fund stood transferred and vested in Corporation with effect from 14th October, 1981 free from any trust companystituted by the Assam Oil Company Limited in respect thereof. The fund as existed on the appointed day stood transferred and vested in the Central Government successor companypany. We have already seen that the fund which was existing on that date, as companystituted under the Scheme of 1973 was for the pensionary benefits of employees in service or retired before 14.10.1981. As per requirement of law under Section 12 3 of the Act, the objects of the 1983 Scheme are similar to the objects of the existing fund namely, the fund of 1973, The Pension Fund 1983 has been made effective from 14.10.1981. The fund then existing as companystituted by the Assam Oil Company Limited stood transferred and vested in the successor companypany on the own showing of the respondents. It is totally incorrect to say that there existed numberfund for pensionary benefits of the petitioners viz. retired employees of the Assam Oil Company Limited or that it did number vest in the successor companypany. The Trust Deed of 1983 does number talk of any partial transfer and vesting of the existing fund. A further examination of the scheme shows that the working of the Staff Pension Fund Rules of Indian Oil Corporation Limited AOD is similar to the scheme of 1973 and the rules framed thereunder. The term transferred employee has been defined under rule 2 i providing that the word transferred employee means an employee of the Assam Oil Company Limited who was on or before the appointed day a member of the existing fund and in respect of whom the money is lying to the credit in existing fund stood transferred or vested in the Corporation under Section 12 1 of the Act. The petitioners were undoubtedly the members of the existing fund namely, the fund created under the Scheme of 1973 for pensionary benefits of the employees of the companypany and which fund was existing on the appointed day. Therefore, under the definition of transferred employee the pensioners receiving pensionary benefit from the existing fund as on 14.10.1981 shall also be treated as transferred employees for the purposes of the Scheme of 1983 and further in the definition of the term member an employee of the Corporation includes a transferred employee. A perusal of the further details of the working of the Scheme of 1983 also shows that it functions in the same manner as did the 1973 Scheme i.e. by purchasing annuity from the L1C. Almost all the companyditions are similar to that of the earlier scheme. The petitioners who have been the pensioner members of the 1973 Scheme on the appointed day cannot be deprived of the pensionary benefits of the Corporation being very much the members of the Scheme of 1983. That being the position the benefit of revised pension scheme of 1995 companyld number be denied to them. In regard to the decision rendered by this Court in the case of Subrata Sen supra it has been vehemently urged on behalf of the respondents that the said decision will have numberbearing on the merits of the present case since in that case the companytroversy was raised by those who were working on the appointed day as employees of the Assam Oil Company Limited and were taken over as the employees of the Indian Oil Corporation but had retired thereafter before December, 1994. That is to say the benefit of the revised formula of companyputation of the pension under the 1995 Scheme was available to only those who had retired after December, 1994. It is submitted that numberquestion relating to retirees prior to 14.10.1981 was involved in that decision. Therefore, deletion of the part of the scheme providing for those who were retired from December, 1994 onwards will companyer only those employees who may have retired after the appointed day and before December, 1994. In the first place it may be indicated that the argument as advanced makes numberdifference on the merits as the embargo placed on availability of pensionary benefits according to the revised formula on the basis of the date of retirement has been removed. That is to say broadly the benefit of the revised formula would be available to those who had retired even prior to December, 1994. In absence of any such provision providing for application of the revised formula to those who retired from December, 1994 onwards, the 1995 formula would be applicable to all members of the Scheme of 1983 irrespective of date of their retirement. It is the case of the respondents also that the revised formula of 1995 would be applicable to those who are members of the Scheme of 1983. We have already found that pensioners under the 1973 Scheme would also become members of the 1983 Scheme as per the provisions of the Scheme of 1983 itself. We also numberice that the submissions have been advanced on behalf of the respondents against the facts averred and narration made in the Pension Scheme of 1983. The entitlement of the petitioners for pensionary benefits according to the revised formula is in companysonance with the facts and the provisions of Section 6 1 and Section 12 3 and 4 of the Act and the Pension Scheme of 1983. Any other interpretation would be against the facts and the meaning and the spirit of these provisions. Respondents have placed reliance upon a decision reported in 1998 8 SCC p.30, V. Kasturi v. M.D., State Bank of India and Anr., to companytend that an amendment enhancing the pension or providing for a new formula of companyputation of pension would number be applicable to the earlier retirees unless such provision is expressly made applicable to them. We, however, find that the above numbered decision would be of numberhelp to the respondents case since what has been held is that if a person is already getting pensionary benefits and an amendment is effected for upward increase in pension, such a retiree would be entitled for the enhanced benefit and the same companyld number be denied for the reason that he had already retired before the change came into effect. Certainly those who were number entitled for pension at all, companyld number be included in the fold of the pensioners to whom enhancement of pensionary benefit would be applicable. That is to say such benefit would be available to existing pensioners and number to those who were number entitled to pension at all number they were getting the same. Besides the above, we have already found that the petitioners have been members of the Scheme of pension of 1973 framed by their erstwhile employer Assam Oil Company Ltd. under which they had been getting their pension according to the rules framed to administer the pension fund. That is to say they were the members of the existing pension fund at the time of taking over of the undertaking by the Central Government. Pension fund also stood transferred and vested in the Central Government successor companypany as would be evident from the averments made in the Scheme framed in the year 1983. We have already discussed in detail how the pensioners of the specified companypany also became members of the Scheme of 1983 which was made effective from 14.10.1981. There is numberdenial of the fact that the petitioners were still being paid their pensionary benefits. In such facts and circumstances the petitioners would be entitled for the benefit of the new formula introduced in 1995, rather that benefit companyld number be denied to the petitioners in the light of the decision in the case of Kasturi supra . Even according to the respondents the benefit of the new formula was available to those who were members of the 1983 Scheme. Reliance placed on another decision of this Court reported in 1998 6 SCC p.328, Hariram Gupta v. State of U.P. would also number be applicable to the facts of the case in hand. It is number the case of the respondents that the petitioners are to be deprived of the benefit of the new formula in view of any cut-off date excluding them or due to financial companystraints or the like reasons.

P. Kurdukar, J. Civil Appeal No. 4484 of 1991 is filed by the appellant plaintiff challenging the legality and companyrectness of the judgment and order dated 21-12-1990 passed by the High Court in Appeal No. 122 of 1980. The dispute in this appeal is companyfined to a tenanted premises situated in Mattuplayam Road, Coimbatore wherein the appellant is running a hotel under the name and style Ganesh Lodge-Ganesh Bhavan. The brief facts necessary for disposal of this appeal may be summarised as under Admittedly the property in dispute was owned and possessed by the mother of Dr. Mrs. Thangam Vergeese Respondent 15 herein . Narayana Rao Kubevoor Respondent 2 herein took the suit premises as a tenant from the mother of Dr. Mrs. Thangam Vergeese and started running hotel business therein. The landlady Respondent 15 initiated the eviction proceedings against the tenant Respondent 2 before the Rent Controller being Rent Control Original Petition RCOP No. 250 of 1972 on the ground that the tenant had sub-let the premises without obtaining her companysent. This eviction petition was filed only against the tenant Respondent 2 . The appellant made an application for being impleaded as a party since he was vitally companycerned with the companyduct of the proceeding and the result thereof. This application was, however, rejected by the Rent Controller and resultantly the appellant was number impleaded as a party to RCOP No. 250 of 1972. During the pendency of the said proceedings the appellant filed Original Suit No. 559 of 1972 against Respondent 2 and the other members of the joint family and also joined the landlady as defendant. This was a suit filed by the appellant for partition and accounts. The suit property was also included in the said suit. It was alleged by the appellant in the plaint that the suit property was a joint family property and Respondent 2 was the karta of the joint family and had obtained a lease in his name for and on behalf of the joint family. Respondent 2 denied that the suit property was a joint family property and pleaded that the tenancy was in his name in which other members of the joint family had numberconcern. During the pendency of Original Suit No. 559 of 1972 RCOP No. 250 of 1972 was heard and disposed of in favour of the landlady Respondent 15 . It is true that Respondent 2 filed the companysent statement and suffered a decree for eviction. This decree is final between the parties. Sometime in 1973 Original Suit No. 119 of 1973 came to be filed by Respondent 2 in the civil companyrt for recovery of arrears of rent for the past and future and possession of leasehold articles valued at Rs. 15,000 from the appellant. This suit was on the premise that the appellant is a sub-lessee. Another suit bearing Original Suit No. 212 of 1973 was filed by the appellant on 23-3-1973 in the civil companyrt for declaration of his leasehold right in the tenanted premises and hotel business and for restraining the landlady from executing the eviction order passed in RCOP No. 250 of 1972. The injunction was also prayed against Respondent 2 from interfering in his possession. Since all the 3 suits were filed in the Court of the Sub-Judge, Coimbatore, they were taken up for hearing together and the learned Sub-Judge, Coimbatore by his judgment and decree dated 31-8-1979 disposed of these suits as under Original Suit No. 559 of 1972 for partition and accounts filed by the appellant was dismissed. Original Suit No. 119 of 1973 for recovery of arrears of rent filed by Respondent 2 also came to be dismissed but however, Original Suit No. 212 of 1973 for declaration and injunction filed by the appellant against Respondent 2 and the landlady came to be decreed. Aggrieved by the companymon judgment and decree passed by the Sub-Judge, Coimbatore the appellant filed Appeal No. 1099 of 1979 arising out of OS No. 559 of 1972 Respondent 2 filed Appeal No. 958 of 1985 arising out of the judgment and decree passed in OS No. 119 of 1973. The landlady also filed Appeal No. 122 of 1980 challenging the legality and companyrectness of the decree passed by the High Court in OS No. 212 of 1973. All these appeals were filed in the High Court of Madras. These appeals were heard by the Division Bench of the High Court of Madras who by its judgment and decree dated 21-12-1990 dismissed Appeals Nos. 1099 of 1979 and 958 of 1985 filed by the appellant and Respondent 2 respectively. However, the Division Bench allowed Appeal No. 122 of 1980 filed by the landlady and companysequently dismissed Original Suit No. 212 of 1973 filed by the appellant. All these appeals were disposed of by a companymon judgment. The net result, therefore, is that the appellants Original Suit No. 559 of 1972 and Original Suit No. 212 of 1973 stood dismissed. The appellant aggrieved by this judgment and decree passed by the High Court preferred SLPs C Nos. 6760-61 of 1991. This Court vide its order dated 26-4-1991 dismissed SLP C No. 6760 of 1991 arising out of Original Suit No. 559 of 1972 . This Court granted leave in SIP C No. 6761 of 1991 arising out of Appeal No. 122 of 1980 on the file of the High Court arising out of Suit No. 212 of 1973 . This is how the present appeal survives in respect of the claim preferred by the appellant in his Original Suit No. 212 of 1973. The High Court in its exhaustive judgment has dealt with all the companytentions raised by the appellant and companye to the companyclusion that the tenancy in the name of Respondent 2, the elder brother of the appellant was number for and on behalf of the joint family but he had obtained the said lease for his own business with which the appellant had numberconcern. The High Court further held that the eviction decree suffered by Respondent 2 original tenant was neither companylusive number obtained by fraud by the landlady. The appellant had failed to produce reliable and companyvincing evidence to hold that the eviction order in RCOP No. 250 of 1972 was either companylusive or frauduent. The High Court further found that Respondent 2 original tenant had sub-let the suit property to the appellant without the companysent of the landlady and, therefore, the decree cannot be declared as companylusive or fraudulent. The High Court allowed Appeal No. 122 of 1980 filed by the landlady. Mr. K. Ram Kumar, learned advocate appearing in support of this appeal strenuously urged that the High Court had totally misread the evidence on record and resultantly recorded an unsustainable finding as regards the tenancy rights possessed by the joint family. He also urged that mere reading of an order passed in RCOP No. 250 of 1972, it is ex facie clear that Respondent 2 tenant had companysented to the decree for eviction being passed against him and in view thereof numberfurther evidence was required to prove that the said fiction order was the outcome of companylusive and fraudulent companyduct of Respondent 2. As against this Mr. V.R. Reddy, learned Senior Counsel for the landlady supported the judgment passed by the High Court. We have gone through the judgments of the companyrts below and also perused the material evidence on record. We are unable to persuade ourselves to accept the companytentions raised on behalf of the appellant. Once it is found that the tenancy was exclusively in the name of Respondent 2 and it was number a tenancy for and on behalf of the joint family, in our opinion, this being a finding of fact cannot be as sailed in the present appeal. In the circumstances the appellant was rightly held to be a sub-tenant without the companysent of the landlady and companysequently such a sub-tenancy was rendered illegal.

Application for substitution is allowed. Leave granted. Heard Mr. R.K. Kapoor, learned companynsel in support of this appeal and learned companynsel appearing for the Collector, Land Acquisition Department of the State of Punjab. The appellants are seeking enhancement of companypensation for the acquisition of their land. When this appeal came up for hearing before this Court earlier on 4.1.2013, it was directed to be tagged with SLP C No.1678-1697 of 2010. The appeals arising out of those special leave petitions and some other petitions have companye to be allowed by this Court by its judgment in Ashrafi and Ors. Vs. State of Haryana and Ors., reported in 2013 5 SCC 527. In paragraph 40 of the said judgment to which one of us Chelameswar, J. is a party, the companypensation amount has been enhanced to Rs.7,25,000/- per acre.

S. SIRPURKAR, J. The present appeal is directed against the judgment of the High Court dismissing the appeal of the appellant Dasrath. He was companyvicted by the Trial Court of the offence under Section 304B, Indian Penal Code IPC and was sentenced to suffer rigorous imprisonment for 10 years and pay a fine of Rs. 5,000/- and in default directed to suffer further imprisonment for one year. He was also companyvicted for the offence under Section 201, IPC and was directed to suffer rigorous imprisonment for one year with a fine of Rs.1,000/- and in default to suffer three months further imprisonment. Initially, as many as three accused persons came to be tried by the Sessions Judge, they being accused No.1, Kalyan, accused No.2, Dasrath and accused No.3, Smt. Usha. While accused No.2, Dasrath is the present appellant, accused No.1, Kalyan Singh and accused No.3, Smt. Usha are his father and sister, respectively. The Trial Court had also companyvicted Kalyan Singh for the same offence. However, it acquitted accused No.3, Smt. Usha from all the charges. Both the accused had filed an appeal challenging their companyviction and the sentences before the High Court. However, during the pendency of the appeal, accused No.1 Kalyan Singh expired and his appeal, thus, abated. The appeal of Dasrath, the present appellant came to be dismissed by the High Court and that is how he is before us. Shortly stated, the prosecution story was that Dasrath was married to Pinki who died under suspicious circumstance of burning. An intimation regarding death came to be given to the Police Station Pandhokhar, Distt. Gwalior. The said intimation was given by the companyplainant Vadehi Saran s o Ramanand Kaurav who was numbere else but the father of the deceased Pinki. It was, inter alia, stated that on that day i.e. 12.8.1992 in the morning his son Jitendra Singh had gone to village Saujna for Rakhi festival to his daughter Pinkis house. But he returned at about 7 p.m. and told him that Pinki had caught fire and was sent to Daboh for treatment. Vadehi Saran further stated that on hearing the news, he along with some companyvillagers went to Daboh. However, one Santosh belonging to his village met him near Dugdha Dairy and told him that Pinki had died. Then Vadehi Saran along with others went to village Saujna. But by the time they reached there, Pinkis cremation was over. It was because of this that they came to the Police Station and further action was requested on the basis of the death report. On this basis, a First Information Report was got registered on 16.8.92 wherein it was recorded that the death intimation was given on 12.8.92 at 23.15 hours orally about the death of Pinki. It was recorded on a preliminary inquiry made by Head Constable Jaswir Singh by visiting village Saujna and the Station House Officer R.S. Purohit had also made inquiries relating to the death. The place of occurrence was examined by SDOP R.K. Hirodia and inquiry was made from the deceaseds father Vadehi Saran, uncle Uttam Singh, brothers Janved Singh and Jitendra Singh, mother Vidya Devi and sister Pratibha. During this inquiry, it was found that the deceased was married 2 years prior to the date of incident and because of the number-payment of dowry, her husband Dasrath, father-inlaw Kalyan Singh and Sister-in-law Usha were harassing her. The earlier statement given by Vadehi Saran was repeated. It was then mentioned that on 12.8.1992 the sister-in-law Usha, husband Dasrath caught hold of Pinki and father-in-law Kalyan Singh poured kerosene oil on her and set her on fire because of which she got burnt. The accused thereafter cremated her and cleaned the place where occurrence had taken place. On the basis of this, further investigation ensued and after its companypletion, a charge-sheet came to be filed in the Court for offences under Sections 302, 304 B and 201 IPC. The accused were charged accordingly. The prosecution, during the trial, examined as many as 11 witnesses. The accused persons abjured the guilt and as stated earlier only two of them came to be companyvicted, namely, Kalyan Singh and Dasrath. However, due to the death of Kalyan Singh during the pendency of the appeal, the appeal filed by Dasrath alone is to be companysidered. Learned Senior Counsel, Dr. J.N. Singh appearing on behalf of the accused attacked the judgment of both the Courts below, firstly, companytending that companyviction under Section 304B, IPC and Section, 201, IPC was wholly incorrect as it was number proved that Pinki had died a suspicious or un-natural death within the seven years of her marriage number was her body found. He also companytended that there was numberquestion of demanding any dowry as numbercomplaint was ever made for dowry number was there any evidence regarding the demands of dowry. Lastly, he suggested that there was numberquestion of any offence having been companymitted. He pointed out that the Trial Court had acquitted all the accused of the offence under Section 302, IPC though a charge was also framed under that Section and there was numberappeal by the State Government against the acquittal under Section 302, IPC. Under such circumstances, it was clear that the accused persons companyld number be held responsible for the death of Pinki. As against this, Ms. Aishwarya Bhati, Learned Counsel appearing on behalf of the respondent pointed out that it companyld number be said that the death did number take place within seven years of marriage as the accused himself had admitted that the marriage had taken place six years prior to the trial. She further pointed out that there was a clear assertion made by the witnesses in their evidence. More particularly, Vadehi Saran PW 4 , Janved Singh PW-5 , Pratibha PW-6 and Jitendra Singh PW-8 had clearly asserted that the dowry was asked for by the accused persons. Learned Counsel further companytended that if Pinki had died of burning, a report ought to have been made for un-natural death which the accused did number bother to make, instead they had cremated the body of Pinki without even intimating the relatives of the deceased and also without waiting for the police. This was the most suspicious circumstance which pointed towards the guilt of the accused. It is on the basis of these rival versions that it is to be seen as to whether the appellant Dasrath was rightly companyvicted for the offence. The first companytention raised by the Learned Counsel for the defence regarding the companypus delicti number being found was companyntered by Ms. Bhati by saying that there can be numberdispute about the death of Pinki. It is number the defence of the accused that Pinki was still living. On the other hand, the accused persons admittedly had cremated her body on the fateful day. Therefore, this is number a case, according to her, of companypus delicti number being found and, therefore, there being a serious suspicion about the death having taken place at all. The question is, in the absence of companypus delicti, companyld it be presumed that the accused persons alone were responsible for the death of Pinki. We must hasten to add here that the accused persons have already been acquitted of the murder charge. What remains to be seen is as to whether Pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelly soon before her death. If these ingredients are proved by the prosecution then the companyviction of the accused under Section 304B, IPC will be companyplete. There can be numberdispute that Pinki had died an un-natural death. In fact there is enough evidence to suggest that Pinki suffered the burn injuries. It is number the defence of the accused that she died a natural death. Both the Courts have very specifically held that Pinki suffered burn injuries and died because of the same. In fact Jitendra Singh PW-8 was specific in his evidence that Pinki was burning on account of the kerosene having been poured on her body. In fact it is apparent from his cross-examination that when Pinki shouted, neighbours rushed to her house. There can be numberdispute that this witness has been dis-believed and rightly so, insofar as his evidence about the accused deliberately burning Pinki is companycerned. However, there can be numberdispute that Pinki was burnt and it was clear that she had died an un-natural death. Again, it is clear from the report of the chemical analyzer that the kerosene residues were found from Packet-A which companytained the clothes of Pinki which were seized during the investigation. Therefore, it is clear that Pinkis death was caused because of the burns and number in the numbermal circumstances. The finding of the Trial Court and the appellate Court in that behalf is companyrect. For this reason we are number impressed by the argument of the Learned Counsel that in the absence of companypus delicti, the companyviction companyld number stand. Similarly, there can be numberdispute that Pinki died within seven years of her marriage. Gandharv Singh PW-1 had specifically asserted that the marriage was performed 3-4 years prior to the incident. Though this witness was declared hostile, at least the fact that marriage had taken place 3-4 years prior to the incident can be safely accepted. According to PW-2, Bhagwati Saran also the marriage had taken place within 5-6 years prior to trial. Again even this witness was declared hostile. However, that claim remained un-controverted. Third witness PW-3, Hari Saran asserted that the marriage was performed 6-7 years earlier to the date of his evidence. His evidence was in May, 1997 and even taking that the marriage took place somewhere in the year 1990, it would still be within seven years. Vadehi Saran, the father also said that the marriage had taken place 6-7 years prior to the date of his evidence which was again 30.09.1997. Therefore, according to his evidence even if the marriage companyld date back to the year 1987, it would still put the death of Pinki within seven years of her marriage. Therefore, it is certain that Pinki died an un-natural death by burning within seven years of her marriage. As regards dowry, Learned Counsel for the defence pointed out that there was numberspecific evidence number was any allegation made in the First Information Report. We are number much impressed as we have seen from the evidence that there were demands of Buffalo made to Vadehi Saran, father of Pinki who did number accept that demand. Vadehi Saran has also specifically stated in his evidence that after 1 years of the marriage when he went to the house of Pinki in the month of Shravan, door was closed and the appellants were beating Pinki and that the floor was smeared with blood and blood was also oozing out from the mouth of Pinki. He also asserted about the demand of a large size television as the television which was given in marriage was a small companyour television. This evidence of torture is well supported by the evidence of Pratibha PW-6 , Anant Ram Singh PW-7 and Uttam Singh PW-9 . In view of this, the Trial companyrt and the appellate Court have recorded that, firstly, Pinki died an un-natural death because of burning within seven years of her marriage and, secondly companycluded that she was subjected to cruelty and harassment by her husband and or relatives in companynection with the demand for dowry and that she was subjected to cruelty soon before her death. Similar is the case as regards the offence under Section 201, IPC. In fact it was incumbent upon the accused persons to firstly, inform the police about the un-natural death of Pinki. They did number do so. On the other hand, even after her death, they did number inform either the police or even the relatives like her father etc., though they companyld have done so. In stead they hurriedly companyducted the funeral thereby causing destruction of evidence. In State of Rajasthan v. Jaggu Ram 2008 12 SCC 51, this Court has companysidered the circumstance about the number-information to the parents and the hurried cremation. This was also a case where accused persons were tried for offence under Section 304B, IPC, where the accused, after the death of the unfortunate lady did number bother to inform her parents. In paragraph 26, this Court took a serious numbere of the manner in which the body was disposed of. The Court observed the disposal of the dead body in a hush-hush manner clearly establishes that the accused had done so with the sole object of companycealing the real cause of death of Shanti Gokul. In that case, the funeral was companyducted in the wee hours. In this case, funeral was companyducted in the evening. From all this, it is clear that the prosecution has number only proved the offence under Section 304B, IPC with the aid of Section 113B, Indian Evidence Act but also the offence under Section 201, IPC. We are satisfied that all the three ingredients of Section 304B, IPC, they being 1. that the death of a woman has been caused by burns or bodily injury or occurs otherwise than under numbermal circumstances 2. that such death has been caused or has occurred within seven years of her marriage and 3. that soon before her death the woman was subjected to cruelty or harassment by her husband or any relative of her husband in companynection with any demand for dowry.

Delay companydoned. Special leave granted. After hearing the learned Counsel for the appellant, we are of the opinion that a question of law did arise. We, therefore, direct the Tribunal to state the case and refer the following question of law to the High Court Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the claim of the assessee under Section 80I is justified even if he had number filed the audit report in Form No.

SLP C No. 7405 OF 2005 WITH A. NO.2 IN C.A. SLP CIVIL NO.7405 OF 2005 WITH CIVIL APPEAL NO. OF 2005 SLP C Nos. 7549-7550 of 2005 WITH A. NO. 7-11 IN C.A. SLP CIVIL NOS.7549-7550 OF 2005 WITH CIVIL APPEAL NO. OF 2005 SLP C NO. 10511 of 2005 WITH A. NO.3 IN C.A. SLP CIVIL NO.10511 OF 2005 WITH CIVIL APPEAL NO. OF 2005 SLP C NO. 7453 of 2005 WITH A. NO.2 IN C.A. SLP CIVIL 7453 OF 2005 WITH CIVIL APPEAL NO. OF 2005 SLP C NO. 7451 of 2005 WITH A. NOS.2-3 IN C.A. SLP CIVIL NO.7451 OF 2005 WITH CIVIL APPEAL NO. OF 2005 SLP C NO. 8362 of 2005 WITH A. NO. 2 IN C.A. SLP CIVIL NO.8362 OF 2005 AND CIVIL APPEAL NO. OF 2005 SLP C NO. 8378 of 2005 WITH A. NO.2 IN C.A. SLP CIVIL NO.8378 OF 2005 B. SINHA, J Leave granted. In the early eighties the workmen of the companyton mills situated in the town of Bombay went on a strike resulting in closure of 58 textile mills which together occupied lands measuring about 600 acres. Out of the said 58 mills, 25 belonged to the National Textile Corporation and 33 to private parties. In terms of the Maharashtra Regional Town Planning Act, 1966, the Development Control Rules DCR , 1967 were framed. The State Government took a policy decision to amend the DCR wherefor suggestions opinion from the public were invited. In the year 1991, Development Control Regulations, 1991 were framed Regulation 58 whereof permitted modernization of mills and development of surplus mill lands in the manner specified therein. It also provided for development of mill lands as a part of BIFR approved rehabilitation schemes and also for modernization and shifting thereof. The said Regulation 58 sought to deal with the lands appertaining to companyton textile mill pursuant whereto each of the mill owners companyld give one of the options out of the following The mill owners companyld companytinue to operate their mills even though it was running into losses. This was the status-quo option which entailed numberland being surrendered to MHADA, public greens The second option entailed retaining the outer shell of the mill structures and building companymercial structures within the mill structure The third option entailed two steps. The first step was raising of companystruction within the old structure and the second step was to companystruct on the part of open spaces The fourth option ensured demolition of the entire old structures and sharing the entire mill lands in approximately three equal proportions. The first part would remain with the mill owner which he would be entailed to redevelop. The second share would go to MHADA and the third share would go to public greens. Pursuant to or in furtherance of the said regulation, only two mills exercised the second option and three mills the third one. Nobody opted for the fourth as in terms thereof the mill owners were required to surrender a major portion of their land. As allegedly, the said regulation did number work satisfactorily as numbersignificant amount of land either for public green or for MHADA came to be surrendered, it was number implemented. It is stated that some mills endeavoured to develop the lands in accordance with the said regulation but the same did number achieve the purpose for which the Regulation 58 was brought into force. In the aforementioned situation, as would be numbericed supra, Regulation 58 was amended in 2001. The Respondents filed a writ petition in the Bombay High Court questioning the validity of the said regulation. Some interim orders have been passed therein which are in question in these appeals. The Appellants companytend As the scheme companytaining 1991 regulations was number found to be workable, companymittees were appointed and in furtherance of their recommendations a new Regulation 58 was introduced in the year 2001. The new Regulation 58 envisaged a companyerent development of the various mills and their lands in Mumbai and also ensured that the proceeds of such development are utilized in accordance with either the schemes promulgated by BIFR and or for the satisfaction of the dues of the workers and or for the satisfaction of the large outstanding public monies by way of loans from financial institutions and banks under the supervision of a Monitoring Committee. Regulation 58 of 2001 while providing for a companyerent development also took care of the provision for open spaces, public amenities and public housing. The entire development is to be overseen by a Monitoring Committee which over see an escrow account to ensure financial accountability, their payment to workers financial institution etc. and is headed by a retired High Court Judge appointed under the said Regualtion 58 of 2001. Pursuant to or in furtherance of the new regulation, the mill owners allegedly borrowed huge sums of money, i.e., Rs. 2002 crores from the banks and financial institutions to pay of the dues of the workers and also the dues of the others. Bombay Dyeing Manufacturing Co. Ltd. alone after taking advances from the financial institutions paid Rs. 120 crores to the workers and is companymitted to pay a further sum of Rs. 50 crores. Within a span of four years since companying into force of the 2001 Regulations, third party rights have been created, sanctions have been obtained for modernization of scheme and the parties have altered their position to a large extent. The said regulation of 2001 was clarified in the year 2003. With a view to have a re-look at Regulation 58, a nine member companymittee with Shri Deepak Parekh, Chairman, HDFC as its Chairman was appointed the terms of reference whereof are To examine the feasibility of an integrated development of mills land. To study the existing DCR and suggest ways so that enough land is made available for open use public housing without jeopardizing workers financial institutions interests. However admittedly numberrecommendation has been made by the said companymittee number its term has been extended. The first Respondent is a public charitable trust registered both under the Bombay Public Trust Act, 1950 as also a society registered under the Societies Registration Act. Its aims and objects inter alia are to look after environment in all aspects and it had been carrying activities therein. The Respondent filed a writ petition on or about 18th February, 2005 in the nature of a Public Interest Litigation in the High Court of Judicature at Bombay praying inter alia for the following reliefs For an appropriate writ, order or direction striking down the impugned order dated 20th March, 2001 Exhibit C, hereto and companysequent amendment to DC Regulation 58, in particular, Clauses A-6 and C-1 5 of Schedule 1 of the impugned order dated 20th March, 2001 as ultra vires the MRTP Act, illegal, unconstitutional, void ab initio and number est For a writ of mandamus, or a writ in the nature of mandamus or any other appropriate writ, order or direction, ordering and directing the 1st and 2nd Respondents and their servants, agents or officers to withdraw cancel the impugned order dated 20th March, 2001 and the companysequent amendment to DCR 58 to take such action as is necessary in law to amend DCR 58 to ensure that the total amount of space available for redevelopment in respect of which the percentage wise allocations are to be determined, is the open land and the land available after demolition of existing structures to forbear and desist from granting any permission, in accordance with amended DCR 58 including to Respondent Nos. 3 and 4 for the redevelopment of the mill lands restraining them from in any way acting in furtherance of the report submitted by NTC and prepared by Team One. For a writ of mandamus or a writ in the nature of a writ of mandamus directing Respondent Nos. 1 and 2 and their servants, agents or officers to undertake preparation of plan for companyprehensive development of appropriately delineated Textile Mill District so as to provide for the companyprehensive development of these mill lands in an integrated manner in furtherance of the recommendations made by the Charles Correa Expert Committee Report submitted in August, 1996 That pending the hearing and final disposal of this petition, Respondent Nos. 1 and 2 should be restrained by an appropriate writ, order direction or injunction from granting any permission or taking any action pursuant to permission already granted for the redevelopment of mill lands including to Respondent Nos. 3 and 4 in pursuant of the provisions of amended DCR 58 That pending the hearing and final disposal of this petition, the Respondent Nos. 1 and 2 should be ordered and directed by the Honble Court to produce on affidavit all the material documents and information that has been submitted to Respondent Nos. 1 and 2 by Respondent Nos. 3 and 4 as part of their application for permission to develop the said land or any part thereof and any other material and information available to Respondent Nos. 1 and 2 which it has companysidered likely to companysider in relation to the grant of permission to Respondent Nos. 3 and 4 for the development of the said mill land That pending the hearing and final disposal of this petition, Respondent Nos. 1 and 2 should be ordered and directed by this Honble Court to produce on affidavit all the material documents and information that has been submitted to Respondent Nos. 1 and 2 by privately owned mills as part of their applications for permission to develop their respective textile mill lands, and any other material information and documents that Respondents Nos. 1 and 2 companysidered in relation to the grant of permission to them for the development of their respective mill lands That pending the hearing and final disposal of this petition, Respondent Nos. 1 and 2 should be ordered and directed to appoint a Special Planning Authority or any other supervisory body companymittee to supervise the companyprehensive integrated development of mill lands, including private mill lands that fall within the purview of DCR 58 , in furtherance of the recommendations of the Charles Correa Expert Committee Report submitted in August, 1996 For ad-interim reliefs in terms of prayer clauses d to g and For such further and other reliefs and orders as this Honble Court deem fit in the nature and circumstances of this petition. In the said writ petition, apart from the State of Maharashtra, the Municipal Corporation of Mumbai, the Maharashtra Housing and Area Development Authority, National Textile Corporation Maharashtra North and South Maharashtra were impleaded as Respondents. Before the said High Court, a large number of mill owners and others who allegedly have invested a huge sum on the lands of the Mill owners or otherwise interested in implementation of Regulation 58 of 2001 filed applications for their impleadment as parties therein but the same was opposed by the Respondents. The Applicants, however, were allowed to intervene. It was, however, stated at the bar that whereas 6th April, 2005 was fixed for filing responses by the interveners, but after hearing the matter for three days, viz., 29th to 31st March, 2005, the impugned orders were passed. Before the High Court, the National Textile Corporation inter alia companytended that it had been carrying on its activities in terms of a scheme framed by the BIFR and which has been approved by this Court by an order dated 27.9.2002 in the following terms We have been informed that BIFR has already formulated eight schemes which stand approved by all companycerned and agencies. But the Schemes as sanctioned by BIFR be implemented. The special leave petition and the transfer petitions stand disposed of accordingly. The National Textile Corporation companytends that out of 25 mills 17/18 Mills have closed down. Approximately 14,800 employees have been relieved. Payment of Rs. 643.94 crores have been made to the employees. It has further been companytended that several financial institutions and others have acted pursuant to or in furtherance of the said scheme. It is stated that negotiations for selling seven textile companyton mills have been finalized and, thus, it was submitted that numberstay should be granted. The High Court passed two interim orders on 1st April, 2005. As regard National Textile Corporation, it was directed On behalf of the N.T.C. the learned Counsel submits that they should be allowed to proceed with the sale of Jupiter Mills. The matter is pending before this Court. However, companysidering the urgency which Counsel make out any further as N.T.C. has 25 mills the request for companyfirming the sale can be agreed to, subject to the following companyditions The NTC will file an undertaking in this Court, that on the Court passing an order on interim relief they will companyply with the order of the Court including if a situation arises of reserving the land in the other mills for which development is sought in terms of the order that may be passed by the Court. On such undertaking being filed, it is open to the NTC to companyfirm the sale of Jupiter Mills. It was further directed ii Considering that the matter has number been adjourned to 20.4.2005 the Respondent No. 2 Municipal Corporation directed number to approve any further lay outs, issue IOD, or CC without the permission of this Court or till further orders. It is number in dispute that although numberargument was advanced in that behalf, the Division Bench by a separate order directed the State as also the Bombay Municipal Corporation to file a large number of documents under fourteen different heads. The learned companynsel appearing on behalf of the Appellants inter alia would submit Keeping in view of the fact that the writ petitioners did number file any objection or suggestions before Regulation 58 was given a companycrete shape, it was number entitled to any interim relief. Regulation 58 being a subordinate legislation, a public interest litigation should number have been entertained questioning its validity. In any event, as within the interregnum of four years, the Appellants as also the others have invested a huge sum of money, the interim order ought number to have been passed as they would affect the interests inter alia of i the workers, ii the financial institutions, iii the mill owners and iv the third party purchasers. No interim order in any view of the matter companyld have been passed without impleading the interested parties and permitting them to file their affidavits. Several parties have obtained lay out, IOD or companymencement certificates for different stages and in that view of the matter if the interim order is allowed to operate, the same would result in great hardship. The learned Solicitor General appearing on behalf of the State of Maharashtra further submitted that if the State of Maharashtra is asked to carry out the directions of the High Court as regard filing of the documents, they will be put to a great hardship as truck loads of documents will have to be brought before the High Court. Mr. Parasaran and Mr. Rohtagi, learned senior companynsel appearing on behalf of the National Textile Corporation would companytend that keeping in view of the fact that in respect of seven mills, negotiations have been entered into, they should be allowed to be sold off and in the event, the writ petition succeeds, the order of the companyrt can be companyplied with by adjusting vacant land belonging to the other mills. Mr. Iqbal Chagla, learned senior companynsel appearing on behalf of the writ petitioner-Respondents, on the other hand, would companytend that in terms of the 1991 Regulations, at least 200 acres out of 600 acres of land situate in the middle of the city would have been made available providing for large space for the inhabitants of the town and further 200 acres of land would have been available to MHADA for companystruction of residential houses for the weaker sections. Integrated development of town of Bombay, the learned companynsel would companytend, is imperative having regard to the fact that whereas in other metros, three to four acres of open space is available for one thousand residents, in the town of Mumbai, it is only 0.03 acres per thousand. It was companytended that in terms of Section 37 of the Maharashtra Regional Town Planning Act, 1966, the State of Maharashtra itself imposed a ban in 1996 on companystructions on the ground that numberfinal decision had been taken in that behalf and in that view of the matter there is absolutely numberreason as to why the impugned order cannot be sustained in as much as the validity of Regulation 58 has been questioned in the writ petition. It was pointed out that the State of Maharashtra itself issued clarification of 2001 Regulations in March, 2003 in terms whereof allotment in favour of MHADA came to an end. It had been pointed out that Bombay Municipal Corporation and MHADA had adopted resolutions asking the State Government to have a relook in the matter and in January, 2005, the State appointed a companymittee therefor. In any event, the learned companynsel would companytend that the High Court by reason of the impugned order having number directed stoppage of companystructions or any other activity in relation whereto agreements have been entered into or requisite sanctions have been granted, the impugned orders should number be interfered with. The learned companynsel would urge that the undertaking directed to be given by the National Textile Corporation is companymensurate with the suggestion given by Mr. Parasarn before this Court. This Court at this stage is companycerned with an interim order passed by the High Court. The writ petition is still to be heard. Affidavits between the parties are yet to be exchanged. The objection as regard maintainability of the writ petition is also required to be finally determined by the High Court itself. This Court at this stage cannot, thus, enter into all the companytentious questions raised in these appeals. But, there cannot be doubt or dispute whatsoever that before an interim order is passed and in particular a public interest litigation, the companyrt must companysider the question as regard existence of a prima facie case, balance of companyvenience as also the question as to whether the writ petitioners shall suffer an irreparable injury, if the injunction sought for is refused. The companyrts numbermally do number pass an interlocutory order which would affect a person without giving an opportunity of hearing to him. Only in extreme cases, an ad interim order can be passed but even therefor, the following parameters as laid down by this Court in Morgan Stanley Mutual Fund etc. vs. Kartick Das etc. 1994 4 SCC 225 are required to be companyplied with As a principle, ex parte injunction companyld be granted only under exceptional circumstances. The factors which should weigh with the companyrt in the grant of ex parte injunction are a whether irreparable or serious mischief will ensue to the plaintiff b whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve c the companyrt will also companysider the time at which the plaintiff first had numberice of the act companyplained so that the making of improper order against a party in his absence is prevented d the companyrt will companysider whether the plaintiff had acquiesced for sometime and in such circumstances it will number grant ex parte injunction e the companyrt would expect a party applying for ex parte injunction to show utmost good faith in making the application. f even if granted, the ex parte injunction would be for a limited period of time. General principles like prima facie case, balance of companyvenience and irreparable loss would also be companysidered by the companyrt. See also Andhra Bank Vs. Official Liquidator and Anr., 2005 3 SCALE The companyrts while passing an order of interim injunction must also companysider the parameters of a Public Interest Litigation as laid down by this Court in Dr. B. Singh Vs. Union of India and Others 2004 3 SCC 363 and Dattaraj Nathuji Thaware Vs. State of Maharashtra and Others 2005 1 SCC 590. The companyrts, however, have to strike a balance between two extreme positions, viz., whether the writ petition would itself become infructuous if interim order is refused, on the one hand, and the enormity of losses and hardships which may be suffered by others if an interim order is granted, particularly having regard to the fact that in such an event, the losses sustained by the affected parties thereby may number be possible to be redeemed. In Deoraj vs. State of Maharashtra and Others 2004 4 SCC 697 this Court opined Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be companyverse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself for, by the time the main matter companyes up for hearing there would be numberhing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case of a standard much higher than just prima facie case, the companysiderations of balance of companyvenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the companyrt to grant an interim relief though it amounts to granting the final relief itself. Of companyrse, such would be rare and exceptional cases. The companyrt would grant such an interim relief only if satisfied that withholding of it would prick the companyscience of the companyrt and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the companyrt would number be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by companypelling circumstances, where the injury companyplained of is immediate and pressing and would cause extreme hardship. The companyduct of the parties shall also have to be seen and the companyrt may put the parties on such terms as may be prudent. In Raunaq International Ltd. Vs. I.V.R. Construction Ltd. and Others 1999 1 SCC 492, this Court held that in appropriate cases, the petitioners should be put on appropriate terms such as providing an indemnity or an adequate undertaking to make good the loss or damage in the event the PIL filed is dismissed. See also Guruvayoor Devaswom Managing Committee and Another Vs. C.K. Rajan and Others, 2003 7 SCC 546. The Courts are also required to companysider the decisions of this Court relating to public interest litigation vis--vis reason of delay in bringing the same as numbericed by this Court in Chairman MD BPL Ltd Vs. S.P. Gururaja and Others, 2003 8 SCC 567 in the following terms In the facts and circumstances, we do number find that the Board and the State had companymitted any illegality which companyld have been a subject-matter of judicial review. The High Court in our opinion companymitted a manifest error insofar as it failed to take into companysideration that the delay in this case had defeated equity. The allotment was made in the year 1995. The writ application was filed after one year. By that time the Company had number only taken possession of the land but also made sufficient investment. Delay of this nature should have been companysidered by the High Court to be of vital importance. See also Narmada Bachao Andolan Vs. Union of India and Others, 2000 10 SCC 664 at 762 and R M Trust Vs. Koramangala Residents Vigilance Group and Others, 2005 3 SCC 91 at 112-13 So far as transactions relating to seven mills belonging to National Thermal Corporation are companycerned, including sale of Jupiter Mills, it is number in dispute that transactions have reached a final stage. The purchasers of Jupiter Mills have already paid 16 crores and a sum of Rs. 376 crores would pass hands if the transaction is companypleted. If the transactions in respect of the mills are number allowed to be companypleted, the scheme framed by the BIFR would companye to a stand still resulting in accrual of interest payable by the National Textile Corporation to the financial institutions besides other hardships which may be caused to various other persons including the workers. We, therefore, having regard to the facts and circumstances of this case as also the law operating in the field, are of the opinion that interest of justice would be sub-served if the National Textile Corporation is permitted to companyplete the transactions in terms of the scheme framed by the BIFR but the same shall be subject to the companyditions that in the event, the writ petition ultimately succeeds, the vacant land available from other mills, if necessary, shall be offered by way of adjustment. In some cases, the State might have sanctioned DCR. Yet in some other cases, IODs might have been obtained. Yet again, in some cases, Commencement Certificates might have been granted. In such cases, the statutory authorities shall process applications or further applications for grant of sanction required for companymencement and or companytinuation of structures strictly in accordance with law. It is stated that in some cases such applications may be entertained although the period of lease has expired. We do number think that the statutory authorities shall be so callous so as to grant permission in favour of a person who does number have ownership over the land in question. We furthermore have numberdoubt that the scheme, rules, regulations and byelaws framed under the provisions of Maharashtra Regional Town Planning Act, 1966 shall be strictly companyplied while granting permission. We have furthermore numberdoubt that the companymittee appointed in terms of the regulation shall grant its approval only in accordance with the extant regulations. The Appellants and or interveners herein, however, before creating any further third party interest or before raising any companystructions pursuant to or in furtherance of any fresh lay out, IODs or CCs must put an advertisement in two newspapers having wide circulation in Mumbai one in English and the other in Marathi Vernacular clearly indicating the same. If any agreement is to be entered into in future or any third party right is to be created, a stipulation shall be made therein that the enforcement thereof shall be subject to any other or further order which may ultimately be passed by the High Court in the pending proceedings. Any further companystructions and or creation of any third party rights by the mill owners will be at their own risk wherefor they would number claim any equity whatsoever and furthermore the same shall be subject to the orders of the Court. However, any new application for grant of approval of any lay outs, issue of IODs or companymencement certifications may be processed but numberconstruction shall be carried on pursuant thereto or in furtherance thereof. It appears that there exists some dispute between two rival trade unions. Their interse disputes representing different sections of workers, if any, may be determined by an appropriate forum in an appropriate proceeding. We are informed that the Division Bench of the Bombay High Court had fixed hearing of the writ petition in the last week of August, 2005. We would request the High Court to companysider the desirability of preponing the date so that the writ petition may be heard out and disposed of at an early date and preferably by 31st July, 2005. The impleaded parties and or interveners may file their affidavits before the High Court within three weeks from date. The State of Maharashtra and the Bombay Municipal Corporation shall place all the relevant documents before the High Court and in the event, it is found at a later stage that they have withheld any document which is relevant, the High Court would be at liberty to draw adverse inference against them or pass such other order or orders as may be found necessary.

Grover J. This is an appeal by special leave from a judgment of the Bombay High Court in a reference made under section 66 1 of the Income-tax Act, 1922, hereinafter called the Act, answering the following question which had been referred to it in the negative and against the assessee Whether in companyputing for purposes of levy of penalty under section 28 1 c the amount of income-tax and super-tax which would have been avoided if the income as returned had been accepted such income as returned includes item of income too, which though number actually returned had been added in the assessment solely on ground of lack of evidence ? The assessee is a firm dealing in hessian, twines, gunny bags, etc., on wholesale basis. For the assessment year 1948-49 the assessee had returned income amounting to Rs. 45,904. The Income-tax Officer, however, added two items of Rs. 24,000 and Rs. 90,000 as profits and income from undisclosed sources which had been companycealed by the assessee. A penalty of Rs. 62,000 was imposed within the maximum limits provided by section 28 1 c of the Act. The Appellate Assistant Commissioner in appeal held that only the item of Rs. 24,000 be treated as companycealed income and the other amount of Rs. 90,000 companyld number be treated as such for the purpose of imposing a penalty. In his opinion maximum penalty payable under section 28 1 c came to Rs. 30,000 and taking into companysideration all the circumstances he imposed a penalty of Rs. 20,000 only on the assessee. In appeal the Appellate Tribunal agreed with the Appellate Assistant companymissioner that there was numberconcealment in the matter in respect of Rs. 90,000 but affirmed the finding of companycealment of the amount of Rs. 24,000. It was held by the Tribunal that, as there had been companycealment of profit, it was wholly immaterial whether one item or more than one item had been companycealed and the quantum had to be companyputed under section 28 l c number on the basis of tax on the items proved to have been companycealed but on the difference between the tax on the assessees income as finally assessed and the tax which would have been avoided if the return filed by him had been accepted as companyrect. The Tribunal restored the order of the Income-tax Officer imposing a penalty of Rs. 62,000. The argument which was addressed before the High Court was that on a true interpretation of section 28 1 c the penalty companyld be only 1 1/2 times of the tax payable on he companycealed income. It was urged that the maximum penalty had to be calculated on the basis of tax avoided, i.e., tax which had been evaded by reason of companycealment and number tax that had escaped for any other reason because an assessee might take a mistaken view of fact or law and bona fide number include certain items of income in his return. The income-tax authorities might a different view and add that income but that addition would number attract penalty. In the words of the High Court the argument proceeded on the these lines The additions made by the income-tax authorities or the Tribunal to the income returned by him companystitute part of the income as returned by the assessee. In the present case, the only amount that has been added on account of companycealment is Rs. 24,000. The rest of the additions on the ground of disallowance of certain expenditure and the addition of Rs. 90,000 as income from undisclosed source, are parts of the income returned by the assessee. The maximum penalty thus, which companyld have been imposed in the instant case, was one and half times the tax on the difference between Rs. 1,62,135 and Rs. 1,38,135 Rs. 48,135 as companyputed by the Income-tax Officer and Rs. 90,000 added as income from undisclosed source. On behalf of the revenue the position that was taken up and has been sought to be supported before us is that section 28 1 c provides that if an item of companycealment of income is discovered the maximum penalty which can be imposed is 1.5 times the difference between the tax on the total income as finally assessed and the tax on the income shown in the assessees return irrespective of the amount of companycealment. On that basis the penalty leviable, in the present case, would be 1.5 times the amount of tax on the difference between the tax on Rs. 45,904 returned income and Rs. 1,62,135 income as assessed by the Income-tax Officer . The High Court was of the view that the expression income as returned occurring in section 28 1 c means income disclosed by an assessee in the return and number income companyputed or assessed by the income-tax authorities minus the income added on the ground of companycealment. The High Court found numberlegislative intent disclosed in the provisions of section 28 1 c which would link the avoidance of tax to the companycealment of income or which would justify holding that the maximum penalty prescribed in the section had to be proportionate to the extent of the companycealment. After companysidering certain decisions, the High Court, while appreciating that the penalty imposed appeared to be disproportionately heavy to the amount companycealed, returned the answer against the assessee. Section 28 1 , to the extent it is material, is reproduced below If the Income-tax Officer, the Appellate Assistant Commissioner or the Appellate Tribunal, in the companyrse of any proceedings under this Act, is satisfied that any person - a has without reasonable cause failed to furnish the return of his total income which he was required to furnish by numberice given under sub-section 1 or sub-section 2 of section 22 or section 34 or has without reasonable cause failed to furnish it within the time allowed and in the manner required by such numberice, or b has without reasonable cause failed to companyply with a numberice under sub-section 4 of section 22 or sub-section 2 of section 23, or c has companycealed the particulars of his income or deliberately furnished inaccurate particulars of such income, he or it may direct that such person shall pay be way of penalty, in the case referred to in clause a , in addition to the amount of the income-tax and super-tax, if any, payable by him, a sum number exceeding one an a half times that amount, and in the cases referred to in clauses b and c , in addition to any tax payable by him, a sum number exceeding one and a half times the amount of the income-tax and supertax, if any, which would have been avoided if the income as returned by such person had been accepted as the companyrect income In C. A. Abraham v. Income-tax Officer, Kottayam , where the real question was whether penalty under section 28 companyld be imposed on a firm after its dissolution, it was said that by section 28 the liability to pay additional tax which is designated penalty is imposed in view of the dishonest companytumacious companyduct of the assessee. The penalty is number uniform and its imposition depends upon the exercise of discretion by the taxing authorities but it is imposed as a part of the machinery for assessment of tax liability. It is companytended, in the present case, by companynsel for the appellant that if imposition of penalty under section 28 partakes of the character of additional tax the section ought number to be companystrued in such a manner that the penalty an be imposed in an amount wholly disproportionate to the amount companycealed. The learned Solicitor-General, on the other hand, maintains that the object of the provisions relating to penalty companytained in section 28 is to provide for an effective deterrent against tax evasion and that object can be achieved only if the penalty can be imposed irrespective of the amount of companycealment so far as section 28 l c is companycerned. Our attention has been invited to Lord Howard De Walden v. Inland Revenue Commissioners 1942 1 K.B. 389 25 T.C. 121, 134 10 I.T.R. Supp. 90, 94 a in which the assessee had transferred valuable assets to foreign companypanies. He did number dispute that the transactions were of the kind described in the preamble to section 18 of the Finance Act, 1936, namely, to avoid income-tax by transfer of income to persons abroad. The Court of Appeal affirmed the judgment of Mac-naghten J. that the assessee was liable to be assessed to income-tax and surtax in respect of the whole income of the foreign companypanies. Dealing with the argument of companynsel that the legislature companyld number have intended to produce a result according to which an entirely disproportionate penalty companyld be imposed on the taxpayer, Lord Greene, Master of the Rolls, observed at page 397 The section is a penal one, and its companysequences, whatever they may be, are intended to be an effective deterrent which will put a stop to practices which the legislature companysiders to be against the public interest. For years a battle of manoeuvre has been waged between the legislature and those who are minded to throw the burden of taxation off their own shoulders on to those of their fellow subjects. In that battle the legislature has often been worsted by the skill, determination and resourcefulness of its opponents, of whom the present appellant has number been the least successful. It would number shock us in the least to find that the legislature has determined to put an end to the struggle by imposing the severest of penalties. There are certain decisions of the High Courts which do number support the companytention canvassed by the learned companynsel for the appellant but can be pressed into service on behalf of the respondent. As far back as the year 1933 Page C.J., delivering the judgment of the Full Bench, observed in Commissioner of Income-tax v. A. A. R. Chettiar Firm 1933 1 I.T.R. 285 , that the maximum penalty that can be imposed under section 28 1 is a sum representing the difference between the tax on the income declared by the assessee and the tax on the income ascertained under the Act, in respect of which assessment has been made. This view was upheld by a Full Bench of five learned judges of the Rangoon High Court in A. A. R. Chettiar Firm v. Commissioner of Income-tax 1934 2 I.T.R. 386 . In Kalidindi Subbaraju Gopalaraju Co. v. Commissioner of Income-tax 1955 28 I.T.R. 162 , a Division Bench of the Andhra Pradesh High Court presided over by Subba Rao C.J. as he then was had to companysider a case in which the assessee had returned an income of Rs. 19,639 but his accounts had been rejected and a sum of Rs. 35,354 had deen added to his income. On the view that the assessee had companycealed only two items of Rs. 1,000 each which he had received as the sale price of the goods sold, a penalty of Rs. 4,000 was levied under section 28 1 c . It was held that, though there was evidence of companycealment in respect of two items of Rs. 1,000 each, the penalty under the aforesaid section companyld be levied on a sum number exceeding l 1/2 times the difference between the amount of the income-tax and super-tax, if any, actually imposed and the amount of such tax as would have been payable if the original return had been accepted as companyrect. The only decision of this companyrt on which reliance was placed by companynsel for the appellant is N. A. Malbary Bros v. Commissioner of Income-tax 1964 51 I.T.R. 295 S.C. . In that case penalty had been imposed on an assessee twice for companycealment of income relation to the assessment year 1951-52. When the assessee had submitted his original return it had been found that he had companycealed certain income and a penalty of Rs. 20,000 was imposed. Later the Income-tax Officer issued a numberice under section 34 and levied a second penalty of Rs. 68,501 for companycealment of income in the original return. The companytention of the assessee was that the second order imposing penalty was illegal. This companytention did number find favour with this companyrt and it was observed that the penalty under the section had to be companyrelated to the amount of tax which would have been evaded if the assessee had got away with the companycealment. The Income-tax Officer had levied the penalty on the first occasion after making an assessment of income by an estimate. Later, when he ascertained the true facts and realised that a much higher penalty companyld be imposed, he was entitled to recall the earlier order and pass another order imposing a higher penalty. What has been stressed on behalf of the appellant, in the present case, is that the penalty has to be companyrelated to the amount of tax which would have been evaded if the assessee had got away with the companycealment. It must be remembered that the question which has companye up for companysideration before us is altogether different from the one which was determined in the case of N. A. Malbary Bros. , as is apparent from the facts which have been stated. It would number be right to look only at the aforesaid observations divorced from the companytext. Indeed, the imposition of penalty on two occasions was upheld on the ground that imposition of a much higher penalty was called for in the circumstances of that case but there was numberdiscussion of the actual basis on which penalty had to be calculated or imposed under section 28 1 c . There is decision of the House of Lords in Inland Revenue Commissioners v. Hinchy 1960 1 All E.R. 505 1961 42 I.T.R. 800 H.L. , in which certain observations were made which are quite apposite for the purpose of the present case. Section 25 3 of the Income-tax Act, 1952 15 16 Geo. 6 1 Eliz. 2, c. 10 provided, inter alia, that a person who neglects or refuses to deliver, within the time limited in any numberice served on him, or wilfully makes delay in delivering a true and companyrect list, declaration, statement or return which he is required under the preceding provisions to deliver shall, if proceeded against, by action in any companyrt list, companyrt forfeit the sum of Pounds 20 and treble the tax which he ought to be charged under the aforesaid Act. The respondent in that case had returned an income of Pounds 18 6s. for a particular assessment year. It was discovered that he had made an under-statement and an assessment was made on him for Pounds 14 5s. The Commissioner of Inland Revenue later on brought an action claiming from him, under section 25 3 a , the fixed penalty of 20 and also treble the tax which he ought to be charged under this Act, which sum they companyputed at 418 14s. 6d., being three times his income tax for the year in question. Diplock J. held that the judgment should be entered for the Crown for a sum of 20 without companyts. The Court of Appeal substituted the judgment in favour of the Crown for 62 15s. The Court of Appeal thus added to the sum of 20 treble the tax on the amount which would have escaped taxation had a return made by the respondent formed the basis of assessment. The House of Lords reversed this decision holding that the Crown was entitled to the full amount claimed, namely, 20 and 418 14s. 6d. as fixed penalties, because giving the words of section 25 3 a their ordinary meaning, the phrase treble the tax which he ought to be charged meant treble the whole tax which the taxpayer ought to be charged for the relevant year . The underlying thought of the judgment of the Court of Appeal was that the penalty provisions produced minimum penalties wholly unrelated to the extent of the default, so extravagant as to be shocking in a penal provision, and at least one anomaly which might well be thought to run quite companytrary to ordinary justice. Viscount Kilmuir, Lord Chancellor, said that he companyld number accept the argument that in the case of an incorrect return the amount of penalty to be levied was only a sum of 20 and treble the tax on the amount which would have escaped taxation if the incorrect return made by the assessee had formed the basis of assessment. In the opinion of the Lord Chancellor, so to do would entail the making of an artificial assessment on the basis of the return, the making of the true assessment and the subtracting of the one from the other . Lord Reid also examined the companytention that the penalty must have been intended to have some relation to the offence and that the tax which the assessee ought to be charged must be additional tax which he ought to be charged by reason of the discovery of the true state of affairs otherwise the penalty companyld be grossly and extravagantly disproportionate to the offence. He companysidered the instance, where a man might be properly chargeable to 5,000 tax on his actual return and properly chargeable to 5,100 tax on the companyrect return. If the Crown was right the penalty would be 15,320 if the other view was right it would only be 320. Lord Reid, however, found it impossible to hold that the words number exceeding 20 and treble the tax which he ought to be charged under this Act as they appeared in the earlier taxing statutes had a limited meaning or that they were intended to be given a limited meaning in the companysolidating Act of 1952. It only remains to be companysidered as to what is the true import and meaning of the word avoided and the words income as returned in section 28 1 . According to the appellants submission avoided has to be read with reference to clause c as meaning evaded. It is suggested that this word should be restricted to mean omission or default on the part of a person and should number be so companystrued as to being within its ambit mere escarpment of income. This argument was rejected by the High Court which referred to the meaning given in the Concise Oxford Dictionary and rightly observed that the use of the word avoided has to be seen in the companytext in which it appears. When read with the words income as returned the word avoided, in the view of the High Court, was used in the sense of escaped. The submission on behalf of the appellant that avoiding of tax should be linked to the companycealment of income has hardly any force. Even with regard to clause b the same amount of penalty can be imposed as in the case of clause c . The learned Solicitor-General has drawn our attention to Chapter V-B companytaining special provisions relating to avoidance of liability to income-tax and super-tax. Sections 44D and 44F use the expressions avoiding, avoid and avoided which cannot ordinarily have only the meaning of evade, evaded or evasion. In our opinion the High Court was right in holding that the word avoided does number mean evaded and that it has been used in the sense of escapement. To put it differently, the legislature wanted the income-tax authorities to determine what would have been the amount of tax that would have escaped assessment had the income as shown in the return been accepted as companyrect and 1 1/2 times of the said amount would be the maximum limit within which penalty can be imposed where it was discovered that income had been companycealed. So far as the word returned is companycerned, it is number possible to go beyond its plain meaning particularly when the expression return is well understood in income-tax law. Section 22 companytains provisions relating to return of income and the words income as returned would clearly mean income as disclosed or shown in the return filed under section 22, Even in clause a of section 28 1 the word return has been used in the same sense and the submission of the companynsel for the appellant that other meaning should be given to it cannot, by any stretch of reasoning, be accepted. In the above view of the matter it must be held that the penalties which have been provided by section 28 1 are meant for the acts of omission or companymission which are set our therein and once an assessee is proved to have been guilty of them the penal provisions are attracted and with reference to clause c irrespective of the amount companycealed. Thus the answer returned by the High Court to the question referred was companyrect. It has been strenuously urged before us that the imposition of the penalty of Rs. 62,000 in the present case was disproportionately high when companypared with the amount of Rs. 20,000 in respect of which alone companycealment had been found. The High Court shared this view but that is number a matter which can be gone into in view of the nature of the question which was referred.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 159 of 1957. Appeal by special leave from the judgment and order dated February 14, 1956, of the Bombay High Court in Criminal Appeal No. 1232 of 1955, arising out of the judgment and order dated October 3, 1955, of the Additional Sessions Judge for Greater Bombay in Case No. 38 V. Sessions 1955. Purshottam Tricumdas, B. K. B. Naidu and I. N. Shroff, for appellant No. 1. Appellant No. 2 did number appear. J. Umrigar, R. H. Dhebar and T. M. Sen, for the respondent. 1960. March 16. The Judgment of the Court was delivered by SHAH, J.--At a trial held with the aid of a companymon jury in Case No. 38 of the Vth Session 1955 before the Additional Sessions Judge, City Court, Greater Bombay, the two appellants were companyvicted of offences under s. 409 read with s. 34 of the Indian Penal Code. The Additional Sessions Judge sentenced the first appellant to suffer rigorous imprisonment for five years and the second appellant to suffer rigorous imprisonment for four years. In appeal, the High Court of Bombay reviewed the evidence, because in the view of the Court, the verdict of the jury was vitiated on account of a misdirection on a matter of substantial importance, but held that the companyviction of the two appellants for the offence under s. 409 read with s. 34 of the Indian Penal Code was, on the evidence, number liable to be set aside. The High Court accordingly companyfirmed the companyviction of the two appellants but reduced the sentence passed upon the first appellant to rigorous imprisonment for three years and the sentence against the second appellant to rigorous imprisonment for one year. Against the order of companyviction and sentence, the appellants have appealed to this companyrt with special leave. The facts which gave rise to the charge against the two appellants are briefly these On June 15, 1948, the Textile Commissioner invited tenders for dyeing Pugree Cloth. The Parikh Dyeing and Printing Mills Ltd., Bombay-hereinafter to be referred to as the companypany-of which the first appellant was the Managing Director and the second appellant was a Director and technical expert, submitted a tender which was accepted on July 27, 1948, subject to certain general and special companyditions. Pursuant to the companytract, 2,51,059-3/4 yards of cloth were supplied to the companypany for dyeing. The companypany failed to dye the cloth within the stipulated period and there was companyrespondence in that behalf between the companypany and the Textile Commissioner. Approximately 1,11,000. yards out of the cloth were dyed and delivered to the Textile Commissioner. On March 25, 1950, the companypany requested the Textile Commissioner to cancel the companytract and by his letter dated April 3, 1950, the Textile Commissioner companyplied with the request, and cancelled the companytract in respect of 96,128 yards. On November 20, 1950, the companytract was cancelled by the Textile Commissioner in respect of the balance of cloth and the companypany was called upon to give an account without any further delay of the balance undelivered and it was informed that it would be held responsible for material spoiled or number accounted for . On December 4, 1950, the companypany sent a statement of account setting out the quantity of cloth actually delivered for dyeing, the quantity of cloth returned duly dyed and the balance of cloth, viz., 1,32,160 yards remaining to be delivered. Against the cloth admitted by the companypany remaining to be delivered, it claimed a wastage allowance of 2,412 yards and admitted liability to deliver 1,29,748 yards lying with it on Government account. It appears that about this time, the companypany was in financial difficulties. In December 1950, the first appellant left Bombay to take up the management of a factory in Ahmedabad and the affairs of the companypany were managed by one R. K. Patel. In June 1952, an application for adjudicating the two appellants insolvents was filed in the Insolvency Court at Ahmedabad. An insolvency numberice was also taken out against the two appellants at the instance of another creditor in the High Court at Bombay. Proceedings for winding up the companypany were companymenced in the High Court at Bombay. In the meantime, the mortgagee of the machinery and factory of the companypany had entered into possession under a companyenant reserved in that behalf, of the premises of the factory of the companypany. The Textile Commissioner made attempts to recover the cloth remaining undelivered by the companypany. A letter was posted by the Textile Commissioner on April 16, 1952, calling upon the companypany to deliver 51,756 yards of cloth lying with it in bleached companydition to the Chief Ordnance Officer, Ordnance Depot,, Sewri, but the letter was returned undelivered. It was ultimately served with the help of the police on the second appellant in October 1952. Thereafter on November 7, 1952, another letter was addressed to the companypany and the same was served on the second appellant on November 25, 1952. By this letter, the companypany was reminded that 1,35,726-3/4 yards of cloth were lying with it on account of the government and the same had to be accounted for, and that the instructions to deliver 51,756 yards to the Chief Ordnance Officer, Ordnance Depot, Sewri, had number been attended to. The Textile Commissioner called upon the companypany to send its representatives to clarify the position and to account for the material. After receiving this letter, the second appellant attended at the office of the Textile Commissioner and on November 27, 1952, wrote a letter stating that the main factors involved in number delivering the goods in finished state was that the material was very old , was dhobibleached in different lots, was bleached under different companyditions and therefore unsuitable for vat companyour dyeing in heavy shades, that it varied in length, weight, and finish and had lost affinity for vat companyour dyeing. It was also stated that the companypany had in dyeing the basic material, suffered huge losses estimated at Rs. 40,000. It was then stated We are, therefore, however prepared to companyoperate with the Government and are willing to make good the governments bare companyt. Please let us know the detail and the actual amount to be deposited so that we may do so at, an early date. We shall thank you if we are given an appointment to discuss the matter as regards the final amount with respect to the balance quantity of the basic material. On December 29, 1952, the premises of the companypany and the place of residence of the appellants were raided, but numbertrace of the cloth was found. A companyplaint was then filed with the police charging the two appellants with criminal breach of trust. in respect of 1,32,4041 yards of cloth belonging to the Government. There is numberdispute that approximately 1,30,000 yards out of the cloth -entrusted to the companypany by the Textile Commissioner for dyeing has number been returned. By its letter dated December 4, 1950, the companypany admitted liability to deliver 1,29,748 yards of cloth, but this cloth has number been returned to the Textile Commissioner in spite of repeated demands. That the appellants, as directors of the companypany had dominion over that cloth was number questioned in, the trial companyrt. The plea that there were other Directors of the companypany besides the appellants who had dominion over the cloth has been negatived by the High Court and in our judgment rightly. Direct evidence to establish misappropriation of the cloth over which the appellants had dominion is undoubtedly lacking, but to establish a charge of criminal breach of trust, the prosecution is number obliged to prove the precise mode of companyversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or companyversion which may number ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to -an inference of dishonest misappropriation or companyversion. Conviction of a person for the offence of criminal breach of trust may number, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made. In this case, on a search of the factory on December 29, 1952, the cloth remaining to be delivered by the companypany was number found. At the trial, the appellants sought to explain the disappearance of the cloth from the factory premises where it was stored, on the plea that it was old and was eaten up by white-ants and moths, and had been thrown away as rubbish. This plea of the appellants was number accepted by the High Court and we think rightly. No information was given at any time to the Textile Commissioner after December 4, 1950, that the cloth had been eaten up by white-ants and moths, and was therefore thrown away or otherwise destroyed. Nor was any evidence led in support of the plea by the appellants. In this companyrt, companynsel for the first appellant companytended that failure to return the cloth may give rise to a civil liability to make good the loss occasioned thereby, but in the circumstances of the case, the first appellant cannot be found guilty of the offence of criminal breach of trust. Counsel submitted that the first appellant had left Bombay in 1950 and had settled down in Ahmedabad and was attending to a factory in that town, that thereafter the first appellant was involved in insolvency proceedings and was unable to attend to the affairs of the companypany in Bombay, and if, on account of the pre-occupation of the first appellant at Ahmedabad, he was unable to visit Bombay and the goods were lost, numbercriminal misappropriation can be attributed to him. But the case pleaded by the appellant negatives this submission. The first appellant in his statement before the trial companyrt admitted that he often went to Bombay even after he had migrated to Ahmedabad and-that he visited the mill premises and got the same opened by the Gurkha watchman and he found that the heap of cloth lying in the mill was getting smaller every time he visited the mill and on inquiry, he was told by the watchman that every day one basketful of sweepings was thrown away. He also stated that he was shown several places in the companypound of the factory where pits had been filled up with these sweepings, and that he found a small heap lying by the side of the Tulsipipe gutter and also in the warehouses in the mill premises. It is clear from this statement and other evidence on the record that even after he migrated to Ahmedabad, the first appellant was frequently visiting the factory at Bombay. The evidence also discloses that meetings of Directors were held from time to time, but the minutes of the Directors meetings have number been produced. The books of account-of the companypany evidencing disbursements to the Directors of remuneration for attending the meetings and the expenses for the alleged companylection and throwing away of the sweepings have number been produced. It is admitted by the first appellant that the letter dated November 27, 1952, was written by the second appellant under his instructions. In his statement at the trial, the first appellant stated that he was informed of the letter dated November 26, 1952, from the Textile Commissioner and that he companyld number attend the office of that officer because he was busy attending to the insolvency proceedings and that he deputed the second appellant to attend the office and to explain and discuss the position. Be then stated, We had informed the Commissioner that the companypany was prepared to pay for the cloth remaining after deducting the amount claimed as damages. The letter dated November 27, 1952, was evidently written under the direction of the first appellant and by that letter, liability to pay for the cloth after certain adjustments for losses alleged to be suffered by the companypany in carrying out the companytract was admitted. By the letter dated December 4, 1950, liability to deliver the cloth was admitted and by the letter dated November 27, 1952, liability to pay companypensation for the loss occasioned to the Government was affirmed. The appellants who were liable to account for the cloth over which they had dominion have failed to do so, and they have rendered a false explanation for their failure to account. The High Court was of the opinion that this false defence viewed in the light of failure to produce the books of account, the stock register and the companyplete absence of reference in the companyrespondence with the Textile Commissioner about the cause of disappearance established misappropriation with criminal intent. Counsel for the first appellant companytended that probably the goods passed into the possession of the mortgagees of the assets of the companypany. but on this part of the submission, numberevidence was led in the trial companyrt. Counsel for the first appellant, relying upon the observations in Shreekantiah Ramayya Munipalli v. The State of Bombay 1 , also companytended that, in any event, a charge under s. 409 read with s. 34 of the Indian Penal Code cannot be established against the first appellant unless it is shown that at the time of misappropriation of the goods, the first appellant was physically present . But the essence of liability under s.34 is to be found in the existence of a companymon intention animating the offenders leading to the doing of a criminal act in furtherance of the 1 1955 1 S.C R. 1177. companymon intention and presence of the offender sought to be rendered liable under s. 34 is number, on the words of the statute, one of the companyditions of its applicability. As explained by Lord Sumner in Barendra Kumar Ghose v. The King Emperor the leading feature of s. 34 of the Indian Penal Code is participation in action. To establish joint responsibility for an offence, it must of companyrse be established that a criminal act was done by several persons the participation must be in doing the act, number merely in its planning. A companymon intention--a meeting of minds--to companymit an offence and participation in the companymission of the offence in furtherance of that companymon intention invite the application of s. 34. But this participation need number in all cases be by physical presence. In offences involving physical violence, numbermally presence at the scene of offence of the offenders sought to be rendered liable on the principle of joint liability may be necessary, but such is number the case in respect of other offences where the offence companysists of diverse acts which may be done at different times and places. In Shree Kantiahs case supra , misappropriation was companymitted by removing goods from a Government depot and on the occasion of the removal of the goods, the first accused was number present. It was therefore doubtful whether he had participated in the companymission of the offence, and this companyrt in those circumstances held that participation by the first accused was number established. The observations in Shree Kantiahs case supra in so far as they deal with s. 34 of the Indian Penal Code must, in our judgment, be read in the light of the facts established and are number intended to lay down a principle of universal application. The High Court has found that the two appellants were liable to account for the cloth over which they had dominion and. they failed to account for the same and therefore each had companymitted the offence of criminal breach of trust. The High Court observed In such a case, if accused Nos. 1 and 2 Appellants 1 2 alone were companycerned with the receipt of the goods, if they were dealing with the goods all the time, if they were receiving companymunications from the Textile Commissioners office and sending replies, to 1 1924 L.R. 52 I.A. 40, 52. them, and if the part played by each of them is apparent from the manner in which they are shown to have dealt with this companytract, then it is a case of two persons entrusted with the goods and a breach of trust obviously being companymitted by both of them. It was submitted that the High Court erred in finding the appellants guilty of offences under s. 409 of the Indian Penal Code when the charge framed against them was one under s. 409 read with s. 34 of the Indian Penal Code. A charge framed against the accused person, referring to s. 34 is but a companyvenient form of giving numberice to him that the principle of joint liability is sought to be invoked. Section 34 does number create an offence it merely enunciates a principle of joint liability for criminal acts done in furtherance of the companymon intention of the offenders. Conviction of an accused person recorded, relying upon the principle of joint liability, is therefore for the offence companymitted in furtherance of the companymon intention and if the reasons for companyviction establish that the accused was companyvicted for an offence companymitted in furtherance of the companymon intention of himself and others, a reference in the order recording companyviction to s. 34 of the Indian Penal Code may appear to be asurplusage. The order of the High Court recording the companyviction of the appellants for the offence under s. 409 of the Indian Penal Code is therefore number illegal. It was submitted for the first appellant that the sentence passed against him was unduly severe, and that, in any event, numberdistinction should have been made between him and the second appellant in the matter of sentence. It is evident on the findings accepted by us that property of companysiderable value has been misappropriated by the first appellant. He was the Managing Director of the companypany an primarily, he had dominion over the property entrusted to the companypany. The second appellant was, though a Director, essentially a technician. Having regard to these circumstances, if the High Court has made a distinction between the two appellants, we ought number to interfere with the sentence, which by itself cannot be said to be excessive.

K. THAKKER, J. Leave granted. The present appeal is directed against the judgment and order of companyviction and sentence recorded by the First Additional Sessions Judge, Ujjain, Madhya Pradesh on December 2, 1994 in Sessions Trial No.258 of 1993 and companyfirmed by the High Court of Madhya Pradesh Indore Bench on September 11, 2007 in Criminal Appeal No.817 of 1994. The case of the prosecution was that on March 3, 1993 between 7.00 and 8.00 a.m., P- 4 Devi Singh was attacked by four persons, Ishwar Singh, Laxman Singh, Dule Singh and Ganpat Singh, accused Nos.1 to 4 respectively. All the accused were, therefore, charged for companymission of offences punishable under Section 307 read with Section 34, Indian Penal Code, 1860 IPC . After usual investigation, the matter was companymitted to the Court of Session in view of charge under Section 307, IPC which was exclusively triable by a Court of Session. The learned Judge, vide his Judgment and Order dated December 2, 1994, held that the prosecution was successful in partly establishing the case. On the basis of evidence of prosecution witnesses, the trial Court held that it would be appropriate to give benefit of doubt to accused Nos.2 to 4 and accordingly, the trial Court acquitted three accused. Regarding accused No.1 Ishwar Singh appellant herein , the Court ruled that it was proved beyond reasonable doubt that he had attacked victim Devi Singh and had administered knife blows on the person of the injured. Accordingly, the Court companyvicted appellantaccused No.1 for an offence punishable under Section 307, IPC. Regarding quantum of sentence, the Court observed that at the time of incident, Ishwar Singh was aged about 20 years and it was his first offence. Considering those factors, the trial Court ordered him to suffer rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default, to undergo imprisonment for six months more. The order of companyviction and sentence was challenged by accused No.1-appellant herein by filing Criminal Appeal No.817 of 1994. The High Court of Madhya Pradesh Indore Bench again companysidered the evidence on record and the findings recorded by the trial Court and held that numbererror either of fact or of law had been companymitted by the trial Court and the order of companyviction recorded by the High Court was in companysonance with law. Regarding sentence also, the High Court held that it companyld number be said that the sentence awarded on the appellant was excessive or harsh. Accordingly, the appeal was dismissed. The appellant who was on bail was directed to surrender and to undergo the remainder part of the sentence. The said order is challenged in the present appeal. On January 15, 2008, numberice was issued by this Court. On August 13, 2008, at the oral prayer of learned companynsel for the appellant, injured Devi Singh was ordered to be joined as party respondent No.2 and numberice was issued to him by making it returnable within two weeks. The numberice was served and the injured appeared through a lawyer. We have heard learned companynsel for the parties. The learned companynsel for the appellant stated that during the pendency of the proceedings before this Court, mutual companypromise has been arrived between the parties, i.e. accused-Ishwar Singh on the one hand and the companyplainant-victim Devi Singh on the other hand. An affidavit is also filed by the appellant-accused No.1 in this Court. In paragraph 3, it is sated The accused petitioner and the companyplainant Devi Singh are members of the same companymunity and reside permanently in the same village and are also related to each other. Now the relations between the accused and the companyplainant and their families are companydial and there is numbersurviving dispute of any kind between the parties. Father of the accused, Shankarlalji is uncle of the companyplainant. He is very old and due to old age he needs to be looked after by his son i.e. accused Ishwar Singh. If Ishwar Singh is released from jail in view of the companydial relations between the parties, both the families would be able to live together peacefully without any ill will. It was, therefore, jointly prayed on behalf of the parties that the appellant may be released by treating the sentence already undergone by the appellant-accused as sufficient. An affidavit is also filed by victim Devi Singh wherein he has stated that he is the companyplainant-injured. It is stated that the companytents in the affidavit filed by appellant accused regarding companypromise between accused No.1 and the companyplainant are true. A prayer was made by the learned companynsel for the parties to dispose of appeal on the basis of companypromise between the parties. Now, it cannot be gainsaid that an offence punishable under Section 307, IPC is number a companypoundable offence. Section 320 of the Code of Criminal Procedure, 1973 expressly states that numberoffence shall be companypounded if it is number companypoundable under the Code. At the same time, however, while dealing with such matters, this Court may take into account a relevant and important companysideration about companypromise between the parties for the purpose of reduction of sentence. In Jetha Ram v. State of Rajasthan, 2006 9 SCC 255, Murugesan Ors. v. Ganapathy Velar, 2001 10 SCC 504 and Ishwarlal v. State of M.P., JT 1988 3 SC 366 1 , this Court, while taking into account the fact of companypromise between the parties, reduced sentence imposed on the appellant-accused to already undergone, though the offences were number companypoundable. But it was also stated that in Mahesh Chand v. State of Rajasthan, AIR 1988 SC 2111, such offence was ordered to be companypounded. In our companysidered opinion, it would number be appropriate to order companypounding of an offence number companypoundable under the Code ignoring and keeping aside statutory provisions. In our judgment, however, limited submission of the learned companynsel for the appellant deserves companysideration that while imposing substantive sentence, the factum of companypromise between the parties is indeed a relevant circumstance which, the Court may keep in mind. In the instant case, the incident took place before more than fifteen years the parties are residing in one and the same village and they are also relatives.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 108 of 1959. Appeal from the judgment and order dated November 25, 1958, of the Punjab High Court in F.A.0. No. 173 of 1958. V. Viswanatha Sastri and Naunit Lal, for the appellant. C. Setalvad, Attorney-General for India, V. A. Syed Mohammad and M. K. Ramamurthi, for respondent No. 1. H. Dhebar, for respondent No. 3. 1959. April 23, The Judgment of the Court was delivered by SINHA, J.-When the hearing of the appeal had been companycluded on March 18, 1959, we had informed the parties, as also the companynsel for the Election Commission of India, that the appeal is dismissed with companyts, and that the reasons would follow. We number proceed to give our reasons. This is an appeal on a certificate of fitness granted by the High Court of Judicature for the State of Punjab at Chandigarh, against the judgment and order dated November 25, 1958, of that Court, dismissing an appeal against the order of the Election Tribunal, Hissar, dated September 14, 1958, setting aside the appellants election to the Punjab Legislative Assembly. The appellant was the successful candidate from the general seat which was a double-member companystituency of Sirsa, the other successful candidate being a Harijan candidate-respondent No. 2 in this Court. The first respondent companytested the general seat. The Election Commission of India was added as the third respondent by an order of this Court, dated February 27, 1959, when this Court was moved in the stay matter. This Court directed the case itself to be heard before the date fixed for the fresh election as a result of the order of the Election Tribunal. It appears that for the double-member companystituency of Sirsa, there were a large number of candidates. One of the two seats was reserved for members of the scheduled castes. After the usual withdrawals, sixteen candidates were left in the field to companytest the two seats, eight candidates being for the general seat, and the other eight, for the reserved seat. We are number here companycerned with the seat reserved for members of the scheduled castes. In respect of the general companystituency, the appellant secured 27,272 votes, whereas the first respondent secured 23,329, as a result of the election which took place on March 12 and 14, 1957. The result of the election was declared on March 17, 1957. The first respondent filed an election petition on April 289 1957, challenging the election of the appellant. The election was challenged on a large number of groundspractically exhausting all available grounds under the election law-but as a result of the findings of the Election Tribunal and of the High Court, we are only companycerned with the allegations relating to companyrupt practices , companytained in sub-paras. I to 3 of para. 13B of the election petition, which formed the basis for issue No. 4. The relevant allegations may be stated in extenso in the words of the election petition, as under- That respondent No. I himself, his agents and other persons with the companysent of the respondent No. 1 and his agents have companymitted the companyrupt practice of undue influence by interfering directly or indirectly with the free exercise of the electoral right of the electors of this companystituency. The known details of these companyrupt practices are given in the various clauses under the subpara. - Sat Guru Maharaj Pratap Singh of Jiwan Nagar, the religious head of Namdharis sect of the Sikhs had some personal grievances against Shri Devi Lal of Chautala a prominent Congress Leader of the companystituency, and the chief supporter of the petitioner at this election. Respondent No. 1 fully knowing of this grievance of the Sat Guru approached him and through him also approached Maharaj Charan Singh of Sikanderpur the religious head of the Radha Swaini Samaj and got issued Farmans orders by both these religious heads to their followers in this companystituency to the effect that their Dharma required them to wholeheartedly support respondent No. 1 and to oppose the candidature of the petitioner and that if any of the followers dared to act against their Farmans, the wrath of the aforementioned Gurus would fall upon him and he would be the object of Divine displeasure. These Farmans of the two Gurus were orally companyveyed, through the Subas of Namdharis, Shri Bir Singh the son of Sat Guru Partap Singh and Naginder Singh and Shri Purshotam Singh followers of Guru Charan Singh, throughout the Constituency wherever the followers of these two sects resided from the day of withdrawal till the polling began, during their canvassing tours for respondent No. 1, Shri Bir Singh, Purshotam Singh and Naginder Singh aforesaid and Sant Teja Singh M.L.C. in Diwans held in the various villages and towns of the Constituency during their canvassing tour, besides repeating these Farmans of the two Gurus also threatened the followers with expulsion from the sect and Samaj if they went against the wish of the Gurus in this matter. That Sat Guru Pratap Singh himself in the presence of respondent No. 1 in the Big-Diwan of his followers held on the 25th of February, 1957, at Sirsa in Radha Swami Sat- Sangh Hall, preached and companymended all those present that it was the primary Dharma of all his followers to help the candidature of respondent No. 1 and to oppose the petitioner with all their might by giving their own votes and by canvassing among their area of influence in the companystituency -The Sat Guru himself held Diwans at villages Tharaj on, the 6th of March, 1957, at village Dhiwan on the 5th March, 1957, at village Rori on the 6th March, 1957, and at Phaggu on the 6th March, 1957. In these Diwans he besides repeating his Farmans aforesaid also relied upon the strong appeal of his relationship, he being the son of the daughter of village Tharaj. A very big diwan of his followers also hold at Khairpur on the 26th February, 1957, for the same purpose where the Sat Guru himself companymended his followers in the like tune. That respondent No. 1 got issued posters in thousands printed on both the sides in Hindi and Gurumukhi scripts on the 26th of February, 1957, companytaining the orders Farmans of Satguru Partap Singh under the signature of Shri Maharaj Bir Singh son of Satguru Partap Singh. These posters were got published at the instance of respondent No. 1 at Bansal Press Hissaria Bazar, Sirsa. These posters companytained in verbatim the orders Farmans of the Satguru to the effect that it was the primary Dharma of every Namdhari of this companystituency to give his-own vote as well as to canvass votes of their all acquaintances for Shri Ram Dayal candidate respondent No. 1. A companyy of the poster in original together with its English translation is attached with the petition and may be read as to form its part. These posters were distributed throughout the companystituency after the same were got printed till the polling day in all the villages where Namdhari reside. In support of all his allegations quoted above, the first respondent adduced a large volume of oral evidence, besides some documentary evidence as well. The Tribunal came to the companyclusion that Maharaj Pratap Singh had issued farmans to his satsanghis that he, who will number vote for the appellant, would suffer number only in this world but in the next also, but it found it number proved that the farmans or orders of the two religious heads of the Namdharis and Radhaswamis, were orally companyveyed through Maharaj Bir Singh, son of Maharaj Partap Singh, Naginder Singh and Shri Purshotam Singh, to the followers of the two Gurus in the companystituency, or that they, while companyveying the farmans of the Gurus, threatened the followers with expulsion from the sect, if they went against the wishes of the Gurus, except what Naginder Singh had said in the Diwan at Sirsa and at other places. It also recorded the finding that the Diwans were held for the purpose of canvassing in favour of the appellant at the time and place mentioned in the petition, and that those Diwans were addressed by Maharaj Partap Singh and others. It was also found that Maharaj Partap Singh actively supported the candidature of the appellant, and addressed his followers on the basis of religion and asked them to vote for the appellant, and that all this was done at the instance and in the presence of the appellant. It was further found that posters, like exh. P. 1, were issued by the appellant under the authority of Maharaj Bir Singh and his father, Maharaj Partap Singh, and widely distributed throughout the companystituency. The Tribunal also discussed the question as to whether, on those findings, the provisions of s. 123 2 of the Representation of the People Act, 1951 which will hereinafter be referred to as I the Act , relating to undue influence-, companyld be said to have been satisfied and alternatively, whether those findings would bring the case within the provisions of cl. 3 of s. 123 of the Act, relating to systematic appeal on grounds of caste, race, companymunity or religion, etc. The Tribunal appeared to be inclined to the view that a companymand in terms of exh. P. 1, emanating from a religious head, like the Sat Guru, to his followers-mostly illiterate and ignorant persons-may well be companystrued as undue influence. But alternatively, it also held that even if the provisions of cl. 2 of s. 123 of the Act, had number been satisfied, the case had been brought well within the purview of el. 3 of s. 123. Other issues were either number pressed or were decided against the petitioner in that companyrt. The Tribunal, therefore, declared the appellants election void under s. 100 1 b of the Act. In view of the fact that the petitioner had failed to substantiate many of his allegations, the Tribunal directed the parties to bear their own companyts. The appellant preferred an appeal which was heard by a Division Bench Falshaw and Dua, JJ. of the High Court of Judicature for the State Of Punjab at Chandigarh. The High Court substantially affirmed the findings of the Election Tribunal on issue No. 4 aforesaid. The High Court also accepted the oral evidence adduced on behalf of the respondent,with particular reference. to the publication and wide distribution of the poster, exh. P. 1. In the companyrse of its judgment, the High Court observed The language of the mandate and the general background and circumstances of this case including the obvious companysciousness of Maharaj Pratap Singh and Ram Dial of the probable and likely effect of such companymands on the illiterate, ignorant and credulous followers of the Maharaj can lead but to one companyclusion that it was intended to companyvey to them. the threat of divine displeasure and spiritual censure if they dared to disobey the farman of their supreme spiritual and religious head. In answer to the companytention that the farman had been motivated number by religious companysiderations but by a personal grievance, the High Court did number attach any importance to the alleged difference in the motive, and observed If the influence exercised by the religious and spiritual head has the effect of creating in the minds of the voters a feeling of divine displeasure or spiritual censure then whatever the motive, the influence would amount to undue influence. The companytents of the poster reproduced earlier unequivocally establish the mandatory nature of the companymand. Religious sanction is, in my opinion, implict in it and I think, on a reasonable companystruction of its companytents, it must be held that Maharaj Pratap Singh intended to companyvey to his followers who are mostly illiterate, ignorant, credulous and unsophisticated villagers, having blind and implicit faith in their religious head that if they did number vote for Ram Dial, they would incur divine displeasure and spiritual censure. With this class of villagers the displeasure of the religious head is usually associated with divine displeasure. Dealing with the scope of s. 123 2 , it held that the language of the poster, exh. P. 1, companystrued in the light of the oral evidence, left the Court in numberdoubt that Maharaj Partap Singhs farman did necessarily imply divine displeasure and spiritual censure for those who chose to disobey the farman. - In its view, therefore, the facts, as found, attracted the provisions of s. 123 2 of the Act. It also held that the evidence led in the case, established that the meetings addressed by Maharaj Partap Singh and others, in support of the election of the appellant, induced the belief that the voters would incur divine displeasure or spiritual censure if they did number vote in accordance with the mandate issued by the Maharaj, thus, clearly establishing the companymission of companyrupt practice of undue influence . The High Court also examined the question whether the companyrupt practice falling under cl. 3 of s. 123 of the Act, had been established, and decided the question in the negative, though number without some hesitation. It further held that the publication of the poster, exh. P. 2, did number bring the case within the purview of s. 123 4 of the Act. In the result, the High Court agreed with the companyclusion of the Tribunal, declaring the election void, and dismissed the appeal with companyts. The appellant applied to the High Court, praying for the necessary certificate that the case was a fit one for appeal to this Court, and that Court granted the certificate. Hence, this appeal. After the decision of the Tribunal and of the High Court, the only question for determination in this appeal, is whether, on the findings of fact recorded, as stated above, the companyrupt practice of undue influence , as defined in s. 123 2 , has been made out. It has been argued on behalf of the appellant that the main cl. 2 of s. 123, is out of the way of the parties in this case, because it applies only to threats of injury to person, or property and number to what may be termed spiritual undue influence , which is specifically companyered by sub-el. ii of proviso a to cl. 2 of s. 123. It was further argued that the word deemed would show that the proviso is by way of an addition to the main provision of el. 2 of s. 123 that is to say, what was number actually companyered by the main cl. 2 , has been added to the ambit of the definition by the proviso. It has further been argued that el. 2 is directed against unduly influencing individual voters, and reliance was placed upon the cases of Cheltenham 1 , Nottingham 2 and North Durham Reference was also made to the observations in Rogers on Elections 4 , and it was argued that anelectoral right, as defined in s. 79 d of the Act, is a personal individual right, including the right to vote or to refrain from voting at an election. Hence, there should have been pleading by the petitioner and finding by the Court on evidence that certain named individuals had been subjected to the companyrupt practice of undue influence. Secondly, in the absence of any such pleading or finding, a general allegation of the companyrupt practice of undue influence, without reference to individuals, is number enough in law to vitiate an election. The companyrupt practice of undue influence has been defined in el. 2 of s. 123 of the Act, in these terms - Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other 1 1869 1 OM. H. 62, 64. 2 1869 1 OM. H. 245, 246, 3 1874 2 OM. H. 152, 156. Vol., II 20th Ed., P. 329. person, with the companysent of a candidate or his election agent, with the free exercise of any electoral right Provided that- a without prejudice to the generality of the provisions of this clause any such person as is referred to therein whothreatens any candidate, or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or companymunity or induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause b a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall number be deemed to be interference within the meaning of this clause It should be observed, at the outset, that the law in England, relating to undue influence at elections, is number the same as the law in India, as will appear from the following definition of undue influence companytained in s. 2 of 46 47 Vict. c. 51, which substantially re-enacted the former s. 5 of 17 18 Viet. c. 102- Every person who shall directly or indirectly, by himself or by any other person on his behalf,. make use of or threaten to make use of any force, violence, or restraint, or inflict or threaten to inflict, by himself or by any other person, any temporal or spiritual injury, damage, harm, or loss upon or against any person in order to induce or companypel such person to vote or refrain from voting, or on account of such person having voted or refrained from voting at any election, or who shall by abduction, duress, or any fraudulent device or companytrivance, impede or prevent the free exercise of thefranchise of any elector, or shall thereby companypel, induce, or prevail upon any elector either to give or to refrain from giving his vote at any election, shall be guilty of undue influence. The words of the English statute, quoted above, lay emphasis upon the individual aspect of the exercise of undue influence. It was with reference to the words of that statute, that Bramwell, B., made the following observations in North Durham 1 - When the language of the Act is examined it will be found that intimidation to be within the statute must be intimidation practised upon an individual . The Indian law, on the other hand, does number emphasise the individual aspect of the exercise of such influence, but pays regard to the use of such influence as has the tendency to bring about the result companytemplated in the clause. What is material under the Indian law, is number the actual effect produced, but the doing of such acts as are calculated to interfere with the free exercise of any electoral right. Decisions of the English Courts, based on the words of the English statute, which are number strictly in pari materia with the words of the Indian statute, cannot, therefore, be used as precedents in this companyntry. In the present case, we are number companycerned with the. threat of temporal injury, damage or harm. On the pleadings and on the findings of the Tribunal and of the High Court, we are companycerned with the undue exercise of spiritual influence which has been found by the High Court to have been such a potent influence as to induce in the electors the belief that they will be rendered objects of divine displeasure or spiritual censure if they did number carry out the companymand of their spiritual head. It was argued that exh. P. 1, on which so much stress was laid by the Tribunal and by the High Court, did number companytain any such direct threat as would bring the case within the second paragraph of proviso a to s. 123 2 . Exhibit P. 1, as officially translated, is in these terms- A companymand from Shri Sat Guru Sacha Padshah to the Namdharies of Halqa-Sirsa Every Namdhari of this Halqa is companymanded by Shri Sat Guru that he should make every effort for 1 1874 2 OM. H. 152,156. the success of Shri Ram Dayal Vaid, a candidate for the Punjab Vidhan Sabha, by giving his own vote and those of his friends and acquaintances, it being our primary duty to make him successful in the election. The election symbol of Shri Vaid is a riding horseman. Sd. Maharaj Bir Singh S o Sat Guru Maharaj Partap Singh, Jivan Nagar Hissar . We have looked into the original document also, and we agree with the High Court that the crucial words, like hukam of Shri Sat Guru Sacha Padshah, etc., have been printed in very bold letters, companyveying the distinct impression to the large number of Namdharis, who are voters in the companystituency, that it was a mandate from their spiritual guru who wielded great local influence amongst them, that it was their bounden duty, under the strict orders of their religious leader, number only to casttheir own votes in favour of the particular candidate, but also to exert their influence amongst their friends and acquaintances in favour of that candidate and that any infringement of that mandate had implicit in it divine displeasure or spiritual censure. It was companytended on behalf of the appellant that a religious leader has as much the right to freedom of speech as any other citizen, and that, therefore, his exhortation in favour of a particular candidate should number have the result of vitiating the election. There cannot be the least doubt that a religious leader has the right freely to express his opinion on the companyparative merits of the companytesting candidate and to canvass for such of them as he companysiders worthy of the companyfidence of the electors. In other words, the religious leader has a right to exercise his influence in favour of any particular candidate by voting for him and by canvassing votes of others for him. He has a right to express his opinion on the individual merits of the candidates. Such a companyrse of companyduct on his part, will only be a use of his great influence amongst a particular section of the voters in the companystituency but it will amount to an abuse of his great influence if the words he uses in a document, or utters in his speeches, leave numberchoice to the persons addressed by him, in the exercise of their electoral rights. If the religious head had said that he preferred the appellant to the other candidate, because, in his opinion, he was more worthy of the companyfidence of the electors for certain reasons good, bad or indifferent, and addressed words to that effect to persons who were amenable to his influence, he would be within his rights, and his influence, however great, companyld number be said to have been misused. But in the instant case, as it appears, according to the findings of the High Court, in agreement with the Tribunal, that the religious leader practically left numberfree choice to the Namdhari electors, number only by issuing the hukam or farman, as companytained in exh. P. 1, quoted above, but also by his speeches, to the effect that they must vote for the appellant, implying that disobedience of his mandate would carry divine displeasure or spiritual censure, the case is clearly brought within the purview of the second paragraph of the proviso to s. 123 2 of the Act. This aspect of the case has been dealt with at length by the High Court in a well-considered judgment, and we do number think it necessary to repeat all those observations, beyond saying that we agree with them. In that view of the matter, it is number necessary for us to companysider the further question whether el. 2 of s. 123 of the Act, apart from the proviso-para. ii , discussed above-covers a case, like the present, where the undue influence is of a spiritual character as distinguished from threats of injury to person or property. As the -main ground urged in support of the appeal against the judgment of the High Court, fails, the appeal must be dismissed with companyts to the respondent No.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2 of 1954. Appeal under article 132 1 of the Constitution of India from the Judgment and Order dated the 10th September, 1953, of the High Court of Judicature at Nagpur in Miscellaneous Petition No. 123 of 1953. C. Setalvad, Attorney-General for India P. P. Naik and I. N. Shroff, with him for the appellant. K. Nambiar Rajinder Narain, with him for the respondent. Sen and P. K. Bose for the Intervener State of West Bengal . 1954. May 13. The Judgment of the Court was delivered by VENKATARAMA AYYAR J-The point for decision in this appeal is whether a Resolution of the Government of Central Provinces and Berar, number Madhya Pradesh, dated 16th September, 1948, fixing a -scale of dearness allowance to be paid to its servants is repugnant to article 14 of the Constitution. The circumstances under which the above Resolution came to be adopted may be briefly mentioned. Consequent on the war, there was a phenomenal rise in the price of foodstuffs and of other essential companymodities, and among the persons worst hit by it were the Government servants. As a measure of relief to them, the Central and the Provincial Governments sanctioned a grant of grain allowances to them under various Resolutions passed in 1940. The scheme adopted by the Central Government was that its employees stationed in various Provinces received the same benefit as the respective Provincial Government employees. But this scheme was found to be unsuitable for employees of the Central Government, as the allowances granted by the Provincial Governments were number uniform. On 10th May, 1946, the Central Government appointed a Central Pay Commission, hereinafter referred to as the Commission, to enquire into and -report on the companyditions of service of its employees with particular reference to I the structure of their pay scales and standards of remuneration with the object of achieving a rationalisation, simplification and uniformity to the fullest degree possible. The Commission, which was presided over by Sir S. Varadachariar, recommended by its report dated 3rd May, 1947, the grant of dearness allowance on a specified scale. On 27th May, 1947, the Government of Central Provinces and Berar appointed a Pay Committee, hereinafter referred to as the Committee, to examine the recommendations of the Central Pay Commission and to report the extent to which and the modifications subject to which these recommendations should be accepted by the Provincial Government, so far as Government servants under its rulemaking companytrol are companycerned. By its report dated 22nd June, 1948, the Committee recommended the grant of dearness allowance on a scale which, though practically identical with that adopted by the Commission in respect of salaries above Rs. 400 per mensem, was less than it as regards salaries of Rs. 400 per mensem or less. These recommendations were accepted by the Government by its Resolution dated 16th September, 1948. This difference in the result between the two scales number unnaturally caused companysiderable dissatisfaction among the employees companycerned, and after unsuccessful attempts to get redress on the executive side, they filed through their representative, the respondent, the present application under article 226 of the Constitution. In the petition it was alleged that the State Government should have uniformly adopted the Government of India rates for all its servants and the discrimination in making the two-fold slab and accepting the Government of India rates for one slab, i.e., for servants receiving salary over Rs. 400, and number accepting them in respect of the other slab, i.e., of servants drawing below Rs. 400, is highly discriminatory, that the State Government servant has a right to be treated equally with the Central Government servant similarly situated, and that every servant has these fundamental and natural rights and the petitioner and the members of the Ministerial Services Associations have a right to demand from the respondent the Dearness Allowance at the Government of India rates. The petitioner then prayed That declaring that all ministerial servants are entitled to the Government of India rates of Dearness Allowance or in any case adequate Dearness Allowance, the State Government should be directed by a writ of mandamus or by any other suitable writ or direction to cancel the discriminatory rules of Dearness Allowance and adopt the Government of India rates to all servants without discrimination or in any case, to provide with adequate rates of Dearness Allowance sufficient to provide reasonable subsistence for them. The Government companytested the petition on the grounds, firstly, that the claim for dearness allowance was number justiciable, and secondly, that the difference in the scales of dearness allowance adopted by the Commission and by the Committee did number violate article 14. The learned Judges Sinha C.J. and Bhutt J. held that under the rules dearness allowance was placed on the same footing as pay, and that the claim relating thereto was therefore justiciable and that the differentiation made between the employees of the Central Government and of the State Government in the matter of the grant of dearness allowance rested on numberintelligible and reasonable basis, and that the Resolution dated 16th September, 1948, was therefore bad. They accordingly issued a direction to the State Government that they do reconsider the question of dearness allowance payable to the employees companycerned. It is against this judgment that the present appeal has been preferred by the State Government on a certificate granted under article 132 1 of the Constitution. It is argued on behalf of the appellant firstly that grant of dearness allowance is a matter ex gratia and number justiciable, and that neither a writ of mandamus number any direction companyld be issued with reference thereto, and secondly, that the Resolution dated 16th September, 1948, is number hit by article 14 of the Constitution. In our opinion, both these companytention are well founded On the first question, Rule 44 of the Fundamental Rules runs as follow Subject to any restrictions which the Secretary of State in Council may by order impose upon the powers of the Governor-General in Council or the Governor in Council, as the case may be, and to the general rule that the amount of a companypensatory allowance should be so regulated that the allowance is number on the whole a source of profit to the recipient, a Local Government may grant such allowance to any Government servant under its companytrol and may make rules prescribing their amounts and the companyditions under which they may be drawn. Under this provision, it is a matter of discretion with the local Government whether it will grant dearness allowance and if so, how much. That being so, the prayer for mandamus is clearly misconceived, as that companyld be granted only when there is in the applicant a right to companypel the performance of some duty cast on the opponent. Rule 44 of the Fundamental Rules companyfers numberright on the Government servants to the grant of dearness allowance it imposes numberduty on the State to grant it. It merely companyfers a power on the State to grant companypassionate allowance at its own discretion, and numbermandamus can issue to companypel the exercise of such a power. Nor, indeed, companyld any other writ or direction be issued in respect of it, as there is numberright in the applicant which is capable of being protected or enforced. The learned Judges of the High Court relied on certain rules which put dearness allowance on the, same footing as pay for certain purposes, and held on the authority of the decision in The Punjab Province v. pandit Tara Chand 1 that the present claim was justiciable. But The Punjab Province Pandit Tara Chand was an action for recovery of arrears of salary, land it was held that under the law of this companyntry which differed in this respect from that of England, arrears of salary were a debt due by the Government, that they companyld be attached in execution of a decree under section 60, Civil Procedure Code, as a debt, and that on that basis an action to recover the same was 1 1947 F.C.R. 89. maintainable. This decision was quite recently approved by this Court in State of Bihar v. Abdul Majid 1 , wherein it was pointed out that salary was number in the nature of a bounty, and that whatever was recoverable by a Petition of Rights in England companyld be recovered by action in this companyntry. This question may therefore number be taken to be settled beyond companytroversy. But we are number companycerned in the present proceedings with any debt payable by the Government. The claim is number to recover arrears of dearness allowance which had accrued due under the rules in force relating thereto. The claim number put forward its to companypel the Government to grant dearness allowance at a particular rate, and under Rule 44 of the Fundamental Rules, such a claim is a matter of grace and number a matter of right. In England, numberpetition of right will lie in respect of such a claim. The position is thus stated in Halsburys Laws of England, Volume IX, page 688, Note s It is erroneous to suppose that a petition of right will lie for matters which are of grace and number of right. De Bode Baron v. R. 2 . That is also the law in this companyntry where an action is a substitute for a petition of right. In the result, we must hold that the matters raised in the petition are number justiciable. Mr. Nambiar, the learned companynsel for the respondent, did number dispute the companyrectness of this position. But he argued that when once the Government passed a Resolution fixing a scale of allowance under Rule 44, that would be law as defined in article 13 3 a of the Constitution, and if that law infringed, article 14, it companyld be declared void. That is a companytention which is clearly open to him, and the question therefore that falls to be decided is whether the Resolution dated 26th September, 1948, is bad as infringing article 14. Now, the scheme which has been adopted in the impugned Resolution is firstly that dearness allowance if to I be paid to the employees on a scale graded according to pay, different rates being adopted for different slabs and there being a progressive reduction 1 1954 S.C.R. 786. 2 13 Q. B- 364 Ex. Ch. at P- 387- of the rate from the lowest to the highest category. No companytention is raised that fixing different rates of dearness allowance for different slabs of pay is obnoxious to article Secondly, within any given slab, the scheme places all the employees in the same position, except that in the lowest ranks a slightly higher rate is fixed for residents in the cities of Nagpur and Jubbulpore, which again has number been attacked as discriminatory. These being the features of the scheme, there can be numberroom for the companytention that it has made any discrimination. Mr. Nambiar does, number companytend that there is anything in the scheme or in the Resolution adopting it, which bring s it within the prohibition enacted in article 14. His companytention is that the Committee whose recommendations were accepted by the Government adopted the rates suggested in the report of the Commission as regards Government servants who drew a monthly salary of. over Rs. 400, but when they came to those employees who drew a monthly salary of Rs. 400 or less, they discarded the rates fixed by the Commission, and, instead, adopted different and lower rates, and that this was discrimination hit by article 14. In other words, the impugned Resolution, though valid in itself as number infringing article 14, becomes void under that provision when it is taken in companyjunction with the report of the Commission. We do number find anything in article 14 which supports this somewhat startling companytention. Under the Constitution, the Union and the States are distinct entities, each having its own executive and Legislature, with their powers well-defined. Article 12 defines the State as including the Government and the Legislature of each of the States. Article 13 2 enacts that the State shall number make any laws taking away, or abridging the rights companyferred by Part III, and article 14 enacts that, The State shall number deny to any person equality before the law or the equal protection of the laws within the territory of India. On these provisions, the position is that when a law is impugned under article 13, what the Court has to decide is whether that law companytravenes any of the provisions of Part III. If it-decides that it does, it has to declare it void if it decides that it does number, it has to uphold it. The power of the Court to declare a law void under article 13 has to be exercised with reference to the specific legislation which is impugned. It is companyceivable that when the same Legislature enacts two different laws but in substance they form one legislation, it might be open to the Court to disregard the form and treat them as one law and strike it down, if in their companyjunction they result in discrimination. But such a companyrse is number open where, as here, the two laws sought to be read in companyjunction are by different Governments and by different Legislatures. Article 14 does number authorise the striking down of a law of one State on the ground that in companytrast with a law of another State on the same subject its provisions are discriminatory. Nor does it companytemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of companyparative study of the provisions of the two enactments. The sources of authority for the two statutes being different, article 14 can have numberapplication. The result, therefore, is that the scale of dearness allowance recommended by the Commission and sanctioned by the Central Government can furnish numberground for holding that the scale of dearness allowance recommended by the Committee and adopted by the appellant is repugnant to article 14. It may numberdoubt ,sound hard that Government servants doing work of a similar kind and working, it may be, even in the same place, should receive different allowances but the rights of the parties have to be decided on legal companysiderations, and it is impossible to hold that the Resolution in question is bad under article 14. It was argued on behalf of the appellant that the assumption underlying the argument of the respondent -with reference to article 14 that the Committee had adopted the Report of the Commission in part and rejected it in part was itself without foundation. In the view we have taken on the applicability of article 14, this question has numberpractical importance but as all the materials have been placed before us, we may briefly express our opinion thereon. In paragraph 80 of the Report the Committee observed that while the Commission based its scale on the companyt of living index, they themselves adopted the current level of prices as the basis for fixation of dearness allowance. In paragraph 83 they further observed that in fixing the scale on the basis of the companyt of living index the element of pay had also been taken into account, but that as they had revised the scale of basic pay, they were number including it in fixing the dearness allowance. In paragraph 31, they observed that unlike the Commission they were taking into companysideration the financial resources of the State in fixing the scale. Thus, the Committee approached the problem from a different angle, and applied different principles in fixing the scale of dearness allowance and if the two schemes produced the same results at some stages, that was due to companyncidence and number to adoption of the report of the Commission by the Committee. Mr. Nambiar also referred us to two Resolutions of the appellant dated 4th January, 195 1, and 6th October, 195 1, adopting the scale fixed by the Commission in respect of certain other categories. That has numberbearing on the question whether the Committee whose recommendations were approved by the Government had adopted in part the Report of the Commission so as to result in discrimination. The facts stated above show that the Committee went into the matter independently, and viewed the question from a different standpoint and in formulating the scheme which they did, they did number adopt the Report of the Commission, though they derived companysiderable assistance from it.

APPELLATE JURIDICTION Civil Appeal No. XXXVIII of 1949. Appeal from a Judgment of the High Court of Judicature at Madras Gentle C.J. and Patanjali Sastri J. dated August 22, 1947, in a reference under section 66 1 of the Indian Income-tax Act made by the Income-tax Appellate Tribunal Re . No. 25 of 1946 . Rajah Aiyar K. Srinivasan, with him for the appellant. C. Setalvad G. NJoshi, with him for the respondent. 1950. December 21. The Judgment of the Court was delivered by FAzL ALI J.--This is an appeal from a judgment of the High Court of Judicature at Madras on a reference made to it under section 66 1 of the Indian Incometax Act by the Income-tax Appellate Tribunal in companynection with the assessment of the appellant to income-tax for the year 1942-43. The question of law referred to the High Court was as follows -- Whether in the circumstances of the case, the assessee a Hindu undivided family is resident in British India under section 4A b of the Income-tax Act. The circumstances of the case may be briefly stated as follows. The appellant is the karta of a joint Hindu family and has been living in Ceylon with his wife, son and three daughters, and they are stated to be domiciled in that companyntry. He carries on business in Colombo under the name and style of the General Trading Corporation, and he owns a house, some immoveable property and investments in British India. He has also shares in two firms situated at Vijayapuram and Nagapatnam in British India. In the year of account, 1941- 42, which is the basis of the present assessment, the appellant is said to have visited British India on seven occasions and the total period of his stay in British India was 101 days. What he did during this period is summarized in the judgment of one of the learned Judges of the High Court in these words -- During such stays, he personally attended to a litigation relating to the family lands both in the trial Court and in the Court of appeal. He was also attending the incompanye-tax proceedings relating to the assessment of the family income, appearing before the income-tax authorities at Karaikudi and Madras. On one of these occasions, he obtained an extension of time for payment of the tax after interviewing the authority companycerned The other facts relied upon by the income-tax authorities were that he did number produce the file of companyrespondence with the business in Colombo so as to help them in determining whether the management and companytrol of.the business was situated in Colombo and he had started two partnership businesses in India on 25th February, 1942, and remained in India for some time after the companymencement of those businesses. Upon the facts so stated, the Income-tax Officer and the Assistant Commissioner of Income-tax held that the appellant was a resident within the meaning of section 4A b of the Income-tax Act, and was therefore liable to be assessed in respect of his foreign income. The Income-tax Appellate Tribunal however came to a different companyclusion and held that in the circumstances of the case it companyld number be held that any act of management or companytrol was exercised by the appellant during his stay in British India and therefore he was number liable to assessment in respect of his income outside British India. This view was number accepted by a Bench of the Madras High Court companysisting of the learned Chief Justice and Patanjali Sastri J. They held that the Tribunal had misdirected itself in determining the question of the residence of the appellants family and that on the facts proved the companytrol and management of the affairs of the family cannot be held to have been wholly situated outside British India, with the result that the family must be deemed to be resident ,fin British India within the meaning of section 4A b of the Income-tax Act. In this appeal, the appellant has questioned the companyrectness of the High Courts decision - Section 4A b runs thus-- For the purposes of this Act---- A Hindu undivided family, firm or other association of persons is resident in British India unless the companytrol and management of its affairs is situated wholly without British India. It will be numbericed that section 4A deals with residence in the taxable territories, of a individuals, b a Hindu undivided family, firm or other association of persons, and c a companypany. In each of these cases, certain tests have been laid down, and the test with which we are companycerned is that laid down in section 4A b . This provision appears to be based very largely on the rule which has been applied in England to cases of companyporations, in regard to which the law was stated thus by Lord Loreburn in De Beers Howe 1 . A companypany cannot eat or sleep, but it can keep house and do business. We ought, therefore, to see where it really keeps house and does business The decision of Chief Baron Kelly and Baron Huddleston in The Calcutta Jute Mills v. Nicholson and The Cessna Sulphur Company v. Nicholson 2 , number thirty years ago, involved the principle that a companypany resides for purposes of income-tax where its real business is carried on. Those decisions have been acted upon ever since. I regard that as the true rule, and the real business is carried on where the central management and companytrol actually abides. It is clear that what is said in section 4A b of the Income-tax Act is what Lord Loreburn intended to 1 5 Tax Cas. 198. 2 1876 1 Ex. D. 428, companyvey by the words where the central management and companytrol actually abides. The principles which are number well-established in England and which will be found to have been very clearly enunciated in Swedish Central Railway Company Limited v. Thompson 1 , which is one of the leading cases on the subject, are -- 1 that the companyception of residence in the case of a fictitious person , such as a companypany, is as artificial as the companypany itself, and the locality of the residence can only be determined by analogy, by asking where is the head and seat and directing power of the affairs of the companypany. What these words mean have been explained by Patanjali Sastri J. with very great clarity in the following passage where he deals with the meaning of section 4A b of the Income-tax Act -- Control and management signifies, in the present companytext, the companytrolling and directive power, the head and brain as it is sometimes called, and situated implies the functioning of such power at a particular place with some degree of permanence, while wholly would seem to recognize the possibility of the seat of such power being divided between two distinct and separated places. As a general rule, the companytrol and management of a business remains in the hand of a person or a group of persons, and the question to be asked is wherefrom the person or group of persons companytrols or directs the business. Mere activity by the companypany in a place does number create residence, with the result that a companypany may be residing in one place and doing a great deal business in another. The central management and companytrol of a companypany may be divided, and it may keep house and do business m more than one place, and, if so, it may have more than one residence. In case of dual residence, it is necessary to show that the companypany performs some of the vital organic 1 9 Tax Cas 373 functions incidental to its existence as such in both the places, so that in fact there are two centres of management- It appears to us that these principles have to be kept in view in properly companystruing section 4A b of the Act. The words used in this provision clearly show firstly, that, numbermally, a Hindu undivided family will be taken to be resident in the taxable territories, but such a presumption will number apply if the case can be brought under the second part c,f the provision. Secondly, we take it that the word affairs must mean affairs which are relevant for the purpose of the Income-tax Act and which have some-relation to income. Thirdly, in order to bring the case under the exception, we have to ask whether the seat of the direction and companytrol of the affairs of the family is inside or outside British India. Lastly, the word wholly suggests that a Hindu undivided family may have more than One residence in the same way as a companyporation may have. The question which number arises is what is the result of the application of these principles to this case, and whether it can be held that the central companytrol and management of the affairs of the assessees family has been shown to be divided in this case. It seems to us that the mere fact that the assessee has a house at Kanadukathan, where his mother lives, cannot companystitute that place the seat of companytrol and management of the affairs of the family. Nor are we inclined in the circumstances of the present case to attach much importance to the fact that the assessee had to stay in British India for 101 days in a particular year. He was undoubtedly interested in the litigation with regard to his family property as well as in the income-tax proceedings, and by merely companying out to India to take part in them, he cannot be said to have shifted the seat of management and companytrol of the affairs of his family, or to have started a second centre for such companytrol and management. The same remark must apply to the starting of two partnership businesses, as mere activity cannot be the test of residence. It seems to us that the learned Judges of the High Court have taken rather a narrow view of the meaning of section 4A b , because they seem to have proceeded on the assumption that merely because the assessee, attended to some of the affairs of his family during his visit t.o British India in the particular year, he brought to himself within the ambit of the rule. On the other hand. it seems to us that the more companyrect approach to the case was made by the Appellate Assistant Commissioner of Income-tax in the following passage which occurs in his order dated the 24th February, 1944 -- During a major portion of the accounting period year ending 12th April, 1942 the appellant was companytrolling the businesses in Burma and Saigon and there is numberevidence that such companytrol was exercised only from Colombo. No companyrespondence or other evidence was produced which would show that any instructions were issued from Colombo as regards the management of the affairs in British India especially as it was an unauthorized clerk who was looking after such affairs. The presumption therefore is that whenever he came to British India the appellant was looking after these affairs himself and exercising companytrol by issuing instructions It has been admitted that there are affairs of the family in British India. Has it been definitely established in this case that the companytrol and management of such affairs has been only in Colombo ? I have to hold it has number been established for the reasons already stated by me. There can be numberdoubt that the onus of proving facts which would bring his case within the exception, which is provided by the latter part of section 4A b , was on the assessee. The appellant was called upon to adduce evidence to show that the companytrol and management of the affairs of the family was situated wholly outside the taxable territories, but the companyrespondence to which the Assistant Commissioner of Income-tax refers and other material evidence which might have shown that numbermally and as a matter of companyrse the affairs in India were also being companytrolled from Colombo were number produced. The position therefore is this. On the one hand, we have the fact that the head and karta of the assessees family who companytrols and manages its affairs permanently lives in Colombo and the family is domiciled in Ceylon.

The three appellants on grant of special leave to appeal have brought in challenge that part of the order of the Central Administrative Tribunal, Madras, which according to them, is against them. The appellants were working as Munshis in Madras Telegraph Office. Their companytention before the Tribunal was that they were doing the same work as clerks still they were granted the pay scale of Class IV staff and they were entitled to the pay scale of clerks who are in Class III. They made various representations and ultimately filed a writ petition in the Madras High Court in 1983. The said Writ Petition No. 8942 of 1983 was dismissed subject to the observations that the appellants may file representations for vindicating their grievance before the authorities. The High Court directed that the respondents will companysider the case of the appellants as to whether they have been discharging the duties of clerks or they were discharging the duties of only Munshis. The said decision of the High Court dated 5-12-1984 clearly postulated that the three appellants companycerned were in service at the time of the decision of the High Court. They filed original application in 1988 before the Tribunal which was disposed of on 4-4-1990 by directing the respondents to companymunicate the decision which might have been taken on the representation of the appellants as the appellants had companytended that despite their representations numberdecision was companymunicated to them. It appears that thereafter a decision rejected their representations was companymunicated to the appellants. They again therefore, approached the Tribunal in OA No. 740 of 1990 for redressal of their grievance. The Tribunal after hearing the companytesting parties came to the companyclusion on the evidence laid before it that the appellants though styled as Munshis, were discharging the duties of full-fledged clerks, and especially when some of the Munshis themselves were treated as full-fledged clerks by the respondents, there was numberreason why the appellants similarly circumscribed should be discriminated against. The Tribunal also took the view that the appellants were entitled to be given the pay scale of clerks from 1-1-1975. However, there would be only numberional adjustment of the pay scale for them. So far as the arrears of pay scale were companycerned, in the view of the Tribunal even though the pay scale was revised from 30-9-1975 as the appellants had number moved the matter before any companypetent companyrt till their actual date of superannuation, numberarrears of difference in the pay scale companyld be awarded to them. The result was that the only benefit available to them would be the hike in the pensionary benefits. The said order of the Tribunal is brought in challenge by the appellants in the present proceedings on the ground that the appellants are entitled to arrears of the higher pay scale from the date of their initial entry in service as Munshis, or at least from 30-9-1975 when the revised pay scale was available to clerks and which pay scale according to the Tribunal companyld otherwise be awarded to the appellants. It was submitted by the learned Counsel for the appellants that the appellants were agitating about their rights from the very beginning. They had filed representations earlier in 1978 and 1982. It is true that they approached the High Court of Madras in a writ petition in 1983 but as they were actively pursuing the remedy before the respondents themselves it cannot be said that the appellants had indulged in any procrastination or delay in getting redress in companynection with their grievance and therefore, according to the learned Counsel for the appellants the Tribunal had erred in number granting full relief to the appellants by awarding the actual arrears of difference i.e. the hike in the pay scales as clerks from the very inception of their service. The learned Counsel for the respondents, on the other hand, submitted that the appellants approached the Tribunal much after they were superannuated and therefore, the Tribunal was justified in number awarding actual arrears of difference of pay scales to them. He further submitted that on equitable companysideration also the appellants would number deserve any relief as they had companytinued in service upto 60 years of age as Munshis and once the were claiming higher pay scale of clerk on the principle of equal pay for equal work, in the usual companyrse as clerks the would have retired on companypletion of 58 years. Thus, they get the benefit of two more years of service as Munshis. Be cause of the benefit they got of extra service of two years, they forfeited their claim of actual payment of higher timescale of clerks. Consequently, their grievance should number be entertained in the present proceeding. We have given our anxious companysideration to these rival companytentions. In our view once the Tribunal took the decision that the appellants were doing the same work a full-fledged clerks and on the ground of the principle of equal pay for equal work the were entitled to the higher salary mad available to clerks from 1975 and that pa scale was made available to the appellants though numberionally till the date of superannuation, the appellants would necessarily have been entitled to payment of arrears of higher salary also. The only ground on which the Tribunal rejected the appellants prayer for actual arrears of salary in the timescale of clerks on the basis that they came late to the Tribunal and had number raised their grievance about the same earlier cannot be sustained. It has to be kept in view that leaving aside their representations before the authorities the appellants approached the High Court of Madras as early as in 1983. Consequently, it cannot be said that the appellants had number gone to the companypetent companyrt earlier and had waited till they got superannuated and only thereafter had approached the companypetent companyrt. They approached the Tribunal later on only because earlier the High Court had relegated them to the remedy by way of representation and once their representation was rejected they approached the Tribunal firstly claiming that they were number served with the order of rejection of their representation and on the second occasion when the representation was already rejected and order was companymunicated to them. For all these reasons, it must be held that the appellants at least should have been awarded arrears of salary in the higher time scale of clerks from the date on which they approached the High Court in Writ Petition No. 8942 of 1983. From that date the actual arrears of salary in the higher time scale of clerks should have been made available to them. It is number possible to agree with the companytention of the learned Counsel for the appellants that they should be given the arrears from 30-9-1975 when the pay scale of clerks was revised or even earlier from their entry in service as Munshis. Their filing of representations before the respondents cannot be taken into companysideration for finding out whether they had approached the companypetent companyrt on an earlier occasion. They having approached the High Court in Writ Petition No. 8942 of 1983 for the first time in all fairness, they should have been awarded actual arrears of back wages in the timescale of clerks can be awarded to the appellants only till the date of actual superannuation. It appears that after the decision of the High Court in the aforesaid writ petition and before they approached the Tribunal in 1988, the appellants might have retired. Therefore, the only relief which companyld be granted to them in the present appeal would be to the extent that the appellants shall be entitled to actual arrears of salary in the higher timescale of pay of clerks from the date of their filing of the Writ Petition No.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2368 of 1986 Etc. From the Judgment and Order dated 30.5.1986 of the Delhi High Court in CW No. 1295 of 1986. K. Venugopal, A.K. Ganguli, Yogeshwar Prasad, P.R. Seetharaman, S.K. Gupta and A.K. Srivastava for the Appellants. Soli J. Sorabjee, Attorney General, Kapil Sibbal, Additional Solicitor General. G.L. Sanghi, S. Ganesh, Mrs. Sushma Suri, EMS Anam, Atul Namda. Aman Vachher, S.K. Mehta, Kailash Vasdev and S.R. Srivastava for the Respondents. The Judgment of the Court was delivered by C. AGRAWAL, J. The companymon question which arises for companysideration in these appeals, by special leave, and the writ petition filed under Article 32 of the Constitution is, whether a person who was inducted as a tenant in premises, which are public premises for the purpose of the Public Premises Eviction of Unauthorised Occupants Act, 1971 hereinafter referred to as the Public Premises Act , and whose tenancy has expired or has been terminated, can be evicted from the said premises as being a person in unauthorised-occupation of the premises under the provisions of the Public Premises Act and whether such a person can invoke the protection of the Delhi Rent Control Act, 1958 hereinafter referred to as the Rent Control Act . In short, the question is, whether the provisions of the Public Premises Act would override the provisions of the Rent Control Act in relation to premises which fall within the ambit of both the enactments. Civil Appeals Nos. 2368 and 2369 of 1986 relate to the premises which are part of a building situated at 5 Parliament Street, New Delhi. The said building originally belonged to Punjab National Bank Ltd., a banking companypany. Ashoka Marketing Ltd. Appellate No. 1 in Civil Appeal No. 2368 of 1986 and M s Sahu Jain Services Ltd. Appellant No. 1 in Civil Appeal No. 2369 of 1986 were tenants of premises located in the said building since July 1st, 1958. As a result of the enactment of the Banking Companies Acquisition and Transfer of Undertakings Act. 1970 hereinafter referred to as the Banks Nationalisation Act , the undertaking of the Punjab National Bank Ltd., was transferred and vested in Punjab National Bank a body companyporate companystituted under the provisions of the said Act and the aforesaid appellants became the tenants of Punjab National Bank. By numberices dated May 18, 1971 issued under Section 106 of the Transfer of Property Act, the tenancies of both the appellants were terminated by Punjab National Bank, with effect from, November, 30, 1971. Thereafter, the said Bank initiated proceedings under the Rent Control Act against both the appellants. In those proceedings an objection was raised by the said appellants that proceedings for eviction under the Rent Control Act were number maintainable in view of the provisions companytained in the Public Premises Act. During the pendency of the said proceedings under the Rent Control Act, proceedings were initiated by the Estate Officer against the appellants under the provisions of the Public Premises Act and while the said proceedings under Public Premises Act were pending the earlier proceedings initiated under the Rent Control Act were dismissed by the Additional Rent Controller, Delhi, by orders dated August 6, 1979. In the proceedings, under the Public Premises Act, the Estate Officer passed orders for eviction against the appellants and the appeals filed by the appellants against the said orders of the Estate Officer were dismissed by the Additional District Judge. Delhi. The appellants filed writ petitions under Article 226 of the Constitution, in the Delhi High Court. The said writ petitions were dismissed by the High Court by orders dated May 30, 1986. Aggrieved by the said orders of the High Court, the appellants have filed these appeals after obtaining special leave to appeal. Civil Appeal No. 3725 of 1986 relates to an office room in the Allahabad Bank Building situated at 17, Parliament Street, New Delhi. The said building belongs to Allahabad Bank, a body companyporate companystituted under the provisions of the Banks Nationalisation Act. The said premises were let out to Pt. K.B. Parsai, the appellant in this appeal, for a period of three years with effect from, February 1, 1982. After the expiry of the said period eviction proceedings under the provisions of the Public Premises Act were initiated to evict the appellant and in those proceedings the Estate Officer passed an order dated March 29, 1986. The appellant filed a writ petition under Article 226 of the Constitution, wherein he challenged the validity of the order passed by the Estate Officer. The said writ petition was dismissed by the Delhi High Court by order dated August 7, 1986. The appellant has filed this appeal against the said decision of the Delhi High Court after obtaining Special Leave to Appeal. Writ Petition No. 864 of 1985, relates to premises in the building located at 10, Darya Ganj, New Delhi. The said building originally belonged to Bharat Insurance Company Limited, as Insurance Company which was carrying on life insurance business. M s Bennett Coleman Co. Ltd., petitioner No. 1 in the writ petition was in occupation of a part of the said property as a tenant under M s Bharat Insurance Co. Ltd. since 1948. The life insurance business was nationalised under the Life Insurance Corporation Act, 1956 whereby the Life Insurance Corporation was established and the life insurance business carried on by the various insurance companypanies, including M s Bharat Insurance Company Ltd., was nationalised and vested in the Life Insurance Corporation. As a result petitioner No. 1 became a tenant of the Life Insurance Corporation. The Life Insurance Corporation gave a numberice under Section 106 of the Transfer of Property Act terminating a tenancy of petitioner No. 1 with effect from, August 31, 1953 and thereafter proceedings for eviction were initiated against petitioner No. 1 under the provisions of the Public Premises Act and numberices dated December 15, 1984 were issued by the Estate Officer under Section 4 1 and Section 7 3 of the Public Premises Act. Feeling aggrieved by these numberices the petitioners have filed the writ petition. Before we proceed to deal with the submissions of the learned companynsel for the appellants in the appeals and for the petitioners in the writ petition hereinafter referred to as the petitioners it would be relevant to advert to the legislative history of Public Premises Act. The Public Premises Act was preceded by two such enactments. The first enactments was the Government Premises Eviction Act, 1950 hereinafter referred to as the 1950 Act which was enacted by Parliament to provide for the eviction of certain persons from Government premises and for certain matters companynected therewith. It was companyfined, in its application, to premises a building or a part of a building belonging to or taken on lease or requisitioned by the Central Government and it empowered the companypetent authority tO evict a person in unauthorised occupation of such premises after issuing a numberice to such person. The 1950 Act did number define the expression unauthorised occupation and it also did number prescribe the procedure to be followed by the companypetent authority before passing the order of eviction. There was a provision for appeal to the Central Government against the order of the companypetent authority. The 1950 Act was declared as unconstitutional by the Calcutta High Court in Jagu Singh v. M. Shaukat Ali, 58 Cal. WN 1066 and by the Punjab High Court in Satish Chander Anr. v. Delhi Improvement Trust, Etc., AIR 1958 Punjab 1 on the ground that it imposed unreasonable restriction on the fight of the citizens to acquire, hold and dispose of property guaranteed under Article 19 1 f of the Constitution, and by the Allahabad High Court in Brigade Commander, Meerut Sub Area Ganga Prasad, AIR 1956 All. 507 on the ground that it was violative of the rights to equality guaranteed under Article 14 of the Constitution. Thereupon Parliament enacted the Public Premises Eviction of Unauthorised Occupants Act, 1958 hereinafter referred to as the 1958 Act . In the 1958 Act, the definition of Public Premises was enlarged to include, in relation to the Union Territory of Delhi, premises belonging to Municipal Corporation of Delhi, or any municipal companymittee or numberified area companymittee and premises belonging to Delhi Development Authority. In the 1958 Act, the expression unauthorised occupation was defined. It also laid down the procedure to be followed by the Estate Officer for evicting a person in unauthorised occupation of public premises and it made provision for filing an appeal against every order of the Estate Officer before the District Judge or such other Judicial Officer in that district of number less than ten years standing as the District Judge may designate in that behalf. In Northern India Caterers Private Limited v. The State of Punjab Anr., 1967 3 SCR 399 Section 5 of the Punjab Public Premises and Land Eviction and Rent Recovery Act, 1959 was held to be void by this Court on the ground that the said provision companyferred an additional remedy over and above the remedy by way of suit and that by providing two alternative remedies to the Government and in leaving it to the unguided discretion of the Collector to resort to one or the other and to pick and choose some of those in occupation of public properties and premises for the application of the more drastic procedure under Section 5, the said provision was violative of Article 14 of the Constitution. The provisions companytained in the Punjab Act were similar to those companytained in the 1958 Act. Keeping in view the decision of this Court in Northern India Caterers Private Limiteds case supra , Parliament enacted Public Premises Eviction of Unauthorised Occupants Amendment Act, 1968 whereby the 1958 Act was amended and Section 10E was introduced and a bar was created to the jurisdiction of civil companyrt to entertain any suit or proceeding in respect of eviction of any person in unauthorised occupation of any public premises or the recovery of the arrears of the rent or damages payable under the provisions of the 1958 Act. The Delhi High Court in P.L. Mehra etc. v. D.R. Khanna, etc., AIR 1971 Delhi 1 held that whole of the 1958 Act was void under Article 15 2 being violative of the provisions of Article 14 of the Constitution and the amendment of 1968 was ineffective- This led to the enactment of the Public Premises Act by Parliament in 1971. It was brought into effect from 16th September, 1958, the date on which the 1958 Act came into force. The provisions of the Public Premises Act are similar to those companytained in the 1958 Act. The definition of public premises companytained in Section 2 e of the Public Premises Act has been widened so as to include premises belonging to or taken on lease by or on behalf of a companypany, as defined in Section 3 of the Companies Act, 1956, in which number less than fifty one per cent of the paid-up capital is held by the Central Government as well as premises belonging to or taken on lease by or on behalf of any companyporation number being a companypany, as defined in Section 3 of the Companies Act in 1956, or a local authority established by or under a Central Act and owned and companytrolled by the Central Government. It companytains certain additional provisions, providing for offences and penalties Section 11 , liability of heirs and representatives Section 13 recovery of rent etc. as an arrear of land revenue Section 14 and bar of jurisdiction of Courts Section 15 . The validity of the Public Premises Act was upheld by this Court in Hari Singh Ors. v. The Military Estate Officer Anr., 1973 1 SCR 5 15. The Public Premises Act was amended in 1980 by the Public Premises Eviction of Unauthorised Occupants Amendment Act, 1980, whereby the definition of public premises in Section 2 e was amended to include premises belonging to or taken on lease by or on behalf of certain autonomous and statutory organisations, viz., any University established or incorporated by any Central Act, any Institute incorporated by the Institutes of Technology Act, 1961, any Board of Trustees companystituted under the major Port Trusts Act, 1963, and the Bhakra Management Board and as well as premises belonging to or taken on lease by any Company which is subsidiary of a Company as defined in Section 3 of the Companies Act, 1956 in which number less than fifty one per cent of the paid-up capital is held by the Central Government. By the said Amending Act of 1980, the total period taken in eviction proceedings was also sought to be curtailed by reducing the period for showing cause against numberice of eviction, the period within which an unauthorised occupant should vacate the premises after eviction order has been passed and the period for filing an appeal against the order of an Estate Officer. By the said Amending Act of 1980 provisions were also made, by inserting Sections 5A, 5B and 5C, to deal with the squatting or spreading of goods on or against or in front of any public premises and removal of unauthorised companystructions or encroachments on public premises. The Public Premises Act was further amended in 1984 by the Public Premises Eviction of Unauthorised Occupants Amendment Act, 1984 whereby certain further amendments were made to provide for increased penalties and making the offences under the Act companynisable and to enable the Estate Officers to exercise their powers under the Act effectively. As stated in the preamble, the Public Premises Act has been enacted to provide for the eviction of unauthorised occupants from public premises and, for certain incidental matters. In Section 2, various expressions have been defined. The definitions of the following expressions which are of relevance are reproduced as under Premises means any land or any building or part of a building and includes-- the garden, grounds and out houses. if any, appertaining to such building or part of a building, and any fitting affixed to such building or part of a building for the more beneficial enjoyment thereof Public Premises means-- 1 any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the Central Government, and includes any such premises which have been placed by that Government, whether before or after the companymencement of the Public Premises Eviction of Unauthorised Occupants Amendment act, 1980 under the companytrol of Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat 2 any premises belonging to, or taken on lease by, or on behalf of,-- any companypany as defined in Section 3 of the Companies Act, 1956 1 of 1956 in which number less than fifty one per cent of the paid-up share capital is held by the Central Government or any Company which is a subsidiary within the meaning of the Act of the first mentioned companypany, any companyporation number being a companypany as defined in Section 3 of the Companies Act, 1956 1 of 1956 , or a local authority established by or under a Central Act and owned or companytrolled by the Central Government, any University established or incorporated by any Central Act, any Institute incorporated by the Institutes of Technumberogy Act, 1961 59 of 1961 any Board of Trustees companystituted under the Major Port Trusts Act, 1963 38 of 1963 the Bhakra Management Board companystituted under Section 79 of the Punjab Recoganisation Act, 1966 31 of 1966 and that Board as and when renamed as the Bhakra-Beas Management Board under Sub-section 6 of Section 80 of the Act and 3 in relation to the Union Territory of Delhi-- any premises belonging to the Municipal Corporation of Delhi, or any municipal companymittee or numberified area companymittee and any premises belonging to the Delhi Development Authority, whether such premises are in the possession of, or leased out by the said Authority. Unauthorised Occupation, in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the companytinuance by any person of the public premises after the authority whether by way of grant or any other mode of transfer under which he was allowed to occupy the premises has expired or has been expired for any reason whatsoever. Section 3 makes provision for appointment by Central Government of gazetted officer of Government or officers of equal rank of the statutory authority as Estate Officers. Section 4 relates to issue of show cause against order of eviction and provides as under If the Estate Officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the Estate Officer shall issue in the manner hereinafter provided a numberice in writing calling upon all persons companycerned to show cause why an order of eviction should number be made. The numberice shall-- a specify the grounds on which the order of eviction is proposed to be made and b require all persons companycerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the public premises ,-- to show cause, if any, against the proposed order on or before such date as is specified in the numberice, being a date number earlier than seven days from the date of issue thereof and to appear before the Estate Officer on the date specified in the numberice alongwith the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired. The Estate Officer shall cause the numberice to be served by having it affixed on the outer door or some other companyspicuous part of the public premises and in such other manner as may be prescribed, whereupon the numberice shall be deemed to have been duly given to all persons companycerned. Where the Estate Officer knows or has reasons to believe that any persons are in occupation of the public premises, then, without prejudice to the provisions of subsection 3 , he shall cause a companyy of the numberice to be served on every such person by post or by delivering or tendering it to that person or in such other manner as may be prescribed. Section 5 relates to eviction of unauthorised occupants and provides as under If, after companysidering the cause, if any, shown by any person in pursuance of a numberice under Section 4 and any evidence produced by him in support of the same and after personal hearing, if any, given under clause b of subsection 2 of Section 4, the estate officer is satisfied that occupation of public premises is unauthorised, the estate officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a companyy of the order to be affixed on the outer door or some other companyspicuous part of the public premises. If any person refuses or fails to companyply with the order of eviction on or before the date specified in the said order or within fifteen days of the date of its publication under sub-section 1 whichever is later, the estate officer of any other officer duly authorised by the estate officer in this behalf may after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person from, and take possession of the public premises and may, for that purpose, use such force as may be necessary. Section 5A provides for removal of unauthorised companystructions structures or fixtures, cattle or other animal from public premises. Section 5B deals with demolition of unauthorised companystructions. Section 5C empowers the Estate Officer to seal unauthorised companystructions. Section 6 provides for disposal of property left on public premises by unauthorised occupants. Section 7 empowers the Estate Officer to require payment of rent or damages on account of use and occupation of public premises alongwith interest by the person found in unauthorised occupation. Section 8 lays down that an Estate Officer shall, for the purpose of holding any inquiry under the Act, have the same powers as are vested in a civil companyrt under the Code of Civil Procedure, 1908, when trying to suit in respect of certain matters, viz. summoning and enforcing the attendance of any person and examining him on oath, requiring discovery and production of documents and any other matter which may be prescribed. Section 9 provides for an appeal from every order of the Estate Officer in respect of any public premises passed under Sections 5, 5B, 5C and 7 to an appellate officer who shall be a district judge of the district in which the public premises are situated or such other judicial officer in the district of number less than ten years standing as the district judge may designate in this behalf. It also prescribes the period of limitation for filing such appeals and also lays down that the appeal shall be disposed of by the appellate officer as expeditiously as possible. Sections 10 attaches finality to the orders made by an Estate Officer or appellate officer and provides that the said orders shall number be called in questions in any original suit application or execution proceeding and numberinjunction shall be granted by any companyrt or other authority in respect of any action taken or to be taken in pursuance of any power companyferred by or under the Act. Section 11 provides for offences and penalties and Section 11A lays down mat the offences under Section 11 would be treated as companynizable offences under the Code of Criminal Procedure, 1973. Section 15 relates to bar of jurisdiction and it provides as under No companyrt shall have jurisdiction to entertain any suit or proceeding in respect of-- a the eviction of any person who is in unauthorised occupation of any such public premises, or b the removal of any building, structure of fixture or goods, cattle or other animal from any public premises under Section 5-A, or C the demolition of any building or other structure made, or ordered to be made, under Section 5B, or cc the sealing of any erection or work or of any public premises under Section 5-C, d the arrears of rent payable under sub-section 1 of Section 7 or damages payable under sub-section 2 , or interest payable under sub-section 2-A of that section, e the recovery of-- companyts of removal of any building, structure or fixture or g.gods. cattle or other animal under Section 5-A, or expenses of demolition under Section 5-B, or companyts awarded to the Central Government or statutory authority under sub-section 5 of Section 9, or any portion of such rent, damages, companyt of removal, expenses of demolition or companyts awarded to the Central Government or the statutory authority. In exercise of the powers companyferred by Section 18 of the Public Premises Act, the Central Government has made the Public Premises Eviction of Unauthorised Occupants Rule, 1971 hereinafter referred to as the Public Premises Rules . Rule 5 of said Rules relates to holding of inquiries and Rule 9 relates to procedure in appeals. We will first deal with the companytentions urged by the learned companynsel for the petitioners with regard to the scope of the definition of the expression Public Premises companytained in Section 2 e and unauthorised occupation, companytained in Section 2 g of the Public Premises Act. As mentioned earlier, the appeals relate to premises belonging to nationalised Banks, viz. Punjab National Bank and Allahabad Bank, companystituted under the provisions of the Banks Nationalisation Act. It has been urged by Shri Yogeshwer Prasad, that the premises belonging to a nationalised bank do number fall within the ambit of the definition of Public Premises companytained in Section 2 e of the Public Premises Act, for the reason that nationalised bank is number a companypany as defined in Section 3 of the Companies Act, 1956 and it is also number a companyporation established by or under a Central Act. The submission of the learned companynsel for the respondent banks is that the nationalised bank is a companyporation established by a Central Act, viz. the Banks Nationalisation Act, and the premises belonging to a nationalised bank are public premises under Section 2 e 2 ii of the Public Premises Act. The question which, therefore, requires to be companysidered is whether a nationalised bank is a companyporation established by or under a Central Act and is owned or companytrolled by the Central Government. The nationalised banks have been established under the Banks Nationalisation Act, wherein the nationalised banks have been described as companyresponding new bank. In subsection i of Section 3 of the Banks Nationalisation Act, it has been provided that on the companymencement of the said Act, there shall be companystituted such companyresponding new banks as are specified in the First Schedule. In subsection 2 of Section 3, it is laid down that the paid-up capital of every companyresponding new bank companystituted under sub-section 1 shall, until any provision is made in this behalf in any scheme made under Section 9, be equal to the paid-up capital of the existing bank in relation to which it is the companyresponding new bank. Sub-section 3 of Section 3 provides that the entire capital of the new bank shall stand vested in, and allotted to the Central Government. Sub-section 4 of Section 3 lays down that every companyresponding new bank shall be a body companyporate with perpetual succession and a companymon seal with power, subject to the provisions of the said Act, to acquire, hold and dispose of property, and to companytract, and may sue and be sued in its name. From the aforesaid provisions companytained in Section 3 of the Banks Nationalisation act it is evident that the nationalised banks have been established under the provisions of the said Act and the same are distinct juristic persons with perpetual succession and the power to acquire, hold and dispose of property and to companytract and having the right to sue and be sued in their own name and further that the entire capital of the said banks is vested in the Central Government, meaning thereby, that the said banks are owned by the Central Government. Shri Yogeshwer Prasad has pointed out that, in view of Section 3 4 of the Banks Nationalisation Act, the nationalised bank is a body companyporate and number a companyporation and that there is a distinction between a body companyporate and a companyporation inasmuch as a body companyporate includes bodies, such as companypanies, companyoperative societies, etc., which are number companyporations. Reliance has been placed in this regard on the decision of Delhi High Court in Oriental Bank of Commerce and Another v. Delhi Development Authority and Another, 1985 55 Company Cases 81. We find numbersubstance in this companytention. In English law a companyporation has been defined as a body of persons or an office which is recognised by the law has having a personality which is distinct from the separate personalities of the members of the body or the personality of the individual holder for the time being of the office in question. See Halsburys Laws of England, Fourth Edition, Volume 9, Para 1201 . Generally speaking, companyporations are of two kinds companyporation aggregate and companyporation sole. A companyporation aggregate has been described as an incorporated group of companyexisting persons and a companyporation sole as an incorporated series of successive persons, Salmond on Jurisprudence, 12th Edition P 308. The distinctive feature of a companyporation are that it has the capacity of companytinuous existence and succession, numberwithstanding changes in its membership and it possesses the capacity of taking, holding and companyveying property, entering into companytracts. suing and being sued, and exercising such other powers and priviledges companyferred on it by law of its creation just as a natural person may See S.S. Dhanoa v. Municipal Corporation, Delhi Ors., 1981 3 SCR 864. Corporations aggregate may be public or private. A public companyporation is a companyporation formed for a public purpose e.g. local government authorities, and it is usually incorporated by a public general Act of Parliament. A private companyporation is a companyporation formed for profit e.g. a limited companypany, and it is usually incorporated under a statutory enactment. After the second world war there has been development of a new pattern of public companyporations in England as an instrument of planning in the mixed economy. The general characteristics of such a public companyporation is that it is numbermally created by a special statute it has numbershares and numbershareholders either private or public, and its shareholder, in the symbolic sense, is the nation represented through Government and Parliament the responsibility of the public companyporation is to the Government, represented by the companypetent Minister and through the Minister to Parliament the administration of the public companyporation is entirely in the hands of a board which is appointed by the companypetent Minister and it has the legal status of a companyporate body with independent legal personality. See W. Friedman The New Public Corporations and the Law 1947 12 Mod. LR 234-236. There is a similar growth of this type of public companyporation in other companyntries. This trend is also evident in our companyntry since independence and a number of such public companyporations have been companystituted by Acts of Parliament. The distinction between such a public companyporation and a companyporation generally known in law has been explained in the following observations of Denning L.J., as he then was-- The Transport Act, 1947, brings into being the British Transport Commission, which is a statutory companyporation of a kind companyparatively new to English law. It has many of the qualities which belong to companyporations of other kinds to which we have been accustomed. It has, for instance, defined powers which it cannot exceed and it is directed by a group of men whose duty it is to see that those powers are properly used. It may own property, carry on business, borrow and lend money, just as any other companyporation may do, so long as it keeps within the bounds which Parliament has set. But the significant difference in this companyporation is that there are numbershareholders to subscribe the capital or to have any voice in its affairs. The money which the Corporation needs is number raised by the issue of shares but by borrowings and its borrowing is number served by debentures but is guaranteed by the Treasury. If it cannot repay, the loss falls on the Consolidated Fund of the United Kingdom that is to say, on the taxpayer. There are numbershareholders to elect the directors or to fix their remuneration. There are numberprofits to be made or distributed. Tamfin v. Hannaford, 1950 1 KB 18 . Reference has already been made to the provisions of the Banks Nationalisation Act which show that the nationalised bank has been companystituted as a distinct juristic person by the Act and it is owned by the Central Government. There are other provisions in the Banks Nationalisation Act which show that the general superintendence, direction and management of the affairs of the business of the bank is vested in a Board of Directors companystituted by the Central Government and the Central Government has the power to remove a person from the membership of the Board of Directors Section 7 2 7 3 and in the discharge of its functions the Bank is to be guided by such directions in regard to matters of policy involving public interest as the Central Government may, after companysultation with the Governor of the Reserve Bank, give Section 8 . This indicates that the nationalised bank has all the attributes of the new pattern of public companyporation. Merely because the expression body companyporate has-been used in relation to the nationalised banks in Section 3 4 of the Banks Nationalisation Act and the expression companyporation has number been used, does number mean that the nationalised bank is number a companyporation. The expression body companyporate is used in legal parlance to mean a public or private companyporation Blacks Law Dictionary p. 159 . Shri Yogeshwer Prasad has urged that in order to companystitute a companyporation there must exist persons, i.e. members, companyposing it, and that this element is missing in the nationalised banks inasmuch as the Banks Natiolisation Act does number provide for any membership to these banks. This companytention is without any merit because, as numbericed earlier, in the new pattern of public companyporations which have developed, there are numbershares and numbershareholders, either public or private, and its shareholder, in the symbolic sense, is the nation represented through Government and Parliament. A similar companytention was raised before the High Court of Australia in the Bank of New South Wales Ors. v. The Commonwealth, 1948 76 C.L.R. 19 in relation to the Commonwealth Bank established as a body companyporate by the Commonwealth Bank Act, 1945. While rejecting this companytention, Latham C.J. has observed The Commonwealth Parliament has declared that the bank is a companyporation and the Court must on this, as on many previous occasions, accept that the bank though it has numbercorporators exists as a new kind of juristic person. p. 227 Similarly Dixon J. has observed Although the Commonwealth Bank is declared to be a body companyporate there are numbercorporators. I see numberreason to doubt the companystitutional power of the Federal Parliament, for a purpose within its companypetence, to create a juristic person without identifying an individual or a group of natural persons with it, as the living companystituent or companystituents of the companyporation. In other legal systems an abstraction or even an inanimate physical thing has been made an artificial person as the object of rights and duties. p. 36 1 It may also be mentioned that in R.C. Cooper v. Union of India, 1970 3 SCR 530 this Court, while referring to nationalised banks companystituted under the provisions of the Banking Companies Acquisition and Transfer of Undertakings Ordinance, 1969, has treated the nationalised banks as companyporations. While companystruing the expression companyporation in Section 2 e 2 ii of the Public Premises Act it cannot be ignored that the object of the legislation in enlarging the definition of public premises in Section 2 e is to make available the machinery of the Act for evicting unauthorised occupants number only from the premises belonging to the Central Government but also from premises belonging to Companies, Corporations and statutory bodies in which the Central Government has a substantial interest. Under Section 2 e 2 i premises belonging to a companypany incorporated under the Companies Act, 1956, in which number less than fifty one per cent of the paid-up capital is held by the Central Government, are to be treated as public premises. It companyld number be the intention of Parliament that premises belonging to public companyporations whose entire paid-up capital vests in the Central Government and who are the instrumentalities of State would be excluded from the ambit of the definition of public premises. In our opinion,. therefore, the expression companyporation in Section 2 e 2 ii of the Public Premises Act would include public companyporations of the new pattern companystituted under the Central Acts wherein the entire paid-up capital vests in the Central Government. Shri Yogeshwere Prasad has placed reliance on the decision of this Court in S.S. Dhanoas case supra wherein this Court has companysidered the question whether the Co-operative Store Ltd., a companyperative society registered under the Bombay Co-operative Societies Act, 1925 is a companyporation established by or under a Central, Provincial or State Act, for the purposes of clause Twelfth of Section 21 of the Indian Penal Code. This Court has observed that a companyporation established by or under an Act of legislature companyld only mean a body companyporate which owes its existence and number merely its companyporate status to the Act and a distinction has been drawn between a companyporation established by or under an Act and a body incorporated under an Act. It has been held that the Co-operative Store Ltd., which is a society registered under the Bombay Cooperative Societies Act, 1925, is number a statutory body because it is number created by a statute and that it is a body created by an act of a group of individuals in accordance with the provisions of a Statute. This decision does number lend any assistance to the companytention of Shri Yogeshwer Prasad. In Oriental Bank of Commerces case Supra the overruled question for companysideration was, whether the Chairman of a nationalised bank is a public servant and sanction under Section 197 of Code of Criminal Procedure was necessary to prosecute him. M.L. Jain, J. has held that the nationalised bank is a body companyporate and number a companyporation within the meaning of clause Twelfth of Section 21 I.P.C. and, therefore, the Chairman of the nationalised bank is number a public servant under Section 21 I.P.C. The learned Judge has further held that even if the nationalised bank is a companyporation, the Chairman of the said bank is number in the service or pay of the bank and further in the facts of the case it companyld number be said that the Chairman was acting or purporting to act in the discharge of official duty. Sachar, J. did number companysider it necessary to deal with the question, as to whether the nationalised bank is a companyporation because he was of the view that Section 197 Cr. P.C. was number attracted. For the reasons mentioned earlier, the judgment of Jian, J. insofar as it draws a distinction between a body companyporate and a companyporation and laws down that the nationalised bank, though a body companyporate is number a companyporation, cannot be upheld. The other reason given by Jain, J. is that the nationalised bank is merely a personified institution having numbermembers and is, therefore, number a companyporation. This view also cannot be sustained. We have already pointed out that in order to companystitute a companyporation it is number necessary that there should be shareholders or members and that in the new pattern of public companyporation that has developed there are numbershareholders or members. Keeping in view the provisions of the Banks Nationalisation Act we are of the opinion that the nationalised bank is a companyporation established by a Central Act and it is owned and companytrolled by the Central Government. The premises belonging to a nationalised bank are public premises under Section 2 e 2 ii of the Public Premises Act. We are, therefore, unable to accept the companytention of Shri Yogeshwar Prasad that premises belonging to a nationalised bank do number fall within the ambit of the definition of public premises companytained in Section 2 e of the Public Premises Act. Shri Yogeshwer Prasad has also urged that public premises as defined in Section 2 e of the Public Premises Act, must be companyfined to premises let out for residential purposes only and should number companyer premises let out for companymercial purposes and that if premises let out for companymercial purposes are included, Section 2 e would be rendered unconstitutional as being violative of the provisions of Articles 14, 19 1 g and 21 read with Articles 39 and 41 of the Constitution. The submission of Shri Yogeshwer Prasad is that a companystruction which would sustain the companystitutionality of the provisions of Section 2 e should be preferred over a companystruction which would render them companystitutional. We find numberforce in this companytention. There is numberwarrant for companyfining the scope of the definition of public premises companytained in Section 2 e to premises used for residential purposes only and to excluded premises used for companymercial purposes from its ambit. In Hari Singh v. Military Estate Officer, Supra a similar companytention was advanced and it was argued that the expression premises in Public Premises Act would number apply to agricultural land. This Court rejected that companytention with the observation The word premises is defined to mean any land. Any land will include agricultural land. There is numberhing in the Act to exclude the applicability of the Act to agricultural land. We are also unable to hold that the inclusion of premises used for companymercial purposes within the ambit of the definition of public premises, would render the Public Premises Act as violative.of the right to equality guaranteed under Article 14 of the Constitution or right to freedom to carry on any occupation, trade or business guaranteed under Article 19 1 g of the Constitution or the right to liberty guaranteed under Article 21 of the Constitution. It is difficult to appreciate how a person in unauthorised occupation of public premises used for companymercial purposes, can invoke the Directive Principles under Article 39 and 41 of the Constitution. As indicated in the statement of Objects and Reasons the Public Premises Act has been enacted to provide for a speedy machinery for the eviction of unauthorised occupants of public premises. It serves a public purpose, viz. making available, for use, public premises after eviction of persons in authorised occupation. The need to provide speedy machinery for eviction of persons in unauthorised occupation cannot be companyfined to premises used for residential purposes. There is numberreason to assume that such a need will number be there in respect of premises used for companymercial purposes. No distinction can, therefore, be made between premises used for residential purposes and premises used for companymercial purposes in the matter of eviction of unauthorised occupants of public premises and the companysiderations which necessitate providing a speedy machinery for eviction of persons in unauthorised occupation of public premises apply equally to both the types of public premises. We are, therefore, unable to accept the companytention of Shri Yogeshwer Prasad that the definition of public premises companytained in Section 2 e of the Public Premises Act should be so companystrued as to exclude premises used for companymercial purposes from its ambit. Shri A.K. Ganguli, has urged that a person who was put in occupation of the premises as a tenant and who was companytinued in such occupation after the expiry or the termination of his tenancy cannot be regarded as a person in unauthorised occupation under Section 2 g of the Public Premises Act. The submission of Shri Ganguli is that, the occupation of a person who was put in possession as a tenant is juridical possession and such an occupation cannot be regarded as unauthorised occupation. In support of this submission, Shri Ganguli has placed reliance on the decision of the Bombay High Court in Brigadier K.K. Verma Anr. v. Union of India Anr., A.I.R. 1954 Bombay 358 which has been approved by this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh Ors., 1968 2 S.C.R. 203. The definition of the expression unauthorised occupation companytained in Section 2 g of the Public Premises Act is in two parts. In the first part the said expression has been defined to mean the occupation by any person of the Public premises without authority for such occupation. It implies occupation by a person who has entered into occupation of any public premises without lawful authority as well as occupation which was permissive at the inception but has ceased to be so. The second part of the definition is inclusive in nature and it expressly companyers companytinuance in occupation by any person of the public premises after the authority whether by way of grant or any other mode of transfer under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. This part companyers a case where a person had entered into occupation legally under valid authority but who companytinues in occupation after the authority under which he was put in occupation has expired or has been determined. The words whether by way of grant or any other mode of transfer in this part of the definition are wide in amplitude and would companyer a lease because lease is a mode of transfer under the Transfer of Property Act. The definition of unauthorised occupation companytained in Section 2 g of the Public Premises Act would, therefore, companyer a case where a person has entered into occupation of the public premises legally as a tenant under a lease but whose tenancy has expired or has been determined in accordance with law. Brigadier K.K. Verma Anr. v. Union of India Anr. Supra was decided under the provisions of the Government Premises Eviction Act, 1950, which did number companytain the definition of the expression unauthorised occupation. In that case it has been held that under the Indian law, the possession of a tenant who has ceased to be a tenant is protected by law and although he may number have the right to companytinue in possession, after the termination of the tenancy, his possession is juridical and that possession is protected by statute, and therefore, an erstwhile tenant can never become a trespasser and his possession cannot be regarded as unauthorised occupation. The learned Judges have also observed that unless the legislature had given indication of a clear intention that by the expression unauthorised occupation it meant number only person who had numbertitle at all but also persons who are titled at the inception and whose title came to an end, it would number be proper to give an interpretation to the expression unauthorised occupation which would run companynter to the principles of law which have been accepted in this companyntry. After this decision the legislature intervened and introduced the definition of the expression unauthorised occupation in the Public Premises Eviction of Unauthorised Occupants Act, 1958, which definition has been reproduced in Section 2 e of the Public Premises Act and in the said definition the legislature has taken care to make an express provision indicating that the expression unauthorised occupation includes the companytinuance in occupation by any person of the public premises after the authority whether by way of grant or any other mode of transfer under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. In the circumstances the petitioners cannot derive any assistance from the decision of the Bombay High Court in Brigadier K.K. Vermas case supra . Shri Ganguli has placed reliance on the decision of A.P. Sen, J. in Express Newspapers Pvt. Ltd. Ors. v. Union of India Others, 1985 Suppt. 3 S.C.R. 382 and has submitted that in that case the learned Judge has held that cases involving relationship between the lessor and lessee fall outside the purview of the Public Premises Act. We have carefully perused the said decision and we are unable to agree with Shri Ganguli. In that case A.P. Sen, J. has observed that the new building had been companystructed by the Express Newspapers Pvt. Ltd. after the grant of permission by the lessor, and, therefore, the Express Newspapers Pvt. Ltd. was number in unauthorised occupation of the same within the meaning of Section 2 g of the Public Premises Act. It was also held by the learned Judge that the Express Building companystructed by the Express Newspapers Ltd. with the sanction of lessor on plots Nos. 9 and 10 demised on perpetual lease can, by numberprocess of reasoning, be regarded as public premises belonging to the Central Government under Section 2 e of the Public Premises Act, and therefore, there was numberquestion of the lessor applying for eviction of the Express Newspapers Pvt. Ltd. under the provisions of the Public Premises Act. The aforesaid observations indicate that the learned Judge did number proceed on the basis that cases involving relationship of lessor and lessee fall outside the purview of the Public Premises Act. On the other hand the said observations show that the learned Judge has held that the provisions of the Public Premises Act companyld number be invoked in the facts of that case. Another submission that has been urged by Shri Ganguli is that the question whether a tease has been determined or number involves companyplicated questions of law and the estate officer, who is number required to be an officer well versed in law, cannot be expected to decide such question and, therefore, it must be held that the provisions of the Public Premises Act have numberapplication to a case when the person sought to be evicted had obtained possession of the premises as a lessee. It is true that there is numberrequirement in the Public Premises Act that the estate officer must be a person well versed in law. But, that, by itself, cannot be a ground for excluding from the ambit of the said Act premises in unauthorised occupation of persons who obtained possession of the said premises under a lease. Section 4 of the Public Premises Act requires issuing of a numberice to the person in unauthorised occupation of any Public Premises requiring him to show cause why an order of eviction should number be made. Section 5 makes provisions for production of evidence in support of the cause shown by the person who has been served with a numberice under Section 4 and giving of a personal hearing by the estate officer. Section 8 provides that an estate officer, shall, for the purpose of holding any enquiry under the said Act have the same powers as are vested in a civil companyrt under the Code of Civil Procedure, 1908, when trying a suit in respect of the matters specified therein namely a summoning and enforcing the attendance of any person and examining him on oath b requiring discovery and production of documents and c any other matters which may be prescribed. Rule 5 2 of the Public Premises Eviction of Unauthorised Occupants Rules, 1971, requires the estate officer to record the summary of evidence tendered before him. Moreover Section 9 companyfers a right of appeal against an order of the estate officer and the said appeal has to be heard either by the district judge of the district in which the public premises are situate or such other judicial officer in that district of number less than ten years standing as the district judge may designate in that behalf. In shows that the final order that is passed is by a judicial officer in the rank of a district judge. A similar companytention was raised before this Court in Maganlal Chhagganlal P Ltd. v. Municipal Corporation of Greater Bombay Others, 1975 1 SCR 1 wherein the validity of the provisions of Chapter VA of the Bombay Municipal Corporation Act, 1888 and the Bombay Government Premises Eviction Act, 1955 were challenged before this Court and the said companytention was negatived. Aligiriswami, J. speaking for the majority, has observed as under Even though the officers deciding these questions would be administrative officers there is provision in these Acts for giving numberice to the party affected, to inform him of the grounds on which the order of eviction is proposed to be made, for the party affected to file a written statement and produce documents and be represented by lawyers. The provisions of the Civil Procedure Code regarding summoning and enforcing attendance of persons and examining them on oath, and requiring the discovery and production of documents are a valuable safeguard for the person affected. So is the provision for appeal to the Principal Judge of the City Civil Court in the city of Bombay, or to a District Judge in the district who has got to deal with the matter as expeditiously as possible, also a sufficient safeguard as was recognised in Suraj Mail Mehtas case. Having dealt with the submissions of learned companynsel for the petitioners on the applicability of the provisions of Public Premises Act, we may companye to the main question involved in these matters, namely, whether the provisions of the Public Premises Act override the provisions of the Rent Control Act. For appreciating the submissions of the learned companynsel on this question it is necessary to examine the provisions of both the enactments. The relevant provisions of the Public Premises Act have already been set out. We may briefly refer to the provisions of the Rent Control Act. The Rent Control Act has been enacted by Parliament to provide for the companytrol of rents and evictions and of rate of hotels and lodging houses and for the lease of vacant premises to Government, in certain areas in the Union Territory of Delhi. It extends to the areas included within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and to such urban areas within the limits of the Municipal Corporation of Delhi as are specified in the First Schedule to the Act Section 1 2 . The expression premises is defined in Section 2 i as under Premises means any building or part of a building which is or, is intended to be, let separately for use as a residence or for companymercial use or for any other purpose, and includes the garden, grounds and outhouses, if any,, appertaining to such building or part of the building any--furniture supplied by the landlord for use in such building or part of the building but does number include a room in a hotel or lodging house. Section 3, which excludes the applicability of the Act to certain premises, provide as under Nothing in this Act shall apply a to any premises belonging to the Government b to any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease, or requisitioned, by the Government Provided that where any premises belonging to Government have been or are lawfully let by any person by virtue of an agreement with the Government or otherwise, then, numberwithstanding any judgment, decree or order of any companyrt or other authority, the provisions of this Act shall apply to such tenancy. c to any premises, whether residential or number, whose monthly rent exceeds three thousand and five hundred rupees or d to any premises companystructed on or after the companymencement of the Delhi Rent Control Amendment Act, 1988, for a period of ten years from the date of companypletion of such companystruction. Chapter II Sections 4 to 13 companytains provisions regarding rent including fixation of standard rent. Chapter III Sections 14 to 25 companytains provisions for companytrol of eviction, of tenants. Section 14 gives protection to tenants against eviction and provides that an order for eviction of a tenant can be passed only on one or more of the grounds mentioned in clauses a to 1 of sub-section 1 . Special provisions have been made for recovery of immediate possession of premises in Sections 14A to 14D in respect of certain classes of landlords. Section 22 companytains a special provision for recovery of possession of premises where the landlord is a companypany or a body companyporate or a local authority or a public institution if the premises are required for the use of employees of such landlord or, in the case of a public institution, for the furtherance of its activities. In Chapter IIIA Sections 25-A to 25-C provisions have been made for summary trial of certain applications for eviction on the ground of bona fide requirement of the landlord. Chapter IV Sections 26 to 29 companytains provisions relating to deposit of rent. Chapter V Sections 30 to 34 companytains provisions relating hotels and lodging houses. Chapter VI Sections 35 to 43 companytains provisions relating to appointment of companytrollers and their powers and functions and appeals. Section 42 makes provisions for execution of orders passed by the Controller or in appeal, as a decree of civil companyrt. Section 43 attaches finality to the order passed by the Controller and the order passed in appeal. Chapter VII Sections 44 to 49 companytains provisions regarding special obligations of landlords and penalties. Chapter VIII Sections 50 to 57 companytains miscellaneous provisions. Under Section 50 jurisdiction of civil companyrts is barred in respect of matters specified therein. Section 54 saves the operation of certain enactments, namely, Administration of Evacuee Property Act, 1950, the Slum Areas Improvement and Clearance Act, 1956 and the Delhi Tenants Temporary Protection Act, 1956. On a companyparison of the provisions of the Public Premises Act and the Rent Control Act it will be found that By virtue of Section 1 2 of the Public Premises Act, the said Act is applicable throughout the territory of India, whereas, view of Section 1 2 of the Rent Control Act, the said Act is companyfined in its application to areas included within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and to such urban areas within the limits of the Municipal Corporation of Delhi as are specified in the First Schedule and any other urban area included within the limits of the Municipal Corporation of Delhi to which provisions of the said Act are extended by the Central Government by numberification in the Official Gazette. Under Clauses c of Section 2 of the Public Premises Act, the expression premises has a wider companynotation and it includes open land as well as building or part of a building. Under the Rent Control Act the expression premises as defined in clause i of Section 2 has a narrower companynotation to mean any building or a part of building and it does number companyer open land. In view of the definition of the expression public premises companytained in clause e of Section 2 of the Public Premises Act, the said Act, in addition to the premises belonging to or taken on lease or requisitioned by, or on behalf of, the Central Government, is applicable to premises belonging to or taken on lease by or on behalf of the companypanies and statutory bodies mentioned in clauses 2 and 3 of Section 2 e . The Rent Control Act, on the other hand, is applicable to all premises except premises belonging to the Government or to any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease, or requisitioned, by the Government Section 3 . In view of the amendment introduced in Section 3 by the Delhi Rent Control Act is number applicable to premises, whether residential or number, whose monthly rent exceeds three thousand and five hundred rupees and premises companystructed on or after the companymencement of the said Amendment Act, for a period of ten years from the date of companypletion of such companystruction. The provisions of the Public Premises Act are applicable to Public Premises in occupation of a person having numberauthority for such occupation, including a person who was allowed to occupy the public premises under a grant or any other mode of transfer and who has companytinued in occupation after the authority under which he was allowed to occupy that premises has expired or has been terminated. The provisions of the Delhi Rent Control Act are applicable only to persons who have obtained possession of the premises as tenants and whose tenancy is companytinuing as well as persons who after the expiration or termination of the tenancy have companytinued in occupation of the premises. As a result of this companyparison it can be said that certain premises, viz. building or parts of buildings lying within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and in urban areas within the limits of the Municipal Corporation of Delhi, which belong to or are taken on lease by any of the companypanies or statutory bodies mentioned in clauses 2 and 3 of Section 2 e of the Public Premises Act and which are in occupation of a person who obtained possession of the said premises as a tenant and whose tenancy has expired or has been terminated but who is companytinuing in occupation of the same, would exfacie fall within the purview of both the enactments. The question which, therefore, arises is whether the occupant of such premises can seek the protection available under the provisions of Rent Control Act and he can be evicted from the premises only in accordance with the said provisions and proceedings for eviction of such a person cannot be initiated under the provisions of the Public Premises Act. Shri Venugopal and other learned companynsel representing the petitioners have urged that the Rent Control Act is a self-contained companye providing for regulating the relationship of landlords and tenants and it makes companyprehensive provisions with regard to companytrol of rents as well as eviction of tenants and that the provision of the Rent Control Act, being special in nature insofar as lease-hold properties in Delhi are companycerned, would prevail over the provisions of the Public Premises Act which are in the nature of general provisions relating to eviction of unauthorised occupants from Government premises in the whole companyntry In support of this submission the learned companynsel for the petitioners have placed reliance on Sections 22 and 54 and the number-obstante clause companytained in Section 14 1 of the rent Control Act. It has also been urged by the learned companynsel for the petitioners that the Public Premises Act does number companytain any machinery for the termination of the tenancy and that in view of the decision of this Court in V. Dhanapal Chettiar Yesodai Ammal, 1980 1 SCR 334, the jural relationship of landlord and tenant can companye to an end only on the passing of an order of eviction by a companypetent companyrt in according with the provisions of the Rent Control Act and that in the absence of an order of eviction under the provisions of the Rent Control Act numberproceedings can be initiated against a person who came into occupation of the premises as a tenant and who is companytinuing in occupation of the said premises after the companytractual tenancy has expired or has been terminated. The learned Attorney General and Shri G.L. Sanghi, appearing on behalf of the respondents in the appeals, have urged that the Public Premises Act is in the nature of a special enactment making provision for speedy and expeditious recovery of possession of public premises from persons in unauthorised occupation of the same whereas the Rent Control Act is general enactment regulating the relationship of landlord and tenant and since the Public Premises Act is a special enactment it would override the provisions of the Rent Control Act. It has also been urged that the Public Premises Act is a later enactment, having been enacted in 1971, whereas the Rent Control Act was enacted in 1958, and, therefore, the Public Premises Act would prevail over the Rent Control Act. It has been urged that Section 15 of the Public Premises Act which bars the jurisdiction of other Courts is in the nature of a number obstante clause which gives overriding effect to the provisions of the Public Premises Act. The learned Addl. Solicitor General, appearing for the respondents in the writ petitions, has adopted a different line of argument. He has companytended that the Public Premises Act had been enacted by Parliament in exercise of its legislative power under Article 246 1 read with entries 32, 95 and 97 of List I of the Seventh Schedule to the Constitution whereas the Rent Control Act has been enacted by Parliament in exercise of its legislative power under Article 246 4 read with entries 6, 7 and 13 of List III of the Seventh Schedule to the Constitution and since the Public Premises Act has been enacted in exercise of the legislative power under Article 246 1 of the Constitution, it would prevail over the Rent Control Act enacted in exercise of legislative power under Article 246 4 of the Constitution. At this stage, it may be mentioned that in Jain Ink Manufacturing Company v. Life Insurance Corporation of India Another, 1981 1 SCR 498 decided by a bench of three Judges, it has been held that the Public Premises Act overrides the provisions of the Delhi Rent Control Act. In that case it has been observed that the scope and object of the Public Premises Act is quite different from that of Rent Control Act and while the Public Premises Act operates in a very limited field in that it applies only to a limited nature of premises belonging only to particular sets of individuals, a particular set of juristic persons like Companies, Corporations or the Central Government, whereas the Rent Control Act is of much wider application and it applies to all private premises which do number fall within the limited exceptions indicated in Section 2 of the Public Premises Act and the object of the Rent Control Act is to afford special protection to all the tenants or private landlords or landlords who are neither a Corporation number Government or Corporate Bodies. It was, therefore, held that the Public Premises Act is a special Act as companypared to the Rent Control Act and it overrides the provisions of the Rent Control Act. The learned companynsel for the petitioners have assailed the companyrectness of the said decision and have submitted that it needs reconsideration. As regards rent companytrol legislation enacted by the State legislatures the position is well settled that such legislation fall within the ambit of entries 6, 7 and 13 List III of the Seventh Schedule to the Constitution See Indu Bhushan Bose v. Rama Sundari Devi Another, 1970 1 SCR 443 V Dhanpal Chettiars case supra Jai Singh Jairam Tyagi etc. v. Mamanchand Ratilal Agarwal Others, 1980 3 SCR 224 and Accountant and Secretarial Services Pvt. Ltd. Another v. Union of India Others, 1988 4 SCC 324. The Rent Control Act has been enacted by Parliament in relation to the Union Territory of Delhi in exercise of the legislative power companyferred under Article 246 4 of the Constitution which empowers Parliament to make laws with respect to any matter for any part of the territory of India number included in a State numberwithstanding that such matter is a matter enumerated in the State List. The Public Premises Act deals with Government property as well as property belonging to other legal entities mentioned in clauses 2 and 3 of Section 2 e of the Public Premises Act. In so far as it relates to eviction of unauthorised occupants from premises belonging to or taken on lease or requisitioned by or on behalf of the Central Government the Public Premises Act would fall within entry 32 of List I being law with respect to a property of the Union. The property belonging to the various legal entities mentioned in clauses 2 and 3 of Section 2 e of the Public Premises Act cannot be regarded as property of the Union and the Public Premises Act cannot be held to have been enacted under entry 32 of List I in respect of the said properties. In Accountant and Secretarial Services Pvt. Ltd. and Another v. Union of India and Others, supra this Court has held that the Public Premises Act, in relation to properties other than the properties belonging to the Central Government has been enacted under the companycurrent list. The learned Additional Solicitor General has placed reliance on the decision of this Court in Smt. Saiyada Mossarrat v. Hindustan Steel Ltd., 1989 1 SCC 272 wherein it has been held that with regard to the subject matter of speedy eviction of unauthorised occupants from properties belonging to a Government companypany, wherein the Central Government has more than fifty one per cent of the paid-up capital, the source of authority can be traced to entry 97 read with entry 95 of Union List List 1 . This Court has, however, affirmed the decision of the Division Bench of Madhya Pradesh High Court in L.S. Nair Hindustan Steel Ltd., AIR 1980 MP 106 wherein it has been held that insofar as the Public Premises Act deals with a lessee or licence of premises belonging to a Government companypany, the subject matter of the Act would be companyered by entries 6, 7 and 46 of List III. After quoting the observations of the Madhya Pradesh High Court in this regard, this Court has observed Learned companynsel for the petitioner has number been able to show that there is any infirmity in the reasoning of the High Court. This shows that the decision of this Court is rounded on the view mentioned above. Since the Act was held to be companyered by entries 6, 7 and 46 of List III, it was number necessary to invoke the residuary power of legislation under entry 97 of List I. The observations made by this Court that the source of authority in the matter of speedy eviction of unauthorised occupants from properties belonging to a Government companypany wherein the Central Government has more than fifty one per cent of the paid-up share capital can, in any case, be traced to entry 97 read with entry 95 of List I are obiter in nature only. There is, therefore, numberinconsistency between the decisions of this Court in Accountant and Secretarial Services Pvt. Ltd. supra and Smt. Saiyada Mossarrat case supra inasmuch as in both the decisions it is held that the Public Premises Act insofar as it deals with a lessee or licencee of premises other than premises belonging to the Central Government has been enacted in exercise of the legislative powers in respect of matters enumerated in the Concurrent List. We are in agreement with this view. This means that both the statutes, viz. the PubLic Premises Act and the Rent Control Act, have been enacted by the same legislature, Parliament, in exercise of the legislative powers in respect of the matters enumerated in the Concurrent List. We are, therefore, unable to accept the companytention of the learned Additional Solicitor General that the Public Premises Act, having been enacted by Parliament in exercise of legislative powers in respect of matters enumerated in the Union List would ipso-facto override the provisions of the Rent Control Act enacted in exercise of the legislative powers in respect of matters enumerated in the Concurrent List. In our opinion the question as to whether the provisions of the Public Premises Act override the provisions of the Rent Control Act will have to be companysidered in the light of the principles of statutory interpretion applicable to laws made by the same legislature. One such principle of statutory interpretation which is applied is companytained in the latin maxim leges posteriors priores companyterarias abrogant, later laws abrogate earlier companytrary. laws . This principle is subject to the exception embodied in the maxim generalia specialibus number derogant, a general provision does number derogate from a special one . This means that where the literal meaning of the general enactment companyers a situation for which specific provision is made by another enactment companytained in an earlier Act, it is presumed that the situation was intended to companytinue to be dealt with by the specific provision rather than the later general one Benion Statutory Interpretation p. 433-34 . The rationale of this rule is thus explained by this Court in the J.K. Cotton Spinning Weaving Mills Co. Ltd. The State of Uttar Pradesh Others, 1961 3 SCR 185 The rule that general provisions should yield to specific provisions is number an arbitrary principle made by lawyers Judges but springs from the companymon understanding of man and women that when the same person gives two directions one companyering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier directions should have effect. p. 94 In U.P. State Electricity Board Ors. v. Hari Shankar Jain Ors., 1979 1 SCR 355 this Court has observed In passing a special Act, Parliament devotes its entire companysideration to a particular subject. When a General Act is subsequently passed, it is logical to presume that Parliament has number repealed or modified the former Special Act unless it appears that the Special Act again received companysideration from Parliament. p. 366 In Life Insurance Corporation v.D.J. Bahadur, 1981 1 SCR 1083 Krishna Iyer, J. has pointed out In determining whether a statute is a special or a general one, the focus must be on the principal subject matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with liner points of law. p. 1127 The Public Premises Act is a later enactment, having been enacted on 23rd August, 1971, whereas the Rent Control Act was enacted on 31st December, 1958. It represents the later will of Parliament and should prevail over the Rent Control Act unless it can be said that the Public Premises Act is a general enactment, whereas the Rent Control Act is a special enactment and being a special enactment the Rent Control Act should prevail over the Public Premises Act. The submission of learned companynsel for the petitioners is that the Rent Control Act is a special enactment dealing with premises in occupation of tenants, whereas the Public Premises Act is a general enactment dealing with the occupants of Public Premises and that insofar as public premises in occupation of tenants are companycerned the provisions of the Rent Control Act would companytinue to apply and to that extent the provisions of the Public Premises Act would number be applicable. In support of this submission reliance has been placed on the number obstante clauses companytained in Section 14 and 22 of the Rent Control Act as well as the provisions companytained in Sections 50 and 54 of the said Act. On the other hand the learned companynsel for the respondents have urged that the Rent Control Act is a general enactment dealing with the relationship of landlord and tenant generally, whereas the Public Premises Act is a special enactment making provision for speedy recovery of possession of Public Premises in unauthorised occupation and that the provisions of the Public Premises Act, a later Special Act, will, therefore, override the provisions of the Rent Control Act in so far as they are applicable to Public Premises in occupation of persons who have companytinued in occupation after the lease has expired or has been determined. The learned companynsel for the respondents have placed reliance on Section 15 of the Public Premises Act which bars the jurisdiction of all companyrts in respect of the eviction of any person who is in unauthorised occupation of any Public Premises and other matters specified herein. It has been submitted that the said provision is also in the nature of a number obstante clause which gives overriding effect to the provisions of the Public Premises Act. Thus each side claims the enactment relied upon by it is a special statute and the other enactment is general and also invokes the number obstante clause companytained in the enactment relied upon. The Rent Control Act makes a departure from the general law regulating the relationship of landlord and tenant companytained in the Trnasfer of Property Act inasmuch as it makes provision for determination of standard rent, it specifies the grounds on which a landlord can seek the eviction of a tenant, it prescribes the forum for adjudication of disputes between landlords and tenants and the procedure which has to be followed in such proceedings. The rent Control Act can, therefore, be said to be a special statute regulating the relationship of landlord and tenant in the Union Territory of Delhi. The Public premises Act makes provision for a speedy machinery to secure eviction of unauthorised occupants from public premises. As opposed to the general law which provides for filing of a regular suit for recovery of possession of property in a companypetent Court and for trial of such a suit in accordance with the procedure laid down in the Code of Civil procedure, the Public Premises Act companyfers the power to pass an order or eviction of an unauthorised occupant in a public premises on a designated officer and prescribes the procedure to be followed by the said officer before passing such an order. Therefore, the Public Premises Act is also a special statute relating to eviction of unauthorised occupants from public premises. In other words, both the enactments, namely, the Rent Control Act and the Public Premises Act, are special statutes in relation to the matters dealt with therein. Since, the Public premises Act is a special statute and number a general enactment the exception companytained in the principle that a subsequent general law cannot derogate from an earlier special law cannot be invoked and in accordance with the principle that the later laws abrogate earlier companytrary laws, the Public Premises Act must prevail over the Rent Control Act. We arrive at the same companyclusion by applying the principle which is followed for resolving a companyflict between the provisions of two special enactments made by the same legislature. We may in this companytext refer to some of the cases which have companye before this Court where the provisions of two enactments made by the same legislature were found to be inconsistent and each enactment was claimed to be a special enactment and had a number obstante clause giving overriding effect to its provisions. In Shri Ram Narain v. The Simla Banking and Industrial Co. Ltd., 1956 SCR 603 this Court was companysidering the provisions companytained in the Banking Companies Act, 1949 and the Displaced Persons Debts Adjustment Act, 1951. Both the enactments companytained provisions giving overriding effect to the provisions of the enactment over any other law. This Court has observed Each enactment being a Special Act, the ordinary principle that a special law overrides a general law does number afford any clear solution in this case p. 613 It is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader companysiderations of the purpose and policy underlying the two Acts and the clear intendment companyveyed by the language of the relevant provisions therein. p. 615 Similarly in Kumaon Motor Owners Union Ltd. and Another The State of Uttar Pradesh, 1966 2 SCR 12 1 there was companyflict between the provisions companytained in Rule 131 2 gg and i of the Defence of India Rules, 1962 and Chapter IV-A of the Motor Vehicle Act, 1939. Section 68-B gave overriding effect to the provisions of Chapter IV A of the Motor Vehicle Act whereas Section 43 of the Defence of India Act, 1962, gave overriding effect to the provisions companytained in the Defence of India Rules. This Court held that the Defence of India Act was later than the Motor Vehicles Act and, therefore, if there was anything repugnant, the provisions of the later Act should prevail. This Court also looked into object behind the two statutes, namely, Defence of India Act and Motor Vehicles Act and on that basis also it was held that the provisions companytained in the Defence of India Rules would have an overriding effect over the provisions of the Motor Vehicles Act. In Sarwan Singh Another v. Kasturi Lal, 1977 2 SCR 421, the question for companysideration was, whether the provisions of Section 14A and Chapter IIIA of the Rent Control Act will prevail over those companytained in Sections 19 and 39 of the Slum Areas Improvement and Clearance Act, 1956. Section 14A and 25A of the Rent Control Act companytained number obstante clauses but in Section 54 of the Rent Control Act it was expressly provided that numberhing in the said Act shall effect the provisions of the Slum Areas Improvement and Clearance Act, 1956. Moreover in Section 19 of the Slum Areas Improvement and Clearance Act, 1956 mere was numberobstante clause and Section 39 of the said Act gave overriding effect to the provisions of the said enactment over any other Jaw. This Court has observed When two or more laws operate in the same field and each companytains a number-obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has numberconventional protocol, cases of such companyflict have to be decided in reference to the obeject and purpose of the laws under companysideration. p. 433 After examining the special and specific purpose underlying the enactment of Section 14A and Chapter IIIA of the Rent Control act and the fact that the Rent Control Act was a later enactment this Court held that the provisions of the Rent Control Act would prevail over those companytained in the Slum Areas Improvement and Clearance Act, 1956. The principle which emerges from these decisions is that in the case of inconsistency between the provisions of two enactments, both of which can be regarded as Special in nature, the companyflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment companyveyed by the language of the relevant provisions therein. We propose to companysider this matter in the light of this principle. The statement of objects and reasons for the enactment of the Rent Control Act, indicates that it has been enacted with a view a to devise a suitable machinery for expeditious adjudication of proceedings between landlords and tenants b to provide for the determination of the standard rent payable by tenants of the various categories of premises which should be fair to the tenants, and at the same time, provide incentive for keeping the existing houses in good repairs, and for further investment in house companystruction and c to give tenants a larger measure of protection against eviction. This indicates that the object underlying the Rent Control Act is to make provision for expeditious adjudication of disputes between landlords and tenants, determination of standard rent payable by tenants and giving protection against eviction to tenants. The premises belonging to the Government are excluded from the ambit of the Rent Control Act which means that the Act has been enacted primarily to regulate the private relationship between landlords and tenants with a view to companyfer certain benefits on the tenants and at the same time to balance the interest of the landlords by providing for expeditious adjudication of proceedings between landlords and tenant. As mentioned earlier, the Public Premises Act has been enacted with a view to provide for eviction of unauthorised occupants from public premises. In the statement of objects and reasons for this enactment reference has been made to the judicial decisions whereby by the 1958 Act was declared as unconstitutional and it has been mentioned The companyrt decisions, referred to above, have created serious difficulties for the Government inasmuch as the proceedings taken by the various Estate Officers appointed under the Act either for the eviction of persons who are in unauthorised occupation of public premises or for the recovery of rent or damages from such persons stand null and void. It has become impossible for Government to take expeditious action even inflagrant cases of unauthorised occupation of public premises and recovery of rent or damages for such unauthorised occupation. It is, therefore, companysidered imperative to restore a speedy machinery for the eviction of persons who are in unauthorised occupation of public premises keeping in view at the same time the necessity of companyplying with the provision of the Constitution and the judicial pronouncements, referred to above. This shows that the Public Premises Act has been enacted to deal with the mischief of rampant unauthorised occupation of public premises by providing a speedy machinery for the eviction of persons in unauthorised occupation. In order to secure this object the said Act prescribes the time period for the various steps which are enquired to be taken for securing eviction of the persons in unauthorised occupation The object underlying the enactment is to safeguard public interest by making available for public use premises belonging to Central Government, Companies in which the Central Government has substantial interest, Corporations owned or companytrolled by the Central Government and certain autonomous bodies and to prevent misuse of such premises. It would thus appear that, while the Rent Control Act is intended to deal with the general relationship of landlords and tenants in respect of premises other than government premises, the Public Premises Act is intended to deal with speedy recovery of possession of premises of public nature, i.e. property belonging to the Central Government, or Companies in which the Central Government has substantial interest or Corporations owned or companytrolled by the Central Government and certain companyporations, institutions, autonomous bodies and local authorities. The effect of giving overriding effect to the provisions of the Pubic Premises Act over the Rent Control Act, would be that buildings belonging to Companies Corporations and Autonomous bodies referred to in Section 2 e of the Public Permises Act would be excluded from the ambit of the Rent Control Act in the same manner as properties belonging to the Central Government. The reason underlying the exclusion of property belonging to the Government from the ambit of the Rent Control Act, is that Government while dealing with the citizens in respect of property belonging to it would number act for its own purpose as a private landlord but would act in public interest. What can be said with regard to Government in relation to property belonging to it can also be said with regard to companypanies, companyporations and other statutory bodies mentioned in Section 2 e of the Public Premises Act. In our opinion, therefore, keeping in view the object and purpose underlying both the enactments viz., the Rent Control Act and the Public Premises Act, the provisions of the Public Premises Act have to be companystrued as overriding the provisions companytained in the Rent Control Act. As regards the number obstante clauses companytained in Sections 14 and 22 and the provisions companytained in Sections 50 and 54 of the Rent Control Act, it may be stated that Parliament was aware of these provisions when it enacted the Public Premises Act companytained a specific provision in Section 15 barring jurisdiction of all companyrts which would include the Rent Controller under the Rent Control Act . This indicates that Parliament intended that the provisions of the Public Premises Act would prevail over the provisions of the Rent Control Act inspite of the above mentioned provisions companytained in the Rent Control Act. It has been urged by the learned companynsel for the petitioner that there is numberconflict between the provisions of the Rent Control Act and the Public Premises Act and that both the provisions can be given effect to without one overriding the other. In this regard, it has been pointed out that since numberprovisions has been made in the Public Premises Act for the termination of the lease, the provisions of the Rent Control Act can be held applicable upto the stage of termination of the lease, and thereafter, proceedings can be initiated for eviction under the provisions of the Public Premises Act. In support of this submission, reliance has been placed on Dhanpal Chettiars case supra , wherein it has been held that in view of the special provisions companytained in the State Rent Control Acts, it is numberlonger necessary to issue a numberice under Section 106 of the Transfer of Property Act to terminate the tenancy because inspite of the said numberice the tenant is entitled to companytinue in occupation by virtue of the provisions of the said Acts. In the said case, it has been further laid down that the relationship between the landlord and tenant companytinues till the passing of the order of eviction in accordance with the provisions of the Rent act, and therefore, for the eviction of the tenant in accordance with the law, an order of the companypetent Court under the Rent Control Act is necessary. This would mean that in order to evict a person who is companytinuing in occupation after the expiration or termination of his companytractual tenancy in accordance with law, two proceedings will have to be initiated. First, there will be proceedings under Rent Control Act before the Rent Controller followed by appeal before the Rent Control Tribunal and revision before the High Court. After these proceedings have ended they would be followed by proceedings under the Public Premises Act, before the Estate Officer and the Appellate Authority. In other words, persons in occupation of public premises would receive greater protection than tenants in premises owned by private persons. It companyld number be the intention of Parliament to companyfer this dual benefit on persons in occupation of public premises. It has also been urged that in Section 22 of the Rent Control Act, special provision has been made for recovery of possession of premises belonging to a companypany or other body companyporate or any local authority or any public institution and that premises belonging to companypanies, companyporations and autonomous bodies mentioned in clauses 2 and 3 of Section 2 e of the Public Premises would be companyered by the said provision and that in view of this special provision it is number necessary to have a further provision in the Public Premises Act for the recovery of possession belonging to those bodies, and therefore, the provisions of the Public Premises Act should be companyfined in their application to premises other than premises companyered by the Rent Control Act. Section 22 of the Rent Control Act provides as under Where the landlord in respect of any premises is any companypany or other body companyporate of any local authority or any public institution and the premises are required for the use of employees of such landlord or in the case of a public institution for the furtherance of its activities, then, numberwithstanding anything companytained in Section 14 or any other law, the Controller may, on an application made to him in this behalf by such landlord, place the landlord in vacant possession of such premises by evicting the tenant and every other person who may be in occupation thereof, if the Controller is satisfied-- a that the tenant to whom such premises were let for use as a residence at a time when he was in the service or employment of the landlord, has ceased to be in such service or employment or b that the tenant has acted in companytravention of the terms, express or implied, under which he was authorised to occupy such premises or c that any other person is in unauthorised occupation of such premises or d that the premises are required bona fide by the public institution for the furtherance of its activities. Explanation--For the purpose of this section, public institution includes any educational institutional, library, hospital and charitable dispensary but does number include any such institution set up by any private trust. The said special provision shows that, it enables recovery of possession or premises of which the landlord is a companypany or other body companyporate or any local authority or any public institution in certain circumstances viz., if the premises are required for the use of the employees or such landlord. In the case of public institutions possession can also be obtained under this provision if the premises are required for the furtherance of its activities. In other words, recovery of possession is permissible under this provision only in certain circumstances and for certain purposes. Inspite of this provision Parliament has companysidered it necessary tO extend the Public Premises Act to premises belonging to companypanies, companyporations and statutory bodies mentioned in Clauses 2 and 3 of Section 2 e by widening the definition of the expression public premises in Section 2 e of the Public Premises Act. The scope and ambit of the aforesaid power companyferred under the Public Premises Act cannot be restricted by reference to the provision companytained in Section 22 of the Rent Control Act. It has been urged by the learned companynsel for the petitioners that many of the companyporations referred to in Section 2 e 2 ii of the Public Premises Act, like the nationalised banks and the Life Insurance Corporation, are trading companyporations and under the provisions of the enactments whereby they are companystituted these companyporations are required to carry on their business with a view to earn profit, and that there is numberhing to preclude these companyporations to buy property in possession of tenants at a low price and after buying such property evict the tenants after terminating the tenancy and thereafter sell the said property at a much higher value because the value of property in possession of tenants is much less as companypared to vacant property. We are unable to cut down the scope of the provisions of the Public Premises Act on the basis of such an apprehension because as pointed out by this Court in M s Dwarkadas Marfatia and Sons Board of Trustees of the Port of Bombay, 1989 3 SCC Every activity of a public authority especially in the background of the assumption on which such authority enjoys immunity from the rigour of the Rent Act, must be informed by reason and guided by the public interest. All exercise of discretion or power by public authorities as the respondent, in respect of dealing with tenants in respect of which they have been treated separately and distinctly from other landlords on the assumption that they would number act as private landlords, must be judged by that standard. These observations were made in the companytext of the provisions of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 whereby exemption from the provisions of the Act has been granted to premises belonging to the Bombay Port Trust. The companysequence of giving overriding effect to the provisions of the Public Premises Act is that premises belonging to companypanies and statutory bodies referred to in Clauses 2 and 3 of Section 2 e of the Public Premises Act would be exempted from the provisions of the Rent Control Act. The actions of the companypanies and statutory bodies mentioned in Clauses 2 and 3 of Section 2 e of the Public Premises Act while dealing with their properties under the Pubic Premises Act will, therefore, have to be judged by the same standard. For the reasons aforesaid, we are unable to accept the companytention of the learned companynsel for the petitioners that the provisions companytained in the Public Premises Act cannot be applied to premises which fall within the ambit of the Rent Control Act. In our opinion, the provisions of the Public Premises Act, to the extent they companyer premises falling within the ambit of the Rent Control Act, override the provisions of the Rent Control Act and a person in unauthorised occupation of public premises under Section 2 e of the Act cannot invoke the protection of the Rent Control Act. In Civil Appeal No. 3723 of 1966, Shri Yogeshwer Prasad sought to raise companytentions relating to the particular facts of that case, namely, that the termination of the lease of the appellant is vitiated by mala fides and that the said appellant companyld number be held to be a person in unauthorised occupation of the premises and further that the proceedings have number been taken in accordance with the provisions of the Public Premises Act. We find that in this case the appellant filed a writ petition in the High Court directly against the order passed by the Estate Officer without filing an appeal against the said order before the Appellate Authority. The High Court has held that the question of mala fides is a disputed question of fact and the same companyld number be gone into in proceedings under Article 226 of the Constitution. We are in agreement of the said view of the High Court. As regards the other companytentions we are of the view that the appellant cannot be permitted to agitate matters which companyld be agitated by him in appeal before the Appellate Authority. In Civil Appeals Nos. 2368 and 2369 of 1986 the learned companynsel for the respondents have raised a preliminary objection with regard to the maintainability of these appeals on the ground that the appellants, on account of their companyduct, are number entitled to invoke the jurisdiction of this Court under Article 136 of the Constitution. The submission of the learned companynsel is that before initiating proceedings under the provisions of the Public Premises Act the respondent Bank, viz. the Punjab National Bank, had initiated proceedings under the Rent Control Act for the eviction of the appellants had in those proceedings the appellants had filed an objection with regard to the maintainability of the eviction proceedings under the Rent Control Act before the Additional Rent Controller and thereupon the Respondent Bank initiated proceedings for eviction of the appellants under the Public Premises Act and thereafter the proceedings initiated by the respondent Bank under the Rent Control Act were dismissed by the Additional Rent Controller by orders dated the 6th August, 1989. The learned companynsel of the respondents have urged that the appellants, having raised the objection against the maintainability of the proceedings for eviction under the Rent Control Act on the ground that proceedings companyld only be maintained under the provisions of the Public Premises Act and having got them dismissed, cannot turn round and raise an objection that the proceedings for eviction under the Public Premises Act are number maintainable and the proceedings can only be taken under the Rent Control Act. The learned companynsel for the appellants have submitted that special leave to appeal was granted by this Court after numberice to the respondents and at that stage the respondents had raised this objection but this Court granted special leave and it is number permissible for the respondents to agitate this question number. The orders dated the 6th August, 1989 which were passed by the Additional Rent Controller in the proceedings for eviction initiated by the respondent Bank under Rent Control Act against the appellants in these appeals have been placed on record by the respondents and from the said orders it appears that in the proceedings initiated under the Rent Control Act the appellants had raised a plea that the premises in question had been declared public premises under the Public Premises Act and in view of that the proceedings under the Rent Control Act were number companypetent. The said orders also show that the Additional Rent Controller dismissed the proceedings for eviction under the Rent Control Act on the view that the Public Premises Act is applicable to premises in question and his jurisdiction was excluded. This would show that the proceedings which were initiated by the Respondent Bank for the eviction of the appellants under the Rent Control Act were dismissed as number maintainable on the ground that the Rent Control Act was number applicable to the premises and the premises are governed by the provisions of the Public Premises Act. This finding was recorded by the Additional Rent Controller in view of the objection raised by the appellants with regard to the maintainability of those proceedings. In other words, the appellants succeeded in those proceedings on the basis of their plea that the premises were number governed by the Rent Control Act and were governed by the provisions of the Public Premises Act. Having got the proceedings under the Rent Control Act dismissed the appellants are number raising the plea that the proceedings under the Public Premises Act are number maintainable and that the only remedy available is under the Rent Control Act. This companyduct of the appellants would have disentitled them from invoking the jurisdiction of this Court under Article 136 of the Constitution. Since we are of the view that the appellants cannot succeed on the merits, we do number propose to dismiss the appeals on this preliminary ground. In the result the appeals and the writ petition are dismissed. There will be numberorder as to companyts. The appellants in Civil Appeals Nos. 2368 and 2369 of 1986 had been dispossessed from the premises in their occupation after the dismissal of their appeals by the Additional District Judge. During the pendency of these appeals interim orders were passed by this Court whereunder possession of a part of the premises was restored to the appellants. Since these appeals have been dismissed the appellants in both the appeals are directed to handover the possession of the portion of the premises in their occupation to the Respondent Bank within one month. In Civil Appeal No. 3725 of 1986 and Writ Petition No. 864 of 1985, this Court had passed interim orders staying the eviction of the petitioners in those matters. Since the appeal and the writ petition are being dismissed the said interim orders shall stand vacated.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 23 of 1958. Appeal by special leave from the decision dated September 29, 1956, of the Labour Appellate Tribunal, Bombay, in Appeal Mad. No. 96 of 1956, arising out of the Award dated April 9, 1956, of the Industrial Tribunal., Madras, in I.D. No. 52 of 1954. V. Viswanatha Sastri, and Naunit Lal, for the appellants. S. Venkataraman and M. K. Ramamurth, for the respondents. 1960. February, 22. The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-The appellant, the Tinnevelli-Tuticorin Electric Supply Co., Ltd., Tuticorin, is an electric supply undertaking, and it carries on its business as a licensee under the State Government of Madras subject to the provisions of the Indian Electricity Act, 1910 Act 9 of 1910 and the Electric Supply Act, 1948 Act 54 of 1948 . This latter Act will hereinafter be called the Act. The business of the appellant companysists of buying electric supply from the State Hydro-electric Projects and of supplying the same to companysumers within the areas specified in its licence this area is in and around Tinnevelli and Tuticorin Municipalities. The appellants workmen hereinafter called the respondents made several demands in respect of their terms of employment. These demands gave rise to an industrial dispute which was referred by the Madras Government to the Industrial Tribunal at Madurai for adjudication under s. 10 1 c of the Industrial Disputes Act, 1947 XIV of 1947 . Amongst the items thus referred for adjudication was included the respondents claim for additional bonus for the year 1952- Without prejudice to its companytention that the appellant was number liable to pay bonus it had in fact voluntarily paid two months basic wages by way of bonus to the respondents. The respondents, however, claimed additional bonus and this claim was one of the items of dispute referred to the tribunal for its adjudication. Before the industrial tribunal the appellant companytended that since it was working as a licensee under the Act numberclaim for bonus was admissible outside the provisions of the Act. In support of this plea the appellant relied on the scheme of the Act which restricted the profit-making of the electricity companycerns to a prescribed limit with a possibility of a surplus only in cases of overcharging provided for in the rules. The appellants case was that, having regard to the scheme, object and the background of the Act under which the appellant was carrying on its business, the respondents claim for additional bonus was wholly misconceived. No claim for bonus can be entertained, it was urged on behalf of the appellant, without reference to the provisions of the Act which governs the business of the appellant. The tribunal, however, rejected the appellants companytentions and held that the appellant was liable to pay two months basic wages as additional bonus to the respondents. This award was passed on March 4, 1955. Against this award the appellant preferred an appeal, No. 56 of 1955, to the Labour Appellate Tribunal, and companytended that numberadditional bonus should have been awarded in the absence of proof of an excess of clear profits over reasonable return it was the appellants case that it was only from excess of clear profits over reasonable return as defined by the Act that bonus can be legitimately awarded to the respondents. It appears that about this time a number of appeals raising the same question were pending before the Labour Appellate Tribunal, and decisions given by the Labour Appellate Tribunal showed divergence of opinion on the question about the effect of the Act in respect of the claim for bonus made by employees of electricity companycerns and undertakings. That is why the Chairman of the Labour Appellate Tribunal issued an administrative order that all appeals which raised the said question should be grouped together and posted for hearing before a specially companystituted fuller bench of five members. The Chairman thought that a decision by a fuller bench would finally resolve the apparent companyflict disclosed in several decisions pronounced thereto, and give proper guidance to the tribunals in future. The special bench of the appellate tribunal then heard the group of appeals including the appeal preferred by the appellant. It held that bonus companyld be ordered to be paid numberwithstanding the limitations of the Act, and that the quantum of bonus should be determined even in the case of electricity companycerns or undertakings by the application of the Full Bench formula laid down in that behalf. Having decided the question of law in this manner, the appeals were remanded to the respective benches of the Labour Appellate Tribunal for disposal in accordance with law. The appeal preferred by the appellant was in due companyrse taken up by the Industrial Tribunal at Madras the Industrial Tribunal at Madurai having been in the meanwhile abolished and the appeals on its file transferred to the Industrial Tribunal at Madras. This latter tribunal companysidered the merits of the companytentions raised by the parties, applied the Full Bench formula, and ultimately passed an award on April 9, 1956, directing the appellant to pay an additional bonus of two months basic wages to the respondents. Thereupon the appellant preferred another appeal to the Labour Appellate Tribunal, and it was numbered as Appeal Madras No. 96 of 1956. Certain companytentions were raised before the appellate tribunal on the merits, and it was urged that the direction to pay an additional bonus of two months basic wages was improper and unjustified. The appellate tribunal negatived most of the companytentions raised by the appellant, but it was satisfied that the calculation made by the tribunal in regard to the quantum of available surplus was erroneous, and so, after rectifying the said error, it held that the additional bonus which the appellant should pay to the respondents was one months basic wage. It is against this decision of the appellate tribunal that the present appeal by special leave has been filed by the appellant before this Court. The main question which the appeal raises for our decision is whether the fuller bench of the Labour Appellate Tribunal was justified in holding that the Full Bench formula can and should be applied in adjudicating upon the respondents claim for bonus against the appellant. Incidentally, we may point out that the fuller bench of the Labour Appellate Tribunal in the case of U. P. Electricity Supply Co. Ltd. Ors. v. Their Workmen 1 has decided two questions of law. The first was in regard to the applicability of the Full Bench formula to the employees claim for bonus against their employers carrying on the business of the supply of electricity, and the second was in regard to the extent of the statutory depreciation allowed by the Full Bench formula. The question was whether it should number include initial depreciation and additional depreciation which are given for the purpose of allowing relief in the matter of taxation under s. 10 2 vi-b of the Income-tax Act. The fuller bench had decided that in allowing a prior charge in the 1 1955 L.A.C. 659. working of the formula it is only the numbermal incometax depreciation including multiple shift depreciation that should be allowed. The companyrectness of this latter decision was challenged before this Court in Sree Meenakshi Mills Ltd. v. Their Workmen 1 but the challenge failed and the decision of the fuller bench was companyfirmed. In the present appeal it is the companyrectness of the fuller bench decision on the first question which is challenged before us. Let us being by stating briefly the appellants companytention. It is urged on behalf of the appellant that it is only where the clear profits are in excess of the reasonable return under the Act that a case for the payment of bonus can really arise in regard to the electricity companycerns and undertakings. The Act is a self-contained companye intended to regulate the business and affairs of electricity companycerns including the claim of their employees for bonus, and as such an industrial dispute between such companycerns and their employees in regard to bonus must be determined solely by reference to the provisions of the Act and and number by the application of the Full Bench formula. As to the quantum of bonus which should be awarded it would depend upon the circumstances in each case but it is urged that it may as an ad hoe measure be decided that 1/4th of the excess between clear profits and the reasonable return may be taken as a fair quantum of bonus which electricity companycerns should be ordered to pay to their employees. Before dealing with the validity of this argument it is necessary to examine the scheme of the Act. - Let us first companysider some of the provisions in the Indian Electricity Act 9 of 1910 which may be relevant. Section 3 2 d i provides that the State Government may, on an application made in the prescribed form, and on payment of the prescribed fee if any , grant, after companysulting the State Electricity Board, a licence to any person, and that the said licence may prescribe such terms as to the limits within which and companyditions under which, the supply ,of energy is to be companypulsory or permissive, and generally as to such matters as the State Govern- 1 1458 S. C. R. 878. ment may think fit. Section 3 f provides that the provisions companytained in the Schedule shall be deemed to be Incorporated with, and to form part of, every licence granted under this Part, except as in the manner therein described. Section 4 1 b empowers the State Government inter alia to revoke the licence where the licensee breaks any of the terms or the companyditions of his licence the breach of which is expressly declared by such licence to render it liable to revocation. Section 7 1 provides to the authorities specified in it option to purchase the undertaking. Section 11 requires the licensee to prepare and render to the State Government or to such authority as the State Government may appoint in that behalf, on or before the prescribed date in each year an annual statement of account of his undertaking made up to such date, in such form and companytaining such particulars, as may be prescribed in that behalf. Section 22 imposes on the licensee obligation to supply energy subject to the companyditions prescribed and s. 23 provides that a licensee shall number, in making any agreement for the supply of energy, show undue preference to any person. The licensee cannot also charge for such supply any rates higher than those permitted. The appropriate Government is authorised to fix the maximum charges, and by appropriate rules both the maximum and minimum charges have been prescribed. These are the relevant provisions of Act 9 of 1910. Let us number refer to some of the relevant provisions of the Act. Section 57 provides the licensees charges to companysumers. According to it the provisions of the Sixth Schedule and the Seventh Schedule shall be deemed to be incorporated in the licence of every licensee, number being a local authority, in the manner specified by it. This section further provides inter alia that as from the specified date the licensee shall companyply with the provisions of the said Schedules and number provisions of Act 9 of 1910, and the licence granted to him thereunder and of any other law, agreement or instrument applicable to the licensee shall, in relation to the licence, be void and of numbereffect in so far as they are inconsistent with the provisions of s. 57A and the said Schedules. Section 57 deals with the licensees charges to the companysumers and lays down provisions which shall have effect in relation to the licence where the provisions of the Sixth Schedule and the table appended to the Seventh Schedule are under sub-s. 1 deemed to be incorporated in the said licence. These provisions relate to the appointment of the Board and the rating companymittee. Section 57A prescribes the principles and the procedure which has to be followed by the rating companymittee in making its report to the State Government regarding the charges for electricity which the licensee may make to any class or classes of companysumers. This provision gives us an idea as to the object which the Legislature had in mind in ultimately fixing the minimum and maximum rates chargeable to the companysumers. Sections 78 and 79 provide for power to make rules and regulations. Nine Schedules are attached to the Act. Schedule Six deals with the financial principles and their application Schedule Seven deals with the depreciation of assets Schedule Eight provides for the determination of companyt of production of electricity at generating stations and schedule Nine prescribes the method for allocation of companyts of production at generating stations. It is necessary at this stage to refer briefly to some of the provisions companytained in the Sixth Schedule, because Mr. Viswanatha Sastri, for the appellant, has relied on the scheme of the said Schedule in support of his principal argument. These provisions prescribe the financial principles which have to be followed by the electricity companycerns and undertakings companyered by the Act. It is urged by the appellant that these principles along with the rest of the Schedules and the provisions of the Act companystitute a self-contained companye which govern the business and the financial affairs of electricity companycerns, and as such even the claim of the appellants employees for bonus must be dealt with in the light of these provisions. Paragraph 1 of Sixth Schedule provides- Notwithstanding anything companytained in the Indian Electricity Act, 1910 9 of 1910 except sub-s. 2 of s. 22A , and the provisions In the licence of a licensee, the licensee shall so adjust his rates for the sale of electricity whether by enhancing or reducing them that his clear profits in any year of account shall number, as far as possible, exceed the amount of reasonable return. This provision is made subject to four provisos which it is unnecessary to mention. Paragraph 2 reads thus- II. 1 If the clear profit of a licensee in any year of account is in excess of the amount of reasonable return, one-third of such excess, number exceeding five per cent. of the amount of reasonable return, shall be at the disposal of the undertaking. Of the balance of the excess, one-half shall be appropriated to a reserve which shall be called the Tariffs and Dividends Control Reserve and the remaining half shall either be distributed in the form of a proportional rebate on the amounts companylected from the sale of electricity and meter rentals or carried forward in the accounts of the licensee for distribution to the companysumers in future, in such manner as the State Government may direct. The Tariffs and Dividend Control Reserve shall be available for disposal by the licensee only to the extent by which the clear profit is less than the reasonable return in any year of account. On the purchase of the undertaking under the terms of its licence any balance remaining in the Tariffs and Dividends Control Reserve shall be handed over to the purchaser and maintained as such Tariffs and Dividends Control Reserve. Paragraph 3 provides for the creation from existing reserve or from the revenue of the undertaking a reserve to be called Contingencies Reserve. Paragraph 4 prescribes the manner in which the licensee shall appropriate to Contingencies Reserve from the revenues of each year of account. Paragraph 6 directs that there shall be allowed in each year in respect of depreciation of fixed assets employed in the business of electricity supply such an amount as would if set aside annually throughout the prescribed period and accumulated at companypound interest at 4 per cent. per anum, produce by the end of the prescribed period amount equal to 90 per cent. of the original companyt of the asset after taking into account the sums already written off or set aside in the books of the undertaking annual interest on the accumulated balance will be allowed as expense from revenue as well as the annual incremental deposit. Paragraph 7 deals with assets which have ceased to be avilable for use through obsolescence, inadequacy, superfluity or for any other reason, and it allows the licensee to describe the said assets as numberlonger in use, and numberfurther depreciation in respect thereof shall be allowed as a charge against the revenue. Paragraph 8 prohibits any further depreciation where an asset has been written down in the books of the undertaking to 10 per cent. or less of its original companyt. Under paragraph 9, where a fixed asset is sold for a price exceeding its written down companyt, the excess has to be credited to the Contingencies Reserve. Paragraph 10 requires the companysent of the State Government to carry sums to a reserve or to declare a dividend in excess of 3 per cent. on share capital or other matters specified therein. Paragraph 13 imposes limitations in respect -of ordinary remunerations of managing agents whereas paragraph 14 provides that the Board of Directors shall number companytain more than 10 directors and paragraph 15 prescribes the way in which the licensee can make any capital expenditure which exceeds Rs. 25,000 or 2 per cent. of the capital base within three years before the next option of purchase under the licence arises. Paragraph 16 companytains an arbitration clause. Paragraph 17 gives definitions for the purpose of this Schedule. Capital base is defined by paragraph 17 1 clear profit is defined by paragraph 17 2 as meaning the difference between the amount of income and the sum of expenditure plus specific appropriations made up in each case as prescribed in several sub-clauses of clauses a , b and c . It is necessary to refer to two sub-clauses under clause b - other expenses admissible under the law for the time being in force in the assessment of, Indian Income-tax and arising from and ancillary or incidental to the business of electricity supply companytributions to Provident Fund, staff pension, gratuity and apprentice and other training schemes. Paragraph 17 9 defines a reasonable return as meaning - in respect of any year of account, the sum of the following a the amount found by applying the standard rate to the capital base at the end of that year b the income derived from invesments than those made under paragraph IV of this Schedule c an amount equal to one half of one per centum on any loans advanced by the Board under subparagraph 2 of paragraph I of the First Schedule. One of the points which we have to decide in the present appeal is whether an amount of bonus paid by the employer to his employees is included under paragraph 17 2 b xi of the Sixth Schdule. It would thus be clear that the provisions of the Act in general and those of the Sixth Schedule in particular, are numberdoubt intended to companytrol and regulate the rates chargeable to companysumers and to provide the method and the machinery by which the electrical system of the companyntry companyld be properly companyrdinated and integrated. The rates chargeable are fixed, so is a reasonable return provided for. But it is number as if the Act intends to guarantee a minimum return to the undertaking. What it purports to do is to prohibit - a return higher than the one specified. Appropriations permissible under revenue receipts are also defined and enumerated and a clear profit as companytemplated by the Act is also prescribed and defined. Large powers have been given to the Electricity Authority, Boards and Councils for the purpose of canalising the activities of the companycerns as well as for adjusting their activities for changing companyditions and circumstances. Just as the Act has made provision for the companytrol of rates chargeable to companysumers its policy also is to give a fair deal to the undertaking and persons engaged in the business of supplying electricity. It is with this twin object that a workingsheet is required to be prepared under the provisions of the Act. It is, however, clear that the working-sheet thus prescribed is essentially different from the balance-sheet and profit and loss account which companypanies keep under the provisions of the Companies Act. The determination of clear profits on the basis of the working-sheet proceeds on the companysideration of previous losses, companytributions towards the arrears of depreciation and several appropriations authorised by the State Government, matters which have numberrelevance to companymercial accounting. The principles of companymercial accounting on which the balance, sheets are prepared and profit and loss account made are very different from the principles on which the working-sheet as specified in the Act is required to be prepared. The question which arises for our decision is whether the appellant is right in companytending that the present dispute arising from the respondents claim for bonus must be decided by the provisions of the Act alone and that the Full Bench formula is wholly inapplicable for the purpose. In dealing with this companytention it is necessary to bear in mind that the fields companyered by the Full Bench formula and by the provisions of the Act are entirely different. The Full Bench formula has been evolved by industrial adjudication for the purpose of doing social justice to workmen and it is. number well-established that the workmens claim for bonus is justified on the ground that they companytribute to the employers profit and are entitled to claim a share in the said profit with a view to fill the gap between their actual wages and the living wage which they aspire to earn. On the other hand, the Act does number purport to deal with this problem at all. It is significant that though the Act makes detailed provisions in respect of matters intended to be companyered by it, it does number refer to the wages which the employer may have to pay to his employees. Can it be said that in fixing the wage. structure as between an electricity undertaking and its employees companysiderations of social justice would be irrelevant? In fixing such wage-structure numbere of the provisions of the Act can afford the slightest assistance to industrial tribunals. That task must be attempted by the tribunals in the light of principles of social justice and other relevant companysiderations such as the capacity of the employer to pay and the wages received by employees in companyparable trades in the same region. Just as the problem of wage-structure has to be solved in the case of electricity companycerns apart from the provisions of the Act and in the light of the relevant industrial principles, so must the problem of bonus be resolved in the like manner. There is really numberconflict between the Act and the principles of industrial adjudication. In fact they companyer different fields and their relevance and validity is beyond question in their respective fields. As we have just indicated the method of accounting required by the Act in preparing the working-sheet is substantially different from the companymercial method of accounting which yields the gross profits in the form of profit and loss account. Determination of gross profit is the first step which industrial tribunals take in applying the Full Bench formula. Such gross profit cannot be ascertained from the working-sheet prepared under the Act. It is number denied that the appellant has to keep accounts under the Companies Act on a companymercial basis. That being so, in dealing with the respondents claim for bonus, it is the balance-sheet and the profit and loss account , prepared by the appellant that must be taken as the basis in the present proceedings, and that is precisely what the tribunals below have done. Therefore, we are satisfied that the Labour Appellate Tribunal was right in companying to the companyclusion that the respondents claim for bonus must be governed by the application of the Full Bench formula. In this companynection it may be useful to refer to the decision of this Court in the case of Baroda Borough Municipality v. Its Workmen 1 . One of the points raised on behalf of the Baroda Borough Municipality in resisting the claim for bonus by its workmen was that the scheme of the Bombay Municipal Boroughs Act 18 of 1925 by which the Municipality was governed did number permit the making of any claim for bonus and so it was number open to the, labour companyrt or tribunal to direct payment of bonus to municipal employees.- This argument was rejected. The demand for bonus as an industrial claim , it was 1 1957 S.C.R. 33. observed, is number dealt with by the Municipal Act it is dealt with by the Industrial Disputes Act, 1947. Therefore, it is number a relevant companysideration whether there are provisions in the Municipal Act with regard to bonus. The provisions of the Municipal Act are relevant only for the purpose of determining the quality or the nature of the municipal property or fund those provisions cannot be stretched beyond their limited purpose for defeating a claim of bonus . That is why this Court came to the companyclusion that the absence of provisions in the Municipal Acts for payment of bonus to municipal employees was number a companysideration which was either determinative or companyclusive of the question at issue before it. The next question which arises is whether a claim for bonus can be said to be included under paragraph 17 2 b xi . This provision includes under expenditure other expenses admissible under the law for the time being in force in the assessment of Indian Income-tax and arising from. and ancillary or incidental to, the business of electricity supply. It is admitted that bonus paid by an employer to his employees companystitutes expenses admissible under section 10 2 vi of the Income-tax Act, but it is urged that it is number an expense which can be said to arise from, and ancillary or incidental to, the business of electricity supply. The argument is that cl. xi lays down two tests, one of which is satisfied viz., that it is expense admissible under the lndian Income-tax Act, but the other is number satisfied, and so the clause is inapplicable to the amount paid by way of bonus. The appellate tribunal has held that even the other test is satisfied and that the expenditure in question can be said to arise from, or to be ancillary, or incidental to, the business of electricity supply. In our opinion, it is difficult to accept the appellants argument that the companystruction placed by the appellate tribunal on the latter part of this clause is number reasonably possible. Besides, it may be relevant to point out that by a subsequent amendment made in 1957 cl. xiii has been added under paragraph 17 2 b of the Sixth Schedule. This clause which is numbered xiii reads thus Bonus paid to the employees it of the undertakinga where any dispute regarding such bonus has been referred to any tribunal or other authority under any law for the time being in force, relating to industrial or labour disputes in accordance with the decision of such tribunal or authority b in any other case, with the approval of the State Government . After the insertion of this clause there can be numberdoubt that the amount paid by the employer to his employees by way of bonus would definitely be admissible expenditure under paragraph 17 2 b . In our opinion, the insertion of this clause can be more reasonably explained on the assumption that the Legislature has thereby clarified its original intention. Even when cl. xi was enacted the intention was to include claims of bonus under expenses companyered by the said clause, but in order to remove any possible doubt the Legislature thought it better to provide specifically for bonus under a separate category. Otherwise, it is difficult to appreciate how companytributions to Provident Fund were treated as admissible expenditure all the time since they were companyered by cl. xii and bonus companyld number have been treated as admissible expenditure under cl. xi . That is why we are on the whole prepared to agree with the companystruction put upon cl. xi by the appellate tribunal. If that be the true position then bonus has always been an admissible expenditure under the scheme of the Act, and as such there is numberconflict between the scheme of the Act and the claim made by the respondents in the present case. Incidentally, we may add that this point appears to have been companyceded by the appellant before the appellate tribunal. We must accordingly hold that the appellate tribunal was right in companying to the companyclusion that the Full Bench formula applied in adjudicating upon the respondents claim for bonus against the appellant in the present proceedings. As we have already indicated, before the fuller bench reached this decision there was a companyflict of opinion in the decisions of the Labour Appellate Tribunals, but in view of our companyclusion it is unnecessary to refer to the said earlier decisions. That takes us to the merits of the award. The first point is in regard to the appellants claim for rehabilitation. -Before the Labour Appellate Tribunal it was fairly companyceded by the respondents that at least income-tax at seven annas in a rupee on the gross profits less depreciation, and also a companytingency reserve of Rs. 6,047 have to be allowed in arriving at the figure of net available surplus for the purpose of bonus payable to the respondents and that in regard to numbermal statutory depreciation the companyrect figure must be taken to be Rs. 99,038 instead of Rs. 90,393 as given by the industrial tribunal. Then, as to the rehabilitation the appellant has led numberevidence at all and so the appellate tribunal refused to grant any sum by way of rehabilitation in addition to the total amount of Rs. 1,13,950. In our opinion, the appellate tribunal was right in holding that the adoption of a factor of 2-7 for all assets purchased before 1945 was number justified, and that the adoption of the figures of the estimated life of the assets from the Schedule to the Electric Supply Act without even deducting the respective portions of the life of the assets which had already expired was equally unjustified. In that view of the matter we do number see how the appellant can make any grievance against the finding of the appellate tribunal on the question of rehabilitation. The appellate tribunal has fairly observed that, in future if a dispute arises between the appellant and its employees, the appellant may substantiate its claim for rehabilitation by leading proper evidence. The claim of the appellant for the triple shift allowance in respect of the mains has been allowed by the appellate tribunal and there is numberdispute in respect of it but it is urged that rule 8 of the Incometax Rules justifies the appellants claim in respect of all its electric plant and machinery under Entry IIIE 1 . Rule 8 provides that the allowance under s. 10 2 vi of the Act in respect of depreciation of buildings, machinery, plant or furniture shall be a percentage of the written down value or original companyt, as the case may be, equal to one-twelfth the number shown in the companyresponding entry in the second companyumn of the following statement. There are two provisos to this rule which it is number necessary to set out. The appellant makes a claim under IIIE 1 which deals with electric plant, machinery and boilers, whereas, according to the respondents, the appellants case in this behalf falls under IIIC 4 and 5 which respectively deal with underground cables and wires and overhead cables, and wires. The argument for the respondents is that in respect of these items the appellants claim is inadmissible. In support of this argument the respondents rely upon the remark against item 3 on page 8 of the Rules. This remark would show that the benefit claimed by the appellant does number apply to an item of machinery or plant specifically excepted by the letters N, E, S, A being shown against it. These letters are the companytraction of the expression No Extra Shift Allowance . There is numberdoubt that these letters are to be found against items in IIIC 4 and 5 . Therefore, the point which arose for decision before the appellate tribunal was whether the appellants claim falls under IIIE 1 or IIIC 4 and 5 . The appellate tribunal has observed that the appellant made numberattempt to show that any such claim for shift depreciation in respect of its cables and wires had been put forward by it before the income-tax authorities, or that it was held to be admissible by them. It has also observed that if the appellants case was true that the cables and wires fell under IIIE 1 it was difficult to understand why separate provision should have been made in respect of depreciation of cables and wires under IIIC 4 and 5 . Besides, the appellate tribunal was number satisfied that such cables and wires would depreciate in value to a materially greater extent when electrical energy is allowed to pass through them for more than one shift. That is why, on the materials as they were available on the record, the appellate tribunal saw numberreason why the appellant should be allowed any extra shift depreciation in respect of underground and overhead cables by way of a prior charge. The appellants claim for the provision of Rs. 23,516 in that behalf was therefore, rejected. It would thus be seen that the appellant seeks to claim this amount by way of prior charge and in substance this claim has been rejected by the appellate tribunal on the ground that sufficient material has number been placed before it by the appellant on which the claim companyld be examined and granted. In such a case we do number see how we can interfere in favour of the appellant. The present decision will number preclude the appellant from making a similar claim in future and justifying it by leading proper evidence.

N. Grover, J. This is an appeal from a judgment of the Rajasthan High Court in which the sole question for determination is whether the agreements which were executed between the appellant and the respondent fulfil the requirements of Article 299 of the Constitution. In a suit filed by the respondent against the appellant for recovery of Rs. 86,000 as damages for breach of companytract on the basis of agreements which, were executed by the Inspector-General of Police Rajasthan a preliminary issue was framed to the following effect Whether the agreements are number in accordance with Article 299 of the Constitution of India and hence the suit is number maintainable? The trial companyrt held that the agreements companyplied with the provisions of the aforesaid Article. Its decision was upheld by the High Court where the matter was taken on the revisional side. Para. 1 of the main agreement which was executed on March 22, 1960 was as follows An agreement made on 22nd day of March, 1960 between Messrs. Davecos Garments, Jaipur hereinafter called the approved Contractor which expression shall, where the companytext so admits, be deemed to include his heirs, successors, executors and administrators of the one part and the Governor of the State of Rajasthan hereinafter called the Government which expression shall, where the companytext so admits be deemed to include his successors in office and assigns of the other part. In Clause 4 1 it was clearly provided that the payment was to be made by the Government through the Inspector-General of Police, Rajasthan, at the rate set forth in the schedule. In Clause 3 a the Government agreed that if the companytractor duly fabricated the companytracted articles and companyplied with the terms and companyditions of the companytract the Government, through the Inspector General of Police, would pay to the companytractor the amount payable for each and every companysignment. The companycluding portion of the agreement was as follows In witness whereof the parties hereto have set their hand on 22nd day of March, 1960. Signature of the approved companytractor. Accepted. Witness 1 Witness 2 Sd. L G. of Police, Rajasthan, Jaipur. Article 299 1 of the Constitution provides that all companytracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President or by the Governor of the State, as the case may be, and all such companytracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such person and in such manner as he may direct or authorise. It is companymon ground that the agreement Annexure B was expressed to be made by the Governor of the State of Rajasthan who was to be called the Government in its other clauses and that the Inspector General of Police had been duly authorised to execute the same on his behalf. The sole objection taken was to the form of execution inasmuch as it was number stated in so many words that the Inspector General of Police had signed the agreement on behalf of the Governor This gave rise to the companytention which was pressed in the companyrts below and before us that all the requirements of Article 299 of the Constitution were number satisfied. The present appeal stands companycluded by the judgment of this Court in Union of India v. A. L. Rallia Ram , in which it was held that the letter of acceptance of the tender sign ed by the Chief Director of Purchases fulfilled all the requirements of Section 175 3 of the Government of India Act, 1935. That section employ ed the same language as is to be found in Article 299 1 of the Constitution. The Chief Director of Purchases had subscribed bis signature in his official designation and had number stated in the description that the companytract was executed on behalf of the Governor-General but the companyrt found that on a fair reading of the companytents of the letter in the light of the obligations undertaken there under it would be reasonable to hold that the companytract was executed on behalf of the Governor-General. It was added that numberrule made by the Governor-General had been placed before the companyrt showing that in executing a companytract for the sale of war disposal goods the officer authorised in that behalf must describe himself as signing on behalf of the Governor-General of India.

RAJENDRA BABU, J. LITTTTTTTJ By an order made on July 6, 1996, this Court finalised the scheme of rehabilitation of Ashok Paper Mills in Darbhanga in State of Bihar. However, that scheme companyld number be given effect to due to one reason or the other and this Court on April 26, 1999 companysidered various aspects of the matter and made an order on I.A.No.13 in W.P. C No. 174/91. After companysidering the various circumstances, this Court directed that State of Bihar should stand guarantee for the supply of four diesel generating sets to the tune of three crores so that the difficulty in getting the power supply would stand obviated and the companypany should give the proposal to the State of Bihar in that regard upon which appropriate orders should be passed by the Government. It was specifically numbericed that the petitioner union, though was all along prepared to enter into the agreement but some how it companyld number be done but subsequently another registered union, viz., Ashok Paper Mills Mazdoor Panchayat Union entered into an agreement. This Court stated on the agreement entered into with the latter Union in the following terms Without delving into the question as to whether the Kamgar Union itself did number participate in the proceedings and did number enter into an agreement or the Union was prevented by some other process since a registered Union has already entered into an agreement and the such Union has membership of 243, we think it appropriate to hold that the said agreement would be valid agreement for the purpose of implementation of the scheme. But at the same time, we also grant an opportunity to Kamgar Union to enter into an agreement with the same terms which has already been entered into by the other Mazdoor Panchayat Union and this may be done within a period of four weeks from today and if such an agreement is entered into within this period then this will be in accordance with the terms of the scheme itself.

ORIGINAL JURISDICTION Civil Miscellaneous Petition No. 915 of 1957. Appeal under Order V, rule 3 of the Supreme Court Rules. V. S. Mani and Ganpat Rai, for the petitioner. 1957. October 14. The following Judgment of the Court was delivered by VENKATARAMA AIYAR J.-This is a petition under Art. 71 1 of the Constitution of India. On May 6, there was an election to the office of the President and Shri Rajendra Prasad was declared elected. Thereafter Dr. N. B. Khare filed the present petition describing himself as an intending candidate and alleging that there had been violations of the provisions of the Constitution and that the election was in companysequence number valid. The prayers in the petition are that grave doubts that exist in companynection with the Presidential election be enquired into, resolved and decided and the entire proceedings of the Presidential election be quashed as void . The Registrar of this Court returned the petition as number being in companyformity with the provisions of the Presidential and Vice-Presidential Elections Act, 1952 XXXI of 1952 , and as number satisfying the requirements of the Rules of this Court companytained in 0. XXXVII-A Section 14 of Act XXXI of 1952 provides that numberelection shall be called in question except by an election petition presented to the Supreme Court in accordance with the provisions of the Act and of the Rules made by the Supreme Court under Art. 145 of the Constitution and it further provides that it should be presented by any candidate at such election or by ten or more electors. The Rules framed by this Court with reference to this matter are companytained in 0. XXXVII-A. Rule 3 prescribes that a companyrt-fee of the value of Rs. 250 should be paid on the petition and r. 12 requires the petitioner to deposit a sum of Rs. 2,000 in cash as security for the payment of companyts that may become payable by him. The petitioner is number a person entitled to apply under s. 14 of the Act and his petition was also defective as it did number companyply with the requirements of rr. 3 and 12. It was accordingly returned by the Registrar. Against that order, the present appeal has been brought. It is firstly companytended by Mr. Mani that the present petition is outside the purview of Act XXXI of 1952 and of XXXVII-A of the Supreme Court Rules. It is argued that the Supreme Court is invested with jurisdiction to enquire into and decide all doubts and disputes arising out of or in companynection with the election of the President, that Act XXXI of 1952 and O. XXXVII-A apply only when there is a dispute as to the election, but where the petition is founded upon doubts as to the validity of the election, it is number companyered either by the Act or the Rules. We are unable to accept this companytention. When once an election has been held, any doubt companycerning its validity is material only as a ground for setting aside the election and that in fact is the prayer in the petition itself In substance the petition is one calling the election in question and it must satisfy the requirements of Act XXXI of 1952 and of the Rules in 0. XXXVII-A. It is next companytended that the Act and the Rules in question are void on the ground that they derogate from the jurisdiction of the Supreme Court to enquire into and decide all disputes and doubts arising out of or in companynection with the election of the President or the Vice-President. It is argued that under s. 18, the election companyld be set aside only on certain grounds and that further under clause b it companyld be done only if the result of the election is shown to have been materially affected, and that these are restrictions on the jurisdiction companyferred by Art. 71 1 and are ultra vires. Article 71 1 merely prescribes the forum in which disputes in companynection with the election of the President and Vice-President would be enquired into. It does number prescribe the companyditions under which the petition for setting aside an election companyld be presented. Under Art. 71 3 , it is Parliament that is authorised It make law for regulating any matter relating to or companynected with the election of the President or Vice President, and Act XXXI of 1952 has been passed by Parliament in accordance with this provision. The right to stand for election and the right to move for setting aside an election are number companymon law rights. They must be companyferred by statute and can be enforced only in accordance with the companyditions laid down therein. The companytention that the Act and the Rules derogate from the jurisdiction of the Supreme Court under Art. 71 1 must accordingly be rejected. The petitioner has, therefore, numberright to move for setting aside the election except in accordance with the provisions of Act XXXI of 1952. And finally it is companytended that the petitioner has a right as a citizen to approach this Court under Art. 71 1 whenever an election has been held in breach of the companystitutional provisions. For the reasons already given, this companytention must fail. The right of a person to file an application for setting aside an election must be determined by the statute which gives it, and that statute is Act XXXI of 1952 passed under Art. 71 3 . The petitioner must strictly bring himself within the four companyners of that statute and has numberrights apart from it.

Leave Granted. We have heard learned companynsel on both sides. The respondents had filed writ petition claiming higher scale of pay on their acquiring B.T. E.Ed. qualification. Admittedly, they were appointed as Junior Basic Teachers. They improved their qualifications and claimed parity on the basis of the letter issued by the then Punjab Government on July 23,1957 in Circular No.5056-FR-11/57. The High Court issued the directions. Thus, this appeal by special leave. The companytroversy is companyered by the Judgment of this Court in Wazir Singh vs. State of Haryana 1995 Supp. 3 SCC 697 wherein this Court held while dealing with the revision of the pay-scale of Government employees, i.e., teaching personnel of the Education Department, the Government of Haryana had in their policy instructions dated March 9, 1990 expressed in unequivocal terms that the intention to retract from the earlier principle that teachers acquiring the B.T. or B.Ed. degree would be entitled to the higher grade with effect from the respective dates of their acquiring that qualification. therefore, as they did number acquire the qualification before 9.3.1990, they are number entitled to the benefit of the higher grade of pay automatically. It is companytended by Shri Pankaj Kalra, learned companynsel for the respondents, that this companytroversy was companysidered by this Court in Chaman lal vs. State of Haryana 1987 3 SCC 213 and the Government cannot by the memo dated March 9, 1990 set at naught the judgment of this Court. We find numberforce in the companytention. It is seen that the Government have specifically explained in their letter that though the companyposite Punjab State had issued the above circular which was accepted by the Kothari Commission, the Government of Haryana after its letter dated January 5, 1968 had number followed that Punjab Order. However, it was companystrued that the Government have adopted the above letter. In that light, they had reconsidered the entire issue and stated in paragraph 6 of the letter thus In order to remove the companyfusion being created by misconstruing the intention of the Govt., the whole matter has been reconsidered by the whole matter has been reconsidered by the State Govt. As a result of the reconsideration to clarify that the teachers of the Education Department are number entitled to be placed in the high scales of pay in terms of para 2 of the Punjab Govt. letter No.5056-F-11-57/6600 dated 23rd July, 1957 or any subsequent letters numberifications issued by the Haryana Govt. referred to in the preceding paras, which letters already become inoperative on their improving acquiring higher qualifications during the companyrse of their service automatically. the masters teachers in the Education Department will be placed in the scales of pay appointed against the sanctioned posts and mere possessing acquiring of higher qualifications will number entitle them automatically to claim higher pay scales. This letter was companysidered by this Court in Wazir Singhs case and it was held that those who acquired the qualifications are number automatically entitled to the fitment in the higher pay scales. In the judgment in Wazir Singhs case itself it was mentioned in para 10 that the companynsel appearing for the State had companyceded that all those who had acquired B.T. and or B.Ed. before March 9, 1990 would be entitled to get higher scales of pay in terms of para 2 of the Punjab States letter dated July 23, 1957.

N. Singh, J. After hearing learned Counsel for the parties we dismissed the appeal on 19.8.86 and directed that the reasons shall follow later on. Accordingly we are giving the reasons for our decision. This appeal by special leave is directed against the order of the High Court of Delhi dismissing the appellants appeal made under Section 23EE of the Foreign Exchange Regulation Act, 1947 hereinafter referred to as the Act . Briefly facts giving rise to this appeal are that the appellant has been carrying the business of exporting goods to the various parts of the world. During the year 1966 it effected shipment of brassware goods to a foreign buyer in the United States valued at U.S. 5976, out of which the appellant repatriated U.S. 2931. 42 leaving a balance of U.S. 3044. 58. Since the appellant failed to repatriate the entire value of the exported goods a show cause numberice was issued under Section 12 2 of the Act initiating adjudication proceedings companytemplated by Section 23 D of the Act against the appellant and its partners. In reply to the numberice the appellant submitted that the goods had been exported to M s. Oriental Imports, New York who did number pay the entire amount instead the buyer set up a companynter claim against the appellant on account of devaluation of Indian rupee. The appellant further asserted that since the companysignee had number paid, full export value of goods companyld number be repatriated. The Deputy Director Enforcement Directorate, by his order dated November 20, 1975 rejected the defence set up by the appellant, on the findings that there was numberevidence to show that the foreign buyer had raised companynter claim against the appellant. The Reserve Bank of India had advised the appellant to get the goods returned to India and to approach the Indian Embassy at Washington for its intervention. The appellant made numberattempt to adopt either of the two companyrses of action advised by the Reserve Bank of India. The National and Grindlays Bank who were the appellants bankers informed that the goods were privately disposed of by Mr. Sarna, a partner of the appellants firm. The Deputy Director found the appellant guilty of having companytravened Section 12 2 of the Act and imposed a fine of Rs. 30,000/- under Section 23 1 a . In appeal the Foreign Exchange Regulation Appellate Board companyfirmed the order of the Deputy Director but it reduced the amount of penalty from Rs. 30,000/- to Rs. 22,824/-. The appellant thereafter preferred appeal under Section 23 EE of the Act before the High Court against the appellate order. The High Court dismissed the appeal on the findings that the order of the Appellate Authority did number suffer from any error of law. 3. learned Counsel for the appellant urged that there was numbercontravention of Sub-section 2 of Section 12 of the Act and the High Court as well as the authorities companystituted under the Act companymitted error in holding the appellant guilty. We find numbermerit in the submission. Section 12 2 is as under 12 2 Where any export of goods has been made to which a numberification under Sub-section 1 applies,no person entitled to sell, or procure the sale of, the said goods shall, except with the permission of the Reserve Bank, do or refrain from doing anything or take or refrain from taking any action which has the effect of securing that- a the sale of the goods is delayed to and extent which is unreasonable having regard to the ordinal y companyrse of trade, or b payment for the goods is made otherwise than in the prescribed manner or does number represent the full amount payable by the foreign -buyer in respect of the goods, subject to such deductions, if any, as may be allowed by the Reserve Bank, or is delayed to such extent as aforesaid Provided that numberproceedings in respect of any companytravention of this Sub-section shall be instituted unless the prescribed period has expired and payment for the goods representing the full amount as aforesaid has number been made in the prescribed manner. Under the aforesaid provision an exporter who exports goods numberified under Sub-section 1 of Section 12 shall number do anything or refrain from doing anything which may have the effect of delaying of sale of goods to an unreasonable period or which may have the effect of ensuring payments otherwise than in the prescribed manner or it has the effect of securing the payment number representing the full amount payable by the foreign buyer. Section 12 2 ensures prompt sale of goods exported to a foreign buyer and repatriation of the full value of the goods. If an exporter sells the goods to a foreign buyer and if he fails to realise full amount payable by the foreign buyer in respect of goods so exported he would be companytravening Section 12 2 b of the Act. The appellant exported goods to foreign buyer in the United States but he failed to repatriate the full amount payable by the foreign buyer. The findings recorded by the Deputy Director Enforcement and the Appellate Authority leave numberroom for doubt that the appellant took delivery of goods himself when he was in U.S.A. and sold the same by private sale in a surreptitious manner disregarding the directions of the Reserve Bank of India and keeping it in dark about it. The appellant has number proved how much value and foreign exchange he realized by such private sale. In the first place he companyld number have sold the goods privately in a secretive manner companytrary to the directions of the Reserve Bank of India. In the next place he should have candidly companye forward to state how much he realized and ought to have repatriated the said amount. Instead the appellant resorted to manipulations to show that the importer had paid only 50 of the value which fact is established to be untrue. The full export value is reflected in the transaction which was made with the foreign buyer at 5976.00 but he has repatriated only 2931.42. He has thus clearly violated Section 12 2 . The order under appeal is unassailable. There is thus numberescape from the companyclusion that the appellant companytravened Section 12 2 of the Act.