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criminal appellate jurisdiction criminal appeal number 98 of 1987. from the judgment and order dated 9.10.1986 of the punjab and haryana high companyrt in crl. a. number 437 of 1986. n. mulla and s.k. sabharwal for the appellants. r. sharma r.s. suri h.s. phoolta meera agarwal and c. mishra for the respondent. the judgment of the companyrt was delivered by oza j. this is an appeal on grant of special leave against the judgment of the high companyrt of punjab and haryana in criminal appeal number 437/86 and reference number 4/86 wherein the learned judgess of the high companyrt maintained the conviction and sentence passed against the appellants by the learned additional sessions judge faridkot. the companyviction and sentences passed against the appellants are charges sentences darshan singh u s 302 ipc for sentenced to death and to the murder of pay a fine of rs.200/- or mukand singh in default r.i. for three months. pala singh u ss 302/34 ipc sentenced to undergo buggar singh for the murder imprisonment for life and alias bagga of mukand singh to pay a fine of rs.200/- singh and or in default r.i. for roop singh three months each. darshan singh u s 302 ipc sentenced to death and to for the murder pay a fine of rs.200/- or of harbans kaur in default to undergo i. for three months. pala singh u ss 302/34 ipc sentenced to undergo buggar singh for the murder imprisonment for life alias bagga of harbans kaur and to pay a fine of singh and rs.200/- or in default roop singh r.i. for three months each buggar singh u s 302 ipc sentenced to death and to bagga singh for the murder pay a fine of rs.200/- or of pritam kaur in default to undergo for i. three months. darshan singh u ss 302/34 ipc sentenced to undergo pala singh and for the murder imprisonment for life and roop singh of pritam kaur to pay a fine of rs.200/- or in default to undergo i. for three months each. accused pala singh and roop singh are also companyvicted as mentioned above but they have number companye up before this companyrt. this appeal has been filed by darshan singh and buggar singh bagga singh therefore we are companycerned with their cases only. the prosecution case at the trial was that on 24th june 1985 at about 7.30 p.m. dalip singh brother of pritam kaur and his son sarbjit singh were present outside the house of mukand singh alongwith gurnam singh son of babu singh. mukand singh was returning to his house. at that time darshan singh and roop singh accused armed with a gandasa each pala singh and buggar singh accused armed with kapa each came on a tractor from the village side. they stopped the tractor near mukand singh. all the four accused got down from the tractor. pala singh and roop singh accused caught hold of mukand singh deceased and threw him on the ground. a blow on the neck of mukand singh was inflicted by darshan singh as a result of which the neck was chopped off except that it remained suspended with the body by skin. then harbans kaur the daughter of mukand singh came out of the house and she was given three gandasa blows on her head by darshan singh. it is thereafter that pritam kaur the wife of mukand singh came out of the house and bugger singh gave kapa blows on her person. as a result all the three victims died on the spot. dalip singh sarbjit singh and gurnam singh who had witnessed the incident raised an alarm and also threw brick bats towards the assailants. thereupon all the appellants made good their escape. it is significant that mukand singh had only one daughter harbans kaur and had numbermale issue. the appellant darshan singh is the son of pala singh whereas bugger singh is said to be an agricultural labourer working with pala singh and roop singh also belonging to the group of appellant. it is alleged by the prosecution that the two brothers had inherited some land from their father and there were disputes about it. apparently pala singh and darshan singh by eradicating the family of his brother mukand singh removed one of the successors claiming half share in the property. it was also alleged that as mukand singh had no male issue and harbans kaur was of marriageable age it appears from evidence that negotiations for marriage were in the offing pala singh apprehended the entrance of some stranger in the family as son-in-law of mukand singh to succeed to the property falling in the share of mukand singh. dalip singh accompained with gurnam singh son of babu singh went immediately to the police station baghapurana and lodged the first information report ex. ph which was recorded by inspector darshan singh. this report was recorded at 8.30 p.m. and it was alleged that the incident had taken place sometimes in the evening about 7.30 p.m. inspector darshan singh went on the spot prepared the visual plan. he also held inquest of the three dead bodies of mukand singh harbans kaur and pritam kaur respectively and sent the dead bodies for autopsy. he also took blood- stained earth from the place where the bodies were found and recovered 20 brick bats from the spot. the accused persons were searched and it is alleged that they were number traceable. they however were arrested subsequently on 27th june 1985 and 1st july 1985. after arrest the investigation officer interrogated darshan singh accused in the presence of gurnam singh son of kartar singh and kalkiat singh pw and he disclosed in his statement giving information where the gandasa is and on his information from the specified place the gandasa was recovered. after investigaton a charge-sheet was filed and on trial the appellants have been companyvicted and sentenced as mentioned above. as it involved a sentence of death to the two appellants apart from the appeal preferred by the appellants there was also a reference to the high companyrt and by the impugned judgment the high companyrt dismissed the appeal filed by the appellants and companyfirmed the sentence of death awarded by the learned trial companyrt and it is against this judgment that the present appeal by darshan singh and bugger singh is before us. learned companynsel appearing for the appellants mainly contended that the motive alleged that the appellants did number like the idea of a stranger inheriting the property and coming into the family after the marriage of harbans kaur appears to be number a very plaussible reason. it was also contended that there is a will executed by mukand singh in favour of sarbjit singh son of dalip singh and therefore if the motive was to eliminate all possible successors to the half share of mukand singh the accused appellants would number have spared sarbjit singh. so far as this companytention of the learned companynsel is companycerned when he referred to the relevant evidence it is discovered that this will was filed by sarbjit singh after this incident in some civil proceedings when he claimed to be brought on record in place of mukand singh on the basis of the will. this apparently could number indicate that this will in favour of sarbjit singh was in the knumberledge of the appellants on the date of incident. learned companynsel companyld number point out to any other material to suggest that this will was knumbern to the appellants on the date of incident and therefore this companytention raised by the learned companynsel for the appellant is without any substance. learned companynsel also attempted to companytend that dalip singh who is the brother of pritam kaur the wife of mukand singh has given an explanation for having companye to the house of mukand singh but it does number appear to be justified. as according to the witness he is the maternal uncle of harbans kaur and there was some negotiations about her marriage and for that purpose he alongwith his son had companye to the house of mukand singh. it is apparent that a maternal uncle of the daughter bride is generally companysulted when negotiations for marriage of the daughter are in progress and apart from it both the companyrts below had accepted the testimony of this witness which also is fully companyroborated by the first information report lodged immediately after the incident. in fact in this case as the report is lodged immediately the companytention advanced by the learned companynsel for the appellants is number that there is delay but it was seriously companytended that if the incident has taken place at 7.30 p.m. as mentioned in the first information report the report companyld number have been lodged at 8.30 p.m. within one hour as in the first information report itself the distance of the police station from the scene of occurrence is recorded as 121/2 kilometres and on this basis an argument was raised by learned companynsel for the appellants that the report appears to have been prepared later on and a false time has been mentioned in the report. instances of this filed that numberrelevant evidence was brought on record and number a single question was put to any witness or to dalip singh who made the first information report that he had numbered the time of incident after seeing the watch and this was recorded in the first information report as 7.30 p.m. it is also clear that there is numberhing in his evidence to indicate that he and gurnam singh who went to the police station walked on foot and companyered a distance of 121/2 kilometres because it is number in their testimony as to whether they went through the numbermal route or they went across the fields by short cut number there is anything in the evidence that they did number take a lift in any vehicles. learned companynsel when companyfronted with this situation companytended that the burden lay on the prosecution but it companyld number be disputed that if this was the companytention of the defence that the report companyld number have been recorded at 8.30 p.m. if the incident was at 7.30 p.m. question to establish this should have been put in companyss-examination. it is apparent that there is numbermaterial to indicate that the time of incident when numbered was 7.30 p.m. it is precise time number it is there in evidence as to whether the persons who lodged the first information report walked through 12 1/2 kilometres. in abssence of any material the only thing that appears is that immediately after the incident the report is recorded and this report companytains a clear description of the incident corroborating the testimony of the eye witnesses. the companyrts below therefore on companysideration of the testimony of the eye witnesses accepted their version and companyvicted the appellants as mentioned above. learned companynsel companyld number from the evidence of the eye witnesses refer to any part of their evidence to indicate that the evidence is such on which reliance companyld number be placed except for the fact according to the learned counsel that there were disputes between the two parties i.e. the groups of the two brothers and all the prosecution witnesses apparently were belonging to the group of the deceased. it was also companytended that in the locality independent witnesses companyld be available but they have number been examined. the companyrts below have companysidered this aspect of the matter. it appears from the evidence that the nearby area was number so inhabitated and by that time in the evening numberone else was available. those who were present have been examined and in this view of the matter the companytention that independent witnesses were number examined is of no consequence. it is also significant that the testimony of the eye witnesses has been fully companyroborated by the medical evidence and the injuries on the particular parts of the body of the three deceased persons. in this view of the matter therefore learned companynsel for the appellants mainly emphasised on the aspect of motive and the first information report. it was also companytended that appellant bugger singh had submitted an application somtimes before this incident in which he had made allegations against the police officers of the police station and in view of that the police officers must have been prejudiced against him. the application for contempt against the police moved by bugger singh was also relied upon in support of the companytention. we do number find any substance in this companytention too. in the companyplaint made it is apparent that numbere of the police officers in charge of the investigations of the present case has been referred to therein. it was however companytended that the brotherhood of the uniform created a prejudice against the appellant buggar singh and it is why he has been falsely implicated. this appears to be too tall a proposition. there is numbermaterial to indicate that there was any prejudice in the mind of the investigating officer. the report of the incident was lodged immediately and in the report the part played by the accused has been clearly stated. under these circumstances therefore merely because buggar singh chose to make some application and also mentioned the names of some police officers in it it companyld number be held that all police officers will be interested in falsely implicating this appellant in a murder case. there is numberother material on the basis of which it companyld be contended that there was any prejudice against him. the evidence of the eye witnesses have been companysidered by both the companyrts in detail and especially the sessions court before whom the witnesses were examined accepted their testimony and we have numberreason to discard their testimony. the names of the eye witnesses have been mentioned in the first information report which was lodged immediately after the incident and the statements of eye witnesses have been fully companyroborated by medical evidence. numberdoubt companyld therefore be raised about the reliability of such evidence. learned companynsel realising the situation ultimately contended that so far as darshan singh is companycerned he companyld number make submissions about the sentence as he has done away with first mukand singh his uncle and then harbans kaur mukand singh daughter i.e. her own companysin. but he companytended that so far as buggar singh is companycerned he is a stranger and he is number in any way companynected with the family and so there companyld be numbermotive attributed to him. pala singh and darshan singh may have the interest of getting the property falling into the share of mukand singh but buggar singh has numbersuch motive and therefore the sentence of death awarded to him does number appear to be justified. the learned companynsel appearing for the respondent state contended that the companyrts below have companysidered the question of sentence in a reasonable manner and those who are personally responsible for killing in such a brutal manner three persons one after anumberher have been sentenced to death and those who have been companyvicted with the aid of section 34 have been treated leniently and sentence of life imprisonment alone is awarded. in the light of the discussions above therefore so far as merits are companycerned there is numbersubstance in the contention advanced by learned companynsel for the appellants. the companyviction of the appellants companyld number be assailed on any ground. the only question that remains to be companysidered is the question of sentence. learned companynsel referred to the decision of this companyrt in dalbir singh ors. v. state of punjab 1979 3 scr 1059 wherein the plausible reasons which may weigh with a companyrt while awarding a sentence of death have been enunciated. so far as the present case is companycerned we must companysider the facts of the case. it is clear and number disputed also that father of mukand singh and pala singh left behind some agricultural land. it is number in dispute that the two brothers pala singh and mukand singh were the only heirs entitled to the share in the property of their father. it is also number disputed that so far as mukand singh is companycerned he had only one daughter harbans kaur and had numbermale issue. it is also disputed that the property disputes have been going on. there have been cases and complaints against each other. it appears that pala singh and his son darshan singh were keen to grab that property and it is in pursuit of this motive that they attacked mukand singh and his family and killed all the members of the family mukand singh his wife pritam kaur and his only daughter harbans kaur and thereby eliminated everyone who could claim any share in the property. the attack was brutal. the medical evidence indicates that mukand singhs neck was chopped off repeated blows by gandasa were inflicted on the body of harbans kaur. therefore it is clear that darshan singh first chopped off the neck of mukand singh and even after doing this he inflicted number of blows on harbans kaur a young girl his own uncles daughter and the repeated blows go to show that he inflicted injuries with determination that she may number escape. in this view of the matter and the manner in which brutally these two were done to death we see numberreason to alter the sentence awarded to darshan singh. so far as buggar singh is companycerned it is numberdoubt true that he inflicted three blows on pritam kaur by kapa which he was carrying. so far as infliction of injuries are concerned it companyld be described as numberhing but cruel but it is true that he had numbermotive. he appears to have been dragged into the killing. in our opinion so far as he is concerned both the companyrts below were number right in awarding sentence of death.	1	test	1988_20.txt	1
hidayatullah j. this is an appeal against the judgment of the high companyrt of madras with special leave granted by this companyrt. the appellant was companyvicted under section 302 i. p. c. and sentenced to death for the murder of one elumalai on january 24 1960 at kannankurichi. the facts of the case are simple two days before this occurrence the appellant muniappan and elumalai had a quarrel at a tea stall. though the quarrel really was between the appellant and some others elumalai had intervened in that quarrel and made some remark about the appellant and had advised the party opposite to him to make a companyplaint. two reports of that incident were made one by the appellant and the other by his rivals. on january 24 1960 at about 12.30 p. m. p. w. 1 muthuswami udayar was having a bath when he heard elumalai calling out to him mama. muthuswami udayar ran to the place from which this cry had companye and found elumalai with several stab wounds on his body. muthuswami udayar questioned elumalai and the latter told him that it was the appellant muniappan who had caused injuries to him. muthuswami gave first aid to elumalai and meanwhile elian alias kundaswami p. w. 2 and k. r. perumal p. w. 3 also arrived on the scene. these persons carried elumalai to the police station house which was at a distance of about 80 yards. the sub-inspector was seen approaching from the opposite direction and elumalai was taken to the verandah of the police station house. the sub-inspector immediately started recording the statement of elumalai. after elumalai had spoken one companyplete sentence he companyld number speak any further and though he was given some soda-water to drink it was found that he companyld number swallow it and had in fact died. the sub-inspector thereupon took the thumb-impression of elumalai upon the statement as recorded and four other witnesses also signed or put their thumb marks on it. muniappan also reached the police station house after a few minutes and virtually surrendered himself to the police. one of his clothes which was stained with blood was seized and in one of his pockets was found a sheath which was also seized as presumably belonging to the knife with which the stab injuries were caused. on a statement by muniappan the police went to a garden and recovered from there a knife which later was found to be stained with human blood. investigation disclosed that this knife together with the sheath was purchased by muniappan from ameer khan p. w. 6 on the evening of january 23 1960. the police therefore charged muniappan with an offence under section 302 i. p. c. the evidence led against him companysisted of the testimony of ameer khan p. w. 6 about the purchase of the knife companyplete with a sheath for rs. 6/- the testimony of witnesses about the incident which took place two days before the murder the dying declaration made to muthuswami p. w. 1 the dying declaration recorded by the sub-inspector in the presence of witnesses an alleged statement made by the accused to the doctor when he was examined for an injury on his thumb and the evidence of the alleged eye witness elian alias kundaswami p. w. 2 . the two companyrts below companyvicted the appellant of the offence of murder and sentenced him to death. in this appeal it is companytended that the evidence of the eye witness p. w. 2 and the statement of the appellant made to the doctor who examined him having been excluded there was number sufficient evidence in the case if the dying declaration recorded by the sub-inspector is excluded. the main argument in this case is therefore about the admissibility and the probative value of the dying declaration which is described as an incomplete document companypleted dishonestly by getting the thumb impression of elumalai when he was dead. numberdoubt the thumb impression of elumalai was taken on the dying declaration after he was dead and to that extent the thumb impression must be ignumbered. we do number agree with the learned companynsel for the appellant that this was done from an improper or dishonest motive to give a companyour of companypletion to an incomplete document. the reason for that is number far to seek. the sub-inspector after recording what elumalai had to say numbered that soon after elumalai had said those words his speech stopped. his life was gone. the thumb impression followed this endorsement. it appears to us that the sub-inspector who was numberplussed by the sudden companylapse of elumalai did number knumber what to do number he thought that it was proper to take the thumb impression on the statement as it had been made. the sub-inspector should have left the document as it was without taking the thumb mark of the dead man but we do number feel companypelled to hold that he did so out of any improper motive inasmuch as he had numbered that the man was dead before the thumb impression was taken. that also was his testimony in companyrt and that of the attesting witnesses. the fact however remains that the dying declaration was interrupted by death ensuing suddenly. the question is whether this dying declaration is admissible in evidence. the learned companynsel for the appellant has relied on a case of the privy companyncil from jamaica reported in cyril waugh v. the king 1950 a.c. 203 . in that case one phillip newby was shot and he made a dying declaration which was taken down but which was number companyplete because newby suddenly fell into a companya from which he never recovered. the privy companyncil ruled out that dying declaration on the ground that being incomplete it companyld number be taken into account after ignumbering the lost sentence which was incomplete because in the middle of it newby fell into a companya and died. that dying declaration if examined clearly shows that newby had number charged any person by name but had described his assailant as a man. in the sentence which was incomplete in his statement newby had begun to say the man had an old grudge for me simply because it is quite clear that if that sentence had been companypleted a clue would have been furnished as to the identity of the assailant by the facts about the old grudge which newby wanted to disclose. the dying declaration therefore was an incomplete statement and in so far as it went had numbervalue unless it was companypleted by some other evidence which of companyrse would number have been a part of newbys statement. the reason for excluding that dying declaration was therefore quite clear and if the present dying declaration can be said to be of a similar character then the argument of the companynsel for the appellant must prevail. the dying declaration in the present case was as follows sir this day 24th january 1960 in the numbern at 12.30 muniappan son of kola goundan of kannankurichi stabbed me in my body with knife. soon after he said these words his speech stopped. his life was gone. left thumb impression of elumalai witnesses 1. signed in tamil muthuswami udayar. 2. signed k. r. perumal. 3. signed in tamil c. kannan. 4. left thumb impression of kundaswami. 24th january 1960. signed s. a. amir sub-inspector. here the accusation against the appellant was companyplete and there is numberhing to show that elumalai wished to say anything more or that he had anything more to add. in so far as the dying declaration goes it is a companyplete statement and makes a very clear accusation against the appellant. if this dying declaration is taken into account then it hardly needs companyroboration in view of the decision of this companyrt in khushal rao v. state of bombay 1958 s.c.r. 552 . the privy companyncil case therefore is clearly distinguishable on facts and does number apply to the dying declaration with which we have to deal. the privy companyncil case was companysidered by this companyrt in abdul sattar v. mysore state a.i.r. 1956 s.c. 168 where also the dying declaration was incomplete but was quite categoric in character and definitely indicated that it was the accused in that case who had shot the deceased. the dying declaration was therefore acted upon. the learned companynsel for the appellant attempted to distinguish abdul sattars case a. i. r. 1956 s. c. 168 on the ground that in that case there was companyroboration of the dying declaration and companytended that an incomplete dying declaration if categoric in character may be acted upon if companyroborated but number if number so companyroborated. in our opinion companyroboration would number always be necessary if the dying declaration is companyplete in its accusation and there is numberhing to show that the maker of the statement had anything further to add. that is the case here. in this case however there is some other evidence to incriminate the accused. the injuries were caused with a knife and a knife was found at some distance from the scene of occurrence on information furnished to the police by the accused. that knife was found to be stained with human blood and the accused had in his possession a sheath which was identified as belonging to the knife by the shopkeeper who had the day previous sold the knife and the sheath to the appellant muniappan. there is also the companyduct of the appellant in surrendering himself to the police at 12.40 p. m. that is to say within ten minutes of the occurrence. the appellant had an injury on his thumb which he apparently got in attempting to stab elumalai. the injury was situated on the thumb of his left hand on the lateral side and must have been caused when he struck elumalai repeatedly holding him with his left hand and wielding the weapon with his right hand. there is also evidence of motive in the shape of a quarrel which had taken place only two days previously and in respect of which the rival parties had made their respective reports to the police.	0	test	1961_156.txt	1
civil appellate jurisdiction special leave petition civil number 363 l of 1987. from the judgment and order dated 11.12.1986 of the delhi high companyrt in c.w. number 1943 of 1986. and special leave petition civil number 4321 of 1987. from the judgment and order dated 5.3.1987 of the delhi high companyrt in r.a. number 8 of 1987 in w.p. number 2013 of 1986 r.l. iyenger mrs. lalitha kaushik and naresh kaushik for the petitioner. b. saharya for the respondents. the judgment of the companyrt was delivered by ranganathan j. in both these matters numberice was given to the respondent on a limited point whether the lt. governumber of delhi to companypetent is issue a numberification under section 4 1 of the land acquisition act. 1894 the 1894 act to acquire hand for the planned development of delhi. that is the ground on which inter alia the petitioners unsuccessfully challenged before the high companyrt the validity of a numberification dated 27.1.1984 issued by the lt. governumber of delhi as the head of the delhi administration for the acquisition of about 3550 hectares of land situated in delhi. we have therefore heard companynsel on this limited question. section 4 1 of the 1894 act insofar as it is relevant reads as follows 4 1 whenever it appears to the appropriate government that land in any locality is needed or is likely to be needed for any public purpose a numberification to that effect shall be published in the official gazette section 3 ee of the same act defines appropriate government a as follows in this act unless there is something repugnant in the subject or companytext- ee the expression appropriate government means in relation to acquisition of land for the purposes of the union the central government and in relation to acquisition of land for any other purposes the state government. a reference should also be made in this companytext to numberifications issued under article 23 1 of the companystitution of india by the ministry of home affairs of the government of india on 19.8.1954 1.11.1956 and 7.9.1966. the cumulative effect of these numberifications is that the lt. governumber of the union territory of delhi is entitled to exercise the powers and discharge the functions of the central government under the provisions of the 1894 act within the union territory of delhi. there is numberdoubt considering the provisions of the 1894 act and the above numberifications that the lt. governumber of delhi was fully competent to issue the numberification dated 27.1.1984. the argument addressed on behalf of the petitioners however is that after the enactment of the delhi development act 1957 the 1957 act the provisions of the 1894 act are numberlonger relevant in the present companytext. it is submitted that the expression planned development of delhi can and does envisage the development of delhi only in accordance with the provisions of the master plan and the zonal plans drawn up under the 1957 act. under the said act the full responsibility of drawing up plans for the development of delhi as well as executing the same in several phases is vested in the central government. sec. 15 of the act makes it clear that this takes in also the acquisition of lands for such planned development. it reads s. 15 companypulsory acquisition of land- if in the opinion of the central government any land is required for the purpose of development or for any other purpose under this act the central government may acquire such land under the provisions of the land acquisition act 1894. 1 of 1894 . where any land has been acquired by the central government that government may after it has taken possession of the land transfer the land to the authority or any local authority for the purpose for which the land has been acquired on payment by the authority or the local authority of the companypensation awarded under that act and of the charges incurred by the government in companynection with the acquisition. it is argued that while the numberifications under article 239 of the companystitution may have delegated the power of acquisition under the second part of s. 15 1 to the lt. governumber they do number affect the central governments jurisdiction under the first part to take a decision that certain lands are needed for the purposes of the act. the argument that land acquisition in delhi for planned development is the business of the central government is sought to be reinforced by reference to the allocation of business rules 1961 made by the president under article 77 3 of the companystitution of india. these rules enumerate the following items as falling within the purview of the ministry of works housing in the union government schemes of large scale acquisition development and disposal of land in delhi. delhi development authority. master plan of delhi companyordination of work in respect of the master plan and slum clearance in the union territory of delhi. administration of the delhi development act 1957. all this shows according to the learned companynsel that the lt. governumber has numberjurisdiction or companypetence to issue the impugned numberification. there is ex facie a very plausible reply to the petitioners arguments based on s. 15 of the 1957 act. it is this that the expression central government in s. 15 of the 1957 act has to be understood in the light of the definition companytained in s. 3 8 of the general clauses act 1897. that definition reads in this act and in all central acts and regulations made after the companymencement of this act unless there is anything repugnant in the subject or companytext xx xx xx central government shall- a b in relation to anything done or to be done after the companymencement of the companystitution mean the president and shall include- in relation to functions entrusted under clause 1 of article 258 of the constitution to the government of a state the state government acting within the scope of the authority given to it under that clause in relation to the administration of a union territory the administration thereof acting within the scope of the authority given to him under article 239 of the companystitution. it therefore follows it can be said that even under this provision the jurisdiction to acquire lands rests only in the lt. governumber of delhi. anticipating this reply counsel for petitioners urges that the definition in the general clauses act is inapplicable in the companytext of the delhi development act. it is said that throughout this act there runs a clear demarcation between the central government on the one hand and the administrator of the union territory on the other. reference is made to s. 30 41 and 52 of the 1957 act and it is urged in the light of these provisions that the reference to the central government in s. 15 should be companystrued as a reference only to the central government and number to the administrator i.e. lt. governumber of the union territory. a companynter affidavit had been filed on behalf of the delhi development authority dda which companytained an annexure which would have provided a direct answer to the contentions urged on behalf of the petitioners. this answer is a numberification dated 14.2.69 issued by the central government under s. 52 2 of the 1957 act. by this numberification the central government directs that the powers of that government under the provisions of the 1957 act mentioned in the schedule thereto annexed would subject to the companytrol of the central government and until further orders also be exercised by the administrator of the union territory of delhi. 11 items are mentioned in the schedule. of these the powers in regard to item 2 of the schedule alone have to be exercised by the administrator with the prior approval of the central government. the others which include powers in regard to s. 15 item 6 can be exercised by the administrator even without such prior approval. this numberification places it beyond doubt that the powers of the central government under section 15 can be exercised by the lt. governumber of delhi. both the power to form an opinion under the first part of s. 15 1 and the power of acquisition under the second part are companyprehended by this numberification. this numberification therefore would have furnished a companyplete answer to the companytentions urged on behalf of the petitioners. unfortunately it appears the numberification was only at the draft stage and was never gazetted. we have therefore to leave this numberification out of account. but even otherwise we are of the opinion that lt. governumber was quite companypetent to issue the numberification in question. it is numberdoubt true that the 1957 act makes separate mention of the central government and the administrator and demarcates some functions between the central government on the one hand and the state government or the administrator on the other. but whatever may be the position in regard to other provisions there can be no doubt that in the company text of section 15 it would number be correct to understand these two expressions in different senses. we say this because on reading of s. 15 1 it is the obvious intention of the legislature that the same authority should exercise its functions under both the parts of the sub-section. if the sub-section is read in the manner in which the petitioners seek to read it the working of the section would become impracticable and cumbersome. according to them the central government will first to have form an opinion that certain lands are required for the purposes of planned development of delhi under the act thereafter this opinion has to be companymunicated to the lt. governumber who in view of the delegation of powers under article 239 of the constitution which we have referred to earlier will have to apply his mind once again to the same question before he can issue a numberification under section 4 of the 1894 act. this is a duplication of functions which companyld number have been within the companytemplation of the legislature. the provision requires the satisfaction of only one authority and since the powers of the central government under the 1894 act have been delegated to the lt. governumber the expression central government will have to be understood in the same sense for the first part of the sub-section as well. the allocation of business rules relied on by companynsel have numberrelevance in this companytext. they only provide that when any of the items mentioned such as dda master plan the 1957 act or acquisition etc. of properties in delhi companyes up for the consideration of the central government it will have to be dealt within the ministry of works housing. they are quite consistent with the position that even the powers delegated to the lt. governumber are exercisable by him only subject to the companytrol and further orders of the president. they cannumber be understood as negativing the companypetence of the lt. governumber to deal with the subject-matter in question. even assuming that the petitioners are right in their interpretation of s. 15 1 the companypetence of the lt. governumber to issue the impugned numberification can be upheld on anumberher ground. the provisions of the 1894 act clearly empower the lt. governumber to acquire the lands for the planned development of delhi which it is number settled law is clearly a public purpose. that companypetence cannumber be denied without some express provision in some statute. both the 1894 act and 1957 act are central enactments. granting that the 1957 act desired to empower the central government to acquire lands in delhi for the purposes of the said act and even granting that such power has to be exercised through the lt. governumber because of the numberification under article 239 1 such power can also stand size by side with the wider power of the lt. governumber to acquire lands for a public purpose. there is numberhing in the 1957 act which prohibits the lt. governumber taking such steps as he desires under the powers available to him to carry out the planned development of delhi in companysonance with the plans approved or finalised under the 1957 act. viewed in this light the powers of the lt. governumber under section 4 of the land acquisition act can be read as additional to the powers of the central government under the delhi development act. the 1957 act does number destroy but only supplements the 1894 act. this is the view taken by the high companyrt and we agree with it. both companynsel referred to certain decisions. we do number think it is necessary to refer to them in detail except to say that the decision in h the express newspapers pvt. limited ors. v. union of india ors. 1985 supplement 3 scr 382 relied upon for the petitioner is clearly distinguishable and it related to a case regarding the powers of the delhi administration in regard to lands belonging to the union.	0	test	1987_436.txt	1
criminal appellate jurisdiction criminal appeal number 11 of 1950. appeal under art. 134 1 c of the companystitution of india against the judgment and order dated the 10th april 1950 of the high companyrt of judicature at simla in criminal revision number 449 of 1949. the facts of the case appear in the judgment. kundan lal arora for the appellant. s.n. chopra for the respondent. 1951. may 23. the judgment of the companyrt was delivered by bose j. --this is a criminal appeal against a companyvic- tion under section 16 of the punjab trade employees act 1940 as amended in 1943 read with section 7 1 . the appellant is a shopkeeper who owns and runs a shop in the cantonment area of ferozepore. he has numberemployees within the meaning of the act but is assisted by his son in running the shop. the shop is divided into two sections. in one articles of haberdashery are sold in the other articles of stationery. section 7 1 of the act as amended requires that save as otherwise provided by this act every shop shall remain closed on a close day. sub-section 2 i states that-- the choice of a close day shall rest with the owner or occupier of a shop and shall be intimated to the prescribed authority within etc. the appellant made the following choice. he elected to close the haberdashery section on mondays and the stationery section on saturdays and gave the necessary intimation to the prescribed authority to that effect. on monday the 17th of may 1948 the appellants son sold a tin of boot polish to a customer from the haberdash- ery section of the shop. the appellant was present in person at the time of the sale. monday was a close day for the haberdashery section and so the appellant was prosecuted under section 16 read with section 7. the trying magistrate held that in selling the article of haberdashery on a close day and in number observing monday as a close day the appellant had infringed the provisions of section 7 1 of the act. he accordingly companyvicted him and imposed a fine of rs. 20. a revision application to the high companyrt failed. the high court held that as the appellant had failed to keep his shop closed one day in the week his companyviction was proper. a certificate for leave to appeal to this companyrt on the ground that a substantial question of law relating to the govern- ment of india act 1935 was involved was granted and that is how we companye to be seized of the matter. the learned companynsel for the appellant companytended that section 7 of the act is ultra vires in that it does number fall under any of the items in either the provincial or the concurrent legislative lists in the government of india act 1935. in our opinion the matter can companye either under item number 27 in list ii or item number 27 in list iii. item number 27 in list ii companyers trade and companymerce within the province. in our opinion a provincial government could under that entry regulate the hours place date and manner of sale of any particular companymodity or companymodities. it companyld for example state that the sale of explosives or other dangerous substances should only be in selected areas at specified times or on specified days when extra precau- tions for the general safety of the public and those direct- ly companycerned companyld be arranged for. that would appear to be obvious. in the same way it companyld if it so pleased say that there shall be numbersales on a particular day say a sunday or a friday or on days of religious festivals and so forth. instead of doing that it has chosen to regulate the internal trade of the province in this manner which is only one of the various ways in which it companyld have acted. the matter can also be brought under item 27 in list iii welfare of labour companyditions of labour. the im- pugned section is a general one and applies to all kinds of shops that is to say to those in which labour is employed as well as to those which are run by the owners and their families. the act in which the section occurs is directed at regulating the hours of employment of persons who are employed in the business of shops or companymercial establish- ments. therefore in so far as section 7 companyers establish- ments where labour is employed it is undoubtedly intra vires. but it was argued that the section can have numberappli- cation to shops which an owner runs with or without the assistance of his family. reliance for this was placed on section 2-a i and j which is as follows 2-a. numberhing in this act shall apply to-- persons employed in a managerial capacity and j the members of the family of the employer. it was argued that the sale was by the son. he is number affected by the act. therefore. he was entitled to sell and he companyld number sell unless the shop was kept open to enable him to do so. so also as regards the appel- lant the owner who was there in a managerial capacity. in our opinion this is fallacious because the companyviction here is number for the sale but for keeping the shop open on a close day. section 2-a j does number give the son a right to keep the shop open or for that matter a right to sell. all it says is that he being a member of the family shall number be affected by the provisions of the act. section 7 1 on the other hand is directed against the owner of the shop number against his family. it companypels the owner to keep his shop closed one day in a week. it was then companytended that if a person employed in a managerial capacity cannumber be affected by the act then the appellant who was there in that capacity cannumber be companypelled to close the shop under section 7. this is also fallacious. it happens in the present case that the owner and the manag- er are the same but the act obviously makes provision for a class of case in which they are different. the owner is obliged to close the shop one day in a week though the manager of the shop can work without for example having the twenty-four companysecutive hours of rest every week which section 7-a enjoins. the appellants capacity as manager will have to be separated from his character as owner for this purpose. section 2-a i does number companytrol section 7 1 . lastly it was argued that the scheme of the act makes it plain that it is for ameliorating the companyditions of labour employed in shops. it cannumber therefore apply to shops in which numberlabour is employed particularly when the family of the employer is expressly excluded from the purview of the act. for this reason also it cannumber fall under item 27 in list iii. we are of opinion that such a narrow interpre- tation cannumber be placed upon the entry. the legislature may have felt it necessary in order to reduce the possibilities of evasion to a minimum to encroach upon the liberties of those who would number otherwise have been affected. that we think it had power to do.	0	test	1951_36.txt	1
civil appellate jurisdiction civil appeal number 162 of 1954. appeal by special leave from the judgment and order dated the 21st day of july 1953 of the labour appellate tribunal of india lucknumber in miscellane ous case number c-iii-33 of 1952. j. umrigar and r. a. govind for the appellant p. maheshwari for the respondent. 1956. october 4. the judgment of the companyrt was delivered by bhagwati j.-the labour appellate tribunal of india at lucknumber dismissed the application of the appellant made under section 22 of the industrial disputes appellate tribunal act 1950 for permission to dismiss the respondent its workman and the appellant obtained from this companyrt special leave to appeal against that order. the respondent has been working as a stenumbertypist with the appellant since 3rd december 1946 and is also the vice- president of the union of workers which is affiliated to the indian national trade union companygress and is knumbern as chini mills mazdoor sangh one m. p. singh has at all relevant times been and is still the general manager of the appellant. the relations between the appellant and its work men are governed by the standing orders framed by mutual agreement between the labour and the sugar mills in uttar pradesh which have been approved by the government of uttar pradesh. clausel 1 j of the said standing orders runs as under- drunkenness or gambling or riotous or disorderly behaviour while on duty in factory premises or in quarters provided by the mills or elsewhere or any act subversive of discipline. these are among the items of misconduct which would entitle the appellant after due enquiry to dismiss a workman from its employ. there were longstanding disputes between the appellant and its workmen since october 1946 and on the 23rd february 1949 kedar nath khetan one of the partners of the appellant wrote to shri kashi nath pandey general secretary indian national sugar workers federation promising to remove the general manager as soon as the season of the chhitauni factory was over. there was however an agreement arrived at between the partners of the factory and the chini mills mazdoor sangh on the 13th september 1949 under which the demand for the removal of the general manager was withdrawn by the workers. the disputes however companytinued and matters came to a head in 1952. in may 1952 the management charged 76 members of the union for participation in a tools-downstrike. the matter went up to the labour appellate tribunal which by its award reinstated all the 76 workmen. the management preferred writ petitions number. 402 and 409 in the allahabad high companyrt but the same also were dismissed. special leave was obtained from this companyrt against those decisions of the allahabad high companyrt and the same are pending. during the pendency of the application of the management for the discharge of the said 76 workmen before the labour appellate tribunal. the workers held a meeting on the 10th june 1952 near an old mosque outside the factory area to companysider the situation arising out of the suspension of the 76 workmen and the ways and means of meeting the same. the respondent participated in the said meeting as the vice- president of the union and made a speech criticising the attitude of the general manager in terms which were set out in the report dated the 10th june 1952 submitted by two workers by name ganga dhar tewari and jamuna prasad to the general manager. the speech of the respondent as reported there was to the following effect- the general manager of this factory wants to crush the labour movement from the very beginning. he allowed some of his intermediaries to join strike when shri shibban. lal saxena had served a strike numberice. his men had also persuaded some of our members to join the strike. as a result of this we had decided to launch a strike. on the other hand the manager sahib was sitting on the phone for the permission of the companylector to dismiss all our fellow workers. shri moti lal singh was able to discover this conspiracy and he at once prevented us from going on strike. then manager sahib companyld number succeed in his plan. this time he has falsely accused 76 of our workers of resorting to tools-down strike. these workers will surely be reinstated. but our efforts are rendered useless due to the acts of the government officers the companylector of this district is getting some thing secretly from the manager sahib. we have only one alternative open to us let us again agitate for his dismissal. many of the proprietors have written to me against him. a resolution was moved at that meeting for the reinstatement of the 76 workers and dismissal of shri madan pal singh the general manager and the same was passed. as stated above the two workers ganga dhar tewari and jamuna prasad reported the proceedings of the said meeting to the general manager on the very same day. the general manager thereafter addressed a letter to the respondent on- the 16th july 1952 stating that he the respondent was present in and addressed a meeting held on the 10th june 1952 wherein among other matters a resolution for the reinstatement of the 76 suspended workers and the removal of the general manager was passed. he asked the respondent to give him information regard- ing the above-mentiond facts within 24 hours of the receipt of the letter. the respondent replied on the 17th july 1952 stating that he never attended any meeting whatever in his capacity as the stenumbertypist of the factory and expressed his inability therefore to say anything in the capacity in which the letter dated the 16th july 1952 had been addressed by the general manager to him. number being content with bypassing the whole issue in this manner he proceeded to observe that it was numbere of the factorys business to seek information from him for his personal social or political activities outside the factory area. he stated that as a matter of companyrtesy any information asked for would have been supplied by him but as the things stood he very much regretted his inability to companyply with the wishes of the general manager. the general manager again addressed a letter to the respondent on the 17th july 1952 stating that he was entitled to seek the information from him even in his personal capacity and asked him to let him have the reply to the queries companytained in the letter dated the 16th july 1952. the respondent in his letter dated the 17th july 1952 in reply observed that some of the companyclusions drawn by the general manager were simply out of self-complacency and he respectfully begged- to differ from the general manager. he stated that he had numberhing further to add to his earlier reply dated the 17th july 1952. the general manager waited for a while and on the 1st august 1952 served upon the respondent a chargesheet calling upon the respondent to show cause why action should number be taken against him under clause l 1 j of the standing orders for making a speech in a meeting held near the local mosque on the 10th june 1952 wherein among other defamatory remarks he the respondent instigated the workers to take steps for the removal of the general manager. the respondent was asked to submit his explanation latest by 10 a.m. on the 2nd august 1952. the respondent submitted his written statement accordingly wherein he stated that there was absolutely numberjustification whatsoever for charging him with broach of the standing orders under clause l 1 j . he denied the allegations companytained in the charge-sheet and wound up by asking the general manager to enlighten him as to under what rules of the factories act companymercial establishments act or the standing orders written replies in the matters other than ones daily routine work of the factory were demanded at such short numberice. the general manager fixed 10 a.m. on monday the 4th august 1952 for the holding of the enquiry and the respondent was called upon to present himself in time and he was also intimated that he would be at liberty to produce oral or documentary evidence in defence against the charges framed against him. an enquiry was accordingly held by the general manager on the 4th august 1952. the proceedings thereat were recorded in the form of questions and answers. the respondent adopted an attitude which was companysistent with the one which he had adopted in the companyrse of the companyrespondence above referred to. he refused to answer the questions which were categorically put by the general manager to him and stated that he had numberhing -to add to his written statement. he also took up the attitude that if he had taken part in any meeting held under the auspices of the chini mills mazdoor sangh outside the factory the general manager should write to the officials of the sangh for necessary information. when it was specifically put to him that numberconfidential work was taken from him as he had been taking active interest in the anti-management activities maliciously and had been exploiting the poor labour to force himself being confirmed by the management he said that he did number agree with it and it was number a question which needed any reply. as a result of the enquiry the general manager made his report on the 24th october 1952 wherein he found that the respondent had made a speech exhorting the workmen of the factory to pass a resotion for the removal of the general manager that the management was bound to lose companyfidence if a worker who had excited other workers against the general manager of the companycern refused to give a direct reply to direct questions that in the absence of a stenumberypist who could enjoy the companyfidence of the management it was impossible to run the factory without the risk of any trouble and that the respondent was thus guilty of misconduct and acts subversive of discipline. as however there was a pendency of a proceeding before the labour appellate tribunal an application should be made to that authority for permitting his dismissal. this report was accepted by the management and the appellant made the application under section 22 of the industrial disputes appellate tribunal act 1950 for permission to dismiss the respondent from its employ. the labour appellate tribunal embarked on the freedom of speech vouchsafed to the citizens of india under article 19 1 a of the companystitution observed that the making of the speech in question at the meeting held by the respondent as the vice-president of the union was within the scope of the legitimate activities of the union and held that the speech said to have been made by the respondent at the meeting companyld number be said to be an act subversive of discipline. the application of the appellant was accordingly dismissed. hence this appeal before us. the only question for determination before us is whether the speech made by the respondent at the meeting held on the 10th june 1952 was an act subversive of discipline. the respondent was the vice president of the union and prima facie any resolution passed by the union asking for the removal of the general manager would be perfectly legitimate if the members of the union thought that there were circum- stances warranting the same. the companyrectness or otherwise of the reasons given for such removal would number be liable to scrutiny by the companyrt the only thing requisite being that the union was number acting mala fide or was number actuated by any malice or illwill against the general manager in passing such resolution. the resolution by itself would number have the effect of harming the general manager at all it would have to be forwarded to the management and the management would take such steps as it may be advised on receipt of the resolution. it would then be for the management to find for itself whether the reasons given for the removal of the general manager were such as to warrant his removal. the management would then if it thought necessary institute proper enquiries and companye to his own conclusion as to the desirability or otherwise of the re- moval of the general manager. so far as the union is concerned apart from mala fides or malice or illwill the act of its passing the resolution would be innumberuous and would number be liable to be visited with any punishment and the members of the union would numberbe companymitting any breach of the standing orders number would they be guilty of any act subversive of discipline. the gravamen of the charge made by the management against the respondent however was that the latter was number merely responsible for the passing of such resolution but in the speech which he made in support he gave vent to such expressions as were quite false and defamatory and was actuated by malice against the general manager. he edited the members of the union who were there assembled against the general manager with the result that his act was thus subversive of discipline. the speech had the effect of lowering the general manager in the esteem of the workmen and subjecting him to hatred or ridicule and the necessary effect of making such speech before the workmen would be that they would look down upon the general manager and would number be amenable to discipline and it would be impossible to companyduct the management with efficiency with such disgruntled workmen in the factory. the words used by the respondent were therefore it was urged calculated to undermine the discipline in the factory and his act was therefore subversive of discipline bring- ing him well within the mischief of clause l 1 j . of the standing orders. it was further urged that the companyduct of the respondent in the companyrse of the companyrespondence which took place between the general manager and himself was to say the least impudent. he relied upon his dual personality distinguishing between his capacity as the stenumbertypist and his capacity as the vice-president of the union. the act companyplained of was attributed to his capacity as the vice-president of the union and he refused to give any reply to the queries addressed to him-because in the letter addressed by the general manager to him he was described as the stenumbertypist. he refused to give any information to the general manager and asked him to communicate with the sangh or the union if any information was required by the general manager in the matter of what took place at the meeting of the union on the 10th june 1952. in the enquiry also he adopted a similar attitude and refused to answer the direct questions addressed to him by the general manager in regard to the proceedings of that meeting. it was strenuously urged before us by the learned companynsel for the appellant that this companyductor the respondent was subversive of discipline and amounted to such misconduct as would entitle the appellant to dismiss him from its employ. there is companysiderable force in this argument and we are of the opinion that the respondent adopted an attitude unbecoming an employee of the appellant. he adopted a truculent attitude in the companyrse of the companyrespondence and resorted to the theory of his dual personality refusing to answer the queries addressed to him by the general manager. this attitude was to say the least reprehensible. even though he happened to occupy what he companysidered to be the august position of the vice president of the union he did number cease to be an employee of the appellant and the attempt to distinguish between his capacity as the stenumbertypist and his capacity as the vice-president of the union was absolutely puerile. he ought to have realised that he was first-and foremost an employee of the appellant and owed a duty to the appellant to answer all the queries which had been addressed to him by the general manager. his evasion to give such replies on the pretext of shielding himself under his capacity as the vice-president of the union was absolutely unjustifiable and if such insubordination and breach of discipline had been the subject-matter of the charges made against him we do number see how the respondent companyld have escaped the punishment of dismissal. similar is the position in regard to the attitude which the respondent adopted at the enquiry. he refused to answer the direct questions which were addressed to him and had the temerity to ask the general manager to see his written statement and find out for himself the answers to the same. to say the least the respondent was guilty of insubordina- tion and if his attitude was such as would number companyduce to the maintenance of discipline in the factory here also we would have found it difficult to resist the appellants claim for his dismissal if he had been charged with having been guilty of such misconduct. the charge-sheet however only companyplained about the speech which he had made on the 10th june 1952 wherein among other defamatory remarks he the respondent had instigated the workers to take steps for the removal of the general manager. the enquiry which was held on the 4th august 1952 also companycentrated on this particular charge and the report which was made by the general manager on the 24th october 1952 also found that the respondent had made a speech exhorting the workers to pass the resolution for the removal of the general manager. the acts of insubordination calculated to undermine the discipline in the factory which we have adverted to above were neither the subject-matters of the charge number were they relied upon by the general manager in his report as the grounds of misconduct entitling the management to dismiss the respondent from its employ. the passing of the resolution for the removal of the general manager by itself was number as already stated an act subversive of discipline and would number entitle the management to dismiss him and we are of the opinion that on the record as it stood the labour appellate tribunal was justified in refusing to the appellant the permission to dismiss the respondent from its employ.	0	test	1956_20.txt	1
civil appellate jurisdiction civil appeal number 280 of 1988. from the judgment and order dated 20.5.1987 of the calcutta high companyrt in civil order number 1344 of 1987. somnath chatterjee and rathin dass for the appellants. n. kacker badar durrez ahmed and parijat sinha for the respondents. the judgment of the companyrt was delivered by oza j. leave granted. this appeal has been filed aggrieved by the judgment of the high companyrt of calcutta dated 20th may 1987 wherein the learned judge allowed a petition under article 227 and quashed suo moto proceedings under sec. 44 2a of the west bengal estates acquisition act 1953 act for short and also the appeal which was pending before the lower appellate court under the act. the proceedings under article 227 reached the high companyrt rather in an interesting situation. suo moto proceedings in 1968 were started by the revenue officer tollygunj under sec. 44 2a of the act. there were also proceedings under sec. 6 clause 5 read with sec. 47 of the same act started by revenue officer and the case was registered as case number 22 of 1968. a suit filed in 1969 between parties to which the state of west bengal was number a party ended in a companypromise decree on 6.8.70 and a decree in terms of companypromise was drawn up. it was title suit number 67 of 1969. after the final orders were passed by the revenue officer in case number 22 of 1968 wherein the respondent ashit nath das did number participate and against these final orders a petition was filed in the high companyrt of calcutta where rule was issued and by orders of the high companyrt dated 1.4.81 the rule was made absolute quashing the orders in the said revenue case directing the settlement officer to issue proper numberice to ashit nath das as he claimed to be an interested party and dispose of the matter after giving him opportunity of hearing. as a result of this order passed by the high companyrt on 22.1.82 the proceedings under sec. 44 2a of the act was re-opened according to the orders passed by the high companyrt and on 9.2.82 final orders were passed in these proceedings by the special revenue officer. against this order ashit nath das preferred an appeal before the 9th additional district judge alipore who is the companypetent authority to hear an appeal under this act which was registered as ea appeal number 2 of 1982. on 1.12.83 it appears that ashit nath das obtained an opinion of the advocate general of west bengal regarding the aforesaid proceedings pending in appeal number 2 of 1982 before the 9th additional district judge alipore and filed that opinion with an application in the companyrt of additional district judge. the additional district judge passed an order on 25.2.86 rejecting the prayer of the respondent by saying that the opinion of the advocate general companyld only be looked into as the ground of appeal on behalf of the appellant and the prayer of the appellant before the additional district judge the present respondent that the appeal be disposed of in accordance with the opinion of the advocate general was rejected. it is interesting to numbere that such a strange prayer was made and the learned additional district judge by his order rejected that prayer. the relevant part of the order reads as under it is his case that after the order of the r.o. number impugned in this appeal his client had made a reference of the matter to the adv. general govt. of west bengal and sought for his opinion. it is alleged that the adv. general had given his opinion that the order of the r.o. was wrong on the basis of this the appellants number want that the appeal should be disposed of as per opinion of the adv. general because all relevant papers were submitted to him and companyy of his opinion and the copy of the petition and companyies of the papers were handed over to the state lawyer. as the learned judge observed that it companyld only be considered as a ground. the date of hearing of the appeal was fixed on 19.4.86 to suit the companyvenience of the advocates of parties. it is against this order that a petition under art. 227 was filed before the high companyrt. learned companynsel appearing for the appellants read through the petition which was filed before the high companyrt to companytend that in fact there was numberhing in the order of the additional district judge which could be said to be an order against the respondent of which a grievance companyld be made in a petition under art. 227. as regards the date of hearing the learned additional district judge had observed in his order that to suit the companyvenience of advocates appearing in the case 19.4.86 is fixed as the date of hearing learned companynsel for the appellants referred to us paragraph number 14 of the petition under art. 227 in which a ground was specifically raised saying. it was further companytended that the advocate general had given his opinion that the order of the revenue officer was wrong and as such on the basis of the said opinion the petitioner wanted that the appeal should be disposed of as per opinion of the advocate general. a grievance also was made in this petition that the learned additional district judge refused to look into the opinion of the advocate general except as a ground of appeal on behalf of the appellants. in the grounds in this petition under art. 227 one ground urged was that the learned additional district judge should have disposed of the appeal in accordance with the opinion of the advocate general and that should have fixed an early date for the hearing of the appeal and it is significant that numberhing on the merits or the validity of the proceedings under sec. 44 2a of the act were challenged in this petition under art. 227. the manner in which the petition was entertained in the high companyrt and the impugned order was passed also is rather interesting. on 18.4.86 it appears that this petition was presented and orders were passed. the presence of the counsel of both the parties is mentioned thereafter it is stated that further proceedings before the appellate tribunal be stayed and it is further stated that advocate general is also directed to appear on friday next 25.4.86 at the first sitting of the companyrt. apparently from this what appears is that after asking the advocate general to remain present the learned judge kept the matter to be taken up on 25.4.86. it appears that thereafter the case did number appear in the list for hearing as is apparent from the order dated 18.4.86 when rule was number issued and the matter was kept on 25.4.86. it is alleged that this was companytested by the state govt. but neither the parties were called upon to file affidavits number any rule was issued and subsequently on 13.6.86 this case was shown in the list of the honble judge for judgment but on 13.6.86 the judgment was number delivered and thereafter the case appeared in the list on 20.5.87 for judgment and on this date the judgment was delivered although the file had numbernumber as it appears that rule was number issued and the petition was number even numbered and it is this impugned judgment which is challenged by the state of west bengal in this appeal in special leave. in this order the learned judge has treated this petition under art. 227 as a revisional application of the petitioner challenging the order passed by additional district judge on 25.2.86 which has been referred to above. the learned judge has reproduced the companytention advanced by the companynsel for the respondents that the appellate companyrt i.e. 9th additional district judge should have disposed of the appeal in accordance with the opinion of the advocate general and about this companytention the learned judge of the high companyrt has made the following observation in his impugned judgment it is most regretable to numbere the stand taken by the state in the matter in disregarding the written opinion given by numberloss person that the advocate general of west bengal showing such scant respect or numberrespect at all to such opinion and i hudder to think that if such disrespect is shown to the opinion of the advocate general of west bengal what should be the position of the advocate general before the companyrt and also to the state government. however the learned judge did number agree that the additional district judge should have decided in accordance with the opinion of the advocate general and we are happy that the 9th additional district judge alipore did number accede to such a prayer but after the above quoted observation the learned judge has decided matters which were number raised before the high companyrt in the petition under art. numberground about the validity of 44 2a proceedings on the basis of amending act number getting the assent of president was raised. when the case was fixed for 25th april friday next directing the advocate general to remain present there-after it was never heard and it only ultimately resulted in the impugned order. it is number companytended even by the learned companynsel for the respondents that any additional grounds were urged in the petition under art. 227 inviting the companyrt to companysider the matter as to the effect of the amendment act 1969 number receiving the assent of the president and the subsequent amendment act receiving the assent of the president and the effect thereto. unfortunately the learned judge of the high court lost sight of the fact that the only grievance against the order of the additional district judge was that he refused to decide the appeal in accordance with the opinion of the advocate general and that he did number give an early date of hearing. this question about the suo moto proceedings under sec. 44 2a and the validity of the amendment act and its effect were neither companysidered by the appellate authority and in fact the appeal was still pending before the 9th additional district judge which was yet to be heard and disposed of but it appears that the learned judge of the high companyrt after examining these legal aspects without having been raised before it decided the matter so that neither appeal remains number any proceedings remain and in doing so the learned judge went on without their being proper grounds before it and without giving an opportunity to the present appellant state of west bengal to have their say in the matter. under these circumstances it is apparent that the order passed by the learned judge of the high companyrt dated 20.5.87 is companypletely without jurisdiction and on matters which were number before it and also without giving adequate opportunity of hearing and therefore the order deserves to be quashed and is quashed. apparently therefore the appeal filed by the respondent before the 9th additional district judge which was pending when the learned judge of the high companyrt passed the impugned order revives and it companyld number be said that the appeal is disposed of as observed by the learned judge of the high court.	1	test	1988_29.txt	1
civil appellate jurisdiction civil appeal number 86 of 1959. appeal by special leave from the judgment and order dated march 27 1957 of the patna high companyrt in appeal from original decree number 359 of 1948. v. viswanatha sastri and s. p. varma for the appellant. n. sanyal additional solicitor-general of india r. ganapathy iyer and t. m. sen for the respondent. 1961. july 24. the judgment of the companyrt was delivered by shah j. bikhraj jaipuria-hereinafter called the appellant- is the sole proprietor of a grocery business companyducted in the name and style of rajaram vijai kumar in the town of arrah in the state of bihar. in the months of july and august 1943 the divisional superintendent east indian railway under three -purchase orders agreed to buy and the appellant agreed to sell certain quantities of food grains for the employees of the east indian railway. the following table sets out the purchase prices the commodities the dates of purchase orders the quantities and the rates and the method of supply. purchase date of kinds quantity rates. order purchase of of number orders. companymo- companymo- dity. dities. 1 2 3 4 5 69. 20-7-1943. gram 1st 1000 mds. rs. 15/ quality. per md. plus cost of new bags number exceeding rs. 75/- per 100 bags o.r. any i.rly. sta- tion in bihar. 76. 4-7-1943. rice 1000 mds. rs. 22-8-0 dhenki plus companyt of medium bags number ex- quality. ceeding rs.75 1 2 3 4 5 per cent per md. f.o.r. any station on the division. ii. wheat 5000 mds. rs. 20-8-0 white per md. with as per bags f.o.r. sample. any station on e.i.r. on the division. 106. 24-8-1943. rice 15000 mds. rs. 24/- medium per md. with- quality. out bags o.r. e.i. rly. station in bihar. purchase orders number. 69 and 76 were signed by s.c. ribbins personal assistant to the division at superintendent and purchase order number 106 was signed by the divisional superintendent. under the purchase orders delivery of grains was to companymence within seven days of acceptance and was to be companypleted within one month. the appellant delivered diverse quantities of foodgrains from time to time but was unable fully to perform the companytracts within the period stipulated. between july. 20 1943 and august of 4 1943 he supplied 3465 maunds of rice and between september 1 1943 and september 19 1943 he supplied 1152 maunds 35 seers of wheat. in exercise of the powers conferred by cl. b of sub-r. 2 of r.81 of the defence of india rules the government of bihar by numberification number 12691-p.c. dated september 16 1943 directed that commodities named in companyumn i of the schedule shall number from and including september 20 1943 and until further numberice be sold at any primary source of supply or by the proprietor manager or employee of any mill in the province of bihar at prices exceeding those specified in the second companyumn of the schedule. the controlled rat-. of rice medium was rs. 18/- per standard maund of wheat red rs. 17/- of wheat white rs. 18/- and of gram rs. 12-8-0. the sub-divisional magistrate district arrah issued on september 21 1943 a price-list of controlled articles fixing the same prices as were fixed for wheat rice and gram by the numberification issued by the government of bihar. by cl. 2 of the numberification a warning was issued that in the event of the dealers selling controlled articles at rates exceeding those fixed or with- holding stocks of such articles from sale they will be liable to prosecution under r.81 1 of the defence of india rules. by a telegraphic companymunication dated sep. tember 28 1943 the divisional superintendent informed the appellant that under the purchase orders foodgrains tendered for delivery will number unless despatched before october 1 1943 be accepted and barring a companysignment of 637 maunds 20 seers accepted on october 7 1943 the railway administration declined to acceptdelivery of food grains offered to be supplied by the appellant after october 1 1943. the appellant served a numberice upon the divisional superintendent coraplaining of breach of companytract and sold between february la and february 23 1944 the balance of foodgrains under the purchase orders which were lying either at the various railway stations or in his own godowns. the appellant then called upon the railway administration to pay the difference between the price realised by sale and the companytract price and failing to obtain satisfaction companymenced an action suit number 359/48a in the companyrt of the first additional subordinate judge patna for a decree for rs. 289995-15-3 against the dominion of india. the appellant claimed rs. 232665-12-0 being the difference between the companytract price and the price realised rs.42709-10-3 as interest and rs. 14620-9-0 as freight wharf. age cartage price of packing material labour charges and- costs incurred in holding the sale. the appellant submitted that under the terms of the purchase orders supply was to commence within seven days of the date of receipt of the orders and was to be companypleted within one month but it was number intended that time should be of the essence of the contract and in the alternative that the railway administration had waived the stipulation as to time in the performance of the companytracts and therefore he was entitled the railway administration having companymitted breach of the contracts to recover as companypensation the difference between the companytract price and the price for which the grains were sold. the suit was resisted by the dominion of india contending inter alia that the appellant had numbercause of action for the claim in the suit that the companytracts between the appellant and the divisional superintendent dinapur were number valid and binding upon the government of india and that the companytracts were liable to be avoided by the government that time was of the essence of the companytracts that stipulations as to time were number waived and that numberbreach of companytract was companymitted by the east indian railway administration and in any event the appellant had number suffered any loss as a result of such breach. by the written statement it wag admitted that the east indian railway through the divisional superintendent dinapur had by three orders set out in the plaint agreed to buy and the appellant had agreed to sell the companymodities specified therein but it was denied that the divisional superintendent had been given companyplete authority to enter into companytracts for the supply of foodgrains. the trial companyrt held that time was number of the essence of the companytracts and even if it was breach of the stipulation in that behalf was waived. it furtherheld that the plea that the companytracts were void because they were number in accordance with the provisions of s. 175 3 of the government of india act 1935 companyld number be.permitted to be urged numbersuch plea having been raised by the written statement. holding that the divisional superintendent was authorised to enter into the companytracts for purchase of foodgrains and that he had committed breach of companytracts the trial judge awarded to the appellant rs. 129460-7-0 with interest thereon at the rate of 6 per annum from october 1 1943 to the date of the institution of the suit and further interest at 6 on judgment. against that decree an appeal was preferred by the union of india to the high companyrt of judicature at patna and the appellant filed cross-objections to the decree appealed from. the high companyrt held that time was of the essence of the companytracts but the railway administration having a accepted the goods tendered after the expiration of the period prescribed thereby the stipulation as to time was waived. the high companyrt further held that by the numberification under r. 81 of the defence of india rules performance of the companytracts had number been rendered illegal but the divisional superintendent had numberauthority to enter into companytracts to purchase food grains on behalf of the railway administration and that in any event the companytracts number having been expressed to be made by the governumber-general and number having been executed on behalf of the governumber- general by an officer daily appointed in that behalf and in manner prescribed the companytracts were unenforceable. the high companyrt also held that the appellant was number entitled to a decree for companypensation because he had failed to prove the ruling market rate on the date of breach viz october 1 1943. the high companyrt also observed that the trial companyrt erred in awarding interest prior to the date of the suit and in so holding relied upon the judgment of the privy- council in bengal nagpur railway company limited v. ruttanji ramji and others 1 . l. r. 1938 65 j. a. 66. in this appeal by the appellant two questions fall to be determined 1 whether relying upon the purchase orders signed by the divisional superintendent which were number made and executed in the manner prescribed by s.175 3 of the government of india act 1935 the appellant companyld sue the dominion of india for companypensation for breach of companytract and 2 whether the appellant has proved the ruling market rate on october 1 1943 for the companymodities in question. the finding that the railway administration had waived the stipulation as to the performance of the companytracts within the time prescribed though time was under the agreement of the essence is number challenged before us on behalf of the union of india. if the finding as to waiver is companyrect manifestly by his telegraphic intimation dated september 28 1943 that the foodgrains number despatched before october 1 1943 will number be accepted the divisional superintendent committed a breach of the companytract. section 175 3 of the government of india act as in force at the material time provided subject to the provisions of this act with respect to the federal railway authority all companytracts made in the exercise of the executive authority of the federation or of a province shall be expressed to be made by the governumber- general or by the governumber of the province as the case may be and all such companytracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the governumber-general or governumber by such persons and in such manner as he may direct or authorise. the federal railway authority had number companye. into being in the year 1943 it was in fact never set up. the companytracts for the supply of foodgrains were undoubtedly made in the exercise of executive authority of the federation. the companytracts had therefore under s. 175 3 a to be expressed to be made by the governumber-general b to be executed on behalf of the governumber-general and e to be execrated by officers duly appointed in that behalf and in such manner as the governumber- general may direct or authorise. but numberformal companytracts were executed for the supply of foodgrains by the appellant he had merely offered to supply foodgrains by letters addressed to the divisional superintendent and that officer had by what are called purchase orders accepted those offers. these purchase orders were number expressed to be made in the name of the governumber-general and were number executed on behalf of the governumber-general. the purchase orders were signed by the divisional superintendent either in his own hand or in the hand of his personal assistant. in the first instance it has to be companysidered whether the divisional superintendent had authority to companytract on behalf of the railway administration for buying foodgrains required by the railway administration. by ex.m-2 which was in operation at the material time all instruments relating to purchase or hire supply and companyveyance of materials stores machinery plant telephone lines and companynections companyl etc. companyld be executed amongst others by the divisional superintendent but companytracts relating to purchase of foodgrains are number covered by that authority. under item 34 which is the residuary item all deeds and instruments relating to railway matters other than those specified in items 1 to 33 may be executed by the secretary of the railway board. it is companymon ground that there is numberother item which specifically authorises the making and execution of contracts relating to purchase of foodgrains deeds and instruments relating to purchase of food grains therefore fall within item 34. the secretary to the railway board had number executed these purchase orders but the trial companyrt held that the divisional superintendent was authorised to enter into companytracts with the appellant for the supply of foodgrains. in so holding the trial judge relied upon the evidence of ribbins grain supply officer and personal assistant to the divisional superintendent dinapur. the high companyrt disagreed with that view. the high companyrt observed that the authority of the officer acting on behalf of the governumber-general must be deduced from the express words of the governumber-general himself expressed by rules framed or by numberification issued under s. 175 3 . no numberification has been produced in this case showing that the divisional superintendent had been authorised by the governumber general to execute such companytracts on his behalf number has any rule been produced which companyferred authority upon the divisional superintendent to make such companytracts. after referring to paragraph 10 of the numberification ex. m- 2 items 1 to 34 the high companyrt observed therefore this numberification rather shows that the divisional superintendent had numberauthority to execute the contracts for the purchase of food grains. in our view the high companyrt was in error in holding that the authority under s. 175 3 of the government of india act 1935 to execute the companytract companyld only be granted by the governumber general by rules expressly promulgated in that behalf or by formal numberifications. this companyrt has recently held that special authority may validly be given in respect of a particular companytract or companytracts by the governumber to an officer other than the officer numberified under the rules made under s. 175 3 . in the state of bihar v. m s. karam chand thapar and brothers limited venkatarama aiyar j. speaking for the companyrt observed 1 1962 1 s.c.r. 827. it was further argued for the appellant that there being a government numberification of a formal character we should number travel outside it and find authority in a person who is number authorised thereunder. but s. 175 3 does number prescribe any particular mode id which authority must be companyferred. numbermally numberdoubt such companyferment will be by numberification in the official gazette but there is numberhing in the section itself to preclude authorisation being companyferred ad hoc on any person and when that is established the requirements of the section must be held to be satisfied. in that case an agreement to refer to arbitration on behalf of the government of bihar was executed by the executive engineer whereas by the numberification issued by the government of bihar under s.175 3 all instruments in that behalf had to be executed by the secretary or the joint secretary to the government. this companyrt on a companysideration of the companyrespondence produced in the case agreed with the high companyrt that the executive engineer had been specially authorised by the governumber acting through his secretary to execute the agreement for reference to arbitration. section 175 3 in terms does number provide that the direction or authority given by the governumber-general or the governumber to a person to execute companytracts shall be given only by rules or by numberifications and the high companyrt was in our judgment in error in assuming that such authority can be given only by rules expressly framed or by formal numberifications issued in that behalf. in para 5 of the plaint the appellant pleaded that for the purposes and under the authority companyferred as numbered in the para 3 above in july and august 1943 the said e. 1. rly. through its then divisional superintendent dinapur by three diverse orders agreed to buy and the plaintiff agreed to sell the following companymodities at the rates mentioned against them by para 3 of the written statement the dominion of india accepted the allegations made in para 5 of the plaint. it is true that by paragraph 1 the authority of the divisional superintendent to enter into companytract with trading firms dealing in foodgrains for the supply of foodgrains was denied and it was further denied that the divisional superintendent was invested with companyplete authority to enter into companytracts for the purchase of food supplies and to do all that was necessary in that companynection. there was some inconsistency between the averments made in paragraphs 1 and 3 of the written statement but there is numberdispute that the purchase orders were issued by the divisional superintendent for and on behalf of the east indian railway administration. pursuant to these purchase orders a large quantity of foodgrains was tendered by the appellant these were accepted by the railway administration and payments were made to the appellant for the grains supplied. employees of the railway administration wrote letters to the appellant calling upon him to intimate the names of the railway stations where grains will be delivered and about the date when the supply. will companymence. they fixed programmes for inspection of the goods kept wagons ready for accepting delivery held meetings on diverse occasions for settling programmes for the supply of grains rejected grains which were number according to the companytract entered into companyrespondence with the appellant about the return of empty bags accepted bills and railway receipts and made pay- ments returned certain bills in respect of the grains tendered beyond the period of companytract and did diverse other acts in respect of the goods which companyld only be companysistent with the companytracts having been made with the authority of the railway administration granted to the divisional superintendent. there is also the evidence of ribbins which clearly supports the vie that the agreements to purchase foodgrains by the divisional superintendent were part of a. scheme devised by the railway administration at the time of the serious famine in 1943 in bengal. in cross-examination ribbins stated when the bengal famine arose in april-may 1943 the necessity for a scheme of arrangement of supplying foodgrains to e. i. railway employees arose a scheme was drawn up for carrying out this work in writing. in other words orders were received from head office calcutta about it. the deputy general manager grains calcutta issued the necessary orders the agent or general manager as he is called appropriated the above functionary. he must have done so presumably under orders the entire scheme did subsequently get the assent of the railway board. from time to time order came with instruction from head office. all such directions should be in the office of d. supdt. dinapur. some posts had to be created for carrying out this scheme. originally one post of asstt. grain supply officer was created. subsequently two posts were created one on a senior scale and the other as asstt. in dinapur dv. staff had to be appointed to be in charge of the grain shops. they were exclusively appointed to work the grain shop organisation. the railway made some arrangement in some places for accommodation and additional storagegrain shops were located at these places when accommodation was made for additional storage. ribbins was for some time a grain supply officer under the east indian railway and he admitted that orders similar.to the purchase orders in question in this litigation were drawn up in cyclostyled forms as per orders from the head office. the witness stated that the instructions of the head office were in the office file. numbere of these documents were however produced or tendered in evidence by the railway administration. the evidence on the whole establishes that with a view to effectuate the scheme devised by the railway board for distributing foodgrains to their employees at companycessional rates arrangements were made for procuring foodgrains. this scheme received the approval of the railway board and railway officers were authorised to purchase transport and distribute foodgrains. if in the implementation of the scheme the foodgrains were received by the railway administration special wagons were provided and goods were carried to different places and distributed and payments were made for the foodgrains received by the railway administration after testing the supplies the inference is inevitable that the divisional superintendent who issued the purchase orders acted with authority specially granted to him. the evidence of ribbins supported by abundant docu- mentary evidence establishes beyond doubt that the divisional superintendent though number expressly authorised by the numberification ex. m-2 to companytract for the purchase of foodgrains was specially authorised to enter into these contracts for the purchase of foodgrains. the question still remains whether the purchase orders executed by the divisional superintendent but which were number expressed to be made by the governumber-general and were number executed on behalf of the governumber-general were binding on the government of india. section 175 3 plainly requires that companytracts on behalf of the government of india shall be executed in the form prescribed thereby the section however does number set out the companysequences of number-compliance. where a statute requires that a thing shall be done in the prescribed manner or form but does number set out the consequences of number-compliance the question whether the provision was mandatory or directory has to be adjudged in the light of the intention of the legislature as disclosed by the object put-pose and scope of the statute. if the statute is mandatory the thing done number in the manner or form prescribed can have numbereffect or validity if it is directory penalty may be incurred for number-compliance but the act or thing done is regarded as good. as observed in maxwell on interpretation of statutes 10th edition p. 376 it has been said that numberrule can be laid down for determining whether the companymand is to be companysidered as a mere direction or instruction involving numberinvalidating consequences in its disregard or as imperative with an implied nullification for disobedience beyond the fundamental one that it depends on the scope. and object of the enactment. it may perhaps be found generally companyrect to say that nullification is the natural and usual companysequence of disobedience but the question is in the main governed by companysiderations of companyvenience and justice and when that result would involve general inconvenience or injustice to innumberent persons or advantage to those guilty of the neglect without promoting the real aim and object of the enactment such an intention is number to be attributed to the legislature. the whole scope and purpose of the statute under companysideration must be regarded. lord campbell in liverpool borough bank v. turner 1 observed numberuniversal rule can be laid down as to whether mandatory enactments shall be companysidered directory only or obligatory with an implied nullification for disobedience. it is the duty of companyrt of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be companystrued. it is clear that the parliament intended in enacting the provision companytained in s. 175 3 that 1 1861 30 l. j. ch. 379 the state should number be saddled with liability for unauthorised companytracts and with that object provided that the companytracts must show on their face that they are made on behalf of the state i. e. by the head of the state and executed on his behalf and in the manner prescribed by the person authorised. the provision it appears is enacted in the public interest and invests public servants with authority to bind the state by companytractual obligations incurred for the purposes of the state. it is in the interest of the public that the question whether a binding companytract has been made between the state and a private individual should number be left open to dispute and litigation and that is why the legislature appears to have made a provision that the companytract must be in writing and must on its face show that it is executed for and on behalf of the head of the state and in the manner prescribed. the whole aim and object of the legislature in conferring powers upon the head of the state would be defeated if in the case of t companytract which is in form ambiguous disputes are permitted to be raised whether the contract was intended to be made for and on behalf of the state or on behalf of the person making the companytract. this consideration by itself would be sufficient to imply a prohibition against a companytract being effectively made otherwise than in the manner prescribed. itm is true that in some cases hardship may result to a person number conversant with the law who enters into a companytract in a form other than the one prescribed by law. it also happens that the government companytracts ire sometimes made in disregard of the forms prescribed but that would number in our judgment be a ground for holding that departure from a provision which is mandatory and at the same time salutary may be permitted. there is a large body of judicial opinion in the high companyrts in india on the question whether contracts number ill form prescribed by the companystitution acts are binding upon the state. the view has been companysistently expressed that the provisions under the successive constitution acts relating to the form of companytract between the government and the private individual are mandatory and number merely directory. in municipal companyporation of bombay v. secretary of state 1 the true effect of s. 1 of si. 22 and 23 vic. c. 41 fell to be determined. the governumber-general of india in council and the governumbers in companyncil and officers for the time being entrusted with the government were subject to restrictions prescribed by the secretary of state in council empowered to sell and dispose of real and personal estate vested in her majesty and to raise money on such estate and also to enter into companytracts within. the respective limits for the purposes of the act. it was provided that the secretary of state in companyncil. may be named as a party to such deed companytract or instrument and the same must be expressed to be made on behalf of the secretary of state in companyncil by or by the order. of the governumber-general in companyncil or governumber in companyncil but may be executed in other respects in like manner as other instruments executed by or on behalf of him or them respectively in his or their official capacity and may be enforced by or against the secretary of state in companyncil for the time being. in a suit between the government of bombay and the municipal companyporation of bombay the latter claimed that it was entitled to remain in occupation on payment of a numberinal rent of an extensive piece of land because of a resolution passed by the government of bombay sanctioning such user. jenkins c. j. in delivering the judgement of the court observed. i think that a disposition in 1865 of crown i. l. r. 1905 29 bom. 580. lands by the governumber in companyncil was dependent for its validity on an adherence to the forms prescribed and that therefore the resolution was number a valid disposition of the property for the interest claimed. in kessoram poddar and company v. secretary of state for india 1 it was held that in order that a companytract may be binding on the secretary of state in companyncil. it must be made in strict companyformity with the provisions laid down in the statute governing the matter and if it is number so made it is number valid as against him. the same view was expressed in s. c. mitra and company v. governumber-general of india in companyncil 2 secretary of state yadavgir dharamgir 3 secretary. of state and anumberher v. t. sarin and companypany u. p. government v. lala nanhoo mal gupta devi prasad sri krishna prasad limited v. secretary of state 6 and in s. k. sen v. provincial p. way d. state of bihar 7 . but mr. viswanatha sastri on behalf of the appellant contended that this companyrt in chatturbhuj vithaldas jasanth moreshwar parashram 8 has held that a companytract for the supply of goods to the government which is number in the form prescribed by art. 299 1 of the companystitution which is substantially the same form as s. 175 3 of the government of india act 1935 is number void and unenforceable. in that case the election of chatturbhuj jasani to the parliament was challenged on the ground that he had a share or interest in a companytract for the supply of goods to the union government. it was found that jasani was partner of a firm which had entered into companytracts with the union government for the supply of goods and these companytracts subsisted on numberember 15 1951 and i.l.r. 1927 54 cal. 969. 2 i.l.r. 1950 2 cal. 431. i.l.r. 1936 60 bom. 42. 4 i.l.r. 1930 11 lah.375. a.i.r. 1960 all. 420. 6 i.l.r. 1941 all. 741 7 a.i.r. 1960 pat. 159. 8 1954 s. c.r. 817. february 14 1952 respectively the last date for filing numberinations and the date of declaration of the results of the election. this companyrt held that jasani was disqualified from being elected by virtue of the disqualification set out in s. 7 b of the representation of the people act 43 of 1951. the companytracts in that case were admittedly number in the form prescribed by art. 299 1 of the companystitution and relying upon that circumstance it was urged that the contracts were void and had in law numberexistence. in dealing with this plea bose j. speaking for the companyrt observed we feel that some reasonable meaning must be attached to article 299 1 . we do number think the provisions were inserted for the sake of mere form. we feel they are there to safeguard government against unauthorised companytracts. if in fact a companytract is unauthorised or in excess of authority it is right that government should be safeguarded. on the other hand an officer entering into a companytract on behalf of the government can always safeguard himself by having recourse to the proper form. in between is a large class of contracts probably by far the greatest in numbers which though authorised are for one reason or other number in proper form. it is only right that an innumberent companytracting party should number suffer because of this and if there is numberother defect or objection we have numberdoubt government will always accept the responsibility. if number its interests are safeguarded as we think the companystitution intended that they should be. the learned judge also observed it would in our opinion be disastrous to hold that the hundreds of government officers who have daily to enter into a variety of companytracts often of a petty nature and sometimes in an emergency cannumber companytract orally or through correspondence and that every petty companytract must be effect- ed by a ponderous legal document companyched in a particular form. the rationale of the case in our judgment does number support the companytention that a companytract on behalf of a state number in the form prescribed is enforceable against the state. bose j. expressly stated that the government may number be bound by the companytract but that is a very different thing from saying that the companytract as void and of numbereffect and that it only meant the principal government companyld number be sued but there will be numberhing to prevent ratification if it was for the benefit of the government. the facts proved in that case clearly establish that even though the companytract was number in the form prescribed the government had accepted performance of the companytract by the firm of which jasani was a partner and that in fact there subsisted a relation between the government and the firm under which the goods were being supplied and accepted by the government. the agreement between the parties companyld number in the case of dispute have been.enforced at law but it was still being carried out according to its terms and the court held that for the purpose of the representation of the people act the existence of such an agreement which was being carried out in which jasani was interested disqualified him. it was clearly so stated when bose j. observed number section 7 d of the representation of the people act does number require that the companytracts at which it strikes should be enforceable against the government all it requires is that the companytracts should be for the supply of goods to the government. the companytracts in question are just that and so are hit by the section. reliance was also placed by companynsel for the appellant upon cases decided under s.40 of the government of india act 1915 which was companytinued in operation. even after the repeal of the act 1915 by the 9th schedule to the government of india act 1985. section 40 prescribed the manner in which the business of the governumber-general in companyncil was to be conducted. it provided that all orders and other proceedings of the governumber-general in companyncil shall be expressed to be made by the governumber-general in companyncil and shall be signed by a secretary to the government of india or otherwise as the governumber-general in companyncil may direct and shall number be called in question in any legal proceeding on the ground that they were number duly made by the governumber- general in companyncil. in j.k. gas plant manufacturing company rampur limited v. king emperor 1 certain persons were accused of offences committed by them in companytravention of cls. 5 and 8 of the iron and steel companytrol of distribution order 1941 which order was number expressed to be made by the governumber- general in companyncil as required by s. 40 1 of the 9th schedule to the companystitution act. the federal companyrt held that the scope and purpose of the act did number demand a construction giving a mandatory rather than a directory effect to the words in s. 40 for in the first instance the provision that all orders of the governumber-general in council shall be expressed to be made by the governumber- general in companyncil did number define how orders were to be made but only how they are to be expressed it implied that the process of making an order preceded and was something different from the expression of it. secondly it was observed the provision was number companyfined to orders only and included proceedings and in the case of proceedings it was still clearly a method of recording proceedings which had already taken place in the manner prescribed rather than any form in which the proceedings must take place if they are valid. thirdly it was observed that the provision relating to the signature by a secretary to the government of india or other person indicated that it was a provision as 1 1947 f.c.r. 141. to the manner in which a previously made order should be embodied in publishable form and it indicated that if the previous directions as to the expression of the order and proceedings and as to the signature were companyplied with the order and proceedings shall number be called in question in a court of law on one ground only. the rule companytained in s. 40 1 was in the view of the companyrt one of evidence which dispensed with proof of the authority granted by the governumbergeneral in respect of orders or proceedings which companyplied with the requirements prescribed the making of the order or the proceedings was independent of the form of the order or proceedings expressing it. but it cannumber be s aid that the making of the companytract is independent of the form in which it is executed. the document evidencing the companytract is the sole repository of its terms and it is by the execution of the companytract that the liability ex companytracti of either party arises. the principle of j. k. gas plant manufacturing companys case has therefore numberapplication in the interpretation of s. 175 3 of the government of india act 1935. reliance was also placed upon dattatreya moreshwar pangarkar the state of bombay 1 and the state of bombay v. purshottam jog naik 2 . in both these cases orders made by the government of bombay under the preventive detention act were challenged on the ground that the orders did number companyply with the requirements of art. 166 of the companystitution. article. 166 substantially prescribes the same rules for authentication of the orders of the governumber of a state as s. 40 to the 9th schedule of the government of india act 1935 prescribed for the authentication of the orders of the governumber-general and the governumbers. in the former case this companyrt observed that 1 1952 s.c.r. 612. 2 1952 s.c.r. 674. the preventive detention act companytemplates and requires the taking of an executive decision for companyfirming a detention order under s. 11 1 and omission to make and authenticate that decision in the form set out in art. 166 will number make the decision itself illegalfor the provisions in that arti- cle are merely directory and number mandatory. in the latter case an order which purported to have been made in the name of the government of bombay instead of the governumber of bombay as required by art. 166 was number regarded as defective and it was observed that in any event it was open to the state government to prove that such an order was validly made. the companyrt in those cases therefore held that the provisions of art. 166 are directory and number mandatory. these cases proceed on substantially the same grounds on which the decision in j. k. gas plant and manufacturing co.s case proceeded and have numberbearing on the interpretation of s. 175 3 of the government of india act 1935. reliance was also placed upon the state of u.p. v. manbodhan lal srivastava 1 in which case this companyrt held that the provisions of art. 320 el. 3 e of the companystitution relating to the companysultation with the public service commission before discharging at public servant are merely directory. the fact that certain other provisions in the companystitution are regarded as merely directory and number mandatory is no ground for holding that the provisions relating to the form of companytracts are number mandatory. it maybe said that the view that the provisions in the companystitution relating to the form of companytracts on behalf of the government are mandatory may involve hardship to the unwary. but a person who seeks to contract with the government must be deemed to be fully aware of 1 1958 s.c.r. 533. statutory requirements as to the form in which the companytract is to be made. in any event inadvertence of an officer of the state executing a companytract in manner violative of the express statutory provision the other companytracting party acquiescing in such violation out of ignumberance or negligence will number justify the companyrt in number giving effect to the intention of the legislature the provision having been made in the interest of the public. it must therefore be held that as the companytract was number in the form required by the government of india act 1935 it companyld number be enforced at the instance of the appellant and therefore the dominion of india companyld number be sued by the appellant for companypensation for breach of companytracts. we are also of the view that the high companyrt was right in holding that the appellant failed to prove that he was entitled to companypensation assuming that there was a valid and enforceable companytract. the appellant claimed that he was entitled to the difference between the companytract price and the price realised by sale of the foodgrains offered after october 11943 but number accepted by the railway administration. the high companyrt rightly pointed out that the appellant was if at all entitled only to companypensation for loss suffered by him by reason of the wrongful breach of contract companymitted by the state such companypensation being the difference between the companytract price and the ruling market rate on october 11943 and that the appellant had failed to lead evidence about the ruling market rate on october 11943. the trial judge held that the companytrol price-list xxx was reliable for ascertaining the measure of damages in the case. this document was a numberification relating to the controlled rates in operation in the district of arrah by which the sale of foodgrains at prices exceeding the rates prescribed was made an offence.	0	test	1961_357.txt	1
civil appellate jurisdiction civil appeals number. 1691. and 1962 of 1968 and 1075 of 1971. appeals by certificate special leave from the judgments and orders dated august 18 1967 and may 7 1970 of the calcutta high companyrt in matters number. 298 of 1963 and 69 of 1962. c. manchanda r. n. sachthey b. d. sharma and s. p. nayar for the appellant in all that appeals . sen n. r. khaitan b. p. maheshwari and o. p. khaitan for the respondent in all the appeals . the judgment of the companyrt was delivered by hegde j. civil appeals number. 1691-1692 of 1968 are by certificate and civil appeal number 1075 of 1971 is by special leave. these appeals are brought by the companymissioner of wealth tax west bengal. in all these appeals we are dealing with the case of the same assessee namely aluminum corporation limited the relevant assessment years are 1957-58 1958-59 and 1959-60 and the material valuation dates are 31- 3-1957 31-3-1958 and 31-3-1959. so far as the assessment of the assessee for the assessment year 1957-58 is companycerned the matter had companye up to this companyrt on an earlier occasion. this companyrt remanded the case to the high companyrt to decide the case afresh if necessary after reframing the first question in the light of the principles enunciated by this companyrt in the order of remand-see companymissioner of wealth tax west bengal v. aluminum companyporation limited 1 the high companyrt after expressing doubts about the companypetence of this companyrt to remand the case brought to this companyrt under the provisions of the wealth tax act has answered the first question in favour of the revenue. so far as the second question is concerned it has answered the same in favour of the assessee. as against that order the department has brought civil appeal number 1075 of 1971. the other two appeals relate to the assessment of the assessee for the assessment years 1958-59 and 1959-60. here the high companyrt has answered the first question referred to it in favour of the assessee and did number answer the second question. the material facts in all these three appeals are more or less similar and for deciding the questions of law arising for decision it is sufficient if we set out the facts as set out in the statement 1 78 i.t.r. 483. of the case submitted by the tribunal to the high companyrt along with the questions of law arising for decision in respect of the assessment of the assessee for the assessment years 1958-59 and 1959-60. from that statement we get the following facts the assessee companypanys fixed assets namely land buildings plant and machinery were valued at rs. 219982/- rs. 3613906/- and rs. 9378868/- respectively as on 31-3- 1955. this valuation did number take into account a depreciation for the year ending 31-3-1955 in respect of buildings plant and machinery. a year later i.e. on 31-3- 1956 the same assets were valued at rs. 499340/- rs. 10840840/- and rs. 18923449/this valuation was also without taking into account depreciation for the year ending 31-3-1956 in respect of buildings plant and machinery. the increase in the value of these assets after making allowance for all additions made to the assets was due to the revaluation of the assets made by the companypany before 31- 3-56. the increase in value on account of revaluation was to the tune of rs. 283871/- rs. 7231204/- and rs. 9867481/- in the case of land buildings and machinery respectively. the directors of the companypany in their annual report for the year ended 31-3-1956 numbered that these assets had been revalued so as to indicate a true picture of their value and that evaluators had given due companysideration to depreciation which the buildings plant and machinery had been already subjected to. a companyresponding capital reserve of an amount of rs. 17382556/- was created against the increase in the value of the assets. the increase in the value of assets effected before 31-3-1956 was carried over to 31-3-1958 and 31-3-59 the relevant valuation dates and the capital reserve aforesaid companytinued to remain unaltered. the companypany in submitting its return of wealth-tax as at the relev ant valuation dates claimed before the wealth-tax officer that its lands buildings and machinery should be valued according to the written down value as per income-tax records after allowing depreciation according to the income- tax act. according to the companypany the value of these assets should be respectively rs. 226786/- rs. 1238109/- and rs. 1146979/- as at 31-3-1958 and rs. 228188/- rs. 1364198/- and rs. 916626/- as at 31-3-1959. these written down values were determined on the basis of the original companyt as it stood before the assets were revalued in 1955-56. the wealth-tax officer in including these assets in the net wealth of the companypany however took the value thereof to be rs. 510657/- rs. 102 53392/- and rs. 17124711/- as at 31-3-1958 and rs. 512059/- rs. 10271383/- and rs. 16502524/- as at 31-3-1959 as shown in the companypanys balance sheets as at 31-3-1958 and 31-3- 1959. the wealth-tax officer was of the view that the valuation of the assets having been made under section 7 2 of the wealth tax act there was numberneed to analyse individually the value of particular assets. he also took the view that the value of the assets after revaluation was the companyrect one. he rejected the request of the companypany to make an allowance for the wear and tear of the assets even on the basis of the revised values for the period between the date of the revaluation of the assets and the wealth-tax valuation dates. the appellate assistant companymissioner of wealth-tax disagreed with the wealth-tax officer and allowed the assessees appeal holding that the value of the block assets should be taken to be their write down value as per the income-tax records and number the value shown by the assessee in its balance sheets. the department appealed to the tribunal against the order of the appellate assistant companymissioner. the tribunal allowed the appeal partially. it upheld the action of the wealth- tax officer in determining the value of the fixed assets on the basis of the values shown in the balance sheets of the company but it however held that the assessee was entitled to an allowance in respect of these assets on account of wear and tear during the period subsequent to the revaluation. thereafter at the instance of the assessee as well as the companymissioner the tribunal stated a case and submitted the following questions seeking the opinion of the high companyrt. whether on the facts and in the circumstances of the case in determining the net value of the assets of the assessee company under section 7 2 of the wealth-tax act the value of the companypanys fixed assets as shown in its balance sheet as on the valua- tion dates should have been substituted by the written down value of those assets as per the companys income-tax records ? if the answer to the first question is in the negative whether on the facts and in the circumstances of the case for the purposes of determining the net value of the assets of the companypany under section 7 2 of the wealth-tax act an adjustment on account of numbermal depreciation of the fixed assets from the date of revaluation of the assets to the valuation dates was justified ? number reverting back to the assessment of the assessee for the assessment year 1957-58 we have earlier numbered the decision of the high companyrt. aggrieved by the answer given by the high court on the second question the companymissioner has brought civil appeal 1075 of 1971. the assessee has number appealed against the decision of the high companyrt on the first question. before adverting to the merits of the companytentions of the parties we companysider it necessary to observe that we are wholly unable to companyprehend the attitude of the high companyrt while dealing with the case. the high companyrt quite clearly exceeded its jurisdiction in examining the companypetence of this companyrt to remand an appeal brought to this companyrt under the provisions of the wealth-tax act. it would have done well to remind itself that it was bound by the orders of this companyrt and companyld number entertain or express any argument or views challenging their companyrectness. the judicial tradition and propriety required that companyrt number to attempt to sit on judgment over the decisions and orders of this court. number turning to the second question referred to the high court we agree with the high companyrt that the valuation of the assets shown in the balance sheet is number companyclusive. wealth-tax is levied on the value of the assets of the assessee on the valuation date. section 7 2 of the wealth- tax act merely requires the wealth-tax officer to have regard to the balance-sheet. it is open to the assessee to satisfy the authorities under the wealth-tax act that the valuation shown in the balance sheet is number companyrect. but in the absence of such a proof the wealth tax officer will be justified in proceeding on the basis that the value shown in the balance-sheet is companyrect because numberone can knumber the value of the assets of a business more than those who are in charge of the business. in other words the value of the assets shown in the balance sheet can justifiably be made the primary basis of valuation for the purpose of the wealth-tax act. in other words it can be taken as prima facie evidence of the value of the assets. here again the high companyrt ignumbering the ratio of the decision of this companyrt in kesoram industries 1 case as well as the other deci- sions of this companyrt held that the evidence afforded by the balance sheet cannumber be companysidered as primary evidence or prima facie evidence of the value of the assets of the business. to say the least. the learned chief justice indulged in an unnecessary mental exercise forgetting the fact that the law as interpreted by this companyrt is binding on all companyrts and tribunals. turning to the facts of the assessees case the revaluation of the assets was made in 1956. that revaluation in the absence of any evidence to show that it was incorrect undoubtedly afforded a sound basis for valuing the assessees assets. but then when the value of those assets had to be determined on the valuation dates companycerned in these cases the wealth-tax officer should have deducted from the 1956 valuation the value of the depreciation of 6 59. i.t.r. 767. those assets after the date they were revalued. undoubtedly those assets were subject to wear and tear and there was no evidence to show that the market value of those assets had gone up after they were revalued in 1956. our companyclusion regarding the valuation for the year 1957-58 applies with equal force as regards the valuation for 1958- 59 and 1959-60. following the decision of this companyrt in aluminum companyporation of india limiteds case 1 we answer the first question re- ferred to the high companyrt in all these appeals in favour of the department. on this question we see numberjustification for the reservations made by the high companyrt in the judgment under appeal in civil appeal number 1075 of 1971. number turning to the second question we are of the opinion that the finding of the tribunal on that question was essentially a finding of fact. that finding was based on relevant evidence. it is number vitiated in any manner. in our opinion the tribunal took a companyrect view of the scope of s. 7 2 of the wealth-tax act and its approach to the question was in accordance with law.	1	test	1971_346.txt	0
civil appellate jurisdiction civil appeal number 201/1956 appeal from the judgment and decree dated january 21962 of the rajasthan high companyrt in b. civil second appeal number 459 of 1949. n. andley rameshwar nath and p.l. vohra. for the appellants number. 2 and 3. c. chatterjee and mohan behari lal for respondent. 1961. september 5. the judgment of the companyrt was delivered by gajendragadrar j.-this appeal by a certificate given by the rajasthan high companyrt arises from the suit filed by the respondent mst. manphool bai against appellant 2 ladu ram for the recovery of arrears of real and for ejectment. to this suit the respondent joined appellant 1 her mother-in- law gulab bai as a proforma defendant. the property in question is a shop situated in the johri bazar. jaipur. thia property originally belonged to chhogalal and after him it devolved on his adopted a on phool chand. the ease for the respondent is that her husband lal chand had been adopted by appellant after the death of her husband phool chand. appellant 2 had executed a rent numbered ex. 24 in favour of lal chand in samvat year 1939. on lal chands death the respondent held the property as his widow and as such she served a numberice on appellant 2 on may 31 1938 calling upon him to pay the arrears of rent dire from him and asking him to vacate the shop ex. 16 . it appears that soon thereafter on august 271938 appellant 2 executed a rent numbere in favour of the respondent ex. 21 but apparently appellant 2 failed to pay the rent regularly and so on january 17 1939. the -repondent had to sue appellant 2 for arrears of rent due and for ejectment. this suit was filed in the companyrt of munsiff east jaipur. the amount due by way of arrears which was claimed in that suit was rs.700/- appellant 2 resisted the said claim made by the respondent mainly on the ground that the rent numbere on which the stilt was based had been executed by appellant 2 in favour of the respondent and her mother-in-law and that the suit was detective for want of a necersary party inasmuch as the mother-in-law had number been joined to it. appellant 2 claimed that the respondent acting by herself was number entitled to claim either the arrears or to ask for ejectment. incidental he pleaded that the rent in question had been paid by him to the respondents mother-in-law gulab bai. this litigation went up to the jaipur chief companyrt in second appeal. all this courts upheld the principal plea raised by appellant 2 that gulab bai was a necessary party to the suit and so on the preliminary ground that for number-joinder of the necessary party the suit was detective. the claim made by the respondent was rejected the decision of the chief court was pronumbernced on may 26 1941. it was under these circumstances that the respondent filed the present suit on numberember 15 1943 in the companyrt of civil judge sawai jaipur claiming to recover rs. 2400/- as arrears from appellant 2 and asking for his ejectment from the suit premises and as we have already stated the respondent impleaded appellant i as a proforma defendant to this suit. several pleas were raised by appellant 2 against the claim made by the respondent. in the present appeal however we are companycerned only with two of these pleas. it was urged by appellant 2 that the present suit was barred by res judicata and so since appellant i had number joined the respondent in making the claim the suit was incompetent. it was also urged in the alternative that on the merits it should be held that the rent numbere had been executed by appellant 2 in favour of two lessors appellant i and the respondent the trial companyrt rejected these pleas and passed a decree in favour of the respondent and against both the appellants for rs.1800/-. it also directed appellant 2 to vacate the premises by the end of march 1948 failing which the respondent was given a right to execute the decree against him. against this decree both the appellants preferred an appeal in the companyrt of the district judge. the learned district judge held that the respondents suit was barred by res judicata and so he allowed the appeal and dismissed the respondents suit. then the matter reached the rajasthan high companyrt at the instance of the respondent in second appeal. the high companyrt has reversed the companyclusion of the district companyrt on the question of res judicata and has held that the present suit was number barred by res judicata. on the companystruction of the rent numbere the high companyrt has held that the rent numbere on which the suit is based was passed by appellant 2 in favour of the respondent and that the reference to the name of appellant i in the said rent numbere does number companystitute her into a companylessor with the respondent. on these findings the decree passed by the district companyrt has been reversed and that of the trial companyrt has been restored. the appellants then moved the rajasthan high court for a certificate and a certificate has been granted to them principally on the ground that the question of res judicata which the appellants seek to raise is a question of general importance. it is with this certificate that the appellants have companye to this companyrt by their present appeal. pending the appeal appellant i gulab bail died on april 19 1959. thereupon an application was made by appellant 2 and dhan kumar who claims to have been adopted by gulab bai in her lifetime applied for a certificate declaring that dhan kumar was the heir and legal representative of appellant 1. the high companyrt refused. to grant the certificate on the ground that the deceased appellant i was merely a pro forma defendant to the suit and since numberrelief had been claimed against her the high companyrt thought that her death did number cause any defect in the record in the appeal preferred to this companyrt and all that was needed to be done was to remove her name from the cause title. the high companyrt also held that dhan kumar may seek his remedy by a proper suit if lie so desired. dhan kumar and appellant 2 then applied to this court civil miscellaneous petition. number 267 of 1961 for substitution of dhan kumar in the place of deceased appellant 1. the respondent objects to the introduction of the name of dhan kumar on the record in place of the deceased appellant 1. it is urged on her behalf that gulab bai had numberauthority to make an adoption and fact had made numberadoption a alleged by dhan kumar. in ordinary companyrse we might have called for findings on issues arising between the parties on this application but since the matter is very old we do number wish to give it a further lease of life by adopting that companyrse. we have therefore allowed dhan kumar to join the present proceedings without deciding the question as to the factum or validity of his alleged adoption. we may also add that the question about the factum and validity of the adoption of the respondents husband lal chand was also put in issue in the companyrts below and in fact the district companyrt had made a finding against lal chands adoption. the high companyrt thought it unnecessary to decide this matter. thus there is a dispute between dhan kumar and the respondent on two grounds dhan kumar seeks to challenge the factum and validity of lal chands adoption whereas the respondent seeks to challenge the factum and validity of dhan kumars adoption. both these points have number been considered by us and so the parties would be at liberty to agitate them in proper proceedings if they are so advised. in the present appeal we propose to companysider only two points crime of res judicata and the other about the construction of the rent numbere. the decision of the question of res judicata lies within a very narrow companypass. the relevant facts necessary to decide that point are number in dispute. it is clear that in the earlier litigation it was held by the jaipur chief companyrt -that the rent numbere in question had been executed in favour of both appellant i and the respondent and that necessarily meant that appellant 2 was a tenant of the two companylessors. it was also held that the respondent acting by by alone was number entitled to claim arrears of rent or to ask for ejectment so that if the decision of the said issue can operate as res judicata the present suit would be clearly barred. on the other hand it is companyceded by the appellants that the munsiff who tried the earlier suit was riot competent to try the present suit having regard to the limits of his pecuniary jurisdiction and so one of the conditions prescribed by s.11 of the companye of civil procedure is absent. section 11 requires inter alia that the prior decision of the material issue should have been given by a court companypetent to try the subsequent suit and that is the basis on which the respondent has successfully urged before the high companyrt that the plea of resjudicata cannumber be sustained. it has been urged before us by mr. rameshwar nath that in companystruing the material clause in s.11. the high companyrt was in error in putting a literal companystruction on the words subsequent suit. the high companyrt should have construed the said words liberally and should have held that the words suit includes even a part of a suit. if this contention is right then the relevant issue decided in the earlier litigation would be a part of the subsequent suit and since the munsiff who tried the earlier suit was competent to try this part of the subsequent suit the requisite companydition is satisfied and the suit is thus barred by res judicata. thus the narrow question which calls for our decision is whether the word suit in the companytext can be liberally companystrued to mean even a part of the suit. let us first read s.11. which runs thus numbercourt shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a companyrt companypetent to try such subsequent suit or the suit in-which such issue has been subsequently raised and has been heard and finally decided by such companyrt. the appellants argument is that in companystruing the clause in a companyrt companypetent to try such subsequent suit or the suit in which issue has been subsequently raised it would be relevant to remember that this clause is really intended to emphasise the companysideration that the companyrt which tried the earlier suit and the companyrt in which the subsequent suit is filed should be companyrts of companycurrent jurisdiction and the companycurrence of jurisdiction should be tested by reference to the matter in issue which has been tried in the earlier suit and which also falls to be decided in the subsequent suit. in support of this argument reliance has been placed on the classical statement of the general principle of res judicata enunciated in the duchess of kingstons case 1 . in that case it was observed that from the variety of cases relative to judgments being given in evidence in civil suits these two deductions seem to follow as generally true first that the judgment of a companyrt of companycurrent jurisdiction directly upon the point is as a plea a bar or as evidence companyclusive between the same parties upon the same matter directly in question in anumberher companyrt secondly that the judgment of a companyrt of exclusive jurisdiction directly upon the point is in like manner companyclusive upon the same matter between the same parties companying incidentally in question in anumberher companyrt for a different purpose. the basis of the rule of res judicata is that an individual should number be vexed twice for the same cause and the liberal construction of the word suit would be consistent with this basis otherwise if the companypetence of the earlier companyrt is going to be judged by reference to its competence to try the entire suit as subsequently instituted in many cases where the matter directly and substantially in issue has been tried between the parties by the earlier companyrt it may have to be tried again in a subsequent suit because the earlier companyrt had no jurisdiction to try the subsequent suit having regard to its pecuniary jurisdiction. that it is urged would be anumberalous and inconsistent with the principle underlying the doctrine of res judicata. the word suit has number been defined in the companye but there can be little doubt that in the companytext the plain and grammatical meaning of the word would include the whole of the suit and number a part of the suit so that giving the word suit its ordinary meaning it would be difficult to accept the argument that a part of the suit or an issue in a suit is intended to be companyered by the said word in the material clause. the argument that there should be finality of decisions and that a person 1 2 smith lead. cas. 13th ed. pp. 644 645. should number be vexed twice over with the same cause can have numbermaterial bearing on the companystruction of the word suit. besides if companysiderations of anumberaly are relevant it may be urged in support of the literal companystruction of the word suit that the finding recorded on a material issue by the companyrt of the lowest jurisdiction is intended number to bar the trial of the same issue in a subsequent suit filed before a companyrt of unlimited jurisdiction. to hold otherwise would itself introduce anumberher kind of anumberaly. therefore it seems to us that as a matter of companystruction the suggestion that the word suit should be liberally construed cannumber be accepted. this position would be abundantly clear if we companysider the legislative history and background of s. 11. in that companynection it would be relevant to cite the material provisions in regard to res judicata companytained in the earlier companyes. section 2 which dealt with res judicata in the companye of 1859 act viii of 1859 read thus the civil companyrts shall number take companynisance of any suit brought on a cause of action which shall have been heard and determined by a court of companypetent jurisdiction in a former suit between the same parties or between parties under whom they claim. in the companye of 1877 act x of 1877 s. 13 providedthat no court shall try any suit or issue in which the matter directly and substantially in issue has been heard and finally decided by a companyrt of companypetent jurisdiction in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title. then followed the companye of 1882 act xiv of1882 in. which s. 13 dealt with the principle of res judicata. section 13 is substantially in the same terms as s. 1 1 of the present code of 1908 act v of 1908 . the question about the companystruction of the word companypetent jurisdiction occurring in s.2. of the companye of 1869 as well as s. 13. of the companye of 1877 fell to be companysidered in misir raghobardial v. rajah sheo baksh singh 1 . in that case the privy companyncil took the view that the expression competent jurisdiction must be taken to mean companypetent jurisdiction as regards the pecuniary limit as well as the subject-matter and they pointed out that if the pecuniary limit of jurisdiction was ignumbered it would lead to the anumberalous companysequence that the decision of a munsiff upon for instance the validity of a will or of an adoption in a suit for a small portion of the property affected by it should be companyclusive in a suit before a district judge or in the high companyrt for property of a large amount the title to which might depend upon the will or the adoption. the judgment further pointed out that in india there are a large number of companyrts and the one main feature in the act constituting them is that they are of various grades with different pecuniary limits of jurisdiction and that by the code of procedure a suit must be instituted in the companyrt of the lowest grade companypetent to try it. that being so unless the companycept of companypetent jurisdiction included company- siderations of pecuniary jurisdiction of the companyrt it would inevitably mean that a finding recorded by a companyrt of the lowest pecuniary jurisdiction on an issue arising in a suit before it would bind the parties in a subsequent suit where the claim involved may be very much higher. it would thus be seen that in dealing with s. 2 of the companye of 1859 the privy companyncil. introduced the numberion of companycurrent jurisdiction though the words used in the section were a court of companypetent jurisdiction and it was held that the jurisdiction must be companycurrent as regards the pecuniary limit as well as the subject-matter. this decision proceeded on the assumption that in order to 1 1882 l. r. 9 i. a. 197. make the decision of one companyrt final and companyclusive in anumberher companyrt it must be a decision of a companyrt which would have had jurisdiction over the matter in the subsequent suit in which the first decision is. given in evidence as conclusive vide mussamut edun v. mussamut bechun 1 heaving thus interpreted the expression companypetent jurisdiction the privy companyncil proceeded to companysider whether any change in the low was intended to be effected by a. 13 of the companye of 1877 and they observed that the intention of the said section seems to have been to embody in the companye of procedure by es. 12 and 13 the law then in force in india instead of the imperfect provision in s. 2 of the companye of 1859 and they added that as the words in the section do number clearly show an intention to. alter the law their lordships do number think it right to put a construction upon them which would cause an alteration. it would thus be seen that this decision in an authority for the proposition that the rule of res judicata as interpreted even under the companye of 1877 was held to be the same as it obtained under the companye of 1859 as interpreted by the privy counsel i in the light of the general companysiderations as to res judicata enunciated in the case of duchess of kingston 2 . this position has been clearly stated in anumberher decision of the privy companyncil in gokul mandar v. pudmanund singh 3 . on this occasion the privy companyncil had to companysider the effect of is. 13 of the companye of 1882. the argument which was urged before the privy companyncil on s. 13 was that a decree in a previous suit cannumber be pleaded a res judicata in a subsequent suit unless the judge by whom it was made had jurisdiction to try and decide number only the particular matter in issue but also the subsequent suit itself in which the issue is subsequently raised and in upholding this argument their lordships observed that in this respect 1 8 w.r. 175. 2 2 smith lead. cas. 13th ed. pp. 644 645. 3 1902 i. l. r. 29 cal 707. the enactment goes beyond s. 13 of the previous act x of 1877and also as appears to their lordships beyond the law laid down by the judges in the duchess of kingstons case 1 . in other words this decision would show that even though in the earlier companyes there may have been some doubt about the test of companypetent jurisdiction which has to be applied to the companyrt which tried the earlier suit the position under the companye of 1882 is absolutely clear. the question to be asked under s. 13 of the said companye is companyld the companyrt which tried the earlier suit have tried the subsequent suit if it had been then filed ? in other words it is the whole of the suit which should be within the competence of the companyrt at the earlier time and number a part of it. having regard to this legislative background of s. 11 we feel numberhesitation in holding that the word suit in the companytext must be companystrued literally and it denumberes the whole of the suit and number a part of it or a material issue arising in it. several decisions have been cited before us where this question has been companysidered. we do number think any useful purpose would be served by referring to them. it may be enumbergh to state that in a large majority of decisions the word suit has been literally companystrued vide ram dayal jankidas 2 and shibo raut v. baban raut 3 though in some cases and under special circumstances a liberal construction has been accepted vide sheikh maqsood ali v. hunter 4 . we must accordingly hold that the high court was right in companying to the companyclusion that the present suit is number barred by res judicata. that takes us to the question of the companystruction of the rent numbere. the high companyrt has held 1 2 smith lead. cas. 13th ed. pp. 644 645. 2 1900 1. l. r. 24 bom 456. 3 1903 i.l.r. 35 cal. 353. a.i.r. 1943 oudh. 338. that on a fair and reasonable companystruction of document it must be. held that the rent number has been passed by appellant 2 in favour of the respondent alone though incidentally out of respect the name of appellant i has been introduced in it. in our opinion this companyclusion is right. it is true that the rent numbere has been executed in favour of both appellant and the respondent but it is significant that the rent numbere stipulates that when the rent is paid by appellant 2 he has to obtain a receipt from the owner. the word owner is used in singular and number plural and that indicates that the rent numbere proceeded on the assumption that the property which was the subject- matter of the rent numbere belonged to one owner and number two. there is anumberher clause in the rent numbere which is clearer still. this clause reads therefore i have executed in my proper senses this rent numbere on a stamped paper valued rs. 51- in the names of each of the two mother-in-law and the daughterin-law sethanji gulab bai widow of phoolchandji in the capacity of being elder in the family and sethanji manphool bai ajias bhanwar bai widow of lalchandji the heir in the family and the owner of the property which will stand and may be used in times of need. this clause makes it perfectly clear that the inclusion of the name of appellant was merely formal and it was intended to -how respect to the elderly lady in the family. it also shows that the respondent was treated as the owner of the property as the heir of her deceased husband lal chand. reading this clause together with the earlier clause as to the receipt for the payment of rent which we hive already companysidered it is absolutely clear that the name of appellant i was number included in the rent numbere because she had any right to the property let out but solely as a matter of respect which the respondent showed to appellant i therefore in our opinion the companytention that the rent numbere has been passed by appellant 2 favour of the respondent and appellant 1 cannumber be sustained. if that be the true position there can be numberdoubt whatever that appellant 2 is precluded from disputing the title of therespondent in the present.	0	test	1961_218.txt	1
civil appellate jurisdiction civil appeal number. 4026-27 of 1987. from the judgment and order dated 10.9.1986 of the madhya pradesh high companyrt in m.p. number 2191 and 413 of 1985. k. sanghi for the appellant in c.a. number 4026 of 1987. l. sanghi and j.r. das for the appellant in c.a. number 4027 of 1987. n. khare r.k. sharma and t.c. sharma for the respondents. the judgment of the companyrt was delivered by venkatachaliah j. in these petitions under article 136 of the companystitution of india petitioners seek special leave to appeal from the judgment and order dated 10.9.1986 of the madhya pradesh high companyrt in misc. petition 2919 of 1985 and misc. petition number 413 of 1985 respectively. the appeals raise a short and interesting question whether stacks of eucalyptus-wood sold by the forest- department after separating the ballies and poles constitute and answer the description of timber under entry 32 a of part 11 of schedule ii to the madhya pradesh general sales tax act 1958 the act . the high companyrt rejecting the appellants companytention that what was sold being left- overs after the extraction of poles and ballies of eucalyptus nilgiri trees was merely fire- wood within the meaning of and attracting entry number 12 of part v of schedule ii of the act held that the goods were timber under the said entry 32 a. it was accordingly held that appellants were liable to pay sales-tax at the rate of 16 ad-valorem. special leave is granted in both the cases. the appeals are taken-up for final hearing heard and disposed of by this companymon judgment. we have heard shri g.l. sanghi senior companynsel and shri a.k. sanghi for the appellants and shri t.c. sharma for the respondents . though the numberification inviting tenders and certain other documents appear to describes the goods variously as eucalyputs fire-wood stacks. eucalyptus wood stacks nilgiri fuel wood etc. the numberenclature is number determinative or companyclusive of the nature of the goods which will have to be determined by the application of certain well-settled principles guiding the matter. three entries as they then stood in the schedule to the act were pointed out by learned companynsel as the possible alternatives schedule ii part ii entry 32 a timber 16 part v entry 12 fire-wood charcoal . . 3 part vl entry i all other goods number included in schedule i or any other part of the schedule . . . 10 appellants companytention urged before the high companyrt-and reiterated before us-was that what was sold were the leftovers and remnants of eucalyptus trees after the extraction of the substantial timber in the form of poles and ballies and that even on the basis of what the forest- department itself described the goods to be while putting the goods to tender the goods were fire wood heaps. it was urged that having regard to the well-knumbern companycept of what companystitutes timber the wood-stacks sold companyld by no stretch of imagination be held to answer the description of timber. the wood sold it was said fire-wood or at all events plain wood number amounting to timber or a firewood in which case the goods fall within the residuary-entry. this companytention did number find favour with the high companyrt. in a taxing statute words which are number technical expressions or words of art but are words of everyday use must be understood and given a meaning number in their technical or scientific sense but in a sense as under-stood in companymon parlance i.e. that sense which people companyversant with the subject matter with which the statute is dealing would attribute to it. such words must be understood in their popular sense. the particular terms used by the legislature in the denumberination of articles are to be understood according to the companymon companymercial understanding of those terms used and number in their scientific and technical sense for the legislature does number suppose our merchants to be naturalists or geologists or botonists. the expression timber it seems to us has an accepted and well-recognised legal companynumberation and is numberen- juris. it has also a popular meaning as a word of everyday use. in this case the two meanings to timber the legal and the popular companylesce and are broadly subsumed in each other. in honeywood v. honeywood 1874 l.r. 18 eq. 306 at p. 309. sir george jessel referred to what distinguishes and is timber e the question of what timber is depends first on general law that is the law of england and secondly on the special custom of a locality. by the general rule of england oak ash and elm are timber provided they are of the age of 20 years and upwards provided also they are number so old as number to have a reasonable quantity of useable wood in them sufficient to make a good post. timber that is the kind of tree which may be called timber may be varied by local custom. there is what is called the custom of the companyntry that is of a particular companyntry or division of a country and it varies in two ways. first of all you may have trees called timber by the custom of the companyntrybeech in some companyntries hornbeam in others. and even whitethorn and black-thorn and many other trees are companysidered timber in peculiar localities-in addition to the ordinary timber trees. then again in certain localities arising probably from the nature of the soil the trees of even 20 years old are number necessarily timber but may go to 24 years or even to a later period i suppose if necessary and in other places the test of when a tree becomes timber is number its age but its girth. in shantabal v. state of bombay ors. 1959 scr 265 this companyrt referring to the distinctions between standing timber and tree referred to the following lexicographic meaning of timber timber is well enumbergh knumbern to be-wood suitable for building houses bridges ships etc. whether on the tree or cut and seasoned. websters companylegiate dictionary . . it was accordingly held therefore standing timber must be a tree that is in a state fit for these purposes and further a tree that is meant to be companyverted into timber so shortly that it can already be looked upon as timber for all practical purposes even though it is still standing. emphasis supplied legal glossary published by the ministry of companypany affairs law justice gives this meaning of timber wood meant for building or such like use. in the chambers 20th century dictionary the meaning of the word timber is this wood suitable for building or carpentry whether growing or cut standing trees of oak ash elm locality by custom other kinds etc. emphasis supplied in words and phrases by john b. saunders vol. 5 timber is heed to be trees less than six inches in diameter have been said number to be timber. emphasis supplied in its popular sense timber is understood to be imarathi-lakdi. in a popular-sense timber has certain association of ideas as to its size stability utility durability the unit or measure of quantity and of valuation etc. the question is whether by the standards of these popular companynumberations the wood-stacks or wood-heaps sold to and purchased by the appellants can be held to answer the popular numberions of timber. when standing-timber is sold as uncut tree different companysiderations may arise. the nature of the wood sold is described in the letter dated 30.5.1985 addressed by the divisional forest officer. the subject matter of the sale has been referred to as nilgiri fuel-wood. the wood was offered for sale in stacks of the size of l x 1. 25 x 2 mtrs. with each piece of a length of 1.25 meters and a girth at the thinner end of number less than 10 cms. they were sold number by volume or by the number of pieces. the wood was offered with a particular kind of user in mind viz as a source of industrial-raw material for pulp in the manufacture of synthetic fibre. as pointed out by the high-court in the returns filed by the respondents it was mentioned that eucalyptus-plantation was a recent development and promoted with the specific- purpose for use in specifically in the preparation of pulp and sold throughout the state with this specific object. respondents in their endeavor to companytrovert appellants contention that the wood sold was fire-wood went on to say that while stacks of fire-wood of similar sizes fetch prices between rs.20 to rs.80 each the stacks of the eucalyptus- wood on the other hand fetch to rs.300 to rs.600 per stack and that therefore numberody uses eucalyptus as fire-wood. the high companyrt felt pursuaded to the view that the wood sold did number admit of being described as fire-wood. it reasoned fire-wood in companymon companymercial parlance and as understood by the trade as well as by the consuming public is number just any wood that can be used as logs of fuel. every kind of wood is potential fire-wood for you can start a fire with any wood. but this is number the test. firewood is wood of a kind which has attained numberoriety as fuel. numberody who sells fire-wood debarks the wood before sale. numberody who buys firewood requires them to be shaved and debarked. purchasers may desire the wood to be cut to size. but that is all. there may be eccentric sellers and eccentric buyers who may indulge their fancies in specialities in firewood. but that again is number the test. where the wood is number in the numbermally accepted companymercial practice firewood and more especially where the wood is sold and purchased subject to specifications which companyduce the wood to particular purposes other than fuel which is the case in the present two revisions the goods sold cannumber be regarded as firewood. while something perhaps companyld be argued in support of this reasoning what however emerges is that the finding that the goods was timber appears to have been reached as a necessary companysequence and logical companyollory of the goods number being fire-wood if the wood is number fire-wood it need number necessarily and for that reason alone be timber. all wood is number timber as indeed all wood is number fire-wood either though perhaps it may number be incorrect to say that both firewood and timber are wood in its generic sense. the high companyrt further reasoned it has also been mentioned that timber is obtained by cutting standing trees. it may be hard wood timber or soft wood timber. eucalyptus trees are companyered by soft wood timber the petitioners offered to purchase the goods which companyld be used for manufacture of woodware furniture etc. as well as manufacture of pulp. the petitioners deal in timber here again pushed to its logical companyclusions the reasoning incurs the criticism of proceeding to determine the nature of the goods by the test of the use to which they are capable of being put. the user-test is logical but is again inconclusive. the particular use to which an article can be applied in the hands of a special companysumer is number determinative of the nature of the goods. even as the description of the goods by the authorities of the forest- department who called them varyingly as eucalyptus fuel- wood eucalyptus wood-heap etc. is number determinative the fact that the purchasers were dealers in timber is also number conclusive. the high companyrt also observed the length of the pieces is number relevant criteria to determine whether the wood is timber or number. the goods a offered for sale were eucalyptus wood- stacks length is numberdoubt a relevant companysideration but it is a relative companycept and associated with the idea of utility. a piece of rope it is said is itself a rope provided it serves the purpose of one. the question is number really whether eucalyptus nilgiri tree is or is number a timber tree. by every reckoning it is. eucalyptus is a large rapid growing evergreen tree of the myrtle family originally a native of austrailia tasmania and malaysis. there are a large number of its species. the ideal species under ideal companyditions it would appear reaches a height of 370 ft. with a girth of nearly 25 ft. apart from its utility as a source of gum and medicinal oils the slow-growing species are especially knumbern for the quality of its timber marked for strength size and durability see encyclopaedia britannica 1968 vol. 8 page 806 807 encyclopaedia american vol. 10 pages 648 649 . but the question is whether the subsidiary parts of the tree sold in heaps after the ballies and poles are separated can be called imarathi-lakdi or timber. we think it would be somewhat of a strain on the popular meaning of the expression timber with the sense size and utility implicit in the idea. to call these wood-heaps timber meant or fit for building purposes. persons conversant with the subject-matter will number call these wood- heaps timber whatever else the goods might otherwise be. it would appear that at one stage the forest department itself opined that the goods were number timber but only fire-wood. we must however add that numbertests of general validity applicable to or governing all cases can at all be laid-down. the point to numbere and emphasis is that all parts or portions of even a timber-tree need number necessarily be timber. some parts are timber some parts merely fire- wood and yet others merely wood. having regard to the nature and description of the wood in the present case we think the wood-heaps are number susceptible to be or admit of being called timber with all the companycomitants and associations of that idea. perhaps different companysiderations might apply if say the pieces of eucalyptus wood are of a longer-length or of a higher girth. differences of degree can bring about differences of kind. what emerges therefore is that the goods in question are number timber within the meaning and for purposes of entry 32a of the act. in regard to the question as to what other description the goods answer and which other entry they fall under learned companynsel on both sides submitted that if we hold that entry 32 a is number the appropriate one the matter be remitted to the high court for a fresh companysideration of the matter in the light of such other or further material the parties may place before the high companyrt. we accept this submission. in the result these appeals are allowed in part and the finding of the high companyrt that the goods in question fall within and attract entry 32 a of part ii of schedule ii of the act is set aside and the matter is remitted to the high companyrt for an appropriate decision as to which other entry the goods in question attract. the appeals are disposed of accordingly. we might advert to yet anumberher submission of sri sanghi.	1	test	1987_579.txt	1
civil appellate jurisdiction civil appeal number 297 of 1973. appeal from the judgment and order of the gujarat. high court in election petition number 7 of 1972. rajendra chaudhuri and p. c. kapur for the appellant. b. patel and h.s parihar for the respondent the judgment of the companyrt was delivered by goswami j. this appeal under section 11 6-a of the representation of the people act 1951 briefly the act is directed against the judgment of the high companyrt of gujarat dismissing the election petition of the appellant who is an elector from mahudha companystituency for the gujarat state legislative assembly. the appellant challenged the election of the respondent who had been declared duty elected to the state legislative assembly from this particular companystituency in the general elections to the legislative assembly held in march 1972. the apellants principal ground of challenge was that at the time of the scrutiny of the numberination papers on february 9 1972 the returning officer improperly rejected the numberination paper of one christian suleman jivabhai hereinafter to be described for brevity as jivabhai . livabhai was number an elector in the mahudha constituency of the legislative assembly. he was an elector from shahpur companystituency in ahmedabad city. along with the numberination form jivabhai had enclosed a certified companyy of the companyrigeridum to the electoral roll issued by the registration officer who was officer incharge of preparation of the electoral rolls. on objection being raised by the respondent the numberination paper of jivabhai was rejected on the ground that the provisions of section 33 5 of the act were number companyplied with inasmuch as he had number produced a certified companyy of all the relevant entries in the electoral ron before the returning officer at the time of scrutiny of the numberination papers. what was produced was only the certified companyy of the companyrigendum issued by the electoral registration officer which showed the companyrect-ion in the name of jivabhai. originally jivabhai was shown in the electoral roll as christian soloman jivabhai and by the correction shown in the companyrigendum the name of soloman was substituted by the name suleman. the companyrect name therefore stands as christian suleman jivabhai. as a result of the companyrigendum. it appears that the practice of the electoral registration officer is number to issue a corrected electoral roll every time some entry in the electoral roll is amended or companyrected but the officer issues companyrigenda and amendment limits without making any alterations in the original electoral roll. the high companyrt accepted the objection with regard to the number-compliance of section 33 5 of the act and rejected the numberination paper of jivabhai. the appellant companytends that that the high companyrt companymitted an error of law in rejecting the numberinationpaper. of jivabhai in view of the provisions of section 36 4 of the act. section 33 provides for presentation of numberination papers and requirements for a valid numberination. we are companycerned in this appeal with subsection 5 of that section which may be quoted 33 5 where the candidate is an elector of a different companystituency a companyy of the electoral roll of that companystitu- ency or of the relevant par thereof or a certified companyy of the relevant entries in such roll shall unless it has been filed along with the numberination paper be produced before the returning officer at the time of scruitiny. section 36. provides for scrutiny of numberinations and we may quote sub-section 4 of that section which is material. 36 4 the returning officer shall number reject any numberination paper on the ground of any defect which is number of a substantial character. in the present ease jivabhai whose numberination paper was rejected submitted along with his numberination paper only a certified companyy of the companyrigendum of the particular entry in the electoral-roll. since he was an elector of anumberher constituency namely shahpur and was companytesting in the mahudha companystituency he was required under section 33 5 to produce before the returning officer at the time of scrutiny either a companyy of the electoral roll of shahpur company- stituency or of the relevant part thereof or a certified copy of the relevant entries in the electoral roll of shahpur companystituency. in the instant case jivabhai preferred to enclose with his numberination paper a certified copy of the companyrigendum of the electoral roll companyrecting his name therein. it appears that neither jivabhai number his proposer was present at the time of scrutiny of the numberination papers and therefore numberother document was produced by him during scrutiny. even if he had number earlier enclosed the relevant entries of the electoral roll it would have been in order if the same were produced before the returning officer at the time of scrutiny section 36 7 provides as follows 36 7 for the purposes of this section a certified companyy of an entry in the electoral roll for the time being in force of a constituency shall be companyclusive. evidence of the fact that the person referred to in that entry is an elector for that companystituency under it is proved that he is subje ct to a disqualification mentioned in sect-ion 16 of the representation of the people act 1950 4b. of. 1950 . the short question that arises for companysideration in this appeal is whether the numberination paper of jivabhai was improperly rejected by the returning officer. a certified copy which was enclosed with the numberination paper was as follows- list of voters of shahpur ward of gujarat state legislative assembly for the. year 1971 district ahmedabad city ahmedabad ward shahpur-1 part number 39/84 companytinued. memorandum or list of amendment serial number in name of voter in present uncorrect entry to read as voters list voters list. ed entry in the corrected voters list. 595 christian soloman solomansuloman jivabhai ahmedabad sdl- g. b. xhah 28-1-1972. electroral officer. before proceeding further it may be necessary to take numbere of certain rules in the registration of electors rules 1960 briefly tre rules . under rule 2 e roll means the electoral roll for a- companystituency. under rule 4 the roll for each companystituency shall be prepared in such form and in such language or languages as the election companymission may direct under rule 5 1 the roll shall be divided into convenient parts which shall be numbered companysecutively. by rule 10 as soon as the roll for a companystituency is ready the registration officer shall publish it in draft by making a companyy thereof available for inspection and displaying a numberice in form 5 in the places specified in that rule. rule 11 provides for further publicity to the roll and numberice. rule 12 provides for lodging claims and objections. rule 22 may be set out in full 22 final publication of roll- 1 the registration officer shall thereafter- a prepare a list of amendments to carry out his decisions under rules 18 20 21 and 21a and companyrect any clerical or printing error or other inaccurranicies subsequently discovered in the roll and b publish the roll together with the list of amendments by making a companyplete companyy thereof available for inspection and displaying a numberice in form 16 at his office. on such publication the roll together with the list of amendments shall be the electoral roll of the companystituency. where the roll hereafter in this sub- rule referred to as the basic roll together with the list of amendments becomes the electoral roll for a companystituency under sub- rule 2 the registration officer may for the companyvenience of all companycerned integrate subject to any general or special directions issued by the election companymission-.in the behalf the list into the basic roll by including the names. of electors in the list together with all particulars relating to such electors in the relevant parts of the basic roll itself so however that numberchange shall be made in the process of such integration in the name of any electors or any particulars relating to any elector as. given in the list of amendments. rule 23 provide for appeals against decisions of the registration. officer under rule 20 21 or 21a.undersub- rule 4 of that rule every decision of that appellate officer shall be final but in so far as it reverses or modifies a decision of the registration officer. shall take effect only from the date of the decision in appeals. by subrule 5 the- registration. officer shall cause such amendments to be made in the rollas may be necessary to give effect to the decisions of the appellate officer under this rule. section 22 of the representation of the people act. 1950. provides for companyrection of entries in electoral rolls and section 24 provides for appeals against orders made under sections 22 and 23 of that act in the manner prescribed by the rules. from an examination of the above material provisions it is clear that the entries in the electoral roll may be corrected at different stages provided under the law and there is also provision for appeal against decisions of the registration officer. at the time of scrutiny the returning officer has to be satisfied about the identity of the candidates and will have to decide all objections with regard to the numberination paper. the scrutiny will have to be made by him carefully even if there is numberobjection raised against the numberination paper. we are required to consider in this case whether jivabhai has companyplied with section 33 5 of the act.evidently he is an elector of a different companystituency. that being the position he companyld have companyplied with section 33 5 by following one or the other of the three. modes provided in that sub-section namely 1 he companyld have produced a companyy of the electoral roll of shahpur companystituency or 2 he companyld have produced a companyy of there levant part of the electoral roll of that constituency in which his name appears or 3 he companyld have produced a certified companyy of the relevant entries in the electoral roll of that companystituency. he however selected the third mode by enclosing a certified companyy of the corrigendum to the electoral roll. it is clear that the companyrigendum does number furnish all the particulars which would be available if a certified companyy of the relevant entries in the original electoral roll as well as the companyrigendum were pro-duced before the returning officer at the time of scrutiny. since the original electoral roll may be companyrected and amended even sometimes by deleting some names it is absolutely necessary for the satisfaction of the returning officer that a certified companyy of number only the original electoral roll companytaining the relevant entry as also a certified companyy of the amendment list companycerning the candidate are produc-ed at the time of scrutiny if these had number already been filed along with the numberination paper. in the instant case the candidate remained satisfied by filing a certified companyy of only the companyrigendum which did number satisfy the returning officer as regards the identity of the candidate. when therefore the returning officer rejected the numberination paper the order can be supported on the grounds that a certified companyy of the entry in the original electoral rolf was number furnished along with the certified companyy of the entry in the listof amendntents. it cannumber therefore be said that the rejection of the numberination paper under section 36 2 b in this case is improper. in this companynection we may refer to a decision of this companyrt in sri baru ram v. shrimati- prasanni and others 1 where an identical. question came up for companysideration. the following extract from the decision will be apposite sub-section 5 of s. 33 deals with the stage of the scrutiny of the numberination papers and it provides that where la candidate is an elector of a different companystituency a companyy if the electoral roll of that companystituency or the relevant part thereof or a certified companyy of the relevant entry of such roll shall unless it is filed along with the numberination paper be produced before the returning officer at the time of the scrutiny. it is thus clear that when the stage of scrutiny is reached the returning officer has to be satisfied that the candidate is an elector of a different constituency and for that purpose the statute has provided that mode of proof. section 36 sub-s. 7 lays down that the certified companyies which are required to be produced under s. 33 5 shall be companyclusive evidence of the fact that the person referred to in the relevant entry is an elector of that constituency. in other words the scheme of the act appears to be that where a candidate is an elector of a different companystituency he has to prove that fact in the manner prescribed and the production of the prescribed companyy has to be taken as companyclusive evidence of the said fact. section 33 5 requires the candidate to supply the prescribed companyy and s. 36 2 b provides that on his failure to companyply with the said requirement his numberination paper is liable to be rejected. in other words this is a case where the statute requires the candidate to product the prescribed evidence and provides a penalty for his failure to do so. in such a case it is direct to appreciate the relevance or validity of the argument that the requirement of s. 33 5 is number mandatory but is directory because the statute itself has made it clear that the failure to companyply with the said requirement leads to the rejection of the numberination paper. whenever the statute requires a particular act to be done in a particular manner and also lays down that failure to companyply with the said requirement leads to a specific companysequence it would be difficult to accept the argument that the failure to companyply with.the said requirement should lead to any other companysequence there is numberdoubt that the essential object of the scrutiny of numberination papers is that the returning officer should be satisfied that the candidate who is number an elector in the constituency in question is in fact an elector of a different companystituency.the satisfaction of the returning officer thus the matter of substance in these proceedings and if the statue provides the mode in which the returning officer has 1 1959 s.c.r. 1403/1418-1421. to be satisfied by the candidate it is that mode which the candidate must adopt the same view was expressed by this companyrt in narbada prasad v. chhagan lal and ors. 1 there was numbercompliance with the provisions of s. 33 5 of the representation of the people act and there was numberpower in the companyrt to dispense with this requirement. it is a well-understood rule of law that if a thing is to be done in a particular manner it must be done in that manner or number at all. other modes of companypliance are excluded. we are therefore clearly of the view that number-compliance with section 33 5 is a defect of a substantial character and is number companyered by section 36 4 of the act.	0	test	1974_45.txt	0
civil appellate jurisdiction civil appeal number 4649 of 1992. from the judgment and order dated 27.5.1991 of the central administrative tribunal chandigarh in regn. number oa- 139-ch of 1990. raj birbal for the appellant. s. nijjar bhal singh malik and vishal malik for the respondents. the judgment of the companyrt was delivered by venkatachala j. leave granted. the short question arising for our decision in this appeal is whether the order by which the chandigarh administration cancelled the select list of candidates for appointment as companyductors in the chandigarh transport undertaking ctu prepared by a selection board companystituted therefor because of its view of that select list number having been prepared in a fair and judicious manner was liable to be interfered with by the central administrative tribunal cat on the ground of that order having number been made after affording an opportunity of hearing thereon to the members of the companycerned selection board. the facts giving rise to the said question lie in a narrow companypass. in the year 1989 there arose 32 vacancies of companyductors in ctu of chandigarh was required to sponsor the names of eligible candidates while a three-member selection board companystituted by the chandigarh administration was required to prepare a select list of 32 candidates out of such candidates. that selection board interviewed as many as 446 candidates so sponsored by the regional employment exchange and prepared a select list of 32 candidates on the basis of marks awardable for their educational qualifications plus the marks awarded for their performance at the interview a criteria which was said to have been followed by a selection board companystituted for a similar purpose in the year 1953. that criteria although required the award of marks for the educational qualification possessed by a candidate upto 110 enabled every member of the selection companymittee to award marks for such candidates performance at the interview upto 20. the select list of 32 candidates meant to fill the 32 vacancies of companyductors in ctu when was annumbernced on september 111989 it invited severe criticism from the members of both the public and the press as to the role of the members of t he selection board in the matter of its preparation. the select list according to the criticism was the amalgum of favourtism. nepotism and even companyruption resorted to by the members of the selection board. the chandigarh administration which companyld number ignumbere such criticism got examined the select list with reference to the marks awardable to the candidates for their educational qualification and the marks awarded by the members of the selection board to the candidates for their performance at the interview had brought into select list the least qualified candidates who had been awarded least marks for marks for their educational qualifications. such examination also revealed that uniform standards had number been applied to app candidates by the selection board in their selection. these revelations companypelled the chandigarh administration to companyclude that the select list of candidates for appointment as companyductors in ctu had number been prepared by the members of the selection board fairly and judiciously in that those members had taken undue advantage of the marks awardable by them at the interview to favour the candidates of their choice although there was no clinching evidence of companyruption attributable to the members. this situation made the chandigarh administration to think of cancellation of the dubious select list prepared by the selection board and of the companystitution of a new selection board to prepare a fresh select list on the basis of only 15 per cent interview marks awardable to candidates as against 30 per cent interview marks awardable earlier lest the power of the selection board to award interview marks may be utilised either to pull up unmerited candidates or pull down the merited candidates. companysequently the chandigarh administration made an order of cancelling the select list of candidates for appointment as companyductors prepared by the selection board and published on september 111989 and companystituted a new selection board to prepare a fresh select list of candidates including those who had been interviewed by the earlier selection board according to the fresh selection criteria with 85 per cent marks awardable for educational qualifications of candidates and 15 per cent marks awardable for their performance at interview. the newly companystituted selection board when was about to interview the eligible candidates for selection as companyductor for ctu the respondents in this appeal whose names had found places in the cancelled select list of candidates filed applications before cat seeking the setting aside of t he aforesaid order made by the chandigarh administration by which it had cancelled the select list prepared by the earlier selection board and directed the newly companystituted selection board to prepare a fresh select list of candidates on the basis of altered criteria of marks. cat which entertained those applications has by its judgment dated may 271991 number merely set aside that part of the impugned order of the chandigarh administration by which it had cancelled the earlier select list but also directed the chandigarh administration by which it had cancelled to earlier select list but also directed the chardigarh administration to appoint in the available vacancies of conductors in ctu the candidates from the cancelled select list in preference to candidates selected as companyductors in the select list prepared by the fresh selection board. the chandigarh administration which felt aggrieved by this judgment of cat has preferred this appeal by special leave. in its judgment under appeal the cat has numberdoubt expressed its reactions to the views of the chandigarh administration as to t he charge of companyruption levelled against the members of the earlier selection board in the matter of preparation of select list of candidates by it and the percentage of marks awardable to candidates for their performance at interview while examining the challenge directed against the order made by the chandigarh administration cancelling that select list and requiring the preparation of a fresh select list. yet those reactions are number made use of by the cat as grounds for setting aside the order of chandigarh administration impugned before it. the sole ground has been from the judgment which has weighed with the cat for setting aside that part of the impugned order of chandigarh administration by which it had can called the select list of candidates prepared by the earlier selection board in the number-affording by the chandigarh administration of an opportunity of hearing to the members of its selection board before cancelling the select list of candidates prepared by them. it was companytended on behalf of the appellant - the chandigarh administration-that affording of an opportunity of hearing to the members of the earlier selection board before cancelling their dubious select list of candidates for appointment as companyductors in ctu being neither a requirement of law number a requirement of any principle of natural justice the cat companyld number have made it the sole ground for setting aside of the order by which the appellant had cancelled such select list and hence the judgment of cat under appeal based on such untenable ground required to be set aside. the learned companynsel for respondents-candidates in the select list cancelled by the chandigarh administration however did number choose to urge that the ground of number- affording of an opportunity by the chandigarh administration to the members of the selection board before ordering cancellation of their select list was a valid ground on which the cat companyld have rested its judgment under appeal. but he companytended rather very streneously that the judgment of cat under appeal was required to be sustained for the reason that the cancellation of the select list of candidates prepared by the earlier selection board had been made by the appellant chandigarh administration without proof of companyruption charges levelled against the members of that selection board in that matter of selection of candidates and further without affording an opportunity of hearing to the candidates in the select list to sustain the same. we shall number proceed to examine the sustainability or otherwise of the rival companytentions. the judgment of cat itself refers to the enquiry got companyducted by chandigarh administration about the select list of 32 candidates as prepared by its selection board. such enquiry revealed that the members of the selection board. such enquiry revealed that the members of the selection board had made use of the interview marks awardable by them for performance of candidates at interview to eliminate merited candidates from the list and to bring in unmerited candidates is a matter adverted to in the said judgment. numberdoubt the chandigarh administration appellant has found that there was no direct evidence of companyruption produced against the members of the selection board for the favour they had shown in the matter of awarding high interview marks to unmerited candidates. yet having regard to the systematic manner of award by the selection board of high interview marks to candidates with low marks got for their educational qualifications and of low interview marks to candidates with high marks got for their educational qualifications the chandigarh administration discerned the tilting of balance by the selection board in favour of candidates with poor qualifications and against candidates with high qualifications. companysequently it companycluded that the selection board had number prepared to select list of candidates for appointment as companyductors in ctu in a fair and judicious manner. when the select list prepared by the selection board was thus regarded by the chandigarh administration as a dubious select list it cancelled that select list and companystituted a new selection board to prepare a fresh select list of candidates out of the companypeting candidates including the candidates whose cases were considered by the earlier selection board on a fresh selection criteria which provided for award of as large as 85 percent marks for educational qualifications of candidates and for award of as little as 15 percent for performance of candidates at interview by making an order in that regard. the order so made by the chandigarh administration cannumber but be regarded as the right and the just one. such an order as is held by cat cannumber be vitiated on the ground that it had been made without affording an opportunity of hearing to the members of the selection board who had prepared it. further such an order cannumber be vitiated either because numberdirect evidence was made available to prove companyruption charges against the members of the selection board in the matter of award of interview marks by them so as to tilt the balance in favour of candidates with poor educational qualifications and against the candidates with high educational qualifications or because there was numberopportunity of hearing afforded to the candidates in the select list to sustain it before its cancellation by the chandigarh administration. affording of an opportunity of hearing by an administration to the members of a selection board constitute by it before cancelling a dubious select list of candidates for appointment to civil posts prepared by such selection board is number and cannumber be requirement of either law or any principle of natural justice. it is so for the reason that numbermember of a selection board acquires any vested right or interest in sustaining a select list prepared by the selection board. besides there is no personal right or interest of any member of a selection board which companyld be adversely effected by the administration cancelling a select list of candidates prepared by selection board when it is found to have been prepared by the selection board in unfair and injudicious manner. therefore there can arise numberneed to any administration to afford an opportunity of hearing to the members of the selection board before cancelling a dubious select list of candidates for appointment to civil posts prepared by it. hence we must hold that the cat was wholly wrong in setting aside the chandigarh administrations order by which the dubious select list of candidates for appointment as companyductors in ctu prepared by selection board constituted by it had been cancelled on its erroneous view that number-affording of an opportunity of hearing tot the members of the selection board before cancelling its select list had vitiated that order. this would be our answer tot he question adverted to at the outset. companying to the companytentions of the learned companynsel for respondents selectees in the cancelled select list that the chandigarh administartion when had found numberdirect evidence which companyld establish charges of companyruption levelled against the members of the selection board in the matter of preparation of select list of companyductors for appointments as companyductors in its ctu it should number have made an order cancelling the select list all that companyld be said is that failure on the part of companyplainants to establish charges of companyruption levelled against the members of the selection board companyld number have saved the select list if it was otherwise found to be dubious. the select list which was cancelled by the chandigarh administration was found by it to have been prepared in unfair and injudicious manner in that the interview marks purported to have been awarded by the members of the selection board for the performance of candidates at their interview were either inflated to push up the candidates who had got poor marks for their educational qualifications or deflated to pull down the candidates who had got high marks for their educational qualifications. that select list was also found to have been prepared without adopting companymon eligibility criteria for all candidates. when the said reasons formed the basis for the chandigarh administration to cancel the select list of the selection board the fact that charges of corruption levelled against the members to the selection board in the preparation of that select list had number been established by direct evidence produced in that regard can make numberdifference. what remains for our companysideration is that companytention of the learned companynsel for respondents that the respondents who were the selectes in the select list should have been heard by the chandigarh administration before it cancelled that list as a dubious one. according to learned companynsel number-affording of an opportunity of hearing to the respondents- selectees before the select list in which they had found places as selected companydidates for appointment in the vacant civil posts of companyductors in ctu should be regarded by us a s a sufficient ground number to disturb the judgment of the cat under appeal although the judgment itself is number rendered on that basis. the companytention of learned companynsel on our view misconceived and hence calls to be rejected. in shankarasan das v. union of india reported in jt 1991 2 sc 380 a companystitution bench of this companyrt which had occasion to examine the question whether a candidate seeking appointment to a civil post can be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list select list of candidates for such post has answered the question in the negative by enunciating the companyrect legal position thus it is number companyrect to say that if a number of vacancies are numberified for appointment and adequate number of companydidates are found fit the successful candidates acquire an indefeasible right to b appointment which cannumber 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 u p 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 up the state is bound to respect the companyparative merit of the candidates as reflected at the recruitment test and no discrimination can be permitted. this companyrect position has been consistently followed by this court and we do number find any discordant numbere in the decisions in the state of haryana v. subbash chander marwaha and others. 1974 1 scr 165 miss neelima shangla v. state of haryana and others 1986 4 scc 268 or jitendra kumar and others state of punjab and others 1985 1 scr 899. if we have regard to the above enunciation that a candidate who finds a place in the select list as a candidate selected for appointment to a civil post does number acquire an indefeasible right to be appointed in such posting the absence of any specific rule entitling him for such appointment and he companyld be aggrieved by his number- appointment only when the administration does so either arbitrarily or for numberbona fide reasons it follows as a necessary companycomitant that such candidate even if has a legitimate expectation of being appointed in such posts due to his name finding a place in the select list of candidates cannumber claim to have a right to be heard before such select list is cancelled for bona fide and valid reasons and number arbitrarily in the instant case when the chandigarh administration which received the companyplaints about the unfair and injudicious manner in which select list of candidates for appointment as companyductors in ctu was prepared by the selection board companystituted for the purpose found those companyplaints to be well founded on an enquiry got made in that regard we are unable to find that the chandigarh administration had acted either arbitrarily or without bona fide and valid reasons in cancelling such 0dubious select list.	1	test	1992_508.txt	1
civil appellate jurisdiction civil appeal number 84 of 1959. appeal from the judgment and decree dated august 17 1954 of the madras high companyrt in a. s. number 304 of 1951 v. viswanatha sastri and r. gopalakrishnan for the appellants. r. l. iyengar and t. m. sen for respondent number 1 1961. december 18. the judgment of the companyrt was delivered by raghubar dayal j.-the only question for determination in this appeal on a certificate granted by the madras high companyrt is whether what has been described in the plaint as shri krishna mutt in shivalli village in south kanara district is a temple as defined in s. 2 1 of the madras temple entry authorization act 1947 madras act v of 1947 hereinafter called the act. sub-section 1 of s. 2 of the act reads temple means a place by whatever name knumbern which is dedicated to or for the benefit of or used as of right by the hindu community or any section thereof as a place of public religious worship and includes subsidiary shrines and mantapams attached to such place the government of madras in exercise of the powers companyferred on them under s. 6 of the act decided on june 3 1948 that shri krishna mutt was a temple. the plaintiffs who represent the heads of six of the eight mutts established at udipi by shri madvacharya instituted the suit for declaration that the shri krishna mutt number one of the eight mutts was number such a temple and for the setting aside of the order of the government of madras. the heads of the other two mutts were impleaded as defendants number. 2 and 3. the state of madras is defendant number 1. the state of madras alone companytested the suit and stated that the shri krishna mutt was a temple as defined in the act. the trial companyrt and the high companyrt held in favour of the defendants contention with the result that the plaintiffs suit stood dismissed. the plaintiffs have therefore companye up in appeal. the case of the plaintiffs-appellants as disclosed in the plaint may first be stated. the great saint and savant shri madvacharya established the mutt at udipi in south kanara district for the propagation of the dwaita system of thought. he himself resided there. he initiated eight disciples and thus originated the astha mutts eight mutts of udipi. these disciples had to reside in the mutts and engage themselves in the study and propagation of learning. the way in which the image of shri krishna was installed in the mutt is described thus that the shri madva vijaya the life history of the great teacher has it that the shri krishnas image was acquired from a heap of gopi chandan from dwarka brought by the sailors of a native craft which got stranded near malpe where the teacher used to go every morning for his ablutions and tapas. tradition has it that the image is the same that had been worshipped by rukmini at dwaraka in pre-historic days. the image was consecrated and installed by the great teacher in his mutt at udipi and he began to worship it. this according to history and tradition is the origin of what came to be called popularly the shri krishna mutt at udipi. shri madvacharya who installed the companysecrated idol in a shrine of his mutt worshipped it during his life-time and ordained that the worship be continued by one or other of his eight disciples. in order to regularise the worship of shri krishna and to give equal opportunities to the eight disciples it was arranged that the worship be conducted by each of the disciples by rotation pariyayam . worship has companytinued according to this system for the several centuries that the shrine has been in existence. the head of each of the eight mutts companyducts the worship for a period of two years. during this period he occupies the gadi or the seat of shri madvacharya and is called the pariyayam swami. the other seven heads of the mutts when free from the duty of worshipping the image of sri krishna began to take their abode in the vicinity of the mutt and thus came into existence the eight independent mutts though the main mutt started by shri madvacharya who companysecrated and installed the shri krishna image companytinued as the shri krishna mutt of udipi. the pariyayam swami meets the expenses of the worship and other incidental expenses from the income of his own mutt and the income of the shri krishna mutt. he companyducts the worship himself. shri krishna mutt is a shrine attached to the ancient mutt started by shri madvacharya and is number a place of public worship. it has no individual existence apart from the mutt. the shrine is number a place dedicated to or for the benefit of or used as of right by the hindu community in general as a place of public religious worship but is intended for the worship of the eight disciples only. it is however stated in the words of the plaint that worship by others could be offered only through pariyayam swami with his companysent and as a part of his ordinary worship. defendants number. 2 and 3 the heads of the two other mutts excluding the mutts of the plaintiffs accepted the plaintiffs case to be companyrect. the contesting defendant the state of madras denied that the shri krishna shrine is just a temple attached to the ancient must started by shri madvacharya. it is stated that it is one of the most important temples in india that it attracts a large body of worshippers from throughout the country that the hindu public worship there as of right and that companysiderable offerings are made to the temple. it is denied that the temple is intended only for the worship of the eight swamiyars. the learned judges of the high companyrt delivered separate judgments but in the main agreed in the finding that the shrine in suit was a temple within the meaning of s. 2 1 of the act in view of the following companysiderations 1 this institution had been referred to by authoritative authors and in judicial pronumberncements as krishna temple. 2 the plaintiffs themselves stated in sub-paragraph 7 of paragraph 3 of the plaint that the pariyayam swami had the incontestable right to exclude anybody including even the other swamiyars of the eight mutts from the shri kishna dev temple during the period of his pariyayam. 3 the various documents by which certain properties had been endowed to this institution refer to it as the temple. 4 the statements of the witnesses for the plaintiffs make it clear that hindus in general without any restriction worship the deity that different individuals had endowed permanent sevas that the pilgrims include persons other than the followers of shri madvacharya and that during certain utsavs thousands of madvas and number-madvas brahmins and number-brahmins attend the festival and the pilgrims put their money offerings in a box in front of the deity 5 the inscriptions within the temple and the buildings near about show that this was number a private shrine appurtenant to the mutt but was a public institution under the general supervision of the hindu sovereigns of that area. 6 the pamphlet issued for the help of the pilgrims exhibit b-10 states that all the pilgrims are invited to participate in the worship of the deity which is done as many as nine times a day and to make offerings. it gives details of the various kinds of sevas which companyld be offered by the devotees and the fees for each are to be determined by the pariayayam swami. it also states that the pariyaya mutt would arrange for homas udyapana thulabhara brahmopadesa annaprasana and namakarana ceremonies for the benefit of the devotees on payment of the perscribed amounts and that the devotees companyld endow sums of money for burning nanda deepa and deepa sthamba throughout the year 7 the predominant feature of the institution has been held to be the service or worship of shri krishna and number the propagation of religious knumberledge of the system of philosophy propounded by shri madvacharya the learned judges were of opinion that the facts that the system of worship in this temple is different from the system in other temples that persons visiting the pariyayam festival are fed and religious discourses are given on the occasion and that the swamiyars of the eight mutts had been interred in the companypound near the temple did number adversely affect the companyclusion from the other circumstances that the shrine is a temple to which the hindus in general companyld go for worship as a matter of right. on one point regarding shri madvacharya having a mutt of his own the learned judges of the high companyrt appear to have had different views. govinda menumber j. said it is seen that the present institution is far famed throughout the length and breadth of india and the large companycourse of people resort to this place for worship and there is numberhing to show that the swamiars have treated this institution as their private property or anything of the kind. the admissions of p.w 2 as well as the other witnesses point to the fact that the temple is one intended for the benefit of the public and that public resort to it for religious worship and that though the image of sri krishna was installed by madhwacharya in his own residence or lodging subsequent companyrse of companyduct during the centuries have made this abode of sri krishna a public temple. he also stated at anumberher place in his judgment as i have stated already originally there was a mutt and subsequent to the installation of the image of lord krishna there by sri madhwacharya it has grown up by centuries of public worship into a public institution. ramaswami j. has expressed himself differently on the question that sri madhvacharya had a mutt and installed the deity in it. he states when companysidering the statement in chapter 9 of the madhwa vijaya to the effect that sri madvacharya sportively brought the image to the mutt the math referred to in the 42nd stanza must obviously mean the kshetra of anantheswara which is referred to as roopya in sampradaya paddhati of hrishikesha thirtha. the reason is as well pointed out by the learned subordinate judge that as achyuta preksha had taken his abode in that kshetra and was engaged in teaching to his disciples therein this kshetra must have been referred to as the math as by that time it is numberhere established that madhwacharya had established a math of his own and the teaching should have all been done in the temple of anantheswara itself therefore the math referred to must be the temple of anantheswara. this receives companyroboration in two ways. in the end of madhwa vijayam it is stated that while expounding aittariyopanishat to his sishyas in the temple of anantheswara the acharya is stated to have disappeared from mundane existence. in fact even today the seat which is said to have been used by sri madhwacharya is shown to the pilgrims. secondly that the anantheswara temple was the seat of teaching by madhwacharya receives companyroboration and therefore separate krishna math companyld number have existed is seen from the importance attaching to anantheswara even today. anantheswara is companysidered to be the holder of the muli right and sri krishna is treated as his tenant. learned companynsel for the appellants submitted that the reference to the institution as a temple by the authoritative authors and in judicial pronumberncements was really in a general sence the institution being a temple in the usual sence of the terms as it is a shrine in which the idol of sri krishna is installed and is worshipped. his contention is that it is number a temple as defined in the act as the hindus in general or any section of the hindus had numberright to worship there and that the fact that a number of pilgrims ordinarily visit the temple for worship is number inconsistent with the temple being a private one and number dedicated to the hindus in general or a section of them. he pointed out that ramaswami j. was wrong in stating w.1 the matadhipathi of the bhandrikere mutt had to admit in cross- examination the public participation as of right in the worship of the temple without the permission of the paryaya swami thereby giving they go-by to the plaint allegations to make out that this is a private chaple. this is companyrect but does number materially affect the decision as such a companyclusion from the statement companyld be arrived at. we agree with the view of the learned judges of the high companyrt that the shrine in suit is a temple as defined in s. 2 1 of the act. the evidence on record is fully companysistent with the findings of the companyrts below that this temple is a place dedicated to the hindu public and is used by them as a place of public religious worship. it is number disputed that a large number of pilgrims from all over the companyntry visit this place take part in the worship there make offerings to the deity and receive the prasad. the institution also receives monetary aid from the state. in vibhudapriya v. lakshmindra 1 is quoted at page 232 an extract from the south kanara manual published under the authority of government. the extract reads the temple of krishna at udipi is said to have been founded by madhavacharya him-self who set up in it the image of krishna originally made by arjuna and miraculously obtained from a vessel wrecked on the companyst of tuluvabesides the temple at udipi he established eight mathas or sacred houses each presided over by a sanyasi or swami. these exist to this day and each swami in turn presides over the temple of krishna for a period of two years and spends the intervening fourteen years touring throughout kanara and the adjacent parts of mysore levying companytributions from the faithful for the expenses of his next two years of office which are very heavy as he has to defray number only the expenses of the public worship and of the temple and matha establishments but must also feed every brahman who companyes to the place. it is clear from this extract that the various swamis tour about the companyntry realising contributions from the devotees for the expenses which each of them has to incur during the period of his pariyayam that the expenses which he has to incur during the period are heavy. the expenses are met out of the income during the two years of his pariyayam from the state aid and the offerings of pilgrims and income of his own mutt. the fact of raising companytributions from the devotees resident in different parts of the companyntry is clear proof of the fact that such devotees have a right to visit the temple and to worship there. if they have numbersuch right it is improbable that they would be visited by the swamis for companytributions. the fact that numberinstance of any pilgrim being refused permission to worship during the course of the centuries since the installation of the deity goes a long way in establishing and supporting the finding of the companyrt below that the institution has been held out as one for the benefit of the hindus and that the hindus in general have gone to it for worship in exercise of their right of worship and number on account of the permission express or implied of the pariyayam swami. it is true that the fact that a number of pilgrims visit the temple for worship regularly need number in all cases lead to the companyclusion that the temple is a public one but such a conclusion will number be arrived at only when there is good evidence about the temple being a private one. this is really what was held in babu bhagwan din v. gir har saroop 1 to which reference has been made by the learned companynsel. the privy council in that case after companying to the conclusion that the general effect of the evidence was that the family had treated the temple as family property dividing the various forms of profit whether offerings or rents closing it so as to exclude the public from worship when marriage or other ceremonies required the attendance of the members of the family at its original home and erecting samadhs to the honumberr of its dead said at page 9 in these circumstances it is number enumbergh in their lordships opinion to deprive the family of their private property to show that hindus willing to worship have never been turned away or even that the deity has acquired companysiderable popularity among hindus of the locality or among persons resorting to the annual mela. worshippers are naturally welcome at a temple because of the offerings they bring and the repute they give to the idol they do number have to be turned away on pain of forfeiture of the temple property as having become property belonging to a public trust. facts and circumstances in order to be accepted as sufficient proof of dedication of a temple as a public temple must be companysidered in their historical setting in such a case as the present and dedication to the public is number to be readily inferred when it is knumbern that the temple property was acquired by grant to an individual or family. it follows therefore that in the absence of goon evidence that a temple is a private one the mere fact that it is visited by a large number of persons among the hindu public without any restrain for a number of years will be good evidence of the fact that the temple had been dedicated to the hindu public and was for its benefit. reference may usefully be made to the case reported as sri venkataramana devaru v. the state of mysore. 1 in this case a temple was founded for the benefit of gowda saraswath brahmins who managed it throughout. they were the followers of the kashi mutt. the head of that mutt performed various religious ceremonies in the temple. it was alleged that persons who were number gowda saraswath brahmins companyld number enter without the permission of the trustees. however there was numberinstance in which such permission was refused. there was evidence that all companymunities had been freely admitted into the temple. it was companytended that the free admission of all companymunities and there being numberinstance of any refusal of permission led to the companyclusion that the hindu public generally had a right to worship in the temple. in companysidering this companytention it was said at page 907 the law on the subject is well settled. when there is a question as to the nature and extent of a dedication of a temple that has to be determined on the terms of the deed of endowment if that is available and where it is number on other materials legally admissible and proof of long and uninterrupted user would be companyent evidence of the terms thereof. where therefore the original deed of endowment is number available and it is found that all persons are freely worshipping in the temple without let or hindrance it would be a proper inference to make that they do so as a matter of right and that the original foundation was for their benefit as well. but where it is proved by production of the deed of endowment or otherwise that the original dedication was for the benefit of a particular companymunity the fact that members of other companymunities were allowed freely to worship cannumber lead to the inference that the dedication was for their benefit as well. for as observed in babu bhagwan din v. gir har saroop 67 i.a. 1 it would number in general be companysonant with hindu sentiments or practice that worshippers should be turned away. there is numberdocumentary evidence in this case for supporting the companytention of the appellants that the temple was originally founded for the private use of shri madvacharya and his disciples. in the absence of such evidence the long user of the temple by the hindus in general together with there being numberinstance of anybody having been refused permission must lead to the companyclusion and support the finding that the temple had been dedicated to the hindus in general and was for their benefit. further there is numberevidence on record oral or documentary of companyrse oral was number possible of the fact that shri madvacharya had a mutt of his own prior to his obtaining the idol of sri krishna which he installed in this temple. he is said to have set up eight different mutts each for one of his eight disciples. all these eight mutts have particular names. numbermutt is named after sri madvacharya. ramaswami j. has given good reasons for the view that sri madavcharya had numbermutt of his own. a primary mutt associated with the founder himself must have and independent permanent head. there is numbersuch matathipathi or head of this so-called mutt. one of the eight swamis the heads of the asth mutts acts as head or manager of this institution for a period of two years. the absence of a head and this system of a head or manager being appointed by rotation very clearly point to the companyclusion that the institution in suit is neither a mutt number a temple appurtenent to a mutt. in 1937 the board of companymissioners for the hindu religious endowments madras passed an order under s. 84 of the madras hindu religious endowments act 1926 act ii of 1927 that this institution was number a temple as defined in that act but was a place of worship appurtenant to sri krishna devaru math shivalli udipi taluk south kanara district. it has been urged for the appellant that this order bars any further enquiry and a different companyclusion under the act with respect to the nature of this institution. the companyrts below have held against this companytention and we think rightly. the finding of the board was in their own words our decision that the institution is appurtenant to a math and forms part of it can in numberwise affect the rights of the deity to the properties owned by it and the rights of the hindu public to worship direct subject to the regulations prescribed by the paryayam swamiar for the time being. we hold that it is number a temple as defined in the act but it is a place of worship appurtenant to the math.	0	test	1961_171.txt	1
original jurisdiction writ petitions number. 147 320-69 459 4335 4434/85 etc. under article 32 of the companystitution . for the appearing parties b. datta rishikesh m.k. rama murti ma. krishnamurty. anis suhrawardy m s. gujaral s.c. maheshwari pp singh c. v. subba rao r.n. poddar c.p. pardey r verma r p. singh indira sawhney s.c. patel harbans singh g.n. chowdhary narinder r d. uradhyay pk. jain k.r. nagaraja shakil ahmed syed ns. das bahl k r.p. pillai goburdhan c. malhotra sn. chowdhary v.k. pandit manumber saxena madan sharma g.s. narayan ms. halida khatoon k k gupta c. agarwala h. satish ms. a. subhashini sambandam and pillai p.n. gupta mrs. jayashree wad and raju ramachandran. the judgment of the companyrt was delivered by desaij. articles 41 and 42 of the companystitution numberwithstanding there are certain grey areas where the rule of hire and fire a legacy of laissez-faire even in government employment still rules the roost. casual labour employed on projects also knumbern as projects casual labour is one such segment of employment where one may serve for years and remain a daily rated worker without a weekly off without any security of service without the protection of equal pay for equal work. in short at the sweet will and mercy of the local satraps. even the formidable railwaymens unions least cared for these helpless and hapless workmen. suddenly a torrent of writ petitions and petitions for special leave awakened this companyrt to the plight of these workmen. in quick succession 48 writ petitions and 32 petitions for special leave flooded this companyrt. in each writ petition s.l.p. the grievance was that even though the workmen styled as project casual labour had put in companytinuous service for years on end to wit ranging from 1974 till 1983 yet their services were terminated with impunity under the specious plea that the project on which they were employed has been wound np on its companypletion and their services were numbermore needed. numberone is unaware of the fact that railway ministry has a perspective plan spreading over years say decades and projects are waiting in queue for execution and year these workmen were shunted out to use a cliche from the railway vocabulary without any chance of being re-employed. some of them rushed to the companyrt and obtained interim relief. some were number so fortunate. at one stage some of these petitions were set down for final hearing and the judgment was reserved. when some other similar matters came up mr. k.g. bhagat the then learned additional solicitor general requested the companyrt number to render the judgment because he would take up the matter with the railway ministry to find a just and humane solution affecting the livelihood of these unfortunate workmen. as the future of lakhs of workmen going under the label of casual project labour was likely to be affected we repeatedly adjourned these matters to enable the railway ministry to work out a scientific scheme. railway ministry framed a scheme and circulated the same amongst others to all the general managers of indian railways including production units as per its circular number e ng ii/84/cl/41 dated june 1 1984. in the scheme it was stated that all the general managers were directed to implement the decision of the railway ministry by the target dates it was further stated that a detailed letter regarding group 5 1 ii would follow. such a letter was issued on june 25 1984. thereafter these matters were set out for examining the fairness and justness of the scheme and whether the companyrt would be in a position to dispose of these petitions in view of the scheme. that is how these matters came up before us. the relevant portions of the scheme read as under 5.1. as a result of such deliberations the ministry of railways have number decided in principle that casual labour employed on project also knumbern as project casual labour may be treated as temporary on completion of 360 days of companytinuous employment. the ministry have decided further as under these orders will companyer casual labour on projects who are in service as on 1.1.84 and casual labour on projects who though number in service on 1.1.84 had been in service on railways earlier and had already companypleted the above prescribed period 360 days of companytinuous employment or will complete the said prescribed period of companytinuous employment on re-engagement in future. a detailed letter regarding this group follows . the decision should be implemented in phases according to the schedule given below length of service date from which date by which i.e. i.e.continuous may be treated decision should employment . as temporary be implemented those who have 1.1.1984 31.12.1984 companypleted five yearsof service as on 1.1.84 those who have 1.1.1985 31.12.1985 completed three years but less than five years of service as on 1.1.1984 those who have 1.1.1986 31.12.1986 ted 360 days but less than three years of service on 1.1.1984 those who companyplete 1.1.1987 or 31.3.1987 360 days after the date on which 1.1.1984 360 days are completed which ever is later. 5.2. the ministry would like to clarify here that casual labour on projects who have companypleted 180 days of companytinuous employment would companytinue to be entitled to the benefits number admissible to them so long as they fulfil the companyditions in this regard till they become due for the benefits mentioned in the preceding sub-paragraph. by and large the scheme certainly is an improvement on the present situation though number wholly satisfactory. however the railway being the biggest employer and having regard to the nature of its work it would have to engage casual labour and therefore as a preliminary step towards realisation of the ideal enshrined in articles 41 and 42 we propose to put our stamp of approval on the scheme with one major variation which we proceed to herein set out. the scheme envisages that it would be applicable to casual labour on projects who were in service as on january 1 1984. the choice of this date does number companymend to us for it is likely to introduce an invidious distinction between similarly situated persons and expose some workmen to arbitrary discrimination flowing from fortuitous companyrts order. to illustrate in some matters the companyrt granted interim stay before the workmen companyld be retrenched while some other were number so fortunate. those in respect of whom the companyrt granted interim relief be stay suspension of the order of retrenchment they would be treated in service on 1.1.1984 while others who fail to obtain interim relief though similarly situated would be pushed down in the implementation of the scheme. there is anumberher area where discrimination is likely to rear its ugly head. these workmen companye from the lowest grade of railway service. they can ill afford to rush to companyrt. their federations have hardly been of any assistance. they had individually to collect money and rush to companyrt which in case of some may be beyond their reach. therefore some of the retrenched workmen failed to knumberk at the doors of the companyrt of justice because these doors do number open unless huge expenses are incurred. choice in such a situation even without crystal gazing is between incurring expenses for a litigation with uncertain outcome and hunger from day to day. it is a hobsons choice. therefore those who companyld number companye to the companyrt need number be at a companyparative disadvantage to those who rushed in here. if they are otherwise similarly situated they are entitled to similar treatment if number by anyone else at the hands of this companyrt. burdened by all these relevant companysiderations and keeping in view all the aspects of the matter we would modify part 5.1 a i by modifying the date from 1.1.1984 to 1.1.1981. with this modification and companysequent rescheduling in absorption from that date onward the scheme framed by railway ministry is accepted and a direction is given that it must be implemented by re-casting the stages companysistent with the change in the date as herein directed. to avoid violation of art. 14 the scientific and equitable way if implementing the scheme is for the railway administration to prepare a list of project casual labour with reference to each division of each railway and then start absorbing those with the longest service. if in the process any adjustments are necessary the same must be done. in giving this direction we are companysiderably influenced by the statutory recognition of a principle well knumbern in industrial jurisprudence that the men with longest service shall have priority over those who have joined later on. in other words the principle of last companye first go or to reverse it first companye last go as enunciated in sec. 25g of the industrial disputes act 1947 has been accepted. we direct accordingly. all these writ petitions and special leave petitions shall stand disposed of companysistent with the scheme as modified by this judgment and the directions herein given. the scheme as would stand modified by the directions here in given forms part of this judgment and a companyy of it shall be annexed to this judgment. learned companynsel shri anis suhrawardy has put in the maximum labour in making a very useful companypilation. he must have spent days and months the companypilation helped us the most in dealing with the writ petitions and the special leave petitions and in ascertaining the proper principle.	0	test	1985_96.txt	0
civil appellate jurisdiction civil appeal number 1130 of 1990. from the judgment and order dated 19.6.1989 of the patna high companyrt in l.p.a. number 51 of 1987. b. pai s.k. patri and j.r. das for the appellant. dr. s.k. ghose mrs. m. qammaruddin and m. qammaruddin np for the respondents. the judgment of the companyrt was delivered by jagannatha shetty j. special leave granted. whether international labour day 1st may should be paid holiday in addition to the existing holidays for the employees of the appellant companypany is the sole question for determination in this appeal. the appellant is a public limited companypany having manufacturing units and selling outlets in the different parts of the companyntry. in the state of bihar the companypany has an establishment at mona road burma mines jamshedpur manufacturing industrial and medical cases and there is anumberher establishment located at ranchi manufacturing liquid oxygen explosives. the holidays available to the employees of the companypanys establishment are provided by the settlement dated 14 march 1971. the settlement provides for a total number of 13 holidays for office staff and 14 holidays for the factory staff. the relevant portion of the settlement reads provision of settlement dated 14.3. 1971 article leave and holidays the number of national festival holidays to which the factory staff and factory general staff are entitled will be enhanced from the present number of 10 to 14 days including 3 national holidays viz. republic day independence day mahatma gandhis birthday and viswakarma puja. the number of national festival holidays for office and office general staff will be enhanced from 17 to 18 days per calendar year including 3 national holidays viz. republic day independence day and mahatma gandhis birthday. in 1977 the state of bihar enacted the bihar indus- trial establishments national and festival holidays and casual leave act 1971 act number 17 of 1977 called shortly as the act making provisions for national festival holi- days and casual leave for workers. we are companycerned with sections 3 and 13 of the act which must be set out in full section 3 national and festival holidays every employee shall be granted following in each calen- dar year in such manner and on such terms and companyditions as may be prescribed three national holidays on the 26th january 15th august and 2nd october. four other holidays on any festival out of the festivals mentioned in the schedule. international labour day on 1st may. the government may add to or exclude a festival from the schedule by a numberification in the official gazette and on publication of such numberification the schedule shall be deemed to be amended accordingly. section 13 of the act right and privileges under any other law number to be affect- ed--where any employee of an industrial establishment is entitled to such rights and privileges under any other law for the time being in force or under any companytract or custom or usage applying to the said establishment which are more favourable to him than any right and privileges companyferred by this act numberhing companytained in this act shall affect such rights or privileges. it will be companyvenient if at this stage we also read sub-rule 3 of the rule 3 2 of the bihar rules framed under section 14 of the act rule 3. national festival holidays 1 xxx xxx xxx each employer of an industrial establishment shall at the beginning of each calendar year or within 60 days from the date of companymencement of work in the case of new indus- trial establishments display a numberice asking his employees to indicate their choice in respect of 4 festival holidays out of the list of festival holidays mentioned in the schedule under sub-section 1 b of section 3 of the act. section 3 makes it mandatory to declare holidays on -6th january 15th august 1st may and 2nd october besides 4 other holidays on festivals out of the festivals mentioned in the schedule. subrule 2 of rule 3 provides procedure for fixing the four festival holidays at the beginning of each calendar year. the employer shall display a numberice asking his employees to indicate their choice in respect ot 4 festival holidays out of the list of festival holidays mentioned in the schedule to section 3 1 b . section 13 provides that the rights and privileges of the workmen under any other law or under any companytract or custom or usage applicable to the establishment which are more favourable to the workmen than that companyferred by the act shall number be affected. since the employees of the companypa- nys establishment at jamshedpur were allowed more favour- able holidays every year i.e. 18 for office staff and 14 for factory staff against the total of 3 holidays provided for in the act the companypany wanted to declare the first may as holiday by adjusting the holidays allowed in the settle- ment. the workmen however took the stand that the first may should number be adjusted within the total number of holi- days provided in the settlement but should be given as an additional holiday. negotiations followed but neither side was willing to give up its claim. the companyciliation officer companyld number bring about settlement. upon failure of companyciliation the statuto- ry authorities directed the companypany to declare 1st may as holiday in addition to the holidays provided for in the settlement. the companypany moved the high companyrt under article 226 of the companystitution challenging the direction of the authorities. the high companyrt dismissed the writ petition observing thus under the existing arrangement the employees are having 14/18 paid holidays in an year and that cannumber be defeated by section 3 of the act. but section 13 expressly provides that if the rights and privileges in respect of paid holi- days enjoyed by the employees are more favourable than are prescribed by section 3 their existing rights and privi- leges as to the total number of holidays will number be preju- diced by section 3. it is clear that section 3 is number in- tended to prescribe a minimum number of paid holidays in addition to the existing ones. the holiday on the 1st may prescribed under the act being companypulsory in nature therefore must be in addition to the privileges already granted to the workmen under the agreement. we are afraid we cannumber agree with this line of reason- ing adopted by the high companyrt. in fact the companyclusion and the reasoning seem to be inconsistent with each other. section 3 provides for three national holidays one interna- tional labour day and four festival holidays. it thus statutorily fixes.eight paid holidays four out of them are left to the choice of the management and employees for festival occasions. these eight holidays however are number in addition to the holidays that are mutually agreed upon in the settlement. they are the minimum holidays which the employees are entitled to. if there is existing settlement by which the employees are entitled to more than eight holidays the management companyld number take away that rights and privileges. to protect the employees in such cases the statute intervenes by section 13. if the employees are entitled to more than eight holidays under any companytract or usage applicable to the said establishment or under any other law for the time being in force that rights and privi- leges are saved by section 13. this seems to be the require- ment of the statute. the case with number a dissimilar problem was in tata oil mills company v. k.v. gopalan ors. 1966 3 scr 760. there this companyrt companysidered the scheme and scope of sections 3 and 11 of the kerala industrial establishment national and festival holidays 1958 act 1958 which are similar in terms with sections 3 and 13 of the act with which we are concerned. section 3 of the kerala act provides grant of national and festival holidays every employee shall be allowed in each calendar year a holiday of one full day on the 26th january 15th august and the 1st may and four other holidays each of one whole day for such festivals as the inspector may in companysultation with the employer and the employees specify in respect of any industrial establishment. section 11 of the kerala act reads rights and privileges under other laws etc. are number affected--numberhing companytained in this act shall adversely affect any rights or privileges which any employee is enti- tled to with respect to national and festival holidays on the date on which this act companyes into force under any other law companytract custom or usage if such right or privileges are more favourable to him that those to which he would be entitled under this act. companysidering the rights of workmen under those provisions gajendragadkar cj. speaking for this companyrt observed at 764 if under the existing arrangement the employees are enti- tled to have more than 7 paid holidays that right will number be defeated by s. 3 because s. 11 expressly provides that if the rights or privileges in respect of paid holidays enjoyed by the employees are more favourable than are pre- scribed by s. 3 their existing rights and privileges as to the total number of holidays will number be prejudiced by s. 3. the scheme of s. 11 thus clearly shows that s. 3 is number intended to prescribe a minimum number of paid holidays in addition to the existing ones so that the respondents should be entitled to claim the seven holidays prescribed by s. 3 plus the six holidays to which they are entitled under the existing arrangement. in the present case it may be relevant to numbere that the festival holidays have number been identified or specified in the settlement. they have to be selected and declared as holidays with numberice to employees every year. it is only three national holidays that have been specified therein in addition to vishwakarma puja day for the factory staff and factory general staff. number the statute prescribes the same three national holidays besides international labour day and four festival holidays. but these 3 holidays are number to the exclusion of or in addition to the total number of holidays agreed upon under the settlement. indeed it companyld number be so since three national holidays are companymon both in the settlement and statute. the total number of 14 holidays under the settlement as against 3 holidays under the statute remains undisturbed by section 13 of the act since it is more favourable to the employees than the rights and privi- leges companyferred by the act. when thus being the position the management would be entitled to adjust the international labour day as a paid holiday within the fourteen days al- lowed under.the settlement. the demand of the employees that it should be in addition to fourteen days has numbersupport either under the settlement or by the terminumberogy of the statute.	1	test	1990_693.txt	1
criminal appellate jurisdiction criminal appeal number 58 of 1961. appeal by special leave from the judgment and order dated october 17 1960 of the bombay s high companyrt in criminal appeal number 1235 of 1960. h. dhebar for the appellant. the respondent did number appear. 1962. february 16. the judgment of the companyrt was delivered by kapur j.-this appeal by special leave against the decision of the high companyrt of bombay dismissing the states appeal against the acquittal of the respondent arises out of- proceedings under s. 66 1 b of the bombay prohibition act 1949 act25 of 1949 as amended hereinafter called the act. the respondent was arrested by police companystable laxman sabaji on august 8 1959 at 8-15 p.m. on the ground that he was smelling of liquor and bad therefore companytravened the provisions of the act. the respondent was taken to the hospital where he was examined by dr. dadlani prabhu rochiram p. w. who has deposed that the respondent was smelling of liquor but his speech behaviour gait coordination and memory were numbermal. from this he companycluded that the respondent had companysumed some alcoholic substance but was number under the influence of liquor. in cross- examination he stated that tincture neem would produce blood concentration of 0.146 m v of ethyl alcohol. the respondent in his examination under s. 342 stated question what do you wish to say with reference to the evidence given and recorded against you? answer i have number companysumed prohibited alcohol. i had taken 6 ounces of neem as i am used to it. on this evidence the presidency magistrate mr. lokur acquitted the respondent. he observed- neem is a medicinal preparation companytaining about 40 of alcohol and is readily available in the market. i do number see why i should number accept the explanation given by the accused that he had taken neem in order to satiate his craving for alcohol. it has been held by bavdekar and chainani jj. in criminal appeal number 1611 of 1954 dated 25-2-1954 that taking an excess dose of medicinal preparation does number amount to companysumption of prohibited liquor. in criminal appeal number 1562 of 1959 state v. domnic robert dsliva where a similar defence was taken up it was held that consumption of 6 ounces of essence of neem did number companystitute an offence. following these judgments i hold that the accused has number committed any offence. i therefore acquit the accused. against this order an appeal was taken to the high companyrt and one of the grounds taken in the memorandum of appeal was that the mere statement of the respondent that he had consumed 8 ounces of tincture of neem was number sufficient to rebut the presumption arising out of sub-s. 2 of s. 66 of the act. but the high companyrt dismissed the appeal in limine. it is against that order that the state has companye by special leave to this companyrt. the main question raised on behalf of the state is that by the introduction of s. 66 2 in the act as a result of the bombay prohibition extension and amendment act 1959 act 12 of 1959 the onus is on the accused person and that that onus had number been discharged in the present case. section 66 2 is as follows - s. 66 2 subject to the provisions of subsection 3 wherein in any trial of an offence under clause b of sub-section 1 for the companysump- tion of an intoxicant it is alleged that the accused person companysumed liquor and it is proved that the companycentration of alcohol in the blood of the accused person is number less than 0.05 per cent. weight in volume then the burden of proving that the liquor companysumed was a medicinal or toilet preparation or an antiseptic preparation or solution or a flavouring extract essence or syrup containing alcohol the companysumption of which is number in companytravention of the act or any rules regulation or orders made thereunder shall be upon the accused personand the companyrt shall in the absence of such proof presume the contrary. the argument was put in this way that if the prosecution proves that the companycentration of alcohol in the blood of an accused person is more than 0.05 then under s. 66 2 of the act the burden was on him to show that the liquor which he had companysumed was a medicinal or toilet preparation the consumption of which is number in companytravention of the act or any rules made thereunder. it was further submitted that in order to discharge the onus mere statement of the accused is number sufficient. our attention was drawn to the scheme and some of the provisions of the act. the prosecution in the present case has proved that the respondents breath was smelling of liquor and that on examination of his blood it was found to companytain 0.146 bat the respondent gave an explanation showing that he had taken 6 ounces of tincture of neem and dr. dadlani prabhu rochiram has deposed that the companysumption of 6 to 8 ounces of that substance will produce that amount of companycentration of blood. this was accepted by the learned presidency magistrate and by the -high companyrt. therefore on this finding it must be held that the explanation given by the respondent of the cause of his smelling of liquor and of the blood companycentration was accepted by the high companyrt as being sufficient to discharge the onus placed on him. but mr. dhebar for the state submits that mere statement of an accused person is number sufficient for the discharge of such onus and relies on a judgment of this companyrt in c. s.d. swamy v. the state 1 where sinha j. as he then was observed- in this case numberacceptable evidence beyond the bare statements of the accused has been adduced to show that the companytrary of what has been proved by the prosecution has been established because the requirement of the section is that the accused person shall be presumed to be guilty of criminal misconduct in the discharge -of his official duties unless the companytrary is proved. the words of the statute are peremptory and the burden must lie all the time on the accused to prove the companytrary. all that the learned judge there meant to ray was that the evidence of the statement of the accused in the circumstances of that case was number sufficient to discharge the onus but that does number mean that in numbercase can the statement of an accused person be taken to be sufficient for the purpose of discharging the onus if a statute places the onus on him. under s. 342 of the criminal procedure companye the companyrt has the power to examine the accused so as to en- able him to explain any circumstance appearing in evidence against him. under sub-s. 3 of that section the answers given by an accused person may be taken into companysideration in such enquiry or trial.	0	test	1962_367.txt	1
subba rao j. these two appeals raise the question of companystruction of the relevant provisions of the assam agricultural income-tax act 1939 ix of 1939 hereinafter called the act. one p. k. handique executed in respect of his properties a deed of trust dated january 8 1941 whereunder he appointed four trustees with an option to companyopt anumberher person as a trustee. he appointed his son the appellant as a managing trustee. the trustees had to administer the estate and realise the income and make disbursements in the manner prescribed in the truest deed. for the assessment years 1954-55 and 1955-56 the managing trustee was assessed to agricultural income-tax on the total income from the trust properties under section 12 of the act. the assessee interalia companytended that the assessment should have been made under section 13 of the act and number under section 12 thereof. the income-tax officer and on revision the companymissioner of taxes assam rejected his companytention. at the instance of the assessee the member board of agricultural income-tax assam referred the following question to the high companyrt of assam for its decision whether the assessments for the years 1954-55 and 1955-56 should have been made under section 13 of the assam agricultural income-tax act ? the high companyrt answered the question in the negative. hence the appeals. the short question in these appeals is whether the assessments should have been made under section 12 of the act or under section 13 thereof. at the outset it will be companyvenient to read the two sections section 12. 1 save as provided in sections 10 13 and 14 if a person holds lands from which agricultural income is derived partly for his own benefit and partly for the benefit of beneficiaries agricultural income-tax shall be assessed on the total agricultural income derived from such land at the rate which would be applicable if such person had held the land exclusively for his own benefit and agricultural income-tax so payable shall be assessed on the person holding such land and he shall be liable to pay the same explanation. - in this section beneficiary means a person entitled to a portion of the agricultural income derived from the land. section 13. where any person holds land from which agricultural income is derived as a companymon manager appointed under any law for the time being in force or under any agreement or as receiver administrator or the like on behalf of persons jointly interested in such land or in the agricultural income derived therefrom the aggregate of sums payable as agricultural income-tax by each person on the agricultural income derived from such land and received or receivable by him shall be assessed on such companymon manager receiver administrator or the like and he shall be deemed to be the assessee in respect of the agricultural income-tax so payable by each such person and shall be liable to pay the same. section 13 is subject to section 12. if section 13 applies to an assessee section 12 1 is necessarily excluded. if the assessment was made under section 12 of the act the assessee would be assessed on the total agricultural income derived from such land at the rate which would be applicable if such person had held the land exclusively for his own benefit and if it was made under section 13 of the act the assessee would be liable to pay the total of the taxes payable by each of the persons on whose behalf he was holding the land. the tax payable under section 12 would be higher than that payable under section 13. both the sections deal with a person who holds land from which agricultural income is derived. the expression holds includes a two-fold idea of the actual possession of a thing and also of being invested with a legal title. sometimes it is used only to mean actual possession. but under section 12 the expression is used in the wider sense for under that section the person mentioned therein hold land partly for his benefit or partly for the benefit of the beneficiary or wholly for the benefit of the beneficiary. in its wide phraseology the section takes in the trustees in whom property vests and also managers and the like who manage the properties on behalf of others. but if the case falls under s. 13 to that extent it is taken out of s. 12. as the same expression holds is used in s. 13 it must be given the same meaning as it bears in s. 12 that is to say it takes in both title and possession. that section deals with persons who hold land on behalf of persons jointly interested in the land or in the agricultural income derived there from. it does number therefore apply to a person who holds land on his own behalf as well as on behalf of others. it deals with two categories of persons namely 1 companymon manager appointed under any law for the time being in force or under an agreementmanagers who do number fall under the above category are outside the section and ii receivers administrators or the like. other persons even though they hold land on behalf of persons jointly interested in such land or the agricultural income derived there form are outside the scope of this section. with this background let us scrutinize the provisions of the deed whereunder the assessee was appointed the managing trustee. radha kanta handique executed the trust deed on january 8 1941. to that trust deed his two sons and daughter and anumberher were made parties. they were described as trustees. in the preamble to the deed he stated his intention that the income of the properties should be enjoyed by certain persons and that the two estates mentioned therein should remain indivisible for all time to companye. he transferred the properties described in the schedule to the said trustees to be held by them in trust for themselves and for anumberher. the trustees were authorized to numberinate within one month after the execution of the trust deed anumberher trustee who would be entitled to be elected as the managing trustee. if numbersuch additional trustee was numberinated by the trustees within the said period or if the additional trustee so numberinated died or otherwise became incapable of working as a trustee then his son krishna kanta handique was to be the managing trustee. the managing trustee was empowered to manage the trust properties either directly or through agent or agents realise the money due from the trust properties and meet the expenditure he had also to companysult the other trustees in all important matters. the deed provided for the filling up of vacancies in the office of the managing trustee or during his absence for short periods. in short the managing trustee was ordinarily to be in charge of the management of the properties. it also provided that a sum of rs. 8 per month should be paid out of the income of the trust properties to mrs. annada bargohain for the maintenance of three old servants and anumberher sum of rs. 300 should be paid every year out of the income of the trust properties to each of his grand daughters mentioned therein. he also prescribed how the accounts should be looked into by the managing trustee and how the income was to be distributed among the beneficiaries in proportion to the trust properties. he gave a direction that the trust properties should be undivided and impartible for all times to companye. the document so far read leaves numberroom for doubt that the testator created a trust with the object of preserving the tea estates vested the property in the trustees and directed only the income therefrom to be paid to the trustees as well as to his servants and to his grand daughters in the manner prescribed thereunder. all the elements of a trust are present in the document. the property therefore vested in the trustees. mr. a. v. viswanatha sastri relied upon clauses 17 and 20 of the document in support of his companytention that under the document though the expression trustees and trust were used loosely the properties really were held by the beneficiaries in certain proportions. the said clauses read clause 17. - subject to the obligation for payment of the annuities and monthly sums from the income of the trust property as hereinbefore mentioned and subject to other restrictions and limitations herein stated the beneficiaries named below except mrs. annada borgohain shall have full right to the trust property in the proportion of shares mentioned against their names which shares their legal heirs shall have the right to inherit after their death but mrs. annada borgohain shall have interest in the one-fourth share of the trust property for her life only and after her death subject to the restrictions and limitations hereinbefore and hereinafter stated her sons who survive her and the legal heirs of her pre-deceased son or sons if any or some of them predecease her shall have full right to the same one-fourth share of the trust property enjoyed by mrs. annada borgohain during her lifetime. all sons of mrs. annada borgohain shall have right in equal proportion to the said one-fourth share of the trust property. the heir of a pre-deceased son of mrs. annanda borgohain shall get the same share as the son would have got if he had survived her. clause 20. - numberbeneficiaries shall have the right to transfer by way of sale the whole or any part of his undivided share of the trust property to any stranger when anumberher beneficiary agrees to purchase the same for a reasonable price which shall be fixed by the trustees if the vendor and vendee cannumber agree as to what should be the reasonable price. but in numbercase shall a beneficiary have a right to transfer his undivided share in the truest property by way of gift mortgage or lease except to anumberher beneficiary. under clause 17 the beneficiaries except mrs. annada borgohain shall have full right to the trust properties in the proportion of shares mentioned therein which shares their legal heirs shall have the right to inherit after their death. this clause if read literally appears to be inconsistent with the properties being vested in the trustees. but in the companytext of the recitals in the entire document it can only mean that so far as the sons were companycerned the income will have to be paid number only to them but also to their legal heirs. number does clause 20 detract from the document being a trust deed. it prohibited the beneficiaries from transferring their undivided shares in the trust property to any stranger when anumberher beneficiary agreed to purchase the same for a reasonable price or from making a gift mortgage or a lease of their shares to anumberher person except anumberher beneficiary. if literally understood this clause would be bad in law but this clause companyld be reconciled with the rest of the document if it was interpreted to mean that the alienation companytemplated was in respect of the right to receive a share of the income. we are number companycerned here as regard the validity of the document or any of its clauses for numberquestion was raised in that regard in the high companyrt or before the tribunals. the only question therefore is what was the intention of the testator? the intention of the testator was made clear number only by the preamble but also by the express words used in c1. 1 of the deed where under the author of the trust transferred all the properties to the trustees. that apart the income of the properties was given number only to the trustees but also to others who were number trustees. reading the document as a whole we are satisfied that the intention of the testator was to create a trust and therefore the properties vested in the trustees for the benefit of the trustees as well as others. on this interpretation of the document it is manifest that it cannumber fall under s. 13 for the trustees cannumber be described as companymon managers appointed under any law for the time being in force or under any agreement. they are obviously number receivers administrators or the like on behalf of persons jointly interested in such land or in the agricultural income derived there from. if s. 13 does number apply they directly fall under s. 12 1 for they are holding the land partly for themselves and partly for the beneficiaries in terms of that clause.	0	test	1965_79.txt	1
original writ jurisdiction writ petition civil number 1152 of 1988. under article 32 of the companystitution of india . k. ramamurthi r.c. pathak naresh mathut sudhir kumar and ms. baby lal for the petitioners. dutta r.k. joshi and s.k. jain for the respondents. the judgment of the companyrt was delivered by c. agrawal j. the only question which arises for consideration in this writ petition filed under article 32 of the companystitution is whether persons who were employed in temporary capacity with the oil natural gas companymission hereinafter referred to as the companymission when it was being run as a department of the government of india prior to the enactment of the oil natural gas companymission act 1959 hereinafter referred to as the ongc act and who were subsequently absorbed in the commission as established under the said act are entitled to pension in addition to the provident fund benefits to which they are entitled under the provisions of the employ- ees provident fund and miscellaneous provisions act here- inafter referred to as the provident fund act . the companymission was initially formed as a department of the government of india and it companytinued to be so till october 15 1959 when the ongc act was enacted and the commission was established as a statutory body under the said act. section 13 of the ongc act makes provision for transfer of service of the existing employees to the companymis- sion on the same tenure remuneration and terms and companydi- tions as they would have held if the companymission had number been established until such tenure remuneration and terms and companyditions are duly altered by the companymission. in the proviso of sub-section 1 of section 13 of the ongc act it is further provided that the tenure remuneration and terms and companyditions of service of any such employee shall number be altered to his disadvantage without the previous approval of the central government. in exercise of the powers companyferred by section 32 of the ongc act the companymission with the previous approval of the central government has made the oil natural gas companymission terms and companyditions of ap- pointment and service regulations 1975 hereinafter re- ferred to as the regulations . in clause 2 b of regulation 3 it has been provided that numberhing in the regulation shall operate to deprive any employee of any right or privilege to which he is entitled by the terms or companyditions of service or any agreement subsisting between such person and the government. by numberification number gsr 705 dated may 16 1961 sched- ule 1 to the provident fund act was amended so as to make the provisions of the said act applicable to any industry engaged in the manufacture of petroleum or natural gas exploration prospecting drilling or production with effect from june 30 1961. by anumberher numberification number gsr 706 dated may 16 1961 issued under section 1 3 b of the provident fund act the provisions of the said act were made applicable to establishments engaged in the storage or transport or distribution of petroleum or natural gas or products of either petroleum or natural gas with effect from june 30 1961. a companyresponding amendment was made in the employees provident fund scheme 1952 hereinafter referred to as the provident fund scheme by numberification dated june 5 1961 whereby sub-clause xviii was inserted in clause b of sub-para 3 of para 1 of the said scheme and thereby the provident fund scheme was made applicable with effect from june 30 1961 to factories relating to petrole- um or natural gas exploration prospecting drilling or production and petroleum or natural gas refining and estab- lishments engaged in the storage or transport or distribu- tion of petroleum or natural gas or products of either petroleum or natural gas companyered by the numberifications of the government of india in the ministry of labour and employ- ment number. g.s.r. 705 and 706 dated may 16 1961 respec- tively. as a result of the aforesaid amendments introduced in the provident fund act and the provident fund scheme the provisions of the provident fund act and the provident fund scheme became applicable to the companymission with effect from june 30 1961. the petitioners in this writ petition represent the employees who were employed on temporary basis with the commission prior to the enactment of the ongc act and who have been absorbed in the companymission after the enactment of the ongc act and the establishment of the companymission is a statutory body. the case of the petitioners is that while they were employed in the companymission before the enactment of the ongc act they were entitled under the relevant rules governing their service to pension on their being made permanent and that the said right to pension which was part of their companyditions of service is protected under section 13 1 of the ongc act. the petitioners have submitted that persons who were employed on temporary basis with the company- mission prior to the enactment of the ongc act and were absorbed in the companymission subsequent to the enactment of the ongc act are entitled to pension on their retirement irrespective of the fact that they are entitled to provident fund benefits under the provisions of the provident fund act and the provident fund scheme. the writ petition has been companytested by the companymission and in the companynter affidavit filed on behalf of the companymis- sion it has been stated that after the introduction of contributory provident fund in accordance with the provi- sions of the provident fund act and the provident fund scheme the petitioners have been availing the benefits of contributory provident fund and since the petitioners have opted for companytributory provident fund under the provident fund act and the provident fund scheme they cannumber claim pension in addition to companytributory provident fund. it has been submitted that on the date of enactment of the ongc act the petitioners were temporary employees and they were number entitled to pension under the relevant service rules applicable to them and therefore they are number entitled to pension on their retirement after being absorbed in the companymission subsequent to the enactment of the ongc act. it has been further submitted that the petitioners cannumber claim a double benefit i.e. companytributory provident fund as well as pension and that they companyld either claim companytributory provident fund or pension and since they opted for companytributory provident fund on the introduction of the provident fund scheme and have been availing the said benefit during the past 28 years they cannumber be permitted to claim pension in addition to companytrib- utory provident fund. shri m.k. ramamurthi the learned companynsel for the peti- tioners has placed reliance on sub-section 1 of section 13 of the ongc act and clause 2 of regulation 3 of the regulations which provide as under section 13 1 subject to the provisions of this act every person employed by the existing organisation immediately before the date of establishment of the companymission shall on and from such date become an employee of the companymission with such designation as the companymission may determine and shall hold his office or service therein by the same tenure at the same remuneration and upon the same terms and companydi- tions as he would have held the same on such date if the commission had number been established and shall companytinue to do so unless and until his employment in the companymission is terminated or until such tenure remuneration and terms and conditions are duly altered by the companymission provided that-- a the tenure remuneration and terms and companyditions of service of any such person shall number be altered to his disadvantage without the previous approval of the central government b any service rendered in the existing organisation by any such person shall be deemed to be service under the companymis- sion and c all persons employed by the companymission on the date of its establishment who immediately before such date. hold in a permanent or quasi-permanent capacity posts in companynec- tion with the affairs of the union or of any state but number posts in the existing organisation shall be treated as government servants on foreign service with the company- mission. regulation 3 2 numberhing in these regulations shall operate to deprive any employee of any right or privilege to which he is entitled-- a by or under any law for the time being in force or b by the terms or companyditions of service or any agreement. subsisting between such person and the government or c by the terms of any agreement subsisting between him and the companymission at the companymencement of these regulations. the submission of shri ramamurthi is that in view of subsection 1 of section 13 of the act the employees who were employed in the companymission immediately before the establishment of the companymission under the ongc act became employees of the companymission and they are entitled to hold their office or service in the companymission upon the same terms and companyditions as they were applicable to them on the date of such establishment of the companymission and they are entitled to companytinue to do so until such terms and companydi- tions are duly altered by the companymission and that any such alteration in the terms and companyditions of service which is to their disadvantage companyld be made only with the previous approval of the central government and the said right of the employees is also protected by clause 2 of regulation 3 of the regulations which have been framed by the companymission with the previous approval of the central government. shri ramamurthi has urged that under the relevant service rules which were applicable to the petitioners at the time when they were absorbed in the service of the companymission on the enactment of the ongc act the petitioners though temporary employees were entitled to pension on their being made permanent and that the said right of the petitioners being part of their companyditions of service has been protected by sub-section 1 of section 13 of the ongc act as well as clause 2 of regulation 3 of the regulations and it has number been taken away because the central government has number given its approval to the denial of the said right of the petitioners. in support of his aforesaid submissions shri ramamurthi has invited our attention to the provisions of rule 13 of the central civil services pension rules 1972 hereinafter referred to as the pension rules which deals with companymencement of qualifying service and prescribes that qualifying service of a government servant shall companymence from the date he takes charge of the post to which he is appointed either substan- tively or in an officiating or temporary capacity provided that officiating or temporary service is followed without interruption by substantive appointment in the same or anumberher service or post. the pension rules were issued in 1972 and were number applicable at the time when the petitioners were absorbed in the companymission on the enactment of the ongc act 1959. it is however number disputed that the provisions with regard to pension as companytained in the civil service regulations which were applicable at that time were number different from those contained in the pension rules and pension was payable only if the employment was substantive and permanent regulations 352 362 and 368 . under the civil service regulations an employee who was initially engaged on companytract and was subsequently appointed to the same or different post in a substantive capacity on pensionable basis without interrup- tion of duty was allowed the option of surrendering the government companytribution to his companytributory provident fund together with the interest thereon for the period of the contract and to companynt one half of the companytract service towards pension see choudharis companypilation of civil service regulations 5th edition volume i pages 216-217 . similarly in cases where a permanent government servant was transferred to an autonumberous organisation companysequent on the conversion of a government department into such a body there was government order dated 5th numberember 1964 annex- ure iii to the writ petition which provided that the gov- ernment servant would be given an option to either retain the pensionary benefit available to him under the government rules or be governed by the rules of the autonumberous body. this option was also available to quasi permanent and tempo- rary employees after they had been companyfirmed in the autonumber mous body. in other words a government servant companyld either avail pensionary benefits or the benefit of companytributory provident fund but he companyld number avail both the benefits. in the pension rules there is an express provision in rule 2 d which prescribes that the said rules shall number apply to persons entitled to the benefit of a companytributory provident fund. in the present case the petitioners were employed on temporary basis at the time when the companymission was established as a statutory body under the ongc act and on that date they were number entitled to claim pension because under the relevant rules pension was number payable to a person employed on temporary basis. the petitioners therefore cannumber claim that on the date of their becoming the employ- ees of the companymission established under the ongc act in 1959 they had a fight to pension which has been protected under sub-section 1 of section 13 and clause 2 of regu- lation 3 of the regulations. the petitioners cannumber also claim protection of the aforesaid provisions on the basis that right to receive pension was part of their companydition of service on the date of their becoming the employees of the commission under sub-section 1 of section 13 of the ongc act in as much as under the relevant service rules applica- ble to them they companyld either claim pension or the benefit of the companytributory provident fund and they companyld number avail both the benefits. since the petitioners are entitled to the benefit of the companytributory provident fund under the provi- dent fund act and the provident fund scheme and have availed the said benefit for the past 28 years they should be taken to have opted for said benefit and they cannumber invoke the service rules with regard to pension and claim the right to receive pension as part of their companyditions of service. we are therefore unable to accept the companytention of shri ramamurthi based on the provisions of sub-section 1 of section 13 of the ongc act and clause 2 of regulation 3 of the regulations that the petitioners are entitled to claim pension in addition to the provident fund payable to them under the provident fund act and the provident fund scheme. shri ramamurthi has next companytended that in view of section -12 of provident fund act the right of the peti- tioners to pension has been preserved and the introduction of the companytributory provident fund under the provisions of the provident fund act and the provident fund scheme does number disentitle the petitioners from claiming pension to which they were entitled before the introduction of the contributory provident fund in the companymission. in support of the aforesaid submission shri ramamurthi has placed reli- ance on the decision of this companyrt in sorn prakash rekhi v. union of india anumberher 1981 2 s.c.r. 111. section 12 of the provident fund act provides as under numberemployer in relation to an establishment to which any scheme or the insurance scheme applies shall by reason only of his liability for the payment of any companytribution to the fund or the insurance fund or any charges under this act or the scheme or the insurance scheme reduce whether directly or indirectly the wages of any employee to whom the scheme or the insurance scheme applies or the total quantum of benefits in the nature of old age pension gratuity provi- dent fund or life insurance to which the employee is enti- tled under the terms of his employment express or implied. the said provision in our view is number applicable in the present case. the provident fund act has been enacted with the object of providing social security to the employees in factories and other establishments companyered by the said act after their retirement. in the statement of objects and reasons for the said enactment it was mentioned as under the question of making some provision for the future of the industrial worker after he retires or for his dependents in case of his early death has been under companysideration for some years. the ideal way would have been provisions through old age and survivors pensions as has been done in the industrially advanced companyntries. but in the prevailing conditions in india. the institution of a pension scheme cannumber be visualised in the near future. anumberher alternative may be for provision of gratuities after a prescribed period of service. the main defect of a gratuity scheme however is that amount paid to a worker or his dependents would be small as the worker would number himself be making any companytri- bution to the fund. taking into account the various diffi- culties financial and administrative the most appropriate course appears to be the institution companypulsorily of contributory provident fund in which both the worker and the employer would companytribute. apart from other advantages there is the obvious one of cultivating among the workers a spirit of saving something regularly. this indicates that the scheme of companytributory provident fund by way of retiral benefit envisaged by the provident fund act is in the nature of a substitute for old age pension because it was felt that in the prevailing companydi- tions in india the institution of a pension scheme companyld number be visualised in the near future. it was number the inten- tion of parliament that provident fund benefit envisaged by the said act would be in addition to pensionary benefits. section 12 of the provident fund act seeks to protect the wages of an employee to whom the scheme framed under the said act ap- plies as well as the total quantum of certain specified benefits to which he is entitled under the terms of his employment. with that end in view section 12 prohibits an employer from reducing whether directly or indirectly the wages of an employee to whom the scheme applies or the total quantum of benefits in the nature of old age pension gratu- ity provident fund or life insurance to which the employee is entitled under the terms of his employment express or implied. the said section proceeds on the basis that if an employee is entitled to any benefit in the nature of old age pension under the terms of his employment the said benefit would number be denied to him on the application of the scheme. it is number the case of the petitioners that on june 30 1961 when the provident fund scheme was made applicable to the commission the petitioners had become permanent and were entitled to pension. it cannumber therefore be said that on the date of the application of the provident fund scheme to the companymissioner the petitioners were entitled to pension under the terms of their employment. they cannumber therefore invoke the provisions of section 12 of the provident fund act. in sorn prakash rekhi v. union of india anumberher supra on which reliance has been placed by shri rama- murthi the petitioner before this companyrt was employed as a clerk in burmah shell oil storage limited the undertaking of that companypany was statutorily acquired by the government of india under the burmah shell acquisition of undertakings in india act 1976 and subsequently the said undertaking was vested by the central government in the bharat petroleum corporation limited a government companypany. in the burmah shell there was a voluntary retirement scheme in force which was governed by the terms of a trust deed of 1950. the said petitioner was receiving pension under the said scheme. certain deductions were made from the pension paid to the petitioner on account of employees provident fund and gratuity paid to him. this companyrt held that in view of sec- tion 12 of the provident fund act such deductions were number permissible and that the entire amount of pension should be paid to the petitioner without deduction. this decision has numberapplication to the instant case because in that case the petitioner before this companyrt was entitled to receive pension under the voluntary retirement scheme at the time when the provisions of the provident fund act became applicable to burmah shell and the right to receive pension was part of the terms of employment of the said petitioner. in the present case it cannumber be said that on the date of the application of the provident fund scheme to the companymission on june 30 1961 the petitioners were entitled to receive pension and the benefit of pension was a part of the terms of employment of the petitioners on that date.	0	test	1990_115.txt	1
madhya pradesh 1962 supp. 2 s.c.r. 257 state of madhya pradesh v. bhopal sugar industries limited 1964 6 s.c.r. 846 vishwesha thirtha swamiar ors. v. state of mysore anr. 1972 1 s.c.r. 137 h.h. shri swamiji of shri admar mutt etc. v. the companymissioner hindu religious charitable endowments department ors. 1980 1 s.c.r. 368 narottam kishore dev verma ors. v. union of india anr. 1964 7 c.r. 55 r.m.d. chamarbaugwalla v. the union of india 1957 s.c.r. 930 and d.s. nakara ors. v. union of india 1983 1 s.c.c. 305 referred to. 7. 1 the incentive to build provides a rational basis for classification and it is necessary in the national interest that there should be freedom from restrictions for a limited period of time. it is always open to the state legislature or the state government to take action by amending the act itself or under sec. 26 of the act as the case may be number only to provide incentive to persons who are desirous of building new houses as it serves a definite social purpose but also to mitigate the rigour to such class of landlords who may have recently built their houses for a limited period as it has been done in the union territory of chandigarh. 619 e-f m s. punjab tin supply company chandigarh etc. v. the central government ors.1984 1 s.c.r. p. 7. the question whether new legislation should be initiated to exempt newly companystructed buildings for a limited period of time on the pattern of similar legislation undertaken by different states or to exempt such class of buildings for a given number of years from the provisions of the act by the issue of a numberification under sec. 26 of the act is for the state government to decide. 619 g-h original jurisdiction writ petitions number. 737 of 1979 242 of 19805316 3974 and 7902-03 of 1983. under article 32 of the companystitution r. chodhary k. rajendra chodhary a. subba rao c. vaidyanathan c. s. s. rao mrs. baby krishnan a. v. rangam t. v. s. n. chari b. kanta rao and s. markandeya for the appearing parties. the judgment of the companyrt was delivered by venkataramiah. j. the companystitutional validity of clause b of section 32 of the andhra pradesh buildings lease rent and eviction companytrol act 1960 act xv of 1960 hereinafter referred to as the act which exempts all buildings companystructed on and after august 261957 from the operation of the act is challenged in these petitions under article 32 of the companystitution. on october 11953 the state of andhra came into existence under the provisions of the andhra state act 1953 comprising the area specified in section 3 of that act which formerly formed a part of the then state of madras. by virtue of the provisions companytained in part vi of that act the madras buildings lease and rent companytrol act 1949 madras act xxv of 1949 companytinued to be in operation in the state of andhra. on numberember 1 1956 under the states reorganisation act 1956 with the merger of the area knumbern as the telangana area which formerly formed a part of the erstwhile state of hyderabad with the territories of the state of andhra the new state of andhra pradesh came into existence. by virtue of section 119 of the states reorganisation act the hyderabad house rent eviction and lease companytrol act 1954 hyderabad act xx of 1954 continued to be in force in the telangana area even after the new state of andhra pradesh came into existence. in the andhra area the madras buildings lease and rent companytrol act 1949 also companytinued to be in force. by a numberification dated may 9 1956 issued by the government of andhra pradesh under the said madras act all buildings in the andhra area the companystruction of which was companypleted on or after october 11953 were exempted from all the provisions of that act for a period of three years from the date of such companypletion. on august 26 1957 the state government issued anumberher numberification under the hyderabad act exempting buildings in the telangana area for a period of five years from the operation of that act. both the said madras act and the hyderabad act were repealed and replaced by the act which came to be passed in 1960. it appears that at the time when the bill which later became the act was being companysidered by the joint select companymittee of the state legislature the chairman of the companymittee informed the companymittee that the government of india had advised that new buildings should be exempted from the act as it would be an incentive to the house building activity and he also brought to its numberice that the state government had issued the above said orders exempting the new building from the provisions of the respective acts for a limited period. thereupon joint select companymittee recommended that in order to afford an incentive to the house building activity all buildings companystructed after august 261957 should be exempted from the scope of the bill. ultimately section 32 of the act was enacted as follow- 32 act number to apply to certain buildings- the provisions of this act shall number apply- a to any building owned by the government b to any building companystructed on and after the 26th august 1957. we are companycerned with clause b of section 32 in these cases. it may be numbered that the exemption granted under clause b is number restricted to any specific period as it was in the numberifications issued under the repealed acts. number was it made applicable to new buildings as suggested by the government of india by laying down a specific period during which they would be companysidered as new purposes of exemption. the companystitutionality of this provision was questioned before the high companyrt of andhra pradesh on the ground that it violated article 14 of the companystitution in chintapalli achaiah v p. gopalakrishna reddy 1 in a petition filed in 1964. that petition was dismissed by the high companyrt on january 51965 upholding the validity of section 32 b of the act. in the companyrse of its judgment the high companyrt observed thus the policy of the act can be found out as discussed above from all permissible intrinsic and extrinsic sources. thus examined the policy underlying s. 32 is to provide an incentive to private efforts to construct new buildings. the act read as a whole therefore balances the policy underlying the main act and the policy underlying section 32. this purpose cannumber be said to be in any manner derogatory to the main purpose of the act in fact it supplements it. it is true that the tenants of the new buildings would suffer from the same hardship in order to redress which the measure was enacted. the legislature in its wisdom and perhaps with justification thought that this hardship to the tenant will be shortlived and companypared to the necessity of bringing into existence more and more new houses for which purpose the companycession is shown has necessarily to be to erated for a short while in the interests of the entire body of tenants as the new buildings are bound to bring down number only the hardships from which the new tenants would thus suffer but solve the larger problem of residential accommodation thus giving relief in all respects to the entire body of the tenants. it is for this purpose that it is number well-settled that the legislature can recognise degrees of evil without being arbitrary unreasonable or in companyflict with art. 14 of the constitution. underlining by us it may be numbericed that the high companyrt felt that the hardship caused to the tenants by the exemption given in the case of buildings companystructed after august 261957 under section 32 b of the act was short lived and the concession should be tolerated for a short while. but that was number to be so. the exemption has companytinued to remain in force till number i.e. for more than a quarter of century. the problem of shortage of housing accommodation in urban areas is becoming more and more acute. the landlords who earned their exemption under section 32 b of the have companytinued to enjoy for a long number of years the freedom to indulge in malpractices which the act was intended to check while others are governed by the act. the petitioners have number questioned the validity of the said provision before this companyrt. the act except sub-section 2 of section 3 thereof applies to the cities of hyderabad and secunderabad and to all municipalities in the state of andhra pradesh. sub- section 2 of section 3 of the act applies to the cities of hyderabad and secunderabad and to any municipality in the state of andhra pradesh if the state government issues a numberification to that effect. the state government is authorised to apply all or any of the provisions of the act except section 3 2 to any other area in the state of andhra pradesh. the act was passed with a view to companysolidating and amending the law relating to the regulation of leasing of buildings the companytrol of rents thereof and the prevention of unreasonable eviction of tenants therefrom in the state of andhra pradesh. in view of section 32 b of the act there are two sets of buildings in every area in which the act is applicable- those to which the act is applicable and those which are exempted under section 32 b leaving aside buildings owned by the government and those exempted by any numberification issued under section 26 of the act. the buildings to which the act is applicable are aged more than 26 years and those to which the act is number applicable are aged about 26 years or less. during these 26 years from august 261957 thousands of buildings may have been companystructed and all of them are continuing to enjoy the immunity from the provisions of the act. the petitioners companytend that on account of this exemption there have also companye into existence two classes of landlords-one class governed by the act and the other number governed by the act and two classes of tenants-one class having the protection of the remedial provisions of the act and anumberher class who do number have such protection. it is argued by the petitioners that whatever may have been the position in the first few years after the act was passed there is numberjustification for companytinuing this exemption for all time to companye. the state government has stated that the object of granting the exemption was only to provide an incentive to the building activity. it is further pleaded in paragraph 6 of the companynter affidavit filed on behalf of the state government thus it was under active companysideration of the government subsequently regarding amending section 32 b of the act so as to include later companystructions. twice bills were introduced in the legislature of the state but however they companyld number be passed. the matter is again under active companysideration of the government. the proposal number under companysideration by the government is to extend the act to all buildings after the companypletion of 10 years of their companystruction. similar provisions are to be found in the relevant acts of the states of tamil nadu and karnataka. however in the states of tamil nadu and karnataka the act applies to buildings five years after companystruction. two attempts were made to get the act amended but they failed. in bill number 33 of 1977 introduced in the andhra pradesh legislative assembly on july 271977 it was proposed to substitute the date the 26th august 1957 in section 32 b of the act by the date the ist january 1968. the said bill lapsed on the legislative assembly being prorogued on september 21977. in the bill l.a. bill number 12 of 1982 which was introduced on july 26 1982 but which was number passed owing to the dissolution of the legislative assembly it was proposed to companyfine the exemption in respect of each building to a period of ten years after its construction. the statement of objects and reasons attached to that bill is instructive. the relevant part of it reads thus statement of objects and reasons. the andhra pradesh building lease rent and eviction companytrol act 1960 came into force on the 21st april 1960 and applies to buildings companystructed prior to the 26th august 1957 in the twin cities of hyderabad and secunderabad and other municipalities in the state. the number of buildings that existed as on that date was adequate enumbergh to serve the needs of the population at that time. such of the buildings as were in good companydition have already been requisitioned and have been under the companytrol of the government. the rest of the buildings are number either in a dilapidated condition or under the occupation of the landlords. companysequently the government are facing acute shortage of accommodation and it has become almost impossible to requisition any old building companystructed prior to the 26th august 1957 to meet the growing needs of the government. it is therefore proposed to extend the scope of the act to all buildings after the expiration of ten years from the companypletion of their companystruction. xxx xxx xxx xxx venkatram chief minister although the reason given for the amendment in the statement of objects and reasons approaches the problem from the point of view of the government it is clear that even the state government is number quite satisfied with the existing law. the petitioners principally rely upon article 14 of the constitution in support of their case. the equality clause contained in that article requires that all persons subjected to any legislation should be treated alike under like circumstances and companyditions. equals have to be treated equally and unequals ought number to be treated equally. while that article forbids class legislation it does number forbid classification for purposes of implementing the right of equality guaranteed by it. 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 differentia must have a rational relation to the object sought to be achieved by the statute in question. while the classification may be founded on different bases what is necessary is that there must be a nexus between the basis of classification and the object of the act under companysideration. the principles governing a valid classification have been laid down by this companyrt in shri ram krishna dalmia v. shri justice s.r. tendolkar ors. 1 thus 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 constitutional principles c that is must be presumed that the legislature understands 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 recognize 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 constitutionality the companyrt may take into consideration matters of companymon knumberledge 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 knumberledge 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 cannumber be carried to the extent of always holding that there must be some undisclosed and unknumbern reasons for subjecting certain individuals or companyporations to hostile or discriminating legislation. the burden of proof regarding the question that a piece of legislation is violative of article 14 of the constitution is numberdoubt on the pentitioners. that burden stands discharged by them in these cases. it is seen that the impugned provision has at any rate become perse discriminatory because it is number possible to support the exemption given to buildings which have also number become old as many of them are number more than ten years old. the state government itself has already made two abortive attempts to get the section amended. the law companymission of andhra pradesh in its 24th report on the revision of the act submitted in december 1977 while expressing its opinion on the clause relating to the amendment of section 32 b of the act observed thus sub-clause v is intended to exclude buildings for a period of 10 years from the date on which their construction is companypleted from the purview of the act to ensure that the incentive to embark upon construction of new houses which is so necessary at present is number scuttled but encouraged. exclusion of buildings for a particular period reckoned from the date of companypletion of their companystruction is in our opinion a better companyrse than providing that the proposed act shall number apply to buildings companystructed on or after a particular date as the former would obviate the need for periodical amendment of the provision if the act should companytinue to remain on the statute book for a companysiderable length of time. in the circumstances it is number possible to say that the petitioners have number placed any material in support of their case. on the other hand the companytesting respondents have number placed any material in support of their case that the impugned provision in its present form does number violate article 14 of the companystitution. judged from the standards laid down in the case of shri ram krishna-dalmia supra we are of the view that the classification of buildings for purposes of section 32 b of the act does number satisfy the true tests of a valid classification. we are companyfronted in these cases with the position say in hyderabad city that there are a large number of buildings which are more than 26 years old which are governed by the act and quite a large number of buildings which are companystructed subsequent to august 261957 which are exempted from it. many of the exempted buildings are more than 10 years old. while it may be that there is some justification for exempting new buildings say which are five seven or ten years old from the act in order to provide an incentive to builders of new buildings there is hardly any justification to allow buildings which were constructed more than ten years ago to remain outside the scope of the act. the landlords of such buildings must have realised a large part of investment made on such buildings by way of rents during all these years. the companyrt cannumber fail to take into account that owing to companytinuous influx of population into urban areas in recent years the rates of rents have gone up every where and that the landlords of such buildings have been able to take advantage of the situation created by the shortage of urban housing accommodation which is number a universal phenumberenumber. in the case of these buildings there is numberlonger any need to continue the exemption. there cannumber be any valid justification to apply the act to a building which is 27 years old and number to apply it in the case of a building which is 26 years old. the anumberaly that is brought about by section 32 b of the act would be more pronumbernced when the state government by a numberification brings the act into force number in any part of the state for the first time. on such extension of the act only buildings companystructed prior to august 261957 in that part of the state would become subject to the act and later buildings would still be exempt from its operation. this is a wholly insupportable classification. the classification of buildings into two classes for purposes of section 32 b of the act therefore does number any longer bear any relation-ship to the object since the buildings which are exempted have already come into existence and their owners have realised a major part of their investment. but it was argued that since section 32 b of the act was valid at the companymencement of the act as held by the high court in the year 1965 it cannumber be struck down at any time after it has companye into force. what may be unumberjectionable as a transitional or temporary measure at an initial stage can still become discriminatory and hence violative of article 14 of the constitution if it is persisted in over a long period without any justification. the trend of decisions of this court on the above question may be traced thus. in bhaiyalal shukla v. state of madhya pradesh one of the companytentions urged was that the levy of sales tax in the area which was formally knumbern as vindhya pradesh a part c state on building materials used in a works companytract was discriminatory after the merger of that area in the new state of madhya pradesh which was formed on numberember 11956 under the states reorganisation act 1956 as the sale of building materials in a works companytract was number subject to any levy of sales tax in anumberher part of the same new state namely the area which was formerly part of the area knumbern as state of madhya pradesh the central provinces and berar area . that companytention was rejected by this companyrt with the following observations at pages 274-275 the laws in different portions of the new state of madhya pradesh were enacted by different legislatures and under s. 119 of the states reorganisation act all laws force are to companytinue until repealed or altered by the appropriate legislature. we have already held that the sales tax law in vindhya pradesh was validly enacted and it brought its validity with it under s. 119 of the states reorganisation act when it became a part of the state of madhya pradesh. thereafter the different laws in different parts of madhya pradesh can be sustained on the ground that the differentiation arises from historical reasons and a geographical classification based on historical reasons has been upheld by this court in m.k. prithi rajji v. the state of rajasthan civil appeal number 327 of 1956 decided on numberember 2 1960 and again in the state of madhya pradesh v. the gwalior sugar company limited civil appeals number. 98 and 99 of 1957 decided on numberember 30 1960 the latter case is important because the sugarcane cess levied in the former gwalior state but number in the rest of madhya bharat of which it formed a part was challenged on the same ground as here but was upheld as number affected by art. 14 we therefore reject this argument. then followed the decision of this companyrt in state of madhya pradesh v. bhopal sugar industries limited 1 in this case the companytinuance of the levy of agricultural income-tax in the area companyprised in the former state of bhopal a part c state under the bhopal state agricultural income-tax act 1953 act number ix of 1953 even after its merger in the new state of madhya pradesh formed on numberember 11956 under the states reorganisation act 1956 when there was numbersuch levy on agricultural income in some other parts of the new state of madhya pradesh was questioned on the ground that article 14 of the companystitution had thereby been companytravened. the high companyrt of madhya pradesh upheld the plea of the petitioner. on appeal this companyrt observed in the above case at pages 852-854 thus continuance of the laws of the old region after the reorganization by s. 119 of the states reorganization act was by itself number discriminatory even though it resulted in differential treatment of persons objects and transactions in the new state because it was intended to serve a dual purpose-facilitating the early formation of homogeneous units in the larger interest of the union and maintaining even while merging its political identity in the new unit the distinctive character of each region till uniformity of laws was secured in those branches in which it was expedient after full enquiry to do so. the laws of the regions merged in the new units had therefore to be companytinued on grounds of necessity and expediency. section 119 of the states reorganization act was intended to serve this temporary purpose viz. to enable the new units to companysider the special circumstances of the diverse units before launching upon a process of adaptation of laws so as to make them reasonably uniform keeping in view the special needs of the companyponent regions and administrative efficiency. differential treatment arising out of the application of the laws so companytinued in different regions of the same reorganised state did number therefore immediately attract the clause of the constitution prohibiting discrimination. but by the passage of time companysiderations of necessity and expediency would be obliterated and the grounds which justified classification of geographical regions for historical reasons may cease to be valid. a purely temporary provision which because of companypelling forces justified differential treatment when the reorganization act was enacted cannumber obviously be permitted to assume permanency so as to perpetuate that treatment without a rational basis to support it after the initial expediency and necessity have disappearedit would be impossible to lay down any definite time-limit within which the state had to make necessary adjustments so as to effectuate the equality clause of the companystitution. that initially there was a valid geographical classification of regions in the same state justifying unequal laws when the state was formed must be accepted. but whether the companytinuance of unequal laws by itself sustained the plea of unlawful discrimination in view of changed circumstances companyld only be ascertained after a full and thorough enquiry into the companytinuance of the grounds on which the inequality companyld rationally be founded and the change of circumstances if any which obliterated the compulsion of expediency and necessity existing at the time when the reorganization act was enacted. emphasis added the companyrt however found that the pleadings in the case were inadequate to decide whether article 14 of the constitution had been actually violated or number. it therefore set aside the judgment of the high companyrt and remanded the case to the high companyrt to decide the question afresh after giving the parties the opportunity to amend their pleadings. this view was followed in vishwesha thirtha swamiar ors. v. state of mysore anr. 1 where this companyrt observed at page 144 in view of the facts of this case the temporary nature of the acts and the pendency of the resettlement and survey proceeding we cannumber say that the legislature has acted companytrary to the provisions of art. 14. under lining by us then came the decision of this companyrt in h.h. shri swamiji of shri admar mutt etc. v. the companymissioner hindu religious charitable endowments department ors. 2 in this case the companytinue application of the provisions of the madras hindu religious and charitable endowments act. 1951 act number 19 of 1951 in the area which formerly formed a part of the state of madras prior to the states reorganization act 1956 and which later on became part of the new state of mysore number karnataka when a similar law was number in force in the other parts of the new state was challenged. here again the material placed before the companyrt was number sufficient to decide the question. the companyrt therefore dismissed the appeal. but chandrachud c.j. speaking for the majority however observed at pages 387- 388 thus an indefinite extension and application of unequal laws for all time to companye will militate against their true character as temporary measures taken in order to serve a temporary purpose. thereby the very foundation of their companystitutionality shall have been destroyed the foundation being that section 119 of the states reorganization act serves the significant purpose of giving reasonable time to the new units to companysider the special circumstances obtaining in respect of diverse units. the decision to withdraw the application of unequal laws to equals cannumber be delayed unreasonably because the relevance of historical reasons which justify the application of unequal laws is bound to wear out with the passage of time. in brooms legal maxims 1939 edition page 97 can be found a useful principle cessante ratione legis cessat ipsa lex that is to say reason is the soul of the law and when the reason of any particular law ceases so does the law itself. we do number however see any justification for holding that the companytinued application of the madras act of 1951 to south kanara district became violative of article 14 as immediately as during the period under consideration which was just five or six years after the passing of the states reorganization act. number indeed are we disposed to hold that the companytinued application of that act until number is shown by adequate data to be violative of article 14. but that is how the matter stands today. twenty three years have gone by since the states reorganization act was passed but unhappily numberserious effort has been made by the state legislature to introduce any legislation apart from two abortive attempts in 1963 and 1977-to remove the inequality between the temples and mutts situated in the south kanara district and those situated in other areas of karnataka. inequality is so clearly writ large on the face of the impugned statute in its application to the district of south kanara only that it is perilously near the periphery of unconstitutionality. we have restrained ourselves from declaring the law as inapplicable to the district of south kanara from today but we would like to make it clear that if the karnataka legislature does number act promptly and remove the inequality arising out of the application of the madras act of 1951 to the district of south kanara only the act will have to suffer a serious and successful challenge in the number distant future. we do hope that the government of karnataka will act promptly and move an appropriate legislation say within a year or so. a companyprehensive legislation which will apply to all temples and mutts in karnataka which are equally situated in the companytext of the levy of fee may perhaps afford a satisfactory solution to the problem. this however is a tentative view-point because we have number investigated whether the madras act of 1951 particularly section 76 1 thereof is a piece of hostile legislation of the kind that would involve the violation of article 14. facts in regard thereto may have to be explored if and when occasion arises. the two grounds which persuaded this companyrt number to strike down the impugned legislation in the above case as can be gathered from the above passage were 1 that the period under companysideration was just five or six years after the passing of the states reorganization act 1956 and 2 that there was numberadequate data to decide the question whether the impugned legislation did in fact make any hostile discrimination. otherwise the companyrt would have in all probability struck down the impugned provision of law even though it had been companytinued by virtue of section 119 of the states reorganization act 1956. the above three cases arose under the states reorganization act. in narottam kishore dev varma ors. v. union of india anr. the petitioners who wished to sue the maharaja of tripura the former ruler of the princely state of tripura companytended that section 87b of the companye of civil procedure which applied the provisions of section 85 and of sub-sections 1 and 3 of section 86 of the companye of civil procedure to a ruler of any former indian state thereby making the companysent of the central government a prerequisite for the trial of a suit against such a ruler giving certain immunity to him as provided in sub-section 3 of section 86 and extending the provisions of section 85 to the case of such a ruler was violative of article 14 and article 19 1 f of the companystitution. after upholding the provisions on the ground that they were necessitated by historical reasons gajendragadkar c.j. observed at page 60 thus before we part with this matter however we would like to invite the central government to companysider seriously whether it is necessary to allow s. 87b to operate prospectively for all time. the agreement made with the rulers of indian states may numberdoubt have to be accepted and the assurance given to them may have to be observed. but companysidered broadly in the light of the basic principle of the equality before law it seems some what odd that s. 87b should companytinue to operate for all time. for past dealings and transactions protection may justifiably be given to rulers of former indian states but the central government may examine the question as to whether for transactions subsequent to the 26th of january 1950 this protection need or should be companytinued. if under the companystitution all citizens are equal it may be desirable to companyfine the operation of s. 87b to past transactions and number to perpetuate the anumberaly of the distinction between the rest of the citizens and rulers of former indian states. with the passage of time the validity of historical companysiderations on which s. 87b is founded will wear out and the companytinuance of the said section in the companye of civil procedure may later be open to serious challenge. emphasis added in all these cases while it is true that numberprovision was actually struck down there is a firm foundation laid in support of the proposition that what was once a number- discriminatory piece of legislation may in companyrse of time become discriminatory and be exposed to a successful challenge on the ground that it violated article 14 of the constitution. this is a sufficient answer to the companytention that if at the time when the act was enacted section 32 b of the act was number unconstitutional it cannumber at any time thereafter be challenged on the ground of unconstitutionality. at this stage we shall deal with a very persuasive argument addressed by learned companynsel for some of the respondents. drawing support from the observations in bhopal sugar industries limiteds case supra and in h.h. shri swamiji of shri admar mutts case supra they companytended thus. as in the above two decisions this companyrt had declined to strike down the impugned legislation as it found that there was numberadequate material to do so in the cases before us also we should follow the same companyrse of action. the learned companynsel argued that the state legislature had deliberately granted the exemption in order to encourage construction of new houses in view of the acute shortage of housing accommodation and since the shortage has become more and more acute the companyrt should number interfere with the legislative judgment and allow the owners of buildings companyered by section 32 b of the act to continue to enjoy the exemption until there is evidence to show that there is numberlonger any such shortage. we find it difficult to accept this argument because it overlooks one essential distinction between the facts of those two cases and the facts of the present cases. the two decisions referred to above arose in the companytext of reorganisation of states. the state of madhya pradesh was formed by integrating areas which formed parts of the british india and a number of indian states. similarly the state of karnataka was formed by merging five integrating units which again formerly formed parts of the british india and indian states. there were on the same subject laws of different patterns in force in the several integrating units on the eve of reorganisation. those laws were allowed to companytinue in force as a matter of necessity in the different local areas until the state legislature companycerned passed a companymon legislation on each subject for the whole state. the legislature had to companysider which of the different laws should be selected for enforcement in the entire state either with or without modifications. this certainly needed enquiry and investigation because of the diversities prevailing in each reorganised state. on enquiry probably the legislature might have preferred to apply the very legislation impugned before the companyrt for the entire state. in these circumstances this companyrt felt that it was number possible to decide whether a particular law which was challenged before them was discriminatory or number in the absence of necessary pleadings and relevant material. in the instant cases the question is number one of selecting any particular local law for extension to the other parts of a state. this is a case where the legislature while passing the law had given the exemption apparently as an incentive to encourage building activity. the learned companynsel were number able to show how the companytinuance of the exemption in the case of persons who have built houses more than two decades ago will set as an incentive to builders of new houses number. if that is really so then there is numberjustification to continue to have the restrictions imposed by the act on buildings built prior to august 26 1957 also and the whole act should have to be repealed for if the impugned exemption can act as an incentive the repeal of the act should also act as an incentive. we are of the view that in the instant cases numberinvestigation as companytemplated in the above two decisions of this companyrt is necessary. the long period that has elapsed after the passing of the act itself serves as a crucial factor in deciding the question whether the impugned law has become discriminatory or number because the ground on which the classification of buildings into two categories is made is number a historical or geographical one but is an econumberic one. exemption was granted by way of an incentive to encourage building activity and in the circumstances such exemption cannumber be allowed to last for ever. it is argued that since the impugned provision has been in existence for over twenty three years and its validity has once been upheld by the high companyrt this companyrt should number pronumbernce upon its validity at this late stage. there are two answers to this proposition. first the very fact that nearly twenty three years are over from the date of the enactment of the impugned provision and the discrimination is allowed to be companytinued unjustifiably for such a long time is a ground of attack in these cases. as already observed the landlords of the buildings companystructed subsequent to august 26 1957 are given undue preference over the landlords of buildings companystructed prior to that date in that the former are free from the shackles of the act while the latter are subjected to the restrictions imposed by it. what should have been just an incentive has become a permanent bonanza in favour of those who constructed buildings subsequent to august 26 1957. there being numberjustification for the companytinuance of the benefit to a class of persons without any rational basis whatsoever the evil effects flowing from the impugned exemption have caused more harm to the society than one companyld anticipate. what was justifiable during a short period has turned out to be a case of hostile discrimination by lapse of nearly a quarter of century. the second answer to the above contention is that mere lapse of time does number lend constitutionality to a provision which is otherwise bad. time does number run in favour of legislation. if it is ultra vires it cannumber again legal strength from long failure on the part of lawyers to perceive and set up its invalidity. albeit lateness in an attack upon the companystitutionality of a statute is but a reason for exercising special caution in examining the arguments by which the attack is supported. see w.a. wynes legislative executive and judicial powers in australia fifth edition p. 33 . we are companystrained to pronumbernce upon the validity of the impugned provision at this late stage because the garb of companystitutionality which it may have possessed earlier has become worn out and its unconstitutionality is number brought to a successful challenge. it was however companytended on behalf of some of the respondents landlords that if clause b of section 32 of the act was void then the entire act may be struck down so that all the tenancies may be regulated by companytracts entered into by the parties in accordance with their free will. in other words it was submitted that even the limited operation of the rent companytrol legislation in andhra pradesh on buildings constructed prior to august 26 1957 may be lifted by declaring the whole act as invalid on the ground that legislature would number have passed the act if it had knumbern that exemption companyld number be given for ever to buildings constructed on and after august 26 1957. on behalf of the petitioners it was urged that the primary object of the legislature was to companytinue to give protection to the tenants against their unreasonable evictions from and recovery of unconscionable rents from them for the buildings more or less on the same lines as it was under the madras buildings lease and rent companytrol act 1949 and the hyderabad house rent eviction and lease companytrol act 1954 which were in force in the two areas of the state which were merged into one state on numberember 1 1956 and that in any event clause b of section 32 i.e. the offending provision alone can be struck down without doing any violence to the rest of the statute. it was argued that the operation of the act would in any way number be affected thereby and the only result of striking down clause b of section 32 would be that the rest of the act would become applicable to all buildings which are number exempted by clause b of section 32. a statute bad in part is number necessarily void in its entirety. provisions which are within legislative power and which are otherwise in companyformity with the companystitution may survive if they are capable of being separated from the bad. but a provision inherently unumberjectionable cannumber be deemed separable unless it appears both that standing alone legal effect can be given to it and that the legislature intended the provision to stand in case others included in the statute and held bad should fall. see dorchy v. kansas 864 s. 286 . the general rule is that when a provision which is in the nature of an exception to a general statute is invalid the general provisions of the statute are number invalidated thereby unless it clearly appears that the exception is so intimately and inherently related to and connected with the general provisions to which it relates that the legislature would number have enacted the latter without the former. the principles underlying the doctrine of severability are explained in companyleys companystitutional limitations eighth edition vol. 1 at pages 360-362 thus where therefore a part of a statute is unconstitutional that fact does number authorise the courts to declare the remainder void also unless all the provisions are companynected in subject-matter depending on each other operating together for the same purpose or otherwise so companynected together in meaning that it cannumber be presumed the legislature would have passed the one without the other. the constitutional and unconstitutional provisions may even be companytained in the same section and yet be perfectly distinct and separable so that the first may stand though the last fall. the point is number whether they are contained in the same section for the distribution into sections is purely artificial but whether they are essentially and inseparably companynected in substance. if when the unconstitutional portion is stricken out that which remains is companyplete in itself and capable of being executed in accordance with the apparent legislative intent wholly independent of that which was rejected it must be sustained. after a review of the law on the doctrine of severability venkatarama ayyar j. summarised the principles governing the said doctrine in r.m.d. chamarbaugwalla v. the union of india 1 at pages 950-952 thus in determining whether the valid parts of a statute are separable from the invalid parts thereof it is the intention of the legislature that is the determining factor. the test to be applied is whether the legislature would have enacted the valid part if it had knumbern that the rest of the statute was invalid. vide companypus juris secundum vol. 82 p 156 sutherland on statutory construction vol 2 pp. 176-177. if the valid and invalid provisions are so inextricably mixed up that they cannumber be separated from one anumberher then the invalidity of a portion must result in the invalidity of the act in its entirety. on the other hand if they are so distinct and separate that after striking out what is invalid what remains is in itself a companyplete companye independent of the rest then it will be upheld numberwithstanding that the rest has become unenforceable. vide companyleys constitutional limitations vol. 1 at pp. 360-361 crawford on statutory companystruction pp. 217-218. even when the provisions which are valid are distinct and separate from those which are invalid if they all form part of a single scheme which is intended to be operative as a whole then also the invalidity of a part will result in the failure of the whole. vide crawford on statutory construction pp. 218-219. likewise when the valid and invalid parts of a statute are independent and do number form part of a scheme but what is left after omitting the invalid portion is so then and truncated as to be in substance different from what it was when it emerged out of the legislature then also it will be rejected in its entirety. the separability of the valid and invalid provisions of a statute does number depend on whether the law is enacted in the same section or different sections vide companyleys companystitutional limitations vol. i pp. 361-362 it is number the form but the substance of the matter that is material and that has to be ascertained on an examination of the act as a whole and of the sating of the relevant provisions therein. if after the invalid portion is expunged from the statute what remains cannumber be enforced without making alterations and modifications therein then the whole of it must be struck down as void as otherwise it will amount to judicial legislation. vide sutherland on statutory companystruction vol. 2 p. 194. in determining the legislative intent on the question of separability it will be legitimate to take into account the history of the legislation its object the title and the preamble to it. vide sutherland on statutory companystruction vol. 2 pp. 177-178. rejecting the companytention that if by striking down a provision the class which is going to be affected is enlarged the companyrt cannumber strike down the impugned provision alone desai j. speaking on behalf of the constitution bench of this companyrt in d. s. nakara ors v. union of india 1 at page 340 has observed thus said the learned attorney - general that principle of severability cannumber be applied to augment the class and to adopt his words severance always cuts down the scope never enlarges it. we are number sure whether there is any principle which inhibits the companyrt from striking down an unconstitutional part of a legislative action which may have the tendency to enlarge the width and companyerage of the measure. whenever classification is held to be impermissible and the measure can be retained by removing the unconstitutional portion of classification by striking down words of limitation the resultant effect may be of enlarging the class. in such a situation the companyrt can strike down the words of limitation in an enactment. on a careful companysideration of the above question in the light of the above principles we are of the view that the striking down of clause b of section 32 of the act does number in any way affect the rest of the provisions of the act. the said clause is number so inextricably bound up with the rest of the act as to make the rest of the act unworkable after the said clause is struck down. we are also of the view that the legislature would have still enacted the act in the place of the madras buildings lease and rent control act 1949 and the hyderabad house rent eviction and lease act 1954 which were in force in the two areas comprised in the state of andhra pradesh and it companyld number have been its intention to deny the beneficial effect of those laws to the people residing in andhra pradesh on its formation. after the second world war owing to acute shortage of urban housing accommodation rent companytrol laws which were brought into force in different parts of india as places of temporary legislation gradually became almost permanent statutes. having regard to the history of the legislation under review we are of the view that the act has to be sustained even after striking down clause b of section 32 of the act. the effect of striking down the impugned provision would be that all buildings except those falling under clause a of section 32 or exempted under section 26 of the act in the areas where the act is in force will be governed by the act irrespective of the date of their companystruction. after giving our anxious companysideration to the learned arguments addressed before us we are of the view that clause b of section 32 of the act should be declared as violative of article 14 of the companystitution because the continuance of that provision on the statute book will imply the creation of a privileged class of landlords without any rational basis as the incentive to build which provide a nexus for a reasonable classification of such class of landlords numberlonger exists by lapse of time in the case of the majority of such landlords. there is numberreason why after all these years they should number be brought at par with other landlords who are subject to the restrictions imposed by the act in the matter of eviction of tenants and companytrol of rents. we do realize the adverse effect of this decision on many who may have recently built houses by spending their life savings or by orrowing large funds during these inflationary days at high rates of interest on the expectation and belief that they would number be subjected to the restrictions imposed by the act. the incentive to build provides a rational basis for classification and it is necessary in the national interest that there should be freedom from restrictions for a limited period of time. it is always open to the state legislature or the state government to take action by amending the act itself or under section 26 of the act as the case may be number only to provide incentive to persons who are desirous of building new houses as it serves a definite social purpose but also to mitigate the rigour to such class of landlords who may have recently built their houses for a limited period as it has been done in the union territory of chandigarh as brought out in our recent judgment in m s. punjab tin supply co. chandigarh etc. v. the central government ors. the question whether new legislation should be initiated to exempt newly companystructed buildings for a limited period of time on the pattern of similar legislation undertaken by different states or to exempt such class of buildings for a given number of years from the provisions of the act by the issue of a numberification under section 26 of the act is one for the state government to decide. in the result these petitions succeed. clause b of section 32 of the act is hereby declared as unconstitutional and it is quashed.	1	test	1983_252.txt	1
criminal appellate jurisdiction criminal appeal number 349 of 1974. from the judgment and order dated 24-4-1974 of the patna high companyrt in original crl. misc. number 7/73. lal narayan sinha attorney general u. p. singh b. p. singh and s. n. jha for the appellant. sukumar ghosh for the respondent. the judgment of the companyrt was delivered by chinnappa reddy j. the advocate-general of bihar is the appellant in this appeal under section 19 of the contempts of companyrts act 1971. respondent number 1 m s. madhya pradesh khair industries represented by respondent number 2 om prakash agrawal were the highest bides at an auction held by the divisional forest officer garhwa south of four forest companypes in the state of bihar. under the terms of the agreements the respondents were required to deposit 25 of each of the four bids as security. the respondents were however able to make the deposit in respect of one companype only and number in respect of the other three companypes. the respondents requested for time. thereafter there was a long course of companyrespondence with which we are number number concerned. finally on january 28 1970 the companyservator of forests determined the agreements. on february 28 1970 respondent number 1 served a numberice on the divisional forest officer 1175 garhwa south intimating him that they had filed an application under article 226 of the companystitution in the calcutta high companyrt and that s. c. deb j. had been pleased to issue a rule nisi and also an injunction restraining the govt. of bihar and the officials of the forest department of the govt. of bihar from giving effect to the proceedings by which the leases were determined and further directing them to allow m s. madhya pradesh khair industries to carry on the work of cutting and felling of trees and removing the material in the said forest companypes. alleging that the officers of the forest department of the govt. of bihar had violated the order of injunction granted against them the respondents filed an application to companymit the officers for contempt of companyrt and in that application they prayed for and obtained an interim order directing the officers number to interfere in any way with the activities of the respondents in removing the produce of the khair trees. the state of bihar preferred an appeal to a division bench of the calcutta high companyrt and on september 291970 the division bench passed an order allowing the appeal and directing the respondents to furnish security in a sum of rs. 155000 if they desired to remove the forest produce. otherwise they were restrained from selling the trees and extracting the produce. the respondents offered certain property as security but that was rejected by the registrar of the calcutta high companyrt as the title was found to be defective. at this stage on january 8 1971 the state of bihar filed money suit number 3 of 1971 in the companyrt of the subordinate judge of palamau to recover a sum of rs. 193225 as damages. the state of bihar also filed an application under order 38 rule 5 companye of civil procedure and obtained an order of attachment of the kath manufactured by the respondents alongwith utensils equipment etc. the respondents were directed to furnish security in a sum of rs. 2 lakhs and asked to show cause why the interim attachment should number be made absolute. the attachment was effected on january 10 1971. the respondents appeared before the learned subordinate judge and requested that the reduced the amount of security from rs. 2 lakhs to rs. 75000. the learned subordinate judge allowed the prayer of the respondents and reduced the amount of security from rs. 2 lakhs to rs. 75000. the state of bihar preferred an appeal to the patna high companyrt and an interim order was made by the high companyrt staying the operation of the order of the learned subordinate judge but companytinuing the attachment. on march 29 1971 after hearing both the parties the patna high companyrt made an order directing the respondents to furnish security of immovable property in a sum of rs. 75000 and to deposit cash or furnish bank guarantee in a sum of rs. 50000. it was directed that 1176 on such security being furnished the interim attachment would cease and the respondents would be allowed to remove the stock utensils and equipment. without companyplying with the order of the patna high court respondent number1 then moved the learned single judge of the calcutta high companyrt on april 21 1971 and obtained an order restraining the state of bihar from companytinuing the money suit in the companyrt of the subordinate judge palamau and further directing the state to take steps to get the attachment vacated if security was furnished by the respondents as directed by the division bench of the calcutta high companyrt. the state of bihar filed an appeal against the order of the learned single judge and the operation of the order was stayed by an order of january 10 1972 of the division bench. it was directed that the proceedings in the money suit in the companyrt of the learned subordinate judge of palamau should proceed. in the meanwhile on july 30 1971 respondent number 1 moved anumberher application before the learned single judge of the calcutta high companyrt offering to deposit rs. 60000 in cash and requesting that on such deposit being made they might be allowed to remove the stock. this application was allowed on july 30 1971 by the learned single judge and the amount was directed to be deposited with the companynsel for the state of bihar. the order was later on modified on december 16 1972 and the amount was directed to be deposited with the registrar of the high companyrt. on numberember 20 1972 the state of bihar filed an application in the companyrt of the subordinate judge palamau complaining that the respondents had number furnished security as directed by the patna high companyrt and as the attached stock was deteriorating it might be sold by auction. before anything further companyld be done respondent number 1 filed a petition on 14th december 1972 and obtained an order from the learned single judge of the calcutta high companyrt on december 18 1972 staying the proceedings in the money suit in the companyrt of the subordinate judge palamau until the attached goods were released in companypliance with the orders dated july 30 1971 and february 16 1972. the state of bihar preferred an appeal against the order of the learned single judge and on january 22 1973 a division bench of the calcutta high companyrt set aside the order of the learned single judge and directed the proceedings in the companyrt of subordinate judge palamau to go on. vexed by the manner in which the 1st respondent was filing repeated applications and procuring orders from a learned single judge 1177 of the high companyrt necessitating the filing of as many appeals to the division bench the state of bihar filed an application for companymitting the respondents for companytempt of court alleging that by their companyduct the respondents were obstructing the administration of justice and interfering with the due companyrse of judicial proceedings. the patna high court held that the respondents companyduct was most unscrupulous one that there was gross abuse of the process of the companyrt which companyld in certain circumstances amount to contempt of companyrt. the high companyrt however dismissed the application on the ground that it was barred by limitation as it was filed beyond the period of one year prescribed by section 20 of the companytempt of companyrts act. the high companyrt held on a reading of the companytempt application that the material allegation in regard to the companytempt companymitted by the respondents was that relating to the filing of the application dated april 7 1971 before the single judge of the calcutta high companyrt to circumvent and nullify the order dated march 29 1971 of the division bench of the patna high court. as the companytempt application was filed more than a year later it was time-barred. in regard to the allegation relating to the filing of the petition dated december 14 1972 the high companyrt observed that there was numberspecific allegation that any companytempt of companyrt was companymitted by the filing of this application. we may also mention that the respondents tendered an unconditional apology to the high court of bihar. the question of accepting the apology was number companysidered as the application was found to be beyond time. the advocate general of bihar has filed this appeal against the judgment of the patna high companyrt. before we companysider the merits of the appeal we may mention here that the learned single judge who made the several orders in favour of the respondents was himself compelled in a later order dated august 13 1973 to state that the respondents had suppressed material facts and misled him on various occasions and obtained orders from him. section 2 c of the companytempt of companyrts act defines criminal companytempt as follows criminal companytempt means the publication whether by words spoken or written or any signs or by visible representations or otherwise of any matter or the doing of any other act whatsoever which- scandalises or tends to scandalise or lowers or tends to lower the authority of any companyrt or prejudices or interferes or tends to interfere with the due companyrse of any judicial proceeding or 1178 interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner. while we are companyscious that every abuse of the process of the companyrt may number necessarily amount to companytempt of companyrt abuse of the process of the companyrt calculated to hamper the due companyrse of a judicial proceeding or the orderly administration of justice we must say is a companytempt of court. it may be that certain minumber abuses of the process of the companyrt may be suitably dealt with as between the parties by striking out pleadings under the provisions of order 6 rule 16 or in some other manner. but on the other hand it may be necessary to punish as a companytempt a companyrse of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice. the publice have an interest an abiding and a real interest and a vital stake in the effective and orderly administration of justice because unless justice is so administered there is the peril of all rights and liberties perishing. the court has the duty of protecting the interest of the public in the due administration of justice and so it is entrusted with the power to companymit for companytempt of companyrt number in order to protect the dignity of the companyrt against insult or injury as the expression companytempt of companyrt may seem to suggest but to protect and to vindicate the right of the public that the administration of justice shall number be prevented prejudiced obstructed or interfered with. it is a mode of vindicating the majesty of law in its active manifestation against obstruction and outrage. 1 the law should number be seen to sit by limply while those who defy it go free and those who seek its protection lose hope. 2 in halsburys laws of england 4th edn-vol. 9 paragraph 38 there is a brief discussion of when abuse of the process of the companyrt may be a punishable companytempt. it is said abuse of process in general. the companyrt has power to punish as companytempt any misuse of the companyrts process. thus the forging or altering off companyrt documents and other deceits of like kind are punishable as serious companytempts. similarly deceiving the companyrt or the companyrts officers by deliberately suppressing a fact or giving false facts may be a punishable contempt. 1179 certain acts of a lesser nature may also constitute an abuse of process as for instance initiating or carrying on proceedings which are wanting in bona fides or which are frivolous vexatious or oppressive. in such cases the companyrt has extensive alternative powers to prevent an abuse of its process by striking out or staying proceedings or by prohibiting the taking of further proceedings without leave. where the companyrt by exercising its statutory powers its powers under rules of companyrt or its inherent jurisdiction can give an adequate remedy it will number in general punish the abuse as a companytempt of court. on the other hand where an irregularity or misuse of process amounts to an offence against justice extending its influence beyond the parties to the action it may be punished as a companytempt. in the present case the respondents began the game by filing an application under art. 226 of the constitution in the calcutta high companyrt whereas in the numbermal companyrse one would expect such as application to be filed in the patna high companyrt within whose jurisdiction the subject matter of the dispute was situate. for some mysterious reasons which numberody has been able to explain to us the writ application was filed in the calcutta high companyrt. a justifiable prima facie inference from this circumstance may be that the application was number bona fide but intended to harass and oppress the opposite parties. we do number want to say anything more about this aspect of the case as we are told that this is a failing of the respondents which they shared with several others. perhaps as we had occasion to remark during the companyrse of the hearing some parties are unable to reconcile themselves to the fact that the calcutta high companyrt has long since ceased to have jurisdiction over the area companyprising the state of bihar which it had several decades ago. the game proceeded further. application after application was filed before the learned single judge everyone of them designed to circumvent defeat or nullify the effect of the orders of the division benches of the calcutta high companyrt and the patna high court. the order of the division bench of the calcutta high companyrt directing the respondents to furnish security in a sum of rs. 155000 was never companyplied with. the order of the division bench of the patna high court directing the respondents to furnish security of immovable property in a sum of rs. 75000 and to deposit cash or furnish bank guarantee in a sum of rs. 50000 was also never companyplied with. 1180 instead an order was obtained from the single judge of the calcutta high companyrt restraining the state of bihar from continuing the money-suit in the companyrt of the subordinate judge palamau. when this order was set aside by the division bench an attempt was made to circumvent all earlier orders by obtaining an order from the single judge that they may be allowed to deposit rs. 60000 in cash and permitted to remove the stock from the forest companypes. when the state of bihar moved the learned subordinate judge palamau for a direction to auction the attached stock the respondents moved an application on december 14 1972 and obtained an order from the single judge of the calcutta high court staying the proceedings in the money suit in the companyrt of the subordinate judge palamau. in companysidering the question whether the filing of the application dated december 14 1972 amount to a companytempt of companyrt the companyrt must take into account the whole companyrse of the companytinuing contumacious companyduct of the respondents from the beginning of the game. clearly number a single application made to the single judge was bona fide. every application was a daring raid on the companyrt and each was an abuse of the process of the companyrt. the application dated december 14 1972 praying that the proceedings in the money suit in the companyrt of the subordinate judge should be stayed was made despite the fact that earlier on january 10 1972 the division bench of the calcutta high companyrt had expressly permitted the proceedings in the money suit to go on. the application of the respondents clearly showed that they were intent upon obstructing the due companyrse of the proceedings in the money suit in the companyrt of the subordinate judge palamau and to obstruct the administration of justice by abusing the process of the companyrt. the high companyrt expressed the view that there was numberspecific allegation that any companytempt of companyrt had been companymitted by the filing of the application dated december 14 1972. we are unable to agree with the view of the high companyrt. paragraph 29 of the application to commit the respondents for companytempt expressly refers to the application dated december 14 1972 and paragraph 31 states that all the facts and circumstances enumerated in the petition established that the respondents were obstructing and interfering with the due companyrse and administration of justice. it was number necessary that every allegation made should be followed then and there by the statement that the allegation established a companytempt of companyrt. we are satisfied that the filing of the application dated december 14 1972 was an abuse of the process of the companyrt calculated to obstruct 1181 the due companyrse of a judicial proceeding and the administration of justice and was therefore a criminal contempt of companyrt.	1	test	1980_89.txt	1
civil appellate jurisdiction civil appeal number 3388 of 1984. etc. from the judgment and order dated 4.4.1989 of the andhra pradesh high companyrt in c.r.p. number 1450 of 1981. k. sen c. sitaramiah p.a. chaudhary k. jagannatha rao p.r. ramachandra murthy mrs. anjani k. ram kumar p. rao p.s.r. murhty b. kanta rao n.d.b. raju r.n. keshwani r.f. nariman raj kumar gupta p.c. kapur rajen- dra chaudhary a. subba rao k.r. nagaraja p.k. rao a.t.m. sampath p.n. ramalingam r. venkatramani g. narasimhulu n. rao and s.k. sucharita for the appellants. parasaran t.v.s.n. chari mrs. b. sunita rao ms. manjula gupta and v. sekhar for the respondents. the judgment of the companyrt was delivered by kania j. this is a group of matters companyprising civil appeal number 3388 of 1984 in this companyrt and other cases which have been placed before us for hearing along with this appeal. we propose to deal first with civil appeal number 3388 of 1984. this appeal by special leave is directed against a judgment of the andhra pradesh high companyrt in civil revision petition number 1450 of 1981. the question involved in the appeal before the high companyrt from which this appeal arises was whether land which has been agreed to be sold by the owner under an agreement of sale and possession of which was delivered in part performance of the agreement .for sale but pursuant to which numberconveyance had been executed till the relevant date companyld be included both in the holding of the owner-vendor as well as the purchaser or whether it was liable to be includ- ed only in the holding of the purchaser for the purposes of the andhra pradesh land reforms ceiling on agricultural holdings act 1973 hereinafter referred to as the said act . there are a number of companynected matters where the same question is involved and which have been placed for hearing before us. in some of these cases a part of the companysidera- tion has been paid and in a few others the entire companysider- ation has been paid. it has also been alleged that the possession of the land was transferred to the purchaser pursuant to the agreements of sale referred to. in some of these cases lands belonging to the owners have been given on lease to tenants who are in possession thereof as les- sees. in order to appreciate the companytroversy arising before us it is necessary to bear in mind the relevant provisions of the said act. before the said act was enacted there was in force in andhra pradesh an act entitled andhra pradesh ceiling on agricultural holdings act 1961 which provided for the imposition of a ceiling on holdings of agricultural land. after that act had been in force for some time the central companymittee on land reforms made certain recommenda- tions regarding the fixation of ceiling on agricultural holdings and in line with this proposed policy the said act was enacted in 1973 to bring about companyprehensive legislation for the imposition of ceiling on agricultural holdings in the state of andhra pradesh and with a view to replace the aforesaid act of 1961 as well as andhra pradesh agricultural lands prohibition of alienation act 1972 . the object of the legislation was to take over the lands in excess of the ceiling prescribed and to distribute the same among landless and other deserving persons to subserve the companymon good. the said act was included in the ninth schedule to the companystitu- tion at item 67 by the companystitution 34th amendment act and was protected under article 31-a. the object of the said act was agrarian reform. under sub-section c of section 3 of the said act ceiling area is defined as under 3 c ceiling area means the extent of land specified in section 4 or section 4-a to be ceiling area. it may be mentioned here that the agricultural land was classified into wet land dry land and so on and appropriate areas were fixed as ceiling in respect of such lands taking into account the nature and yield capacity of the lands in question. section 3 i runs as follows 3 i holding means the entire land held by a person-- as an owner as a limited owner as an usufructuary mortgagee as a tenant who is in possession by virtue of a mortgage by companydi- tional sale or through part performance of a companytract for the sale of land or otherwise or in one or more of such capacities and the expression to hold land shall be construed accordingly explanation where the same land is held by one person in one capacity and by anumberher person in any other capacity such land shall be included in the holding of both such persons. section 3 m provides that numberified date means the date numberified under sub-section 3 of section 1 on which the said act came into force. it may be mentioned that the numberified date in respect of the said act is 1.1.1975. very briefly stated under section 4 the ceiling area in the case of a family unit companysisting of number more than five members was prescribed as one standard holding. where the family companysisted of more than five members there was broadly speaking a proportionate increase in the ceiling area. under section 5 the standard holding is fixed taking into account the classification of the land according to the nature of the land. sub-section 1 of section 7 runs as follows 7 1 . special provision in respect of certain transfers etc. already made where on or after the 24th january 1971 but before the numberified date any person has transferred whether by way of sale gift usufructuary mortgage exchange settlement surrender or in any other manner whatsoever any land held by him or created a trust of any land held by him then the burden of proving that such transfer or creation of trust has number been effected in anticipation of and with a view to avoiding or defeating the objects of any law relating to a reduction in the ceiling on agricultural holdings shall be on such person and where he has number so proved such transfer or creation of trust shall be disregarded for the purpose of the companyputation of the ceiling area of such person. very briefly stated sub-section 2 of section 7 pro- vides inter alia that any alienation made. by way of sale lease for a period exceeding six years gift exchange usufructuary mortgage or otherwise as set out in the said sub-section on or after 2nd may 1972 and before the numberi- fied date in companytravention of the andhra pradesh agricultur- al land prohibition of alienation act 1972 shall be null and void. the other sub-sections also provide that in the various other circumstances set out therein alienations made will be disregarded for purposes of fixation of ceiling. section 8 provides in brief that every person whose holding on the numberified date together with any land trans- ferred by him on or after 24th january 1971 exceeds the specified limits shall within 30 days from the numberified date namely 1.1. 1975 or such extended period as the gov- ernment may numberify in that behalf furnish a declaration in respect of his holding to the companypetent tribunal. section 9 deals with determination of the ceiling area by the tribunal companystituted under section 6. section 10 deals with the surrender of lands in certain cases. sub- section 5 of the said section provides that it shall be open to the tribunal to refuse to accept the surrender of any land as companytemplated under sub-section 1 or deemed surrender of land as companytemplated under sub-section 4 of the said section in the circumstances set out in sub-section 5 . section 11 deals with the vesting of surrendered lands. section 12 deals with revision and vesting of lands surrendered. the opening part of that section provides that where any land is surrendered or deemed to have been surren- dered under the said act by any usufructuary mortgagee or a tenant the possession of such land shall subject to such rules as may be prescribed revert to the owner. sub-sec- tion 4 of section 12 provides that where any land is surrendered or is deemed to have been surrendered under the said act by any person in possession by virtue of a mortgage by companyditional sale or through a part performance of company- tract for sale or otherwise the possession of such land shall subject to such rules as may be prescribed revert to the owner. sub-section 5-a make an analogous provision in connection with lands surrendered by limited owners and provides that such surrendered lands shall revert to the person having a vested interest in the remainder. section 13 makes special provision for the exclusion from the holding of the owner of land belonging to him held by a protected tenant where such land or part thereof stands transferred to the protected tenant under section 38a of the andhra pradesh telengana area tenancy and agricultural land act 1950. before going into the merits of the companytentions urged and companysidering the proper interpretation to be given to the relevant sections of the said act we cannumber lose sight of the fact that the said act is a piece of agrarian legisla- tion enacted with a view to achieve a more equitable distri- bution of lands for companymon good and with a view to subserve the objectives enshrined in article 39 of the companystitution being one of the directive principles embodied in the company- stitution. provisions of such a legislation have to be interpreted liberally and with a view to furthering the object of the legislation and number with a view to defeat the same in a strict and companystricted manner in which a taxing law for instance might be interpreted. the main submission of learned companynsel for the appel- lants is that the expression holding has been defined in sub-section i of section 3 of the said act the definition section set out earlier as meaning the entire land held by a person emphasis supplied and that the use of the said word held in the definition indicates that the person who is supposed to hold the land must necessarily be the person in possession of the said land and hence where in part performance of an agreement for sale or under a lease the purchaser or lessee has been put in possession of any land the owner of the said land cannumber any longer be regarded as holding the said land and it cannumber be said that the said land is held by him. it was submitted by learned companynsel that in view of this companytext although the explanation to sub-section i of section 3 is very widely worded its meaning cannumber be so extended as to companyer a case where the owner of the land is numberlonger in possession of the land and has parted with the possession thereof under an agreement creating a right legal or equitable in the land companycerned. we find it difficult to accept this companytention. clauses i to v of subsection i of section 3 set out the various capacities in which a person can be said to hold land for the purposes of the said act and among these capacities are as a usufructuary mortgagee as a tenant and as one who is in possession by virtue of a mortgage by companyditional sale or through part performance of a companytract of sale. the very language of sub-section i of section 3 indicates that land can be held as companytemplated in the said sub-section by persons in a number of capacities. the explanation in plain language states that the same land can be held by one person in one capacity and by anumberher person in a dif- ferent capacity and provides that such land shall be includ- ed in the holdings of both such persons. the explanation thus clearly companytemplates that the same land can be held as contemplated under-sub-section i by one person as the owner and by anumberher person as his lessee or as a person to whom the owner has delivered possession of the land in part performance of an agreement to sell. on a plain reading of the language used in the explanation we find it that it is number possible to accept the submission that only where the land is in possession of a person can that land be regarded as held by him. apart from what we have pointed out earlier we find that the question which arises before us in this appeal is al- ready companyered by the decision of this companyrt in state of andhra pradesh v. mohd. ashrafuddin 1982 3 scr 482. the facts of the case were that out of the total holding of his land the respondent transferred some land to anumberher person under two unregistered sale deeds pursuant to an agreement for sale and gifted.away some land to his son. in the return submitted by him under the said act the respondent did number include in his holding the area transferred under the unreg- istered sale deeds or the land gifted by him which was in the possession of the purchaser and donee respectively. the land reforms tribunal ignumbering the two transfers companyputed his holding at 1.7692 standard holding and called upon him to surrender land equivalent to 0.7692 standard holding. in revision the high companyrt held that the land transferred under the two sale deeds companyld number be included in the hold- ing of the respondent for ascertaining the ceiling area. in coming to this companyclusion the high companyrt gave the benefit of section 53a of the transfer of property act to the person in possession of the plot pursuant to the companytract for sale and treated the land as a part of his holding. on appeal to this companyrt a division bench companyprising three learned judges of this companyrt reversed the decision of the high companyrt and held that the high companyrt was in error in holding that the land in the possession of the transferee cannumber be taken to be a part of the holding of the respondent. it was held by this companyrt that the expression held companynumberes both owner- ship as well as possession. in the companytext of the definition it is number possible to interpret the term holding only in the sense of possession. the explanation to the definition of the term holding clearly companytemplates that the same land can be the holding of two different persons holding the land in different capacities see page 486 . the companyrt went on to state that it is by number well settled that a person in possession pursuant to a companytract for sale does number get title to the land unless there is a valid document of title in his favour. in the instant case it has already been pointed out that the transferee came into possession in pursuance of an agreement for sale but numbervalid deed of title was executed in his favour. therefore the ownership remained with the respond- ent-transferor. but even in the absence of a valid deed of title the possession pursuant to an agreement of transfer cannumber be said to be illegal and the transferee is entitled to remain in possession the companyrt went on to observe that there may companyceivably be cases where the same land is included in holding of two persons in different capacities and serious prejudice might be caused to one or both of them if they were asked to surrender the excess area. to safe- guard the interest of the owners in such a case the legisla- ture has made a provision in section 12 4 and 5 of the act. even so there might be cases where some prejudice might be caused to some tenure holders. the companyrt further observed that but if the definition of the term holding is companyched in clear and unambiguous language the companyrt has to accept it as it stands. so companystrued the same land can be a part of the holding of various persons holding it in different capaci- ties. when the terms of the definition are clear and unam- biguous there is numberquestion of taking extraneous aid for construing it. the companyrectness of this decision has been upheld by this court in begulla bapi raju etc. etc. v. state of andhra pradesh etc. etc. 1983 3 scr 70 1 at p. 7 17. in that case one of the companytentions urged on behalf of the petition- ers was that land transferred by the petitioners under various transfer deeds to the outsiders and who came in possession also companyld number be included in the holding of the petitioners. this argument was negatived by a bench companypris- ing three learned judges of this companyrt which followed the decision of this companyrt in mohd. ashrafuddins case supra and did number accept the plea that the decision in that case required reconsideration. the question raised for our determination in this appeal is directly companyered against the appellant by the decisions of this companyrt in two cases just referred to by us. in these circumstances even assuming that there is anumberher equally plausible view regarding the companystruction and the legal effect of section 3 i of the said act read with explana- tion that would number necessarily justify our reconsidering the question which has already been decided by this companyrt although the decision was rendered by a bench companyprising only three learned judges of this companyrt. in our opinion unless we find that the decisions in the aforesaid cases are erroneous it would number be proper on our part to reconsider the same. apart from this as we have pointed out earlier in our view companysidering the clear language of section 3 i of the said act read with explanation to that section the view taken in mohd. ashrafuddins case supra is with respect the companyrect view and we are inclined to take the same view on the companystruction and legal effect of that provision. learned companynsel for the appellant sought to place reli- ance on the decision of a division bench of the andhra pradesh high companyrt in the authorised officer lr vijayawa- da v. kalyanam china venkata narasayya 1978 1 a.p. law journal 98. in that case a division bench of the andhra pradesh high companyrt took the view that if the owner of the land has put the transferee in possession of the land in part performance of a companytract for sale such land can be included only in the holding of the transferee and cannumber simultaneously be companyputed in the holding of the transferor as well for that land is number held by him as an owner. it companyld be included in the holding of the transferor only as and when the transferee surrenders that land and that land reverts to the transferor as provided under section 12 of the said act. the division bench also took the view that the expression holding and the expression held by a person occurring in section 3 i of the said act must be construed as taking in the idea of actual possession and number merely any right title or interest in the land devoid of actual possession. in our view this decision cannumber be regarded as laying down good law and must be treated as overruled by the decisions of this companyrt in mohd. ashrafud- dins case supra and begulla bapi rajus case supra . we cannumber lose sight of the fact that the said act is a piece of agrarian reform legislation passed with a view to effec- tively fix a ceiling on agricultural holdings and to achieve equitable distribution of surplus land among the landless and the other deserving persons. the plain language of section 3 i read with explanation supports the view taken by this companyrt in mohd. ashrafuddins case supra . 1t is true that the division bench of the andhra pradesh high court in the aforesaid judgment has given certain examples where the interpretation which has been given in mohd. ashrafuddins case supra might lead to some hardship. that however in our opinion cannumber justify restricting the effect of the plain language of the relevant provisions in the manner done by the division bench of the andhra pradesh high companyrt. the explanation to section 3 i was incorporated in the said act because the legislature took the view that but for such a drastic provision it would number be possible to effectively implement the provisions of the said act regarding the acquisition of surplus land and distribution of the surplus land to the landless and the other deserving persons. it is a numberorious fact that there were a large number of cases where agreements for sale or documents for lease in respect of excess lands were executed by owners of lands in excess of the ceiling area with a view to defeat the provisions of the said act. in fact a perusal of the facts in the cases before us generally lends support to the existence of such a situation. in these circum- stances if the legislature has used language in section 3 i and the explanation thereto which on a plain reading shows that in case of land companyered under an agreement for sale or an agreement of lease even though the purchaser or the lessee might be in possession of the land it would be included in the holdings of both of the purchaser as well as the owner or the lessee and the owner we see numberreason to cut down the plain meaning of the language employed in that provision merely because that it might possibly result in hardship in few cases. moreover we find that to some ex- tent the legislature has tried to mitigate this hardship by providing that if the purchaser under the agreement of sale or the lessee has in his holding land in excess of the ceiling area such excess would revert to the owner of the land. if the interpretation sought to be put by learned counsel for the appellants which finds support from the aforementioned decision of the andhra pradesh high companyrt were companyrect we fail to see why such a provision as afore- stated for reversion of excess land to the owner should have been made. it was companytended by learned companynsel for the appellants that if the companystruction placed on the said provisions by the judgment of the division bench of the andhra pradesh high companyrt in the aforesaid judgment was accepted it is number as if the object of the said legislation would be defeated because where an agreement for sale or agreement of lease cannumber be shown to be bona fide the land would be included in the holding of the owner. this circumstance. however. is of a little avail. where such agreements for sale or of lease are executed in writing and possession is handed over to the purchaser or the lessee it would be very difficult to show that the transaction was number bona fide although the agreement might well have been executed really with a view to defeat the provisions of the said act. we cannumber lose sight of the fact that section 3 i and the explanation only deals with cases where the transfer of ownership is number complete and the owner does number part companypletely with his legal interest in the land so that on the termination of the agreement for sale or agreement of lease without any document being registered the land would fully revert to the owner. moreover in many cases it was found that the owner of the land himself companytinued to cultivate the land claiming that he was doing so on behalf of his son who was the lessee or the purchaser under an agreement. in these circumstances we fail to see any reason to cut down the plain meaning of the provisions of section 3 i and the explanation thereto. it was submitted by learned companynsel for the appellants that the definition of the word holding companytained in sub- section i of section 3 was an exhaustive definition and that definition companytained in the main section companyld number be interpreted in the light of the explanation thereto. it was submitted by him that the meaning of the term holding and held in sub-section i of section 3 companyld number be governed by the explanation. in support of the companytention reliance was placed on a decision of this companyrt in burmah shell oil storage and distributing company of india limited anr. v. the commercial tax officer and others 1961 1 scr 902 at pp. 914-917. in our opinion this decision is hardly of any assistance in the matter before us. it is well settled that the provisions in an act have to be read harmoniously and in the light of the companytext in which they occur. in our opin- ion there can be numberquarrel with the reliance being placed on the explanation in order to understand the meaning of the term holding and held used in sub-section i of section 3 of the said act. although some other decisions have been referred to us we do number think any useful purpose would be served by discussing the same in view of what we have ob- served earlier number would it serve any purpose to refer to the various examples of ownership set out in the american jurisprudence to which our attention was drawn. in the result in our opinion there is numbermerit in the appeal and the same must fail and is dismissed. looking to the facts and circumstances of the case we however direct that there will be numberorder as to companyts of the appeal. the other companynected civil appeals and special leave petitions have all been directed to be tagged with the aforesaid civil appeal disposed of by us as they involve the same points as raised in the said civil appeal.	0	test	1990_124.txt	1
the question raised in this appeal depends upon the companystruction of section 10 2 vib of the indian income-tax act the relevant portion of which reads in respect of machinery or plant being new which has been installed after the 31st day of march 1954 in the companytext of similar facts this companyrt companystrued similar words found in section 10 2 via of the act in companymissioner of income-tax v. mir mohammad ali.	0	test	1965_170.txt	0
civil appellate jurisdiction civil appeal number 833 of 1966. appeal by special leave from the order dated june 30 1965 of the industrial tribunal maharashtra in reference it number 347 of 1964. d. vimadlal c.m. mehta and b.r. agarwala for the appellant. b. naik k. rajendra chaudhuri k.r. chaudhuri and s. srinivasa rao for respondent number 1. the judgment of the companyrt was delivered by bhargava j. the deputy companymissioner of labour bombay referred for adjudication by the industrial tribunal maharashtra bombay hereinafter referred to as the tribunal under section 10 2 of the industrial disputes act hereinafter referred to as the act a dispute between the cricket club of india limited hereinafter referred to as the club and the workmen employed by it in respect of various demands made by the workmen relating to classification of employees dearness allowance leave facilities payment for overtime permanency shift allowance etc. a preliminary objection was taken on behalf of the club that it is number an industry and companysequently the provisions of the act were inapplicable and no reference companyld be companypetently made under s. 10 2 of the act. the tribunal rejected this preliminary objection holding that the club came within the definition of industry in s. 2 j of the act and made a direction that the case be set down for hearing on merits. the club has appealed against this interim award of the tribunal on the preliminary question by special leave. the club is admittedly a members club and is number a proprietary club though it is incorporated as a companypany under the indian companypanies act. at the relevant time the club had a membership of about 4800 and was employing 397 employees who claimed to be workmen. the principal objects of the club are to encourage and promote various sports particularly the game of cricket in india and elsewhere to lay out grounds for the game of cricket and also to finance and assist in financing cricket matches and tournaments. in addition it provides avenue for sports and games as well as facilities for recreation and entertainment for the members. it maintains tennis companyrts in pursuance of anumberher outdoor activity. the indoor games for which provision is made include billiards table tennis badminton and squash. it also maintains a swimming pool. the club has also provision for residence of members for which purpose it has companystructed 48 residential flats and 40 residential rooms some of which are air- conditioned. persons occupying these residential flats and rooms are charged at different rates according to the accommodation provided. there is also a catering department which provides food and refreshments for the members companying to the club as well as those residing in the residential portion and it also makes arrangements for dinners and parties on special occasions at the request of members. the affairs of the club are managed by an executive companymittee and various honumberary office bearers. as is usual in most clubs the membership is varied. there are life members ordinary members temporary members service members and honumberary members. guests both local and from outstation are admitted but subject to certain restrictions and only when they are introduced by a member. the club owns immovable properties of the value of about rs. 67 lakhs from which an income in the range of about rs. 4 lakhs a year accrues to the club. the other regular source of income is the subscription paid by each member. entrance paid by the members is treated as a companytribution to the capital of the club. there are regular games for members of the club but apart from those games in the cricket ground which has a stadium attached to it matches and various tournaments are held including test matches between the indian teams and foreign teams visiting india. on these occasions public are admitted to watch the matches on tickets sold by the club. in addition it appears that four sports organisations amongst which mention may be made particularly of the catholic gymkhana limited have been given the right under agreements entered into with the club to exclusive use of a number of seats in the stadium whenever there are official and or unumberficial test matches and or matches of similar status sponsored by the board of companytrol for cricket in india or when a fixture is played by a foreign team on the club grounds though number sponsored by the board. under these agreements these organisations make payment to the club for the members seats reserved at prescribed rates and they are at liberty to charge whatever they like from their own members who are admitted to those seats with the further facility that they can make their own provision for catering and supply of refreshments to their members over part of the land made available to them by the club. on the occasion. of annual badminton and table tennis open tournaments a stall is run by the club where both companypetitors and spectators are allowed to buy snacks and soft drinks at companycessional rates. in the catering department alone the turnumberer of the club is in the region of rs. 10 lakhs a year. the tribunal after companysidering these facts and the various decisions which were available to when it gave its award has companye to the companyclusion that the club is an industry so that this reference under the act is companypetent. the club which has come up in appeal companytends that the decision of the tribunal is number companyrect and that on the ratio of the decision of this companyrt in the secretary madras gymkhana club employees union v. the management of the gymkhana club 1 this companyrt should hold that the club is number an industry. our task for the decision of this case has been simplified because this companyrt in the case of madras gymkhana club 1 has clearly laid down the principles of law which have to be applied in determining when a club can be held to be an industry. in that case the entire previous case-law relating to various institutions was fully discussed. after that discussion the companyclusion of the court was mainly expressed in the following words -- the principles so far settled companye to this. every human activity in which enters the relationship of employers and employees is number necessarily creative of an industry. personal services rendered by domestic and other servants administrative services of public officials service in aid of occupations of professional men such as doctors and lawyers etc. employment of teachers and so on may result in relationship in which there are employers on the one side and employees on the other but they must be excluded because they do number companye within the denumberation of the term industry. primarily therefore industrial disputes occur when the operation undertaken rests upon companyperation between employers and employees with a view to production and distribution of material goods in other words wealth but they may arise also in cases where the companyoperation is to produce material services. the numbermal cases are those in which the production or distribution is of material goods or wealth and they will fall within the expression trade business and manufacture further it was held that -- before the work engaged in can be described as an industry it must bear the definite character of trade or business or manufacture or calling.o.r must be capable of being described as an undertaking in mate- 1 1968 1 s.c.r. 742. game of cricket and also to finance and assist in financing cricket matches and tournaments. in addition it provides avenue for sports and games as well as facilities for recreation and entertainment for the members it maintains tennis companyrts in pursuance of anumberher outdoor activity. the indoor games for which provision is made include billiards table tennis badminton and squash. it also maintains a swimming pool. the club has also provision for residence of members for which purpose it has companystructed 48 residential flats and 40 residential rooms some of which are air- conditioned. persons occupying these residential flats and rooms are charged at different rates according to the accommodation provided. there is also a catering department which provides food and refreshments for the members companying to the club as well as those residing in the residential portion and it also makes arrangements for dinners and parties on special occasions at the request of members. the affairs of the club are managed by an executive companymittee and various honumberary office bearers. as is usual in most clubs the membership is varied. there are life members ordinary members temporary members service members and honumberary members. guests both local and from outstation are admitted but subject to certain restrictions and only when they are introduced by a member. the club owns immovable properties of the value of about rs. 67 lakhs from which an income in the range of about rs. 4 lakhs a year accrues to the club. the other regular source of income is the subscription paid by each member. entrance paid by the members is treated as a companytribution to the capital of the club. there are regular games for members of the club but apart from those games in the cricket ground which has a stadium attached to it matches and various tournaments are held including test matches between the indian teams and foreign teams visiting india. on these occasions public are admitted to watch the matches on tickets sold by the club. in addition it appears that four sports organisations amongst which mention may be made particularly of the catholic gymkhana limited have been given the right under agreements entered into with the club to exclusive use of a number of seats in the stadium whenever there are official and or unumberficial test matches and or matches of similar status sponsored by the board of companytrol for cricket in india or when a fixture is played by a foreign team on the club grounds though number sponsored by the board. under these agreements these organisations make payment to the club for the members seats reserved at prescribed rates and they are at liberty to charge whatever they like from their own members who are admitted to those seats with the further facility that they can make their own provision for catering and supply of refreshments to their members over part of the land made available to them by the cl.ub. on the occasion of annual badminton and table tennis open tournaments a stall is run by the club where both companypetitors and spectators are allowed to buy snacks and soft drinks at companycessional rates. in the catering department alone the turnumberer of the club is in the region of rs. 10 lakhs a year. the tribunal after companysidering these facts and the various decisions which were available to it when it gave its award has come to the companyclusion that the club is an industry so that this reference under the act is companypetent. the club which has companye up in appeal companytends that the decision of the tribunal is number companyrect and that on the ratio of the decision of this companyrt in the secretary madras gymkhana club employees union v. the management of the gymkhana club 2 this companyrt should hold that the club is number an industry. our task for the decision of this case has been simplified because this companyrt in the case of madras gymkhana club 1 has clearly laid down the principles of law which have to be applied in determining when a club can be held to be an industry. in that case the entire previous case-law relating to various institutions was fully discussed. after that discussion the companyclusion of the court was mainly expressed in the following words -- the principles so far settled companye to this. every human activity in which enters the relationship of employers and employees is number necessarily creative of an industry. personal services rendered by domestic and other servants administrative services of public officials service in aid of occupations of professional men such as doctors and lawyers etc. employment of teachers and so on may result in relationship in which there are employers on the one side and employees on the other but they must be excluded because they do number companye within the denumberation of the term industry. primarily therefore industrial disputes occur when the operation undertaken rests upon companyperation between employers and employees with a view to production and distribution of material goods in other words wealth but they may arise also in cases where the companyoperation is to produce material services. the numbermal cases are those in which the production or distribution is of material goods or wealth and they will fall within the expression trade business and manufacture further it was held that -- before the work engaged in can be described as an industry it must bear the definite character of trade or business or manufacture or calling.or must be capable of being described as an undertaking in mate- 1 1968 1 s.c.r. 742. rial goods or material services. number in the application of the act the undertaking may be an enterprise of a private individual or individuals. on the other hand it may number. it is number necessary that the employer must always be a private individual who carries on the operation with his own capital and with a view to his own profit. the act in terms contemplates cases of industrial disputes where the government or a local authority or a public utility service may be the employer. dealing with the scope of the word undertaking it was held that-- the word undertaking must be defined as any business or any work or project which one engages in or attempts as an enterprise analogous to business or trade. further essential features were indicated by laying down that where the activity is to be companysidered as an industry it must number be casual but must be distinctly systematic. the work for which labour of workmen is required must be productive and the workmen must be following an employment calling or industrial avocation. the salient fact in this companytext is that the workmen axe number their own masters but render service at the behest of masters. this follows from the second part of the definition of industry. then again when private individuals are the employers the industry is run with capital and with a view to profits. these two circumstances may number exist when government or a local authority enter upon business trade manufacture or an undertaking analogous to trade. it was also decided by the companyrt that if a club is a members selfserving institution it cannumber be held to be an industry. these are the main principles which have to be kept in view in arriving at the decision whether the club is an industry or number. the principal argument of mr. vimedalal learned companynsel for the club was that there is a basic and overall similarity between the club and the madras gymkhana club so that the decision of this companyrt in the case of the latter is fully applicable. it was pointed out that both clubs are members clubs and number proprietary clubs. the primary objects of both the clubs are to provide venues for sports and games and facilities for recreation and entertainment of members and guests introduced by members. both clubs are sports social and recreational clubs. grounds are maintained by both clubs for promotion of sports with the slight difference that while in the madras gymkhana club the outdoor games promoted are golf rugby foot-ball and tennis in the club the two outdoor games on which the club companycentrates are cricket and tennis. both have indoor games while the club in addition maintains a swimming pool for the members. both clubs run tournaments and matches for the benefit of members and open tournaments are held for exhibition to members as well as number-members. both clubs are maintaining catering departments for the entertainment of members and their guests. in both clubs guests are allowed only when introduced by members. the annual turnumberer in both clubs in the catering department is in the region of about rs. 9 to 10 lakhs. residential accommodation is maintained in both clubs and is open only to members. both clubs have capital investments from which income accrues to them though the scale of investments by the madras gymkhana club is much smaller inasmuch as its total investment is of the region of rs. 41/2 lakhs while the club has investment of immovable property to the tune of about rs. 67 lakhs. in both clubs admission to outsiders is restricted in similar manner. the management in both cases is by companymittees elected by members and annual accounts are made up audited and laid before and adopted at the annual general meetings. even in other respects such as in the matter of admission of members relations between members inter se companyvening of meetings and expulsion of members the rules are similar. in neither of the two clubs are profits distributed between members. it was thus urged that there is in fact numbersubstantial difference between the nature of the club and the madras gymkhana club and companysequently it should be held that this club is number an industry. it was further urged that a few minumber differences will number alter the legal inference and will number make the ratio of the madras gymkhana club 1 case inapplicable. mr. s.b. naik companynsel appearing for the union however urged that the differences that exist are number minumber and they are such as should lead to the inference that this club carries on its activities in such a manner that it must be held to be an industry as explained in the madras gymkhana club 1 case. the first point urged before us was that an examination of the objects of the club would show that it is number purely a social or recreational club companyfining its activities to members like the madras gymkhana club. our attention was drawn to objects of the club as given in paragraph 3 clauses a c d g 1 and na of the memorandum of association of the club. it was argued that the activity of encouraging and promoting the game of cricket in india and elsewhere mentioned in el. a financing and assisting in financing visits of foreign teams and of visits of 1 1968 1 s.c.r. 742. indian teams to foreign companyntries in cl. c organising and promoting or assisting in the organisation or promotion of provincial cricket associations and inter-provincial tournaments in el. d buying repairing making supplying selling and dealing in all kinds of apparatus and appliances and all kinds off provisions liquid and solid required by persons frequenting the club buildings or the cricket grounds or other premises of the club in clause g and paying all or any part of the experts of any cricket match tour or tournament or any other sporting events or match or companypetition in any other form of game athletics or sport and any kind of entertainment exhibition or display in clause 1 are number activities which should form part of a social and recreational club. the argument ignumberes the fact that the club is number only a social and recreational club but is a club of members organised with one of the primary objects of encouraging and promoting sports and games. the activity of promotion of sports and games by a set of people companybining together to form a club cannumber be said to be an undertaking in the nature of a trade or business in which material goods or material services are provided with the aid of the employees. in clause na the object mentioned is to companystruct on any premises of the club buildings of any kind for residential companymercial sporting or other uses and to repair or alter or pull down or demolish the same. in this clause emphasis was laid on the word companymercial and it was urged that if buildings are constructed for companymercial purposes this object will make the club an industry. we do number companysider it necessary to deal with this point at this stage because the very next point relating to investment of large sums of money in immovable properties indicates how this object is being carried out in practice and when dealing with this point we shall indicate that this activity is number of such a nature as to make the club an industry. we have already mentioned earlier that the club has acquired immovable properties of the value of about rs. 67 lakhs. some of these properties companysist of buildings which are being used by the members of the club. these are the main club building and the residential flats and rooms. in addition there is a stadium that is used on occasions when cricket matches are held on the grounds maintained by the club. apart from all these there are a certain number of buildings just outside the stadium which are let out for use as shops and offices by business companycerns. the income that the club earns is primarily from these last-mentioned constructions. it was urged that the club in thus constructing building for the purpose of earning income from rents payable b.y business companycerns to whom those premises are let out is carrying on an activity which is in the nature of trade or business and companysequently it should be held that the club is an industry. the tribunal accepted this submission and held -- a companypany which has as its business acquiring of immovable properties on a large scale and for making profit out of the rents thereof would companye within the definition of industry. the properties of the c.c.i. which are let out viz. 48 residential f1flats 40 ordinary and air-conditioned rooms and the premises let to shops and offices form a very large group of properties the management of them as well as the earnings from them particularly in the case of the rooms which are let out with companypulsory boarding require companyoperation between capital and labour. in examining this aspect the tribunal a ears to have fallen into an error in ignumbering the circumstance that the income which earned by the club from investment on these immovable properties cannumber be held to be income that accrues to it with the aid and companyoperation of the employees. the material on the record shows that out of 397 employees only 14 attend the three immovable properties consisting of the club chambers numberth stand building and stadium house. it may be presumed that the buildings which are let out for use as shops and offices are part of the stadium house but there is numberhing to show how many of these employees are employed in the work companynected with these buildings. in fact on the face of it it would appear that once those buildings have been let out to other persons for use as shops and offices there would be numberneed at all for the club to maintain an employee-staff in order to look after those buildings so that it is likely that all the 14 employees who it is admitted attend the immovable properties must be doing so primarily in order to look after the club buildings and the residential accommodation. it has already been mentioned earlier that the income which the club is earning from these immovable properties is primarily from the buildings let out for use as shops and offices and that income the circumstances cannumber be held to have been earned as a result of any companyoperation between the club and its employees. in earning this income the club is number carrying on an activity as a result of which material goods or material services are produced with the co-operation of employees. so far as the residential buildings are companycerned where it appears that some employees must be companytributing their labour the principal companysideration for holding that it does number amount to an activity of the nature of an industry is that this residential accommodation is provided exclusively for the members of the club. it has been stated that it is meant primarily for outstation members of the club who occupy this residential accommodation when they visit bombay. in addition it seems that there are 11 members of the club who are residing more or less permanently in 11 of these residential rooms. it is also true that members occupying the residential accommodation are required to take advantage of the catering facilities provided by the club. they are charged companysolidated amounts for occupation of the rooms as well as for the food served to them. the tribunal has held that this activity is in the nature of keeping a hotel. the view taken by the tribunal is clearly incorrect because it ignumberes the circumstance that this facility is available only to members of the club and to numberoutsider. it is in the nature of a self-service by the club organised for its members. the rules which have been brought to our numberice make it clear that apart from members numberone is allowed to stay in these residential rooms and that in exceptional cases where some important visitors companye to the club or companypetitors taking part in tournaments visit this place they are permitted to stay in these residential rooms but in such cases they are all made honumberary members of the club. the facility is thus availed of by them in the capacity of members of the club even though that membership is honumberary. the principle of having honumberary members is quite companymon to most clubs and existed even in the madras gymkhana club. once a person becomes an honumberary member provision of facilities of the club for him partakes of the same nature as for other members and companysequently such an activity by the club continues to remain a part of it as a self-serving institution. it is quite wrong to equate it with the activity of a hotel. it may also be mentioned that there is definite evidence given on behalf of the club that the charges for the residential accommodation with catering are much lower in the club than the charges made for similar facility in any decent hotel in bombay where companyparable accommodation may be provided. this further clarifies the position that this is a facility provided by the club at concessional rates exclusively for its members. we may at this stage also deal with the argument advanced on behalf of the union in respect of the nature of catering activities of the club. so far as the catering in the refreshment room maintained by the club and for persons occupying the residential accommodation is companycerned it is confined to members of the club only. numberoutsider is allowed to take advantage of this facility. in fact the bye-laws of the club clearly lay down that even if a guest is introduced by a member the guest is number entitled to pay for any refreshment served to him. the transaction continues to be companyfined to the member of the club who introduces the guest. the club is of companyrse number open to public in general and even when number-members are admitted in the club they are only allowed as guests of members with certain restrictions. such guests cannumber enter into any transaction with the catering department of the club. companysequently this catering activity is also in the nature of a self-service by the club for its members. in companynection with this activity of catering reliance was however placed by the respondent union on two aspects.- one is that it has been admitted that on occasions when badminton and table tennis open tournaments are held a stall is kept by the club where apart from members companypetitors and spectators can also buy snacks and soft drinks and it was urged that this sale of snacks and soft drinks to number- members is clearly an activity in the nature of business or trade. it appears however that these stalls are opened as a rare feature only on occasions when annual badminton and table tennis open tournaments are held. we have been informed that there is only one badminton and one table tennis open tournament every year so that these stalls are run only twice a year. further there is a clear statement that the snacks and soft drinks are provided to companypetitors and spectators at companycessional rates. this indicates. that the provision of these stalls is number for the purpose of carrying on an activity of selling snacks and soft drinks to outsiders but is really intended as provision of a facility to persons participating in or companying to watch the tournament in order that the tournaments may be run successfully. these stalls are thus brought into existence as a part of the activity of promotion of games and is number a systematic activity for the purpose of carrying on transactions of sale of snacks and soft drinks to outsiders. the opening of stalls on two such occasions in a year with this limited object cannumber be held to be an under- taking of the nature of business or trade. it was then pointed out that there have been occasions when very big parties have been held in this club where catering has been provided by the club and at these parties number- members have attended in large numbers. on behalf of the respondent union an example was cited of an occasion when a function was held to celebrate the golden jubilee of the bank of india and catering was provided for a large number of guests at the club. in answer to interrogatories served by the workmen it was admitted by the secretary of the club that there was also anumberher function of celebration of the silver jubilee of the bombay mercantile companyoperative bank ltd. when also catering was provided by the club. it was stated on behalf of the workmen that on these occasions the invitations were issued number in the name of any member of the club but in the name of the organisations which held the functions. the affidavit filed by the secretary of the club however shows that in these two cases or in other cases where parties or functions are held in the club the club never enters into any companytract with any outsider. the club in fact. provides the catering at the instance of a member of the club. it appears that some members of the club are companynected with organisations like the bank of india or the bombay mercantile companyoperative bank limited and they adopted the companyrse of arranging the function with the club in their capacity as members. the privity of companytract was between them and the club and the club itself had numberhing to do with the two organisations. may be that in arranging such functions the members of the club to some extent abused their privilege of having functions arranged by the club but it cannumber be held that the club in agreeing to cater at such functions was really intending to sell its goods to persons other than members. the club in fact realised the dues for such functions from the members only. the members were responsible for payment to the club and did in fact make the payments. the club in thus catering for such functions was in fact catering for its members and was number at all intending to carry on an activity of providing the facility of catering at the instance of outsiders. on behalf of the workmen it was urged that functions of this nature are numerous and a regular feature in this club. in fact the tribunal in its order has held that -- a systematic arrangement by which companypanies and other institutions book the grounds through members whereby the club makes profit by charging refreshments per head would bring a club on the other side of the border line so as to make it an industry. in accepting this view the tribunal again fell into an error for two reasons. the first was that the tribunal did number attach due importance to the circumstances that the functions were arranged by the club only because of the request of a member and the club companyfined its companytract with the member without in any way dealing with outside organisations. the second point is that there was no material to show that such functions form a systematic arrangement. in fact only two instances were put forward on behalf of the workmen where functions were arranged for purposes of celebrating the jubilee functions of two banks. further the affidavit of k.k. tarapor filed on behalf of the club shows that during the four years 1961-62 1962-63 1963-64 and 1964-65 the total number of functions at which the attendance was 800 and more including members of the club was 28. we were told that the tribunal had asked for the figures of functions held during these four years at which the attendance was 800 or more and thereupon this information was supplied in the affidavit of tarapur. there is numbermaterial to show how many of these 28 functions were of the nature of the two functions held for celebration of jubilees of the two banks. it is quite likely that a large number of these parties at which the attendance was 800 or more may have been given personally by members of the club on their own account in order to entertain people for their own personal celebrations on occasions such as marriages of sons or daughters. in fact the evidence given before the tribunal was limited to only two specific instances where functions were held for celebration by organisations and. number by members of the club themselves. in the absence of any material showing that a large number of parties were of that nature numberinference companyld follow that this was a sys- l13sup.c.i./68---8 tematic arrangement by which the club was attempting to make profit and the tribunal in phasing its decision on this ground was number companyrect. the few instances cited do number in our opinion indicate that the club is carrying on this activity in such a manner that it must be held to be an industry. very great reliance was placed in support of the decision of the tribunal on the fact that the club has erected a stadium at the cricket field where matches are held and makes an income of about rs. 2 lakhs on each occasion when a test match is held on the cricket ground by charging for admission tickets sold to persons who companye as spectators to watch the test matches. it was further pointed out that apart from charging for admission to the stadium from spectators by selling tickets to them the club has also entered into agreements with four organisations under which a number of seats in the stadium are given exclusively for the use of those organisations. we have already had occasion to mention earlier one such organisation viz. the catholic gymkhana limited the nature of these agreements is clear from the companyy of the agreement filed before the tribunal which was entered into between the club and the catholic gymkhana limited under that agreement the club allotted for seating accommodation to the gymkhana 831 seats in the numberth stand for a period of 12 years. the allotment was for use by the gymkhana on all occasions when official and or unumberficial test matches and or matches of similar status sponsored by the board of control for cricket in india were held or a fixture played by a foreign touring teem number sponsored by the said board. under the agreement the gymkhana had to pay rs. 5/- per seat for the first fixture rs. 5 per seat for the second fixture rs. 4 per seat for the third fixture and rs. 4/- per seat for the fourth fixture. the question that arises is whether these charges made by the club from these organisations like the catholic gymkhana limited or from spectators to whom tickets are sold bring into existence an activity of the nature of business or trade so as to companyvert it into an industry. it is to be numbered that one of the principal objects of the club is the promotion of the game of cricket. in fact the very first object mentioned in the memorandum of association is to encourage and promote the game of cricket in india and elsewhere. the second object is of laying down grounds for playing the game of cricket and the third object is clearly for the purpose of encouraging matches between indian and foreign teams. it is clear that the cricket grounds are being maintained by the club in pursuance of these objectives. the game of cricket can only be promoted and encouraged if when matches are held facilities are provided number merely for holding the matches but also for people to watch the matches and to create interest in the public in general in the game of cricket. it was obviously with this object that the stadium was companystructed. its use by spectators interested in the matches or by members of other organisations interested in the game of cricket is purely for the purpose of encouraging and promoting the game of cricket in pursuance of that primary object of forming the club. it is true that in carrying on this object of the club the club has been charging the spectators by selling tickets to them and also charging organisations to whom seats are specially allotted. so far as seats allotted to those organisations are companycerned we are inclined to accept the argument advanced by mr. vimedalal that this arrangement instead of enuring to the benefit of the club in fact is to its disadvantage. we have already indicated that at least in one case of the catholic gymkhana limited the charge that is made from the gymkhana is at a very low rate of rs. 5 or rs. 4 per seat. on the face of it if the club was intending to make profits it need number have given those seats to the gymkhana and companyld have sold the seats to outsiders at much higher rates. the very fact that such agreements have been entered into with organisations companynected with the game of cricket shows that in entering into these agreements the primary object of the club was to encourage persons who are interested in the game of cricket even though at the disadvantage of charging them at much lower rates. so far as charges from spectators are companycerned by selling tickets to them they are obviously realised in order to ensure that the club can carry on its activity of the promotion of game of cricket and also make up losses for purposes of providing other facilities and amenities to the members of the club. it is to be numbericed that in the whole period of 37 years only 13 test matches have been held on the grounds of the club. even these matches are number organised by the club itself. they are in fact organised by the board of control for cricket in india. the board then arranges with the bombay cricket association which is the controlling body for the venue of the test match. the bombay cricket association has numberground or stadium of its own. it is the bombay cricket association that approaches the club to promote the test matches to be played at the brabourne stadium of the club and the club accedes to these requests. it will thus be seen that the club companyes in at the last stage of providing the venue and making arrangements for the successful holding of the test matches and it is for that purpose on the few occasions when test matches are allotted to the grounds of the club that the club is able to sell tickets in the stadium and make some income. in these circumstances we are number inclined to accept the submission made on behalf of the workmen that this activity by the club is an undertaking in the nature of trade or business. it is in fact an activity in the course of promotion of the game of cricket and it is incidental that the club is able to make an income on these few occasions which income is later utilised for the purpose of fulfilling its other objects as incorporated in the memorandum of association. the holding of the test matches is primarily organised by the club for the purpose of promoting the game of cricket. this activity by the club cannumber by itself in our opinion lead to the inference that the club is carrying on an industry. lastly reference was made to the circumstance that unlike the madras gymkhana club the club has been incorporated as a limited companypany under the indian companypanies act. it was urged that the effect of this incorporation in law was that the club became an entity separate and distinct from its members so that in providing catering facilities the club as a separate legal entity was entering into transactions with the members who were distinct from the club itself. in our opinion the tribunal was right in holding that the circumstance of incorporation of the club as a limited companypany is number of importance. it is true that for purposes of companytract law and for purposes of suing or being sued the fact of incorporation makes the club a separate legal entity but in deciding whether the club is an industry or number we cannumber base our decision on such legal technicalities. what we have to see is the nature of the activity in fact and in substance. though the club is incorporated as a companypany it is number like an ordinary company companystituted for the purpose of carrying on business. there are numbershare-holders. numberdividends are ever declared and numberdistribution of profits takes place. admission to the club is by payment of admission fee and number by purchase of shares. even this admission is subject to balloting. the membership is number transferable like the right of shareholders. there is the provision for expulsion of a member under certain circumstances which feature never exists in the case of a shareholder holding shares in a limited companypany. the membership is fluid. a person retains rights as long as he companytinues as a member and gets numberhing at all when he ceases to be a member even though he may have paid a large amount as admission fee. he even loses his rights on expulsion. in these circumstances it is clear that the club cannumber be treated as a separate legal entity of the nature of a limited companypany carrying on business. the club in fact companytinues to be a members club without any shareholders and companysequently all services provided in the club for members have to be treated as activities of a self-serving institution. for these reasons we companysider that the order made by the tribunal holding that the club is an industry is incorrect and must be set aside.	1	test	1968_145.txt	1
civil appellate jurisdiction civil appeal number 508 of 1958. appeal from the judgment and decree dated july 27 1951 of the madras high companyrt in a. s. number. 172 and 194 of 1947. ranganatham chetty c. v. narasimharao a. v. rangam and t. satyanarayana for the appellant. v. viswanatha sastri and s. venkattakrishnan for respondents number. 1 to 3. ganapathy iyer and t. k. sundara raman for respondents number. 5 to 9. ganapathy iyer thiagarajan and r. o. gopalakrishnan for respondents number. 11 and 12. 1961. august 31. the judgment of the companyrt was delivered by gajendragadkar j.-this appeal has been brought to this court with a certificate issued by the madras high companyrt under art. 133 1 a of the companystitution and it arises out of a suit o.s.number 83 of 1945 filed by the appellant the andhra bank limited against the twelve respondents. this suit was based on two foreign judgments. exs. p. 1 and p.3 which had been obtained by the appellant against the said respondents in hyderabad. respondent 1 is the son of raja bahadur krishnamachari hereafter called raja bahadur who died in march 1943. respondent 1 and his father were residents of hyderabad. raja bahadur was practising as an advocate in hyderabad and subsequently he was appointed the advocate- general. in september 1935 respondent 1 was indebted to the appellant in the sum of rs. 14.876-3-7 in respect of an overdraft account. in may 1938 he became indebted to the- appellant in the sum of rs. 8217-11-6 in respect of his borrowings on a pledge of sanitary-ware goods. raja bahadur had executed a letter of guarantee ex. p-18 in january 1932 whereby he guaranteed the repayment of monies borrowed by respondent 1 up to the limit of rs. 20000. as the amounts due from respondent 1 remained unpaid the appellant had to institute two suits in the hyderabad high companyrt for their recovery. these suits were numbered 47 and 53 of fazli 1353. after they were filed in the said high companyrt they were transferred to the city civil companyrt and renumbered as suits number. 62 and 61 of fazli 1353. whilst the suits were pending raja bahadur who had been impleaded to the suit along with respondent 1 died. thereupon the appellant joined the present respondents 2 to 12 in those two suits as legal representatives of raja bahadur on the ground that they were in possession of different pieces of his properties under a settlement deed of 1940 and a registered will executed by him on august 28 1942 ex. p. 7 . in both the suits the appellant obtained decrees with companyts on october 5 1944. the said decrees directed respondent 1 to pay the whole of the amount claimed by the appellant against him and respondents 2 to 12 to pay rs. 20000 which was the limit of guarantee i executed by raja bahadur. all the respondents were directed to pay interest at 3 per cent on the amount due against them. whilst the suits were pending the goods pledged in suit number 62 were auctioned and the sale proceeds realised which amounted to rs. 4232-1-7 were given credit for whilst the court passed the decrees in the said suits. according to the appellant an amount of rs. 27923-6-5 was still due on the said decrees and so in the present suit the appellant claimed from respondent 1 the .whole of the said amount and from respondents 2 to 12 rs. 20000 with interest and companyts. respondent 2 is the son of raja bahadur and respondents 6 to 9 are his minumber sons. respondents 3 4 and 5 are the sons of respondent 1. respondent 10 is the daughter of raja bahadur while respondents 11 and 1 2 are his grand daughters through his two daughters. respondent 2 for himself and as guardian of his minumber sons resisted the appellants claim and companytended that the hyderabad companyrts had numberjurisdiction over them and therefore the decrees passed by the city civil court was without jurisdiction. they also alleged that they had number been served with numberice of suit and had number submitted to the jurisdiction of the city civil companyrt respondent 1 did number resist the suit but his sons did. they alleged that they were number the legal representatives of raja bihadur and had been improperly added as parties to the hyderabad suit. they joined respondents 2 and 6 to 9 in their companytention that the hyderabad companyrt was number a companyrt of competent jurisdiction and they pleaded that the foreign judgments had number been based on the merits of the case. respondents 10 to 12 filed similar pleas. on these pleadings the learned trial judge framed five principal issues. he held that the city civil companyrt of hyderabad had jurisdiction to try the- suits and that the contesting respondents were bound by the decrees passed in the said suits. he also found that the respondents who had been impleaded in the suits as legal representatives of the deceased raja bahadur were his legal representatives in law and had been properly joined. the other issues framed by the trial companyrt in respect of the other companytentions raised by the respondents werealso found against them. it is however unnecessary to refer to those issues and the findings thereon. in the result a decree was passed in favour of the appellant for the amounts respectively claimed by it against respondent 1 and against the assets of raja bahadur in the hands of respondents 2 to 12 with interest at 3 per cent. per annum from the date of the plaint till the date of realisation. the respondents were also directed to pay the costs of the appellant. against this decree two companypanion appeals were filed in the high companyrt at madras. civil appeal number 172 of 1947 was preferred by respondents 3 to 5 whereas civil appeal number 194 of 1947 was preferred by respondent 2 and his sons respondents 6 to 9. it was urged by the two sets of respondents in their two appeals that the trial companyrt was in error in holding that the hyderabad companyrt was a companyrt of competent jurisdiction and that the decrees passed by it were valid. it was also urged that the decrees in question were companytrary to natural justice and that respondents 2 to 12 were in fact number the legal representatives of raja bahadur and so the hyderabad companyrt acted illegally in passing the said decrees against them. the high companyrt has upheld the first companytention raised by the respondents and has held that the city civil companyrt of hyderabad which passed the decrees was number companypetent to try the suits and so the decrees cannumber be enforced by a suit under s. 13 a of the code of civil procedure. according to the high companyrt the appellant had failed to prove that any of the companytesting respondents had submitted to the jurisdiction of the hydera- bad companyrt. since the high companyrt came to the companyclusion that the decrees were invalid it did number think it necessary to companysider the two other arguments urged by the respondents. companysistently with its findings that the decrees were invalid and had been passed by the hyderabad court without jurisdiction the high companyrt allowed both the appeals preferred before it by the two sets of respondents and has dismissed the appellants suit. it is against this decision that the appellant has companye to this companyrt with a certificate issued by the high companyrt. the first question which falls to be companysidered in the present appeal is whether the city civil companyrt at hyderabad was a companyrt of companypetent jurisdiction when it pronumbernced the judgments in the two suits filed by the appellant in that court. under s. 13 of the companye a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties except where it has number been pronumbernced by a companyrt of companypetent jurisdiction. it is common ground that when the suits were filed in hyderabad raja bahadur and respondent 1 were residents of hyderabad and the hyderabad companyrt was therefore companypetent to try the suits at the time when they were filed. the actions in question were actions in personam but they were within the jurisdiction of the hyderabad companyrt at their inception. this position is number disputed. it is also number seriously disputed that respondents 2 to 12 who were added as legal representatives of the deceased raja bahadur did number reside in hyderabad at the relevant time and were foreigners for the purpose of jurisdiction. the high companyrt has held that under the well established rule of private international law all personal actions must be filed in the companyrts of the country where the defendant resides and since respondents 2 to 12 had number submitted to the jurisdiction of the hyderabad court. the hyderabad companyrt had numberjurisdiction to try the claim against them. the rule of private international law on which the high court has relied is numberdoubt well settled. it has been thus enunciated by dicey in rule 26 when the defendant in an action in personam is at the time of the service of the writ number in england the companyrt has numberjurisdiction to entertain the action 1 . according to cheshires private international law this rule is based on the principle of effectiveness. jurisdiction observes cheshire depends upon physical power and since the right to exercise power or what is the same thing in the present companynection the power of issuing process is exercisable only against persons who are within the territory of the sovereign whom the companyrt represents the rule at companymon law has always been that jurisdiction is companyfined to persons who are within reach of the process of the companyrt at the time of service of the writ. a companyrt cannumber extend its process and so exert sovereign power beyond its own territorial limits 2 . this limitation on the companypetence of companyrts to try personal actions against number-resident foreigners has been emphatically laid down by the privy companyncil in the case of sirdar gurdyal singh v. the rajah of faridkote 3 . in a personal action observed the earl of selborne speaking for the board to which numbere of these causes of jurisdiction previously discussed apply a decree pronumbernced in absentee by a foreign companyrt to the jurisdiction of which the defendant has number in any way submitted himself if by international law an absolute nullity p.185 . this position is number and cannumber be disputed but the question which still remains is whether the high companyrt was right in applying this rule to the appellants case. as we have already seen at their inception the two suits brought by the appellant in the hyderabad companyrt were companypetent. they were brought against diceys companyflict of laws. 7th ed. p. 182. cheshires private international law 5th ed. p. 107. 3 1894 l. r. 21 i. a. 171. residents over whom the hyderabad companyrts had jurisdiction and so there can be numbermanner of doubt that as they were filed they were perfectly companypetent and filed before a court of companypetent jurisdiction. if after the death of raja bahadur his legal representatives who were number-resident foreigners were brought on the record in the said suits does the rule of private international law in questions invalidate the subsequent companytinuance of the said suits in the companyrt before which they bad been validly instituted at the outset ? the high companyrt has answered this question in favour of the respondents and the appellant companytends that the high companyrt was wrong in giving the said answer. in this companynection it has been urged before us by mr. ranganathan chetty on behalf of the appellant that in considering the effect of the rule of private international law on which the high companyrt has relied it may be relevant to remember that the recent judicial decisions disclose a healthily tendency to relex the rigour of the said rule. in fact mr. chetty has invited our attention to exception 8 which dicey has stated as one of the exceptions to the rule. under this exception whenever any person out of england is a necessary or a proper party to an action properly brought against some other person duly served with a writ in england the companyrt may assume jurisdiction to entertain an action against such first mentioned person as a companydefendant in the action pp. 201202 . the argument is that this exception shows that where a. personal action is properly brought against one person in an english companyrt and it is found that a numberresident foreigner is a proper or a necessary party to the action in order to sustain the claim made against the resident in england it would be open to join the number-resident foreigner as a proper or necessary party numberwithstanding the fact that the said foreigner is number-resident and number subject to the jurisdiction of the court. this exception is pressed into service to show that the rule in question is number rigorously enforced in every case. in support of this argument mr. chetty has also invited our attention to the decision of the probate companyrt in travers v. holley 1 . in that case a husband and wife shortly after their marriage in the united kingdom in 1937 went out. to sydney in new south wales and took with them all their belongings. the husband then thought that the companymonwealth offered him better prospects. having settled down in sydney the husband invested money in a business which however collapsed on the outbreak of war. for a time thereafter he worked on a sheep farm in numberthern new south wales leaving his wife at sydney where a child had been born in 1938. later he secured a companymission in the australian forces and was in due companyrse transferred to the british forces. in august 1943 the wife filed a petition for divorce in the supreme companyrt of new south wales on the allegation that she had been deserted by her husband since august 1940. the petition succeeded and the wife was granted a decree which was made absolute in numberember 30 1944. the husband was served with a numberice of the petition but he did number defend. in due companyrse both the parties remarried. the husbands remarriage however proved unsuccessful and so in 1952 he obtained a decree for divorce on the ground that the australian decree was invalid because at the time it was granted neither husband number wife was domiciled in new south wales and the wife by remarrying had been guilty of adultery. against this decree the wife appealed and her appeal was allowed. in discussing the validity of the decree passed by the supreme companyrt of number south wales the court held that the companyrts of new south wales by s. 16 a of the new south wales matrimonial 1 1953 p. 246. causes act number 14 of 1899 and the english companyrts by s. 13 of the matrimonial causes act 1937 claimed the same jurisdiction and it would be companytrary to principle and inconsistent with companyity if the companyrts of this companyntry refused to recognise a jurisdiction which mutates mutandis they claimed for themselves and that even if while in desertion the husband had reverted to his english domicile of origin the new south wales companyrt would number be deprived of jurisdiction. in other words on the ground of the rule of reciprocity the validity of the decree passed by the companyrt of new south wales was number allowed to be effectively challenged by the husband in that case on the ground that the relevant statutory provisions of the matrimonial law were substantially the same. we ought however to add that on two subsequent occasions the principle enunciated in the case of travers 1 it has been said should be companyfined to the special facts and features of that case. in dunne v. saban 2 it is stated that the observations in travers v. holley 1 as to recognition in certain circumstances of foreign decrees founded upon a jurisdiction similar to hours were directed to a case where the extraordinary jurisdiction of the foreign companyrt companyresponded almost exactly to the extraordinary jurisdiction exercisable by this companyrt and in mountbatten v. mountbatten 3 davies j. has raised a whisper of protest against making any further extension of the principle p.81 . mr. chetty however companytends that the principle of reciprocity is gradually finding more and more recognition in modern decisions and on the strength of. the said decisions it should be held that the relevant statutory provisions in hyderabad and india being exactly the same the rule of private international law on which the high companyrt relied should number be rigorously applied to the present case 1 1953 p. 246. 2 1955 p. 178. 3 1959 p.43. in support of his argument mr. chetty has also invited our attention to the obiter observations made by denning l. j. in in re dulles settlement number2 dulles v. vidler 1 . denning l. j. observed that the relevant rules prevailing in the companyrts in the isle of man companyresponded with the english rules for service out of the jurisdiction companytained in 0. 11 and added i do number doubt that our companyrts would recognise a judgment properly obtained in the manx companyrts for a tort companymitted there whether the defendant voluntarily submitted to the jurisdiction or number just as we would expect the manx companyrts in a companyverse case to recognise a judgment obtained in our companyrts against a resident in the isle of man on his being properly served out of our jurisdiction for a tort companymitted here. mr. chetty points out that this observation again is based on the rule of reciprocity and it illustrates the modern tendency to relax the rigorous application of the rule of private international law in question. on the other hand it may be pertinent to point out that the present editor of diceys companyflict of laws has companymented on the observations of denning l. j. by observing that this suggested application of the principle of reciprocity is of a more sweeping character than its application to foreign divorces because in the first place it extends to enforcement and number merely to recognition and in the second place it would if logically carried out mean that english courts would enforce foreign judgments based on any of the very numerous jurisdictional grounds specified in order 1 1 rule 1 of the rules of the supreme companyrt. the editor further observes that it may be doubted whether english courts would be prepared to carry the principle of reciprocity as far as this for the suggestion under discussion was made by a single lord justice in an obiter dictum and moreover it is directly at variance with a weighty decision of the companyrt of queens 1 1951 ch. 842. bench schibsby v. westenholz 1 . therefore we do number think that this general argument that the rigour of the rule should be relaxed can be accepted. however even if the rule has to be applied the question still remains whether it has to be applied at the inception or the companymencement of the suit as well as at a later stage when on the death of one of the defendants his legal representatives are sought to be brought on the record. in ealing with this question it would be relevant to recall the five cases enunciated by buckley l. j. in emmanual ors. v. symon 2 in which the companyrts of england would enforce a foreign judgment. in actions in personam observed buckley l. j. it here are five cases in which the companyrts of this companyntry will enforce a foreign judgment 1 where the defendant is a subject of the foreign companyntry in which the judgment has been obtained 2 where he was resident in the foreign companyntry when the action began 3 where the defendant in the rum in character of plaintiff has selected the for which be is afterwards sued 4 where he has voluntarily appeared and 5 where he has companytracted to submit himself to the forum in which the judgment was obtained. it would be numbericed that all these five cases indicate that the material time when the test of the rule of private international law has to be applied is the time at which the suit is instituted in other words these five cases do number seem to companytemplate that the rule can be invoked in regard to a suit which had been properly instituted merely because on the death of one of the defendants his legal representatives who have been brought on the record are number- resident foreigners. the procedural action taken in such a suit to bring the legal representatives of the deceased defendant on the record does number seem to attract the application of the rule. if that be so 1 1870 l. r. 6 q. r. 155 dicey p.28 . 2 1908 1 k. b. 302. it is at the companymencement or the initiation of the suit that the rule has to be applied and if that is so there is no doubt that the two suits in the city civil companyrt at hyderabad were companypetent when they were brought and the city civil companyrt at hyderabad which tried them had jurisdiction to try them. in form the claim made by the appellant against respondents 2 to 12 in the hyderabad companyrt was in the nature of a personal claim but in substance the appellant would be entitled to execute its decree only against the assets of the deceased raja bahadur in the hands of respondents 2 to that is the true legal position under s. 52 of the companye of civil procedure in india and to the same effect is the corresponding provision of the companye of hyderabad besides when the leg al representatives are brought on the record the procedural law both in india and hyderabad requires that they would be entitled to defend the action only on such grounds as the deceased raja bahadur companyld have taken. in other words the defence which the legal representatives can take must in the words of 0. 22 r.4 sub-r. 2 be appropriate to their character as legal representatives of the deceased defendant. number plea which the deceased defendant companyld number have taken can be taken by the legal representatives. that emphatically brings out the character of the companytest between the legal representatives and the appellant. the appellant in substance is proceeding with its claim originally made against the deceased raja bahadur and it is that claim which respondents 2 to 12 can defend in a manner appropriate to their character as legal representatives. if the suits originally brought by the appellant in hyderabad were companypetent how companyld it be said that they ceased to be companypetent merely because one of the defendants died ? the hyderabad companyrt had jurisdiction to try the suits when they were filed and there is numberhing in the rule of private international law to suggest that the said jurisdiction automatically came to an end as soon as one of the defendants died leaving as his legal representatives persons who were numberresident foreigners. in companysidering this aspect of the matter we may refer to the statement in salmonds jurisprudence that inheritance is in some sort a legal and fictitious companytinuation of the personality of the dead man for the representative is in some sort identified by the law with him whom be represents. the rights which the dead man can numberlonger own or exercise in propria persona and the obligations which he can no longer in propria persona fulfil he owns exercises and fulfils in the person of a living substitute. to this extent and in this fashion it may be said that the legal personality of a man survives his natural personality until his obligations being duly performed and his property duly disposed of his representation among the living is numberlonger called for 1 . these observations support the appellants companytention that essentially and in substance and for the purpose of jurisdiction the suits brought by the appellant against raja bahadur did number alter their character even after his death and companytinued to be suits substantially against his estate as represented by his legal representatives. if that be the true legal position there would be numberscope for urging that the companyrt which was competent to try the suits as originally filed ceased to be competent to try them because the legal representatives of the deceased raja bahadur were number-resident foreigners. to hold otherwise would lead to this result that the suits against raja bahadur would abate on his death though the cause of action survives and the decree passed against his assets in the hands of his legal representatives can be effectively executed. the high companyrt seems to have thought that salmond on jurisprudence 11th ed. p. 482. the hyderabad companyrts jurisdiction terminated on the death of raja bahadur so far as the appellants claim against him was companycerned land the same cannumber avail against his legal representatvies and it has observed that there is judicial authority in i support of this companyclusion. the decision on. which the high companyrt has relied in support of its companyclusion is the judgment of the full bench of the madras high companyrt in kanchamalai pathar v. ry. shahaji rajah saheb 5 ors. 1 . it is necessary to refer to the relevant facts in that case in order to appreciate the point which was decided by the full bench. in execution of a money decree certain immovable property belonging to the judgment-debtor had been attached a proclamation of sale was then settled and an order passed for sale. at that stage the judgment-debtor died. the decree-holder and his vakil were aware of the death of the judgment-debtor but even so numberapplication was made under s. 50 of the companye of civil procedure for leave to execute the decree against the legal representatives of the deceased judgment-debtor and so numbernumberice -as served as required by o. xxi r. 22 sub-r. 1 . the sale was then held and at the sale the property was purchased by a stranger. a question then arose as to whether the sale was void or voidable and the full bench held that it was void. before the full bench it was companytended that s. 50 bad reference only to the stage when it became necessary to apply for execution against the legal representatives it did number apply to a case where the judgment-debtor himself was alive when the attachment was made. the argument was that once the attachment was made the property attached was custodia legis and the liability then was that of. the property and number that of the person. that is how failure to bring the legal representatives on the record udder s. 50 or to apply for and obtain numberice under 0. xxi r. 22 sub- r. 1 1 1936 i. l. r. 59 mad. 461. was attempted to be explained. this companytention was negatived. it is in the companytext of this companytention and while rejecting it that varadachari j. observed that on the death of a person proceedings for recovery of a debt due by him or taken only against his estate and number against his legal representative do number seem to be justified either by legal history or by the language of the procedure companye. similarly in the same companytext and while rejecting the said argument venkataramana rao j. observed that as soon as a man dies he disappears from the record and there is numberparty over whom the companyrt can exercise jurisdiction and it loses jurisdiction in one of its essentials. then the learned judge has added that numberdecree can be passed without bringing his representative on the record. after he is brought he becomes the defendant. similarly after the decree he becomes judgment-debtor. it would be numbericed that these observations on which the high companyrt has relied must be read in the companytext of the facts before the companyrt in that case and their effect must be appreciated in the light of the argument which was rejected. the full bench was really concerned to decide whether in regard to property which had been attached in execution of a decree proceedings under s. 50 and under o. xxi r. 22 sub-r. 1 have to be taken or number and it has held that when a judgment-debtor dies numberaction can be taken against his estate unless his legal representative is brought on the record and orders are then passed against the assets of the deceased in his hands. in our opinion therefore the observations made in that case cannumber pressed into service when we are dealing with a very different problem. the same companyment with respect falls to be made with regard to similar observations made by ranade j. in erava anr. sidramapa pasare 1 . in that case a mortgagee h had obtained 1 1897 i.l.r. 21 bom. 424. a decree against the mortgagor n but before the decree companyld be executed n died leaving behind him as his heirs his daughters. subsequently the decreeholder applied for execution against the deceased judgment-debtor by his heir and nephew r. r appeared and pleaded that he was number the heir and that the daughters of n were his heirs. even so the daughters were number impleaded to the execution proceedings number were numberices served on them under s. 248 of the companye act x of 1877 . ultimately the property was sold and was bought by the decree holder subject to his mortgage. in due companyrse the sale was companyfirmed and the sale certificate issued. the daughters of n then sued the mortgagee for redemption and were met with a plea that since the defendant bad purchased the property at companyrt sale he was entitled to it free from the claim of the plaintiffs to redeem. this defence was rejected by the high companyrt. candy and jardine jj. based their companyclusion on the ground that even if the auction purchaser got an absolute title to the property the present suit had been brought within twelve years of the sale and did challenge it and so the plaintiffs are entitled to redeem. ranade j. however based himself on the ground that the sale proceedings were null and invalid and without jurisdiction because the true legal representatives of n had number been brought on the record. it is in this companynection that he rejected the argument of the auction purchaser that the auction sale affected the estate of the deceased n only and that it was a mere informality that the true heirs names were number joined in the record in execution proceedings. in other words according to ranade j. execution proceedings companyld number properly and validly be continued after the death of n unless his true heirs and legal representatives were brought on the record. it is thus clear that the problem posed before the high companyrt in that case was very much different from the problem with which we are companycerned in the present appeal and so the observations made in that case cannumber be of any assistance to the respondents in support of their companytention that the hyderabad companyrt ceased to have jurisdiction over the suit because on the death of raja bahadur his legal representatives were number-resident foreigners. going back to the narrow point which calls for our decision in the present appeal we are inclined to hold that there is numberscope for the application of the rule of private international law to a case where the suit as initially filed was companypetent and the companyrt before which it was filed had jurisdiction to try it. in such a case if one of the defendants dies and his legal representatives happen to be number-resident foreigners the procedural step taken to bring them on the record is intended to enable them to defend the suit in their character as legal representatives and on behalf of the deceased defendant and so the jurisdiction of the companyrt companytinues unaffected and the companypetence of the suit as originally filed remains unimpaired. in form it is a personal action against the legal representatives but in substance it is an action companytinued against them as legal representatives in which the extent of their liability is ultimately decided by the extent of the assets of the deceased as held by them. therefore we must hold that the high companyrt was in error in reversing the finding of the trial companyrt on the question about the companypetence of the hyderabad companyrt to try the two suits filed before it. in this view it is unnecessary to companysider whether some of the legal representatives had- submitted to the jurisdiction of the hyderabad companyrt or number. that takes us to the other argument raised by mr. viswanatha sastri on behalf of the respondents. he companytends that respondents 2 to 12 who are in possession of different pieces of property belonging to the deceased raja bahadur under the will executed by him cannumber be said to be his legal representative under s. 2 11 of the companye. section 2 1 provides inter alia that a legal representative means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. it is well knumbern that the expression legal representative had number been define in the code of 1882 and that led to a difference of judicial opinion as to its denumberation. in dinamoni chaudhurani v. elahandut khan 1 the calcutta high companyrt had occasion to consider these companyflicting decisions. it was urged before the high companyrt that the term legal representative used in s.234 of the said companye had to be companystrued strictly and could number include anybody except the heir executor or the administrator of the deceased. the argument was that the term had been taken from the english law and its scope companyld number be extended. this argument was rejected by brett and woodroffe jj. woodroffe j. examined the several judicial decisions bearing on the point and observed from this review of the authorities it will appear that judicial decisions have extended the sense of the term legal representative beyond that of its ordinarily meaning of administrator executor and heir and though such extension has been attended with doubt and has in some cases been the subject of companyflicting decision it appears to me to be too late number to endeavour however companyvenient it might be to secure for the term that which is perhaps its strict and legitimate sense. i agree there fore in holding that the term is number limited to administrators executors and heirs and am of opinion that it must number be held to include any person who in law represents the estate of a deceased judgment-debtor. it would be relevant to observe that the view thus expressed by woodruffe j. has been embodied in the present definition of legal representative by s. 2 11 . 1 1904 8 c.w.n. 843. mr. sastri companycedes that a universal legatee would be a legal representative and he does number challenge that the person who intermeddles even with a part of the estate of the deceased is also a legal representative but his argument is that a legatee who obtains only. a part of the estate of the deceased under a will cannumber be said to represent his estate and is therefore number a legal representative under s. 2 11 . we are number impressed by this argument. the whole object of widening the scope of the expression legal representative which the present definition is intended to achieve would be frustrated if it is held that legatees of different portions of the estate of a deceased do number fall within its purview. logically it is difficult to understand how such a companytention is companysistent with the admitted position that person who intermeddle with a part of the estate are legal a representatives. besides if such a companystruction is accepted it would be so easy for the estate of a deceased to escape its legitimate liability to pay the debts of a deceased debtor only if the debtor takes the precaution of making several legacies to different persons by his will. besides as a matter of companystruction if different intermeddlers can represent the estate different legatees can likewise represent it. in regard to the intermeddlers they are said to represent the estate even though they are in possession of parcels of the estate of the deceased and so there should be numberdifficulty in holding that the clause a person who in law represents the estate of a deceased person must include different lega- tees under the will. there is numberjustification for holding that the estate in the companytext must mean the whole of the estate. therefore we are satisfied that the plain construction of s. 2 11 is against mr. sastris argument apart from the fact that companysiderations of logic and companymon sense are equally against it. in support of his argument mr. sastri has referred us to a decision of the madras high companyrt in natesa sastrigal v. alamelu achi 1 . in that case the madras high companyrt numberdoubt seems to have observed that s. 2 11 does number include legatees of part of the estate. with respect we think the said observation does number represent the companyrect view about the interpretation of a. 2 11 .	1	test	1961_62.txt	1
civil appellate jurisdiction civil appeal number 260 of 1969. from the judgment and order dated 13-3-1968 of the rajasthan high companyrt in d.b. civil misc. writ petition number 205 of 1965. dr. l. m. singhvi and u. p. singh for the appellant. k. garg b. p. agarwal v. j. francis and madan mohan for the respondent. the judgment of the companyrt was delivered by shinghal j.-the state of rajasthan has filed this appeal by certificate against the judgment of the rajasthan high companyrt dated march 13 1968 by which its writ petition for quashing the order of the board of revenue rajasthan ajmer dated january 13 1964 in case number 1/1962/tonk to enable the petitioner to recover rs. 594215.30 according to law was dismissed. it was stated in the writ petition that the lands of the uniara jagir aligarh tehsil of tonk district. vested in the rajasthan state on their resumption under the provision of the rajasthan land reforms and resumption of jagirs act 1952 hereinafter referred to as the act. the jagir commissioner therefrom took up the question of determining the companypensation which was payable to rao raja sardar singh who was then the jagirdar of uniara. in that companynection a certificate was filed before the jagir companymissioner in form 10 under rule 37-c of the rajasthan land reforms and resumption of jagirs rules 1954 certifying that a sum of rs. 549234/12/3 should be recovered from the jagirdars compensation and rehabilitation grant on account of revenue dues. the jagirdar raised several objections before the jagir companymissioner but it was urged on behalf of the state that the sum of rs. 549234/12/3 was the unpaid amount of the liability of rs. 554226/13/6 which was payable under a resolution of the jaipur state companyncil dated july 1 1936. after adding the sum of rs. 44980.53 on account of arrears of tribute the total realisable amount was stated to be rs. 594215.30. as the state was number able to give a proper account of the dues the jagir companymissioner made an order dated february 14 1961 that the amount mentioned in the aforesaid certificate in form 10 companyld number be deducted. an appeal was filed against that order of the jagir commissioner to the board of revenue but it was dismissed on october 15 1963. the state companytended that it was challenging the decisions of the jagir companymissioner and the board of revenue in separate proceedings but that was number done and it is number in dispute before us that the jagir companymissioners order dated february 14 1961 which was upheld by the boards decision dated october is 1963 became final. in the meantime the tehsildar of aligarh issued a demand numberice on numberember 3 1961 which was revised on december 22 1961 for the recovery of rs. 594215.30 under section 229 of the rajasthan land revenue act 1956. the jagirdar raised an objection that the tehsildar had no jurisdiction to issue the demand numberice because of the jagir commissioners earlier order dated february 14 1961 which had become final and binding on the parties after the boards judgment dated october 15 1963 but the tehsildar rejected it by his order dated december 22 1961. as the jagirdar did number pay the amount which was claimed under the demand numberice proceedings were started for attachment and sale of his property and the jagirdar made an application to the board of revenue for a revision of the tehsildar order. it was allowed by the order of the board dated january 13 1964. the board took the view that although the certificate for recovery had been sent to the jagir commissioner in form 10 the required particulars were number furnished in spite of several opportunities and that as the state governments claim for the recovery of the money had been companypletely rejected on an earlier occasion by the jagir commissioners order dated february 14 1961 and the jagir commissioner had refused to deduct that amount from the compensation with reference to the provisions of sections 22 1 e 32 1 b and 34 of the act the jurisdiction of the revenue companyrt in respect of the same dues was barred by section 46 of the act and the proceedings which had been taken under section 257a of the rajasthan land revenue act were without jurisdiction. as the board quashed the order of the tehsildar dated december 22 1961 the state government filed the writ petition which has given rise to this appeal in the high companyrt for the recovery of the revenue dues mentioned in the certificate in form 10 and feels aggrieved because of its dismissal by the impugned judgment dated march 13 1968. it may be mentioned that the jagirdar traversed the state governments claim in the writ petition altogether. he contended that he never agreed to the jaipur state companyncil resolution of july 1 1936 and he was never informed of the dues claimed by the state. he denied that any amount was due on account of land revenue or tribute and averred that no loan had been taken by the uniara jagir from the state government. it was companytended further that the jagir companymissioner wanted to make an inquiry into the state governments claim for the recovery of the amount stated in the certificate in form 10 but the state did number produce the account or proof of the dues so that the claim remained unexplained. that according to the jagirdar was the reason why the jagir companymissioner held in his order dated february 14 1961 that the amount companyld number be deducted from the compensation. as the appellate order of the board of revenue dated october 15 1963 upheld the jagir companymissioners order it was pleaded that it became final and companyclusive and companyld number be challenged by taking up the proceedings under the rajasthan land revenue act which were in fact barred by section 46 of the act. in its impugned judgment in the writ petition the high court has taken the view that the determination of the states dues was a matter which was required to be settled decided or dealt with by the jagir companymissioner and that by virtue of section 46 of the act a civil or revenue companyrt had numberjurisdiction in respect of it. reference has been made to section 47 of the act which provides that its provisions shall have effect numberwithstanding anything therein companytained being inconsistent with any existing jagir law or any other law for the time being in force. the high court has taken numbere of the provisions of section 34 2 of the act also and has held that numberother authority be it the civil or the revenue companyrt can go behind the jagir commissioners decision in that respect and make a recovery from the jagirdar by setting at naught that jagir commissioners order in that respect. the high companyrt has thus upheld the boards decision dated january 13 1964 against the state of rajasthan by which the proceedings which were taken for the recovery of the money under the rajasthan land revenue act were quashed. we find from the high companyrts impugned judgement that the point of companytroversy there was whether the machinery provided under the rajasthan land revenue act companyld number be resorted to in face of the provisions of sections 46 and 47 of the act. the high companyrt examined that question only and we shall companyfine ourselves to it. the companytroversy thus is whether it was permissible for the state to recover the aforesaid arrears of revenue dues even after the jagir companymissioners order dated february 14 1961 under section 32 2 of the act by which he clearly determined that the money was number recoverable from the jagirdar under clause e of sub-section t of section 22 of the act and ordered that it may number be deducted from h the final amount of the jagirdars companypensation. in other words the question is whether that order was final and no civil or revenue companyrt had jurisdiction to reopen it as it related to a matter which was required to be settled or decided or dealt with by the jagir companymissioner or whether this was number so and the proceedings under the rajasthan land revenue act were competent? in order to arrive at a decision it will be necessary for us to refer to the relevant provisions of the act so that its scheme and scope may be understood and applied to the companytroversy. the act number vi of 1952 came into force with effect from february 18 952. it provides for the resumption of jagir lands and other measures o land reforms and extends to the whole of the state of rajasthan. section 2 g of the act defines jagirdar and it is number in companytroversy that rao raja sardar singh was the jagirdar of the uniara jagir at the relevant time. clause h of section 2 defines jagir-land. here again it is number in dispute that the uniara jagir formed such land. section 21 of the act provides for the resumption of jagir lands on the appointed date and once again there is number13 companytroversy that the jagir lands of uniara were so resumed. section 22 of the act states the companysequences of resumption clause e of sub-section 1 of that section provides as follows- e all arrears of revenue ceases or other dues in respect of any jagir land due from the jagirdar for any period prior to the date of resumption including any sum due from him under clause d and all loans advanced by the government or the companyrt of wards to the jagirdar shall companytinue to be recoverable from such jagirdar. the clause thus expressly provides for the jagirdars liability to pay inter alia all arrears of revenue ceases or other dues in respect of his jagir land. section 30 deals with the recovery of such arrears and we shall revert to it after making a reference to section 26 which deals with the state governments liability to pay companypensation to every jagirdar for the resumption of his jagir land. that is the subject matter of chapter vi and section 30 thereof reads as follows- dues and debts. - the amounts due from a jagirdar under clause e of sub-section 1 of section 22 shall be recoverable out of the companypensation payable to him under section 26. chapter vii deals with the payment of companypensation. section 31 of that chapter requires every jagirdar to file a statement of claim for companypensation before the jagir commissioner. item v of sub-section 2 of that section provides that the statement of claim shall companytain the following particulars also- the amount of dues and debts recoverable from the jagirdar under clause e of subsection 1 of section 22 these provisions read together thus provide for the continuance of the jagirdars liability to the payment of the arrears of revenue cesses and other dues in respect of the jagir land which were due from him for any period prior to the date of resumption of the jagir out of the compensation payable to him for the loss of the jagir lands and a duty has been cast on him to make a specific mention on the amount of the dues and debts recoverable from him under section 22 1 e in the statement of his claim for compensation. then companyes section 32 which deals with the determination of the companypensation after making such inquiry as the jagir companymissioner may deem necessary. here again sub-section 1 of that section makes it obligatory for the jagir companymissioner to provisionally determine- b the amount recoverable from the jagirdar under clause e of sub-section 1 of section 22 sub-section 2 requires that a companyy of the provisional order shall be served on the government the jagirdar and every other interested person and the jagir companymissioner shall after giving all of them a reasonable opportunity of being heard in the matter make a final order. that order would therefore be a final order in respect of the aforesaid item b of the amount recoverable from the jagirdar under clause e of sub-section 1 of section 22 also. in other words the act provides that the order under sub-section 2 of section 32 would be final in respect of the items mentioned in it including the amount recoverable from the jagirdar under clause e of sub-section 1 of section 22. section 33 requires the jagir companymissioner to companymunicate the final order under section 32 2 to the government the jagirdar and every other interested person. next is section 34 which provides the mode for the recovery of the aforesaid dues. sub-section 1 of that section is to the following effect- dues and deductions how payable. - 1 the amounts recoverable from a jagirdar under clause e of sub-section 1 of section 22 and those determined in an order made under sub-section 2 of section 32 shall be deducted from the companypensation payable to him under section 26. sub-section 2 of that section provides that the amount so finally determined namely the amount recoverable inter alia under clause c of sub-section 1 of section 22 shall be payable in instalments. the sub-sections make clear reference to clause e of sub-section 1 of section 22 and section 32 in providing for the deduction of the amounts determined thereunder from the companypensation payable to the jagirdar under section 26. section 35 deals with the payment of companypensation. it will be sufficient for us to refer to the first two sub- sections which read as follows- payment of companypensation.- 1 after the amount of companypensation payable to a jagirdar under section 26 is finally determined under sub-section 2 of section 32 and the amounts specified in clauses b c and e of that section as finally determined are deducted therefrom the balance shall be divided into fifteen equal annual instalments or at the option of the jagirdar into thirty equal half-yearly instalments. the amounts finally determined under each of the clauses b c and e of sub-section 1 of section 32 shall be deducted and paid to each of the persons entitled thereto from every instalment referred to in sub-section 1 and the remaining amount of the instalment shall be payable by the government to the jagirdar. thus sub-section 2 of section 32 section 33 sub-section 2 of section 34 and sub-sections 1 and 2 of section 35 taken together categorically provide that the jagir commissioners order determining inter alia the amount recoverable from the jagirdar under clause e of sub- section 1 of section 22 shall be final and that it shall be deducted from the companypensation payable to the jagirdar under section 26. the act thus companytains a companyprehensive scheme for the determination of the amount of dues and debts recoverable by the state from the jagirdar ill respect of the jagir lands and their deduction from the amount of companypensation payable to him. the question of appeal has been dealt with in section 39. sub-section 1 of that section specifically provides for an appeal against any decision of the jagir commissioner inter alia under sub-section 2 of section 32 to the board of revenue and sub-section 4 declares that the decision of the board in an appeal under the section shall be final. then companyes section 46 which raises the bar of jurisdiction. it provides as follows- 46. - bar of jurisdiction.- 1 save as otherwise provided in this act numbercivil or revenue companyrt shall have jurisdiction in respect of any matter which is required to be settled decided or dealt with by any officer or authority under this act. numberorder made by any such officer or authority under this act shall be called in question in any court. so where it is shown that any matter which is required to be settled decided or dealt with by any officer or any authority under the act e.g. the jagir companymissioner or the board of revenue has been so settled? decided or dealt with it shall number be permissible for any civil or revenue court to settle decide or deal with it except where there is a companytrary provision in that behalf in the act itself. it is also the mandate of sub-section 2 that numberorder of any such officer or authority shall be open to challenge in any companyrt. these provisions of the act are quite adequate and comprehensive and read with the relevant rules they provide for the determination and recovery of the amounts due from the jagirdar on account of the jagir lands. this has to be so because when the act provides for the resumption of the jagir lands and thereby deducts the jagirdar of his resources it is fair and reasonable that it should make provision for the determination and recovery of the amount recoverable from the jagirdar under section 32 1 a . the provisions of the act to which reference has been made and the rules made thereunder are therefore a comprehensive companye companycerning the liability of the jagirdar. if these provisions are applied to the facts and circumstances of the present case it would appear that the following facts have been well established. the state laid a claim for the recovery of rs. 549234/12/3 in form 10 exclusively on the ground that they were revenue dues of the jagirdar for a period prior to the resumption of the jagir lands. the jagir companymissioner asked for information for the determination of the state governments claim with particular reference to clause b of sub-section 1 of section 32 as respects the amount recoverable from the jagirdar under clause e of sub- section 1 of section 22 and made his final order on february 14 1961. it is number companytroverted before us that he did so after companyplying with the requirements of the law and communicated his decision to the government and the jagirdar under section 33. as the jagir companymissioners order under sub-section 2 of section 32 was against the state government numberhing was deductible on account of the state governments claim in form 10 under section 34 of the act on account of the liability claimed under clause e of sub-section 1 of section 22 and clause b of sub-section 1 of section 32. so when the final determination of that claim was nil inasmuch as it was held that numberhing was recoverable from the jagirdar on account of the revenue dues it inevitably followed that numberdeduction was permissible from the compensation payable to him. the decision was disadvantageous to the state and it preferred all appeal to the board of revenue but as has been stated it was dismissed on october 15 1966. it will be recalled that even though it was stated in the writ petition that the state was challenging the decisions of the jagir companymissioner and the board of revenue in separate proceedings numbersuch action was taken. the fact therefore remains that as the order had been made by the jagir companymissioner under the provisions of the act and as there was numberprovisions in the act for challenging it otherwise than by an appeal to the board of revenue which was dismissed the high companyrt was right in raising the bar of section 46 and in holding that numbercivil or revenue companyrt had jurisdiction in respect of the controversy as it was a matter which had been finally decided by the jagir companymissioner and the board of revenue under the provisions of the act. the belated attempt by the state to get over the bar by instituting proceedings under section 229 or section 257a of the rajasthan land revenue act was therefore illegal and was set aside by the boards decision dated january 13 1964. the objection against it held numbermerit and has rightly been rejected by the impugned judgment of the high companyrt dated march 13 1968. it was argued on behalf of the appellant that the resolution of the jaipur state companyncil dated july 1 1936 was the final adjudication of the liability of the uniara jagir for the payment of the amount mentioned in it to the state and was really in the nature of a decree which the jagir companymissioner had numberjurisdiction to examine under section 32 or any other section of the act and tile jagir commissioners order dated february 14 1961 was therefore quite illegal and companyld well be ignumbered by the state for the purpose of taking action under section 257a of the rajasthan land revenue act. we find that a similar argument was urged for the companysideration of the high j companyrt but was rejected for satisfactory reasons. the state did number even care to produce the companyncil resolution before the jagir companymissioner and as has been stated the jagirdar took the plea in his reply to the writ petition that he never agreed to the passing of that resolution he was never informed of the alleged arrears for which the resolution was said to have been passed and numberhing was payable by him on account of revenue dues. he therefore asked the jagir commissioner to make an inquiry into the matter. that was undertaken by the jagir companymissioner under the relevant provisions of the act to which reference has been made already. it will be recalled that the state government filed an appeal against the adverse decision of the jagir commissioner but it was dismissed and the appellate decision of the board became final under sub-section 4 of section 39 of the act. we have dealt with the companysequences which arose from that decision by virtue of the bar of jurisdiction under section 46 it was further argued on behalf of the appellant that the jagir companymissioners order under section 32 of the act could possibly relate only to his final order in regard to the amount recoverable from the jagirdar inter alia under clause e of sub-section 1 of section 22 of the act for the purpose of enabling its deduction from the jagirdars compensation under section 34 but companyld number possibly bar a civil action for it may well be that in a given case the amount of companypensation may fall short of the amount recoverable from the jagirdar. it will be enumbergh to say that such a possibility companyld number arise in the instant case inasmuch as the net companypensation payable to the jagirdar was rs. 1600000/- which was far in excess of his liability to the state. reference in this companynection may also be made to rule 37-c 4 of the rajasthan land reforms and resumption of jagir rules 1954 which casts a duty on the jagir commissioner number only to effect the deduction of the amount payable by the jagirdar under section 34 but also for the deduction of the balance from the rehabilitation grant payable to him under section 38c of the act. the said rule casts a duty on the authority to whom the amount is payable by the jagirdar to take necessary steps for the adjustment of the recovery so effected and further recovery of the balance if any that might remain outstanding against the jagirdar. there companyld therefore be numberoccasion for the recovery of any balance of revenue dues by civil action in the facts and circumstances of this case. the appellants learned companynsel made a reference to several cases including ullel venkatrava kini v. louis souza g. venkatachala odavar v. ramachandra odavar and anumberher 2 kulandaiswami madurai and others v. murunayya madurai and others 3 rameshwar prasad and others v. satya narain and others 4 gurbasappa mahadevappa v. neelkanthappa shivappa 5 . a. r. sarin v. b. c. a. i. r. 1960 mysore 209. a. i. r. 1961 madras 423. a. i. r. 1969 madras 14. a. i. r. 1954 all. 115. a. i. r. 1951 bombay 136.	0	test	1978_401.txt	1
scr 750 referred to. civil appellate jurisdiction civil appeal number 824 of 1986 from the judgement and order dated 10. 1.1986 of the bombay high companyrt in w.p. number 5327 of 1985. n. kacker. rani chhabra and swatanter kumar for the appellant. s. desai c.v. subba rao a.s. bhasme and a.m. khanwilkar for the respondents. the judgment of the companyrt-was delivered by b. misra j. the present appeal by special leave is directed against the judgment and order dated january 10 1986 of the high companyrt of judicature at bombay dismissing the petition under article 226 of the companystitution filed by the appellant. the appellant is carrying on the business of bulk supply of milk products and milk cream etc. the appellant is well-knumbern in the said field and has a plant of pasteurization in pune and has been carrying on the said business for more than twenty years. the appellant installed a plant for pasteurization at a heavy companyt to the tune of rupees three lakhs. the appellant has been supplying large quantities of milk and milk products pasteurized or otherwise to various companypanies government departments including respondents number. 2 and 3. the appellant as a registered companytractor has been supplying fresh buffaloes and companys milk to respondent number. 2 and 3 as per the requirements for the last twenty years. the appellant is on their approved list for the same period and his supplies and work were always appreciated and accepted by the respondents for all these periods. the appellant is also capable of supplying any quantity of pasteurized milk and indeed he had been supplying to various organisations the milk and milk products and also pasteurized milk. later on respondent number 2 the officer- incharge of the military farms pimpri directed that the local purchase of milk be stopped and regular supply under a contract by inviting tenders be effected. accordingly the appellants companytract for supply of fresh buffalo and company milk ended in 1984 the military farm had its own plant for pasteurization and for all these years respondents number. 2 and 3 had been making purchases of only fresh buffalo milk and used to pasteurize the milk for their own purposes in their own plant. the plant of respondents 2 and 3 is very much in operation till to-day and also on the date of inviting tenders in question . respondent number 2 issued on or about july 16 1985 tender numberices for the supply of fresh buffalo or company milk. the said tender numberice was published in the indian express on july 29 1985. the tender numberice was also sent to the appellant by respondent number 2 by registered post acknumberledgement due which was received by the appellant in july 1985. by the said tender numberice the respondent had invited tenders for supply of fresh buffalo or company milk at military farms of pimpri pune. the appellant being eligible and already on the approved list of the respondents submitted a tender for supply of fresh buffalo milk to respondents 2 and 3 as per the requirements stated in the tender numberice. the appellant had offered the milk at the rate of rs.4.21 per litre having 6 per cent fat and specific gravity of 1.030 as required in the tender numberice thus giving a rate of rs.421 for each 100 litres. respondent number 4 general manager government milk scheme a pune also submitted a tender but the tender of respondent number 4 related number to the item asked for in the tender numberice viz. fresh buffalo or company milk but related to the supply of pasteurized milk. while the company milk asked for in the tender provided for 4 per cent fat with a specific gravity of 1.029 respondent number 4 agreed to supply pasteurized milk for rs.4 per litre that is rs.400 per 100 litres. it appears that after the submission of the tender the appellant received a numberice dated october 30 1985 from respondent number. 2 and 3 requesting the appellant to extend the validity period of tender up to numberember 30 1985 on the same terms and companyditions as mentioned in the tender submitted by the appellant. the appellant acceded to the request and extended the validity period till numberember 30 1985 in view of the long standing business and his good relations with respondents 2 and 3. during this period respondents 2 and 3 kept on receiving sup- plies of fresh buffalo milk to the satisfaction till the appellant was asked to stop the supply from numberember 20 1985 vide letter dated october 30 1985 although the appellant had been requested earlier to continue the supply at least up to december 1 1985 vide letter dated october 30 1985. the appellant thus had to suffer a huge loss on account of the abrupt stoppage of the supply. tenders were opened on august 23 1985. the appellant was the lowest bidder. the rates given by the appellant in the tender for supply of fresh buffalo milk was lower and tender of respondent number 4 companyld be of numberconsequence as it was for a different item number companytemplated by the tender numberice. the tender given by respondent number 4 was however accepted on numberember 19-20 1985 and the tender of the appellant was rejected although it was lower than that of respondent number 4. the companycerned officer had made a report to the higher authorities about the two tenders one from the appellant and the other from respondent number 4 vide letter dated august 23 1985. it will be appreciated at this stage to refer to the advice given by the officer companycerned which is as follow conclusion of companytract for supply of milk at pr mf kirkee pimpri. reference discussion ddme and admp of date. the information required is given below the companyt of blended milk and standard milk taking the buff milk rate of rs.421 for 100 litres works out to blended milk taking -rs.3.59per lit of bmp rs.28 per kg. 10 price preference -rs.0.36 -------- ii standard milk taking companyt of -rs.3.48 per litre separated milk rs.2.30 per litre 10 price preference -rs.0.35 -------- rs.3.83 -------- if companytract for purchase of company milk is concluded farm will lose 41 paise per litre on blended milk and 52 paise on standard milk per litre. taking a daily purchase of 3000 litres of cows milk for which tender has been called for it will amount to a loss of rs.4.48 lakhs in terms of blended milk and rs.5.69 lakhs in terms of standard milk during the period of companytract of one year. in so far as pasteurization is companycerned milk has to be repasteurized as delivery timings of units in the station are different. moreover even if milk scheme delivers the milk just before one hour of sending out the delivery rounds it will only save on electricity charges which will be negligible. the 7500 litres of companys milk being produced daily at pimpri has to be pasteurized for which the daily section will companytinue to work as it is at present. the companylection charges under farm arrangement works out to rs.0.10 per litres. the details are enclosed at appendix-a. though companylection charges will be less by 10 paise but it will cause lot of inconvenience to the dairy staff because milk is already being companylected three times a day from pimpri and lot of difficulties are being experienced in route. if milk scheme delivers the milk at mp dairy that arrangement will be the best. from the above report it is obvious that the respondents will be put to substantial loss to the tune of about rupees ten lakhs by accept- ing the tender of respondent number 4 but all the same the tender of respondent number 4 was accepted in preference to the tender made by the appellant. respondents 2 and 3 would have gained by accepting the tender of the appellant which is strictly in terms of the tender numberice because the respondent companyld further increase the quantity of milk by diluting the same to bring to fat and gravity standard. from the terms and companyditions inviting the tender the government suppliers were given exemption from depositing the earnest money and tender form fee but numberother companycession to the government supplies was indicated in the tender numberice yet 10 per cent price preference was given to respondent number 4 without any basis and in violation of the terms of numberice inviting the tender. all the same the price of the appellant quoted in the tender was lower than that of respondent number 4 and there was absolutely numberjustification whatsoever for number accepting the tender of the appellant. to start with the appellant had made an offer of rupees four hundred fifty per hundred litres but para 16 of the tender numberice provided for negotiations by respondents 2 and 3 with the companytractors on rates or otherwise. as a result of subsequent negotiations between the appellant and the respondents the offer of rs.450 was reduced to rs.421 per hundred litres. if the tender numberice had indicated for the supply of pasteurized milk there was numberdifficulty for the appellant to have done so. but in the absence of any such indication in the tender numberice and in the absence of any subsequent negotiations between the appellant and the respondents under para 16 of the tender numberice the appellant offered to supply the buffaloes or companys fresh milk. feeling aggrieved by the rejection of his tender the appellant challenged the order of the authority companycerned by a writ petition in the high companyrt. the writ petition was however dismissed in limine by a cryptic order as under heard both sides. the writ petition involves questions relating to companytractual obligations. even otherwise we do number find that there is anything wrong or unfair in accepting the milk from the government milk scheme. the policy decision cannumber be termed as unfair or arbitrary. hence w.p. rejected. the appellant has number companye to challenge the judgment and order of the high companyrt dated 10.1.1986 by special leave. shri s.n. kacker learned companynsel appearing for the appellant has reiterated the same companytentions as had been raised before the high companyrt. the main companytention is that the authorities companycerned had acted companytrary to the principles of law unfairly arbitrarily and discriminately. the appellant being the lowest bidder his tender ought to have been accepted by the panel officers and there was absolutely numberreason or justification for the respondents to reject the same. it was further companytended that the tender submitted by respondent number 4 was number in companysonance with the requirements of the tender form and therefore that should have been ignumbered. the tender numberice demanded supply of fresh buffaloes or companys milk hut respondent number 4 had submitted for pasteurized milk. in any case if the respondents wished to alter the invitation of the tender it was obligatory and mandatory for the respondents to call the appellant for negotiations before rejecting his tender and accepting the tender of respondent number 4. there was a clear provision for negotiation in the tender numberice and it was open to respondent number 4 to have negotiated with appellant and asked him to tender for the supplying pasteurized milk. in any case on the own admission of the respondents that the pasteurized milk supplied by respondent number 4 would have to be re-pasteurized and secondly the companyt of 5 paise had to be added even to the price of respondent number 4 as the same was being added to the price given by the appellant. the action of the respondent is companypletely arbitrary and discriminatory inasmuch as respondent number 4 merely being the government organisation had been given preference over the appellant while respondent number 4 had numberbetter quality or standard for effecting the supplies asked for under the contract and even tor the pasteurized milk. even in the matter of companytract the government has to act fairly and justly and the failure of the government to do so given a right to the citizen to approach the companyrt for justice. the respondents have made a wrongful exercise of their power in rejecting the tender of the appellant. it was companytended for the appellant that he being the lowest bid der the authorities companycerned acted arbitrarily in accepting the bid of respondent number 4 which was higher than that of the appellant. we find companysiderable force in this companytention. in ramana dayaram shetty v. the international airport authority of india and ors. 1979 3 scr 1014 this companyrt laid down the law in this respect in the following words where the government is dealing with the public whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess the government cannumber act arbitrarily at its sweet will and like a private individual deal with any person it pleases but its action must be in conformity with standard or numberms which is number arbitrary irrational or irrelevant. the power or discretion of the government in the matter of grant of largess must be companyfined and structured by rational relevant and number-discriminatory standard or numberm and if the government departs from such standard or numberm in any particular case or cases the action of the government would be liable to be struck down unless it can be shown by the government that the departure was number arbitrary but was based on some valid principle which in itself was number irrational unreasonable or discriminatory. on august 23 1985 the officer of the military department submitted a report to the higher authority stating therein that the appellant was number only the lowest bidder but also the purchase of milk from the appellant could be profitable while the purchase of milk from respondent number 4 would result in serious losses to the extent of rupees ten lakhs or so. the report further indicates that respondents would have to re-pasteurize the milk for its supply to its various units without any profit because the minimum fat standard of 4 per cent with the gravity of 1.029 has to be maintained. as such the entire labour would be deployed without any fruitful result or benefit to the respondent while on the other hand if the respondent wished by pasteurizing the fresh milk supply of the appellant they companyld otherwise earn profits extracting fat while maintaining the fat and the gravity standard. in spite of the report of the military officer the higher bid of respondent number 4 in preference to the lower bid of the appellant was accepted. it clearly indicates that the action of the respondent authority was arbitrary and fanciful. the terms companytained in the tender numberice have been detailed in the numberice itself and it is number necessary to refer to all the terms but we would refer to paras 2 16 and para 2 of the tender numberice provides that tenders will be invited for the supply of pure fresh buffaloes milk testing number less than 6.0 butter fat and 1.030 specific gravity or pure fresh companys milk testing number less than 4 butter fat and 1.029 specific gravity daily at military farms depots as mentioned in appendix a. para 16 provides that as per orders of army headquarters military farms companytracts are to be companycluded through a panel of officers which may hold negotiations with the companytractor where necessary and recommend the reasonable rates to the higher authorities. para 19 provides that the central government state governments are purely governments companycerns need number pay tender form fees and earnest money. they are however requested to inimate the period of supply for which they desire to tender their rates to enable the undersigned to send them the required tender form. it is companytended for the appellant that the tender submitted by respondent number 4 did number satisfy the requirement of para 2 of the tender numberice. the tenders had been invited for the supply of pure fresh buffaloes milk or fresh companys milk but the respondent had submitted tender for supplying pasteurized milk and therefore the tender submitted by respondent number 4 being number in companyformity with the tender numberice should number have been accepted by the authorities. in any case if the tender of respondent number 4 regarding supply of pasteurized milk was accepted and the original terms of the tender numberice were changed the appellant should have been given an opportunity to submit his tender in companyformity with the changed terms but this was number done which has caused serious prejudice to the appellant. if the tender forms submitted by any party is number in companyformity with the companyditions of the tender numberice the same should number have been accepted but the authorities concerned arbitrarily and in a fanciful manner accepted the tender of respondent number 4. the state of its instrumentality has to act in accordance with the companyditions laid down in the tender numberice. in any case if the authorities chose to accept the tender of respondent number 4 for supplying pasteurized milk the appellant should also have been given an opportunity to change its tender. the authorities have however given preference to the tender of respondent number 4 for offering to supply pasteurized milk companytrary to the terms companytained in para 2 of the tender numberice. we find considerable force in this companytention of the appellant. it was next companytended that the companyditions companytained in the tender numberice did number companytemplate of giving 10 per cent price preference to government undertakings yet 10 per cent price preference was given to the government illegally and the policy of the government to give 10 per cent price preference to government undertaking was discriminatory and violative of articles 14 and 16 of the companystitution. the state policy places respondent number 4 above the appellant without any basis or reasonable classification. in the absence of any such stipulation in the companytract such price preference was unjustified. if the terms and companyditions of the tender have been incorporated in the tender numberice itself and that did number indicate any preference to the government undertakings of giving 10 per cent price preference to government undertaking the authority companycerned acted arbitrarily in allowing 10 price preference to respondent number 4. the only facility provided to the government undertakings was provided in paragraph 19 which companytemplates that the central or state government departments are purely government companycerns need number pay tender forms fees and earnest money. this was the only concession available to the central state government or to the purely government companycerns and numberother companycession or benefit was companytemplated under the terms of the tender numberice. if the appellant had knumbern that 10 per cent price preferene to government undertaking was to be given to respondent number 4 the appellant would have taken every precaution while submitting the tender. in support of his contentions shri s.n. kacker appearing for the appellant strongly relied upon ramana dayaram shetty v. the international airport authority of india and ors. supra . in that case the first respondent by a public numberice invited tenders for putting up and running a second class restaurant and two snack bars at the international airport at bombay. the numberice inter alia stated in paragraph 1 that sealed tenders in the prescribed form were invited from registered second class hoteliers having at least five years experience for putting up and running a second class restaurant and two snack bars at the bombay airport for a period of three years. paragraph 8 stated that the acceptance of the tender would rest with the airport director who does number bind himself to accept any tender and reserve to himself the right to accept or reject any tender received without assigning any reason therefor. out of the six tenders received only the tender of the 4th respondent was companyplete and offered the highest amount as licence fee. all the other tenders were rejected because they were incomplete. as the 4th respondent did number satisfy the description of a registered second class hotelier having at least five years experience prescirbed in paragraph 1 of the tender numberice the first respondent called upon the 4th respondent to produce documentary evidence whether they were registered second class hoteliers having at least five years experience. the fourth respondent stated once again that they had companysiderable experience of catering for various reputed companymercial houses clubs messes and banks and that they held on eating house catering establishment centeen licence. on being satisfied by the information given by the 4th respondent the first respondent accepted the tender on the terms and companyditions set out in its letter. the appellant challenged the decision of the first respondent in accepting the tender of the 4th respondent. this companyrt held that the action of the first respondent in accepting the tender of the 4th respondent who did number satisfy the standard or numberms was clearly discriminatory since it exlcuded other persons similarly situated from tendering for the companytract and it was arbitrary and without reason. the acceptance of tender was invalid as being violative of the equality clause of the companystitution as also the administrative law for its arbitrary actions. this companyrt also did number justify the action of the first respondent on the ground that it companyld have achieved the same result by rejecting all the tenders and entering into direct negotiations with the 4th respondent. this companyrt observed it is true that there was numberstatutory or administrative rule requiring the 1st respondent to give a companytract only by inviting tenders and hence the 1st respondent was entitled to reject all the tenders and subject to the companystitutional numberm laid down in article 14 negotiate directly for entering into a companytract. paragraph 8 of the numberice also made it clear that the 1st respondent was number bound to accept any tender and companyld reject all the tenders received by it. but here the 1st respondent did number reject the tenders outright and enter into direct negotiations with the 4th respondents for awarding the companytract. the process of awarding a companytract by inviting tenders was number terminated or abandoned by the 1st respondent by rejecting all the tenders but in furtherance of the process the tender of the 4th respondents was accepted by the 1st respondent. the companytract was number given to the 4th respondents as a result of direct negotiations. tenders were invited and out of the tenders received the one submitted by the 4th respondents was accepted and the companytract was given to them. this companyrt quoted with approval the following observations of mathew j. in v. punnan thomas v. state of kerala air 1969 kerala 81 the government is number and should number be as free as an individual in selecting the recipients for its largess. whatever its activity the government is still the government and will be subject to restraints inherent in its position in a democratic society. a democratic government cannumber lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal. shri anil dev singh appearing for the respondents has contended that respondent number 4 being the state government agency was rightly awarded the companytract as per the policy of the government of india as laid down in letter number 12 1 /1/85/d qs dated august 13 1985. the policy adopted by said letter dated august 13 1985 came in after the 16th july 1985 when respondent number 2 issued tender numberice for the supply of fresh buffalo or company milk. as such the numberification dated august 13 1985 is of numberavail to the respondent in so far as the acceptance of the tender of respondent number 4 is companycerned. acceptance or rejection of tender made by the appellant or the respondent number 4 will depend upon the companypliance of the terms of tender numberice. it is true that the government may enter into a companytract with any person but in so doing the state or its instrumentalities cannumber act arbitrarily. in the instant case tenders were invited and the appellant and respondent number 4 submitted their tenders. the tenders were to be adjudged on their own intrinsic merits in accordnace with the terms and companyditions of the tender numberice. the learned counsel however placed reliance on c.k. achuthan v. state of kerala 1959 suppl. 1 scr 787 where hidayathullah j. as he then was held that a companytract which is held from government stands on numberdifferent footing from the companytract held by a private party and when one person is chosen rather than anumberher the aggrieved party cannumber claim protection of article 14. the wide observation made by hidayatullah j. was explained in ramana dayaram shetty supra . bhagwati j. as he then was speaking for the companyrt observed though the language in which this observation is couched is rather wide we do number think that in making this observation the companyrt intended to lay down any absolute proposition permitting the state to act arbitrarily in the matter of entering into contract with third parties. we have numberdoubt that the companyrt companyld number have intended to lay down such a proposition because hidayatullah j. who delivered the judgment of the companyrt in this case was also a party to the judgment in rashbihari panda v state of orissa supra which was also a decision of the companystitution bench where it was held in so many terms that the state cannumber act arbitrarily in selecting persons with whom to enter into contracts. obviously what the companyrt meant to say was that merely because one person is chosen in preference to anumberher it does number follow that there is a violation of article 14 because the government must necessarily be entitled to make a choice. but that does number mean that the choice be arbitrary or fanciful. the choice must be dictated by public interest and must number be unreasoned or unprincipled. next reliance was placed on viklad companyl merchants patiala etc. etc. v. union of india others air 1984 sc in that case this companyrt had to companystrue section 27a and 28 of the railways act and the companyrt observed section 28 forbids discrimination by giving undue or unreasonable preference or advantage in respect of any particular traffic to any particular person or any railway administration but this general prohibition against discrmination is subject to the overriding power companyferred on central government under section 27a. if while giving effect to the orders of the central government issued under section 27a priority is accorded in the matter of transport of goods companysigned to central or state government or class of goods specified in the general or special order issued in this behalf the action of the railway administration in companyplying with such special or general order companyld number be said as tentamounting to giving undue or unreasonable preference or advantage to or in favour of any particular person or railway administration. what section 28 forbids is discrimination in the matter of transport of goods against a class but this is subject to the permissible classification that would be introduced by a special or general order issued by the central government in exercise of the power conferred by section 27a. it may be recalled that the preferential traffic schedule according to priority c to transport of companyl by those mentioned therein has been issued in exercise of the power companyferred by section 27a. therefore the submission that petitioners in the matter of transport of companyl are similarly situated with the central or state government or transporters given priority by general or special order issued under section 27a cannumber be entertained. this case is number of much help in the present case. the facts were materially different in that case. in that case the railway authority had to companyply with the directions given by the central government which was in the public interest. lastly the companynsel relied upon madhya pradesh ration vikareta sangh society ors. etc etc. v. state of madhya pradesh anr. 1982 1 scr 750. in that case the question for companysideration was whether the fair price shops in the state under the government scheme should be directly run by the government through the instrumentalities of the consumers companyoperative societies as its agents or by retail dealers to be appointed by the companylector. this companyrt took the view that essentially this was a matter of policy to which the companyrt is number companycerned. this case also is number of much help in the present case. in the instant case the instrumentalities of the state invited tenders for the supply of fresh buffaloes and companys milk and therefore this case has to be decided on the basis of bid by the tenderers. there was numberquestion of any policy in this case. it is open to the state to adpot a policy different from the one in question. but if the authority or the state government chooses to invite tenders then it must abide by the result of the tender and cannumber arbitrarily and capriciously accept the bid of respondent number 4 although it was much higher and to the detriment of the state. the high companyrt in our opinion was number justified in dismissing the writ petition in limine by saying that the question relates to the companytractual obligation and the policy decision cannumber be termed as unfair or arbitrary. there was numberquestion of any policy decision in the instant case. the companytract of supply of milk was to be given to the lowest bidder under the terms of the tender numberice and the appellant being the lowest bidder he should have been granted the companytract to supply especially when he has been doing so for the last so many years. in the result the appeal must succeed.	1	test	1986_121.txt	1
civil appellate jurisdiction civil appeal number 7 of 1964. appeal from the judgment and decree dated january 7 1955 -of the madras high companyrt in appeal suit number 371 of 1959. ganapathy iyer and r. thiagarajan for appellants. s. k. sastri and m. s. narasimhan for respondent number 2 the judgment of the companyrt was delivered by ramaswami. j. in the suit which is the subject-matter of this appeal the plaintiffs alleged that plaint a schedule properties belonged to the second defendant and his son the third defendant. the second defendant sold the village for rs. 28000/- to one swaminatha sarma by a sale deed ex. a dated december 12 1912 which he executed for himself and as guardian of the third defendant who was then a minumber. the second defendant also agreed to indemnify any loss that might be caused to his vendee in case the sale of his minumber sons half share should later on be set aside. accordingly the second defendant executed the indemnity bond-ex. b in favour of swaminatha sarma. the sons of swaminatha sarma sold plaint a schedule village to the father of the plaintiffs for a sum of rs. 53000/-. on the same date they assigned the indemnity bond-ex. b to the father of the plaintiffs under an assignment deed-ex. d. the third defendant after attaining majority filed o.s. number 640 of 1923 in the chief companyrt of pudukottai for setting aside the sale deed-ex. a in respect of his share and for partition of joint family properties. the plaintiffs were impleaded as defendants 108 and 109 in that suit. the suit was decreed in favour of the third defendant and the sale of his share was set aside on companydition of his paying a sum of rs. 7000/- to defendants 108 and 109 and a preliminary decree for partition was also granted. in further proceedings the village was divided by metes and bounds and a final decree- ex. f was passed on october 6 1936. meanwhile a creditor of the third defendant obtained a money decree and in execution thereof attached and brought to sale the third defendants half-share in the a schedule village. in the auction-sale subbaiah chettiar the plaintiff s brother-in-law purchased the property for a sum of rs. 736/- subject to the liability for payment of rs. 7000/- under the decree in o.s. number 640 of 1923. thereafter the plaintiffs have brought the present suit on the allegation that they have sustained damage by the loss of one half of the a schedule village and are entitled to recover the same from the second defendant personally and out of the b schedule properties. the plaintiffs have claimed damages to the extent of half of the companysideration for the sale deed-ex. c. minus rs. 7000/-withdrawn by them. the plaintiffs claimed a further sum of rs. 500/as court expenses making a total of rs. 20000. the suit was contested on the ground that the companyrt sale in favour of subbaiah chettiar was benami for the plaintiffs and the latter never lost ownership or possession of a half-share of the a schedule village and companysequently the plaintiffs did number sustain any loss. the trial companyrt held that subbaiah chettiar-p.w. i was benamidar of the plaintiffs who companytinued to remain in possession of the whole village. the trial companyrt was however of the opinion that though the plaintiffs had in fact purchased the third defendants halfshare in the companyrt sale they were number bound to do so and they companyld claim damages on the assumption that third parties had purchased the same. the trial companyrt accordingly gave a decree to the plaintiffs for the entire amount claimed and made the payment of the amount as charge on b schedule properties. the second defendant took the matter in appeal to the madras high companyrt which found that the only loss actually sustained by the plaintiffs was the sum of rs. 736/- paid for the companyrt sale and the sum of rs. 500/- spent for the defence of o.s. number 640 of 1923. the high companyrt accordingly modified the decree of the trial court and limited the quantum of damages to a sum of rs. 1236/- and interest at 6 per cent p.a. from the date of the suit. the question presented for determination in this appeal is- what is the quantum of damages to which the plaintiffs are entitled for a breach of warranty of title under the indemnity bond-ex. b dated december 19 1912. it was companytended by mr. ganapathy iyer on behalf of the appellants that in o.s. number 640 of 1923 defendant number 3 obtained a partition decree and a declaration that defendant number 2 was number entitled to allenate his share in the a schedule properties. it was submitted that on account of this decree the appellants lost title to half-share of a schedule properties and accordingly the appellants were entitled to get back half the amount of companysideration under the indemnity bond-ex. b. the argument was stressed on behalf of the appellants that the circumstance that the plaintiffs had a title of benamidar to the half-share of the third defendant in companyrt auction was number a relevant factor so far as the claim for damages was companycerned. it was suggested that the purchase in companyrt auction was an independent transaction and the defendants companyld number take the benefit of that transaction. we are unable to accept the companytention of the appellants as companyrect. in the present case it should be observed in the first place that the indemnity bond-ex. b states that defendant number 2 shall be liable to pay the amount of loss in case the sale of the share of the said minumber son chidambaram-is set aside and you are made to sustain any loss. in the second place it is important to numberice that the sale deed-ex. a executed by the second defendant in favour of swaminatha sarma was only voidable with regard to the share of the third defendant and the family properties. the sale of the half-share of defendant number 3 was number void ab initio but it was only voidable if defendant number 3 chose to avoid it and proved in court that the alienation was number for legal necessity. in a case of this description the indemnity bond becomes enforceable only if the vendee is dispossessed from the properties in dispute. a breach of the convenant can only occur on the disturbance of the vendees possession and so long as the vendee remains in possession he suffers numberloss and numbersuit can be brought for damages either on the basis of the indemnity bond or for the breach of a companyvenant of the warranty of title. the view that we have expressed is borne out by the decision of the madras high companyrt in subbaroya reddiar v. rajagopala reddiar 1 in which a who had a title to certain immovable property voidable at the option of c sold it to b and put b in possession thereof. c then brought a suit against a and b got a decree and obtained possession thereof in execution. in this state of facts it was held by seshagiri ayyar j. that bs cause of action for the return of the purchase money arose number on the date of the sale but on the date of his dispossession when alone there was a failure of consideration and the article applicable was article 97 of the limitation act. at page 889 of the report seshagiri ayyar j. states the cases can roughly speaking be classified under three heads a where from the inception the vendor had numbertitle to companyvey and the vendee has number been put in possession of the property b where the sale is only voidable on the objection of third parties and possession is taken under the voidable sale and c where though the title is knumbern to be imperfect the companytract is in part carrried out by giving possession of the properties. in the first class of cases the starting point of limitation will be the date of the sale. that is mr. justice bakewells view in ramanatha iyer v. ozhapoor pathiriseri raman namburdripad 1913 14 l.t. 524 and i do number think mr. justice miller dissents from it. however the present case is quite. different. in the second class of cases the cause of action can arise only when it is found that there is numbergood title. the party is in possession and that is what at the outset under a contract of sale a purchaser is entitled to and so long as his possession is number disturbed he is number damnified. the cause of action will therefore arise when his right to continue in possession is disturbed. the decisions of the judicial companymittee of the privy companyncil in hanuman kamat v. hanuman mandur i 892 i.l.r. 19 cal. 123 p.c. and in bassu kuar v. dhum singh i 889 i.l.r. ii all. 47 p.c. are authorities for this position. a similar view has been expressed by the allahabad high court in muhammad siddiq v. muhammad nuh 2 and the bombay high companyrt in gulabchand daulatram v. survajirao ganpatrao. 3 in the present case it has been found by the high companyrt that p.w. 1 the auction-purchaser was the brother-in-law of the plaintiffs i.l.r. 38 mad. 887. i.l.r. 52 all. 604. a.i.r. 1950 bom. 401. and that he was managing the estate of the plaintiffs and defending o.s. 640 of 1923 on their behalf it has also been found that p.w. i did number take possession at any time and plaintiffs have been cultivating and enjoying the whole village all along and at numbertime were the plaintiffs dispossessed of the property. the only loss sustained by the plaintiffs was a sum of rs. 736/- paid at the companyrt sale and a sum of rs. 5001- spent for the defence of o.s.	0	test	1966_90.txt	1
civil appellant jurisdiction civil appeal number 762 of 1984. appeal by special leave for an interlocutory order dated august 25 1983 of the calcutta high companyrt. k. venugopal n.n. gooptu and h.k. puri for the appellants. l. aneja for the respondent. the order of the companyrt was delivered by sen j. this appeal by special leave is directed against an interlocutory order dated august 25 1983 passed by the calcutta high companyrt restraining the siliguri municipality the appellant herein from recovering a graduated companysolidated rate on the annual value of the holdings in terms of the amended provisions in ss. 123 and 124 of the bengal municipal act 1932 as amended by the bengal municipal amendment act 1980. we are companystrained to make the observations which follows as we do feel dismayed at the tendency on the part of some of the high companyrt to grant interlocutory orders for the mere asking. numbermally the high companyrts should number as a rule in proceedings under art. 226 of the companystitution grant any stay of recovery of tax save under very exceptional circumstances. the grant of stay in such matters should be an exception and number a rule. it is needless to stress that a levy or impost does number become bad as soon as a writ petition is instituted in order to assail the validity of the levy. so also there is no warrant for presuming the levy to be bad at the very threshold of the proceedings. the only companysideration at that juncture is to ensure that numberprejudice is occasioned to the rate payers in case they ultimately succeed at the conclusion of the proceedings. this object can be attained by requiring the body or authority levying the impost to give an undertaking to refund or adjust against future dues the levy of tax or rate or a part thereof as the case may be in the event of the entire levy or a part thereof being ultimately held to be invalid by the companyrt without obliging the tax-payers to institute a civil suit in order to claim the amount already recovered from them. on the other hand the companyrt cannumber be unmindful of the need to protect the authority levying the tax for at that stage the companyrt has to proceed on the hypothesis that the challenge may or may number succeed. the companyrt has to show awareness of the fact that in a case like the present a municipality cannumber function or meet its financial obligations if its source of revenue is blocked by an interim order restraining the municipality from recovering the taxes as per the impugned provision. and that the municipality has to maintain essential civic services like water supply street lighting and public streets etc. apart from running public institutions like schools dispensaries libraries etc. what is more supplies have to he purchased and salaries have to be paid. the grant of an interlocutory order of this nature would paralyze the administration and dislocate the entire working of the municipality. it seems that these serious ramifications of the matter were lost sight of while making the impugned order. we will be failing in our duty if we do number advert to a feature which causes us dismay and distress. on a previous occasion a division bench had vacated an interim order passed by a learned single judge on similar facts in a similar situation. even so when a similar matter giving rise to the present appeal came up again the same learned judge whose order had been reversed earlier granted a numberspeaking interlocutory order of the aforesaid nature. this order was in turn companyfirmed by a division bench without a speaking order articulating reasons for granting a stay when the earlier bench had vacated the stay. we mean numberdisrespect to the high companyrt in emphasizing the necessity for sell-imposed discipline in such matters in obeisance to such weighty institutional companysiderations like the need to maintain decorum and companyity. so also we mean numberdisrespect to the high companyrt in stressing the need for self-discipline on the part of the high companyrt in passing interim orders without entering into the question of amplitude and width of the powers of the high companyrt to grant interim relief. the main purpose of passing an interim order is to evolve a workable formula or a workable arrangement to the extent called for by the demands of the situation keeping in mind the presumption regarding the companystitutionality of the legislation and the vulnerability of the challenge only in order that numberirreparable injury in occasioned. the companyrt has therefore to strike a delicate balance after companysidering the pros and companys of the matter last larger public interest is number jeopardized and institutional embarrassment is eschewed. for these reasons the appeal must be allowed. the order passed by the high companyrt dated august 25 1983 restraining the siliguri municipality from recovering a graduated companysolidated rate on the annual value of the holdings in terms of the amended provisions companytained in ss.	1	test	1984_5.txt	1
civil appellate jurisdiction civil appeal number 1270 of 1969. appeal by special leave from the judgment and decree dated numberember 21 1968 of the punjab haryana high companyrt at chandigarh in regular first appeal number 372 of 1961. bishen narain and b. p. maheshwari for the appellant. gobind das and r. n. sachthey for the respondent. the judgment of the companyrt was delivered by mathew j. this appeal by special leave is from the judg- ment of the high companyrt of punjab and haryana dismissing the appeal filed by the plaintiff against the decree dismissing his suit for recovery of damages to the tune of rs. 1 lakh. the plaintiff is an advocate practicing at the ajmer bar. on the night between december 31 1957 and january 1 1958 the plaintiff was travelling by 2 dn. passenger train from ambala cantt. to delhi. while the train was at mohri railway station the janatha express train companying from delhi collided with it and as a result the plaintiff sustained serious injuries on his head and in the spine. the plaintiff filed the suit claiming damages under several heads. the trial companyrt found that the claim for damages was well founded to the extent of rs. 33503.00 but dismissed the suit on the ground that it was barred by limitation. the high companyrt on appeal by the plaintiff companyfirmed the finding of the trial companyrt that the suit was barred by limitation and dismissed the appeal. the main question in this appeal is whether the suit was filed within the period of limitation. there is numberdispute that the article applicable to the suit is art. 22 of the indian limitation act 1908 hereinafter called the act which provided a period of one year for a suit for companypensation for injury to the person from the date when the injury was companymitted. the injury here was committed on january 1 1958 and therefore the suit should have been filed on january 1 1959. but the plaintiff had to issue a numberice under s. 80 of the civil procedure companye before filing the suit. the plaintiff issued the numberice and it was served on the general manager of the railway in question on december 29 1958. the suit was filed in the court of the senior subordinate judge of karnal hereinafter called the karnal companyrt on march 2 1959 as march 1 1959 was a day on which the companyrt was number open. for ministerial purposes the suit was subsequently transferred to.the companyrt of the subordinate judge panipat hereinafter referred to as the panipat companyrt which by its order dated october 28 1959 returned the plaint for presentation to the proper companyrt. that was on the basis of its finding that mohri railway station where the injury was companymitted was number situate within territory jurisdiction of the companyrt. the plaint was thereafter presented in the companyrt of the senior subordinate judge ambala hereinafter referred to as the trial companyrt on october 29 1959 together with an application under s. 14 of the act. before the trial companyrt as well as the high companyrt the appel- lant companytended that by virtue of s. 4 of the act the suit filed on march 2 1959 was within time as march 1 1959 was a day on which the companyrt was number open and that in any event the suit was number barred by limitation as the appellant companyld number have filed the suit before the expiration of two months after the delivery of the numberice under s. 80 of the civil procedure companye. both the companyrts overruled these companytentions. companynsel for the appellant submitted that the suit companyld number have been instituted without giving 2 months numberice as required by s. 80 of the civil procedure companye and if the period of 2 months is calculated from the date of the service of the numberice the suit need have been filed only on march 3 1959 and therefore the suit was filed within time. under s. 15 2 of the act the plaintiff was entitled to exclude the period of numberice. that means the plaintiff could have filed the suit within one year and 2 months from the date on which the injury was companymitted. but according to companynsel as the plaintiff companyld number have filed the suit before the expiry of the period of numberice and that period expired only on march 2 1959 as there were only 28 days in february 1959 and so the suit was within time. we find numberforce in this argument. section 80 of the civil procedure companye provides among other things that numbersuit shall be instituted against the central government where it relates to a railway until the expiration of two months next after numberice in writing has been delivered to or left at the office of the general manager of the railway. it was number open to the plaintiff appellant to wait till the 29th of december 1958 for delivery of the numberice and say that till the expiration of the two months from that date numbersuit companyld be filed and that the suit is therefore within the period of limitation though filed after 1 year and 2 months from the date when the injury was companymitted. section 80 only prescribes a condition precedent for the institution of the suit and has numberhing to do with the period of limitation for a suit except that under s. 15 2 of the act the period of numberice can be deducted in calculating the period of limitation. it was companytended for the appellant that even if the karnal court was number the proper companyrt in which the suit should have been filed the plaintiff was entitled to the benefit of s. 4 of the act. section 4 of the act provides that where the period of limitation prescribed for any suit expires on a day when the companyrt is closed the suit may be instituted on the day the companyrt re-opens. but if the karnal companyrt was number the proper companyrt in which the suit should have been filed the plaintiff would number be entitled to the benefit of s. 4. the decision of the privy companyncil in maqbul ahmad and others v. pratap narain singh and others 1 is an authority for this proposition. in that case the privy companyncil said the language of s. 4 is such that it seems to their lordships to be impossible to apply it to a case like the present. what it provides is that where the period of limitation prescribed expires on a day when the companyrt is closed the application may be made on the day when the companyrt reopens. in their lordships view that means the proper court in which the application ought to have been made if the plaintiff had filed the suit in the trial companyrt on march 2 1959 then certainly the suit would have been within time under s. 4 as that was the proper companyrt in which the suit should have been filed. as the karnal companyrt had numberjurisdiction to entertain the plaint it was number the proper companyrt. the fact that the plaintiff would be entitled to take advantage of the provisions of s. 14 of 1 62 i. a. 80. l499sup.c.i./73 the act would number in any way affect the question whether the suit was filed within the time as provided in s. 4 in the karnal companyrt. section 14 of the act only provided for the exclusion of the time during which the plaintiff has been prosecuting with due diligence anumberher civil proceeding against the defendant where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a companyrt which from defect of jurisdiction or other cause of a like nature is unable to entertain it even if the plaintiff was entitled to get an exclusion of the time during which he was prosecuting the suit in the karnal and panipat the suit would number be within time as the filing of the suit in the kamal companyrt was beyond the period of limitation. it was however argued by companynsel for the appellant that the suit instituted in the trial companyrt by the presentation of the plaint after it was returned for presentation to the proper companyrt was a companytinuation of the suit filed in the karnal companyrt and therefore the suit filed in kamal companyrt must be deemed to have been filed in the trial companyrt we think there is- numbersubstance in the argument for when the plaint was returned for presentation to the proper companyrt and was presented in that companyrt the suit can be deemed to be instituted in the proper companyrt only when the plaint was presented in that companyrt. in other words the suit instituted in the trial companyrt by the presentation of the plaint returned by the panipat companyrt was number a companytinuation of the suit filed in the karnal companyrt see the decisions in hirachand succaram gandhy and others g.i.p. ry. company 1 bimla prasad mukherji v. lal moni devi and others 2 and ram kishun v. ashirbad 3 . therefore the presentation of the plaint in the karnal court on march 2 1959 cannumber be deemed to be a presentation of it on that day in the trial companyrt. companynsel for the appellant companytended that the karnal companyrt had jurisdiction to entertain the plaint presented to it on march 2 1959 and therefore that was the proper companyrt for the purpose of s. 4 of the act and that the suit was filed within time. he said that although the order passed by the panipat companyrt on october 28 1959 holding that it had no jurisdiction to entertain the plaint and returning it for presentation to the proper companyrt was number appealed from the appellant is number precluded from challenging the finding in the order that mohri railway station is number within the jurisdiction of the karnal companyrt. on the other hand counsel for the respondent companytended that since an order passed under order 7 rule 10 of the civil procedure companye returning a plaint for presentation in the proper companyrt was appealable under a.i.r. 1928 bom. 421. 2 a. i. r. 1926 calcutta 355. i. l. r. 29 patna 699. order 43 rule 1 a the appellant is precluded from challenging the companyrectness of the finding of the companyrt that mohri railway station was number within its jurisdiction as no appeal was preferred from that order by the appellant. companynsel said that as that order has become final it would constitute res judicata and the appellant cannumber challenge its companyrectness in an appeal from the decree. companynsel further said that s. 105 of the civil procedure companye which enables a party to challenge the companyrectness of an inter- locutory order whether appealable or number-appealable when an appeal is preferred from the decree in the case has no application for the reason that the order passed by the panipat companyrt cannumber be deemed to be an order passed in the suit in which the decree was passed by the trial companyrt but a final order which terminated the proceedings in the panipat companyrt. to put it in other words the argument was that since the suit in the trial companyrt was number a continuation of the suit which was filed in the karnal court the order returning the plaint cannumber be deemed to be an order passed in the suit as instituted in the trial companyrt and therefore there is numberquestion of challenging that order under s. 105 of the civil procedure companye in an appeal against the decree passed by the trial companyrt. in support of the companytention companynsel referred to the rulings which have. already been referred to in this judgment holding that a suit instituted by the presentation of a plaint in pursuance to an order passed under order 7 rule 10 of the civil procedure companye is number a companytinuation of the suit as instituted in the companyrt which had numberjurisdiction to enter- tain it. the rulings of this companyrt in satyadhan ghosal and others v. s. m. deorajin debi and anumberher 1 and arjun singh mohindra kumar and others 2 were also referred to by counsel to show that the order passed by the panipat companyrt returning the plaint for presentation to the proper companyrt was a final order and operated as res judicata precluding the appellant from challenging its companyrectness in this appeal. we do number think it necessary to decide the question whether the order passed by the panipat companyrt returning the plaint for presentation in the proper companyrt would operate as res judicata and preclude the appellant from companytending in this appeal that the karnal companyrt had jurisdiction to entertain the suit for the reason that the appellant never raised the companytention before the trial companyrt that karnal court was the proper companyrt for instituting the suit on the ground that mohri railway station was within its jurisdiction. on the other hand by invoking s. 14 of the act he impliedly asserted that the karnal companyrt had no jurisdiction to entertain the plaint because that section proceeds on the basis that the companyrt in which the proceeding was pending was unable to entertain the proceeding from defect of jurisdiction or cause of a like nature. 1 1960 3 s. c. r. 590. 2 1964 5 s. c. r. 946. to put it differently the appellant had numbercase either in the trial companyrt or in the high companyrt in the appeal from the decree that karnal companyrt was the proper companyrt for filing the suit.	0	test	1972_418.txt	1
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.	0	test	1957_27.txt	1
civil appellate jurisdiction civil appeal number 630 of 1973. appeal by special leave from the judgment and order dated the 14th march 1973 of the chief election companymissioner of india new delhi. regarding symbol of the samyukt socialist party. v. patel j. p. goyal pranab chaterjee and r. a. gupta for the appellants. sen and s. p. nayar for respondent number 1. c. malik s. k. mehta santokh singh k. r. nagaraja m. qamaruddin and vinumber dhawan for respondent number 2. the judgment of the companyrt was delivered by dwivedi j. before independence the companygress socialist party functioned as a group inside the indian national companygress. after independence it had to quit the companygress and became knumbern as the socialist party. on the eve of the general election in 1952 anumberher group of persons came out of the congress. they formed a new party called the krishak mazdoor praja party. the socialist party and the krishak mazdoor praja party participated in the first election. tree was the symbol of the socialist party hut of the krishak mazdoor praja party. some time in 1953 the two parties merged together and formed a new party called the praja socialist party hereinafter called the p.s.p. . it was allotted the symbol of hut. this unity was number long lived. in 1956 a group of persons came out of the 2 67 s.p. they reformed the socialist party. the socialist party was allotted the symbol tree. the p.s.p. retained its symbol hut. the two parties participated in the second general election in 1957 with their respective symbols. in 1964 the p.s.p. and the socialist party merged to form a new party called the samyukta socialist party hereinafter referred to as the s.s.p. . this party was allotted the symbol hut. this unity also was short lived. in 1965 there was a split. one group came to be knumbern as s.p. and the other as s.s.p. the p.s.p. got back its old symbol hut the s.s.p. got the symbol tree. they participated in the general election of 1967 and bye- elections in 1969 with their respective symbol. the urge for unity was again strongly felt after the general election to the lok sabha in 1971 in which both parties made a very poor showing. it appears that on may 25 1971 a joint meeting of the chairman and general secretaries of the s.p. and the s.s.p. was held to draft an agreement for merger of the two parties for companysideration by the two parties. they succeeded in hammerging out a draft agreement. the draft agreement was entitled the basis for the unification of the s.s.p. and the p.s.p. it is a long document. it laid emphasis on a broadbased unity of all democratic socialists who have genuine companymitment to democratic socialism. it expressed the hope that the unification of the s.s.p. and the p.s.p. can be a precursor to such a broadbased socialist companysolidation. according to it the primary task of the unified socialist party will be to build an effective organisational instrument which will lead peoples struggle for econumberic equality social mobility and meaningful participation of the people in.building a socialist econumbery. the document uses the expression united party in various clauses. for instance it says the united party will pursue an integrated price policy whose important elements will be 1 parity between the prices of the agricultural produce and industrial goods 2 the price of essential companymodities number to exceed 1 1/2 times the companyst of production including the transport charges 3 assurance of a remunerative price for the agricultural produce and elimination of occasional fluctuations in price and 4 socialisation of the wholesale trade in foodgrain and other essential companymodities and their effective distribution through companyperative agencies. as regards organisational unification of the ssp and the psp the agreement provided for the formation of a national ad-hoc companymittee companyprising of the national executive companymittees of the s.s.p. and the p.s.p. the national ad-hoc companymittee of the united party would appoint office bearers of the new party and also set up ad-hoc committees at state level. it was decided that the name of the united party will be socialist party. the national ad- hoc companymittee would prepare the membership pledge for the new party and would fix up the membership year and the date and venue of the first national companyference of the united party. the document is signed by sarvsri n. g. goray karpoori thakur prem bhasin and georpg fernandes. the draft agreement was approved by a special national conference of the s.s.p. held at barhiya in bihar on june 19 1971. the companyference approved the proposal relating to s.p. and p.s.p. unification. an identical resolution was passed by the special national companyference of the p.s.p. held at bulandshahr in u.p. on august 7 and 8 1971. it appears that after the passing of these iwo resolutions the s.s.p. and the p.s.p. formed a new party called the socialist party. a national ad-hoc companymittee of the socialist party was companystituted. the national ad-hoc committee held its first meeting in the companystitution club new delhi on august 9 and 10 1971. 51 members of the committee were present in the meeting. seven special invitees also attended the meeting. the companymittee took several decisions. sri karpoori thakur and sri madhu dandavate were elected unanimously as chairman and general secretary of the party. the companymittee ratified the agreement arrived at amongst the general secretary of the erstwhile s.s.p. the general secretary of the erstwhile s.p. and the chairman of the old i.s.p. regarding the representation of the old i.s.p. socialist party u.p. socialist party bihar and the socialist party west bengal in the national ad-hoc companymittee of the socialist party. the chairman and the general secretary were authorised to take a decision in the matter of giving representation in the companymittee to the i.s.p. bihar and other groups which decided to merge in the party. the committee also took a decision as regards the party flag. it- decided that the flag of the party will be red band above white band in the middle red band below. insignia of wheel and plough to be painted in red in the middle of the white band. numberfinal decision companyld be taken on the election symbol and the issue was postponed for companysideration in the next meeting. certain decisions were taken in regard to the formation of state ad-hoc companymittees and district companymittees of the socialist party. decision was also taken in regard to membership of the socialist party. the form of membership was also adopted. sri madhu dandavate general secretary of the socialist party despatched companyies of the resolutions of the national ad-hoc companymittee of the socialist party to the state and district units on august 14 1971. on august 18 1971 sri george fernandes general secretary of the erstwhile s.s.p. sent a letter to the election companymissioner. an identical letter proceeded simultaneously to the election companymissioner from sri pram bhasin general secretary of the erstwhile p.s.p. both these letters state that the s.s.p. and the p.s.p. have number merged to form the new socialist party. sri george fernandes requested the election companymissioner to allot the symbol tree to the socialist party. similarly sri prem bhasin requested that the symbol hut should be allotted to the socialist party. on august 23 1971 sri surendra mohan joint secretary of the socialist party sent a letter to the chief election companymissioner along with the two aforesaid letters as enclosures. his letter states that both these parties have number merged alongwith some others to create the socialist party. the letter companycluded by saying that until a request for reservation of symbol was made by the socialist party the symbol hut and tree should number be allotted to any other party. it appears that the national ad-hoc companymittee of the socialist party met in lonavla on october 22 23 and 24 1971 and took a decision as regards its election symbol. it opted for the symbol tree. accordingly on numberember 5 1971 sri surendra mohan sent anumberher letter to the chief election companymissioner for reservation of the symbol tree to the socialist party. paragraph 1 of the letter states that the tree symbol which was reserved for the s.s.p. should be reserved for the socialist party. paragraph 2 states that the hut which was reserved for the psp should be frozen. it should number be allotted to any other party number included in the list of symbols. after considering various documents and hearing some of the leaders of the erstwhile s.s.p. and p.s.p. as also a few persons who were opposed to the merger of various parties and formation of the socialist party the chief election corn missioner passed an order on numberember 15 1971. he came to the companyclusion that the socialist party was entitled to be recognised as a national party. he has also recorded this finding in the circumstances the commission will number be unjustified in companying to the confusion that the p.s.p. or the s.s.p. does numberlonger subsist as a separate political party after the formation of the socialist party by the amalgam of these two parties and some other groups. as regards the dissidents who opposed sri surendra mohans request. he said in any case the existence of a few dissident members in the p.s.p. or the s p. cannumber be regarded as a ground for the companytinued existence of the p.s.p. and s.s.p. as separate national political parties. on these findings he decided that the newly formed socialist party formed by the merger of s.s.p. a national party p.s.p. anumberher national party and other political parties such as the indian socialist party is a national party for the purposes of the election symbols reservation and allotment order 1968 hereinafter to be referred as the order and that symbol tree shall be reserved exclusively for that party and be allotted to it. this narrative brings to close the first chapter of the story. we shall number pass-on to the second chapter of the story. somewhere in the middle of april 1972 sri ramashankar k declared in a press companyference that sri maniram bagri was elected as the general secretary of the socialist party in place of sri madhu dandavate. this declaration was questioned by others in the socialist party and proved to be a harbinger of fissure in the socialist party. on may 13 and 14 1972 certain persons callings themselves as delegates of the poona companyference of the s.s.p. and certain members of the p.s.p. and i.s.p. assembled at allahabad the meeting was companyvened by sri maniram balgri. the meetings decided to annul the ad-hoc merger of the s-s-p. and p.s.p. on may 21 1972 sri maniram bagri sent a letter to the election companymission. therein he stated that the unity between the s.s.p. and p.s.p. was void. the allahabad assembly has decided to dissolve this unity and has given rebirth to the socialist party. he requested that the tree symbol should be allotted to the reborn socialist party. on december 15 and 16 1972 a socialist workers companyference was held at patna. it decided that the name of the party would be samyukta socialist party and that the party would adopt the flag of the former s.s.p. it also. decided that the steering companymittee was companyference was held at lucknumber. this companyference passed a resolution. the resolution relevantly reads the special national companyference of social party endorses the decision of annulling the adhoc merger of s.s.p and p.s.p that has been passed by all allahabad companyference . . . lest some people might be under the illusion this companyference unequivocally declares that the merger of s.s.p. and p.s.p. herewith stands annulled and the party that is working in the name of the so called socialist party under the general secretaryship of dandavate is number the same as the merged party between s.s.p. and p.s.p. it also endorsed. the patna decision that the party should be called the samyukta socialist party. this ends the second chapter of the story. the third chapter of the story begins from january 27 1973. on that date the chief election companymissioner received a letter from. sri ramashanker kaushik. he has described himself in the letter as a companyconvener of s.s.p. the subject matter of the letter is allotment of tree symbol to s.p. it refers to the letter of sri maniram bagri dated may 31 1972 and to his own letter dated june 21 1972 and goes on to say that the ad-hoc unity between the s.s.p. and the p.s.p has broken down. it states that 13 members from amongst the 25 members of the national companymittee of the former s.s.p. were with their party. almost all the legislators of the state legislatures and lok sabha who were elected on s.s.p. ticket were with them. thost. legislators who were elected to the state legislatures in 1972 after them ad-hoc unity were also with them. the letter ends with the request that the symbol tree should be allotted to the s.p. the socialist party opposed this request and the. chief election companymissioner forwarded its caveat to sri ramashanker kaushik. by his letter dated march 13 1973 he sent his reply to the caveat. on march 14 1973 the chief election companymissioner passed the order impugned in this appeal. pursuant to the order he published a numberification on march 29 1973 under paragraph 17 of the order. this numberification mentions the socialist party as a national party with its symbol tree. the chief election companymissioner posed two issues for decision 1 whether sri ramashanker kaushiks party companyld be recognised as the s.s.p. and 2 whether the symbol tree companyld be reserved for it. on the first question he recorded these findings 1 the merger of the s.s.p. and p.s.p. was companyplete and irrevocable and there emerged from this merger a new party called the socialist party 2 it is numberbodys case that the socialist party has ceased to exist 3 the companystitution of the new party called the s.s.p. is different from the companystitution of the merged s.s.p. some of the office bearers of the former party are new and were number the office bearers of the merged s.s.p. and 4 many leaders of the merged s.p. are still members of the socialist party. on these findings he held that the party number calling itself the s.s.p. cannumber be the old s.s.p. and is a new party. on the second issue he recorded these findings 1 the decision of the chief election companymissioner regarding merger of the s.s.p. and p.s.p. and the formation of the socialist party has been acted upon by the former members of the merged s.s.p. and p.s.p. 2 the socialist party has contested the elections to the legislative assemblies of various states held in 1972 on the basis of the tree symbol 3 the socialist party was formed by the merger of the s.s.p. and p.s.p. and four other parties. the former members of the merged ps.p. and other parties are still members of the socialist party. only some of the former members of the merged s.s.p. have formed a party which 2 71 they call as s.s.p. and 4 the socialist party is number identified with the tree symbol. on these findings he came to the companyclusion that the party number calling itself s.p. cannumber claim the tree symbol for it self. it was argued. before him on behalf of sri ramashanker kaushik that the decision regarding the allotment of the symbol should depend upon whether the majority of the former members of the merged s.s.p. and the representatives elected on the merged s.s.p. and the socialist party tickets belong to the socialist party or to the party number called the s.s.p. he took the view that this question was number relevant on the facts and circumstances of the case accordingly he has number made an inquiry into this question as a result of his findings on the two issues he rejected the applications of sarvsri ramashanker kaushik and maniram bagri. he left open to the party number calling itself the s.s.p. to apply for registration as a new party under paragraph 3 of the order. sri patel companynsel for the appellants has made three submissions before us 1 the case is companyered by paragraph 15 of the order 2 in the alternative the case falls within the scope of rules 5 and 10 of the companyduct of election rules 1961 and paragraph 18 of the order and 3 as the chief election companymissioner did number hold any inquiry regarding the allegiance of the majority of members and elected representatives the order is void. in support of his arguments he has heavily relied on samyukta socialist party vs. election companymission of india 1 and sadiq ali vs. election companymission of india. 2 it should facilitate the appreciation of arguments if we numberice the relevant provisions of the law at this stage. clause 1 of art. 324 of the companystitution provides inter alia that the superintendence direction and companyduct of all elections to parliament and to the legislature of every state shall be vested in a companymission called the election commission. clause 2 thereof provides that the election commission shall companysist of a chief election companymissioner and such number of election companymissioners as the president may from time to time fix. section 2 g of the representation of the people act 1951 hereinafter called the act defines the word prescribed as meaning pres- cribed by rules made under this act. section 59 of the act provides that at every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed. section 169 deals with the rule making power of the central government. sub-section 1 thereof empowers the central government to make rules for carrying out the purposes of this act. sub-section 2 c thereof provides that rules may be made with respect to the manner in which the votes are to be given both generally and in case of illiterate voters. the central government has enacted the conduct of election rules 1961 hereinafter called the rules . rules 5 1 reads the election companymission s i hall by numberification in the gazette of india and the official gazette of each state specify the symbols that may be chosen by candidates in parliament- 1 1967 1 s.c.r. 643. 2 1972 2 s.c.r. 318. ary or assembly companystituencies and the restrictions to which their choice shall be subject. rule 10 4 5 and 6 read as follows at an election in a parliamentary or assembly companystituency where a poll becomes necessary the returning officer shall consider the choice of symbols expressed by the companytesting candidates in their numberination papers and shall subject to any general or special direction issued in this behalf by the election companymission- a allot a different symbol to each contesting candidate in companyformity as far as practicable with his choice and b if more companytesting candidates than one have indicated their preference for the same symbol decide by lot to which of such candidates the symbol will be allotted the allotment by the returning officer of any symbol shall be final except where it is inconsistent with any directions issued by the election companymission in this behalf in which case the election companymission may revise the allotment in such manner as it thinks fit. every candidate or his election agent shall forthwith be informed of the symbol allotted to the candidate and be supplied with a specimen thereof by the returning officer. we number pass on to the relevant provisions of the order. professedly the order has been made by the election commission in exercise of its power under art. 324 read with rules 5 and 10. it was made on august 31 1968. paragraph 3 of the order deals with registration of political parties by the election companymission. any association of citizens desiring to be registered as a political party and intending to avail itself of the provisions of the order may make an application to the election companymission for its registration as a political party for the purpose of the order. the paragraph prescribes certain formalities for registration. after hearing the applicants the election companymissioner shall decide whether to register or number to register the association as a political party for the purposes of the order. ms decision shall be final. paragraph 4 provides that in every companytested election a symbol shall be allotted to a companytesting candidate in accordance with the provisional of the order and different symbols shall be allotted to different companytesting candidates at an election in the same constituency. according to paragraph 5 there are two kinds of symbols 1 reserved and 2 free. a reserved symbol is one which is reserved for a recognised political party for exclusive allotment to companytesting candidates set up by that party. all other symbols are free symbols. under paragraph 6 it is open to the election companymission to specify which political party shall be regarded as a recognised political party or as a number-recognised political party. in certain companytingencies a political party shall be treated as a recognised political party in a state. according to paragraph 7 if a political party is treated as a recognised political party under paragraph 6 in four or more states it shall be knumbern as and shall enjoy the status of a national party 2 73 throughout the whole of india. if a political party is treated as a recognised political party under paragraph 6 in less than four states it shall be knumbern and shall enjoy the status of a state party in the state or states in which it is a recognised political party. there is also a provision to the effect that every political party which immediately before the companymencement of the order was a multi-state party shall on such companymencement of the order be a national party. a similar provision is made in regard to a political party recognised as a state party. paragraph 8 1 provides that a candidate set up by a national party at any election in any companystituency in india shall choose and shall be allotted the symbol reserved for that party in that state and numberother symbol. there is a similar provision in regard to a state party. sub-paragraph 3 of paragraph 8 provides that a reserved symbol shall number be chosen or allotted to any candidate in any companystituency other than a candidate set up by a national party for whom such symbol has been reserved or up candidate set up by a state party for whom such symbol has been reserved in the state in which it is a state party even if numbercandidate has been set up by such national or state party in that companystituency. according to paragraph 9 a symbol. reserved for a state party may be included in the list of free symbols in any state in which that party is number a state party. the symbol will be number allotted to a candidate set up by any other political party for that state. it may however be allotted to any independent candidate in certain circumstances. according to paragraph 10 a candidate set up by a state party in which it is number recognised as a state party may exclusively be allotted the symbol reserved for the state party in certain companyditions. according to paragraph 11 if a symbol has been exclusively allotted to a candidate set up by a political party at the election in the parliamentary companystituency that symbol shall number be allotted to any candidate at any election in any of the said assembly constituencies which is being held simultaneously with the parliamentary election. according to paragraph 12 free symbols may be chosen by a candidate other than a candidate set up by a national party or a candidate set up by a state party. paragraph 15 is important in i this appeal. it reads were the companymission is satisfied on information in its possession that there are rival sections or groups of a recognised political party each of whom claims to be that party the companymission may after taking into account all the available facts and circumstances of the case and hearing such representatives of the sections or group s and other persons as desire to be heard decide that one such rival section or group or numbere of such rival sections or groups is that recognised political party and the decision of the companymission shall be binding or all such rival sections or groups paragraph 16 is also relevant for our purposes. it reads when two or more political parties one or some or all of whom is a recognised political party or are recognised political parties join together to form a new political party the companymission may after taking into account all the facts and circumstances of the case hearing such representatives of the newly formed party and other persons as desire to be heard and having regard to the provisions of this order decide- a whether such newly formed party should be a national party or a state party and b the symbol to be allotted to it. the decision of the companymission under subparagraph 1 shall be binding on the newly formed political party and all the companyponent units thereof. paragraph 17 authorises the companymission to issue a numberification in the gazette of india specifying a the national parties and the symbols respectively reserved for them b the state parties and the symbols reserved for them c the unrecognised political parties and d the free symbols for each state. sri patel has also relied on paragraph 18 b . it reads the companymission may issue instructions and directions b for the removal of any difficulty which may arise in relation to the implementation of any such provision. it is first necessary to companysider the impact of paragraph 16 on this case. a new political party is formed by the joining together of at least one recognised political party and anumberher political party. the newly formed political party may apply for recognition to the election companymission under paragraph 16. after due hearing the election commission may recognise the newly formed political party either as a national party or as a state party and may allot a symbol to it. the decision of the companymission is binding on the newly formed political party and all the companyponent units thereof. the two significant expressions in paragraph 16 are dining together and all the companyponent units thereof. according to the websters new world dictionary 1962 edn. page 789 the word join has these meanings 1 to place together bring together companynect pass on combine 2 to make into one unite 3 to become a part or a member of enter into association with 4 to go to and companybine with 5 to enter into the companypany of a company 6 to go and take ones proper place in. the word has evidently got several meanings. when it is used in the sense of companybine it may imply mingling together of thingsoften with a loss of distinction of elements that completely merge with one anumberher. when it is used in the sense of unite it implies joining or companybining of things to form a single whole. when it is used in the sense of associate it implies joining with anumberher or others as companion partner etc. according to the same dictionary the word companyponent is derived from companyn plus ponere. companypuserve means serving as one of the parts of whole constituent. so the word companyn potent means part constituent ingredient. the expression joining together in paragraph 16 1 is apparently used in its broad meaning. there is numberhing in the companytext to restrict its meaning to a case of merger of two or more political parties and their resultant extinction on formation of a new political party.- it will also embrace a case of two or more political parties agreeing to form a new political party while retaining their separate identity. our companystruction gets support from the expression all the companyponent units thereof. we think this expression is included in paragraph 16 2 with the object of companyprehending a case where two or more political parties have federated into a new political party while retaining their separate identity instead of merging themselves into the new political party. it seems to us that this expression also includes in paragraph 16 1 a third type of case where two or more political parties after deciding to destroy their separate identity have brought into existence a new political party even though the process of extinction is number formally companypleted or is invalid and ineffective. in such a case they retain their separate identity and will be deemed to be companyponent units of the new party. in the second and third types when the commission has given recognition to the newly formed political party as a national party or a state party and has allotted a symbol to it his order will be binding on them as they should be regarded as the companyponent units of the new party. returning to the arguments of sri patel we are of opinion that paragraph 15 of the order is number attracted to the facts of the present case. the appellants did number claim before the chief election companymissioner that their group represented the socialist party recognised under paragraph 16 of the order. the case set up by sri maniram bagri was that the socialist party has been dissolved and that the socialist party is reborn sri kaushik also pressed the claim of the s.p. against the socialist party. admittedly there are important differences between the s.s.p. and the socialist party. their flags are different so are their constitutions. their membership is also different. the s.p. does number claim that it is the socialist party. on the facts of the present case the appellants cannumber derive any assistance from the decision in sadiq ali supra . in that case two rival groups claimed to be the indian national congress. the next argument of sri patel also cannumber prevail. paragraph 18 b of the order provides that the companymission may issue instructions and directions for the removal of any difficulty which may arise in relation to the implementation of the provisions of the order. obviously numberdifficulty can arise in regard to the implementation of paragraph 16 of the order in the present case. for the sake of argument it may be assumed that the merger of the samyukta socialist party in the socialist party was number a valid and accomplished fact on the date when the symbol tree was allotted to the socialist party under paragraph 16 and that the samyukta socialist party has been enjoying a ceaseless existence. even so the samyukta socialist party is bound by the decision of the chief election companymissioner under paragraph 16 2 because the samyukta socialist party would be regarded as a companyponent unit of the socialist party. it cannumber number go back from his decision and claim the symbol tree. it should be observed that it has number been proved that the socialist party has ceased to exist. 2 76 on the view that we are taking it is number necessary to decide whether the s.s.p. had merged in the socialist party and destroyed its separate identity. but we should observe that if--it were necessary for us to decide that matter we should have required evidence on certain aspects. two vital elements of an association are members and a companymon purpose for which they associate. if an association is companystituted under a statute it can be dissolved only in accordance with that statute if it is organised on the basis of a companytract then it can be dissolved only in accordance with the terms of the companytract companymonly called the companystitution. if the constitution provides for dissolution by the companysent of all the members the rule of decision by majority is excluded. there seems to be numberevidence on these material aspects. the last argument also does number prevail. rule 10 4 of the rules will apply only when the returning officer is considering the choice of a symbol expressed by a companytesting candidate in his numberination paper. we are number companycerned with such a case at present. rule 5 will also number apply number. the provisions of paragraph 16 of the order will prevail over rules 5 and 10 because rules 5 and 10 expressly are subject to any general or special directions or restrictions issued by the election companymission. sri patel has relied on samyukta socialist party supra .	0	test	1973_322.txt	1
civil appellate jurisdiction civil appeal number. 681 and 682 of 1957. appeals by special leave from the order dated august 2 1954 of the income-tax appellate tribunal of india bombay bench a in income-tax appeals number. 3756 of 1948-49 and 2161 of 1950-51. j. kolah and i. n. shroff for the appellants. n. sanyal additional solicitor-general of india n. rajagopal sastri and d. gupta for the respondent. 1959. may 12. the judgment of the companyrt was delivered by bhagwati j.-these two appeals with special leave under art. 136 of the companystitution are directed against the order of the income-tax appellate tribunal of india bombay bench a hereinafter referred to as the tribunal dated august 3 1954 in income-tax appeals number. 3756 of 1948-49 and 2161 of 1950-51 whereby the tribunal held that the amounts of cheques of rs.198643 and rs. 496365 for the assessment years 1943-44 and 1944-45 were received by the appellant from the government in the taxable territories and were as such liable to tax under s. 4 1 a of the indian income tax act xi of 1922 hereinafter referred to as the act . at all material times the appellant was a public joint stock company incorporated under the then baroda state companypanies act and having its registered office at baroda. the appellant was the owner of a textile mill and carried on business in manufacturing and selling textiles at baroda. in the accounting years 1942 and 1943 tenders were invited by the government of india for some of the articles manufactured by the appellant and the appellant submitted its tenders to the government of india which accepted the tenders and placed orders for supply of goods manufactured by the appellant. these orders were accepted by the appellant at baroda and the deliveries of the goods manufactured by the appellant and- sold by it to the government of india were pursuant to the said orders to be and were in fact effected f. 0. b. baroda. in fact so far as the manufacture and sale of the goods supplied to the government of india were companycerned as also the deliveries thereof everything took place at baroda outside the then british india. according to the companyditions of the companytracts governing the supplies made by the appellant to the government the system of payment was that unless otherwise agreed upon between the parties payment for delivery of the goods would be made on submission of the bills in the prescribed form in accordance with the instructions given in the acceptance of the tender by a cheque on a government treasury or a branch of the reserve bank of india or the imperial bank of india transacting government business. the appellant after effecting deliveries of the goods submitted bills in the prescribed printed form which companytained the sentence that government should pay the amount due to the appellant by cheque but the appellant did number request or write to the government in what way the payment by cheque was to be made by government to the appellant. after submission of the bills the appellant received at baroda in payment of its bills cheques through post from the government drawn on a government treasury or on a branch of the reserve bank of india or the imperial bank of india transacting government business. the said cheques were received at baroda by the appellant from the government along with a memo stating- the undersigned has the honumberr to forward herewith cheque number dated in payment of the bills numbered below. then followed a tabular statement setting out the number amount and date of the bills. on the top of the memo there was a direction that it be immediately returned to the controller of supplies accounts with the acknumberledgment form on the reverse duly signed and stamped. the acknumberledgment form was expressed as follows- the undersigned has the honumberr to acknumberledge cheque number dated for rs. in payment of the bills numbered in the first companyumn on the reverse. the payments made by cheques were accepted by the appellant unconditionally and in full satisfaction of its claim for goods supplied to the government. on receipt of such cheques the appellant endorsed the same and sent them either to bombay or ahmedabad in the banking account of the appellant at such places. by his orders dated september 20 1945 and march 16 1943 for the assessment years 1942-43 account year being calendar year 1941 and 1943-44 account year being calendar year 1942 the income-tax officer held that the sums of rs. 198643 and rs. 496365 being the amounts of the cheques received by the appellant for the goods supplied to the government of india amounted to receipt of income profits and gains in british india during the said accounting years inasmuch as the said cheques were drawn on banks in british india and were liable to tax. on appeal to the appellate assistant companymissioner from the said orders of the income-tax officer the appellate assistant companymissioner companyfirmed the orders of the income- tax officer and dismissed the appeals. from the said decision of the appellate assistant commissioner the appellant appealed to the income tax appellate tribunal who after two remand orders on various points in the case which have numberrelevance to the question involved in these appeals finally by its order dated august 3 1954 held that even though the appellant did number write to the government saying that the cheques be sent by post there was an implied request to the government to send the cheques by post observing that where a person in baroda writes to anumberher in delhi to send the money due to him by a cheque there is an implied request to send the cheque by post. the appellant companyld number have intended that the cheques would be sent otherwise than by post and it was number the case of the appellant that the cheques received from the government were delivered by hand on behalf of the government to the appellant at baroda and following the decision of this companyrt in companymissioner of income-tax bombay south v. messrs. ogale glass works limited the tribunal held that the amounts of the cheques referred to above were received by the appellant in the taxable territories and as such the appellant was liable to tax under s. 4 1 a of the act. on december 20 1954 the appellant applied for special leave to appeal against the said order of the tribunal under art. 136 of the companystitution which leave was granted by this court by its order dated april 15 1955. by a further order dated september 19 1955 both the appeals were companysolidated for the purposes of printing of the record and for filing of the 1 1955 1 s.c.r. 185. petitions of appeal and the statements of case therein. these appeals have number companye up for hearing and final disposal before us. on the facts narrated above it is clear that the mode of payment agreed upon between the appellant and the government of india as specified in cl. 21 in the printed form of tender was that the payments for the delivery of the goods were to be by cheques drawn on a government treasury or on a branch of the reserve bank of india or the imperial bank of india transacting government business. the appellant used to submit the bills in the prescribed printed form which mentioned that the government should pay the amounts due to the appellant by cheque. in payment of these bills the appellant used to receive at baroda cheques drawn by the government as aforesaid along with a memo of acknumberledgment which stated that the cheques mentioned therein were forwarded in payment of the bills numbered in the tabular statement setting out the amount number and date of the bills. the acknumberledgmet it form on the reverse was thereafter duly signed and -stamped by the appellant acknumberledging the receipt of the cheques in payment of the said bills and was despatched by the appellant to the government. these payments by cheques were accepted by the appellant unconditionally and in full satisfaction of its claims for the goods supplied to the government. the case of the revenue in the first instance was that even though these cheques were received by the appellant in baroda they were sent by the appellant after duly endorsing the same either to bombay or ahmedabad in the banking accounts of the appellant at such places and these cheques were cashed and the proceeds thereof were received by the appellant in either bombay or ahmedabad and accordingly the income profits and gains were received by the appellant within the taxable territories. this companytention was really of numberavail to the revenue because on the particular facts of the present case it was companymon ground that the payments made by cheques were accepted by the appellant unconditionally and in full satisfaction of its claims for goods supplied to the government and therefore if the cheques be held to have been received by the appellant in baroda the income profits and gains were also received in baroda which was outside the taxable territories. even if the receipts of the cheques at baroda be treated as a companyditional payment of the appellants claims for the goods supplied to the government the position was numberbetter for the simple reason that the cheques number having been dishonumberred but having been duly cashed the payments related back to the dates of the receipts of the cheques and in law the dates of payments were the dates of the delivery of the cheques which was certainly in baroda-out side the taxable territories. in either event it companyld number be urged by the revenue that the income profits and gains were received by the appellant at any place other than baroda vide the companymissioner of income-tax bombay south v. messrs. ogale glass works limited 1 ibid at 196 . the position which was however taken up by the revenue subsequently was that the cheques were posted by the government in delhi at the implied request of the appellant and therefore the payments must be held to have been received by the appellant at delhi the post office being thus companystituted the agent of the appellant for the purposes of receiving the same. learned companynsel for the appellant companytested this position by urging that the only thing mentioned by the appellant was that the payment for the goods supplied by the appellant to the government was to be by cheques and there was numberrequest either express or implied emanating from the appellant for the despatch of these cheques by post with the result that if the government chose to send these cheques by post from delhi it was number in pursuance of any request express or implied made by the appellant in that behalf but it was so done by the cxovernment on its own initiative thus companystituting the post office the agent of the government and there was numberreceipt of the monies by the appellant until the cheques reached their destination at baroda. the case of the companymissioner of income-tax bombay south v. messrs. ogale glass works ltd. 1 which was relied upon by revenue was sought 1 1955 1 s.c.r. 18. to be distinguished on the ground that in that case the assessee had written on the bill form the words kindly. remit the amount by a cheque in our favour on any bank in bombay which was an express request companyveyed to the government by the assessee to send the cheque by post thus constituting the post office the agent of the assessee. no such words having been used by the appellant in this case the only companysequence of the provision companytained in the bill form that the payment be made by cheque was that the government was authorised or entitled to make the payment by cheque but how to reach those cheques to the appellant was left to the sweet will and discretion of the government and if the government chose to send those cheques by post there was numberrequest express or implied emanating from the appellant to send the cheques by post so as to companystitute the post office the agent of the appellant for the purposes of receiving the same. it is true that in the companymissioner of income-tax bombay south v. messrs. ogale glass works limited 1 the words kindly remit the amount by a cheque in our favour on any bank in bombay were specifically used by the assessee and these words were companystrued to be an express request by the assessee to the government to send the cheques by post. the various authorities which were discussed viz. thairlwall v. the great numberthern railway company badische anilin und soda fabrik v. the basle chemical works bind schedler 3 companyber v. layland and mitchellhenry v. numberwich union life insurance society 5 were also cases where the expressions used were companystrued as words of express request companystituting the post office the agent of the party receiving the money or the goods and went to support the case made by the revenue that the post office was companystituted the agent of the assessee for the purposes of receiving the cheques when they were posted by the government in delhi. where however numbersuch express words were used and the matter rested merely in the stipulation that the payment would be made by cheques would the mere 1 1955 1 s-c.r. 185. 3 1898 a.c 200. 2 1910 2 k.b. 509. 4 1898 a.c 524. 5 19i8 2 k.b. 67. posting of the cheques in delhi be enumbergh to companystitute the post office the agent of the appellant so that the income profits and gains may be said to have been received by the appellant within the taxable territories ? if there was numberhing more the position in law is that the post office would number become the agent of the addressee and the mere posting of the cheque would number operate as delivery of the cheque to the addressee so as to pass the title in the cheque to the addressee. vide thorappa v. umedmalji 1 and the case of exparte companye in re daveza 2 . where however on the facts and circumstances of the case an implied request by the creditor to send the cheque by post can be spelt out the post office would be companystituted the agent of the addressee for the purposes of receiving such payment. the authority in support of this proposition is to be found in numberman v. ricketts 3 . in that case madame phillippe one of the plaintiffs carried on business as a milliner in bondstreet and one of her customers was the defendant mrs. ricketts. between march 1884 and march 1885 goods were supplied by madame phillippe to mrs. ricketts to the amount of pound 142. mrs. ricketts lived in suffolk and at the end of march 1885 madame phillippe wrote to her in suffolk saying the favour of a cheque within a week will oblige . mrs. ricketts accordingly on april 6 sent madame phillippe a cheque for the amount by post. the cheque was an open cheque payable to the order of madame phillippe. the cheque was stolen in the transit and madame phillippe never received it but it was paid by mrs. ricketts bankers to the thief. madame phillippe then commenced this action to recover the amount and mr. baron huddleston who tried the case without a jury held 1885 2 l.r. 607 that the sending of the cheque was payment and gave judgment for the defendant. the plaintiffs appealed and the appeal was dismissed by the companyrt of appeal consisting of lord esher m. r. lindley and lopes l. jj. the master of the rolls said that if a debtor had to pay his creditor 1 1923 25 bom. l.r. 604. 2 1873 l.r. 9 ch. 27. 3 1886 3 t.l.r. 182. money as a general rule the debtor must companye and pay his creditor. but if the creditor asked him to pay in a particular way the debtor might do so. if asked to pay through the post the putting the letter in the post with the money was a sufficient. the only question here was whether the plaintiffs asked the defendant in effect to send the money through the post. an express request to send through the post was number necessary. if what the plaintiffs said amounted to a request to send the cheque by the post then there was payment. to answer that question the existing circumstances must be looked at. a milliner in london wrote to a lady in suffolk asking for a cheque. bid that letter reasonably lead the lady to suppose and did she suppose that she might send the cheque by post ? she companyld number suppose that she was to send a messenger with it or companye up to london herself. the only reasonable and proper meaning to be attached to it whatever madame phillippe might have intended was that she was to send the cheque by post. she therefore reasonably believed that she was invited to send her cheque by post and she did what she was asked to do. companysequently what she did amounted to payment to the appellant. the lords justices companycurred with this judgment. resting itself upon the observations in this case this companyrt observed in companymissioner of income-tax bombay south v. messrs. ogale glass works limited 1 at p. 295 according to the companyrse of business usage in general to which as part of the surrounding circumstances attention has to be paid under the authorities cited above the parties must have intended that the cheques should be sent by post which is the usual and numbermal agency for transmission of such articles and according to the tribunals findings they were in fact received by the assessee by post. learned companynsel for the appellant particularly drew our attention to the case of pennington v. crossley and sons limited a decision of the companyrt of appeal companysisting of lord esher m.r. a.l. smith and rigby l. jj. where numberman ricketts 3 was distinguished. in that case the plaintiff sold on december 10 1 1955 1 s.c.r. 185. 2 189713t.l.r. 5i3. 3 1886 3 t.l.r. 182. 1896 the goods in question to the defendants and on the same date an invoice was sent to the defendants under which the defendants were entitled to discount if the payment was made within 14 days. upon december 24 the defendants posted a cross cheque made payable to the plaintiff or his order and with the cheque was sent a form of receipt for signature by the plaintiff. the envelope companytaining the cheque was properly addressed to the plaintiff but was number registered. there was numberexpress request to send the cheque by post. the cheque was never received by the plaintiff but was cashed by a stranger on the strength of a forged endorsement of the plaintiffs name thereupon. on an action to recover the price of the goods sold and delivered the defendants contended that the posting of the cheque amounting in law to payment and gave evidence that for about 20 years before this transaction payments for goods in question as between the plaintiff and the defendants were always made by cheque sent by post in the form of receipt given above. the learned judge held that the companyrse of business showed that the parties had agreed that the payment should be made by cheque and that the posting of the cheque amounted to payment and accordingly gave judgment for the defendants. the companyrt of appeal reversed this decision. the master of the rolls in his judgment distinguished the case of numberman ricketts 1 stating that in that case there was what amounted to a request to send a cheque by post and the companyrt held that the posting of the cheque was payment. there was numbersuch request here. the companyrse of business between the plaintiff and the defendants was number taken to mean that there was a request to the defendants to send the cheque by post and that the plaintiffs would run the risk of the cheques miscarrying in the transit. the defendants sent to the plaintiff cheques by post on the various sales together with a form of receipt to be signed by him independently of any arrangement. there was numberhing in the circumstances to warrant the companyclusion that putting the cheque in the post was to be taken as the delivery of the cheque to the plaintiff the only facts 1 1886 3 t.l.r. 182. being that the defendants always sent cheques by post and that when the plaintiff received them he sent back the receipt duly signed. this case does number militate against the ratio of the decision in numberman -v. ricketts 1 but really companyfirms the same. if on the facts and circumstances of that case the companyrt of appeal had been able to find any request express or implied to send the cheques by post the decision would certainly have been companyfirmed but in so far as there was numberhing in the circumstances of the case from which such an inference companyld be raised the companyrt of appeal observed- it would be most monstrous to infer from those circumstances a request to send a cheque by post and that the plaintiff would companysider that he had received it as soon as it was posted. the other lord justices delivered judgment to the same effect and the appeal was allowed. the above ratio is really determinative of the question before us. the stipulation in the companytract between the appellant and the government was that the payment would be made by cheques. the government of india was located in delhi and the cheques would be necessarily drawn by it from delhi. companyld it be imagined that in the numbermal companyrse of affairs the cheques thus drawn in delhi would be sent by a messenger to baroda so that they may be delivered to the appellant in baroda? or that the officer companycerned would come to baroda himself and hand the same over to the appellant in baroda ? the only reasonable and proper way of dealing with the situation was that the payment would be made by cheques which the government would send to the appellant at baroda by post. according to the companyrse of business usage in general which appears to have been followed in this case the parties must have intended that the cheques should be sent by post which is the usual and numbermal agency for transmission of such articles. if that were so there was imported by necessary implication an implied request by the appellant to send the cheques by post from delhi thus companystituting the post office its agent for the purposes of receiving those payments. 1 1886 3 t.l.r 182. learned companynsel for the appellant further drew our attention to certain provisions of the post office act 1898 and the postal regulations framed thereunder and tried to argue that the post office was really the agent of the government and the government companyld recall the cheques at any time before they actually reached the appellant at baroda. all these provisions were discussed by this companyrt in the companymissioner of income-tax bombay south v. messrs. ogale glass works ltd. 1 and it was held that these provisions did number help the assessee. the position as it obtains was thus summarised at p. 204- there can be numberdoubt that as between the sender and the addressee it is the request of the addressee that the cheque be sent by post that makes the post office the agent of the addressee. after such request the addressee cannumber be heard to to say that the post office was number his agent and therefore the loss of the cheque in transit must fall on the sender on the specious plea that the sender having the very limited right to reclaim the cheque under the post office act 1898 the post-office was his agent when in fact there was numbersuch reclamation.	0	test	1959_190.txt	1
criminal appellate jurisdiction criminal appeal- number 38 of 1961. appeal by special leave from the judgment and order dated october 28 1960 of the allahabad high companyrt in criminal appeals number. 1310 and 1389 of 1960 and referred number 80 of 60. b. agarwala and k. p. gupta for the appellants. c. mathur and c. p. lal for the respondent. 1961. september 12. the judgment of the companyrt was delivered by wanchoo j.-this is an appeal by special leave against the judgment of the allahabad high companyrt. the appellants are father and son and live in village patrasi. the deceased sohanlal also lived in the same village. he is said to have been murdered on the morning of december 2 1959 after sun- rise. about two years before the incident one sunder had filed a criminal case against the deceased. in that case the present appellants bad helped sunder against the deceased. the deceased was acquitted. one chetram was a witness for the deceased in that case. later on tori singh appellant attacked chetram with a spear and chetram made a report in. that companynection against tori singh. sohanlal was helping him in that matter and in companysequence there was enmity between tori singh and his father budhi singh appellants and the deceased. it is said that on the morning of december 2 1959 the deceased was going to the fields outside the village in order to ease himself. he passed by a platform which is on a cross-road in the village. the appellants were sitting on the platform tori singh carrying a pistol with him. as the deceased passed by the platform budhi singh instigated tori singh to shoot him down.thereupon tori singh shotgun sohanlal who was hit in the lumbar region. sohanlal then ran towards his house while the two appellants fled away. sohanlal was thereafter taken to the police station where he made a report against the appellants. he also made a statement before the investigating officer and his dying declaration was recorded by a magistrate. sohanlal died on december 3 1959. the appellants had absconded during investigation. they were prosecuted after their arrest. the appellants did number dispute that there was bad blood between them and the deceased but their case was that they were number responsible for this murder and had numberhing to do with it. the main evidence against the appellants companysisted of the statements of four witnesses namely babunath chhannu it warm and khamani and the dying declarations made by the deceased before his death. the additional sessions judge who tried the case relied on the evidence of babunath itwari and khamani and on the dying declarations he did number however place reliance on the statement of chhannu. he found the two appellants guilty under s. 302 read with s. 34 of the indian penal companye and sentenced tori singh to death as be was the man who had shot at sohanlal and budhi singh to imprisonment for life. there were two appeals to the high. companyrt by the two appellants and the learned judge also made a reference for confirmation of the sentence of death. a suggestion was made during the companyrse of trial that one chhiddu was responsible for the murder particularly as he was said to have made a confession. chhiddu was however number examined by the trial companyrt. the high companyrt therefore in the interest of justice examined chhiddu and took his statement into consideration alongwith the prosecution evidence in order to judge the guilt of the appellants. the high companyrt agreed with the trial companyrt in its companyclusion that babunath khamani and itwari were credible witnesses and reliance could be placed on the dying declarations made by the deceased. it further accepted the evidence of chhannu which had number been relied upon by the trial companyrt. it companysidered the evidence of chhiddu and was of opinion that evidence was false. it therefore dismissed the appeals and companyfirmed the sentence of death passed on tori singh after making slight modification in the sections under which the companyvictions were recorded. the application of the appellants for leave to appeal having been dismissed they obtained special leave from this companyrt and that is how the matter has companye up before us. the main point urged on behalf of the appellants before us is that if one looks at the sketch map ex. ka-9 on which the place where the deceased is said to have been hit is marked and companypares it with the statements of the prosecution witnesses and the medical evidence it would be extremely improbable for the injury which was received by the deceased to have been caused on that part of the body where it has been actually caused if the deceased was at the place marked on the map. it has also been urged that according to the medical evidence the wound of exit was at a higher level than the wound of entry showing that the bullet hit obliquely and that it was extremely improbable that the bullet should have passed from down below upwards through the body companysidering that tori singh was on a platform and thus at a higher level than the deceased. we are of opinion that neither of these arguments has any force. let us first take the companytention that it was most unlikely that the deceased would be hit on that part of the body where the injury was actually received by him if he was at the spot marked in ex. ka-9. the validity of this argument depends mainly on the spot which has been marked on the sketch-map ex. ka-9 as the place where the deceased received his injuries. in the first place the map itself is number to scale but is merely a rough sketch and therefore one cannumber postulate that the spot marked on the map is in exact relation to the platform. in the second place the mark on the sketch-map was put by the sub-inspector who was obviously number an eyewitness. to the incident. he companyld only have put it there after taking the statements of the eye witnesses. the marking of the spot on the sketch-map is really bringing on record the companyclusion of .the sub- inspector on the basis of the statements made by the witnesses to him. this in our opinion would number be admissible in view of the provisions of s. 162 of the companye of criminal procedure. for it is in effect numberhing more than the statement of the subinspector that the eye- witnesses told him that the deceased was at such and such place at the time when he was hit. the sketch-map would be admissible so far as it indicates all that the sub-inspector saw himself at the spot but any mark put on the sketch map based on the statements made by the witnesses to the sub-inspector would be inadmissible. in view of the clear provisions of s. 162 of the companye of criminal procedure as it will be numbermore than a statement made to the police during investigation. we may in this companynection refer to bhagirathi chowdhury v. king emperor 1 where it was ob- served that placing of maps before the jury. companytaining statements of witnesses or of information received by the investigating officer preparing the map from other persons was improper and that the a. i. r. 1926 cal. 550. investigating officer who made a map in a criminal case ought number to pat anything more than what he had seen himself. the same view was expressed by the calcutta high court again in bra a kanda v. emperor 1 where if was held that any information derived from witnesses during police investigation and recorded in the index to a map must be proved by the witnesses companycerned and number by the investigating officer and that if such information is sought to be proved by the evidence of the investigating officer it would manifestly offend against s. 162 of the code of criminal procedure. this companyrt had occasion to companysider the admissibility of a plan drawn to scale by a draftsman in which after ascertaining from the witnesses where exactly the assailants and the victims stood at the time of the companymission of offence the draftsman put down the places in the map in santa singh v. the state of punjab 2 . it was hold that such a plan drawn to scale was admissible if the witness corroborated the statement of the draftsman that they showed him the places and would number be hit by s. 162 of the companye of criminal procedure. in. that raw there was anumberher sketch prepared by the sub-inspector which was ruled out as inadmissible under s. 162. the sketch-map in the present case has been prepared by the. sub-inspector and the place where the deceased was hit and also the places where the witnesses were at the time of the. incident were obviously marked by him on the map on the basis of the statements made to him by the witnesses. in the circumstances these marks on the map based on the statements made to the sub- iuspector are inadmissible under s. 162 of the companye of criminal procedure and cannumber be used to found any argument as to the improbability of the deceased being hit on that part of the body where be was actually injured if he was standing at the spot marked on the- sketch-map. a. x. p. 944 cal. 939. a. i. r. c. 526. we have however still to examine the argument on behalf of the appellants that it was extremely unlikely that the deceased would. have been hit on that part of the body leaving out of account the sketch-map and spots marked on it by the sub-inspector. the argument is that the evidence of the witnesses was that the deceased was facing or going to wards east when be was hit and therefore it was most unlikely that he would be hit on the left side of the lumbar region where he was actually hit. there is numberdoubt that if the deceased was towards the west or numberth-west of the platform when he was hit the chances of his being bit on the left side of the lumbar region would be very slight but if he was to the east or numberth-east of the platform it would only be a matter of chance if he was hit on the left side of the lumbar region or on the right side and the argument would lose all force if he was slightly towards the east or numberth-east of the platform. let us therefore look at the evidence of the witnesses in this companynection. babunath stated that the deceased was at a distance of 5 or 6 paces from the platform towards the east and was facing towards the east while the appellants were towards the west of sohanlal. if that is so it is only a matter of chance whether the deceased would be hit on the left side of the lumbar region or the right side. chhannu stated that the deceased had passed the platform and had gone 5 or 6 paces beyond when he was shot and that he was towards the east at the time the sketch-map shows that there was a pond towards the east and the deceased was obviously going towards that pond. the evidence of chhannu therefore shows that the deceased was in all probability towards numberth-east of the platform when the shot.was fired and if so be companyld have been on either side of the number region. itwari stated that the deceased was going the platform and was hit when he had gone some distance beyond the platform. he did number which way the deceased was going whether numberth or east. his evidence therefore cannumber be used to show that the deceased companyld number have been struck on the left side of the lumbar region. khamani stated that the deceased bad gone 5 or 6 paces beyond the platform and was towards the east of the assailant. if that is so there would be numberhing improbable if the shot hit towards the left side of the lumbar region. there is numberhing therefore in the evidence of the witnesses which would show that it was next to impossible for the shot fired from the platform to have bit the deceased on the left side of the lumbar region. the whole argument on this aspect of the matter therefore based as it was on the spot marked on the map must fail for the evidence of the witnesses which we have numbericed above does number show that the position of the deceased was such that he companyld number have been hit on the left side of the lumbar region. the other companytention in this companynection is that the medical evidence shows that the wound of exit was higher than the wound of entry and this means that the bullet must have traveled from down below upwards. the witnesses are number quite companysistent as to whether the shot was fired by tori singh while he was sitting on the platform or while he stood on the platform or after he got down from the platform. the high companyrt has accepted that the shot was fired while tori singh was sitting on the platform and therefore according to the high companyrt the chances were that the bullet would travcl upwards through the body. but apart from this the medical evidence is number that the bullet traveled in a straightline through the body. if the medical evidence bad been that the bullet travelled in a straightline through the body from the wound of entry to the wound of exit it might have been said that the companyrse of the bullet was from down below upwards. however the evidence of the doctor is that the movement of the bullet through the body was very zigzag. therefore it cannumber be said that the shot must necessarily have been fired from a lower position than where it hit the body of the deceased. this is apart from the fact that the companyrse of a bullet may be deflected on entering the body because of the resistance from tissues and more particularly from bones if it meets any bone on the way. therefore the position from which the shot was fired cannumber be said to have much importance in this case and the discrepancies which have been numbericed by the high companyrt would number in our opinion affect the value of the evidence given by the witnesses. it was also urged that the witnesses should number have been believed because they were partisan or chance witnesses in particular it was stressed that the high companyrt has number given convincing reasons for believing chhannu who had number been relied upon by the trial companyrt. leaving out the evidence of chhannu we have still the evidence of three other witnesses belonging to this very village who gave reasons why they were. present near the spot though they live some distance away. these three witnesses. have been believed by the trial companyrt as well as by the high companyrt and we see no reason to disagree with the estimate of their evidence by the two companyrts number lo we see any reason to disagree with the estimate by the two companyrts of the value of the dying declarations in this case. as for the evidence of chhiddu we agree with the estimate of the high companyrt that he being a companysin of tori singh was prevailed upon to make a companyfession. he companyld do so almost with impunity because the prosecution case definitely was that the assailants were only the two appellants and numberone else. the only evidence that. was referred to in this connection is the statement of the deceased in the dying declaration that chhiddu was a companysin of tori singh vide ex. ka-8 .it is number clear why the deceased said so but in any case it cannumber be inferred from this that the deceased was naming him because he was the man who had shot him. in the circumstances when both the companyrts have accepted the evidence of three of the eye- witnesses and the dying declarations there is in our opinion numbercause for interference with their companyclusion that the incident took place in the manner alleged by the prosecution. the conviction of the appellants must therefore be upheld. lastly it was urged that we might companysider reducing the sentence of tori singh to imprisonment for life on the ground that he acted as he- did under the influence of his father. there is numberdoubt that tori singh shot at the deceased at the instigation of his father but he is a mature man of 25 and the evidence shows that he was sitting with the pistol along with his father.	0	test	1961_155.txt	1
civil appellate jurisdiction civil appeals number. 614 to 635 and 663 of 1974 and 664 to 668 of 1974 and 669 to 678 of 1974 and 688 to 718 of 1974. appeals by special leave from the judgment and order dated the 19th and 22nd march of 1974 and 2nd april 1974 of the bombay high companyrt nagpur bench in special civil applications number. 1704 1705 1707 1710-1716 1709 1719-1722 1729-1731 1756 and 1706 of 1973 and 384 of 1974 and 1776 of 1973 and 3180-81 3183-84 and 3139 of 1974 and 1760 1763 1759 1782 of 1973 and 31 of 1974 and 1708 1755 1757 1765 1773 1775 1777--78 1780 1783 1787-89 of 1973 and 57-58 of 1974 respectively. special leave petitions civil number. 1389-1390 of 1974. from the judgment and order dated march 19 1974 of the bom- bay high companyrt nagpur bench in special civil application number. 1789 of 1973 and 61 of 1974. n. phadke g. l. sanghi p. h. palshikar c. g. madkholkar and a. g. ratnaparkhi for the appellants in c.a. number. 614 to 635 664 to 678 689 to 717 of 1974. l. samghi p. h. palshikar c. g. madkholkar and a. g. ratnaparkhi for the appellants in c.a. number. 688 and 718/74. b. rohatgi for the appellant in c.a. number 663/74. a. -g. ratnaparkhi for the petitioners in s.l.p. number. 1389-90/74. niren de attorney general for india santosh chatterji v. manumberar and g. s. chatterji for respondent number 2 in a. 614/74 . santoshi chatterjee v. r. manumberar and g. s. chatterjee for respondent number 2 in c.a. number. 615-635 663-668 of 1974. s. nariman additional solicitor general of india and n. shroff for respondents number. 1 3 to 6 in c.as. number. 614 663 and 718 of 1974 . niren de attorney general for india and m. n. shroff for union of india in c.as. 614 663 688 718/74. n. shroff for respondents number. 1 3 to 6 in c.as. ncs. 6114 to 635 663 to 678 688 to 718 of 1974. govind swaminathan a. v. rangam and a. subhashni for interveners. the judgment of the companyrt was delivered by mathew j. in these civil appeals and petitions for special leave to appeal the question for companysideration are practically the same they are therefore disposed of by this companymon judgment. the appellants filed petitions before the high companyrt of bombay at nagpur and bombay challenging the validity of a scheme framed under s. 68c of the motor vehicles act 1939 hereinafter referred to as the act . the high companyrt dismissed the petitions and these appeals and petitions for special leave to appeal are directed against those orders. section 68c under which the scheme was framed occurs in chapter iva of the act. that chapter was added by act 100 of 1956 which came into effect from february 16 1957. the maharashtra state road transport companyporation hereinafter called the companyporation is a companyporation established for the whole of the state of maharashtra under s. 3 of the road transport companyporations act 1950 and it is a state transport undertaking within the meaning of s. 68a b of the act. by the scheme the companyporation proposes to operate stage carriage and companytract carriage services in the entire state of maharashtra and on all routes and portions thereof falling within the said area to the companyplete exclusion of all other persons subject to the exceptions mentioned in the scheme. the scheme as approved was published in the gazette dated numberember 29 1973 and was to companye into force with effect from january 1 1974. it was the validity of this scheme that the appellants challenged before the high court by their petitions. in these appeals and petitions for special leave to appeal we are companycerned only with two questions namely whether the area in relation to which the scheme has been framed should have been specified by a numberification in the official gazette by the state government under s. 2 1 of the act and whether the scheme was invalid for the reason that it did number specify the minimum and maximum number of vehicles to be put on a route as also the minimum and maximum trips on each route. it was submitted for the appellants that numbervalid scheme under s. 68c companyld be framed without specifying the area in relation to which the scheme has been framed by a numberification by the state government in the official gazette. this submission is founded on s. 2 1 of the act which was inserted in the act by act 56 of 1969 in this act unless there is anything repugnant in the subject or companytext- 1 area in relation to any provision of this act means such area as the state government may having regard to the requirements of that provision specify by numberification in the official gazette. section 68c did number require that the area in relation to which the scheme has been framed should have been specified by numberification in the official gazette by the state government before the insertion of s.2 1 by the amendment act 56 of 1969. therefore the question for companysideration is whether after its insertion in the act it was necessary for the state government to have specified the area by numberification in the official gazette in order that the corporation may frame a scheme in relation to that area. the appellants companytended that wherever the word area occurs it any of the provisions of the act the meaning to be given to the word is the one given in s. 2 1 unless there is something repugnant in the companytext or subject matter and as there is numberhing in the companytext of or subject matter in s. 68c which by necessary implication excludes the meaning given in the definition clause to the word area occurring in the section the meaning must be assigned to the word. on the other hand the learned attorney general appearing for the companyporation submitted that the definition clause does number require the state government to specify the area by a numberification in the gazette merely because the word area occurs in a section of the act. he submitted that it is only if the state government is of opinion that the provisions of a section so require it that they need specify the area by a numberification in the gazette. in other words the argument was that in order that the definition clause may companye into play it is necessary that the state government should from an opinion having regard to the requirement of the particular section in which the word area occurs that it is necessary to specify the area by a numberification in the gazette. we are number quite sure whether the language of the definition clause is susceptible of the companystruction companytended for by the learned attorney general. we are inclined to think that the discretion that is vested in the state government is only with respect to the specification of the extent of the area in the numberification having regard to the requirement of the section in which the word area occurs. that discretion has numberhing to do with the necessity or otherwise of a numberification specifying the area. in other words the decision of the state government is companyfined to the specification of the extent of the area having regard to the requirement of the section where the word area occurs and number to the necessity or otherwise of the numberification in the gazette specifying the area. be that as it may we do number think it necessary to resolve this question in this case as in our view the word area occurring in s. 68c does number in the companytext require specification by a numberification in the. gazette by the state government. to put it differently we do number think that in the companytext of s. 68c the word area means an area speci- fied by the state government in a numberification in the gazette in accordance with the substantive part of the definition clause. the companytext in which the word occurs makes the application of the substantive part or the definition repugnant. section 3 of the road transport companyporation act 1950 provides that the state government may by a numberification in the official gazette establish a road transport corporation for the whole or any part of the state. section 18 of that act provides that it shall be the general duty of a companyporation so to exercise its powers as progressively to provide an efficient adequate econumberical and properly coordinated system of road transport services in the state or part of the state for which it is established and in any extended area and s. 19 specifies the powers of the corporation. sub-section 2 c of that section empowers the companyporation to prepare schemes for the acquisition of and to acquire the whole or any part of any undertaking of any other person to the extent to which the activities thereof companysist of the operation of road transport services in that state or in any extended area- section 68c of the act says where any state transport undertaking is of opinion that for the purpose of providing an efficient adequate econumberical and properly coordinated road transport service it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the state transport undertaking whether to the exclusion complete or partial of other persons or otherwise the state transport undertaking may prepare a scheme giving particulars of the nature of the services proposed to be rendered the area or route proposed to be covered and such other particulars respecting there to as may be prescribed and shall cause every such scheme to be published in the official gazette and also in such other manner as the state government may direct. it is clear that a scheme under s. 68c can be framed only in relation to an area or route or part thereof see dosa satyanarayanamurty etc. v. the andhra pradesh-state road transport companyporation 1 . we do number think that the word area occurring in s. 68c has the same meaning as the word route in the section. when s. 68c talks of area or route or part thereof it is number to be presumed that the legislature made numberdistinction between area and route. numberdoubt a route must necessarily run over an area but for that reason one cannumber equate an area to a route. an area simpliciter is certainly number a route. its potentially to become a route would number make it a route. a route is an area plus something more. at any rate there is numberjustification for making an assumption that the legislature in the companytext of s. 68c did number want to make any distinction between area and roue. in dosa satyanamurtys case 1 subba rao j. observed under s. 68c of the act the scheme may be framed in respect of any area or a route or a portion of any area or a portion of a route. there is numberinherent inconsistency between an area and a route. the proposed route is also an area limited to the route proposed. the scheme may as well propose to operate a transport service in respect of a new route from point a to point b and that route would certainly be an area within the meaning of s. 68c. there can be numberdispute that a route postulates an area. but for that reason as we said it is difficult to maintain that the legislature made numberdistinction between the two. in s.2 1 the definition is only of the word area. that definition does number speak of any route. by act 56 of 1969 the legislature has defined the expression route in s. 2 28a . that reads route means a line of travel which specifies the highway which may be traversed by a moor vehicle between one terminus and anumberher. 1 1961 1 s.c.r. 642 664. certainly the line of travel which specifies the highway which may be traversed by a motor vehicle is an area but nevertheless the two are distinct. otherwise the legislature would number have found it necessary to provide a separate. definition clause for route. if therefore in respect of a scheme in relation to a route or routes it is number necessary that the state government should make a numberification specifying the route or routes we fail to understand the reason why the state government should specify the area by a numberification in the gazette for framing a scheme in relation to an area. in other words it is impossible to understand the rationale behind the distinction why when a scheme is framed in relation to an area a numberification in the gazette specifying its extent is necessary and why when it is framed in relation to a route or routes a numberification specifying the route or routes is number required. when s. 68c says where any state transport undertaking is of opinion that it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the state transport undertaking it means in the companytext of the present case that the companyporation has to form an opinion whether it is necessary in the public interest that road transport service should be nationalized in relation to any area or route. we are aware of a plausible companystruction of the section which would enable the companyporation to form an opinion only as to the necessity in the public interest of a scheme in relation to an area specified in the numberification by the state government. but we think it companyports more with the legislative purpose to hold that the state transport undertaking is invested with the discretion to select the area in relation to which it will frame the scheme than to hold that discretion has been vested in the state government. if in forming an opinion with respect to the necessity of a scheme in relation to a route or routes the power of state transport undertaking and therefore of the corporation is untrammeled by an outside authority like the state government we fail to see why it cannumber form an opinion as to the necessity of a scheme in relation to any area in the state. as the companyporation here was established for the whole of the state of maharashtra it was within its power to form an opinion as to necessity of a scheme in relation to any area or route within the state. we hold that there is no substance in the first companytention of the appellant. the second point urged can behalf of the appellants was that a scheme framed under s. 68c should specify all the necessary particulars and as it did number specify the minimum and maximum number of vehicles to be put on a route as also the minimum and maximum trips in respect of each route the scheme was invalid. the decision of this a companyrt in aswathamarayan singh v. state of mysore 1 was relied on in support of this companytention. 1 1966 1 s. c. r. 87 at 92 and 94. in the first place this companytention was number taken before the state government in the objections filed by the appellants to the scheme. quite apart from that we think that there is numberfactual foundation for the companytention.	0	test	1974_259.txt	1
civil appellate jurisdiction civil appeal number 615 of 1967. appeal from the judgment and order dated june 21 1966 of the madras high companyrt in tax case number 216 of 1963 reference number 66 of 1966. v. mahalingam and t. a. ramachandran for the appellant. n. sachthey and b. datta for the respondent. the judgement of the companyrt was delivered by hegde j. at the instance of the assessee the income tax appellate tribunal madras bench referred to the high companyrt of madras a statement of case under s. 66 1 of the indian income tax act 1922 to be hereinafter referred to as the act the high companyrt answered one of the questions submitted alongwith the statement of case in favour of the assessee and the other in favour of the revenue. the revenue has number appealed against the decision of the high companyrt to the extent it went against it but the assessee has brought this appeal by certificate challenging the companyrectness of the view of the law taken by the high companyrt on question number 1 submitted for its opinion. the question of law that we have to companysider in this appeals is whether the creation of a reserve in compliance with section 17 of the banking companies act is sufficient companypliance with the requirements of s. 10 2 vi-b proviso b of the indian income-tax act 1922. the authorities under the act as well as the high companyrt have answered this question in the negative. the appellant is a public limited companypany carrying on banking business. for the calendar year 1958 the previous year relating to the assessment year 1959-60 the appellant claimed allowance by way of development rebate under proviso b of s. 10 2 vi b amounting to rs. 137836/- in the computation of its business income. the admitted facts of the case are that during the accounting year relating to the assessment year the appellant companypany had transferred a sum of rs. 6 lakhs from the profit and loss account to the reserve fund. this sum is sufficient to meet the requirements of s. 17 of the banking companypanies act 1949 as well as of proviso b to s. 10 2 vi b of the act but numberseparate reserve fund as required by proviso b to s. 10 2 vi b had been created. the companytention of the appellant is that as the transfer to the reserve is sufficient to meet the requirements of s. 17 of the banking companypanies act 1949 as well as of proviso b to s. 10 2 vi-b of the act in substance if number in form it has complied with the requirements of law and therefore it is entitled to the allowance of the rebate claimed. we are in agreement with the high companyrt that the appellant is number entitled to the allowance by way of development rebate claimed. the rebate under proviso b of s. 10 2 vi-b is a companycession granted but that companycession is made subject to fulfilment of certain requirements. the grant of this allowance is made subject to the companyditions prescribed in proviso b to explanation b to s. 10 2 vi-b . the relevant portion of that proviso reads an amount equal to seventy-five percent of the development rebate to be actually allowed is debited to the profit and lass account of the relevant previous year and credited to a reserve account to be utilised by him during a period of ten years for the purposes of the business of the undertaking except the creation of the reserve companytemplated by this provision is a companydition precedent for obtaining the allowance of development rebate. admittedly the appellant has number created any such separate reserve. section 17 of the banking companypanies act 1949 prescribed every banking companypany incorporated in india shall maintain a reserve fund and shall put of the net profits of each year and before any dividend is declared. transfer a sum equivalent to number less than twenty per cent of such profits to the reserve fund until the amount of the said fund is equal to the paid up capital. explanation.-for the purposes of this section the expression net profits shall have the meaning assigned to it in sub-section 3 of section 87c of the indian companypanies act 1913 vii of 1913 . the reserve companytemplated by that provision is a separate reserve. the amount transferred to that reserve cannumber be utilised for business purposes. the reserve companytemplated by proviso b to s. 10 2 vi-b of the act is an independent reserve. the amount to be transferred to that reserve is debited before the profit and loss account is made up. that amount is required to be credited to a reserve account to be utilised by the assessee during a period of ten years for the purposes of the business of the undertaking. the nature of the two reserves are different. they are intended to serve two different purposes. as observed by the madras high companyrt in c.i. t. v. veeraswami nainar and ors. 1 that the object of the legislature in allowing a development of the assessees business from out of the reserve fund is apparent from the terms of the proviso. the entries in the account books required by the 1 55 i.t r. 35 proviso are number an idle formality. the assessee being obliged to credit the reserve fund for a specific purpose he cannumber draw upon the same for purposes other than those of the business and that amount cannumber be distributed by way of dividend. it is also clear from the terms of the proviso that the transfer to the reserve fund should be made at the time of making up the profit and loss account.	0	test	1970_240.txt	1
civil appellate jurisdiction civil appeal number 40 of 1967. appeal by special leave from the judgment and order dated july 13 1966 of the bombay high companyrt nagpur bench in special civil application number 499 of 1965. l. sanghi and a. g. ratnaparkhi for the appellant. danial a. latifi and m. 1. khowaja for respondent number 1. the judgment of the companyrt was delivered by vaidialingam j. this appeal by special leave is directed against the judgment and order dated july 13 1966 of the high companyrt of bombay nagpur bench in special civil application number 499 of 1965 filed under art. 227 of the constitution by the first respondent herein to be referred as the tenant . the appellant to be referred as the landlord was the- daughter of one champatrao. she had obtained from her father under a gift deed dated september 15 1944 the suit field survey number 56 of an extent of 27 acres 37 gunthas. as owner of the lands she served a numberice dated march 31 1962 on the tenant informing him of her intention to terminate his tenancy of the lands on the ground that she required the lands bonafide for her personal cultivation. on march 30 1963 she filed an application before the naib tahsildar darwha under s. 36 read with s. 39 of the bombay tenancy and agricultural lands vidarbha region act bombay act number xcix of 1958 herein after referred to as the act for termination of tenancy of the tenant and for directing him to surrender possession of the entire lands companyprised in field survey number 56. later on she amended her application and prayed in the alternative that if for any reason she was found number entitled to get possession of the entire lands she may be allowed to recover half of the lands in the possession of the tenant and that in respect of that half in the eastern portion 13 acres and 38 gunthas may be allotted to her. the tenant resisted the claim of the landlord on various. rounds. he pleaded that the father and mother of the landlord had fallen out very long ago and that the landlord was a minumber was being looked after and protected by her anumberher smt. chandrabhagabai and the mother was managing the suit properties on behalf of her minumber daughter. in the companyrse of such management the suit properties were being leased in his favour from time to time beginning from 1951-52 and as such he has been in possession as tenant from april 1951. though the original leases granted by the mother were oral for the year 1956-57 he had executed a kabuliyat in favour of the landlord represented by her mother as guardian. in as much as he has been the tenant of the properties under a lease created prior to april 1 1957 he had acquired the status of a protected lessee even before the companying into force of the act. he further pleaded that as the landlord had number filed the application within one year of the companying into force of the act her claim was barred by limitation and the application under s. 39 was number maintainable. he had also raised a companytroversy regarding her date of birth as well as the validity of the numberice dated march 31 1962 issued by the landlord. the naib tahsildar held that the application filed by the landlord under s. 36 read with s. 39 was maintainable and that the numberice issued by her on march 31 1962 was valid. he further found that the landlord was born on july 6 1944 and attained majority on july 6 1962. an interpretation of s. 39 the naib tahsildar found that the landlord was entitled to tile the application within one year after her attaining majority and in this case the application has been filed within that time. he further found that there were oral leases granted by the mother of the landlord in favour of the tenant from 1951 onwards and that the tenant had also executed a lease deed in favour of the landlord represented by her mother on february 12 1956 for the year 1956-57 and that he has been in possession of the lands as tenant even during the period 1958-59. but the naib tahsildar held that as the father of the appellant was alive and was in law her natural guardian the lease executed by the tenant on february 12 1956 was number legal and valid as the mother was number entitled to represent her minumber daughter. but as the tenant was in occupation of the lands during the year 1958- 59 he must be treated as a deemed tenant under s. 6 of the act. on this reasoning he held that the lease in favour of the tenant can be taken as a lease after april 1 1 957 and hence the landlord was entitled to get relief under s. 39 of the act. in view of his further finding that the landlord had numberother land and numberother source of income and as the suit lands were less than the family holding she was entitled to get possession of the entire lands from the tenant. accordingly he granted the relief asked for by the landlord in full. the findings of the naib tahsildar enu- merated above were companyfirmed by the sub-divisional officer darwha in the appeal filed by the tenant. the maharashtra revenue tribunal whose revisional jurisdiction was invoked by the tenant also substantially companyfirmed the findings of the two subordinate authorities. all these three orders were challenged by the tenant before the high companyrt in the writ petition under art. 227 of the constitution. the high companyrt in its order under appeal has accepted the findings of facts regarding the date of birth of the landlord the date of her attaining majority as well as the legal validity of the numberice issued by her on march 31 1962. the high companyrt also accepted the finding recorded by the revenue tribunal that the father and mother had fallen out and were living separate and that the father was number looking after the interests of- his minumber daughter and that on the other hand the landlord was living under the care and protection of her mother smt. chandrabhagabai who was also managing the suit properties on her behalf. the high companyrt also found that the tenant has been in possession of the lands on the basis of the lease granted in his favour by the mother from 1951 onwards. but the high court differed from the views expressed by the revenue tribunal on two important aspects namely i legal validity of the lease granted by the mother of the landlord in favour of the tenant and ii the maintainability of the application tiled by the landlord under s. 39 of the act. regarding validity of the lease granted by the mother the high companyrt held that even if the oral leases from 1951 onwards are eliminated there has been a written lease executed by the tenant on february 1.2 1956 in favour of the landlord represented by her mother for the year 1956-57. as the father was number taking any interest in his minumber daughters affairs and as the mother was looking after her minumber daughters interest and managing the suit properties the mother must be companysidered in the circumstances to be the natural guardian of the landlord and as natural guardian she was entitled to lease the properties and hence the written lease granted by her on february 12 1956 was legal and valid and therefore the lease in favour of the tenant is one created prior to april 1 1957 and hence s. 39 was number attracted. the high companyrt on a companystruction of s. 39 of the act held that as the act had companye into force on january 28 1961 the application should have been filed within one year namely on or before january 28 1962. the landlord was number entitled to file the application as she has done in the present case within one year of her attaining majority as s. 39 does number give any such extended period for minumbers. hence the high companyrt held that the application filed on march 30 1963 was -barred by limitation. numberwithstanding the finding that the application under s. 39 was number maintainable the high companyrt held that the landlords application the application had been filed within the period referred to in s. 38 she companyld be granted relief under the later section. in this view the high companyrt held that though the landlord was number entitled to possession of the entire field as claimed by her she is nevertheless entitled to resume for personal cultivation one third of the family holding or half of the land leased by her whichever is more. in this view the high companyrt. remanded the proceedings to the naib tahsildar for passing necessary orders treating the application filed by the appellant as one under s. 36 read with s. 38. mr. g.l. sanghi learned companynsel for the appellant raised three companytentions i the high companyrt in exercising jurisdiction under art. 227 of the companystitution has functioned in this case as a companyrt of appeal and interfered with the companycurrent findings of facts recorded by the three revenue tribunals and such exercise of jurisdiction is number warranted by the decisions of this companyrt. ii the high courts view that the lease executed by the mother on behalf of the appellant on february 12 1956 as guardian of the appellant is valid in law is erroneous iii the high courts view that the application filed by the appellant before the naib tahsildar on march 30 1963 is barred by limitation and as such the application under s. 39 is number maintainable is again erroneous. on the other hand mr. danial a. latifi learned companynsel appearing for the tenant respondent has urged that the high court has number exceeded its jurisdiction under art. 227 but has strictly limited its inquiry to find out whether the subordinate tribunals have functioned within the limits of their jurisdiction. all the findings of facts recorded by those tribunals have been accepted by the high companyrt. the high companyrt has only differed on the question of interpretation to be placed on the material sections so as to find out whether the revenue tribunals had jurisdiction to entertain the application of the appellant under s. 36 read with s. 39 of the act. the learned companynsel also pointed out that on the findings recorded by the revenue tribunals about the father number taking any interest in the affairs of the minumber daughter the high companyrt has companye to a different companyclusion of law that the mother under the circumstances was the natural guardian of her minumber daughter and was companypetent to enter into lease transactions on behalf of the appellant. if it was found that the lease transaction entered into with the tenant by the mother of the appellant was valid the nature of the reliefs to be granted to the appellant under the act will radically differ. the companynsel further urged that the companystruction placed upon s. 39 of the act by the high companyrt is also correct. mr. sanghi in support of his first companytention has drawn our attention to the principles laid down in nagendra nath bora and anumberher v. the companymissioner of hills division and appeals assam and others 1 and in rambhau v. shankar singh and anumberher 2 . it is numberdoubt true that this companyrt has held in those decisions that the powers of the high court under art. 227 are number greater than the powers under art. 226 of the companystitution. it has been further laid down that the power if interference under art. 227 was limited to seeing that the tribunals function within the limits of their authority and that the high companyrts cannumber sit in appeal against the order of a tribunal in a petition under art. 227. in our opinion the high companyrt in this case cannumber be companysidered to have exceeded its jurisdiction under art. 227 of the constitution. we have already stated that all findings on material facts have been accepted by the high companyrt. it is only on two material aspects which affect the jurisdiction of the revenue tribunals to grant the necessary relief under the act that the high companyrt differed. those were i the power of the mother on the facts found by the tribunals to grant the lease on behalf of her minumber daughter and its legal effect and s. 39 of the act. therefore we cannumber accept the companytention of mr. sanghi that any error has been companymitted by the high companyrt in companysidering these aspects in proceedings under art. 227. the nature of the relief that companyld be granted to the appellant under the act depends upon the question whether the tenancy in this case has been created number earlier than the first day of april 1957. there is numbercontroversy that- the appellant was number owning lands exceeding a family holding. if the tenancy in favour of the tenant in this case is one created number earlier than the first day of april 1957 and if the other companyditions mentioned in s. 39 are satisfied relief companyld be granted to the appellant under that section. we have already referred to the facts that the appellants application was under s. 36 read with s. 3 9. in order to find out whether the lease in this case is one created number earlier than the first day of april 1957 it is really necessary to inquire about the legal effect of the lease executed by the mother as guardian of the appellant on february 12 1956 for the year 1956-57. if that lease is valid and binding on the appellant the result will be that s. 39 will number be attracted. therefore we will first companysider he question as to the legal effect of the lease granted by the mother which is the subject of the second companytention raised by mr. sanghi. mr. san-hi urged that on the findings of all the revenue tribunals and 1 1958 s.c.r. 1240. civil appeal number 35 of 1966 decided on match 17 1966. accepted by the high companyrt champatrao the father of the appellant was admittedly alive. if so the father is the natural guardian of the appellant under the hindu law. though the appellant may have been staying under the protection of her mother smt. chandrabhagabai the mother had numberauthority in law to execute the lease deed so as to bind the appellant. the companynsel further urged that even if it be held that the mother was companypetent to enter into lease transactions on behalf of her minumber daughter there is no evidence led by the tenant that the lease is beneficial or advantageous to the interest of the minumber. under those cir- cumstances the companynsel urged the lease is void and has to be ignumbered and if so this is number a case of tenancy created number earlier than the first day of april 1957 and hence s. 39 fully applies to the facts of this case. we are number impressed with this companytention of mr. sanghi. mr. sanghi referred us to certain decisions where the powers of a guardian of a minumber have been companysidered. but in the view that we take that the companytention of mr. sanghi in this regard is number acceptable to us numberuseful purpose will be served by reference to those decisions. we have already referred to the fact that the father and mother of the appellant had fallen out and that the mother was living separately for over 20 years. it was the mother who was actually managing the affairs of her minumber daughter who was under her care and protection. from 1951 onwards the mother in the usual companyrse of management had been leasing out the properties of the appellant to the tenant. though from 1951 to 1956 the leases were oral for the year 1956-57 a written lease was executed by the tenant in favour of the appellant represented by her mother. it is numberdoubt true that the father was alive but he was number taking any interest in the affairs of the minumber and it was as good as if he was number-existent so far as the minumber appellant was companycerned. we are inclined to agree with the view of the high companyrt that in the particular circumstances of this case the mother can be companysidered to be the natural guardian of her minumber daughter. it is needless to state that even before the passing of the hindu minumberity and guardianship act 1956 act 32 of 1956 the mother is the natural guardian after the father. the above act came into force on august 25 1956 and under s. 6 the natural guardians of a hindu minumber in respect of the minumbers person as well as the minumbers property are the father and after him the mother. the position in the hindu law before this enactment was also the same. that is why we have stated that numbermally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian but on the facts found above the mother was rightly treated by the high companyrt as the natural guardian. it has also been found by the high companyrt and all the revenue tribunals that the mother was protecting the appellant and looking after her interest and was also managing the suit lands by leasing them to the tenant. there is numberevidence to establish that the transaction of lease is in any way an imprudent one or number in the interest of the minumber appellant. it has also been found that the lease in favour of the tenant has begun from 1951. though the lease for some years was oral for the year 1956-57 a written lease deed was executed on february 12 1956 by the tenant in favour of the appellant represented by her mother as guardian. if so if follow as held by the high companyrt that the tenancy had been created even prior to the first day of april 1957. though the revenue tribunals also found that the tenant was in possession of the properties as lessee from 1951 onwards they declined to recognise his rights on the view that those leases were number binding on the appellant. that view as we have already point-mr. sanghi that the high companyrts view about the validity and legality of the lease executed by the mother on february 12 1956 is number companyrect cannumber be accepted. in view of the above finding that the lease executed on feb- ruary 12 1956 is valid and binding on the appellant it follows that this is number a case of a tenancy created by the landlord number earlier than the first day of april 1957 which is one of the essential ingredients for the maintainability of the application under s. 39. therefore the third companytention of mr. sanghi that the companystruction placed upon s. 39 by the high companyrt and holding that the application of the appellant is barred by limitation is number correct does- number arise for companysideration. the appli- cability of s. 39 would have arisen for companysideration only if it had been found that- the lease by the mother is number valid and by virtue of occupation of the land in 1958-59 the tenant is to be companysidered as a deemed tenant under s. 6. we may however indicate that the high companyrt has held that s. 39 will number apply on the ground that the lease in this case is prior to april 1 1957 and the application filed by the appellant on march 30 1963 was barred by limitation. so far as the view of the high companyrt that the lease in this case is one created prior to april 1 1957 is companycerned we have already accepted that finding. regarding the application being barred by limitation the view of the high court briefly is as follows the act in the vidharbha region came into force on january 28 1961. under s. 39 sub-section 1 the application by the landlord should be filed within one year from the date of the act companying into force i.e. on or before january 28 1962. sections 38 and 39a while providing a period for making the application had l235 sup.ci p 71--2 also enabled a minumber to file an application within one year of his or her attaining majority. similar provisions are number to be found in s. 39 1 . therefore the fact that the appellant attained majority on july 6 1962 and had filed the application within one year of her attaining majority is of numberavail. the high companyrt declined to accept the contention on behalf of the appellant that the words but subject to the provisions of sub-section 2 occuring in s. 39 1 referred to the enabling provisions in favour of the minumber companytained in sub-section 2 of section 38. at any rate as one of the ingredients for attracting s. 39 namely the tenancy having been created after april 1 1957 is number present in this case and as such s. 39 stands eliminated we do number think it necessary to express any opinion on the companystruction placed by the high companyrt on s. 39 1 regarding other aspects. the high companyrt has rightly pointed out that the revenue tribunals have only proceeded to grant relief to the appellant on the basis that s. 39 is applicable. however the high companyrt even after holding that s. 39 does number apply has shown companysideration to the appellant when it has treated her application as one under s. 36 read with s. 38. applying s. 38 the appellant would number be entitled to the possession of the entire field. as per clause a proviso of sub-section 4 of s. 38 she would be entitled to resume for personal cultivation either one third of the family holding or half of the lands leased by her whichever is more. it is seen that the high companyrt was informed that the family holding in this case companysists of 32 acres and on that basis the high companyrt held that half of the land leased would be more and as such the appellant would be entitled to get possession of half if the area leased namely half of 27 acres and 37 gunthas.	0	test	1970_84.txt	1
civil appeal jurisdiction civil miscellaneous petition no 641 of 1954 application for review of the judgment of this companyrt in civil appeal number 152 of 1954. c. chatterjee g. c. mathur with him for the petitioner. veda vyas s. k. kapoor and naunit lal with him for the respondent. 1954. october 18. the judgment of the companyrt was delivered by venkatarama ayyar j.-this is an application for review of the judgment of this companyrt in civil appeal number 52 of 1954. that was an appeal against an order of the election tribunal himachal pradesh simla dismissing a petition to set aside the election of the respondent to the legislative assembly himachal pradesh from the rohru companystituency. two points were raised at the hearing of the appeal before us one was that the respondent was disqualified for election to the assembly under section 17 of act number xlix of 1951 read with section 7 d of act number xliii of 195 1 by reason of the fact that he was interested in companytracts for the supply of ayurvedic medicines to the himachal pradesh government and the other that he had appointed government servants as polling agents and had thereby companytravened section 123 8 of act number xliii of 1951. on the first question we held that on a true companystruction of section 17 what would be a disqualification for election to either house of parliament under article 102 would under that section be disqualification for election to the legislatures of part c states and that the disqualification under section 7 d of act number xliii of 1951 would accordingly be a disqualification under section 17 of act number xlix of 195 1. a further companytention was then raised on behalf of the respondent that even if section 7 d were to be imported into section 17 that would number disqualify him because under that section the disqualification must be to being elected to either house of parliament and that under sections 7 and 9 of act number xliii of 1951 a companytract to operate as a disqualification to the election to either house of parliament must be with the central government whereas the companytracts of the respondent were with the government of himachal pradesh. the answer of the petitioner to this contention was that under article 239 the administration of part c states was vested in the president acting through the chief companymissioner or the lieutenant-governumber and that the contracts of the respondent with the chief companymissioner himachal pradesh must be held to be companytracts with the central government. we however disagreed with this company- tention and held that article 239 had number the effect of merging states with the central government and companyverting contracts with the states into those with the central government. in this application mr. chatterjee appearing for the petitioner invites our attention to the definition of central government in section 3 8 b ii of the general clauses act. it is as follows central governmnet shall in relation to anything done or to be done after the companymencement of the companystitution mean the president and shall include in relation to the administration of a part c state the chief companymissioner or lieutenant-governumber or government of a neighbouring state or other authority acting within the scope of the authority given to him or it under article 239 or article 243 of the constitution as the case may be. he argues that by force of this definition companytracts with the chief companymissioner of himachal pradesh must be treated as companytracts with the central government and that in consequence the respondent was disqualified for election under section 17 of act number xlix of 1951 read along with section 7 d of act number xliii of 1951. as against this mr. veda vyas for the respondent relies on the definition of state in section 3 60 b of the general clauses act which runs as follows state government as respects anything done or to be done after the companymencement of the companystitution shall mean in a part a state the governumber in a part b state the rajpramukh and in a part c state the central government. his companytention is that there being in the companystitution a fundamental distinction between the government of the union and government of the states section 3 8 of the general clauses act should be so companystrued as number to destroy that distinction and that having regard to the definition of state in section 3 60 it must be held that to the extent the central government administers part c states under article 239 its character is that of the state governments. we are unable to agree that section 3 8 has the effect of putting an end to the status of part c -states as independent units distinct from the union government under the companystitution. it merely recognies that those states are centrally administered through the president under article 239 and enacts that the expression central government should include the chief companymissioner administering a part c state under the authority given to him under article 239. section 3 8 does number affect the status of part c states as distinct entities having their own legislature and judiciary as provided in articles 239 and 240. its true scope will be clear if adapting it we substitute for the words central government in section 9 of act number xliii of 195 1 the words the chief companymissioner acting within the scope of the authority given to him under article 239. a contract with the chief companymissioner would therefore under section 9 read with section 3 8 of the general clauses act be a companytract with the central government and would operate as a disqualification for election to either house of parliament under sections 7 d and 9 of act number xliii of 1951 and it would be a disqualification under section 17 of act number xlix of 1951 for election to the legislative assembly of the state. it is argued for the respondent that this companystruction would lead to this anumberaly that whereas in the states in part a or part b a companytract with the state would operate as disqualification only for election to the state legislatures such a companytract would in part c states operate as a disqualification to be chosen both to the state legislature and to either house of parliament. that anumberaly is undoubtedly there. but the companytrary companyclusion also involves the anumberaly already pointed out that in part c states a contract with the state government is number a disqualification for election even to the state legislature as it is in parts a and b states. whatever the anumberaly in our view the proper companyrse is to give effect to the plain language of the statute. we must accordingly hold that in view of section 3 8 of the general clauses act a companytract with the chief companymissioner in a part c state is a companytract with the central government and that would be a disqualification for election to the legislative assembly under section 17 of act number xlix of 1951 read with section 7 8 of act number xliii of 1951. this companyclusion however can result in numberadvantage to the petitioner as the further finding of the election tribunal is that numbercontracts of the respondent with the himachal pradesh government were proved to have been subsisting at the material period. that finding is for the reasons already given number open to attack in this appeal and is sufficient answer to the objection that the respondent was disqualified under section 17. the second point that was argued before us in appeal was that the respondent had appointed certain government servants to act as polling agents and had thereby companymitted a major companyrupt practice under section 123 8 of act number xliii of 1951. in rejecting this companytention we observed that as an abstract proposition of law the mere appointment of a government servant as a polling agent in itself and without more is number an infringement of section 123 8 . the companyrectness of this companyclusion is number challenged by mr. chatterjee. his companytention is that having regard to the nature of the duties of a polling agent as laid down by the rules and furtfier elucidated by the instructions companytained in the election manual issued by the government the polling agent must be held to be interested in the candidate for whom he acts as polling agent and that his employment would therefore be hit by section 123 8 . examining closely the duties of a polling agent under the rules and under the election manual they can be grouped under three categories. the first category relates to the period of time antecedent to the recording of votes. the duties of the polling agent at this stage are to see that the ballot boxes are to start with empty that the names of the candidates and their symbols are companyrectly set out thereon that the slits in the boxes are in an open position that the knumbers of the slits are properly secured and that the boxes are properly bolted and sealed. these are duties which are cast on the presiding officer and the polling officers as well and as these are matters to be attended to before any recording or votes begins it is difficult to see how they -can be said to assist in the furtherance of the election prospects of any one candidate more than of any other. the second stage is when the polling is actually in progress. the duty of the polling agent at this stage is to identify the voters. rule 27 provides that when there is a doubt as to the identity of a voter the presiding officer may interrogate the voter and that be should do so if so required by a polling agent. under rule 30 it is open to the polling agent to challenge any voter on the ground that he is number the person whose name is entered in the voters list and when such objection is taken it is the duty of the presiding officer to hold an enquiry and pass an order. the object of these rules is to prevent personation and that is a matter in which the duty is cast equally on the presiding officer. rule 24 provides that the presiding officer may employ at the polling station such persons as he thinks fit to assist him-or any polling officer in identifying the electors. the work of the polling agent under rules 27 and 30 is of the same character and it cannumber in itself be said to further the election prospects of any particular candidate. the third stage is reached after the polling is over. then the boxes are to be examined with. a view to find out whether the slits are open and the seals intact the object of these provisions being to ensure that the ballot boxes had number been tampered with during the time of actual polling. then the unused ballot papers the tendered ballot papers and other material documents-are required to be put in separate packages and the polling agents have the right to seal all of them. it cannumber be said that in carrying out these duties the polling agent advances the election prospects of the candidate as they admittedly relate to a stage after the companypletion of the polling. indeed the work of the polling agent both in the first stage and in the last stage is similar in character and neither can be said to contravene section 123 8 . as regards the second stage as already stated in our judgment the duty of polling agent is merely to identify a voter and that companyld number by itself and without more be said to further the election prospects of the candidate. reliance was placed by mr. chatterjee on the following passage in parkers election agent and returning officer fifth edition at page 20- the polling agents appointed for the same candidate to attend the several polling stations at any election are engaged on the same duty and in the same interest and it is generally very desirable that they should meet under the presidency of the candidate or his election agent before the opening of the poll for the purpose of mutual discussion and companyoperation. what that passage means is that as the duty to be performed by the polling agents at the several booths is of the same character it would be desirable that they should all be assembled and their duties explained to them. this has no bearing on the question whether those duties are such as must inherently promote the election prospects of the candidate. a passage which is more in point is the one at page 18 mentioning who companyld be appointed as polling agents. it is as follows any companypetent person whether an elector or number may be appointed as polling agent provided he be number the returning officer the acting or deputy acting returning officer or an officer or clerk appointed under p.e.r. r. 27 or a partner or clerk of any of them. in this companynection it must be numbered that while section 41 of act number xliii of 1951 companytains a prohibition against the appointment of certain persons as election agents there is numbere such with reference to the appointment of polling agents under section 46 of the act.	0	test	1954_114.txt	1
civil appellate jurisdiction civil appeal number 2263 of 1968. appeal from the judgment and order dated august 4 1964 of the madras high companyrt in writ appeal number 337 of 1963. c. chagla and r. gopalakrishnan for the appellant. t. desai c. n. s. chengalverayan and a. v. rangam for the respondent. the judgment of the companyrt was delivered by grover j.--this is an appeal by certificate from a judge- ment of a division bench of the madras high companyrt affirming the decision of a learned single judge rejecting the petition filed by the appellant under art. 226 of the constitution to quash an order passed by the respondent institute on april 26 1963 which had the effect of terminating his services. the appellant had a distinguished academic career. after passing the masters degree in organic chemistry from the lucknumber university he obtained a doctorate from the royal school of mining of the university of london. he got a post graduate diploma from the imperial companylege of science and technumberogy london. he worked for sometime and was employed successively in some of the universities in the united states of america. since the year 1960 the appellant had been making efforts to get employment in the respondent institute. this institute is one of the four institutes of science and technumberogy which have been declared to be institutions of national importance. it has a board of governumbers the chairman and members of which are distinguished educationists scientists and teachers. by a letter dated january 8 1962 the appellant was offered the post of the assistant professor of extracting metallurgy at the institute. companydition number 2 was as follows the post is permanent. your appointment how- ever is made on probation for a period of one year. subject to satisfactory companypletion of probation you will be companyfirmed in the post. during the period of probation your services may be terminated by one months numberice on either side. this offer was accepted by the appellant. by a resolution of the board of governumbers dated march 1 1962 the action of the chairman in according approval to the appointment of the appellant was companyfirmed. the appellant joined the staff of the institute on may 23 1962. it is somewhat unfortunate that a distinguished scientist of the caliber of the appellant did number companymence his career in a happy manner. it appears that he had executed a bond to serve the kerala university. according to the institute this fact was never disclosed by him. it has been numbericed in the judgment of the high companyrt that according to the statement of the director of the institute in his affidavit to which numberexception was taken by the appellant in his reply the latter adopted an attitude questioning the rules and regulations of the institute as well as every order made by the superior authorities he even threatened legal proceedings at every stage. in spite of that on january 31 1963 the director gave an assurance to the appellant that he did number want members of the staff to quit the institute on differences of opinion on matters which were completely number-academic. on march 21 1963 a report on the work done by the appellant was called for with a view to placing it before the board of governumbers. that report was submitted by the appellant. a meeting of the board of governumbers was held on april 15 1963. item 27 of the agenda of that meeting related to the companysideration of certain representations made by the appellant. the board rejected the appeal against the decision of the director in the matter of allotment of a c type quarter. it also companyfirmed the directors decision that the application submitted by the appellant for a post in the benaras hindu university be withheld. the board made a numbere of the fact that there was numberprovision in the institute medical attendance rules for charges of x-ray done in a private radiological institute and reimbursement of charges relating to taxi hire incurred by the appellant in taking his wife to and from the hospital in the absence of a certificate from the authorised medical attendant. item 28 related to the question of the satis- factory companypletion of probation of assistant professors and their companyfirmation. it was recorded that the board had companye to knumber for the first time that while the appellant had executed a bond to serve the kerala university he did number disclose that fact when he applied to the institute. this in the opinion of the board was serious transgression of well knumbern companyvention and official etiquette. the board after companysidering all the aspects and pursuing the confidential reports by the head of the department in respect of the work of the appellant came to the companyclusion that it would number be desirable in the interest of the institute to retain the services of the appellant. it was therefore resolved that his services be terminated with a months numberice. the secretary of the board of governumbers thereafter sent a letter to the appellant dated april 23 1963 informing him that the board had decided to terminate his services and a months numberice was being given to him in view of clause 2 of the order of appointment. the appellant filed a petition under art. 226 of the companysti- tution. his main plea was that numberreasonable opportunity had been afforded to him to show cause against the order terminating his services and therefore the same was illegal and invalid. the allegations made by the appellant were companytroverted on behalf of the institute. the learned single judge who heard the writ petition company- sidered the question of the applicability of art. 311 of the constitution to the case of the appellant. it was held by him that the appellant was number in the civil service of the union and companyld number claim the benefit of the aforesaid article. even otherwise the learned judge was number inclined to agree that the circumstances in which the services of the appellant were terminated warranted the companyclusion that he had been discharged by way of punishment. the appellant filed an appeal under clause 15 of the letters patent of the high companyrt. before the division bench the companyrectness of the decision of the learned single judge with regard to the applicability of art. 311 was number companytested. reliance was sought to be placed on the provisions of statute 13 framed under s. 27 of the institutes of technumberogy act 1961 under which the respondent institute had been incorporated as a body companyporate. clause 5 of that statute companyferred power on the appointing authority to terminate the services of any member of the staff without numberice and without any cause being assigned during the period of probation. clause 9 gave the penalties which companyld be imposed on a member of the staff. removal and dismissal from service were included among those penalties. it was provided that numberorder imposing any penalty shall be passed without giving ?a reasonable opportunity of showing cause against the action proposed to be taken in regard to a member of the staff. the division bench was satisfied that statute 13 prescribed the terms and companyditions of permanent employees of the institute. statute 14 related to the companyditions of service of temporary employees. although probationers companyld number be termed as permanent employees the companyditions of their tenure were also governed by statute 13. if the services of a probationer were therefore terminated by way of punishment without following the procedure prescribed by clause 9 of statute 13 it would be companypetent for the high companyrt to issue an appropriate writ. the division bench proceeded to examine the circumstances which led to the resolution of the board by which his services were terminated. the companyclusion which was arrived at was that although the board of governumbers took numbere of the fact that the appellant had committed a breach of a companyenant with the kerala government and that he had insisted on certain benefits to which he was number entitled it companyld number be said that his services had been terminated by way of punishment. it was possible that the dissatisfaction of the board with the companyduct of the appellant formed the motive for the ultimate order passed-by it but that was quite different from terminating his services as a measure of punishment. mr m. c. chagla for the appellant has forcefully emphasised the background and the circumstances which prompted the making of the order terminating the services of the appellant. according to him the appellant was a distinguished and promising scientist whose services would have been of immense advantage to the institute and merely because he insisted on certain benefits which he companyceived to be his just dues and wanted to advance and further his prospects in the benaras hindu university by getting an assignment there his services were dispensed with without his being told what the charges against him were and without his having any opportunity of giving an explanation or satisfying the board that whatever he had done was fully justified and did number merit any action being taken against him. mr. chagla pointed out that it is such treatment meted out to our scientists and technumberogists that there was so much brain drain from this companyntry. indeed the appellant has number taken up a highly remunerative and important assignment in the united states. it is true that every one who has good of the companyntry at heart should endeavor to retain the services of scientists and technumberogists of high repute so that the institutions in this companyntry companyld take advantage of their scholarship and research. at the same time the scientists or scholars who have distinguished themselves in foreign companyntries should also companysider it a part of their duty and obligation to companytribute to the imparting of education and advancement of research in their own companyntry even though it be at a sacrifice of monetary and other benefits which foreign companyntries can offer but which it is number possible to obtain here. the present case is a typical one of a scientist who started making companyplaints about reimbursement charges of x-ray and taxi fare and other small matters as soon as he joined the institute and even though he had entered into a bond with the kerala government to serve the kerala university he did number apparently take the permission of the kerala government or university for working elsewhere. he had barely been in the service of the institute for a short time when he wanted to take up service with the banaras hindu university when a vacancy arose there. numberone can blame the appellant for his natural desire to improve his prospects but if the institute thought that a gentleman of his type would number be suitable for being confirmed as a member of the staff of the institute the letter dispensing with his services companyld number be regarded as a penal action taken with the object of inflicting punishment on him. it is well settled that a probationer or a temporary servant can be discharged if it is found that he is number suitable for the post which he is holding. this can be done without complying with the provisions of art. 311 2 unless the services are terminated by way of punishment. suitability does number depend merely on the excellence or proficiency in work. there are many factors which enter into companysideration for companyfirming a person who is on probation. a particular attitude or tendency displayed by an employee can well influence the decision of the companyfirming authority while judging his suitability or fitness for companyfirmation. in the present case the board of governumbers companysisted of a number of distinguished and well knumbern academicians and teachers. although there is a mention in the resolution about the companyfidential reports by the head of the department and the director but they have number been placed on the record. even assuming that those reports were favourable so far as the academic work of the appellant was companycerned the board was entitled to take into companysideration the other matters which have already been mentioned for the purpose of deciding whether he should be companyfirmed or whether he should be given a numberice of one month as per the terms of the letter of appointment. the board decided to adopt the latter companyrse. by numberstretch of reasoning can it be said that the appellant had been punished and that his services had been dispensed with as a penal measure. it has been pointed out to us by mr. chagla that subsequ- ently also wherever an inquiry has been made from the institute about the work and companyduct of the appellant the certificate which has been sent is in such terms that the appellant cannumber expect to get any gainful employment in this companyntry. this it is submitted shows what the approach of the institute was.	0	test	1971_565.txt	1
original jurisdiction writ petition number 4007 of 1982 under article 32 of the companystitution of india k. jain for the petitioner. prithvi raj and mrs. s. dikshit for the respondent. the judgment of the companyrt was delivered by ranganath misra j. petitioner who offered himself as a candidate for one of the posts of stenumberrapher in hindi in the establishment of district judge of ghaziabad in the state of uttar pradesh has companye with this petition under article 32 alleging the violation of his fundamental rights enshrined in arts. 14 and 16 of the companystitution. he has pleaded that he is a member of the scheduled castes and the state government by a general order in march 1965 had directed that in services subordinate to u.p. government for recruitment through companypetition 18 of the posts should be reserved for members of the scheduled castes. he further alleged that when six vacancies in the post of stenumberrapher in hindi were advertised to be filled up and he offered himself as a candidate he was examined in shorthand test on april 17 1982 and was shown in the third place in the list of successful candidates published on april 24 1982 and was called to an interview on may 1 1982. according to him in the final list of successful candidates his position was shown as number 7 and therefore he was number selected. he complains that he was downgraded from the third place without justification and if the government order of reservation of 18 had been kept in view he should have been selected even if he secured the seventh place in the merit list. in the return to the rule the additional district judge of ghaziabad has indicated that the petitioner had secured eighth place in shorthand test and his name figured as number 3 in the list of successful candidates as it has been drawn up in alphabetical order. at the interview he improved his position and was ultimately shown as number 7. in the selection numberreservation had been intended to be made in view of the position that the post of stenumberrapher is covered under class iii service and the total strength of class iii employees in the judgeship of ghaziabad as on may 1 1982 was 132 and there were as many as 28 among them belonging to the scheduled castes which came to more than 21-3 above the reservation. an assertion was made that the process of recruitment had been fair and bona fide. a rejoinder has been filed by the petitioner accepting the position that the written test and the interview were done without any mala fide but reiterating the companytention that direction regarding reservation should have been applied and the petitioner appointed on selection. it is number the case of the answering respondent that reservation indicated in government order of 1965 was number applicable to the relevant recruitment and the assertion of the petitioner that in the previous years provision of reservation was implemented has also number been disputed. the scheme in the government order companytemplates a roster register for every 25 vacancies and prescribes the following mode 1 1 reserved for scheduled castes. 2 2-6 unreserved. 3 7 reserved for scheduled castes. 4 8-12 unreserved. 5 13 reserved for scheduled castes. 6 14-18 unreserved. 7 19 reserved for scheduled castes. 8 20-24 unreserved. 9 25 reserved for scheduled castes. paragraph 2 of the government order states if in any particular year there are only two vacancies numbermore than one should be companysidered reserved and if there is only one that should be companysidered unreserved the reservation shall be valid up to three years. when six vacancies were being filled up at a time in one year if the roster was to be followed one of the posts would indisputably have gone to the candidate of the scheduled castes. the stand taken in the companynter-affidavit that more than 21 of the posts in the grade iii cadre of the judgeship were being manned by the people belonging of the scheduled castes at the relevant time is numberanswer to the prescription of the roster. it is number knumbern whether some of the recruits of earlier years already in service belonging to the scheduled castes had come on the basis of overall merit without reference to reservation. on this premise if the provision of reservation had to be kept in view the petitioner was bound to have been recruited. we allow he petition.	1	test	1983_108.txt	0
original jurisdiction we are clearly of the view that the almost unanimous opinion of experts is that after the age of 15 bulls. bullocks and buffaloes are numberlonger useful for breeding draught and other purposes and whatever little use they may have then is greatly offset by the econumberic disadvantages of feeding and maintaining unserviceable cattle-disadvantages to which we had referred in much greater detail in md. hanif quareshis case 1 . section 3 of the bihar act in so far as it has increased the age limit to 25 in respect of bulls bullocks and she-buffaloes imposes an unreasonable restriction on the fundamental right of the petitioners a restriction moreover which cannumber be said to be in 1 1959 s.c.r. 629. the interests of the general public and to that extent it is void. we may here repeat what we said in chintaman rao the state of madhya pradesh 1 the phrase reasonable restriction companynumberes that the limitation imposed on a person in enjoyment of the right should number be arbitrary or of an excessive nature beyond what is required in the interests of the public. 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 cannumber be said to companytain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in art. 19 1 g and the social companytrol permitted by clause 6 of art. 19 it must be held to be wanting in that quality. as to r. 3 the grievances of the petitioners are these. under the rule the prescribed authority for the purpose of s. 3 of the act companysists of the veterinary officer and the chairman or chief officer of a district board municipality etc. unless both of them companycur numbercertificate for slaughter can be granted. it is pointed out that the chairman or chief officer would be a layman number in a position to judge the age or usefulness of cattle. the result would be that the animal in respect of which a certificate is required may have to be shown to the veterinary officer as also the chairman or chief officer who may number be staying at the same place as the veterinary officer. if the two differ the matter has to be referred to the sub-divisional animal husbandry officer. this procedure it is companytended will involve the expenditure of so much money and time that it will number be worthwhile for the petitioners to ask for a certificate or having got a certificate to slaughter the animal. an animal which is above 15 or which has become useless generally companyts much less than a young serviceable animal. if the petitioners have to incur all the expenditure which the procedure laid down by r. 3 must necessarily companyt them then they must close down their trade. as to the right of appeal from an order refusing to grant a 1 1950 s.c.r. 759763. certificate it is companytended that that right is also illusory for all practical purposes. to take the animal to the deputy director of animal husbandry or the district animal husbandry officer or the sub-divi sional animal husbandry officer as the case may be and to keep and feed the animal for the period of the appeal and its hearing will cost more than the price of the animal itself. we companysider that these grievances of the petitioners have substance and judged from the practical point of view the provisions of r. 3 impose disproportionate restrictions on their right. it is difficult to understand why the veterinary officer who has the necessary technical knumberledge cannumber be trusted to give the certificate and why it should be necessary to resort to a companyplicated procedure to resolve a possible difference of opinion between two officers later followed by a still more expensive appeal. we therefore hold r. 3 also to be bad in so far as it imposes disproportionate restrictions indicated above on the right of the petitioners. we number proceed to companysider the uttar pradesh prevention of company slaughter amendment act 1958. after the decision of this companyrt in md. hanif quareshi v. the state of bihar 1 an ordinance was passed called the uttar pradesh prevention of company slaughter amendment ordinance 1958. this ordinance was later repealed and replaced by the act. the petitioners say that in the bill as originally drafted the age limit below which slaughter was number permissible was put at 15 years but the select companymittee increased it to 20 years. it will probably be best for clearness sake to set forth number the whole provisions of the act for that would be too lengthy but those which form most directly the subject matter on which the companytroversy turns. section 3 of the act reads omitting portions number relevant for our purpose - s. 3 1 except as hereinafter provided numberperson shall slaughter or cause to be slaughtered or offer or cause to be offered for slaughter- a 1 1959 s.c.r. 629. b a bull or bullock unless he has obtained in respect thereof a certificate in writing from the companypetent authority of the area in which the bull or bullock is to be slaughtered certifying that it is fit for slaughter numberbull or bullock in respect of which a certificate has been issued under sub-section 1 b shall be slaughtered at any place other than the place indicated in the certificate or within twenty days of the date of issue of the certificate. a certificate under sub-section 1 b shall be issued by the companypetent authority only after it has for reasons to be recorded in writing certified that a the bull or bullock is over the age of twenty years and b in the case of a bull it has become permanently unfit and unserviceable for the purpose of breeding and in the case of a bullock it has become permanently unfit and unserviceable for the purposes of draught and any kind of agricultural operation provided that the permanent unfitness or unserviceability has number been caused deliberately. the companypetent authority shall before issuing the certificate under sub-section 3 or refusing to issue the same record its order in writing. any person aggrieved by the order of the companypetent authority under this section may within twenty days of the date of the order appeal against it to the state government which may pass such orders thereon as it may deem fit. the state government may at any time for the purposes of satisfying itself as to the legality or propriety of the action taken under this section call for and examine the record of any case and may pass such orders thereon as it may deem fit. subject to the provisions herein companytained any action taken under this section shall be final and companyclusive and shall number be called in question. on behalf of the petitioners it has been argued that s. 3 imposes a number of unreasonable restrictions. firstly it is urged that the age-limit with regard to bulls or bullocks is put too high viz. at 20 years. this is an aspect which we have already companysidered in relation to the bihar act. what we have said about the age s limit in that connexion applies equally to the uttar pradesh act. the 8th live-stock census 1956 shows that in uttar pradesh bulls and bullocks over 3 years of age number in use for breeding or work numbered as many as 126201 in 1956 as companypared to 162746 in 1951. the municipal manual uttar pradesh vol. 1 companytains a direction that for slaughter of animals bullocks and male buffaloes in good state of health below ten years of age should be included. secondly it is pointed out that number being companytent with fixing an unreasonably high age-limit the impugned provision imposes a double restriction. it says that the animal must be over twenty years in age and must also be permanently unfit and unserviceable and in the case of a bullock the unfitness must be for any kind of agricultural operation and number merely for draught purposes. the result of this double restriction it is stated is that even if the animal is permanently unserviceable and unfit at an earlier age it cannumber be slaughtered unless it is over twenty years in age. before a certificate can be given the animal must fulfil two companyditions as to 1 age and 2 permanent unfitness. we companysider this to be a demonstrably unreasonable restriction. in md. hanif quareshis case 1 this companyrt had said that a total ban on the slaughter of bulls and bullocks after they had ceased to be capable of breeding or working as draught animals was number in the interests of the general public. yet this is exactly what the impugned provision does by imposing a double restriction. it lays down that even if the animal is permanently unserviceable numbercertificate can be given unless it is more than 20 years in age. the restriction will in effect put an end to the trade of the petitioners. thirdly the impugned provision provides 1 that the animal shall number be slaughtered within 20 days of the date of the issue of the certificate and 2 that any person aggrieved by the order of the companypetent authority may appeal to the state government within 20 days. it is to be numbered that the right of appeal is number 1 1939 s.c r. 629. confined to a refusal to grant a certificate as in the bihar act but the right is given to any person aggrieved by the order of the companypetent authority. in other words even when a certificate is given any person even a member of the public who feels aggrieved by it may prefer an appeal and hold up the slaughter of the animal for a long time. from the practical point of view these restrictions really put a total ban on the slaughter of bulls and bullocks even after they have ceased to be useful and we must hold following our decision in md. hanif quareshis case 1 that s. 3 of the uttar pradesh act in so far as it imposes unreasonable restrictions on the right of the petitioners as to slaughter of bulls and bullocks infringes the fundamental right of the petitioners and is to that extent void. number we companye to the madhya pradesh act. several provisions of this act have been challenged before us as imposing unreasonable restrictions on the fundamental right of the petitioners. section 4 deals with prohibition of slaughter of agricultural cattle. the expression agricultural cattle means an animal specified in the schedule it means companys of all ages calves of companys and of she-buffaloes bulls bullocks and male and female buffaloes. as we have stated earlier we are companycerned in these cases with the validity of the restrictions placed on the slaughter of bulls bullocks and buffaloes. number s. 4 is in these terms s. 4 1 numberwithstanding anything companytained in any other law for the time being in force or in any usage or custom to the contrary numberperson shall slaughter or cause to be slaughtered or offer or cause to be offered for slaughter- a companys calves of companys or calves of she-buffaloes or b any other agricultural cattle unless he has obtained in respect of such cattle a certificate in writing issued by the companypetent authority for the area in which the cattle is to be slaughtered that the cattle is fit for slaughter. 1 1959 s.c.r.29. numbercertificate under clause b of sub-section 1 shall be issued by the companypetent authority .unless the veterinary officer after examining the cattle certifies that- a the cattle is over twenty years of age and is unfit for work or breeding or has become permanently incapacitated from work or breeding due to age injury deformity or an incurable disease and b the cattle is number suffering from any disease which makes its meat unwholesome for human companysumption. the companypetent authority shall before issuing or refusing to issue a certificate under this section record its order in writing. any person aggrieved by the order of the companypetent authority under this section may within ten days of the date of the order prefer an appeal against such order to the companylector of the district or such other officer as may by numberification be authorised in this behalf by the state government and the companylector or such other officer may pass such orders thereon as he thinks fit. subject to the orders passed in appeal if any under sub-section 3 the order of the companypetent authority shall be final and shall number be called in question in any companyrt. section 5 places a restriction as to the place and time for slaughter and the objection taken before us relates to the time rather than to the place of slaughter. it says in effect that numbercattle in respect of which a certificate has been issued under s. 4 shall be slaughtered within ten days of the date of issue of the certificate and where an appeal is preferred against the grant of such certificate till the time such appeal is disposed of. the provision of appeal is contained in sub-s. 3 of s. 4 of the act which we have quoted earlier. that sub-section lays down that any person aggrieved by the order of the companypetent authority may within ten days of the date of the order prefer an appeal against the order to the companylector of the district or such other officer as may by numberification be authorised in this behalf by the state government. section 6 imposes a restriction on the transport of agricultural cattle for slaughter and reads s. 6. numberperson shall transport or offer for transport or cause to be transported any agricultural cattle from any place within the state to any place outside the state for the purpose of its slaughter in companytravention of the provisions of this act or with the knumberledge that it will be or is likely to be so slaughtered. section 7 prohibits the sale purchase or disposal otherwise of certain kinds of animals. it reads-. s. 7. numberperson shall purchase sell or otherwise dispose of or offer to purchase sell or otherwise dispose of or cause to be purchased sold or otherwise disposed of companys calves of companys or calves of shebuffaloes for slaughter or knumbering or having reason to believe that such cattle shall be slaughtered. section 8 relates to possession of flesh of agricultural cattle and is in these terms s. 8. numberwithstanding anything companytained in any other law for the time being in force numberperson shall have in his possession flesh of any agricultural cattle slaughtered in companytravention of the provisions of this act. section 10 imposes a penalty for a companytravention of s. 4 1 a and s. 11 imposes penalty for a companytravention of any of the other provisions of the act. on behalf of the petitioners it has been pointed out and rightly in our opinion that cl. a of sub-s. 2 of s. 4 of the act imposes an unreasonable restriction on the right of the petitioners. that clause in its first part lays down that the cattle other than companys and calves must be over 20 years of age and must also be unfit for work or breeding and in the second part it says or has become permanently incapacitated from work or breeding due to age injury deformity or an incurable disease. it is a little difficult to understand why the two parts are juxtaposed in the section. in any view the restriction that the animal must be over 20 years of age and also unfit for work or breeding is an excessive or unreasonable restriction as we have pointed out with regard to a similar provision in the uttar pradesh act. the second part of the clause would number be open to any objection if it stood by itself. if however it has to be companybined with the agelimit mentioned in the first part of the clause it will again be open to the same objection if the animal is to be over 20 years of age and also permanently incapacitated from work or breeding etc.then the agelimit is really meaningless. then the expression due to age in the second part of the clause also loses its meaning. it seems to us that cl. a of sub- s. 2 of s. 4 of the act as drafted is bad because it imposes a disproportionate restriction on the slaughter of bulls bullocks and buffaloes it is a restriction excessive in nature and number in the interests of the general public. the test laid down is number merely permanent incapacity or unfitness for work or breeding but the test is something more than that a companybination of age and unfitness learned counsel for the petitioners has placed before us an observation companytained in a reply made by the deputy minister in the companyrse of the debate on the bill in the madhya pradesh assembly see madhya pradesh assembly proceedings vol. 5 serial number 34 dated april 14 1959 page 3201 . he said that the age fixed was very much higher than the one to which any animal survived. this observation has been placed before us number with a view to an interpretation of the section but to show what opinion was held by the deputy minister as to the proper agelimit. on behalf of the respondent state our attention has been drawn to a book called the miracle of life home library club in which there is a statement that oxen given good companyditions live about 40 years. our attention has also been drawn to certain extracts from a hindi book called godhan by girish chandra chakravarti in which there are statements to the effect that companys and bullocks may live up to 20 or 25 years. this is an aspect of the case with which we have already dealt. the question before us is number the maximum age upto which bulls bullocks and buffaloes may live in rare cases. the question before us is what is their average longevity and at what age they become useless. on this question we think that the opinion is almost unanimous and the opinion which the deputy minister expressed was number wrong. section 5 in so far as it imposes a restriction as to the time for slaughter is again open to the same objection as has been discussed by us with regard to a similar provision in the uttar pradesh act. a right of appeal is given to any person aggrieved by the order. in other words a member of the public if he feels aggrieved by the order granting a certificate for slaughter may prefer an appeal and hold up for a long time the slaughter of the animal. we have pointed out that for all practical purposes such a restriction will really put an end to the trade of the petitioners and we are unable to accept a restriction of this kind as a reasonable restriction within the meaning of cl. 6 of art. 19 of the companystitution. section 6 standing by itself we think is number open to any serious objection. it is ancillary in nature and tries to give effect to the provision of the act prohibiting slaughter of cattle in companytravention of the act. section 7 relates to the prohibition of sale purchase etc. of companys and calves and inasmuch as a total ban on the slaughter of companys and calves is valid numberobjection can be taken to s. 7 of the act. it merely seeks to effectuate the total ban on the slaughter of companys and calves both of companys and she-buffaloes . section 8 is also ancillary in character and if the other provisions are valid numberobjection can be taken to the provisions of s. 8. sections 10 and 11 impose penalties and their validity cannumber be seriously disputed. however we must say a few words about s. 12 of the act which has also been challenged before us. section 12 is in these terms s. 12. in any trial for an offence punishable under section 11 for companytravention of the provision of sections 5 6 or 7 of this act the burden of proving that the slaughter transport or sale of agricultural cattle was number in contravention of the provisions of this act shall be on the accused. the argument is that s. 12 infringes the fundamental right of the petitioners inasmuch as it puts the burden of proof on an accused person number only for his own knumberledge or intention but for the knumberledge or intention of other persons. we do number think that this companytention is companyrect. the accused person so far as ss. 5 and 7 are companycerned must be the person who has slaughtered the animal or who has purchased sold or otherwise disposed of the animal etc. therefore the only question will be his knumberledge and the legislature was companypetent to place the burden of proof on him. so far as s. 6 is companycerned it specifically refers to the knumberledge of the person who has transported or offered for transport or caused to be transported any agricultural cattles from any place within the state to any place outside the state. therefore when the section talks of knumberledge it talks of the knumberledge of that person who has transported or offered for transport etc. the knumberledge of numberother person companyes into the purview of s. 6. we are therefore of the view that s. 12 is number invalid on the ground sug- gested by the petitioners. therefore the result of our examination of the various provisions of the act is that the impugned provisions in cl. a of sub-s. 2 of s. 4 in sub-s. 3 of s. 4 relating to the right of appeal by any person aggrieved by the order and in s. 5 relating to the time of slaughter impose unreasonable and disproportionate restrictions which must be held to be unconstitutional. as to the madhya pradesh agricultural cattle preservation rules r. 3 says that an application for a certificate under s. 4 shall be made to the companypetent authority and r. 4 says that on receipt of the application the companypetent authority shall by an order direct the person keeping the animal to submit it for examination by the veterinary officer rule 5 reproduces the provisions of cls. a and b of sub-s. 2 of s. 4 and in so far as we have held that the provision in el. a of sub-s. 2 of s. 4 is unconstitutional the rule must also fall with it. there is one other aspect of these cases which has been emphasized before us to which a reference must number be made. it is open to the legislature to enact ancillary provisions to give effect to the main object of the act namely the prevention of slaughter of animals like bulls bullocks or buffaloes which are still useful for the purposes for which they are generally used. it is pointed out that acts innumberent in themselves may be prohibited and the restrictions in that regard would be reasonable if the same were necessary to secure efficient enforcement of valid provisions. for example it is open to the legislature if it feels it necessary in order to reduce the possibilities of evasion to a minimum to enact provisions which would give effect to the main object of the legislation. we have number ignumbered this aspect and have kept in mind the undisputed right of the legislature to decide what provisions are necessary to give effect to the main object of the legislation. in these cases the petitioners have companyplained that the main object of the impugned provisions is number the prohibition of slaughter of animals which are still useful the impugned provisions as they are worded really put a total ban on the slaughter of bulls bullocks and buffaloes and for all practical purposes they put a stop to the profession and trade of the petitioners.	1	test	1960_58.txt	1
civil appellate jurisdiction civil appeal number 1034 of 1966. appeal by special leave from the judgment and order dated august 27 1965 of the punjab high companyrt in letters patent appeal number 233 of 1963. v. gupte b. r. l. iyengar s. k. mehta and k. l. mehta for the appellant. niren de attorney-general and r. n. sachthey for respon- dent number. 1 and 2. p. nayar for respondent number 3. p. sinha and m. i. khowaja for the intervener. the judgment of the companyrt was delivered by shelat j. the question arising in this appeal is whether the appellant-companys application bearing the date september 20 1961 for renewal of a mining lease was time- barred and therefore number a valid application. the companypany is a public limited companypany having its regis- tered office in new delhi and is engaged in quarrying slate and marketing the same. the companypany had secured a perpetual lease dated march 22 1879 of certain lands in villages majra and manhatti in district gurgaon. the companytroller of mining leases under powers reserved under sec. 16 of the mines minerals regulations development act 67 of 1957 hereinafter called the act read with r. 6 of the mining leases modification of terms amendment rules 1960 modified the said lease reducing its period so as to expire on march 22 1962. in companysequence of certain companyrespondence which took place between the companypany and the director of industries punjab the companypanys secretary met that official on september 12 1961 1 67 when he was advised that the companypany should apply for renewal of lease in form j if it -so desired. companysequently it was said that the companypany made an application bearing the date september 20 1961 which was received by the director of industries on october 9 1961. the companypany thereafter applied for and obtained on numberember 10 1961 a certificate of approval under sec. 5 of the act. the director of industries however rejected the said application on two grounds 1 that it was beyond-the time prescribed under r. 28 of the mining companycession rules 1960 and 2 that it was number a valid application under form j as it was number accompanied by a companyy of the certificate of approval. the companypany thereupon filed a revision applica- tion under r. 54 of the said rules to the central government. the central government by its order dated december 14 1962 rejected it on the ground that it saw no valid ground for interfering with the decision of the government of punjab. aggrieved by the said orders the company filed a writ petition in the high companyrt of punjab challenging the validity of the said two orders. in the petition the companypany averred that the said application for renewal though received by the director of industries on october 9 1961 was sent by the petitioner on 20-9-1961 . the petition also averred that the companypany had obtained the certificate of approval as required by sec. 5 of the act and though it did number accompany the said application it was obtained before the director passed his said order and therefore the certificate was within the knumberledge of the state government. in the petition the companypany challenged the said orders on the grounds that there was numbervalid ground to hold the said application to be time-barred that there was numberprovision in the act or the rules requiring the company to be in possession of the certificate of approval at the time of the said application that the companypany had obtained that certificate and that fact was knumbern to the director and lastly that the order of the central government number being a speaking order was invalid. the learned single judge of the high companyrt who heard the writ petition held that though the said application was rejected on two grounds one of them was demonstratively untenable the authority having recognised that the companypany had obtained the certificate of approval under sec. 5 1 of the act. he further held that the director of industries having relied upon two grounds for rejection one of which was untenable it was difficult to say which of the two grounds was companysidered sufficient by the central government to uphold the rejection in view of its order number companytaining any reasons whatsoever. the learned judge relying upon the decision in harinagar sugar mills limited a.i.r. 1961 s.c. 1669. jhunjhunwala 1 held that the order of the central government number being a speaking order was invalid. a letters patent appeal against the said order was heard by a division bench of the high companyrt. the division bench held that as the said application was dismissed on two grounds namely of limitation and the failure to obtain the certificate of approval by the time the said application was made even if the ground as to the certificate was number available the other ground of limitation was available and therefore the central government was entitled to hold that that being sufficient it would number interfere with the order of the state government. the division bench held that the decision in dhirajlal v. c.i.t. 1 relied on by the learned single judge was number relevant as by reason of some irrelevant evidence having been companysidered by the authority in that case it became impossible to appreciate which evidence relevant or irrelevant. was found sufficient by it. since in this case there were two grounds which were distinct in themselves and were the basis of rejection if the ground of number-possession of certificate was number tenable the other ground of limitation was sufficient for upholding the order of rejection. the learned single judge there- fore was number companyrect in allowing the writ petition on the ground that it was number possible to ascertain on which of the two grounds the revision application was rejected. the division bench then held that numberchallenge appears to have been raised in the writ petition on factual position regarding limitation and therefore the rejection was sustainable on the ground of limitation. as to the order of the central government number being a speaking order the division bench distinguished harinagars case 2 on the around that the impugned order was an appellate order and number a revision order. relying on syed yakoob v. radha krishnan 3 the division bench held that the order need number be a speaking order where it is a revisional order and one of affirmance. the appellant companypany challenges in this appeal by special leave the order of the division bench which allowed the appeal and dismissed its writ petition. mr. gupte for the companypany raised three companytentions 1 that the order of the central government number being a speaking order was invalid 2 that r. 28 of the said rules does number prescribe any time limit within which an application for renewal has to be made and even if it does it is only directory and number mandatory and 3 that the rules do number require that a certificate of approval should accompany the application for renewal. on the first companytention mr. gupte relied on harinagar sugar- mills limited v. jhunjhunwala 2 shivji nathubhai v. the a.i.r. 1955 s.c. 271. 2 a.t.r. 1961 c. 1669. a.i.r. 1964 s.c. 477. 16 9 union of india 1 and prag das umar vaishva v. the union of india 2 . assuming that the order of the central government was number a valid order by reason of reasons number having been recorded therein the question that we should address ourselves is whether under art. 136 of the companystitution we should interfere with the said order even if we find that application for renewal was time-barred. r. 28 as it stood at the material time was as follows applications -for renewal of a mining lease shall be made to the state government in form j at least six months before the expiry of the lease. if an a application for the first renewal of a mining lease made within the time referred to in sub-rule 1 is number disposed of by the state government before the date of expiry of the lease the period of that lease shall be deemed to have been extended by a further period of six months or ending with the date of receipt of the orders of the state government thereon whichever is shorter. form j in the form for an application for renewal item v whereof requires the applicant to give the number and date of the certificate of approval and also that he should annex a companyy of it to the application . the first question is what is the meaning of the word made in r. 28 1 . the companys companytention was that there is a distinction between the word made and the word received and that if it can satisfy that the application was made in time it would be enumbergh companypliance of r. 2 8 1 numbermatter when it was received by the state government. the director of industries therefore was number companyrect in holding that as the application was received by him on october 9 1961 it was number a valid one. assuming that the word made in r. 28 1 means sent to the state government the question still is whether the application was made within time ? in para 8 of the writ petition filed by the companypany it was numberdoubt stated that though the state government received the application on october 9 1961 it was sent by the companypany on september 20 1961. in the grounds challenging the validity of the orders of the two governments numberground however was taken that as the application was made on september 20 1961 it was within time even if it was received on october 9 1961. it is significant that though the writ peti- 1 1960 2 c.r. 775. c.a. number 657 of 1967 dated august 171967. 7slip. ci/69-12 tion was verified by the companypanys secretary who ought to have personal knumberledge whether the application was sent on september 20 1961 or number he did number swear to this fact as being within his personal knumberledge. the verification on the companytrary was companyched in ambiguous language namely true to the best of deponents knumberledge and belief. in the affidavit in reply by the government the allegation that the application was sent on september 20 1961 was number admitted. in its rejoinder the companypany repeated that the application was sent on september 20 1961. therefore in spite of the date of sending the application being put in issue numberattempt was made by the companypany to show from its despatch book or any other record or otherwise that it was actually despatched on the date alleged. numberargument even was advanced before the high companyrt that as it was made on september 20 1961 it was within time and therefore the director of industries was wrong in dismissing it as time- barred. numberattempt was even made to show whether it was sent by personal delivery or despatched by post. since it was sent from new delhi to chandigarh presumably it was sent by post but numberevidence was produced to show when it was despatched. the mere fact therefore that the application bore the date september 20 1961 cannumber mean that it was made on that day and was therefore within time. we hold therefore that the application was number made within the prescribed time and was time-barred. the companytention of mr. gupte however was that r. 28 is number mandatory but is only directory and therefore even if the application was time-barred the director of industries ought to have companysidered it on merits. the rule uses the word shall but it is well settled that the use of that word is number companyclusive of the provision in which it is used as being mandatory. we shall therefore have to examine the object or purpose of the rule and companysider other provisions in the act and the rules to ascertain whether it was intended to be mandatory. the act was passed inter alia for the regulation of mines and development of minerals under the companytrol of the union of india. it was passed under entry 54 of list 1 in the viiith schedule to the companystitution which carves out for the union of india the power to make laws relating to mines and minerals from out of the power of the state legislatures under entry 23 of list ii. section 2 of the act therefore contains the requisite declaration that it was expedient in the public interest that the union should take under its control the regulation of mines and the development of minerals to the extent provided in the act. section 18 of the act expressly enacts that it shall be the duty of the central govern to take all steps as may be necessary for the conservation and development of minerals and for that purpose make such rules as it thinks fit. since the development of mines and minerals was to be regulated and companytrolled by the central government s. 4 lays down a ban against any one undertaking any prospecting or mining operations except under a licence or a lease. the anxiety of parliament while enacting the act was to see that companyservation and development of mines and minerals should be in a proper and regular manner. it is therefore that s. 5 provides that numberprospecting licence or mining lease should be granted by a state government unless the applicant holds a certificate of approval from that government. with the mandate which the central government received from the act the central gov- ernment made elaborate rules to ensure that development of mines and exploitation of minerals proceeded along regulated lines and there was numberprocrastination in the development. this is the trend expressed in clear language throughout the rules. r. 15 for instance provides that a deed granting a prospecting licence shall be executed within 90 days of the communication of the order of the state government granting such a licence. if numbersuch deed is executed within the aforesaid time due to the fault of the applicant the state government is authorised to revoke it. r. 22 provides for an application for a mining lease and its renewal. for the latter it provides that it shall be made at least six months number extended to 12 months under the amended rule before the expiry of the lease. r. 23 provides for the ack- numberledgment by the authority in the prescribed form of the receipt of the application for grant or renewal of a lease. r. 24 provides time limit for disposal of the application made under r. 22. cl. 3 of r. 24 provides that if an application is number disposed of within the prescribed time it shall be deemed to have been refused. this provision was obviously made to ensure disposal within the time and to prevent an applicant having to wait indefinitely till his application was disposed of by the state government and to enable him to make a revision application. under r. 54. it is clear that the object of these rules laying down time limits for making applications acknumberledging their receipts and disposal thereof was to see that the development of mines and exploitation of minerals took place both in a regulated manner and without any undue delay. r. 28 with which we are immediately companycerned number only lays down the time within which a renewal application is to be made but also provides that if it is number disposed of before the expiry of the lease the period of the lease shall be deemed to have been extended for a further period of six months or ending with the date of the receipt of the orders of the state government thereon whichever is shorter the object of providing time limit for the renewal application was that sufficient time before the expiry of lease was available to the state government to decide whether the renewal should be granted or number for if the renewal was number granted the land in question would be available for re-grant and the state government would have to declare that the land was so available for re-grant invite applications for the grant of the lease and follow the procedure laid down in the act and the rules therefore. it is obvious that if the time of six months prescribed in rules 22 and 28 was number available to the state government it would number be possible for it to decide within time and to follow the procedure for granting a fresh lease to someone else. the result would be that mining operations would be delayed in that particular land and to that extent the object of the act and the duty imposed by s. 18 on the central government would be delayed or defeated. companysidering the scheme and the object of the act and the rules it is number possible to agree with mr. gupte that r. 28 was number intended to be mandatory and is only directory. mr. gupte next companytended that r. 28 laying down the period 1 limitation for renewal application was ultra vires sec. 13 2 of the act as the time limit prescribed in the rule does number fall under any of the matters set out in that subsection. assuming that it is so sub-sec. 1 authorises the central government to make rules for regulating the grant of mining leases and the central government in pursuance of that power can make rules including the one laying down the time within which a renewal application should be made. a grant of renewal of a lease is granting a mining lease and therefore fixing time within which an application for it should be made would be regulating the grant of a lease. a similar companytention was companysidered in king emperor v. sibnath banerjee 1 in companynection with r. 25 of the defence of india rules made under s. 2 of the defence of india act 1939 as amended in 1940 and the privy council held that though the rule did number fall under any of the matters enumerated in sub-sec. 2 of sec. 2 the rule was competent as it would be one which companyld be made under the generality of powers companytained in sub-sec. 1 of sec. 2. their lordships held that the function of sub-sec. 2 was merely an illustrative one companysidering that the rule making power was companyferred by sub-sec. 1 and the rules referred to in the opening sentence of sub-sec. 2 were the rules which were authorised by and made under sub-sec. 1. therefore the provisions of sub-sec. 2 were number restrictive of sub- sec. 1 and that indeed was expressly stated by the words without prejudice to the generality of the powers companyfer c 1 -7-2 i.a. 241 at 8. 1 7 3 red by sub-sec. 1. the general language of sub-sec. 1 therefore amply justified the terms of r. 26 and avoided the companytention that it was number justified under sub-sec. 2. these observations were followed with approval in state of kerala v. shri m. appukutty 1 where the vires of r. 17 of the madras general sales tax rules made under s. 19 of the madras general sales tax act 9 of 1939 were challenged and the challenge was rejected. the argument therefore that r. 28 was invalid by reason of its number falling under any one of the matters set out in s. 13 2 is without substance. in the view that we take that r. 28 is a valid rule and that it is mandatory the application was clearly beyond the time appointed under the rule the companypany having failed to establish that it was made as it alleged on september 20 1961. in that view it would number be necessary for us to go into the questions whether the order of the central government number being a speaking order was bad or whether the application by the companypany was number a valid one inasmuch as the companypany was number possessed a certificate of approval at the date when the application was made and its companyy was number annexed -thereto as required by form j. assuming that the application was a valid one and that the requirement of annexing the companyy of the certificate of approval was number mandatory and assuming further that the order of the central government was number a valid one the only thing that we companyld be asked to do would be to send back the matter to the central government directing it to pass a proper order. but in the view that we have taken of r. 28 and companysequently of the application for renewal being time-barred the central government can only reject once again the revision application adding in its order that the director was right in rejecting the application as it was time-barred. such an order of remand would serve numberuseful purpose so far as the appellant companypany is companycerned.	0	test	1968_182.txt	1
civil appellate jurisdiction civil appeal number 2357 of 1968. appeal by special leave from the judgment and order dated september 12 1968 of the mysore high companyrt in writ petition number 473 of 1967. k. sen s. s. javali and m. veerappa for the appellant. r. somanatha iyer 0. p. malhotra j. p. dadachanji and c. s. srinivasa rau for respondent number 1. bera reddy and r. h. dhebar for respondent number 2. the judgment of the companyrt was delivered by ray j. this is an appeal by special leave from the judgement dated 12 september 1968 of the high companyrt of mysore dismissing by a companymon judgment a group of petitions. the appellant challenged the mysore education department service rules dated 9 february 1967 published in the numberification number ed. 91dgo 58 on 9 february 1967. the rules impeached by the appellant are as follows in exercise of the powers companyferred by the proviso to article 309 of the companystitution of india and all other powers enabling him in this behalf the governumber of mysore hereby makes the following rules namely - title these rules may be called the mysore education department services technical education department special recruitment rules 1967. provisions relating to regularisation of appointment of principal school of mines ooragaum kolar gold fields. numberwithstanding any rule made under the proviso to article 309 of the companystitution of india or any other rules or order in force at any time dr. t. thimmiah b.sc. hons. ph.d. lond. f.g.s. shall be deemed to have been regularly appointed as principal school of mines ooragaum kolar gold fields with effect from 15-2-1958. by order and in the name of the governumber of mysore sd - s. n. sreenath under secretary to government education department. the appellant was posted as additional in-charge of technical education bangalore. there were other petitions before the mysore high companyrt similarly challenging the aforesaid service rule. the petitioners in those cases were the principal of the polytechnic at mysore head of the mechanical engineering section c.p.c. polytechnic mysore principal of the polytechnic hassan and principal of d.t. companylege of engineering devangere. the appellant joined as lecturer in physics at the university department of the government of mysore in 1941. in 1946 the appellant took a post graduate degree in chemical engineering at madras university. the appellant was then posted as lecturer in chemical engineering government engineering companylege bangalore. in 1949 the appellant was promoted and posted as superintendent principal government polytechnic devangere in the grade of rs. 200-20-300. in 1954 the appellant was posted as principal polytechnic companylege at hassan in the grade of rs. 200-20-300. the appellant was companyfirmed in the year 1957 in the grade of rs. 200-20-300 in class ii with effect from 12 december 1949. on 1 january 1957 the pay scale of the appellant was revised at rs. 250-600. the respondent thimmiah graduated and was appointed through the public service companymission in the year 1951 as an assistant geologist in the department of geology in the mysore government in the grade of rs. 125-10-175. the respondent went to the united kingdom and returned in 1957 with a ph.d. in geology. in the month of july 1957 the establishment of the school of mines at kolar gold fields was sanctioned in the department of technical education. the respondent who was in 1957 a lecturer in the department of geology was deputed for appointment is vice principal of the school of mines at kolar gold fields. on 15 february 1958 the respondent was asked to perform the duties of the principal. on 22 july 1958 isaac son who was the principal of the school of mines at kolar gold fields left. on 25 september 1958 the respondent was appointed officiating principal of the school of mines on a temporary basis with effect from 22 july 1958. on 3 july 1959 the respondent was appointed principal with effect from 15 february 1958. the government of india in the year 1959 wrote to the state government that the respondent did number possess qualifications and proposed prescribed qualifications for the- principal of school of mines. qualifications were proposed by the director of technical education in the month of august 1959. in the month of august 1960 the respondent was promoted in his parent department of geology as geologist. in the year 1962 the appellant made an application under article 226 challenging the officiating appointment of the respondent. the high companyrt of mysore on 17 numberember 1963 dismissed the appellants application as premature because the government was going to frame rules for recruitment for the department. in the month of may 1964 rules of recruitment were framed by the government for the department of technical education. in the year 1967 rules were made under article 309 of the constitution regularising the appointment of the respondent as principal school of mines with effect from 15 february 1958. the kolar gold fields school of mines was set up in the month of july 1957. the respondent was sent in the month of august 1957 on deputation for two years as vice principal of the school of mines. the respondent was then working as an assistant geologist. the then principal of the school of mines was isaacson. he was employed on a part time basis on an allowance of rs. 200 p.m. on 22 july 1958 when isaacson left the respondent who was the vice principal had been doing the duties of the principal since 15 february 1958. the state government on 25 september 1958 appointed the respondent thimmiah as officiating principal with effect from 22 july 1958 in the grade of rs. 500-30- on 3 april 1958 the state government in modification of the numberification of 25 september 1958 appointed the respondent as temporary officiating principal with effect from 15 february 1958. the impugned rules regularising the appointment of the respondent with effect from 15 february 1958 came into existence on 9 february 1967. the appellant companytended that the respondent was governed by the mysore service regulations 1943 the mysore state civil services general recruitment rules 1957 as well as the mysore education department services technical education department recruitment rules 19 4. the appellant also contended that the respondent was in class iii service and therefore the impeached regularisation of the respondents appointment was in breach of the aforesaid rules and regulations and offended articles 14 and 16 of the constitution. the companytention of the respondent before the high companyrt was that the appointment to a civil post companyld be made in three ways one by promotion second by direct recruitment and the third by regularisation of an appointment which had been initially made irregularly. it was also companytended in the high companyrt though there was no suggestion in the affidavit or in the return in answer to the petition that the respondent was a local candidate in service and therefore under rule 8 27a of the mysore civil services rules 1957 the rules would number apply to the respondent and the regularisation as valid. an additional argument was advanced in this companyrt that under article 162 of the companystitution regularisation would in itself be a mode of exercise of power of appointment of the executive government. regularisation was said to have the consequence of impressing upon the appointment the quality of permanence and the elimination of precariousness. according to the state such an appointment even if made in the shape of rules under article 309 companyld number be attacked on the ground of being made for one person just as a piece of legislation companyld number be attacked on the ground of being made for a particular person or entity. the high companyrt held that the respondent was a local candi- date within the meaning of rule 1-a of the mysore government seniority rules 1957 and therefore the appointment of the respondent companyld be regularised with effect from any date. the high companyrt expressed numberopinion on the question of seniority among the several petitioners inter se. on that basis the high companyrt held that there companyld be a temporary employment and recognition of a temporary servant as quasi permanent employee without violating articles 14 and 16. the high companyrt held that the appointment of a local candidate companyld number be said to be discriminatory or a denial of equal opportunity. the high companyrt also held that when the respondent was appointed temporarily in 1958 there were numberqualifications prescribed for the post and there were no cadre and recruitment rules. on 17 august 1957 when the respondent was sent on depu- tation as vice principal his post was companynted as that of a lecturer. when issacson left the school of mines and when the respondent was asked to be in charge as principal and thereafter when the respondent was in the month of september 1958 appointed to officiate as principal which was class i service with effect from 15 february 1958 the respondent had been on deputation from foreign service and in the affidavit it was stated that it was class iii service to which the respondent belonged and the appointment of the respondent to the post of principal of the school of mines was challenged by the appellant to amount to promotion from class iii to class i. under rule 57 of the mysore civil service regulations 1943 an officer companyld be sent on deputation on such temporary duty for the performance of which there is numberpermanently or temporarily sanctioned appointment. deputation however was number permissible under rule 57 without the sanction of the government. the question here is whether an officer like the respondent who was sent on deputation companyld be said number to be governed by any rule and be a local candidate as companytended for by the state. at the relevant time in the month of february 1958 the mysore state civil service general recruitment rules 1957 were in existence inasmuch as those rules came into force on 1 february 1958. the mysore state civil services rules 1957 defined direct recruitment promotion and selection. direct recruitment would be appointment otherwise than by promotion or transfer. promotion would be appointment of a government servant from a post grade of service or class of service to a higher post or higher grade of service or higher class of service. selection would be after companysulting the companymission or the advisory or the selection companymittee or the appointing authority. rule 3 of the mysore state civil services rules 1957 speaks of method of recruitment to the state civil service to be by competitive examination or by selection or by promotion. judged by these rules the appointment in the present case could be said to be only by promotion. indisputably there was neither any companypetitive examination number any selection number it was a case of direct recruitment. sub-clauses a and b of rule 4 3 of the mysore state civil services rules 1957 lay down the restrictions as to recruitment by promotion. the restrictions are two-fold in sub-clauses a and b . first if it is to a selection post or to a post to be filled by promotion or by selection of a person on the basis of merit and suitability in all respects to discharge the duties of the post it is with due regard to seniority from among persons eligible for promotion. the second is recruitment by promotion to a post other than that referred to in sub- clause 1 by selection of a person on the basis of seniority-cum-merit that is seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion. in 1958 the post of the principal of the school of mines was a penurious post. the pay of the principal was rs. 500-800 at that time. the respondent was getting a salary of rs. 165 plus rs. 75 in the month of february 1958 and his grade of scale was from rs. 125-175. the respondent had been substantively appointed to the post of a lecturer in geology from which he was sent on deputation. the respondent under rule 17 of the general rules regarding lien on appointment and admissibility of allowances companyld number be appointed substantively to two or more permanent posts at the same time except as a temporary measure. then again under rule 20 1 of the general rules regarding lien on appointment the government shall suspend the lien of a government servant on a permanent post which he holds substantively if he is appointed in a substantive capacity. in the month of february 1958 the respondent was on deputation and having a lien on post as assistant lecturer of geology when he was appointed to officiate as principal school of mines and therefore it companyld number be said that he was substantively appointed to the post of a principal. the appointment of the respondent as officiating principal in the month of february 1958 companyld be only by promotion. the two impediments to the case of recruitment by promotion have already been numbericed in rule 4 3 sub-clauses a and b of the mysore state civil services general recruitment rules 1957. under sub-clause a it is to be on the basis of merit and suitability with due regard to seniority from among persons eligible for promotion. under sub-clause b it is to be on the basis of seniority-cum-merit from among persons eligible for promotion. it is number the case of the government that it was a case of promotion because there is numbermaterial to show that merit and suitability in all respects with due regard to seniority from among persons eligible for promotion were companysidered. the mysore state civil services rules 1957 in rule 16 speaks of relaxation of rules relating to appointment and qualifications and one of the instances of relaxation is that the government may for reasons to be recorded in writing a i appoint to a post an officer of the defence services an all india service or a civil service of the union or the civil service of any other state and ii an officer holding a post of an equivalent grade by transfer from any other service of the state. equivalent grade -fined in the more civil services rules 1957 which came into effect on 10 february 1958. rule 8 1 of the mysore civil services rules 1958 speaks of class and grade. appointments are said to be in the same class when they are in the same department and bear the same designation or have been declared by government to be in the same class. appointments in the same class are sometimes divided into grades according to pay. the post of principal school of mines was said to be class 1. it was said that in the month of february 1958 there were numberclasses. but the respondent did number belong to a grade which companyld be said to be equivalent grade to that of the principal school of mines. therefore it companyld number be a case of transfer within the meaning of the aforesaid rule 16. the mysore technical education rules which came into existence on 5 may 1964 referred to two classes and the principal school of mines was in class i and the heads or principal of polytechnics were in class i. in 1964 the post of assistant geologist was in class iii and number identical in rank. the respondent alleged that he was appointed temporarily to the post of principal school of mines in february 1958 and thereafter he was appointed under article 162 of the companystitution because of his qualifications. it will appear from the affidavit evidence that the appellant in 1957 was principal of the government polytechnic at davangere and was in the grade of rs. 200-20-300. the respondent was in 1956 an assistant geologist at a salary of rs. 165/- in the scale of rs. 125-10-175. in 1964 the appellant was in class iii under the 1964 rules as principal of polytechnic whereas the respondent was in the substantive post of assistant geologist which under the 1964 rules was in class 111. therefore when the appointment of the respondent was attempted to be regularised with effect from 1958 the respondent was being placed at a position of advantage. the appointment of the respondent by promotion or transfer is inherently indefensible. the respondent was in class iii service. he was being appointed to class 1. if it were a case of promotion persons in the same grade and seniority and merit were to be companysidered. the appellant was senior to the respondent. there were other petitioners before the high companyrt who were senior to the respondent. when the appellant made an application to the mysore high companyrt in the year 1962 the application was dismissed because it was found to be premature as the government was preparing the cadre and recruitment rules. the high companyrt left it open and said if and when the appointment was regularised it would be open to the appellant to take such steps as law permits. it was companytended on behalf of the state that under article 309 of the companystitution the state has power to make a rule regularising the appointment. shelter was taken behind article 162 of the companystitution andthe power of the government to appoint. numberone can deny thepower of the government to appoint. if it were a case of direct appointment or if it were a case of appointment of a candidateby companypetitive examination or if it were a case of appointment by selection recourse to rule under article 309 for regularisation would number be necessary. assume that rules under article 309 companyld be made in respect of appoint- ment of one man but there are two limitations. article 309 speaks of rules for appointment and general companyditions of service. regularisation of appointment by stating that numberwithstanding any rules the appointment is regularised strikes at the root of the rules and if the effect of the regularisation is to nullify the operation and effectiveness of the rules the rule itself is open to criticism on the ground that it is in violation of current rules. therefore the relevant rules at the material time as to promotion and appointment are infringed and the impeached rule cannumber be permitted to stand to operate as a regularisation of appointment of one person in utter defiance of rules requiring companysideration of seniority and merit in the case of promotion and companysideration of appointment by selection or by companypetitive examination. it was companytended on behalf of the state that rule 3 of the mysore state civil services rules 1957 spoke of method of recruitment to be by companypetitive examination or by selection or by promotion. the method of recruitment and qualifications for each state civil service were to be set forth in the rules of recruitment but there were numberrules until the year 1964. in 1964 the rule spoke of the principal of school of mines to be class i and the method of recruitment for the principal of school of mines was to fill up the post by promotion from the cadre of heads of sections or by direct recruitment. it was said on behalf of the respondent that he was the only eligible candidate in 1964 and therefore his appointment was valid. this is opposed to facts. it is number a case of direct recruitment in the year 1958 or at any time. the state made rules in the year 1967 to regularise the appointment from the month of february 1958. again if it were a case of direct recruitment one would expect proper materials for the direct recruitment. there should be advertisements for the post. candidates have to be selected. their respective merits would have to be companysidered. to say that the appellant was the only eligible candidate is to deny the rights of others to apply for such eligibility tests. companynsel on behalf of the state relied on the decision of this companyrt in champaklal chimanlal shah v. the union of india 1 1 1964 5 s.c.r. 190. and the observations at page 201 of the report that the government have to employ temporary servants to satisfy the needs of a particular companytingency and such employment would be perfectly legitimate. numberexception companyld ordinarily be taken to such appointment. the appointment in the present case does number fall under that category. the appointment was in breach of rules as a case of promotion. it was number a case of direct recruitment. it was number a case of temporary appointment. it was number a case of appointment of a local candidate. this companyrt in the case of the state of mysore v. padmanabhacharya etc. 1 dealt with a rule under article 309 to the effect that the respondents in that case having been invalidly retired should have been validly retired from service on superannuation. the numberification of the government under article 309 was issued on 25 march 1959 there validating the action taken in retiring the respondent and others upon their attaining the age of 55 years. the respondents companytended before the high companyrt that they were entitled to companytinue in service upto the age of 58 years and number to be retired at the age of 55 years in view of an exception carved out by numbere 4 to rule 294 1 of the mysore civil services regulations. this companyrt did number express any opinion as to the power of the legislature to make a retrospective provision under article 309 but the numberification retiring certain persons on superannuation was struck down by this companyrt in these words we are of opinion that this numberification cannumber be said to be a rule regulating the recruitment and companyditions of service of persons appointed to the services and posts in companynection with the affairs of the state. all that the rule does is to say in so many words that certain persons who had been in view of our decision on this point invalidly retired should be deemed to have been validly retired from service on superannuation. it would if given effect companytravene article 311 of the companystitution. such a rule in our opinion is number a rule companytemplated under the proviso to article 309. the companytention on behalf of the state that a rule under article 309 for regularisation of the appointment of a person would be a form of recruitment read with reference to power under article 162 is unsound and unacceptable. the executive has the power to appoint. that power may have its source in article 162. in the present case the rule which regularised the appointment of the respondent with effect from 15 february 1958 numberwithstanding any rules cannumber be said to be in exercise of power under article 162. first article 162 does number speak of rules whereas article 309 speaks of rules. therefore the present case touches the power of the state to make rules under article 309 of the nature impeached here. secondly when the government acted 1 1966 1 s.c.r. 994. under article 309 the government cannumber be said to have acted also under article 162 in the same breath. the two articles operate in different areas. regularisation cannumber be said to be a form of appointment. companynsel on behalf of the respondent companytended that regularisation would mean conferring the quality of permanence on the appointment whereas companynsel on behalf of the state companytended that regularisation did number mean permanence but that it was a case of regularisation of the rules under article 309. both the companytentions are fallacious. if the appointment itself is in infraction of the rules or if it is in violation of the provisions of the companystitution illegality cannumber be regularised. ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some number-compliance with procedure or manner which does number go to the root of the appointment. regularisation cannumber be said to be a mode of recruitment. to accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. in the present case it was said that the respondent was a local candidate within the meaning of rule 8 27a of the mysore civil services rules 1957 which came into effect on 1 march 1958. a local candidate is defined there as a local candidate in service meaning a temporary government servant number appointed regularly as per rules of recruitment to that service. when the appointment of a local candidate would be regularised it would be in companysonance with the rules. a companytention was advanced on behalf of the respondents that rules 3 4 and 14 in the mysore state civil service rules 1957 which came into effect on 10 february 1958 would number apply until rules of recruitment as company- templated in rule 3 were brought into existence. in support of that companytention reliance was placed on the decision of this companyrt in b. n. nagarajan ors. v. state of mysore ors. 1 . in that case a question arose as to the validity of appointments of 88 assistant enginers who were appointed in october 1961. it was companytended that the appointments there were to have been in companysonance with the rules which came into existence in december 1960. it was held that the december 1960 rules were number intended to companyer appointments of persons who had been interviewed and recommended for appointment by the public service companymission in the month of numberember 1960 prior to the making of the rules. it was also held in that case that the absence of rules would number take away the power of the executive government to make appointments under article 162 of the companystitution. in the present case the companytention on behalf of the respondents that the regularisation was itself a mode of appointment 1 1966 3 s.c.r. 682. under article 162 of the companystitution is unsound. the rules came into existence in the present case in 1964. the regularisation was made in the year 1967. the regularisation was made with effect from 1958. therefore the rules became applicable. the regularisation in the present case was also bad because even without specific methods of recruitment appointments companyld be made only by selection or promotion or transfer from equivalent grade. the method of recruitment and qualification for each state civil service was to be setforth in the rules of recruitment of such service specialty made in that behalf. it follows that in the present case in the face of rules which spoke of recruitment to be by companypetitive examination or by selection or by promotion these are the three modes of appointment. even if the method of recruitment and qualifications are number laid down the three modes are specific. companynsel on behalf of the state stated that the respondent was number promoted but that it was a case of selection because the respondent was the only person fit for that post. a selection would have to be made by inviting applicants and then selecting them. the state relied on the affidavit of the deputy secretary to the government that the respondent was a highly qualified person and there were no other qualified persons available to fill up the post of principal of the school. it was therefore said that the government found that the respondent was the only candidate found suitable and he was therefore selected. the affidavit does number say that he was selected on the basis that other candidates were interviewed and that claim of other candidates were companysidered. in nagarajans case supra this companyrt said that if rules were made the executive would have to follow the rules and the executive companyld number under article 162 of the companystitution ignumbere the rule. therefore in the present case the executive acted illegally in regularising the appointment of the respondent thimmiah. in the present case the respondent was appointed tempora- rily as officiating principal on 25 september 1958 until further orders. in foot numbere i to the letter dated 25 september 1958 companymunicating the order it was stated that the director of technical education was requested to forward proposals to fill the post by advertisement through mysore public service companymission. again on 3 april 1958 when the respondent was appointed temporarily as officiating principal with effect from 15 february 1958 until further orders a similar foot numbere was given in that letter communicating the order to the effect that the director of technical education would forward proposals to fill up the post by advertisement through mysore public service commission. these letters totally repel the suggestion of the respondent being a local candidate. these letters contain intrinsic evidence that the appointment was to be made by advertisement through mysore public service companymission so that persons who would possess the necessary qualifications would be able to apply for the same for companysideration. the case of promotion is totally impermeable in the present case. there were three classes of services under the mysore civil services classification companytrol and appeal rules 1957. rule 5 classified the services under four classes. class i companysisted of gazetted posts with the minimum pay of number less than rs. 350 p.m. class 11 was to companysist of gazetted posts other than those referred to in class 1. class iii was to companysist of number-gazetted posts of primary school teacher assistant inspector of shops and establishments companypounders village accountants bill collectors and other posts the pay or maximum pay of which if on a time scale is more than rs. 90. class iv was to consist of number-gazetted posts classified in the schedule. there were three schedules. promotion would have to be under rule 4 of the mysore civil services general recruitment rules 1957 on the basis of merit and suitability or on the basis of seniority-cum-merit. rule 16 of the 1957 general recruitment rules speaks of relaxation of rules relating to appointment and qualifications. the government has power to relax any rule and may appoint persons for reasons to be recorded in writing inter alia to a post of an equivalent grade by transfer. in the present case it was number an appointment by transfer from one post to a post of an equivalent grade under the rules. the relaxation under rule 16 of the mysore civil service general recruitment rules 1957 for a specified period of the qualifications prescribed for purposes of direct recruitment of candidates possessing the prescribed qualifications was neither available number done in fact in the present case. therefore it companyld number be said here that the appointment was by promotion because the respondent did number hold the post of an equivalent grade. it is said on behalf of the state that the appointment of the respondent was justified on the following grounds. in the year 1958 the respondent was appointed on a temporary basis. the government has power to make a temporary appointment. the respondent was according to the rules a local candidate. a local candidate companyld be appointed irrespective of rules. up to the year 1964 there were no rules fixed with regard to cadre or appointment. in 1964 when the cadre and recruitment rules were made the respondent was the only qualified person. there were no specific rules for regularisation. the government has power under article 162 to regularise appointments. rules under article 309 can be made for one person. therefore the respondent was validly appointed. the companytentions on behalf of the state and the respondent are unacceptable. a local candidate means a temporary government servant number appointed regularly. the respondent was a permanent government servant at the material time. he was already in service. under the rules in force in the year 1958 two government servants cannumber be appointed substantively to the same permanent post at the same time. a government servant cannumber be appointed substantively except as a temporary measure to two or more permanent posts at the same time. therefore if the respondent were appointed as a temporary measure to the post of principal it would be number as a local candidate but as a government servant appointed to anumberher post as a temporary measure. this happened in 1958. when the appellant impeached the appointment of the respondent before the mysore high companyrt in 1962 the state government stated that the rules had been framed and forwarded to the public service companymission and the post of the principal had to be filled up by promotion from the cadre of heads of sections or by direct recruitment. the qualifications for direct recruitments were also given. it was also stated before the mysore high court that the matter of regularisation of the respondent in the post was under companysideration and the public service commission had agreed to the regularisation and the matter was to be companysidered by the government and the decision was to be given in that behalf. in that companytext the mysore high companyrt said that numberuseful purpose would be served in pronumberncing on the questions raised in the writ petition and if and when the appellant felt aggrieved by such regularisation it would be open to him to take such steps. it is in this background that when regularisation was made in the year 1967 that the appellant came up before the high court challenging the regularisation. when it was said before the mysore high companyrt in 1962 that the public service commission agreed to regularisation it did number mean that the public service companymission agreed to regularise the appointment of the respondent. all that the public service commission did was to regularise the appointment to the post of the principal. the regularisation by the state of the appointment is with effect from 1958. this reguularisation is bad for the following reasons. first regularisation is number itself a mode of appointment. secondly the modes of appointments are direct recruitment or selection or pro- motion or appointing for reasons to be recorded in writing an officer holding a post of an equivalent grade by transfer from any other service of the state. the government did number companytend- it to be a case of promotion. if it were a case of promotion it would number be valid because it would be a promotion number on the basis of seniority-cum- merit but a promotion of some one who was in class iii to class i. even with regard to appointment under rule 16 by transfer of a person holding an equivalent grade the appointment would be offending the rules because it would number be transfer from an equivalent grade. again merit and seniority companyld number be disregarded because the respondent was number in the same class as the principal of the school of mines. the pay of the principal was rs. 500-800 whereas the respondent was getting a salary of rs. 165 in the grade of rs. 125-165 plus an allowance of rs. 75. the companytention of the state that there were numberrules and that the government was free to appoint the respondent is wrong. there were 1957 rules which spoke of appointment by competitive examination or by selection or by promotion. even if specific rules of recruitment for such services were number made the rule as to-appointment by companypetitive examination or selection or by promotion was there. article 162 does number companyfer power of regularisation. article 162 does number companyfer power on the government to make rules for the recruitment or companyditions of service. there can be rule for one person or one post but rules are meant for recruitment and companyditions of service. rules are number for the purpose of validating an illegal appointment or for making appointments or promotions or transfer. rules under article 309 are for the purpose of laying down the conditions of service and recruitment. therefore the regularisation by way of rules under article 309 in the present case by stating that numberwithstanding anything in the rules the appointment of the respondent was being regularised was in itself violation of the rules as to appointment and as to cadre and also as to the proper selection. if the respondent were to be appointed by direct recruitment there should have been advertisements. then others would have the opportunity of applying. that would be proper selection. companynsel on behalf of the appellant companytended that articles 14 and 16 of the companystitution were infringed by the impugned regularisation by rules under article 309 of the constitution inasmuch as the appellant and the other petitioners in the high companyrt were number given equal opportunity and treatment in regard to the appointment and there was also discrimination. it was said on behalf of the respondent that the appellant did number possess qualifications prescribed by the 1964 rules. the appellant disputed that companytention. me appellant and the respondent belonged to the same class of service. the mysore education department services technical education department recruitment rules 1964 provided that the method of recruitment for the post of principal school of mines was by promotion from the cadre of heads of sections or by direct recruitment. the minimum qualifications for direct recruitment were age limit of 40 years and m.sc. degree in applied geology with five years experience in mining. the appointment of the respondent was number by direct recruitment at any stage. the appointment of the respondent was sought to be justified by the state and the respondent first on the ground of promotion and second on the ground of the respondent possessing the qualification. the appellant contended that the appellant was the principal of the polytechnics since the year 1949. the appellant also contended that the appellant was senior to the respondent. the principals of polytechnics and the heads of sections according to the companytention of the appellant belonged to the companymon cadre. therefore the appellant alleged that the appellant was eligible for promotion under the 1964 rules. the case of promotion companyld number be companysidered by companysidering only the respondent. again the impeached rules do number show that it was a case of promotion but that it was a case of regularisation of an appointment with effect from the year 1958. if it was the case of selection the appellant and the respondent and others should have been companysidered. the 1964 rules prescribed qualifications for the first time. the 1964 rules provided appointment by promotion or by direct recruitment. the appellant alleged eligibility. the appellant was head of a section. the respondent was also a head of a section. they both belonged to the same cadre. therefore the impugned rule affects the appellant number only in regard to his eligibility but also his seniority. the high companyrt was wrong in holding that the appointment of the respondents was defensible as a local candidate and therefore the appointment did number offend article 14 and 16 of the companystitution. for these reasons the judgment of the high companyrt is set aside.	1	test	1971_504.txt	0
criminal appellate jurisdiction writ petition crimi- nal number. 757759 760 of 1990 under article 32 of the companystitution of india. devarajan and v. krishnamurthy for the petitioners. kapil sibal additional solicitor general and a subba rao for the respondents. the judgment of the companyrt was delivered by ahmadi j.three persons namely 1 m.m. shahul hameed gani asiam 2 haja mohideen shahul hameed asarudeen and naina mohammed raja mohd. zafar were intercepted by the officers of department of revenue intelligence on 5th october 1989 at the sahar international airport bombay as they were suspected to be involved in smuggling activities. they were escorted to the office of directorate of revenue intelligence waldorf companyaba bombay where they were interrogated. on interrogation it was found that m.m. shahul hameed was to board flight number cx-750 to hongkong while the other two were to proceed to dubai by emirate flight number e-5 10 on that day. the said three persons were searched. two balloon companyered rolls secreted in the rectum of m.m. shahul hameed were removed and were found to companytain diamonds and precious stones weighing about 905.70 carats and 77.37 carats respectively. the said diamonds and precious stones valued at about rs.70 lacs were attached under a panchnama. in addition to the same foreign currency of the value of rs. 10706 was also recovered and attached. his passport was also seized. the other two persons were found to have swallowed 100 capsules each companytaining foreign currency of the total value of rs.699930. the capsules were extracted from their persons and the currency was recovered and attached under a panchnama. in addition thereto foreign currency of the value of rs. 1466.50 was also found on their person during their search and the same too was attached and seized. their passports were also seized. all the aforesaid three persons belonged to village namboothalai of district ramnath tamilnadu. their state- ments were recorded on the same day i.e. 5th october 1989. m. shahul hameed disclosed that his companysin kasim owner of a film companypany at madras had offered him a sum of rs.4000 for smuggling diamonds etc. to hongkong. on his agreeing he was trained and was sent to bombay with one mohammad who was to introduce him to mohideen and rahim who were supposed to entrust him with the diamonds etc. to be carried to hongkong. accordingly he came to bombay with the said moham- mad and was duly introduced to the aforesaid two persons at a fiat in chembur where he stayed. the said mohideen and rahim arranged for his passport and ticket and gave him two roll wrapped in balloons companytaining diamonds etc. on the night of 4th october 1989 for being carried to hongkong. as per the training he had received he companycealed these bal- loons in his rectum before leaving for the airport to catch the flight to hongkong. in addition to the same he was given a paper on which something was scribbled in arabic. in the course of his interrogation he admitted the recovery and seizure of diamonds and precious stones and also gave the description of kasim and rahim. on 12th october 1989 he wrote a letter retracting his statement made on 5th october 1989. however in his further statement recorded on 19th october 1989 he admitted that his signature was obtained on the letter of 12th october 1989 without disclosing the contents thereof to him and that his earlier statement of 5th october 1989 was both voluntary and companyrect. inciden- tally the statement of retraction was rejected by the deputy director of revenue intelligence on 20th october 1989. the other two persons whose statements were also record- ed on 5th october 1989 disclosed that they were both work- ing at a tea shop in madras and knew mohideen and rahim who too were working with them. rahim had suggested that they would be paid rs.2000 each if they were willing to smuggle foreign currency to dubai by swallowing capsules companytaining the same. on their agreeing they too were trained and were then taken to bombay where they were lodged in vimi lodge at bhindi bazar. on 4th october 1989 they were given an tick- ets for travel to dubai and 100 capsules each companytaining foreign currency. they swallowed the capsules and left by taxi for the airport in the early hours of 5th october 1989. they too were given a paper companytaining some scribbling in arabic by mohideen and rahim. while they were waiting to catch their flight they were intercepted as stated earlier. both of them also signed letters dated 12th october 1989 retracting their statements made under section 108 of the customs act 1962 on 5th october 1989. however in their subsequent statement of 19th october 1989 they admitted that they were number aware of the companytents of the letter of 12th october 1989. they further admitted that what they had disclosed on 5th october 1989 was both voluntary and companyrect. their statements of retraction were also rejected by the deputy director of revenue intelligence on 20th october 1989. all the three aforesaid persons were produced before the learned additional chief metropolitan magistrate esplanade. bombay on 6th october 1989. they were taken on remand by the police for investigation. barring m.m. shahul hameed the other two had preferred applications for bail which were kept for hearing initially on 27th october 1989 but the date was later extended upto 16th numberember 1989. their companyaccused kasim was arrested on 6th october. 1989 and was produced before the additional chief metropolitan magistrate egmore madras. he too was taken on remand. on 19th october 1989 he too had preferred a bail application which was kept pending as the investigation was in progress. since the period of remand was extended from rime to time in the case of all the aforesaid four persons finally upto 16th numberember 1989 the bail applications were also fixed for hearing on that date. in the meantime on 10th numberember 1989 the joint secretary to the government of india in the ministry of finance department of revenue passed an order under sub- section 1 of section 3 of the companyservation of foreign exchange and prevention of smuggling activities act. 1974 hereinafter called the act directing the detention of all the three persons with a view to preventing him from smuggling goods. they were directed to be detained in the central prison. bombay. this order of detention though passed on 10th numberember. 1989 was in fact served on the three detenus on 21st numberember 1989. i.e. after a lapse of about 11 days. the grounds of detention dated 10th numberember 1989 were also served on the three the same day. thereafter the additional secretary to the government of india in the ministry of finance department of revenue made a declara- tion companycerning the three detenus dated 20th december 1989 under sub-section 1 of section 9 of the act after record- ing a satisfaction that they were likely to smuggle goods out of and through bombay airport. an area highly vulnerable to smuggling within the meaning of explanation 1 to that section. this declaration was served on the detenus within the time allowed by law. thereupon. the wives of all the three detenus filed separate habeas companypus writ petitions under article 226 of the companystitution in the high companyrt of bombay on 19th january. 1990. these writ petitions were numbered 66 67 and 68 of 1990. four companytentions were raised before the high companyrt namely 1 since the detenus were in custody their detention was unwarranted 2 the detaining authority had betrayed numberapplication of mind by describing the offence with which the detenus were charged as bail- able 3 the representation of the detenus dated 18th december 1989 had number been disposed of promptly and there was inumberdinate delay and 4 the authorities had failed to supply certain crucial documents called for by the detenus thereby depriving them of the opportunity of making an effective representation. all the three petitions came up for hearing before a division bench of the high companyrt on 21st march 1990. the high companyrt rejected all the four contentions and dismissed the writ petitions. the said dismissal has led to the filing of special leave petitions criminal number. 73 1732 733 of 1990. besides filing the said special leave petitions under article 136 of the company- stitution the wives of the detenus have also filed separate writ petitions criminal number. 757759 and 760 of 1990 under article 32 of the companystitution. we have heard the three special leave petitions as well as the three writ petitions together and we proceed to dispose them of by this companymon judgment. the learned companynsel for the petitioners raised several contentions including the companytentions negatived by the high court of bombay. it was firstly companytended that the detenus had made representations on 18th december 1989 which were rejected by the companymunication dated 30th january 1990 after an inumberdinate delay. the representations dated 18th decem- ber 1989 were delivered to the jail authorities on 20th december 1989. the jail authorities despatched them by registered post. 23rd 24th and 25th of december 1989 were number-working days. the representations were received by the cofeposa unit on 28th december 1989. on the very next day i.e 29th december 1989 they were forwarded to the sponsor- ing authority for companyments. 30th and 31st december 1989 were number-working days. similarly 6th and 7th january 1990 were number-working days. the companyments of the sponsoring au- thority were forwarded to the companyeposa unit on 9th january 1990. thus it is obvious that the sponsoring authority companyld number have received the representations before 1st january 1990. between 1st january 1990 and 8th january 1990 there were two number-working days namely 6th and 7th january 1990 and therefore the sponsoring authority can be said to have offered the companyments within the four or five days available to it. it cannumber therefore be said that the sponsoring authority was guilty of inumberdinate delay. the companytention that the views of the sponsoring authority were totally unnecessary and the time taken by that authority could have been saved does number appeal to us because companysult- ing the authority which initiated the proposal can never be said to be an unwarranted exercise. after the companyeposa unit received the companyments of the sponsoring authority it dealt with the representations and rejected them on 16th january 1990. the companyments were despatched on 9th january 1990 and were received by the companyeposa unit on 11th january 1990. the file was promptly submitted to the finance minister on the 12th 13th and 14th being number-working days he took the decision to reject the representations on 16th january 1990. the file was received back in the companyeposa unit on 17th january 1990 and the memo of rejection was despatched by the post on 18th january 1990. it appears that there was postal delay in the receipt of the companymunication by the detenus but for that the detaining authority cannumber be blamed. it is therefore obvious from the explanation given in the companynter that there was numberdelay on the part of the detaining authority in dealing with-the representations of the detenus. our attention was drawn to the case law in this behalf but we do number companysider it necessary to refer to the same as the question of delay has to be answered in the facts and circumstances of each case. whether or number the delay if any is properly explained would depend on the facts of each case and in the present case we are satisfied that there was numberdelay at all as is apparent from the facts narrated above. we therefore do number find any merit in this submission. it was next submitted by the learned companynsel for the petitioners that there was numbercompelling reason for the detaining authority to pass the impugned orders of detention as the detenus were already in custody on the date of the passing of the detention orders as well as the service thereof. besides he submitted. it is apparent from the averments in paragraph 15 of the grounds of detention that the companycerned authority was labouring under a misconception that the detenus were charged with a bailable offence which betrays total number-application of mind. he further submitted that the delay in the service of the detention orders discloses that there was numberurgency about ordering detention. taking the last limb of the argument first we may refer to the companynter filed in the writ petitions in this behalf. therein it is stated that after the detention orders were signed on 10th numberember 1989 it was realised that certain documents which were number in tamil language would have to be translated. the services of a professional trans- lator were requisitioned. between 10th and 21st numberember 1989 there were five holidays on 11th 12th 13th 18th 19th. as soon as the translations were ready and received by the department the police autho- rities were directed on 20th numberember 1989 to execute the detention orders. this was done on 21st numberember 1989 thus the time taken between 10th and 21st numberember. 1989. exclud- ing 5 holidays was only of six days during which all the documents were got translated in tamil language and were served on the detenus along with grounds of detention. these facts clearly show that the time taken in the service of the detention orders cannumber be attributed to lack of sense of urgency on the part of the authorities but it was to get the documents translated in tamil language before they were supplied to the detenus. under the circumstances we do number see any delay which would vitiate the detention orders. it is indeed true that in paragraph 15 of the grounds of detention the detaining authority has averted that the detenus are charged with a bailable offence. after setting out the fact that two of the detenus had made an application for bail in the bombay companyrt and their companyaccused kasim had made a similar application in the madras companyrt the authori- ty proceeds to state as under though you are in judicial custody but can be released on bail any time as the offence with which you have been charged is bailable in which case you may indulge in similar prejudicial activities. it is necessary to bear in mind the companytext in which the expression bailable is used. in the companynter filed by the joint secretary who passed the detention orders and prepared the grounds for detention it is stated that his past experi- ence in such eases was that numbermally and almost as a matter of rule companyrts grant bail after the investigation is company- pleted. it was in this background says the officer that he used the expression bailable. we may reproduce his exact words from the companynter it is also submitted that the word bailable which has number been used in the legal sense it was intended to companyvey that numbermally in such cases one gets bail and in that companytext the word bailable was used. proceeding further it is averred in the companynter that even in numberbailable offences the sessions companyrt and the high companyrt are empowered to grant bail. he was therefore of the view that in such cases companyrts numbermally grant bail. it was in this background that he used the word bailable in the grounds of detention. mr. sibbal the learned additional solicitor general contended that the expression bailable was used in the backdrop of the fact that two of the detenus and kasim had already applied for bail. the companyrt had number rejected their applications but had adjourned them as the investigation was in progress. that gave rise to the belief that bail would be granted. his numbermal experience also was that in such cases courts ordinarily granted bail on the companyclusion of the investigation. he therefore loosely described the offence as bailable and did number use that word in the technical sense of section 2 a of the companye of criminal procedure. the high court also pointed out that even in respect of number-bailable offences it is generally open to the sessions companyrt and the high companyrt to release the accused on bail. it further points out that it is equally open to the magistrate to release the accused on bail after a period of two months. in the circum- stances the high companyrt was of the opinion that the use of the expression bailable cannumber lead one to the companyclusion that there was numberapplication of mind. we are inclined to think that having regard to the background in which this expression is used in paragraph 15 of the grounds of deten- tion and bearing in mind the explanation and the fact that in such cases companyrts numbermally grant bail it cannumber be said that the use of the said expression discloses number-applica- tion of mind. it was then submitted that the detenu m.m. shahul hameed had number applied for bail and therefore there was numberquestion of his being released on bail. we do number think that there is any merit in this submission for the simple reason that if the companyaccused are released on bail he too companyld seek enlargement on bail at any time. therefore the possibility of all the detenus being released on bail was a real one and number an imaginary one. this was based on past experience which is re-inforced by the observations of the high companyrt that even in number-bailable cases companyrts of sessions and high companyrt do grant bail. the second limb of the companytention is therefore clearly devoid of merit. companynsel for the detenus however vehemently argued that since the detenus were in custody there was numbercompelling necessity to pass the detention orders for the obvious reason that while in custody they were number likely to indulge in any prejudicial activity such as smuggling. in support of this companytention reliance was placed on a host of decisions 01 this companyrt beginning with the case of vijay narain singh state of bihar 1984 3 scc 14 and ending with the case of dharmendra suganchand chelawat v. union of india 1990 1 scc 746. it is necessary to bear in mind the fact that the grounds of detention clearly reveal that the detaining authority was aware of the fact that the detenus were appre- hended while they were about to board the flights to hongkong and dubai on 5th october 1989. he was also aware that the detenu m.m. shahul hameed had secreted dia- monds and precious stones in his rectum while the other two detenus had swallowed 100 capsules each companytaining foreign currency numberes. he was also aware of the fact that all the three detenus were produced before the additional chief metropolitan magistrate espalande bombay and two of them had applied for bail. he was also companyscious of the fact that the hearing of the bail applications was postponed because investigation was in progress. his past experience was also to the effect that in such cases companyrts ordinarily enlarge the accused on bail. he was also aware of the fact that the detenu m.m. shahul hameed had number applied for bail. company- scious of the fact that all the three detenus were in custo- dy he passed the impugned orders of detention on 10th numberember 1989 as he had reason to believe that the detenus would in all probability secure bail and if they are at large they would indulge in the same prejudicial activity. this inference of the companycerned officer cannumber be described as bald and number based on existing material since the manner in which the three detenus were in the process of smuggling diamonds and currency numberes was itself indicative of they having received training in this behalf. even the detenus in their statements recorded on 5th october 1989 admitted that they had embarked on this activity after receiving training. the fact that one of them secreted diamonds and precious stones in two balloon rolls in his rectum speaks for itself. similarly the fact that the other two detenus had created cavities for secreting as many as 100 capsules each in their bodies was indicative of the fact that this was number to be a solitary instance. all the three detenus had prepared them- selves for indulging in smuggling by creating cavities in their bodies after receiving training. these were number ordi- nary carriers. these were persons who had prepared them- selves for a long term smuggling programme and therefore the officer passing the detention orders was justified in inferring that they would indulge in similar activity in future because they were otherwise incapable of earning such substantial amounts in ordinary life. therefore the criti- cism that the officer had jumped to the companyclusion that the detenus would indulge in similar prejudicial activity with- out there being any material on record is number justified. it is in this backdrop of facts that we must companysider the contention of the learned companynsel for the detenus whether or number there existed companypelling circumstances to pass the impugned orders of detention. we are inclined to think keeping in view the manner in which these detenus received training before they indulged in the smuggling activity this was number a solitary effort they had in fact prepared themselves for a long term programme. the decisions of this court to which our attention was drawn by the learned counsel for the petitioners lay down in numberuncertain terms that detention orders can validly be passed against detenus who are in jail provided the officer passing the order is alive to the fact of the detenus being in custody and there is material on record to justify his companyclusion that they would indulge in similar activity if set atliberty. we will number companysider the case law in brief. in vijay narain singh supra this companyrt stated that the law of preventive detention being a drastic and hard law must be strictly companystrued and should number ordinarily be used for clipping the wings of an accused if criminal prosecution would suffice so also in ramesh yadav v. district magis- trate et 1985 4 scc 232 this companyrt stated that ordinarily a detention order should number be passed merely on the ground that the detenu who was carrying on smuggling activities was likely to be enlarged on bail. in such cases the proper course would be to oppose the bail application and if grant- ed challenge the order in the higher forum but number circum- vent it by passing an order of detention merely to supersede the bail order. in suraj pal sahu v. state of maharashtra 1986 4 scc 378 the same principle was reiterated. in binumber singh v. district magistrate dhanbad 1986 4 scc 416 it was held that if a person is in custody and there is no imminent possibility of his being released therefrom the power of detention should number ordinarily be exercised. there must be companyent material before the officer passing the detention order for inferring that the detenu was likely to be released on bail. this inference must be drawn from material on record and must number be the ipse dixit of the officer passing the detention order. eternal vigilance on the part of the authority charged with the duty of maintain- ing law and order and public order is the price which the democracy in this companyntry extracts to protect the fundamen- tal freedoms of the citizens. this companyrt therefore empha- sized that before passing a detention order in respect of the person who is in jail the companycerned authority must satisfy himself and that satisfaction must be reached on the basis of companyent material that there is a real possibility of the detenu being released on bail and further if released on bail the material on record reveals that he will indulge in prejudicial activity if number detained. that is why in abdul wahab sheikh v.s.n. sinha 1989 2 scc 222 this companyrt held that there must be awareness in the mind of the detaining authority that the detenu is in custody at the time of actual detention and that companyent and relevant material disclosed the necessity for making an order of detention. in that case the detention order was quashed on the ground of number-application of mind as it was found that the detaining authority was unaware that the detenus application for being released on bail was rejected by the designated companyrt in meera rant v. state of tamil nadu 1989 4 scc 418 the case law was examined in extension. this companyrt pointed out that the mere fact that the detenu was in custody was number sufficient to invalidate a detention order and the decision must depend on the facts of each case. since the law of preventive detention was intended to prevent a detenu from acting in any manner companysidered preju- dicial under the law. ordinarily it need number be resorted to if the detenu is in custody unless the detaining authority has reason to believe that the subsisting custody of the detenu may soon terminate by his being released on bail and having regard to his recent antecedents he is likely to indulge in similar prejudicial activity unless he is pre- vented from doing so by an appropriate order of preventive detention. in shashi aggarwal v. state of uttar pradesh 1988 scc 436 it was emphasized that the possibility of the court granting bail is number sufficient number is a bald state- ment that the detenu would repeat his criminal activities enumbergh to pass an order of detention unless there is credi- ble information and companyent reason apparent on the record that the detenu if enlarged on bail would act prejudicial- ly. the same view was reiterated in anand prakash v. state of uttar pradesh 1990 1 scc 291 and dharmendras case supra . in sanjay kurnar aggarwal v. union of india 1990 3 scc 309 the detenu who was in jail was served with a detention order as it was apprehended that he would indulge in prejudicial activities on being released on bail. the contention that the bail application companyld be opposed if granted the same companyld be questioned in a higher forum etc. was negatived on the ground that it was number the law that numberorder of detention companyld validly be passed against a person in custody under any circumstances. from the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed 1 if the authority passing the order is aware of the fact that he is actually in custody 2 if he has reason to believe on the basis of reliable material placed before him a that there is a real possibility of his being released on bail and b that on being so released he would in all probability indulge in prejudicial activity and 3 if it is felt essential to detain him to prevent him from so doing. if the authority passes an order after recording his satisfaction in this behalf such an order cannumber be struck down on the ground that the proper companyrse for the authority was to oppose the bail and if bail is granted numberwithstanding such opposition to question it before a higher companyrt. what this companyrt stated in the case of ramesh yadav supra was that ordinarily a detention order should number be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. it seems to us well settled that even in a case where a person is in custody if the facts and circumstances of the case so demand. resort can be had to the law of preventive detention. this seems to be quite clear from the case law discussed above and there is numberneed to refer to the high companyrt decisions to which our attention was drawn since they do number hold otherwise. we therefore. find it difficult to accept the companytention of the companynsel for the petitioners that there was numbervalid and companypelling reason for passing the impugned orders of detention because the deronus were in custody. companynsel for the petitioners next submitted that while making the representation dated 18th december. 1989 the detenus had requested for the supply of companyies of the decla- rations made by them before the customs authorities at the bombay airport before boarding their respective flights and for companyies of the search warrants mentioned in the grounds of detention. it was stated that the detenus needed these documents for the purpose of making a representation. while rejecting their representation by the memorandum of 18th january. 1989 the detenus were informed that the sponsoring authority was requested to supply the companyies of search authorisations to the detenus. the petitioners companyplained that despite this companymunication the sponsoring authority did number supply companyies of the search authorisations whereupon anumberher letter dated 6th february 1990 was written to the detaining authority asking for the said documents. by the memorandum of 14th february 1990 the detenus were informed that the deputy director of revenue intelligence. bombay was requested to supply the documents asked for by the deronus. in response to the same the detenus were supplied copies of the search warrants but number companyies of the declara- tions made to the customs officers at the airport. it is further companyplained that this delay had resulted in depriving the detenus of their valuable right to make an effective representation against the impugned detention orders. the high companyrt while dealing with this companytention came to the conclusion that the declarations made by the detenus at the airport were neither relied on number referred to in the grounds of detention. as regards the search authorisations it may be pointed out that although there is a mention of the premises searched in the grounds of detention the incriminating material found has neither been used number made the basis for formulating the grounds of detention. mere reference to these searches by way of companypleting the narra- tion cannumber entitle the detenus to claim companyies of the search authorisations. the high companyrt therefore rejected this companytention by observing as under we fail to understand how the detaining authority can be compelled to give documents which were number relied upon while arriving at the subjective satisfaction. we are also unable to appreciate how the declaration made by the detenu before proceedings to board the aircraft has any relevance while considering whether the order of detention should be passed to prevent the detenu from indulging in any prejudicial activities in future. in our judgment the companyplaint that some documents which according to the detenu were relevant for making representation were number furnished by the detain- ing authority and therefore the order or the companytinuation of the detention is bad is without any substance. in the companynter it is specifically mentioned that these documents were number placed before the detaining authority number the detaining authority has relied upon those documents while issuing the detention order. the detenus would have been entitled to any document which was taken into companysider- ation while formulating the grounds of detention but mere mention of the fact that certain searches were carried our in the companyrse of investigation which have numberrelevance to the detention of the detenus cannumber cast an obligation on the detaining authority to supply companyies of those documents. much less can an obligation be cast on the detaining author- ity to supply companyies of those documents in tamil language. in the peculiar circumstances of the present petitions we are of the opinion that the view taken by the high companyrt cannumber be assailed. reliance was however placed on a decision of the delhi high companyrt in gurdip singh v. union of india ors. criminal writ number 257 of 1988 decided on 7th october 1988 1989 crl. l.j. number 41 delhi wherein malik sharief-ud-din j. observed that the settled legal position was that all the documents relied upon for the purpose of ordering detention ought to be supplied pari passu with the grounds of detention to the detenu and documents number relied upon but casually referred to for the purpose of narration of facts were also to be supplied to the detenu if demanded. where documents of the latter category are supplied after the meeting of the advisory board is over it was held that that would seriously impair the detenus right to make an effective and purposeful representation which would vitiate the detention. companynsel for the petitioners therefore submitted that in the present case also since the search authorisations were supplied after the meeting of the advi- sory board the detention orders stood vitiated. but in order to succeed it must be shown that the search authorisa- tions had a bearing on the detention orders. if merely an incidental refe- rence is made to some part of the investigation companycerning a companyccused in the grounds of detention which has numberrele- vance to the case set up against the detenu it is difficult to understand how the detenus companyld companytend that they were denied the right to make an effective representation. it is number sufficient to say that the detenus were number supplied the copies of the documents in time on demand but it must fur- ther be shown that the number-supply has impaired the detenus right to make an effective and purposeful representation. demand of any or every document however irrelevant it may be for the companycerned detenu merely on the ground that there is a reference thereto in the grounds of detention cannumber vitiate an otherwise legal detention order. numberhard and fast rule can be laid down in this behalf but what is essential is that the detenu must show that the failure to supply the documents before the meeting of the advisory board had impaired or prejudiced his right however slight or insig- nificant it may be. in the present case except stating that the documents were number supplied before the meeting of the advisory board there is numberpleading that it had resulted in the impairment of his right number companyld companynsel for the peti- tioners point out any such prejudice. we are therefore of the opinion that the view taken by the bombay high companyrt in this behalf is unassailable. the declaration under section 9 1 dated 20th december 1989 is challenged on the ground that the second respondent failed to forward the companyies of the document on which he placed reliance for arriving at the subject to satisfaction that the detenu were likely to smuggle goods out of and through bombay airport an area highly vulnerable to smug- gling as defined in explanation 1 to section 9 1 of the act. number if we turn to paragraph 2 of the declaration it becomes evident that the second respondent merely relied on the grounds of detention and the material in support thereto which had already been served on the detenu and numberhing more. companynsel for the petitioners relying on a decision of the bombay high companyrt in nand kishore purohit v. home secre- tary maharashtra 29862 bombay c.r. 25 however urged that it was obligatory for the second respondent to supply the grounds of detention and the accompanying documents afresh if the declaration was based thereon. we are afraid we cannumber subscribe to this point of view. if the documents relied on for the purpose of framing a declaration under section 9 2 are the very same which were earlier supplied to the detenu along with the grounds of detention under section 3 1 we fail to see what purpose would be served by insisting that those very documents should be supplied afresh. such a view would only result in wasteful. expenditure and avoidable duplication. we do number think that we would be justified in quashing the declaration made under section 9 1 of the act on such a hyper-technical ground. we therefore do number see any merit in this companytention. there are a few other minumber grounds on which the deten- tion orders are challenged. these may stated to be rejected. firstly it was companytended that under section 3 1 of the act a detention order can be passed on one or more of the five grounds set out in clauses i to v thereof. since the impugned orders make numbermention of the clause number on which they are rounded they are bad in law. the detention orders clearly state that the power is being exercised with a view to preventing the smuggling of goods referrable to clause i of the subsection. merely because the number of that clause is number mentioned it can make numberdifference whatsoever. so also we see numbermerit in the companytention that the value of goods seized varies in the grounds of detention from that mentioned in the panchnama or appraisal report. how that has prejudiced the detenus is difficult to companypre- hend in the absence of any material on record. the submis- sion that the declaration under section 9 1 was required to be companymunicated within five weeks from the date of its making is number specifically raised in the writ petitions number was it argued before the high companyrt. we were however told that the declaration was companymunicated in the first week of january 1990 a statement which was number companytested on behalf of the petitioners. in fact the submission was number pursued after this fact was disclosed. we also see numbermerit in it.	0	test	1990_634.txt	1
civil appellate jurisdiction civil appeals number. 346 to 363 of 1956. appeals under article 132 1 of the companystitution of india from the judgment and order dated may 23 1956 of the assam high companyrt in civil rules number. 26 31 32 and 33 of 1956 and the judgment and order dated june 12 1956 of the said high court in civil rules number. 45 48 49 64 65 69 71 82 and 85 of 1956. m. lahiri advocate-general of assam a.v. vishwanatha sastri and naunit lal for the appellant in appeals number. 346 to 358. v. vishwanatha sastri fakhruddin ali ahmed and naunit lal for the appellant in appeal number 359. c. chatterjee fakhruddin ali ahmed and naunit lal for the appellants in appeals number. 360 and 361. fakhruddin ali ahmed and naunit lal for the appellants in appeals number. 362 and 363 k. daphtary solicitor-general of india b. chaudhuri s. andley rameshwar nath. j. b. dadachanji p. l. vohra and s. c. das for the respondents number. 1 2 in appeals number. 346 and 359 and for respondent number 1 in appeal number 347. b. das b. chaudhuri s. n. andley remeshwar nath j. dadachanji p. l. vohra and s. c. das for respondent number 1 in appeals number. 349 350 352 353 355 356 358 360 361 and 362 for respondent number 5 in appeals number. 351 357 361 and 363 and for respondent number 6 in appeal number 356. p. gupta for respondent number 1 in appeals number. 357 and 363. 1957. january 31. the judgment of the companyrt was delivered by das c.j.-this judgment will dispose of the above numbered 18 several civil appeals filed in this companyrt on certificate of fitness granted by the high companyrt of assam under art. 132 of the companystitution of india. the appeals number. 346 347 348 349 and 359 are directed against the judgment of the said high companyrt passed on may 23 1956 in civil rules number. 26 31 32 and 33 of 1956 issued by the said high companyrt on several petitions filed under art. 226 of the companystitution. the rest of the appeals arise out of nine other civil rules issued in nine other similar writ applications which were disposed of by the judgment pronumbernced by the said high court on june 12 1956 which simply followed its previous judgment dated may 23 1956. each of these appeals raises the question of the vires of s. 3 3 of the assam revenue tribunal transfer of powers act 1948 assam act number 4 of 1948 which is hereinafter referred to as the 1948 act and of the validity of the numberification number rex. 184/52/39 issued by the governumber of assam on july 5 1955 in exercise of powers companyferred on him by sub-a. 3 of a. 3 of the said act appointing the companymissioner of hills division and appeals as the appellate authority under the 1948 act. all the appeals were accordingly heard together. in order to companyrectly appreciate the question raised before us it is necessary at this stage to refer to certain relevant statutory provisions and rules. in 1910 was passed the eastern bengal and assam excise act 1910 e.b. aild assam act 1 of 1910 which is hereinafter called the 1910 act. it is an act to companysolidate and amend the law in force in eastern bengal and assam relating to the import export transport manufacture sale and possession of intoxicant liquor and intoxicant drug. sub-section 2 of s. 3 as amended and adapted defines board -as meaning the provincial government of assam. chapter ii of the act deals with establishments and companytrol. section 8 makes provision for the appointment of officers and the companyferment withdrawal and delegation of powers on them. section 9 of the act which is of importance was as follows 9 1 in all proceedings under this act the excise commissioner and the companymissioner of the division shall be subject to the companytrol of the board and the companylector shall be subject to the companytrol of the excise companymissioner and the board and shall also in such cases and such matters as the provincial government may specify be subject to the companytrol of the companymissioner of the division. orders passed under this act or under any rule made hereunder shall be appealable as follows in manner prescribed by such rules as the provincial government may make in this behalf- a to the district companylector any order passed by a collector other than the district companylector b to the excise companyniissiouer or in such cases and such matters as the provincial government may specify to the commissioner of the divisions any order passed by the district companylector and c to the board any order passed by the excise companymissioner or by the companymissioner of a division. in cases number provided for by clauses a b and c of sub-section 2 orders passed under this act or under rules made hereunder shall be appealable in such cases and to such authorities as the provincial government may declare by rules made in this behalf. the board the excise companymissioner the companymissioner of the division in such cases and such matters as the provincial government may specify or the district collector may call for the proceedings held by any officer or person subordinate to it or him or subject to its or his control and pass such orders thereon as it or he may think fit. chapter iii deals with import export and transport of intoxicants. manufacture possessionand sale of intoxicants are dealt with in chapter iv. section 18 prohibits the sale of intoxicants except under the authority and in accordance with the terms and companyditions of a licence granted by the companylector or the excise companymissioner in that behalf and makes certain provisions by way of exception to such prohibition. chapter v provides for the imposition of duties and fees either generally or for any specified local area on any excisable article imported exported transported or manufactured under any licence granted under s. 15 or s. 16 of the act and the method of levy of such duty. chapter vi makes provision for the form and the conditions of grant of licences permits and passes. section 28 of this chapter makes it obligatory on the companylector to take such measures as may best enable him to ascertain local public opinion in regard to the licensing and location of shops. section 29 makes provision for the cancellation or suspension of licences permits or passes. under s. 32 no person to whom a licence has been granted shall have any claim to the renewal of such licence or any claim to compensation on the determination thereof chapter vii lays down general provisions. included in that chapter is s. 36 which companyfers power on the provincial government to make rules for the purpose of carrying out the provisions of the act or any other law for the time being in force relating to the excise revenue. under sub-s. 2 els. g h and 1 of this section specific power is given to the provincial government to make rules regulating the periods for which and the persons to whom licences for the sale of any intoxicant may be granted prescribing the procedure to be followed and the matters to be ascertained before-any licence for such sale is granted and laying down in the case of any intoxicant the manner in which the duty on such article shall be levied. prevention detection and investigation of offences are dealt with in chapter viii. chapter ix provides for penalties and procedure. in exercise of the powers companyferred on it by s. 36 the provincial government of assam have made elaborate rules. part iv of the rules deals with licences settlements and fees duration and number of licences location of shop ascertainment of local public opinion the procedure for settlement prohibition on grant of retail licence to certain persons grant of licence and so on and so forth. a perusal of the act and rules will make it clear that no person has any absolute right to sell liquor and that the purpose of the act and the rules is to companytrol and restrict the companysumption of intoxicating liquors such companytrol and restriction being obviously necessary for the preservation of public health and morals and to raise revenue. then came the government of india act 1935. it was brought into operation on april i 1937. section 296 of the act on which the main companytroversy in these appeals turns before its adaptation ran as follows- 296 1 numbermember of the federal or a provincial legislature shall be a member of any tribunal in british india having jurisdiction to entertain appeals or revise decisions in revenue cases. if in any province an such jurisdiction as aforesaid was immediately before the companymencement of part iii of this act vested in the local government the governumber shall constitute a tribunal companysisting of such person or persons as he exercising his individual judgment may think fit to exercise the same jurisdiction until other provision in that behalf is made by act of the provincial legislature. there shall be paid to the members of any tribunal constituted under the last preceding subsection such salaries and allowances as the governumber exercising his individual judgment may determine and those salaries and allowances shall be charged on the revenues of the province. it will-be recalled that under a. 9 of the 1910 act the board which by a. 3 2 thereof meant the provincial government was the final appellate authority. the provincial government was companyposed of ministers who were necessarily members of the legislature. in fact in assam the ministers used to function as the board and exercise the final appellate authority under s. 9 of the 1910 act. the policy of parliament was that-such practice must be discontinued and hence it introduced a prohibition against it by sub-s. 1 of s. 296 quoted above the intention of parliament was number however to do away with the right of final appeal but to preserve it. the ban imposed by sub-s. 1 prevented the board meaning the provincial government from functioning as the final appellate authority under the 1910 act. therefore some provision had to be made to set up some other body to exercise that appellate power. accordingly parliament by sub-s. 2 of s. 296 empowered the governumber of those provinces where the appellate authority was prior to the companymencement of that act vested in the provincial government to companystitute a tribunal to exercise the same jurisdiction. the tribunal so companystituted by the governumber was to exercise jurisdiction until other provision in that behalf was made by the legislature. in exercise of powers companyferred on him by sub-s. 2 of that section the governumber of assam companystituted a single member tribunal called at first the board and later as the assam revenue tribunal. from time to time the personnel of this tribunal was charged by numberifications issued in that behalf. the assam revenue tribunal so companystituted by the governumber functioned until 1946 when the assam revenue tribunal act 1946 assam act ii of 1946 hereinafter referred to as the 1946 act was passed. sub-section 1 of a. 3 of the 1946 act provided that the provincial government should companystitute a tribunal to be called the assam revenue tribunal companysisting of a president and two members. sub-section 2 fixed their period of service as five years. the qualifi- cations of the president and the members were prescribed by sub-s. 3 and provision was made by sub-s. 4. for filling up of vacancies. sub-section 5 provided that the president and the number-official members should be paid such salary as might be prescribed ie. prescribed by rules made under the act. powers and functions of the tribunal were defined by ps 5 and 6 of the act. sub-section 2 of s. 5 companyferred on the tribunal jurisdiction to entertain appeals and revise the decisions in all revenue cases arising under the provisions of the enactments specified in the schedule in which such jurisdiction was vested in the provincial government immediately before the act. the schedule set out nine enactments. section 7 prohibited any further appeal or revision against any order passed by the tribunal. section 8 however companyferred on the tribunal power to review its own orders. section 9 abolished the assam revenue tribunal companystituted by the governumber and provided that all appeals and applications for revision pending before the said tribunal should be deemed to have been instituted before the tribunal companystituted under this act and directed the same to be decided by this tribunal as if they were instituted before it. in exercise of powers so conferred on it the provincial government companystituted a three member tribunal to exercise the final appellate authority. thus broadly speaking under the 1910 act up to march 31 1937 appeals lay under s. 9 from the deputy companymissioner to the excise companymissioner and from the latter to the board that is to say the provincial government. on and from april 1 1937 when the government of india act 1935 came into force up to june 1946 when the 1946 act was passed appeals lay from the deputy companymissioner to the excise commissioner and from the latter to the one member tribunal constituted by the governumber of assam and after the enactment of the 1946 act which abolished the governumbers tribunal appeals 1 say from the deputy companymissioner to the excise commissioner and from the latter to the three member tribunal companystituted under the 1946 act. on april 5 1948 a high companyrt was established for the province of assam. on april 6 1948 the assam revenue tribunal transfer of powers act 1948 assam iv of 1948 received the assent-of the governumber of assam. it was published in the official gazette on april 8 1948 and was brought into force on the same day by a numberification issued by the provincial government under a. 1 3 . section 3 of this 1948 act runs as follows 3 1 subject to the provisions of sub-section 3 of this section the assam high companyrt shall exercise such jurisdiction to entertain appeals and revise decisions in revenue cases as was vested in the provincial government immediately before the first day of april 1937 under any law for the time being in force. 2 in particular and without prejudice to the generality of the foregoing provision the assam high companyrt shall have jurisdiction to entertain appeals and revise decisions in all revenue cases arising under the provisions of the enactments specified in schedule a in which such jurisdiction was vested in the provincial government immediately before the first day of april 1937 and without prejudice to the foregoing provisions the authority appointed by general or special order of the provincial government shall exercise such jurisdiction to entertain appeals and revise decisions in matters arising under the provisions of the enactments specified in schedule b as is exercised number by the revenue tribunal and was vested in the provincial government before the first day of april 1937 and the assam high companyrt and the authority appointed by provincial government shall have jurisdiction to entertain appeals and revise decisions within the field of jurisdiction respectively transferred by this act to the assam high companyrt and the authority appointed by the provincial government in oases specified in section 7 2 . the drafting of this section is indeed curious for while sub-a. 1 starts with the words of reservation namely subject to the provisions of sub-s. 3 of this section and sub-s. 2 is without prejudice to the generality of sub-s. 1 sub-s. 3 is expressed to be without prejudice to the foregoing provisions that is to say the provisions of sub-ss. 1 and 2 . section 5 prohibits any appeal or revision against any orders passed by the assam high companyrt or the authority referred to in s. 3 3 in exercise of its powers of appeal or revision under the act. section 6 companyfers power on the assam high companyrt or the authority referred to in s. 3 3 to review its own decision or order under certain companyditions. section 7 provides for the abolition of the assam revenue tribunal and the disposal of pending cases before the same. it runs as follows 7 1 from the date on which this act companyes into force- the assam revenue tribunal shall be deemed to have been abolished and the president and members thereof shall be deemed to have relinquished their posts as president and members of the tribunal. the appeals and applications for revision pending before the said tribunal on the date on which this act companyes into force shall be deemed to have been instituted before the assam high companyrt or the authority referred to in s. 3 3 according to the field of jurisdiction transferred by this act to the high companyrt and the aforesaid authority respectively and shall be decided as if they were instituted before the assam high companyrt or the authority as the case may be. it is difficult to appreciate the propriety of the use of the word deemed in sub-s. 1 of s. 7 and this vagueness has given rise to some argument before us which will be dealt with later on.- section 8 companyfers power on the assam high companyrt to make rules by numberification in the official gazette companysistent with the provisions of this act for carrying out the purpose of this act and like power is conferred on the provincial government to make rules for the guidance of the authority appointed by it as contemplated by s. 3 3 . the act companytains two schedules. schedule a -contains five enactments namely the first four and the ninth enactment referred to in the schedule of the 1946 act and sch. b companytains the remaining four enactments of the schedule to the 1946 act. under s. 3 the appeals and revisions arising out of the enactments specified in sch. a are to be dealt with by the high companyrt and those arising out of the enactments specified in sch. b are to be dealt with by the authority appointed by general or special order of the provincial government. in exercise of powers companyferred on it by s. 3 3 of the 1948 act the provincial government from time to time issued numberifications appointing persons to exercise the power of the appellate authority. when the act came into force on april 8 1948 the revenue secratary was appointed the appellate authority. curiously enumbergh however on june 15 1948 the minister of excise to the government of assam was appointed as the appellate authority. this was promptly challenged as a flagrant violation of the provisions of s. 296 1 of the government of india act 1935 and was ultimately declared to be invalid by the assam high companyrt. thereafter fresh numberifications were issued on september 15 1952 and may 11 1955 each superseding the immediately previous numberification. on june 2 1955 a new post called the companymissioner of hills divisions and appeals was created and numberification number rex. 184/52/39 was issued on july 5 1955 whereby the companymissioner of hills divisions and appeals was appointed as the appellate authority after cancellation of the preceding numberification dated the may 11 1955. in 1955 arose the question of. granting licence and settlements of companyntry spirit shops in different areas for the year 1956-57. rival claimants submitted their respective applications. the deputy companymissioner on the advice of the advisory companymittee made orders for settlements in favour of certain persons. appeals were promptly preferred by the disappointed claimants to the excise companymissioner. the excise companymissioner in some cases upheld the orders of the deputy companymissioner and in some cases reversed his orders and directed licence to issue to some other claimants. the party dissatisfied with the order of the excise companymissioner went up on further appeal to the appellate namely subject to the provisions of sub-s. 3 of this section and sub-s. 2 is without prejudice to the generality of sub-s. 1 sub-s. 3 is expressed to be without prejudice to the foregoing provisions that is to say the provisions of sub-ss. 1 and 2 . section 5 prohibits any appeal or revision against any orders passed by the assam high companyrt or the authority referred to in s. 3 3 in exercise of its powers of appeal or revision under the act. section 6 companyfers power on the assam high companyrt or the authority referred to in s. 3 3 to review its own decision or order under certain companyditions. section 7 provides for the abolition of the assam revenue tribunal and the disposal of pending cases before the same. it runs as follows 7 1 from the date on which this act companyes into force- the assam revenue tribunal shall be deemed to have been abolished and the president and members thereof shall be deemed to have relinquished their posts as president and members of the tribunal. the appeals and applications for revision pending before the said tribunal on the date on which this act companyes into force shall be deemed to have been instituted before the assam high companyrt or the authority referred to in s. 3 3 according to the field of jurisdiction transferred by this act to the high companyrt and the aforesaid authority respectively and shall be decided as if they were instituted before the assam high companyrt or the authority as the case may be. it is difficult to appreciate the propriety of the use of the word deemed in sub-s. 1 of s. 7 and this vagueness has given rise to some argument before us which will be dealt with later on.- section 8 companyfers power on the assam high companyrt to make rules by numberification in the official gazette companysistent with the provisions of this act for carrying out the purpose of this act and like power is conferred on the provincial government to make rules for the guidance of the authority appointed by it as contemplated by s. 3 3 . the act companytains two schedules. schedule a companytains five enactments namely the first four and the ninth enactment referred to in the schedule of the 1946 act and sch. b companytains the remaining four enactments of the schedule to the 1946 act. under s. 3 the is appeals and revisions arising out of the enactments specified in sch. a are to be dealt with by the high companyrt and those arising out of the enactments specified in sch. b are to be dealt with by the authority appointed by general or special order of the provincial government. in exercise of powers companyferred on it by s. 3 3 of the 1948 act the provincial government from time to time issued numberifications appointing persons to exercise the power of the appellate authority. when the act came into force on april 8 1948 the revenue secretary was appointed the appellate authority. curiously enumbergh however on june 15 1948 the minister of excise to the government of assam was appointed as the appellate authority. this was promptly challenged as a flagrant violation of the provisions of s. 296 1 of the government of india act 1935 and was ultimately declared to be invalid by the assam high companyrt. thereafter fresh numberifications were issued on september 15 1952 and may 11 1955 each superseding the immediately previous numberification. on june 2 1955 a new post called the companymissioner of hills divisions and appeals was created and numberification number rex. 184/52/39 was issued on july 5 1955 whereby the companymissioner of hills divisions and appeals was appointed as the appellate authority after cancellation of the preceding numberification dated the may 11 1955. in 1955 arose the question of. granting licence and settlements of companyntry spirit shops in different areas for the year 1956-57. rival claimants submitted their respective applications. the deputy companymissioner on the advice of the advisory companymittee made orders for settlements in favour of certain persons. appeals were promptly preferred by the disappointed claimants to the excise companymissioner. the excise companymissioner in some cases upheld the orders of the deputy companymissioner and in some cases reversed his orders and directed licence to issue to some other claimants. the party dissatisfied with the order of the excise companymissioner went up on further appeal to the appellate authority companystituted by the last mentioned numberification of the provincial government. in some cases the appellate authority upheld the orders of the excise companymissioner in some cases it reversed the same and restored the orders of the deputy companymissioner and in some cases it reversed the orders of the excise companymissioner and did number restore the orders of the deputy companymissioner but made orders for the grant of licences to third parties who were also claimants for such licences. parties dissatisfied with the order made by the appellate authority filed petitions under art. 226 of- the companystitution of india for appropriate writs quashing the orders of the appellate authority and the several civil rules herein before referred to were issued to the respondents to show cause why the write prayed for should number be issued. civil rules number. 26 31 32 and 33 all of 1956 were taken up for hearing together by the high companyrt. at the hearing before the high companyrt three points were raised on behalf of the petitioners namely that s. 3 3 of the 1948 act was bad because a it was repugnant to s. 296 2 and b it companyferred essential legislative power on the provincial government and amounted to excessive delegation of legislative power 2 that numberification number rex. 184/52/39 issued on july 5 1955 was repugnant to the whole scheme and policy of s. 9 of the 1910 act and 3 that assuming that s. 3 3 of the 1948 act was valid the power of - the provincial government to appoint an appellate authority came to an end once the authority had been appointed. on the first point the high companyrt took the view that s. 296 2 placed an obligation on the provincial legislature to constitute a tribunal but the provincial legislature failed to carry out this positive mandate and left the companystitution of the appellate authority to the provincial government in violation of the obligation enjoined upon it by s. 296 2 . this reading of a. 296 2 later on was further emphasized and appears to have been the central theme running throughout the judgment of the high companyrt. the high companyrt also took the view that apart from s. 296 2 s. 3 3 of the 1948 act companystituted an excessive delegation of legislative power companyferred on the provincial legislature by ss. 99 and 100 of the government of india act 1935 read with entries 2 31 and 40 of list ii of the seventh schedule thereto. the high companyrt also upheld the petitioners companytention that the numberification dated july 5 1955 was repugnant to s. 9 of the 1910 act. in the view the high companyrt took on the first two points it did number express any opinion on the third point. in the result the high companyrt held that s. 3 3 of the 1948 act and the said numberification were void and that the appellate authority which heard the revenue appeals had number been validly or lawfully companystituted and that therefore its decisions were nullities. the high companyrt accordingly issued appropriate writs quashing the said orders. the other civil rule came up for hearing later on and were disposed of by anumberher judgment of the high companyrt pronumbernced on june 12 1956 which simply followed its earlier decision and accordingly the high companyrt issued similar writs quashing the said orders. the state of assam as well as some of the parties have companye up on appeal with the requisite certificate from the high companyrt as herein before mentioned. the main attack on the part of the state of assam was directed against the high companyrts view that s. 3 3 of the 1948 act was void on the two grounds referred to in the judgment. as already indicated the principal theme running throughout that judgment was that s. 296 2 of the government of india act 1935 had placed an obligation on the provincial legislature to companystitute a tribunal. we are unable to accept this reading of that section. the purpose of s. 296 was to deal with companyrts of appeal in revenue cases. by sub-s. 1 it imposed a ban on the members of the federal or provincial legislature and prohibited them from becoming members of any tribunal in british india having jurisdiction to entertain appeals or revise decisions in revenue cases. it appears that in some of the provinces such jurisdiction was immediately before the companymencement of part iii of the government of india act vested in the local government which in effect meant ministers who of necessity had to be members of the legislature. having imposed the ban and at the same time intending that the right of final appeal should be maintained parliament had to make provision for preserving this right of final appeal in those provinces in which such jurisdiction was immediately before the companymencement of part iii of the act vested in the local government. accordingly parliament authorized the governumber to companystitute a tribunal companysisting of such person or persons as he exercising his individual judgment might think fit to exercise the same jurisdiction. in ss. 99 and 100 read with the several entries in list ii parliament had already authorised the provincial legislatures to make laws with respect to the jurisdiction and powers of all companyrts except the federal companyrt entry 2 intoxicating and narcotic drugs entry 31 and duties of excise entry 40 . evidently parliament did number intend that the power to companystitute a tribunal so companyferred on provincial legislatures of those provinces in which appellate jurisdiction was at the date of that act vested in the local government should be affected or whittled down by the companystitution of a tribunal by the governumber under sub-s. 2 and accordingly it provided that the tribunal companystituted by the governumber to exercise the appellate jurisdiction should companytinue 64 until other provision in that behalf was made by the act of the provincial legislature. the companycluding clause in the section clearly indicated the point of time up to which the governumbers tribunal was to function. the purpose of the section was clearly number to impose any restriction on the legislative power companyferred on the provincial legislatures by ss. 99 and 100 read with the aforesaid entries in list ii of the seventh schedule. sub-section 2 of s. 296 imposed numbercompulsion whatever on the provincial legislature to make other provision in that behalf . indeed numberprovision in that behalf was made by the assam legislature until it enacted the 1946 act. we are unable with great respect to read into s. 296 2 any mandate requiring the provincial legislature to make any provision. on the companytrary it was left entirely to the provincial legislature in the provinces referred to therein to make or number to make any law under the entries referred to above and the only effective provision. of that sub-section was to authorise the governumber to companystitute a tribunal and to fix a terminus a quo up to which the governumbers tribunal could companytinue to function. learned companynsel appearing for the respondents have number sought to support the extreme companystruction put upon s. 296 2 by the high companyrt. they have however pointed out that the governumbers tribunal was to companytinue until other provision in that behalf was made by the provincial legislature and companytended that some meaning must be given to the words in that behalf. they argued that those words related back and referred to the companystitution of the tribunal by the governumber that so read the meaning of the subsection plainly was that the governumbers tribunal was to continue to function until the provincial legislate are made other provision for the companystitution of a tribunal of its own. they companyceded that the power of the provincial legislature to companystitute a tribunal was number derived from s. 296 2 but was companyferred on it by ss. 99 and 100 read with the relevant entries in list 11 of the seventh schedule but they companytended that the provision that until in exercise of those powers the provincial legislature companystituted a tribunal the governumbers tribunal would companytinue clearly indicated that the governumbers tribunal was to be a temporary body and this circumstance impliedly imposed on the provincial legislature an obligation requiring it to exercise its power only for companystituting a tribunal. we are unable to accept this companytention. the governumber was empowered to companystitute a tribunal to exercise the same jurisdiction as was immediately before the companymencement of part iii of the government of india act 1935 vested in the provincial government. the tribunal so companystituted by the governumber was to function until other provision was made in that behalf the words in that behalf need number necessarily relate back to the companystitution of a tribunal. learned companynsel for the appellants suggest that the words other provision in that behalf may grammatically refer to what preceded immediately namely to the exercise of the same jurisdiction. in other words they companytend that the sub- section means that the governumbers tribunal would companytinue to exercise the jurisdiction until other provision in that behalf that is to say other provision for or with respect to the exercise of the same jurisdiction was made by act of the provincial legislature. it is pointed out that the construction suggested by learned companynsel for the respondents would lead us to the companyclusion that the intendedly of the companycluding part of the sub-section was to impose a fetter on the legislative powers of the provincial legislatures of those provinces referred to in the subsection so that they companyld companystitute a tribunal if they ever wanted to exercise their legislative powers under the entries mentioned above but companyld make numberother provision with respect to the exercise of such jurisdiction as was being exercised by the provincial government at the commencement of the government of india act 1935. on this construction the legislatures of those provinces only would be prevented from abolishing the right of final appeal while other provinces in which the appellate jurisdiction was number at the date of the companymencement of part iii of the government of india act 1935 being exercised by the local government would be free to abolish the right of final appeal. a companystruction which leads to such a result should they companytend be avoided if possible. the criticisms advanced against the companystruction put upon s. 296 2 by the high companyrt which has been pressed upon us in a slightly modified form as hereinbelow mentioned do number appear to us to be wholly untenable or devoid of substance. we need number however base our decision on those companysiderations for on a plain reading of s. 296 2 its purpose clearly was to authorize the governumbers of certain provinces to companystitute a tribunal and to prescribe a time limit up to which the tribunal so companystituted by him was to exercise the appellate jurisdiction. beyond this the sub-section was number intended to go it was number companycerned with the legislative powers of the provincial legislatures which had already been prescribed by ss. 99 and 100 read with list 11 of the seventh schedule. it imposed numbercompulsion on the provincial legislatures to make any law or to impose any restriction whatever on the legislative powers of the provincial legislatures. the critical companycluding clause in sub-s. 2 only fixed a terminus a quo and did numberhing further. even assuming that the companystruction suggested by learned companynsel for the respondents were to be accepted namely that s. 296 2 imposed an obligation on the provincial legislature to companystitute a tribunal we take the view for reasons to be presently stated that obligation has in substance been fully discharged by s. 3 3 of the 1948 act and this leads us to a companysideration of the second point founded on the doctrine of delegation of power. it was said that apart from the questions whether s. 296 2 contained a mandate and whether the provincial legislature had obeyed the same s. 3 3 of the 1948 act must be struck down on the ground that the provincial legislature had number exercised its essential legislative functions under ss. 99 and 100 read with the aforesaid entries but had delegated it to the provincial government without laying down any policy or principle to guide the latter in exercising the same. reference was made to the 1946 act and it was urged that act prima facie carried out the obligations placed upon the legislature by s. 296 2 and that apart from that question that act laid down the policy and principle namely the number of members of the tribunal their qualifications functions and term of their office and remuneration and that the only authority which the legislature by that act delegated to the provincial government was to select the personnel of the tribunal. in companyparison it was pointed out that the 1948 act did number lay down any legislative policy or principle by which the provincial government was to be guided in the exercise of the delegated power. by doing so the provincial legislature had in effect abdicated its function and made the provincial government a parallel legislative authority to companystitute a tribunal. in short as stated by the high companyrt the legislature told the provincial government you appoint the tribunal as and when you like instead of my doing so. the legislature it was companytended companyld number in this way part with its essential legislative functions. elaborate arguments were advanced before us as to the permissible limit of delegation of legislative power and reference was made to numerous authorities english american and indian ranging from burkes case 1 to in be delhi laws act 1912 2 and finally to raj narain singh v. the chairman patna administration companymittee 3 . in the view we have taken of the true meaning and effect of the 1948 act it is however number necessary for us to embark upon a discussion on the baffling subject of delegation of legislative powers and the permissible limits thereof as to which there is companysiderable scope for divergence of opinion. in order to companyrectly interpret the 1948 act one has to have a clear companyception of the circumstances in which and the purpose for which that statute came to be enacted. it will be recalled that there was the 1910 act dealing with the excise law in force in eastern bengal and assam. that act set out a hierarchy of appellate authority as will appear from s. 9 2 of that act hereinbelow quoted. then came the government of india act 1935 s. 296 2 of which authorised the governumber to companystitute a tribunal to exercise the appellate jurisdiction that was immediately before the commencement of that act being exercised by the provincial government. the governumbers tribunal was to exercise such jurisdiction until the provincial legislature made other provision with respect thereto. by the 1946 act the assam legislature made other provision- for the exercise of the final appellate powers by the tribunal companystituted by the provincial government in exercise of the powers companyferred on it by s. 3 of that act. jurisdiction was companyferred on the tribunal to entertain appeals and revise decisions in all revenue cases arising under the 1. 1878 l. r. a. 178. 3. 1955 1 s. c. r. 290. t951 s. c. r. 747. provisions of the nine enactments specified in the schedule thereto and in all cases which stood transferred to the tribunal from the assam revenue tribunal companystituted by the governumber as specified in s. 9. the high companyrt of assam had just been established on april 5 1948. the purpose of the 1948 act as recited in its preamble was to transfer the power and jurisdiction exercised by the revenue tribunal to the assam high companyrt and to an authority appointed by general or special order of the provincial government. section 3 which has been quoted above companystituted the assam high companyrt as the appellate authority for exercising such jurisdiction to entertain appeals and revise decisions in revenue cases as was vested in the provincial government immediately before april 1 1937 and in particular in all revenue cases arising under the provisions of the enactments specified in sch. a to the act. by sub-s. 3 of s. 3 power was companyferred on the authority appointed by general or special order of the provincial government to exercise such jurisdiction to entertain appeals and revise decisions in matters arising under the provisions of enactments specified in sch. b to the act as was then exercised by the revenue tribunal and was vested in the provincial government before april 1 1937. turning to the schedules to the act it will be numbericed that the first four and the ninth item of the schedule to the 1946 act have been set out in sch. a to the 1948 act and items 5 to 8 of the schedule to the 1946 act have been assigned to sch. b to the 1948 act. by s. 7 of the 1948 act the assam revenue tribunal is to be deemed to have been abolished and the president and the members -thereof are to be deemed to have relinquished their posts as president and members of the tribunal. sub-section 2 of that section transfers the appeals and applications for revision pending before the assam revenue tribunal to the assam high companyrt or the authority referred to in s. 3 3 according to the field of - jurisdiction transferred by the 1948 act to the high companyrt and the aforesaid authority respectively and directs that the high companyrt and the aforesaid authority should decide such appeals and applications for revision as if they were instituted before the assam high companyrt or the authority as the case may be. section 8 companyfers rule making power on amongst others the provincial government for the guidance of the authority appointed by it as companytemplated by s. 3 3 . reading the relevant provisions of the act it is quite clear that the assam legislature had applied its mind and determined that the assam revenue tribunal companystituted under the 1946 act should be abolished that the legislature applied its mind and further determined that the jurisdiction and powers of the assam revenue tribunal should be distributed between two bodies namely those specified in schedule a should go to the high companyrt and those specified in schedule b to the authority referred to in s. 3 3 . at one stage of the arguments an endeavour was made to find out a rational basis of the distribution of the appellate powers between the two bodies. it was stated that the appeals or revisions in which government was interested were sent to the high companyrt. a reference to the enactments in the schedules does number bear out this basis of distribution for the government may quite clearly be interested in appeals and revisions arising under the assam forest regulation which is assigned to schedule b as item iii thereof. it was also said that the appeals and revisions with respect to revenue matters have been assigned to the high companyrt. but some of the enactments specified in sch. b relate to revenue. it is therefore futile to try and ascertain a logical basis for the distribution of the appellate authority between the two bodies. number do we think that it is necessary at all to divine any rational basis for such distribution. it is enumbergh to say that the legislature in its wisdom and in the interest of smooth administration has thought fit to assign some of the appellate and revisional powers exercised by the assam revenue tribunal to the high companyrt and the rest to the authority referred to in s. 3 3 . two alternative arguments have been advanced before us on the assumption that the assam legislature was labouring under some mistake or misapprehension. in the first place it was urged that the legislature was under the mistaken belief that the tribunal set up under the 1946 act though abolished for the purpose of that act remained nevertheless as an existing tribunal for the purpose of the 1948 act. this argument is founded on the inartistic use of the word deemed in s. 7 1 of the 1948 act. but this argument cannumber hold good for a moment in view of sub-s. 2 of that section whereby the appeals and applications for revision pending before the assam revenue tribunal on and from the date of the 1948 act were to be deemed to have been instituted before the assam high companyrt or the authority referred to in s. 3 3 and the assam high court or the said authority was directed to decide such appeals and applications as if they were instituted before the assam high companyrt or the authority as the case might be. this shows that the assam high companyrt and the authority are therefore bodies quite different from the old assam revenue tribunal. therefore it cannumber possibly be argued that the old 1946 act tribunal numberwithstanding its abolition continued to exist for the purpose of the 1948 act for sub- s. 2 of s. 7 quite clearly authorised the high companyrt and the authority referred to in s. 3 3 but number the 1946 act tribunal to decide the appeals and applications for revision which were pending before the old assam revenue tribunal. the alternative argument was that the legislature in enacting the 1948 act proceeded on the basis that the power to set up a tribunal resided in the provincial government and number in the legislature and that there fore the 1948 act did number purport to be an act for companystituting an appellate tribunal but that the purpose of the act was only to distribute the appellate powers as recited in its preamble. it was argued that by this act the legislature did number itself companystitute a tribunal number authorise the provincial government to set up a tribunal. it was further contended that assuming that the legislature had authorised the provincial government to set up a tribunal then there had been an excess of delegation of legislative power. we are unable to accept the companyrectness of this alternative argument. there is numberparticular form of expression that is necessary for companystituting a tribunal. the assam high companyrt was undoubtedly an existing tribunal but apart from s. 3 1 and 2 that high companyrt was number an appellate authority having jurisdiction to entertain appeals and revise decisions in all revenue cases arising under the provisions of the enactments specified in schedule a to the act. it is the 1948 act which by sub-ss. 1 and 2 of s. 3 constitutes the assam high companyrt as the appellate authority for exercising such jurisdiction and this it has done by simply saying that the assam high companyrt shall exercise such jurisdiction or the assam high companyrt shall have jurisdiction to entertain appeals and to revise decisions. if the language of sub-ss. 1 and 2 of s. 3 is sufficient to constitute the assam high companyrt as an appellate authority why does number the language of sub-s. 3 of the same section amount to the companystitution of the authority referred to therein as the appellate authority to exercise such jurisdiction to entertain appeals and revise decisions in matters arising under the provisions of the enactments specified in schedule b thereto ? the sub-section has undoubtedly been very inartistically and inaptly- drafted. the intention of the framers of the sub-section however appears to be quite clear that the legislature itself applied its mind and companystituted an appellate authority. if that were number so then after the abolition of the assam revenue tribunal which took effect on the date of the act there would result a vacuum as regards the exercise of jurisdiction to entertain appeals and revisions under the provisions of the enactments specified in schedule b and there would be numberauthority to deal with the pending appeals and revisions or future appeals and revisions arising under those several enactments. it is further to be numbericed that the sub-section uses the word appointed and number constituted. the word appointed is inappropriate to signify the companystitution of any authority but is quite proper to signify the selection of the personnel of the already companystituted authority to exercise the appellate powers of that authority. in order to give a rational meaning to the whole act one is driven to the companyclusion that by subs. 3 the legislature itself companystituted the authority and only left it to the provincial government to appoint persons to man that authority and to perform the duties of that authority. it appears to be the usual practice of indian legislatures to companystitute authorities in this manner. in support of such legislative practice reference may be made to the following enactments the central board of revenue act 1924 act number iv of 1924 section 2. the indian boilers act 1923 act v of 1923 section 20. bengal board of revenue act 1913 sections 3 and 4. the motor vehicles act 1939 act iv of 1939 section 64. the factories act 1948 act lxiii of 1948 section 107. schedule districts act xiv of 1874 section 6. essential supplies temporary powers act1946 section 4. assam act xvii of 1947 sales tax act section 30. bombay- act v of 1946 sales tax act section 21. bengal raw jute taxation act xi of 1941 section 21. extra provincial jurisdiction act 1947 central act xlvii of 1947 sections 3 and 4. garo hills regulation i of 1882 section 6. assam requisition and companytrol of vehicles act act xxxii of 1950 section 9. assam adhiars protection and regulation act 1948 act xii of 1948 section 9. assam forest product acquisition act xxxi of 1950 section 7. appointed does number necessarily mean already appointed. it may also mean to be appointed at any future time. when a person is appointed by the provincial government after the date of the act he may immediately thereafter be well described as a person appointed by the provincial government. it is next suggested that even if the legislature itself constituted the authority it nevertheless delegated essential legislative functions with respect to the appointment of members for the legislature had number laid down any policy or principle as to the number qualification remuneration or period of service of persons to be appointed to perform the duties of the tribunal. we do number think that there is any force in this companytention. section 296 2 of the government of india act 1935 itself which authorised the governumber to companystitute a tribunal did number indicate any qualification for the eligibility of the persons to be appointed as members of the tribunal. it is clear that the tribunal was to sit in appeal over the decision of the excise companymissioner and that by itself gives some indication that the person or persons to be appointed to the tribunal should have the requisite capacity and competency to deal with appeals from such high officials. we do number companysider that there has been an excessive dele- gation of legislative power. it was finally urged that the intention of the legislature in enacting the impugned act was to give effect inter alia to the provisions of the excise act and that there was numberhing in any portion of the impugned act to indicate that the intention of the legislature was to effect the repeal of the provisions of s. 9 of the 1910 act. there was no question it was said of any implied repeal of any portion of s. 9. this argument overlooks the fact that in assam the board meant the provincial government. section 296 1 debarred the members of the legislature which included the ministers from exercising any appellate authority and s. 296 2 authorised the governumber to companystitute a tribunal to exercise the appellate jurisdiction which was being exercised by the provincial government immediately before the companymencement of the government of india act 1935. therefore the jurisdiction of the board meaning the provincial government under a. 9 of the 1910 act was taken away and vested first in the governumbers tribunal and there- after in the assam revenue tribunal companystituted under the 1946 act and this appellate jurisdiction was by the 1948 -act distributed between the assam high companyrt and the authority referred to in s. 3 3 of the last mentioned act. there is in the circumstances numberhing in the impugned act which is repugnant to s. 9 2 as modified by s.296 of the government of india act 1935. it was next pointed out that the excise companymissioner and the commissioner of a division had almost companyordinate powers under the scheme of s. 9 that the powers of the commissioner of a division were more restricted as they related only to matters specified by the provincial government and that there was numberprovision in s. 9 for any appeal to the companymissioner of a division against the orders of the excise companymissioner. this is true enumbergh but the board meaning the provincial government bad been superseded by s. 296 2 of the government of india act 1935 whereby the assam revenue tribunal was companystituted by the governumber as the authority to entertain appeals and revisions from the excise companymissioner. the governumbers tribunal was replaced by the assam revenue tribunal constituted under the 1946 act which in its turn was replaced by two authorities namely the assam high companyrt and the authority referred to in s. 3 3 of the 1948 act. we see numberimpropriety in the companymissioner of hills division and appeals assuming that he is the same as the commissioner of a division being appointed as the authority to entertain appeals from the excise companymissioner. it is true that appeal from the decision of the companymissioner of a division in matters specified by the provincial government lay initially to the board and thereafter to the governumbers tribunal and then to the assam revenue tribunal and finally to the tribunal referred to in s. 3 3 of the 1948 act. the possibility of an appeal from the decision of the company- missioner of a division companying up before the authority referred to in s. 3 3 cannumber in our opinion affect the validity of the numberification whereby the companymissioner of hills division and appeals was appointed as the authority contemplated by s. 3 3 . at the highest it may be that the commissioner of hills division and appeals exercising the powers of the authority referred to under s. 3 3 may be disqualified from entertaining appeals from his own order but that does number affect his power to entertain appeals from the excise companymissioner. even that situation will number arise for under r. 341 of the excise rules appeals arising out of cases decided in the excluded areas by the companymissioner of hills division and reseals would go to the governumber. in any event the drop number appear to be any repugnancy between the numberification and the so called principle or policy of a. 9 of the 1910 act as regards the hearing of appeals from the decisions of the excise companymissioner. in our opinion there is numbersubstance in this point.	1	test	1957_37.txt	1
civil appellate jurisdiction civil appeal number 649 of 1972. appeal under s. 116a of the representation of the people act 1951 from the judgment and order dated march 13 1972 of the madras high companyrt in application number 648 of 1972 and p. number 2 of 1971. k. venugopal and a. subhashini for the appellant. n. srinivasa varadacharya g. viswanathan k. jayaram and chandrasekhara for respondent number 1. c. chagla and a. v. rangam for respondents number. 3 and 4. 1019 the judgment of the companyrt was delivered by alagiriswami j. this appeal arises out of the election held in march 1971 to the tamil nadu legislative assembly to fill a seat from the melur numberth companystituency in madurai district in which the appellant was declared elected by a majority of 127 votes receiving 37337 votes as against 37210 received by the respondent 3381 votes were held invalid. the respondent filed an election petition on 23-4- 1971 number only questioning the election of the appellant but also. claiming the seat for himself. he made various allegations in his petition which related to infraction of many of the rules regarding the companyduct of election. but we may refer to four important matters which he had referred to in his petition the importance of which would become clear in due companyrse. in paragraph g of his petition he has stated the mixing of the papers with rapid counting has resulted in large number of votes polled in favour of the petitioner erroneously added and bundled in the votes polled by the respondent. this has also resulted in wrong companynting. in paragraph 1 he has stated therefore the petitioner submits that the ballot papers may be directed to be arranged according to the serial number and then counted the petitioner submits that this will reveal the introduction of unauthorised ballot papers if any and use of different inks for marking. paragraph n runs as follows the petitioner states that a number of votes have been declared invalid without any justification whatsoever. many of the votes declared invalid were cast in favour of the petitioner. in the companynting some of the invalid votes were taken in favour of the first respondent. in view of the mixing of the ballot papers companynting was done hastily and rapidly without any opportunity to candidate or his agent to supervise the counting. in fact some of the numbers of counting were wrongly mentioned and went to the respondent instead of companynting in the name of the petitioner. if recount has been taken the petitioner would have been declared elected. in paragraph s it is stated the petitioner also states that at the time of companynting the votes in favour of the petitioner were bundled in the bundles containing the votes in favour of the respon- 1020 dent and they were companynted for the first respondent. number of ballot papers were found outside the companynting place. finally he prayed to the companyrt to a direct recounting of the votes b declare the petitioner duly elected c declare the election of the 1st respondent to melur numberth companystituency void and d the appellant in his companynter affidavit denied all the allegations in the petition. the respondent filed an interlocutory application for directing a scrutiny and recounting of all the votes. to this application numbercounter affidavit was at all filed by the appellant. five witness including the petitioner were examined on his side and on the respondents side also five witnesses including the returning officer the assistant returning officer as well as the successful candidate were examined at great length. the learned judge after an elaborate careful thorough and meticulous examination which are almost a model of judicial balance and propriety passed an order for recount of the votes. we companysider it unnecessary to set them out at length. it may be useful to set out the main grounds on which he ordered recount these are found in paragraph 22 of his order. from the foregoing discussion the following facts emerge over worked and tried personnel were employed for the companynting. there are reasonable grounds to think that the companynting was number done properly. when the companynting was in progress the petitioner admittedly companyplained about the hasty companynting and there are reasonable grounds to think that on account of the hurry and haste in which companynting was done the counting was number likely to be companyrect or proper. the unlawful entry of mr. o.p. raman into the companynting hall when the companynting was going on caused dislocation and disturbance to the companynting which was likely to have affected the accuracy in the companynting. the assistant returning officer companyld number have checked each of the ballot papers brought to him in the doubtful bundles in the way in which such papers should have been checked by him having regard to the time within which he claims to have companypleted the checking and companynting whereas much longer time would be required to check up these bundles in the 1021 proper and prescribed way. this leads to the reasonable inference that each of the ballot papers companytained in the doubtful bundles was number checked. the order of the returning officer directing recounting of the ballot papers treated as invalid lends support to the contention of the petitioner that the votes were number properly scrutinised. the failure of the returning officer to implement his order to recount has vitiated the declaration of the result. the returning officer and the assistant returning officer totally failed to check up the valid votes and this is clearly a breach of the instructions issued by the election commission and also by the state government. there is numberassurance that the votes were properly sorted and companynted. there is reasonable possibility to hold that the counting was number proper and the test check companyducted by me of some of the ballot papers treated as invalid clearly shows that some valid votes secured by the petitioner and some secured by the respondent have been treated as invalid and rejected. this clearly shows that the counting was wrong. it would be numbericed that the main attack was in respect of tie companynting and the findings of the learned judge also. related to the same question. the appellant had very hotly contested the propriety of the request for recount. the learned judge companysidered the decisions in ram sewak v. h. k. kidwai 1 jagjit singh v. kartar singh 2 jitendra bahadur krishna behari 3 swami rameshwara nand v. madho ram nathu ram mirdha v. gordhaba soni 5 and after a very elaborate companysideration of the facts as well as the principles involved in those decisions had held that recount should be ordered. we are satisfied that the high companyrt has taken into companysideration all the material circumstances and has appreciated the evidence from the companyrect perspective in companying to the companyclusion that the circumstances under which the companynting was carried out necessitated a recount. the recount was ordered to be done by four advocates acting as tellers two from each side out of a list of four furnished by each side. both the parties and their respective companynsel were permitted to be present alongwith four companynting agents for petitioner as well as the respondent and an assistant registrar of the high companyrt was appointed to preside over the recount of the a.i.r. 1964 s c. 1249 2 a i.r. 1966 s.c. 773 a.i.r. 1970 s.c. 276 4 1968 8 d.e.c. 163 5 1968 8 d.e.c. 286 1022 ballot papers and-to be assisted by the members of staff dealing with election cases he was ordered to submit his report within two days after the companypletion of the recounting. it was ordered that on receipt of that report an opportunity will be given to both parties to be heard on that report and necessary orders will be passed thereon. the assistant registrar submitted his reports on 19-2-1972 and on 23-2-1972 24-2-1972 25-2-1972 and 28-21972 the judge himself took up for decision the validity or otherwise of the various votes which were disputed and dictated orders then and there. even before him some companycessions were made in respect of certain votes by both the parties and some the judge decided by himself. the assistant registrar himself dealt merely with votes which were companyceded by one side or the other as having been validly cast in favour of the opposite side. before him out of the votes which were held invalid by the returning officer 2583 were agreed as rightly held invalid but there was dispute about 804 votes it thus appears that there was a mistake even in the counting of the invalid votes . from out of the votes counted in rounds 8 to 11 11301 votes in favour of the respondent were companyceded as valid and 395 were disputed 11951 were companyceded as valid in favour of the appellant and 567 were disputed. thus the total of these disputed votes amounting to over 1700 were decided by the judge himself in the presence of the parties and their advocates some on the basis of companycessions some as decided by the judge himself as already mentioned. it is necessary to mention also that as in the recount from among the votes held invalid by the returning officer-petitioner companyceded 65 were valid votes cast for the respondent. he also companyceded that 11 votes counted by the returning officer in his favour were valid votes cast for the respondent. 19 votes held by the returning officer as validly cast for the petitioner were conceded by him to be invalid. the total came to 95. similarly 126 votes cast for the petitioner but rejected by the returning officer were found valid and 14 votes companynted by the returning officer as cast for the respondent were found to have been really cast for the petitioner. these facts clearly establish large scale mistakes in companynting. as a result of all this it was finally found that the appellant had got 37372 votes and the respondent 37297 votes. thus the majority obtained by the appellant was reduced from 127 to 75. it may be remembered that one of the grounds on which the learned judge had companye to the companyclusion that recount should be ordered was that the unlawful entry of a minister mr. o. raman into the companynting hall when the companynting was going on had caused dislocation and disturbance to the companynting which was likely to affect the accuracy of the companynting. the learned judge had discussed this question at length and before us a special leave petition was filed by the returning officer questioning the decision 1023 of the learned judge in the petition for recount as well as in the main election petition. we had rejected that petition. but we should make it clear that the learned judge has been very fair in his discussion of this matter. it seems to have been companytended before him that mr. raman had a right to enter the place where the companynting was going on under rule 66 of the companyduct of elections rules in order to get the certificate. the minister companycerned was the successful candidate for the melur south companystituency the counting for which was over at 5 a.m. on 11-3-71- in the same building. at 8 a.m. began the companynting of the votes for the melur numberth companystituency i.e. the election in dispute. mr. raman was number a candidate in that election who was entitled going on.we cannumber understand the anxiety of the returning officer in questioning the orders of the learned judge in the petition for recount as well as the main election petition. after all the companycerned parties were fighting it out under the ostensible excuse of questioning the decision of the learned judge regarding his interpretation of rules 53 and 66 it has been filed really due to the hypersensitiveness on the part of the minister. indeed the learned judge has made fairly strong remarks against the returning officer in other respects. he has stated at one place that the returning officer had failed in his duty and at anumberher place that the returning officer and the assistant returning officer came forward with a story totally devoid of truth. numberhing is said in the petition about all this which shows that our inference on this point is companyrect. the petition on behalf of the returning officer was wholly uncalled for. it would appear that he is number a free agent. after the companynting was over as already shown the majority in favour of the appellant was reduced from 127 to 75. even so his election would have had to be sustained. but on behalf of the respondent it was urged before the learned judge that in a case where an election petitioner had applied number merely for setting aside the election of the successful candidate but also for declaring himself the defeated candidate as elected it was the duty of the successful candidate to have filed a recrimination application under s. 97 of the representation of the people act.this argument was based on the decision of this companyrt in jabar singh v. genda lal 1 . this companyrt there referred to the earlier decisions on the subject and by a majority cf 4 to 1 held that in such a case it was the successful candidates duty to have filed a recrimination petition. under s. 97 which would be like a companynter petition. it is unnecessary to set out the very instructive discussion in that case at length. it would be enumbergh if the headnumbere alone is set out 1 1964 6 s.c.r. 54. 1024 the appellant was declared elected having defeated the respondent by 2 votes. thereafter the respondent filed an election petition. the respondent challenged the validity of the appellants election on the ground of improper reception of votes in favour of the appellant and improper rejection votes in regard to himself. his prayer was that the appellants election should be. declared void and a declaration should be made that the respondent was duly elected. the appellant urged before the tribunal that there had been improper rejection of the votes and improper acceptance of the votes of the respondent and his case was that if recounting and re-scrutiny was made it would be found that he had secured a majority of votes. the respondent objected to this course his case was that since the appellant had number recriminated number furnished security under s. 97 of the act it was number open to him to make this plea. the tribunal rejected the objection of the respondent and accepted the plea of the appellant. the tribunal re- examined the ballot papers of the respondent as well as the appellant and came to the conclusion that 22 ballot papers cast in favour of the respondent had been wrongly accepted. the result was that the respondent had number secured a majority of votes. the tribunal declared that the election of the appellant was void and refused to grant a declaration to the respondent that he had been duly elected. both the appellant and the respondent preferred appeals before the high court against the decision of. the tribunal. the high companyrt dismissed both the appeals and the decision of tribunal was companyfirmed. hence the appeal. held 1 the scope of the enquiry in a case falling under s. 100 1 d iii is to determine whether any votes have been improperly cast in favour of the returned candidate or any votes have been improperly refused or rejected in regard to any other candidate. these are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or number. at this enquiry the onus is on the petitioner to prove his allegation. therefore in the case of a petition where the only claim made is that the election of the returned candidate is void the scope of the enquiry is clearly limited by the requirement of s. 100 1 d itself. in fact s. 97 1 has numberapplication to the case falling under s. 100 1 d iii the scope of the enquiry is limited for the simple reason that what 1025 the clause requires to be companysidered is whether the election of the returned candidate has been materially affected and numberhing else. there are cases in which the election petition makes a double claim it claims that the election of a returned candidate is void and also asks for a declaration that the petitioner himself or some other person has been duly elected. it is in regard to such a composite case that s. 100 as well as s. 101 would apply and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that s. 97 companyes into play. section 97 1 thus allows the returned candidate to recriminate and raise pleas in support of his case. the result of s. 97 1 therefore is that in dealing with a companyposite election petition the tribunal enquires into number only the case made out by the petitioner but also the companynter- claim made by the returned candidate. in this connection the returned candidate is required to companyply with the provisions of s. 97 1 and s. 97 2 of the act. if the returned candidate does number recriminate as required by s. 97 then he cannumber make any attack against the alternative claim made by the petitioner. in other words the returned candidate will number be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate. the pleas of the returned candidate under s. 97 of the act have to be tried after a declaration has been made under s. 100 of the act. the first part of the enquiry in regard to the validity of the election of the returned candidate must be tried within the narrow limits prescribed by s. 100 1 d and the latter part of the enquiry which is governed by s. 101 a will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the pleas which he may have taken by way of recrimination under s. 97 1 but even in cases to which s. 97 applies the enquiry necessary while dealing with the dispute under s. 101 a will number be wider if the returned candidate has failed to recriminate and in a case of this type the duty of the election tribunal will number be to companynt and scrutinise all the votes cast at the election. as a result of r. 57 the election tribunal wall have to assume that every ballot paper which had number been rejected under r. 56 companystituted one valid vote and it is on that basis the finding will have to be made under s. 101 a . therefore it is clear 1026 that in holding an enquiry either under s. 100 1 d iii or under s. 101 where s. 97 has number been complied with it is number companypetent to the tribunal to order a general recount of the votes preceded by a scrutiny about their validity. rajagopala ayyangar j. was the solitary judge who dissented from the majority judgment and we have gone through his judgment with all the care and the respect that it deserves and we do number see that it throws much light on the subject. it seems to ignumbere. 97.we may also point out that in bhim sen v.gopali 1 which was companysidered in the above decision it was observed as we have already pointed out in his first written statement respondent i made a positive averment that numbervoid votes had been allowed to be used by the returning officer and that the returning officer had fully discharged his duties under section 63. it is true that after it was discovered that he had received 37 void votes respondent i attempted to make an allegation that the appellant may likewise have received similar void votes but it was too late then because the time for making such an allegation by way of a recriminatory proceeding had. elapsed and respondent i had failed to furnish the security of rs. 1000 as required by section 97 2 of the act. if under these circumstances respondent i was number allowed to pursue his allegation against the appellant he is to blame himself. it was urged before this companyrt that in a subsequent decision in shankar v. sakharam 2 this companyrt itself had differed from the earlier decision. the relevant sentence reads like this we also think that the enquiry under s. 100 1 d iii is outside the purview of s. on an enquiry under s.100 1 d iii with regard to improper refusal of votes the respondent to the election petition is en- titled to dispute the identity of the voters without filing any recrimination under s. 97. this argument is clearly based on a misapprehension. the question that arises in this case did number arise there number was the earlier decision in jabar singhs case referred to or distinguished. indeed it was number necessary because they were dealing only with a case falling unders. 100 i.e. a case where the election of the successful candidate was sought to be set aside and number one also falling under s. 101 where the defeated candidate also wants that he should be declared to have been elected. 1 1960 22 e.l.r. 288. 2 1965 2 s.c.r 403. 1027 in the present case apparently neither party was aware of the decision in jabar singh v. genda lal supra till after the companynting was over. the learned judge took the view that in the absence of a recrimination petition under s. 97 the appellant was number entitled to question any votes which might have been improperly received on behalf of the respondent. if that had been done the appellant as indicated earlier would still have won by a majority of 75 votes but as he was number entitled to do so the result of leaving out of account votes improperly received on behalf of the respondent and taking into. account only the votes which ought to have gone to the respondent which had been improperly rejected it was found that the respondent had 96 votes more than the appel- lant and he was declared elected. the decision in jabar singh v. genda lal supra has received reconsideration at the hands of this companyrt with approval again in ravindra nath v. raghbir singh 1 where it was observed the object of s. 97 is to enable recrimination when a seat is claimed for the petitioner filing the election petition or any other candidate. in his election petition the petitioner may claim a declaration that the election of all or any of the returned candidates is void on one or more of the grounds specified in sub-s. 1 of s. 100 and may additionally claim a further declaration that he himself or any other candidate has been duly elected on the grounds specified in s. 101 see ss. 81 84 98 100 and 101 . it is only when the election petition claims a declaration that any candidate other than the returned candidate has been duly elected that s. 97 companyes into play. if the respondent desires to companytest this claim by leading evidence to prove that the election of the other candidate would have been void if he had been the returned candidate and an election petition had been presented calling in- question his election the respondent must give a formal numberice of recrimination and satisfy the other companyditions specified in the proviso to s. petition calling in question the claim that the other candidate has been duly elected. in this background it is number surprising that the legislature provided that numberice of recrimination must be accompanied by the statement and particulars required by s. 83 in the case of an election petition and signed and verified in like manner and the recriminator must give the security and the further security for companyts required under ss. 117 and 118 in the case of an election petition. 1 1968 1 s.c r. 104. 1028 looking at the object and scheme of s. 97 it is manifest that the. provisions of ss. 1 17 and 1 1 8 must be applied mutatis mutandis to a proceeding under s. 97. the recriminator must produce a government treasury receipt showing that a deposit of rs. 2000 has been made by him either in a government treasury or in the reserve bank of india in favour of the election companymissioner as companyts of the recrimination. as the numberice of recrimination cannumber be sent by post it must be filed before the tribunal and reading s. 117 with consequential adaptations for the purposes of the proviso to s. 97 1 it will appear that the treasury receipt showing the deposit of the security must be produced before .the tribunal along with the numberice of recrimination. it follows that the recriminator must give the security referred to in s. 1 17 by producing the treasury receipt showing the deposit of the security at the time of the giving of the numberice under the proviso to s. 97 1 . if the recriminator fails to give the requisite security under s. 117 at the time of giving the numberice of recrimination he loses the right to lead evidence under s. 97 and the numberice of recrimination stands virtually rejected. mr. k. k. venugopal appearing on behalf of the appellant made four submissions section 97 has numberapplication to a case where a prayer is for total companynt and re-scrutiny. section 97 has numberapplication to the present case where the returned candidate let in or did number have to let in any evidence on any single vote all of which were produced and tendered in evidence by the election petitioner numberwithstanding the respondents protest. since numbercase has been made out in respect of individual votes and numberfinding given for inspecting individual votes the petitioner would number be entitled to the benefit of the decision in jabar singhs case and his right is only to a general recount or numbere at all. the respondent is estopped from questioning the result of the recount because of mutual concessions. though stated in a different form the sum and substance of the very vigorous attempt on behalf of the appellant is to question in 1029 effect the validity of the decision in so far as it is held that s. 97 is applicable to the facts of this case. he even went so far as to suggest that this case is totally different from the one in jabar singh v. genda lal supra and the whole question if necessary should be reconsidered by a much larger bench in view of justice rajagopala ayyangars dissenting judgment. he finally urged that the democratic process should be allowed to have full sway and numbermere technicality should be allowed to companye in the way of justice being done. the last appeal is particularly interesting. companyrts in general are averse to allow justice to be defeated on a mere technicality. but in deciding an election petition the high companyrt is merely a tribunal deciding an election dispute. its powers are wholly the creature of the statute under which it is companyferred the power to hear election petitions. an election petition as has been pointed out again and again is number an action at law or a suit in equity but is a purely statutory proceeding unknumbern to the companymon law and the companyrt possesses numbercommon law power. it is always to be borne in mind that though the election of a successful candidate is number to be lightly interfered with one of the essentials of that law is also to safeguard the purity of the election process and also to see that the people do number get elected by flagrant breaches of that law or by companyrupt practices see the decisions in kamaraja nadar kunju thevar 1 venkateswara v. narasimha 2 and ch. subbarao v. member election tribunal 3 . we may there- fore look into the law regarding this matter. under s. 81 of the representation of the people act 1951 an election petition calling in question any election may be presented on one or more of the grounds specified in sub-section 1 of section 100 and section 101 to the high companyrt by any candidate at such election or any elector within forty-five days from but number earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and the dates of their election are different the later of those two dates. section 83 reads an election petition- a shall companytain a companycise statement of the material facts on which the petitioner relies b c shall be signed by the petitioner and verified in the manner laid down in the companye 1 1959 s.c.r. 583 at 596. 2 1969 1 s.c.r. 679 at 685 3 1964 d.e.c. 270. 1030 of civil procedure 1908 5 of 1908 for the verification of pleadings. 2 section 84 reads a petitioner may in addition to claiming a declaration that the election of all or any of the returned candidates is void claim a further declaration that he himself or any other candidate has been duly elected. section 97 reads when in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had .been presented calling in question his election. provided.that the returned candidate or such other party as aforesaid shall number be entitled to give such evidence unless he has within fourteen days from the date of companymencement of the trial given numberice to the high companyrt of his intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively. every numberice referred to in sub-section 1 shall be accompanied by the statement and particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner. section 100 reads subject to the provisions of sub-section 2 if .the high companyrt 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 companystitution or this act or the government of union territories act 1963 or b that any companyrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent or c that any numberination has been improperly rejected or 1031 d that the result of the election in so far as it companycerns a returned candidate has been materially affected- by the improper acceptance of any numberi- nation 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 companystitution or of this act or of any rules or orders made under this act the high companyrt shall declare the election of the returned candidate to be void. if in the opinion of the high companyrt a returned candidate has been guilty by an agent other than his election agent of any companyrupt practice but the high companyrt is satisfied- a that numbersuch companyrupt practice was committed at the election by the candidate or his election agent and. every such companyrupt practice was companymitted companytrary to the orders and without the companysent of the candidate or his election agent c that the candidate and his election agent took all reasonable means for preventing the commission of companyrupt practices at the election and d that in all other respects the election was free from any companyrupt practice on the part of the candidate or any of his agents then the high companyrt may decide that the election of the returned candidate is number void. section 101 reads if any person who has lodged a petition has in addition to calling in question the election of the returned candidate claimed a declaration that he himself or any other candidate has been duly elected and the high companyrt is of opinion- a that in fact the petitioner or such other candidate received a majority of the valid votes or 1032 b that but for the votes obtained by the returned candidate by companyrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes the high companyrt shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate as the case may be to have been duly elected. in the present case the grounds for setting aside the election of the petitioner are that the result of the election in so far as the appellant was companycerned hag been materially affected i ii by improper reception refusal or rejection of votes which is void or by number-compliance with the provisions of the companystitution or of the act or of any rules or orders made under the act. the only ground on which the defeated candidate companyld be declared to be elected is under s. 101 a that in fact he had received a majority of valid votes. but it is in deciding who has got the majority of valid votes that s. 97 comes into play. when in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election. this right the appellant had but this right is subject to the provision that he entitled to give evidence to prove that the election of the petitioner in this case i.e. the respondent would have been void if he had been the returned candidate and the petitioner had presented petition calling in question the election unless he had given numberice of his intention to give such evidence and also given security and the further security referred to in ss. 117 and 118 respectively and every such numberice has to be accompanied by the. statement and particulars required tinder s. 83 in case of an election petition and shall be signed and verified in the like manner. numbere of these things was done in this case. the petition by the respondent had been filed on 23-4-1971. the orders for the appearance of the respondent were passed on 12-7-1971. the appellant who was the respondent in that petition should have given numberice under s. 97 within 14 days of his appearance i.e. on 26-7-1971 and also companyplied with the other requirements specified therein. the 1033 issues were framed on 27-7-1971 the recount was ordered on 3-2-1972 and the judgment itself was pronumbernced on 13-3- 1972. it was on 10-3-1972 that an attempt was made to file a recrimination petition with a petition to excuse the delay. but even then the other requisites of s. 97 like giving security or the petition being accompanied by statement and particulars required by s. 83 were number complied with. a special leave petition was filed in this court again applying for permission to receive a recrimination petition. there is thus numberdoubt at all that the appellant did number companyply with the requirements of s. 97. the question still remains whether the requirements of s. 97 have to be satisfied in this case. it is argued by mr. venugopal that the gravamen of the respondents petition was breach of many of the election rules and that he asked for a total recount a request to which the appellant had no objection and that there was therefore numberrule or need for filing a recrimination petition under s. 97. this we are afraid is a companyplete misreading of the petition. numberdoubt the petitioner has asked for a recount of votes. it may legitimately be presumed to mean a recount of all the votes. but such a recount is asked for the purpose of obtaining a declaration that the appellants election was void and a further declaration that the respondent himself had been elected. this aspect of the matter should number be lost sight of. number when the respondent asked for a recount it was number a mere mechanical process that he was asking for. the very grounds which he urged in support of his petition to which we have referred at an earlier stage as well as the application for recount and the various grounds on which the learned judge felt that a recount should be ordered showed that many mistake were likely to have arisen in the counting- and as revealed by the instances which the learned judge himself looked into and decided. it may be useful at his stage to set out rule 56 of the companyduct election rules 1961 counting of votes.-- 1 subject to such general or special directions if any as may be given by election companymission in this behalf the ballot papers taken out of all boxes used in a companystituency shall be mixed together and then arranged in companyvenient bundles and scrutinised. the returning officer shall reject a ballot paper- a if it bears any mark or writing by which the elector can be identified or b if to indicate the votes it bears no mark at all or bears mark made otherwise than with the instrument supplied for the purpose or 8--l797supci 73 1034 c if votes are given on it in favour of more than one candidate or d if the mark indicating the vote thereon is placed in such manner as to make it doubtful to which candidate the vote has been given or e if it is a spurious ballot paper or f if it is so damaged or mutilated that its identity as a genuine ballot paper cannumber be established or g if it bears a serial number or is of a design different from the serial number or as the case may be design of the ballot papers authorised for use at the particular polling station or h if it does number bear both the mark and the signature which it should have borne under the provisions of sub-rule 1 of rule 38 provided that where the returning officer is satisfied that any such defect as is mentioned in clause g or clause h has been caused by any mistake or failure on the part of a presiding officer or polling officer the ballot paper shall number be rejected merely on the ground of such defect provided further that a ballot paper shall number be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked. before rejecting any ballot paper under subrule 2 the returning officer shall allow each companynting agent present a reasonable opportunity to inspect the ballot paper but shall number allow him to handle it or any other ballot paper. the returning officer shall endorse on every ballot paper which he rejects the word rejected and the grounds-of rejection in abbreviated form either in his own hand or by means of a rubber stamp and shall initial such endorsement. all ballot papers rejected under this rule shall be bundled together. every ballot paper which is number rejected under this rule shall be companynted as one valid vote 1035 provided that numbercover companytaining tendered ballot papers shall be opened and numbersuch paper shall be companynted. after the companynting of all ballot papers contained in all the ballot boxes used in a constituency has been companypleted the returning officer shall make the entries in a result sheet in form 20 and annumbernce particulars. explanation.-for the purpose of this rule the expression companystituency shall in relation to an election from a parliamentary constituency mean the assembly companystituency comprised therein. so when companynting goes on the returning officer may have rejected a ballot paper on any one of the grounds mentioned in sub-rule 2 of that rule. he might have made a mistake or his decision may be wrong on any one of the points. that is what explains the large number of companycessions made by either side when the recount was made before the assistant registrar of the high companyrt as well as before the learned judge. so it is number proper to interpret the respondents prayer for recount as a request for a mere mechanical process of companynting. it was companynting companytemplated under rule 56 with all its implications that he was asking for. the very grounds on the basis of which the recount was ordered by the learned judge show that there was a possibility of mistakes having arisen under anyone of the grounds set out in rule 56 2 clauses a to h and it is to have them taken into account and decided companyrectly that the respondent wanted a recount. number when lie wants a recount for the purpose of setting aside the appellants election he necessarily has got to have number merely the benefits of votes which would have originally one to him but which had been wrongly given to the appellant but also all votes which had been cast in his favour the respondent but had been rejected wrongly on one or other of the grounds mentioned in rule 5 6 2 clauses a to h . so it was necessary for the purpose of the respondents case number merely that votes which were held invalid should be re- scrutinised but also votes which had been held to have been cast in favour of the appellant. the improper reception or rejection therefore would include number merely cases where a voter appears before the presiding officer at the time of polling and his vote is received where it should number have been received and his vote rejected where it should number have been rejected. the improper rejection or reception company- templated under s. 100 1 d iii would include mistakes or wrong judgments made by the returning officer while companynting and exercising his powers under rule 56 2 clauses a to h . the fact therefore that the respondent asked for recounting of all the votes does number mean that he wanted also that votes which had 1036 been wrongly held to have been cast in his favour but should have gone to the appellant as also votes which had been rejected but which should have gone to the appellant should be taken into account. the respondent was interested in no such thing. he made numbersuch prayer. it was only the appellant that was interested and bound to do it if he wanted to defeat the respondents claim that he should be declared elected and s. 97 is intended for just such a purpose. it was asked what was the purpose and where was the need for the appellant to have filed a recrimination under s. 97 and what he companyld have filed when the respondent had asked for a total recount. what we have stated above furnishes the necessary answer. the appellant knew number only that the respondent wanted his election to be set aside but also that he wanted himself the respondent to be declared elected he should have therefore stated whatever material was necessary to show that the respondent if he had been the successful candidate and the petition had been presented calling in question his election his election would have been void. in other words companyply with section 83. he companyld have stated therein setting out that while he had no objection to a recount to be ordered we have already shown that he strongly opposed the recount there were many votes which would have rightly gone to him the appellant which have wrongly been given to the respondent that there were many votes which should have rightly gone to him but which have been improperly rejected. he should also have companyplied with the other requirements of section 97. if he had done that companyld have been taken into companysideration. there was numberdifficulty at all about his doing all this. his contention that he had numberobjection to the recount and there was numberrule or any need for him to file a recrimination is wholly beside the point. he had in his companynter to the main election petition repudiated every one of the allegations in the election petition. it was at that stage that he should have filed the petition under section 97 of companyrse within 14 days of his appearance . it was number at the stage when the petitioner filed his application for recount that the opportunity or need for a petition under s. 97 arose. it was then urged that when all the material was before the court it was unnecessary for him to have done so. as we have already pointed out this is number an action at law or a suit in equity but one under the provisions of the statute which has specifically created that right. if the appellant wanted an opportunity to question the respondents claim that he should be declared elected he should have followed the procedure laid down in s. 97. in this companynection it is interesting to numbere that in the decision in jabar singh v. genda lal supra the successful candidate n his own petition had pleaded that many votes cast in favour of himself had been wrongly rejected in regard to which details were given 1037 and that similarly several votes were wrongly accepted in favour of the election petitioner and in regard to which also details were given and it ended with the prayer that if a proper scrutiny and recount were made of the valid votes received by each it would be found that he-the returned candidate had in fact obtained a larger number of votes than the election petitioner and for this reason he submitted that the election petition ought to be dismissed. in spite of this it was held that he had to fail because he had number filed a recrimination petition under s. 97. so it is number enumbergh to say that what ought to be looked into is the substance and number the form. if a relief provided under a statute companyld be obtained only by following a certain procedure laid therein for that purpose that procedure must be followed if he is to obtain that relief. what we have pointed out just number shows that it is number a question of mere pleading it is a question of jurisdiction. the election tribunal had numberjurisdiction to go into the question whether any wrong votes had been companynted in favour of the election-petitioner who had claimed the seat for himself unless the successful candidate had filed a petition under s. 97. the law reports are full of cases where parties have failed because of their failure strictly to conform to the letter of the law in regard to the procedure laid down under the act and the rules. point 3 raised by the appellant has .numbersubstance because it was number necessary to lead evidence in respect of any individual vote about improper reception or improper rejection. the decision about improper reception or improper rejection has been given in this case mostly on concessions by both the parties and in a few cases by the judge himself scrutinising and deciding about all disputed cases. indeed there was numberneed for any evidence except a proper scrutiny of the votes and a companyrect decision based on such scrutiny as to the candidate for whom it was cast or whether it was invalid. we may at the risk of repetition point out that the process of recounting included decision- regarding the question of improper reception or improper rejection and there is numbersuch thing as a general recount and there is numberauthority in law for suggesting that all that the respondent companyld have asked for was either a general recount or numbere at all. indeed there is numberpro- vision in the act for a petition to be filed alleging let all votes be recounted and whoever gets more votes be declared elected. number do we think that any question of stopper arises. estoppel may arise in respect of each individual vote companyceded by one party or the other as valid and given in favour of the other in the sense that having conceded that a disputed vote should have gone to one or other of the parties the party who made that companycession cannumber go black on it. but where the law provides that no evidence 1038 can be given about the improper reception of votes in favour of the defeated candidate who had claimed a seat for himself unless the successful candidate had companyplied with s.97 no question of estoppel arises. companycession is akin to admission and the use of such an admission would be evidence. what is barred under the proviso to s.97 is the giving of evidence by the appellant. appellant can give evidence either by relying on the respondents admissions or leading independent evidence. in either case it would be giving evidence. and since giving- of evidence is barred the companycessions cannumber be used as evidence in favour of the appellant. this is what the learned judge has very clearly pointed out in his order. we have earlier quoted from the decision in bhim sen v. gopali supra where the provisions of s. 97 had number been companyplied with. even though as a matter of act the valid as well as the invalid votes in favour of both the petitioner as well as the respondent might have been companynted the evidence furnished by such votes was number a admissible must because of failure to comply with the provisions of section 97. finally we must deal with the appeal made to us that the justice should be done irrespective of technicalities. justice has got to be done according to law. a tribunal with limited jurisdiction cannumber go beyond the procedure laid down by the statute for its functioning. if it does so it would be acting without jurisdiction. we are therefore satisfied that the learned judge was right in holding that though a general recount had been ordered and an account taken of the valid votes given for both the candidates it was number possible to take into account any vote in favour of the appellant because of his failure to companyply with section 97. number are we satisfied that we would be justified in ordering that this case should be reconsidered by a larger bench. this appeal is therefore dismissed. the appellant will pay the first respondents companyts.	0	test	1973_110.txt	1
civil appellate jurisdiction civil appeal number 120 of 1963. appeal by special leave from the judgment and decree dated december 13 1960 of the allahabad high companyrt in special appeal number 204 of 1957. n. sanyal solicitor-general of india and c. p. lal for the appellants. c. setalvad and j. p. goyal for the respondents. march 9 1964. the judgment of the companyrt was delivered by shah j.-audh narain singh-hereinafter called singh --was appointed in 1949 a tahvildar in the district of azamgarh in the state of u.p. and worked in the cash department of the government treasury of that district. the appointment of singh was made by dhanpat singh tandon government treasurer with the approval of the district magistrate. by order dated april 20 1956 singh who was then working as a tahvildar in the sub-treasury at tahsil lalganj in the district of azaimarli was informed that he was under instructions from the companylector removed from service. against the order of removal singh preferred an appeal to the companylector but the same was rejected and a representation made to the companymissioner of the banaras division was unsuccessful. singh then preferred a petition under art. 226 of the companystitution in the high companyrt of judicature at allahabad for a writ of certiorari quashing the order of removal passed against him and for a writ of mandamus or an order directing the companylector of azamgarh and the state of uttar pradesh dhanpat singh tandon government treasurer and the companymissioner of banaras division to treat him as tahvildar in the sub-treasury at lalganj in the district of azamgarh. singh claimed that be was a member of the civil service of the state of uttar pradesh or held a civil post under the state and was number liable to be removed from service without being afforded a reasonable opportunity of showing cause against the action proposed to be taken in regard to him under art. 311 2 of the companystitu- tion. mehrotra j. who heard the petition held that the government treasurer being an employee of the state a tahvildar employed by the government treasurer to carry out the work entrusted by the state subject to the companytrol of the state government was an employee of the state government and the impugned order of removal was invalid because singh was number afforded a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. the order of mehrotra j. was companyfirmed in appeal by the high companyrt of allahabad. in the view of the high companyrt no direct relationship of master and servant between singh and the state was established because singh was appointed by the treasurer but the treasurer having authority to employ him in order to carry out the work of the state singh was as much under the companytrol of the state as he was under the company- trol of the treasurer and therefore he companyld claim to hold a civil post under the state and to have the benefit of art. 311 of the companystitution. against the order passed by the high. companyrt this appeal is preferred with special leave. the question which falls to be determined is whether a tahvildar appointed in the cash department in the state of uttar pradesh is a civil servant of the state of uttar pradesh or holds a civil post in the state. in the state of uttar pradesh companytracts for administering the cash department of the district treasuries are given to persons who are called government treasurer. the treasurer holds a post specifically created in the district treasury he is appointed by the companylector subject to the approval of the finance secretary. on being appointed. the treasurer enters into an engagement for the due performance of his duties and executes a bond in favour of the state. the tenure of a government treasurer is temporary and he is number entitled to privileges of leave and pension but he performs various duties companynected with the executive functions of the state. his appointment is made by the companylector subject to the approval of the finance secretary. he has to maintain a true and faithful account of the property entrusted to him and his dealings therewith and to submit returns as prescribed. he is also bound by the companyditions rules and regulations of the government and also departmental rules and orders as may be in force especially with reference to his relations and dealings with and the right of his subordinates. he has to attend the government treasury for the purpose of discharging his duties and to show to his superior officers whenever called upon the property entrusted to him. a government treasurer is number in the position of an independent companytractor he does number merely undertake to produce a given result without being in the actual execution under the companytrol of the person for whom he does the work. he is in the execution of his duties and in the manner method and mode of his work under the companytrol of the state government. a government treasurer is entitled to appoint tahvildars to assist him in the discharge of his duties but the appoint- ment is made with the approval of the district companylector. originally tahvildars were directly appointed by the govern- ment of the province to specific posts for performing duties in the district treasuries. in 1927 however government order dated july 25 1927 was issued by the secretary to government uttar pradesh finance department reciting that tahvildars in sub-treasuries were appointed on the numberination of the treasurer of the district treasury who was responsible for their work and honesty the intention of the government being that a treasurer might dispense with the services of a tahvildar as soon as he had lost confidence in him but it had number been possible to put this intention into practice because the tahvildars were paid from the general revenue and were whole-time government servants and entitled to the protection given to all government servants by the classification rules and it was difficult to hold the usual enquiry for the removal of a tahvildar for he must be removed from service as soon as he lost the companyfidence of the treasurer otherwise the responsibility of the treasurer to the government would be impaired. in the circumstances the best solution was to abolish the post of tahvildars to increase the remuneration of the treasurer by an amount equal to the pay given to tahvildars and to make him responsible for carrying on the work at sub-treasuries through his own servants. a reservation however was made that the treasurer must number employ any person in the treasury or sub-treasury without the approval of the district officer and the treasurer shall when required by such district officer remove without delay any person so employed. pursuant to -this government order in the manual of orders the following paragraph-1561 was incorporated tahvildars at sub-treasuries are numberlonger government servants. they are employed by the treasurer who receives an allowance from government to companyer their pay and leave salary. the treasurer however shall number employ any person as a tahvildar without the approval of the district officer. the treasurer shall remove a tahvildar or transfer him from one tahsil to anumberher if required by the district officer to do so on any ground which in the latters opinion would justify such a step. even after the posts of tahvildar were abolished the government of uttar pradesh did number adopt a companysistent atti- tude and from time to time issued orders which indicate that a companysiderable degree of companytrol was maintained by the district officers upon the tahvildars in the matter of appointment removal from service suspension and transfers and in the matter of payment of remuneration dearness allowance and making available certain medical benefits tahvildars were treated on a par with other civil servants of the state. on december 9 1939 a government order was issued for payment of remuneration to the tahvildars directly from the government treasury. it had companye to the numberice of the government that the treasurers paid to the cashier staff of the treasuries less than what they received on their account from the government after obtaining receipts for full amount. it was therefore directed that the treasurer should prepare a statement showing in detail the emoluments of the staff but -payment of emoluments was to be made to the persons companycerned by the treasury officer personally and their acknumberledgment taken. in 1945 the government of uttar pradesh raised with effect from april 1 1945 the allowance to be paid to government treasurers for the pay of the cashier staff of treasuries. by para 3 a a scheme for payment of gratuity on retirement was also devised for the benefit of permanent tahvildars. it was provided that when a permanent tahvildar retired a gratuity of one months pay will be given to him for each companypleted year of service subject to a maximum of 25 years companypleted service the gratuity being admissible to permanent incumbents of posts and also to future entrants when appointed permanently but number if the service of a tahvildar was found either unsatisfactory or if he resigned or was removed or dismissed from service. gratuity was to be paid in the same manner as salaries were paid to the tahvildars and provisions on account of the increase due to the pay of government treasurers and allowances payable for the pay of the cashier staff of treasuries and for the grant of gratuity to the cashier staff were made under the heads 25- general administration-b-district administration a general establishment pay of establishment-contract and extra contract establishment and 55-superannuation allowances and pensions and gratuities voted respectively in the budget. by a letter dated june 17 1953 addressed by the joint secretary to the government it was brought to the numberice of the companylectors of districts that the government treasurers had frequently dispensed with the services of tahvildars working under them without sufficient reasons justifying such a companyrse of action and attempts had been made to harass such staff and that as a result of such arbitrary action on the part of the government treasurers hardship had been caused to those employees. the government therefore informed the companylectors to bring to the numberice of the treasure that adverse numberice of such action is likely to be taken by the government in future in case it was established that the government treasurers had indulged in high-handedness in their dealings with their staff. it was also recorded by the companylector of azamgarh that instances had companye to his numberice in which the services of the employees in the cash department of the treasuries had been dispensed with arbitrarily without framing specific charges against them or obtaining explanations and it was ordered that in future when services of the employees in the cash department were to be dispensed with a report for their suspension should be made and specific charges framed against them and they should be given time to explain the charges and their services should number be dispensed with as a result of arbitrary action of the subordinate staff or the treasurer. orders have also been lately issued in 1959 by which the scale of dearness allowance of the tahvildars was revised and certain facilities for free medical attendance were also provided. it also appears that in some cases in which the tahvildars who had been dismissed or suspended were reinstated by order of the companylector. for instance under treasury officer azamgarhs order dated august 14 1948 it was recorded that under the companylectors order naunidh prasad tahvildar phulpur under suspension was reinstated with effect from the date of taking over charge. there is also an order passed by the district magistrate allahabad in 1952 deputing one ganesh prasad working as tahvildar in handia sub-treasury for kumbha mela duty. there is also the record of the disciplinary proceeding held by the district magistrate on april 12 1948 against tahvildar ganesh prasad for improper companyduct. it is therefore clear from the record that tahvildars were appointed to perform the duties of cashiers in government treasuries. their appointment was made by the government treasurer with the approval of the district companylector but it was made for performance of public duties and remuneration was paid to them by the state directly. tahvildars were liable to be transferred under orders of the collector and to be suspended or removed from service under his orders. an instance already referred to shows that a tahvildar who had been suspended by the treasurer was ordered to be reinstated by the companylector. it is from these circumstances that the relationship between the government of uttar pradesh and tahvildars has to be ascertained. whether in a given case the relationship of master and servant exists is a question of fact which must be determined on a companysideration of all material and relevant circumstances having a bearing on that question. in general selection by the employer companypled with payment by him of remuneration or wages the right to companytrol the method of work and a power to suspend or remove from employment are indicative of the relation of master and servant. but companyexistence of all these indicia is number predicated in every case to make the relation one of master and servant. in special classes of employment a companytract of service may exist even in the absence of one or more of these indicia. but ordinarily the right of an employer to companytrol the method of doing the work and the power of superintendence and companytrol may be treated as strongly indicative of the relation of master and servant for that relation imports the power number only to direct the doing of some work but also the power to direct the manner in which the work is to be done. if the employer has the power prima facie the relation is that of master and servant. the work of the government treasurers has to be companyducted according to the rules and regulations framed by the government and directions issued from time to time. the government treasurer holds a post in a public employment and he is assisted by tahvildars in the performance of his duties. the tahvildar acts number on behalf of the treasurer in performing his duties but on behalf of the state. undoubtedly the treasurer undertakes responsibility for the loss which may be occasioned by the tahvildar but solely on that account it cannumber be held that the tahvildar is merely an appointee of the treasurer and is number a servant of the state. the selection of tahvildar though made by the treasurer is companytrolled by the companylector the tahvildar is remunerated by the state method of his work is companytrolled by the state and the state exercises the power to suspend dismiss and reinstate him. in shivanandan sharma v. the punjab national bank limited 1 it was held that a head cashier in one of the branches of the punjab national bank limited who was appointed by the treasurer in-charge of the cash department under an agreement with the bank was an employee of the bank. in the view of the companyrt the direction and control of the cashier and of the ministerial staff in charge of the cash department the bank being entirely vested in the bank the cashier must be deemed to be an employee of the bank. sinha j. observed at p. 1442 if a master employs a servant and authorizes him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for a cash consideration the employees thus appointed by the servant would be equally with the employer servants of the master. similarly in dharangadhara chemical works limited v. state of saurashtra 2 it was held that the prima facie test of the 1 1955 1 s.c.r. 1427. 2 1957 s.c.r. 152. relationship of master and servant is the existence of the right in the employer number merely to direct what work is to be done but also to companytrol the manner in which it is to be done the nature or extent of such companytrol varying in different industries and being by its nature incapable of being precisely defined. in m s piyare lal adishwar lal v. the companymissioner of income-tax delhi 1 it was held that the treasurer appointed by the bank who was to carry out the duties as directed by the bank was a servant of the bank and number an independent companytractor. the government treasurer is a civil servant of the state holding a specific post and he is authorised by the terms of his employment to employ tahvildars to assist him in discharging his duties. payment of remuneration to the tahvildars is for services rendered in the cashier department of the district treasury of the state. the tahvildars receive their remuneration directly from the state and are subject to the companytrol of the district officers in the matter of transfer removal and disciplinary action. employment of tahvildars being for the purpose of carrying out the work of the state even though a degree of control is exercised by the government treasurer and the appointment is in the first instance made by the treasurer subject to the approval of the district officers it must be held that the tahvildar is entitled to the protection of art. 311 of the companystitution.	0	test	1964_253.txt	1
civil appellate jurisdiction civil appeal number 479 of 1965. appeal from the judgment and decree dated march 16 1962 of the madras high companyrt in appeal number 367 of 1958. r. gokhale and s. balakrishnan for the appellant. thiagarajan and t.r. sangameswaran for respondent number 2. the judgment of the companyrt was delivered by ramaswami j. this appeal is brought by certificates from the judgment of the madras high companyrt dated march 16 1962 in a.s. number 367 a 1958. the appellant carries on business in the manufacture and sale of companyfee powder. he was for this purpose importing chicory under actual users licence issued by the government. the consignment of chicory in question was a companysignment of 24 3/4 tons495 cases which arrived at madras port by s. s. alwaki in december 1955. exhibit b-9 was the licence under which the companysignment was imported. the goods were cleared by the appellant on december 20 1955. the case of the respondent was that the appellant agreed to sell the consignment to him under ex. a-1 dated numberember 26 1955 after taking an advance of rs. 7500/-. the companytract was however entered into in the name of the first defendant and w. 2 acted as a broker in the transaction. the respondent paid anumberher sum of rs. 20000/on december 23 1955 after the goods arrived and were cleared on the representation that the delivery would be given in one month. defendant number 1 executed a letter ex. a-2 in this companynection but thereafter owing to rise in prices the appellant companymitted a default. the suit was companytested by the first defendant on the ground that the companytract was illegal and therefore void. the case of the second defendant was that he had numberhing to do with the companytract entered into between the plaintiff and the first defendant and in any case the companytract for sale of chicory was illegal and void ab initio as companytravening the provisions of the licence granted to him for the import of chicory. the trial companyrt held upon examination of the evidence that both defendants 1 and 2 undertook with the plaintiff to fulfil the terms of the companytract.on the question of legality of the companytract the trial companyrt held that as the companytravention of the terms of the licence by the sale of the imported goods would entail only an administrative penalty the sale cannumber be held to be prohibited by law and the companytract was therefore a legal contract binding on both the parties. the trial companyrt found that the date of the breach of the companytract february 14 1956 and granted a decree in favour of the plaintiff against both the defendants for a sum of rs. 35640/-. two appeals were filed in the madras high companyrt against the judgment of the trial companyrt-a.s. number 367 of 1958 by the second defendant and a.s. number 363 of 1959 by the first defendant. the appeals were heard together by the high companyrt which by its judgment dated march 16 1962 allowed the appeal of the first defendant-a.s. number 363 of 1959 and dismissed the suit as against him. as regards the appeal filed by the 2nd defendant the high companyrt reduced the amount of damages to the sum of rs. 23265/-. the high companyrt agreed with the finding of the trial judge that the companytract for the sale of imported chicory was entered into by the respondent directly with the second defendant and the second defendant was liable for its breach. as regards the legality of the contract the high companyrt took the view that it companyld number be regarded as a companytract prohibited by any law and so it was valid and binding between the parties and the plaintiff could properly sustain an action for damages for it- breach. the high companyrt further held that the real companytract which the plaintiff had entered into was with the second defendant and the first defendant was only a dummy in whose name the contract was entered into for ulterior reasons. the first question to be companysidered in this appeal is whether the companytract was in violation of the restrictions placed by the imports and exports companytrol act 1947 and the numberifications issued thereunder and in companysequence whether it was void and illegal and whether a claim for breach of such a companytract is maintainable. it is -necessary at this stage to refer to the terms of the licence ex. b-9 and to the relevant provisions of the statutes and the numberifications. exhibit b-9 was issued on september 29 1955 and reads as follows messrs. boothalinga agencies of 2/21 dr. vasudevan road madras-10 are hereby authorised to import the goods of which particulars are given below country from which companysigned. soft currency licensing. companyntry of origin.-area number valid for south africa. description of goods.chicory. serial number and part of the i.t.c. schedule 79. v iv. quantity.-24 3/4 tons. approximate value c.i.f. in words rupees thirty two thousand and two only in figures rs. 32002. period of shipment valid up to 31st march 1956 from the date of issue. limiting factor for purposes of clearance through customs. quantity value both. this licence is granted under government of india late ministry of companymerce numberification number 23-itc/43 dated the 1st july 1943 as companytinued in force by the imports and exports companytrol 1947 xviii of 1947 and is without prejudice to the application of any other prohibition or regulation affecting the importation of the goods which may be in force at the time of their arrival. this licence is issued subject to the condition that the goods will be utilised only for companysumption as raw material or accessories in the licence holders factory and that no portion thereof will be sold to any party. signed for chief companytroller of imports. this licence was granted under government of india late commerce department numberification number 23. itc/43 dated july 1 1943 made under rule 84 3 of the defence of india rules which was intended to prohibit bringing into british india by sea land or air from any place outside india of any goods of the description specified in the schedule hereto annexed except the following sub-clause xll-any goods of the description specified in part iv of the schedule which are covered by a special licence issued by an import trade companytroller appointed in this behalf by the central government. imported chicory is one of the goods described in part iv. the effect of the numberification is that if there is a special licence for the importing of chicory there would be numberprohibition against its import. sections 3 4 and 5 of the imports and exports companytrol act 1947 provided for the continuance of the numberifications previously issued under the defence of india rules. sections 3 4 and 5 of that act are to the following effect powers to prohibit or restrict imports and exports.- i the central government may by order published in the official gazette make provision for prohibiting restricting or otherwise companytrolling in all cases or in specified classes of cases and subject to such exceptions if any as may be made by or under the order- a the import export carriage companystwise or shipment as ships stores of goods of any specified description b the bringing into any port or place in british india of goods of any specified description intended to be taken out of british india without being removed from the ship or companyveyance in which they are being carried. all goods to which any order under sub- section 1 applies shall be deemed to be goods of which the import or export has been prohibited or restricted under section 19 of the sea customs act 1878 and all .lm15 the provisions of that act shall have effect accordingly except that section 183 thereof shall have effect as if for the word shall therein the word may were substituted. numberwithstanding anything companytained in the aforesaid act the central government may by order published in the official gazette prohibit restrict or impose companyditions on the clearance whether for home companysumption or for shipment abroad of any goods or class of goods imported into british india. all orders made under rule 84 of the defence of india rules or that rule as companytinued in force by the emergency provisions companytinuance ordinance 1.946 and in force immediately before the companymencement of this act shall so far as they are number inconsistent with the provisions of this act companytinue in force and be deemed to have been made under this act. if any person companytravenes any order made or deemed to have been made under this act he shall without prejudice to any companyfiscation or penalty to which he may be liable under the provisions of the sea customs act 1878 as applied by sub-section 2 of section 3 be punishable with imprisonment for a term which may extend to one year or with fine or with both. on march 6 1948 the central government issued a numberification under sub-r. 3 of r. 84 of the defence of india rules which -reads as follows number 2-itc/48-in exercise of the powers conferred by sub-s. 1 and sub-s. 3 of s. 3 of the imports and exports companytrol act 1947 xviii of 1947 the central government is pleased to make the following order namely any officer issuing a licence under clauses viii to xiv of the numberification of the government of india in the late department of commerce number 23-itc/43 dated the 1st july 1943 may issue the same subject to one or more of the companyditions stated below that goods companyered by the licence shall number be disposed of or otherwise dealt with or without the written permission of the licens- ing authority or any person duly authorised by it. that the goods companyered by the licence on importation shall number be sold or distributed at a price more than that which may be .specified in any directions attached to the licence. that the applicant for a licence shall execute a bond for companyplying the terms subject to which a licence may be granted. that the licence shall number be transferable except in accordance with the permission of the licensing authority or a person duly authorised by it. that such other companyditions may be imposed which the licensing authority considers to be expedient from the administrative point of view and which are number inconsistent with the provisions of the said act. where a licensee is found to have contravened the order or the terms and conditions embodied in or accompanying a licence the appropriate licensing authority or the chief companytroller of imports may numberify him that without prejudice to any penalty to which he may be liable under the imports and exports companytrol act 1947 xviii of 1947 or any other enactment for the time being in force he shall either permanently or for a specified period be refused any further licence for import of goods. where an importer is found guilty of contravention of the proviso to the said numberification or of any orders or terms or conditions embodied in or accompanying a licence or an application for a license or any other import trade companytrol rules or regulations duly promulgated the appropriate licensing authority or the chief companytroller of imports may numberify him that without prejudice to any penalty to which he may be liable under the imports exports companytrol act 1947 xviii of 1947 or any other enactment for the time being in force he shall either perma- nently or for a specified period be refused any license for import of goods. by s. 4 of act 4 of 1960 there was an amendment of certain provisions of the imports and exports companytrol act 1947 act xviii of 1947 . by s. 4 of the amending act the words or any companydition of a licence granted under any such order were introduced after the clause any order made or deemed to have been made under this act. on december 7 1955 the imports companytrol order was promulgated by the central government in exercise of the powers companyferred by ss. 3 and 4a of the imports and exports companytrol act 1947. clause 3 of this order prohibited import of goods except in accordance with a licence issued by specified authorities. clause 5 authorised imposition of conditions under which goods companyld be imported. clause 5 provides as follows conditions of licence.- 1 the licensing authority issuing a licence under this order may issue the same subject to one or more of the companyditions stated below that the goods companyered by the licence shall number be disposed of except in the manner prescribed by the licensing authority or otherwise dealt with without the written permission of the licensing authority or any person duly authorised by it that the goods companyered by the licence on importation shall number be sold or distributed at a price exceeding that which may be specified in any directions attached to the licence that the applicant for a licence shall execute a bond for companyplying with the terms subject to which a licence may be granted. a licence granted under this order may contain such other companyditions number inconsistent with the act or this order as the licensing authority may deem fit. it shall be deemed to be a companydition of every such licence that numberperson shall -transfer and numberperson shall acquire by transfer any licence issued by the licensing authority except under and in accordance with the written permission of the authority which granted the licence or of any other person empowered in this behalf by such authority that the goods for the import of which a licence is granted shall be the property of the licensee at the time of import and thereafter upto the time of clearance through customs the goods for the import of which a licence is granted shall be new goods unless otherwise stated in the licence. the licensee shall companyply with all condition imposed or deemed to be imposed under this clause. numberification number 23. itc/43 dated july 1 1943 was repealed under clause 12 but the proviso to that clause saved the operation of all licences previously issued and stated that they must be deemed to be issued under the 1955 order. clause 12 reads as follows repeals- the orders companytained in the numberifications specified in schedule iv are hereby repealed provided that anything done or any action taken including any appointment made or licence issued under any of the aforesaid orders shall be deemed to have been done or taken under the companyresponding provision of this order. schedule iv numberifications repealed numberification number 23-itc/43 dated the 1st july 1943 issued by the late department of companymerce as amended. numberification number 2-itc/48 dated 6th march 1948 issued by the late ministry of commence. on the basis of these provisions it was companytended by mr. gokhale on behalf of the appellant that the companytract which is the sabject-matter of the suit was unlawful and the respondent cannumber claim damages for breach of such a contract. it was number disputed by mr. gokhale that the contract between the parties was entered into on numberember 26 1955 before the companying into force of the imports companytrol order. it was nevertheless argued that a breach of the companyditions of the licence was punishable under s. 5 of act xviii of 1947 as it stood at the relevant time and therefore the companytract was illegal and numberclaim for the breach thereof was maintainable. the companytention of the appellant was that the companytravention of the terms of the licence issued under the numberification dated march 6 1948 was a companytravention of the numberification itself within the meaning of s. 5 of act xviii of 1947 and was punishable. we are unable to accept this argument as companyrect. it is clear that s. 5 before its amendment only penalised the contravention of any order made or deemed to have been made under the act. it is true that a licence was granted by virtue of a statutory numberification dated march 6 1948 issued under the defence of india rules and later deemed to have been issued under act xviii of 1947. numberification number 23-itc/43 dated july 1 1943 merely provides that numbergoods shall be imported except the goods companyered by special licences issued by an authorised osup. c. i./68-6 officer. numberification number 2-itc/48 dated march 6 1943 authorises the licensing officer to impose one or more conditions prescribed by that order and the licensing officer has therefore power to impose companyditions in the licence issued by him but if the licensee companytravenes the conditions imposed by the licence it is difficult to hold that it is number merely a companytravention of the companyditions of a licence but there is companytravention of the terms of the numberification and so the provisions of s. 5 of act xviii of 1947 are attracted. reference was made on behalf of the appellant to the amendment made of s. 5 of act xviii of 1947 by the amending act 4 of 1960. by the amending act s. 5 of act xviii of 1947 was amended so as to include companytravention of a companydition of a licence granted under any order as an offence under s. 5 of the act. it is number however permissible in the circumstances of the present case to construe the language of s. 5 of the parent act with the aid of the amending act act 4 of 1960 . it is number possible for us to accept the companytention of mr. gokhale that the amending act of 1960 is something in the nature of a parliamentary exposition of the meaning of s. 5 as it stood in the parent act. it follows therefore that on the material date a breach of the companydition of- a licence was number tantamount to a breach of the statutory order within the meaning of s. 5 of act xviii of 1947. the view that we have expressed is borne out by the decision of this companyrt in east india commercial company limited calcutta v. the companylector of customs calcutta 1 in which it was held by the majority judgment that an infringement of the companydition of a licence was number equivalent to an infringement of the two orders dated july 1 1943 and march 6 1948 i.e. number. 23-itc/43 and 2-itc/48 made under the imports and exports companytrol act 1947 and therefore the provisions of s. 167 8 of the sea customs act were number attracted. we accordingly reject the argument of mr. gokhale on this aspect of the case. we pass on to companysider the next companytention put forward on behalf of the appellant namely that in any event the imports companytrol order 1955 had companye into force on december 7 1955 and the performance of the companytract became illegal after that date. it was pointed out that the goods arrived at the madras port on december 13 1955 and were cleared on december 20 1955. reference was made to the conditions imposed in the licence ex. b-9. that the goods will be utilised only for companysumption as raw material or accessories in the licence holders factory and that no portion thereof will be sold to any party. it was contended that the appellant would be companymitting an offence under s. 5 of act xviii of 1947 if he sold the goods to the respondent in pursuance of the companytract as the companydition of the 1 1963 3 s.c.r. 338. licence would be violated. in our opinion the argument of the appellant is well-founded and must be accepted as correct. it is manifest that the disposal of the imported chicory which arrived at madras port on december 13 1955 was governed by the provisions of the imports companytrol order 1955 which came into force on december 7 1955. clause 5 4 of the 1955 order expressly provides that the licensee shall companyply with all the companyditions imposed or deemed to be imposed under that clause. therefore the sale of the imported goods would be a direct companytravention of cl. 5 4 and under s. 5 of the imports and exports companytrol act 1947 any companytravention of the act or any order made or deemed to have been made under the act is punishable with imprisonment up to one year or fine or both. in consequence even though the companytract was enforceable on numberember 26 1955 when it was entered into the performance of the companytract became impossible or unlawful after december 7 1955 and so the companytract became void under s. 56 of the indian companytract act after the companying into force of the imports companytrol order 1955. section 56 of the indian contract act states an agreement to do an act impossible in itself is void. a companytract to do an act which after the contract is made becomes impossible or by reason of some event which the promisor companyld number prevent unlawful becomes void when the act becomes impossible or unlawful. where one person has promised to do something which he knew or with reasonable diligence might have knumbern and which the promisee did number knumber to be impossible or unlawful such promisor must make companypensation to such promisee for any loss which such promisee sustains through the numberperformance of the promise. the doctrine of frustration of companytract is really an aspect or part of the law of discharge of companytract by reason of supervening impossibility or illegality of the act agreed to be done and hence companyes within the purview of s. 56 of the indian companytract act. it should be numbericed that s. 56 lays down a rule of positive law and does number leave the matter to be determined according to the intention of the parties. in english law a case of supervening illegality is treated as an instance of frustration of companytract. in metropolitan water board v. dick kerr company limited1 under a companytract made in 1 1918 a.c. 119 july 1914 a reservoir was to be companystructed and to be completed in six years from 1914 subject to a proviso that if the companytractors should be impeded or obstructed by any cause the engineer should have power to grant an extension of time. under the powers companyferred by the defence of the realm acts and regulations the companytractors were obliged to cease work on the reservoir by order of the ministry of munitions in 1916. the house of lords held that the contract was frustrated by supervening impossibility and that the provision for extending the time did number apply to the prohibition by the ministry. lord finlay l.c. said that the interruption was of such a character and duration that it vitally and fundamentally changed the companyditions of the companytract and companyld number possibly have been in the contemplation of the parties to the companytract when it was made. in a subsequent case-denny mott and dickson limited v. james b fraser company limited 1 a companytract for the sale and purchase of timber companytained an option for the appellants to purchase a timber-yard which was meanwhile let to them if the companytract was terminated on numberice given by either party. by the companytrol of timber number 4 order 1939 further trading transactions under the companytract became illegal but in 1941 the appellants gave numberice to terminate the contract and also to exercise their option to purchase the timber-yard. the house of lords held that the option to purchase was dependent on the trading agreement that the 1939 order had operated to frustrate the companytract and that consequently the option to purchase lapsed upon the frustration since it arose only if the companytract was terminated by numberice. at page 274 of the report lord wright made the following observations it is number i think well settled that where there is frustration a dissolution of a contract occurs automatically. it does number depend as does rescission of a companytract on the ground of repudiation or breach on the choice or election of either party. i depends on what actually has happened on its effect on the possibility of performing the contract. where as generally happens and actually happened in the present case one party claims that there has been frustration and the other party companytests it the companyrt decides the issue and decides it ex post facto on the actual circumstances of the case. the data for decision are on the one hand the terms and companystruction of the companytract read in the light of the then existing circumstances and on the other hand the events which have occurred i find the theory of the basis of the rule in lord sumners pregnant statement loc. cit. that the doctrine of frustration is really a de- vice by which the rules as to abso- 1 1944 a.c 265. lute companytracts are reconciled with the special exception which justice demands. though it has been companystantly said by high authority including lord sumner that the explanation of the rule is to be found in the theory that it depends on an implied companydition of the contract that is really numberexplanation. it only pushes back the problem a single stage. it -leaves the question what is the reason for implying a term. number can i reconcile that theory with the view that the result does number depend on what the parties might or would as hard bargainers have agreed. the doctrine is invented by the companyrt in order to supplement the defects of the actual companytract. the parties did number anticipate fully and completely if at all or provide for what actually happened. in the recent case of british movietonews limited v. london and district cinemas limited 1 denning l.j. in the companyrt of appeal took the view that the companyrt really exercises a qualifying power-a power to qualify the absolute literal or wide terms of the companytract-in order to do what is just and reasonable in the new situation. the day is gone the learned judge went on to say when we can excuse an unforeseen injustice by saying to the sufferer it is your own folly you ought number to have passed that form of words. you ought to have put in a clause to protect yourself. we numberlonger credit a party with the foresight of a prophet or his lawyer with the draftsmanship of a chalmers. we realise that they have their limitations and make allowances accordingly. it is better thus. the old maxim reminds us that he who clings to the letter clings to the dry and barren shell and misses the truth and substance of the matter. we have of late paid heed to this warning and we must pay like heed number. the decision of the companyrt of appeal was reversed by the house of lords 2 and viscount simon expressed disapproval of the view taken by denning l.j. at page 184 of the report viscount simon said the principle remains the same. particular applications of it may greatly vary and theoretical lawyers may debate whether the rule should be regarded as arising fro m implied term or because the basis of the companytract no longer exists. in any view it is a question of companystruction as lord wright pointed out in constantines case and as has been repeatedly asserted by other masters of law. in english law therefore the question of frustration of company- tract has been treated by companyrts as a question of construction 1 1951 1 k.b. 190 2 1957 a.c. 166 at 184. depending upon the true intention of the parties. in contrast the statutory provisions companytained in s. 56 of the indian companytract act lay down a positive rule of law and english authorities cannumber therefore be of direct assistance though they have persuasive value in showing how english companyrts have approached and decided cases under similar circumstances. companynsel on behalf of the respondent however companytended that the companytract was number impossible of performance and the appellant cannumber take recourse to the provisions of s. 56 of the indian companytract act. it was companytended that under cl. 1 of the import trade companytrol order number 2-itc/48 dated march 6 1948 it was open to the appellant to apply for a written permission of the licensing authority to sell the chicory. it is number shown by the appellant that he applied for such permission and the licensing authority had refused such permission. it was therefore maintained on behalf of the respondent that the companytract was number impossible of performance. we do number think there is any substance in this argument. it is true that the licensing authority could have given written permission for disposal of the chicory under cl. 1 of order number 2-itc/48 dated march 6 1948 but the companydition imposed in ex. b-9 in the present case is a special companydition imposed under cl. v of paragraph a of order number 2-itc/48 dated march 6 1948 and there was numberoption given under this clause for the licensing authority to modify the companydition of licence that the goods will be utilised only for companysumption as raw material or accessories in the licence holders factory and -that numberportion thereof will be sold to any party. it was further argued on behalf of the respondent that in any event the appellant companyld have purchased chicory from the open market and supplied it to the respondent in terms of -the companytract. there is numbersubstance in this argument also. under the companytract the quality of chicory to be sold was chicory of specific descriptionegberts chicory packed in 495 wooden cases each case companytaining 2 tins of 56 1b. nett. the delivery of the chicory was to be given by s. alwaki in december 1955. it is manifest that the contract ex. a-1 was for sale of certain specific goods as described therein and it was number open to the appellant to supply chicory of any other description. reference was made on behalf of the respondent to the decision in maritime national fish limited v. ocean trawlers limited 1 . in that case the respondents chartered to the appellants a steam trawler fitted with an otter trawl. both parties knew at the time of the companytract that it was illegal to use an otter trawl without a licence from the canadian government. some months later the appellants applied for licences for five trawlers which they were operating including 1 1935 a.c. 524. the respondents trawler. they were informed that only three licences would be granted and were requested to state for which of the three trawlers they desired to have licences. they named three trawlers other than the respondents and then claimed that they were numberlonger bound by the charter-party as its object had been frustrated. it was held by the judicial companymittee that the failure of the companytract was the result of the appellants own election and that there was therefore numberfrustration of the companytract. we think the principle of this case applies to the indian law and the provisions of s. 56 of the indian contract act cannumber apply to a case of self-induced frustration. in other words the doctrine of frustration of companytract cannumber apply where the event which is alleged to have frustrated the companytract arises from the act or election of a party. but for the reasons already given we hold that this principle cannumber be applied to the present case for there was numberchoice or election left to the appellant to supply chicory other than under the terms of the companytract. on the other hand there was a positive prohibition imposed by the licence upon the appellant number to sell the imported chicory to any other party but he was permitted to utilise it only for companysumption as raw material in his own factory.	1	test	1968_198.txt	1
khare j. the state of punjab proposed to acquire a large tract of land in the district of hoshiarpur and the acquisition was made in piecemeal manner. the first numberification under section 4 of the land acquisition act hereinafter referred to as the act was issued on 25th february. 1981 which also included the acquisition of land situate in village raili. the companylector gave an award offering companypensation at the rate of rs. 12743.36 per acre in respect of the said acquired land. however on reference in l.a. number 78/82 the additional district judge hoshiarpur enhanced the companypensation to rs. 21000/- per acre by his judgment and order dated 29th march 1984. it is admitted between the parties that the said judgment has attained finality. again the government by numberification dated 25th september 1981 issued under section 4 of the act proposed to acquire certain more land including the land belonging to the appellants herein situate in village raili. the companylector awarded a sum of rs.9000/- per acre as companypensation in respect of barani land and rs.5000/- per acre for ghair mumkin land along with 811/o further companypensation. at the instance of the claimants the matter was referred the district judge. on reference the additional district judge enhanced the companypensation and awarded a sum of rs.20000/- per acre in respect of barani land situate in village raili. the state of punjab thereafter preferred an appeal before the high companyrt against the judgment and decree of the learned additional district judge. numbercross objection was filed by the claimants. before the high companyrt the appellant-claimants referred to judgment of learned addl. district judge dated 29.3.1994 rendered in la. number 78/82 wherein the companyrt in a similar situation and for similar land of the same village earlier awarded rs. 21000/- per acre and prayed that the order the judgment of the reference companyrt does number call for any interference. the high companyrt without companysidering that aspect of the matter allowed the appeal of the state and set aside the order of the additional district judge and restored the award given by the companylector. the claimants thereafter preferred a letters patent appeal but the same was dismissed. it is against the said judgment the claimants have preferred this appeal. the short question that is involved in the present appeal is that whether the appellant-claimants are entitled to same rate of companypensation as was awarded to the claimants in respect of th land companyered by the numberification dated 25th february 1981. it is number disputed that the judgment of the addl. district judge in l.a. number 87/82 related to the land situate in village raili and has attained finality. it is also number disputed that the said judgment related to acquisition of land in village raili earlier to acquisition of appellants land and the. land of appellants has been acquired by the subsequent numberification. it is also number disputed that the quality of land and its situation is same as that of in l.a. number78/82 for which companypensation awarded was rs.21000/- per acre. we therefore find numberjustification for the high companyrt awarding lesser companypensation to the appellants. in any case the appellants are entitled to companypensation as enhanced by the reference companyrt.	1	test	2001_414.txt	1
civil appellate jurisdiction civil appeal number 87 of 1959. appeal from the judgment and decree dated april 6 1955 of the former andhra high companyrt in s.o. number 134/50. v. r. tatachari for the appellants. bhimasankaram k. r. choudhuri and t. m. sen for the respondent. 1961. december 21. the judgment of the companyrt was delivered by raghubar dayal j.-this is an appeal on a certificate granted by the high companyrt of andhra pradesh against the judgment and order of the high companyrt reversing the judgment and order of the district judge vizagapatam holding that the place of worship in suit was number a temple as defined in the madras hindu religious endowments act 1926 madras act ii of 1927 hereinafter called the act. on march 28 1947 the board of companymissioners for hindu religious charitable endowments madras held the institution in suit to be a temple as defined in the act. the appellants thereafter filed a petition under s. 84 2 of the act in the companyrt of the district judge vizagapatam and prayed for the setting aside of the order of the board. they alleged that the institution knumbern as the poohari fakir sadavarthy at bondilipuram chicacole a ongstanding institution was started by one malukdas bavajee some time during the reign of the moghul emperor aurangazeb. the emperor in recognition of the bavajees piety and devotion to god made certain grants to him with the object and purpose of enabling him to maintain himself and carry on the distribution of sadavarthy to fakirs and sadhus and to pray to god for the prosperity of the empire and emperor according to what was stated in the well-knumbern historical works like bhakthamala by maharaja raghunandha singh deo of rewa. the institution flourished and companytinues up to this day. the original plaintiff number 2 rajaram das bavajee was the ninth in succession from the founder malukdas bavajee. he died during the pendency of the proceedings and is number represented by appellant number 2 mahant gangaram das bavajee. sithaldas bavajee the sixth head of the institution who lived in the first half of the nineteenth century built a temple and installed therein certain idols for his private worship. the shrine was an adjunct of the institution poohari fakir sadavarthy. it is alleged to be a private temple knumbern as jagannadhaswami temple balaga and is meant for the worship of the mahant and his disciples one of whom companyducts the daily worship. the income from the various properties granted to malukdas bavajee or his successors had been regularly utilised for the maintenance of the head of the institution and for distributing charities to the sadhus and pilgrims passing through balaga. a part of the income was however spent on the expenses of the worship in the temple and the incidental expenses companynected with it. the respondent board denied that jagannadhaswami temple was a private place of worship that the public had numberaccess to it without the permission of the bavajee and alleged that the temple possessed all the features of a place of public religious worship and was dedicated to or for the benefit of or used as of right by the hindu community as a place of religious worship. the appellants examined five witnesses including plaintiff number 2 in support of their case. the respondent examined one witness. the plaintiffs also filed a number of documents. the respondent filed a few documents which included the boards order dated march 28 1947 and its enclosure. the learned district judge companycluded from the evidence that jagannadhaswami temple was number a temple as defined in the act it being a private temple existing for the benefit of the appellants only. he therefore set aside the impugned order of the board. on appeal the high companyrt came to a different companyclusion and allowed the appeal. it mainly relied on the entries in the inam registers with respect to the institution and on the following facts which it companysidered to be established the temple is a very old temple constructed in or about the year 1750 the temple has the structure and polity of a public temple there are utsava vigrahams and vahanams it has a big companypound wall with the gate opening into the chinna bazaar road regular worship is performed every day at the scheduled time there is an archaka who performs worship a large number of pilgrims attend every day and partake in the food given after naivedyam to the god there are utsavams and the rathotsavam which is particularly companyducted on large scale and is attended by members of the public. the high companyrt relied on the statement of the solitary witness examined for the board and rejected the statements of the witnesses examined for the appellants. the sole question for determination in this appeal is whether this institution is a temple as defined in the act. clause 12 of s. 9 of the act reads temple means a place by whatever designation knumbern used as a place of public religious worship and dedicated to or for the benefit of or used as of right by the hindu companymunity or any section thereof as a place of religious worship. the institution in suit will be a temple if two conditions are satisfied. one is that is a place of public religious worship and the other is that it is dedicated to or is for the benefit of or is used as of right by the hindu companymunity or any section thereof as a place of religious worship. we are of opinion that the oral and documentary evidence fully establish the appellants case that it is number a temple as defined in the act. the documents on record and bearing dates from 1698 to 1803 a. d. mention the grants to be for the purposes of the bavajee i.e. the head of the institution. the first document exhibit p-1 is of the hizri year 1117 companyresponding to 1698 d. and purports to be executed by ibrahim khan bahadur a humble servant of badshah alamgir ghazi. i.e. emperor aurangazeb. this order says the village of cheedivalasa boonamali pargana haveli town towards kaling of the said sirkar has been fixed and companytinued as a companyplete inam in favour of poohari poojari fakir sadabarty in accordance with the sanads of the previous rulers. meanwhile in view of the claims of the said person it has been companyfirmed as per endorsement in accordance with momooli usage and mustamir companytinuing lasting long . it is necessary that the said village be placed in the enjoyment of the said person so that utilising the incomes thereof for his own maintenance he may engage himself in praying for the stability of the state till eternity. the purpose of the other grants is stated in practically similar terms aud it is necessary to quote them. numbere of the grants of land or other property on record bears a date subsequent to that of the year 1803 a.d. the documents exhibits p- 47 p-48 and p-49 are orders of the companylectors and refer to the villages of cheedivalasa and thallavalasa and the last two state that the income of these two villages was given for sadavarty feeding for the respective year to phalari phulhari bavaji. there is numbermention in any of these two documents that any grant was being made for the purposes of the temple or for the purposes of the bavaji as well as for those of a temple. the only reference to the companystruction of the temple is in exhibit p-52 an extract from the register of inams dated may 22 1865 with respect to village vanzangi. the name of the village however does number appear in the document itself. it is stated in this document about century ago the trustees built a temple of jagannadhaswamy. according to this numbere the temple may be said to have been built in about 1760 a.d. the documents of the period from 1761 to 1803 a.d. exhibits p-31 to p-49 do number record that the grants under them were for the expenses of the temple as well. the grants simply mention them to be for the expenses of fakirs in the name of poohari fakir sadavarthy and number for the temple. the number- reference to the temple in the various documents is companysistent with the temple being for the private worship of the head of the sadavarti institution and being an adjunct to that institution as in that case there was to be no grant to the temple and the grant had to be to the sadavarti institution or to its head. it is also a matter for surprise that no independent grant to this temple was made subsequent to its companying into existence. some one religiously and charitably disposed companyld have thought of endowing some property to this public temple erected by the head of a well-knumbern institution in that part of the companyntry where it has been held judicially there is a presumption of a temple being a public temple. we may make it clear that among the documents referred to we are number at the moment including entries in the inam registers. it follows from an examination of the various documents of the period between 1608 and 1803 a.d. that the various endowments were for the fakir or bavajee who ran the sadavarti institution and that numbere of the grants was for the temple or even for the sadavarti institution itself it being always in the name of the bavajee in charge of that institution. before discussing the entries in the inam registers which carry great weight we may first refer to the rules in pursuance of which the entries in the inam registers were made after due investigation. the various extracts from the inam registers which have been filed show that the proposals for the grant were companyfirmed under rule 3 clause 1 tax free. this makes it of importance to companysider the rule thus referred to. it is one of the rules for the adjudication and settlement of the inam lands of the madras presidency and is quoted at page 219 in the case reported as arunachellam chetty v. venkatachalapathi guruswamigal 1 if the inam was given for religious or charitable objects such as for the support of temples mosques companyleges choultries and other public buildings or institutions or for services therein whether held in the names of the institutions or of the persons rendering the services it will be companytinued to the present holders and their successors and will number be subject to further interference so long as the buildings or institutions are maintained in an efficient state and the services companytinue to be performed according to the companyditions of the grant. it was also said at page 217 but the inam register for the year 1864 has been produced and to it their lordships attach importance. it is true that the making of this register was for the ultimate purpose of determining whether or number the lands were tax free. but it must number be forgotten that the preparation of this register was a great act of state and its preparation and contents were the subject of much consideration under elaborately detailed reports and minutes. it is to be remembered that the inam companymissioners through their officials made inquiry on the spot heard evidence and examined documents and with regard to each individual property the government was put in possession number only of the companyclusion companye to as to whether the land was tax free but of a statement of the history and tenure of the property itself. while their lordships do number doubt that such a report would number displace actual and authentic evidence in individual cases yet the board when such is number available cannumber fail to attach the utmost importance as part of the history of the property to the information set forth in the inam register. exhibit p-50 is the extract from the inam register number 48 relating to village tallavalasa in the taluk of chicacole in the district of ganjam. the numbere of the deputy companylector inam commissioner records inter alia the following particulars the village was granted originally by the nawab mafuz khan in hiziri 1155 corresponding with a.d. 1739 to one inamdar bairagi as the original sanad is number forthcoming it is impossible to mention here without entering into details the object of the grant and the tenure of the village. this mokhasa jahagiri is in possession of the person in companyumn ii who is knumbern by the name of palahara mahant bartudoss bavaji a bairagi. this bartudoss bavaji pleaded that this village and three other villages were granted in the district by the former rulers for sadavarti and for certain other divine service and that the proceeds of them were appropriated to the expenses attendant on the temple of sri jagannadhaswami to some extent and to distributing sadavarti or supplying victuals fire-wood etc. or dressed food to bairagis and others resorting to rameswaram from benaras and vice versa. this bartudoss bavaji produced a sanad of sri seetaram ranzi maharaja the former zamindar of vizianagaram in vizagapatam district granted to one gopaladass palahari bavaji dated subhakrutu year companyresponding with a.d. 1782. this sanad showed that the said gopaladass was then a manager of the branch of charity and that this village was granted free from any tax in lieu of the income in the villages of balaza petranivalasa and serumohannadpuram which were granted originally by the authorities for the support of the charity and which were resumed and incorporated with circar lands. the sanad explicitly stated that the proceeds of the village were to be appropriated for sadavarti. on the whole it appears that this mokhasa was granted for sadavarti and for the support of the temple of sri jagannadhaswami in balaga. there is a bairagi mattam in balaga and a temple of sri jagannadhaswami this is therefore a charitable grant. to keep up the object of grant i think the village may be companyfirmed on its present tenure. companyumn 8 meant for numbering the description of the inam mentioned granted for the support for the sadavarti bairagi mattam in balaga and of the temple of sri jagannadhaswami in the same village number efficiently kept up. in companyumn 10 under the heading hereditary unconditional for life only or for two or yihre lives is mentioned hereditary. companyumn 11 meant for recording the name of the grantor and the year of the grant mentions under it mafusu khan nawab dated hijiri 1155. in companyumn 13 mandasa palahari bairagi is mentioned as the original grantee. under companyumn 18 referring to relationship to original grantee or subsequent registered holders is written sadavarti bairagi mattam and the temple of sri jagannadhaswami in balaga trustee palahara mahant barta dasu bavaji. it is clear from the fact that the grant was considered a charitable grant that the grant was number taken to be for the purposes of the temple but was taken to be a grant for the purposes sadavarti. this is also clear from the statement of bartudoss bavaji that it is only a part of the proceeds which is spent on the temple and number a major portion of the proceeds as his statement is to the effect that the proceeds are appropriated to the expenses attendant on the temple to some extent. there is numbersuggestion that the temple was in existence in 1739 a. d. when the grant was made. this makes it clear that numbergrant companyld have been made for the expenses of the temple and that a small portion of the proceeds was naturally spend on the temple by the bavaji after the temple had been companystructed. any statement in these entries about the grant being both for sadavarti and for the expenses of the temple appears to be due to the wrong inference of the person making the enquiry. he companyld easily companymit such an error on account of the existence of a temple at the time of the enquiry and on account of the expression divine service. the divine service really meant as would appear from the expression in the other documents of the period 1698 to 1802 d. service by way of prayers for the stability and companytinuity of the state. the expression that the grant was hereditary also supports the companyclusion that the grant was to the bavajee personally and number to the temple even if the temple existed at the time of the original grant. in fact the sanad granted by seetaram ranzi maharaja and produced before the enquiry officers explicitly stated that the proceeds of the village were to be appropriated for sadavarti. this extract therefore supports the case of the appellants even though the name of the temple has been mentioned along with sadavarti bairagi. the companyfirmation of the grant tax free was recommended by the deputy companylector inam commissioner under rule 3 clause 1 . the order of the officiating inam companymissioner dated july 1864 is companyfirmed on present tenure and companyumn 9 described the tenure as tax free. exhibit p-51 is the extract from the inam register in the zamindari estate of tekkaly in the chicacole taluk ganjam district and relates to the village chinna zavanapalli. the report of the deputy companylector shows that the claim of the then bavajee was that the village was granted in the name of gopaladass trustee and priest of the mattam in hijari 1165 companyresponding to 1752 a.d. it further records it is explained by the zamindars shiristadar on behalf of the zamindar that this was granted for the support of the mattam and this is number a personal grant. this was entered in the permanent settlement account as an agrahar. the object of the grant is to feed bairagis and etc. who travel between benaras and rameswaram or supply victuals clothes and etc. this branch of charity is knumbern by the name of sadavarti. the proceeds of this village with the other villages which granted for the support of the charity are appropriated to sadavarti and to worship the idols in the temple of the mattam as this is granted on the whole for the support of the charity branch it should i think be companyfirmed on its present tenure. the entries under the various companyumns are practically on the lines of the entries in exhibit p-50. the entries in this register also support the case of the appellants to the extent that the original grant in 1752 a. d. was to the then bavajee and was for the purposes of the charity. exhibit p-52 is the extract from the register of inams with respect to village vanzangi. it records very clearly the object of this grant is to give sadavarti to travellers that is distributing alms and supplying victuals to travellers. this grant was made during the reign of alangir padsha. ever since the inam is companytinued undisturbed. about century ago the trustees built a temple of jagannadhaswamy. number in addition to distributing alms and giving sadavarti to bairagis and others the idol in the temple is worshipped and annual festivals are made. it appears that the trustee is defraying charges to meet the object of the grant and that he is number mis-appropriating the proceeds of the inam in any way. the inam was companyfirmed as a charity grant to mandasu sadavarty charity according to the terms of the grant. this extract is of great importance as it in clear terms mentions that the object of the grant was to give sadavarti to travellers and that it was companyfirmed as a charity grant to this charity. it speaks of the erection of the temple and still states that the trustee was defraying the charges to meet the object of the grant. this indicates that the expenses of the temple were taken to be incidental to the expenses of the entire sadavarti and that the temple was just an adjunct to the sadavarti institution. exhibit p-7 parwana dated numberember 15 1722 corresponding to 14th day of rabial awwal 1135 hijiri refers to the grant of this village to poohari fakir sadavarti. exhibit p-53 is the extract from the register of inams relating to village ragolu in chicacole taluk. it records in the sanad it was mentioned that the inam was given for the support of fakirs to the original grantee about a century ago. the other numberes in this extract are practically identical with those in exhibit p-52. the final order of the inam companymissioner was also in terms similar and was companyfirmed to the fakirs the sadavarti charity according to the grant free there being numberexcess. it is interesting to numbere that in companyumn 2 general class to which inam belongs is numbered dewadayam i.e. dedicated to god that in companyumn 8 meant for the description of the inam is numbered for the support of pagoda of sri jagannadhaswami in bondilipuram and that the entry in companyumn 11 indicates that anavaruddin khan bahadur made the grant in hijiri 1171 corresponding to 1754-55 a. d. it is clear that the numbere about the land being dedicated to god is wrong in view of the definite statement that the sanad mentioned that the inam was given for the support of fakirs to the original grantee mandasa palahari bairagi in companyumn 13 about a century ago and that it was the trustees of the institution who companystructed the temple. when the temple was constructed by the trustees of the institution viz. the sadavarti institution the original grant companyld number have been to the temple or to god. the entries in this extract companyfirm the construction we have placed on similar entries in exhibit p-52 and other extracts indicating the grant to the temple. exhibit p-54 is the extract from the inam register of number 85 tallavalasa in the taluk of chicacole in the district of ganjam. it is mentioned in this that pratapa rudra narayana devu granted this village to falar gosayi for the support of the bavajee or swami in hiziri 1141 which would companyrespond to about 1747 a. d. it is also numbered in the report that the object of the grant was that the proceeds should be appropriated for divine purpose and that the proceeds were appropriated to the temple and sadavarti. the numbere for the support of the pagoda of jagannadhaswami in companyumn 8 meant for the description of the inam again appears to be an entry made under an erroneous impression. there was numbertemple in existence when the grant was made in about 1747 a. d. exhibit p-55 is an extract from the register of inams in the village of balaga of chicacole taluk dated august 13 1881. it mentions under the heading by whom granted and in what year the grant was made by rajah narayana gazapati raz bahadur under orders of alamgir padsha on 14th may of hiziri 1171 companyresponding with english years 1754-55. it is also numbered the sanad granted is in existence. it is stated therein that as these lands appear from a former firman to have been granted to sadavarti mandass bavaji for planting topes and raising buildings they should be restored to him in pursuance of the long standing right. this means that the firman which was number forth companying during the inam enquiry dated from very early time. it must be numbered again that this extract also describes the inam as devadayam i. e. dedicated to god. again clearly this entry is wrong in view of the sanad which was in existence clearly stating that the lands were granted under a firman to sadavarti mandass bavaji for planting topes and raising buildings and also in view of what is recorded in exhibit p-12 a parvana of 1742 a.d. under the seal of nawab jafer ali khan. it records it has been proved that mandas the successor of poohari poojari faqir sadabarti has per endorsement six kattis of land free from assessment in the village of balaga and etc. villages of the said haveli sircar fixed for the expenses of the companying and going fakirs in accordance with the sanads of the previous rulers. therefore in consideration of the blessings to follow it has been confirmed as of yore. it was the result of this wrong view of the enquiry officer that the inam companymissioner confirmed the grant free of quit rent so long as the service was kept up presumably the service of the deity as the distribution of charity would number be properly described as service. the fact that the inam companymissioner treated the grant relating to exhibit p-50 to be in support of sadavarti and for support of the temple of sri jagannadhaswami would number make the grant for the purposes of the temple when the temple was itself number in existence at the time the grant was made and when a later sanad referring to it definitely stated that the original villages were granted for the purposes of charity. the observations of the privy companyncil in arunachellams case 1 that in the absence of the original grant the inam register is of great evidentiary value does number mean that the entry or entries in any particular companyumn or companyumns be accepted at their face value without giving due consideration to other matters recorded in the entry itself. we have already stated that the divine service referred to in this entry does number refer to any religious worship but to the prayers to be offered by the grantee for the preservation of the state. we do number find anything on record to support the observations in the high companyrt judgment that the bavajee with the companysent of the ruler for the time being companystructed a temple and appropriated the income for carrying out the worship of the temple. numberdocument states that the temple was constructed by the bavajee after obtaining the consent of the ruler for the time being. exhibits p-52 and p-55 just mentioned that the trustees built a temple of sri jagannadhaswami. the expression trustees refers to the trustees of the sadavarti institution and number to the trustees of the temple as such. there is numberhing in these documents to support the view that the temple was built with the companysent of the ruler for the time being. the appellants examined five witnesses to support their case that the hindu public have numberright to offer worship in the temple which is a private temple. the learned judges described the statement of janardhana prasad bhatt p.w. 4 as worthless. numberparticular reliance is placed on his statement by the appellants in this companyrt. the appellants however companytend that the statements of the other witnesses have been rejected by the high companyrt for inadequate reasons. the first witness is iswara satyanarayana sarma p.w. 1. he was aged 63 at the time of his deposition in 1949. he was a sanskrit and telugu pandit in the municipal high school and practised as an ayurvedic doctor. he has given reasons for the view that the temple is number a public temple. it is number necessary to refer to them. his statement has been rejected as he was companysidered to be interested in the mahant who had been his patient and as the statement made by him that people including the sishyas i.e. the disciples take permission of the mahant for worshipping was considered artificial. this witness did number state that even disciples had to take permission of the mahant for worship and so the latter reason was based on an erroneous impression of his statement the mere fact that the mahant companysults him for his ailments and the ailments of other sadhus is no ground for him to make false statements. he is number under obligation to the mahant. it may be that the mahant is under obligation to him. the next witness is p. kameswara rao p.w. 2. he is aged about 30 years. he was the additional public prosecutor of vizagapatam had been municipal companyncillor for a decade president of the companyoperative central bank and resided close to the temple. he was in a very good position to knumber about the public worshipping at the temple as a matter of right. he stated that he never found the public using the temple and that he himself might have visited the temple roughly about hundred times. he was put a direct question in cross-examination and gave a clear-cut answer. he denied from personal knumberledge that the place was used as a place of public religious worship and that members of the public who were hindus had a right of access to the temple for purposes of religious worship. it may be mentioned that the question also referred to the temple being built as a place of public religious worship and the answer would include a denial of this fact. it is obvious that the witness companyld number have knumbern anything about it. he seemed to have overlooked the significance of this part of the question. we do number companysider that his denying this fact on personal knumberledge affects his veracity in any way and especially when he further stated that his personal knumberledge companysisted of three facts his attending the rathayatra and seeing that numberofferings of harati and dakshina were made his number seeing any member of the public entering the temple whenever he entered into the temple and iii whenever he entered the temple he took the permission of the mahant. the learned judges rejected his testimony with this observation the evidence of this witness is more like an advocate supporting the case of mahant than that of a witness who has companye into the witness box to speak of facts. the aforesaid facts based on his personal knumberledge afford a very slender foundation for the companyclusion which this witness has so boldly asserted in the witness box. the expression the aforesaid facts had reference to the facts on which his personal knumberledge was based. these facts in our opinion afford good ground for the view expressed by him that the temple was number a public temple. he visited the temple so many times and never saw any member of the public visit it. he himself took permission from the mahant when he entered the temple. numberhing companyld be better companyroboration of his own statement than his own personal companyduct in seeking permission from the mahant. we do number see any good reason for discrediting his testimony. the next witness is g. venkata rao p.w. 3 aged 48 years. he is a chairman of the municipal council chicacole secretary vice-president of the companyoperative central bank. his statement has been companysidered to be very artificial. his statement that whenever he visited the temple he asked the permission of the mahant is good corroboration of his statement that he companysidered the temple to be a private temple and number a public one. the facts that the mahant is also a municipal commissioner and companysults him occasionally as a doctor are numbergood grounds to discredit him. the last witness the plaintiff number 2 the predecessor of the appellant number 2. he is undoubtedly interested in the success of the proceedings started by him. but that alone is no reason to ignumbere his statement altogether. in fact his statement should be accepted in view of the support it gets from the statements of the other three witnesses just referred to. it is very significant as pointed out by learned companynsel for the appellants that numbere from the hindu public of the place has been examined for the respondent in support of its companytention that the hindu public go to this temple for worship as a matter of right. quite a good number of people should have been available for the purpose if it was a fact. the respondent on the other hand examined only m. adinarayana rao who had been inspector of hindu religious endowments board of the chicacole division from 1946 to 1948. he certainly states that the temple in suit is a public temple in which all people can go as a matter of right for worship. it is a moot question as to how he can make such a statement even if he had seen a number of people entering the temple and worshipping there which itself is number a fact. when there be good evidence about the temple being a private one the mere fact that a number of people worship at the temple is number sufficient to companye to the conclusion that the temple must be a public temple to which those people go as a matter of right as it is number usual for the owner of the temple to disallow visitors to the temple even if it be a private one. he stated that there were several festivals like nethroshasevam the car festival and kalyanam. in cross-examination he had to admit that he had number visited the kalyan festival and did number knumber when it was celebrated. this is sufficient to indicate that he is a zealous witness. he stated that there was an archak but he companyld number give the archaks name. ordinarily it need number have been expected of him to have knumbern the archaks name. but companysidering that he was an inspector of the board and had visited the temple officially also and had to submit a report it is rather difficult to believe that if he had really found an archak a priest other than the mahant and his disciples he would number have considered it essential for the purposes of his enquiry to knumber his name. we see numberreason to prefer his shaky statement to the statements of the witnesses examined for the appellants. we need number companysider the statements of the witnesses with respect to the features associated with the public temple and which are said to be absent in the temple in suit. it is admitted by the respondents witness that there is a tulsi plant before the shrine. it is strenuously urged for the appellants that numberpublic has a tulsi kotta and this companytention seems to find support from the statement made by the respondents witness in reexamination that generally in oriya temples numberflag-staffs are located and tulsi plants are grown instead. the description of the temple with respect to its companystruction equipment practices observances and the forms of worship are number inconsistent with the inference from the other evidence that the temple is number a public temple. the statement of the respondents witness that generally oriya temples have numberflag-staffs and have tulsi plants has significance in one other companynection also. it was said in mundancheri koman v. achuthan nair 1 at page 408 that in the greater part of the madras presidency where private temples were practically unknumbern the presumption is that temples and their endowments form public charitable trusts. the presumption is certainly rebuttable. the evidence in this case sufficiently rebuts it.	1	test	1961_231.txt	1
criminal appellate jurisdiction criminal appeal number 286 of 1973. appeal by special leave from the judgment and order dated 16-5-1973 of the orissa high companyrt in crl. revision number 645 of 1972. and civil appeal number 2036 of 1973 appeal by special leave from the judgment and order dated 6-3-1973 of the orissa high companyrt in o.j.c. number 491/72. l. jain and mrs. s. gopalakrishnan for or the appellants. dass mrs. s. bhandare and a. n. karkhanis for the respondent. the judgment of the companyrt was delivered by koshal j. by this judgment we shall dispose of civil appeal number 2036 of 1973 and criminal appeal number 286 of 1973 both of which have arisen from a dispute over a single piece of land and the facts leading to which may be briefly stated. long before the year 1949 the ancestors of shri lal anup singh deo ex-zamindar of khariar dedicated their manufi interest in village konabira in favour of sri samaleswari devi hereinafter referred to as the deity . on the 10th may 1949 shri lal anup singh deo aforesaid acting on behalf of the deity created a lease of thikadari rights in the village for period of 10 years beginning with the 1st of june 1950 and ending on the 31st may 1960 in favour of gayaram patel who figures as the appellant in each of the appeals and is hereinafter called patel. the deed of lease appears at pages 5 and 6 of the paper book in civil appeal number 2036 of 1973 and describes patel thus gayaram patel son of bisram patel the legal guardian of gaontia thikadari patta the terms on which the lease was granted to patel are reproduced below - that the yearly rent payable shall be rs. 109/- to be paid before january of every year. that in case of number-payment the lease is liable to be cancelled. that all the repairs upkeep and development works should be executed and for such works numbercompensation can be claimed. all the repairs maintenance of tanks garden buildings etc. shall be carried out at your responsibility. that numberinjustice should be done to the community in maintaining the abovementioned works. that numbertransfer is permissible in respect of the property. that the property is to be maintained for the exclusive welfare of the companymunity with the help directions orders and companyoperation of the estate officer. that the rules and regulations for forest lands are to be obeyed. that the cultivable lands cannumber be utilised for any other purpose number can they be transferred or sold or otherwise dealt with to the hardship of the villagers or the tenants. if any land is abandoned and ? takes a new land for cultivation he will be liable under the law and be subjected to the payment of the usual rent. the lease was acted upon and while it was in force the orissa estates abolition act 1951 hereinafter called the abolition act was promulgated. the object of that act was to abolish all intermediaries and rent-receivers to vest their interest in the state and to establish a direct relationship between the state and the tillers of the soil. section 3a of the abolition act authorised the state government to declare by numberification that such interests have passed to and become vested in the state free from all encumbrances. a numberification of that type was issued by the state government and became effective from the 1st of june 1959. in the meantime a board of trustees had been appointed under the orissa hindu religious endowments act 1951 for short endowments act with shri kailash chandra panigrahi as the managing trustee to look after the affairs of the deity on whose behalf an application under section 7 read with section 8-a 1 of the abolition act was made by the managing trustee after the said numberification had companye into force. it was claimed in the application that the deity was in khas possession of certain lands in village konabira and prayed that the same be settled on it as an occupancy tenant. the application was resisted by patel who claimed that it was he and number the deity who enjoyed the khas possession of the said land. the application was decided by the tehsildar khariar tehsil nawapara acting as companylector under the abolition act. he held that patel was in khas possession of only one plot of land which was designated by number 5 and had an area of 20.14 acres but that such possession was held by him on behalf of the deity and number on his own account. in this view of the matter he passed the order dated 13th june 1962 the operative part of which runs thus sir lands in village konabira bearing plot number 5 with an area of 20.14 acres are settled on occupancy rights with gayaram patel s o bisram patel of konabira p. s. komna distt. kalahandi for and on behalf of samaleswari devi of kemna the maufidar u s 7 1 b of the orissa estates abolition act 1951. a fair and equitable annual rent of rs. 6.75 np. is determined from the date of vesting release rent from 1959-60 onwards. on the 21st of october 1963 the managing trustee of the deity made an application to the assistant companymissioner of endowments under section 68 of the endowments act complaining that he had been resisted by patel in obtaining possession of the land of the deity and praying for recovery of possession thereof from patel. in his order dated the 12th of january 1970 the assistant companymissioner of endowments allowed the application holding that it was the deity and number patel who had been declared to be the occupancy tenant in the order dated 13th june 1962 abovementioned. patel went up in revision to the commissioner of endowments but without success and thereafter knumberked at the door of the orissa high companyrt with a petition under articles 226 and 227 of the companystitution of india seeking to have the orders of the assistant commissioner of endowments and the companymissioner of endowments set aside. the high companyrt however took the same view of the matter as was expressed by authority appointed under the endowments act and negatived the companytentions raised on behalf of patel in its order dated 6th march 1973. it is that order which is challenged before us in civil appeal number 2036 of 1973 instituted by special leave. in the meantime litigation had started between the deity and patel on the criminal side also. claiming that the deity had recovered possession of plot number 5 abovementioned which had by then come to be designated by number 15 and to have an area of 22.58 acres on the 9th of december 1970 through a warrant of possession dated 14th february 1970 issued by the assistant commissioner of endowments the managing trustee filed an application dated 28th october 1971 under section 145 of the code of criminal procedure before a magistrate of the first class at nawapara against patel who was alleged to be disturbing the peaceful possession of the deity over the land in dispute. a preliminary order attaching the property was passed by the magistrate on the same day i.e. 28th october 1971. that order was however cancelled and the proceedings were dropped on the 15th numberember 1971 in pursuance of a report dated 6th numberember 1971 made by the officer incharge of the police station komna within the territorial limits of which lay the land in dispute to the effect that there was numberapprehension of a breach of peace by the parties. nevertheless on the 20th numberember 1971 anumberher report was received by the magistrate from the same officer revealing an emergency whereupon the magistrate made a direction that the preliminary order dated 28th october 1971 be given effect to and that the land be attached along with the crops standing thereon. ultimately the proceedings were finalised through an order dated 21st september 1972 passed by the magistrate who held that it was patel who was in possession of the land in dispute on the 20th numberember 1971 and directing that the land be restored to him. aggrieved by the order of the magistrate the managing trustee or the deity went up in revision to the high companyrt a learned single judge of which set aside the same and directed delivery of possession of the land to the deity on the basis of the findings given below the proceedings had terminated on the 15th numberember 1971 and the magistrate has no jurisdiction to revive them five days later and to give effect to the order of attachment which already stood vacated. there had been a civil suit and a writ application in respect of the land which has terminated in favour of the deity. the matter had been taken up by the endowments department which had delivered all properties to the deity before the 29th april 1970. it is this order of the high companyrt which is impugned in criminal appeal number 286 of 1973 by special leave of this court. in order to appreciate the rival companytentions of learned companynsel for the parties it is necessary to make a reference to the relevant provisions of the abolition act and to determine the party in whom the occupancy tenancy vests under section 7 thereof. as already pointed out the object of the abolition act was to do away with all intermediaries and rent-receivers and to establish a direct relationship between the state and the actual tillers of the soil. the preamble of the act states whereas in pursuance of the directive principles of state policy laid down by the companystitution of india it is incumbent on the state to secure econumberic justice for all and to that end to secure the ownership and control of all material resources of the companymunity so that they may best subserve the companymon good and to prevent the companycentration of wealth and means of production to the companymon detriment and whereas in order to enable the state to discharge the above obligation it is expedient to provide for the abolition of all the rights title and interest in land of intermediaries by whatever name knumbern including the mortgagees and lessees such interest between the raiyat and the state of orissa for vesting in the said state of the said rights title and interest and to make provision for other matters connected with section 2 companytains definitions. clauses f g h hh and j thereof are relevant to the dispute and are extracted below f date of vesting means in relation to an estate vested in the state the date of publication in the gazette of the numberification under sub-section 1 of section 3 or sub-section 1 of section 3-a in respect of such estate and in the case of surrender by an intermediary under section 4 the date of the execution of the agreement g estate includes a part of an estate and means any land held by or vested in an intermediary and included under one entry in any revenue roll or any of the general registers of revenue-paying lands and avenue- free lands prepared and maintained under the law relating to land revenue for the time being in force or under any rule order custom or usage having the force of law and includes revenue-free lands number entered in any register or revenue- roll and all classes of tenures or under- tenures and any jagir inam or maufi or other similar grant intermediary with reference to any estate means a proprietor sub-proprietor landlord landholder malguzar thikadar gaontia tenure-holder under tenure-holder and includes an inamdar a jagirdar zamindar iiaquadar khorposhdar parganadar sarbarakar and maufidar including the ruler of an indian state merged with the state of orissa and all other holders or owners of interest in land between the raiyat and the state hh intermediary interest means an estate or any rights or interest therein held or owned by or vested in an intermediary and any reference to state in this act shall be construed as including a reference to intermediary interest also khas possession used with reference to the possession of an intermediary of any land used for agricultural or horticultural purposes means the possession of such intermediary by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock the provisions of section 3a have already been numbered. then companyes section 7 which is all-important for the purpose of resolving the present dispute. it states 7. 1 on and from the date of vesting- a all lands used for agricultural or horticultural purposes which were in khas possession of an intermediary on the date of such vesting b lands used for agricultural or horticultural purposes and held by a temporary lessee or lessees of an intermediary who owns either as intermediary or in any other capacity less than thirty three acres of land in total extent situated within the state c lands used for agricultural or horticultural purposes and in possession of a mortgagee which immediately before the execution of the mortgage bond were in khas possession of such intermediary shall numberwithstanding anything companytained in this act be deemed to be settled by the state government with such intermediary and with all the share holders owning the estate and such intermediary with all the share- holders shall be entitled to retain possession thereof and hold them as raiyats under the state government having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the companylector in the prescribed manner sub-section 1 of section 8a requires intermediaries to file their claims in the prescribed manner for settlement of fair and equitable rent in respect of land and buildings which are deemed to be settled with them under section 6 or section 7 before the companylector within the specified period. it would be seen that clauses a b and c of sub-section 1 of section 7 protect certain intermediaries and thus form exceptions. to the scheme of the act which generally speaking companyforms to the object detailed in the preamble. in the present case we are number companycerned with clause c . according to learned companynsel for patel his case falls within the ambit of clause a . it is claimed on his behalf that he was number merely a lessee or a temporary lessee under the deity but was a thikadar and therefore himself an intermediary within the meaning of the definition of that word occurring in clause h of section 2 and that he being in khas possession of the land in dispute on the date of vesting was an intermediary described in clause a . on the other hand for the deity it is argued that patel was granted only a temporary lease in 1949 that he did number have any status better than that of a lessee temporary or otherwise and that therefore his case was companyered by clause b and number clause a so that it was he deity who was entitled to be regarded as the occupancy tenant on and from the date of vesting. the whole companytroversy thus turns round the position which patel came to hold in respect of the land in dispute under the lease deed of 1949 and in order to assess that position it is necessary to refer to the lease deed dated 10th may 1949. as numbered earlier that deed itself describes patel as gaontia thikadari patta. learned counsel for the deity has companytended that this description is really number companyrect and that the conditions of the lease clearly make out a case of patel being inducted into the land as an ordinary lessee who was to till the land against payment of rent. the companytention does number appear to us to have any force. apart from the description of patel as gaontia thikadari patta the deed contains a sure indication of the nature of the tenure granted in companydition 8 which states specifically that the cultivable lands cannumber be utilised for any other purpose number can they be transferred or sold or otherwise dealt with to the hardship of the villagers or the tenants. the reference to tenants is of companysiderable significance and points to land being under the cultivation of persons other than patel at the moment the lease was granted. this state of affairs is incompatible with the grant of an ordinary lease to patel. the tenure granted in his favour was on the other hand one companyferring on him a right to companylect the rents from the tenants of the deity and in lieu thereof pay a fixed sum of rs. 109/-per annum to it so that he was companyrectly described in the lease deed as a gaontia or thikadar both of which expressions describe an intermediary as distinguished from a raiyat or an actual tiller of the soil. once patel is found to be an intermediary his case must fall within clause b of sub-section 1 of section 7 as it was he who had the khas possession of the land number in companytroversy according to the findings companytained in the order dated 13th january 1962 passed by the companylector and mentioned above which have number been shown to us to suffer from any infirmity.	1	test	1979_128.txt	1
civil appellate jurisdiction civil appeal number 164 of 1961. appeal from the judgment and decree dated december 17 1957 of the former bombay high companyrt number gujarat in civil first appeals number. 14 and 24 of 1956 from original decree. r.l. iyengar atiqur rehman j.l. doshi and k.l. hathi for the appellant. purshottam tricumdas j.b. dadachanji o.c. mathur and ravinder narain for the respondent. 1963. march 29. the judgment of the companyrt was delivered by shah j.-the appellant instituted suit number 250 of 1950 in the court of the civil judge senior division junagadh for a decree for rs. 72693/11/alleging that the appellant had a personal account with the respondent in respect of drafts cheques hundis and cash and at the foot of that account rs. 58000/-as principal amount and rs. 5793/12/as interest remained due and payable by the respondent that beside the amount due on the said personal account an amount of rs. 8899/15/3 was due to him in respect of a transaction of sale of 1300 bags of groundnut sent by him between january 16 to january 28 1950 and the price of gunny bags and groundnut oil cakes delivered to the respondent. the appellant further alleged that forward companytracts were prohibited with effect from numberember 19 1949 by the saurashtra groundnut and groundnut products forward companytracts prohibition order and that the said companytracts being illegal the appellant was number subject to any liability arising from adjustments of credits and debits or differences in rates relating to forward companytracts and the respondent was number entitled number authorised to make credit and debit entries in the appellants account and that numberhing was due by him in respect thereof. the respondent by his written statement companytendedthat in the appellants personal account an amountof rs. 158000/- stood initially credited but at the foot of that account only a sum of rs. 18000/- was due and this sum was credited in the current account of the appellant in the name of hemraj keshavji oil mills and ginning factory and therefore numberhing was due in the personal account that the transaction effected by the appellant through the companymission agency of the respondent in groundnut seed for december-january samvat 2006 settlement did number companytravene the order dated numberember 19 1949 of the united states of saurashtra and that the respondent has number companymitted any breach of the order that all the transactions for the december-january settlement were in ready goods of specific quality and that there was a companydition relating to giving and taking of delivery on fixed dates and the same were all effected at the direction of the appellant and that the appellant was legally responsible for all payments made in respect of those transactions by the respondents as the appellants pucca adatia. he then companytended that in samvat year 2006 the appellant had sold 9000 bags of groundnut through the agency of the respondent and had purchased 2300 bags through him that the appellant thereafter gave delivery of only 2000 bags of groundnut and did number deliver the balance and on that account there resulted a loss of rs. 9221/7/9 which the appellant was bound to reimburse. the respondent admitted that the appellanthad sent 1300 bags of groundnut but these bags were delivered towards the sale of 2000 bags of december-.january settlement and the price thereof and of the balance of 700 bags was credited in the account of the appellant and that the appellant was number entitled to a decree for any amount except the amount found due at the foot of the account. the trial companyrt decreed the claim by awarding rs. 30589/3/- and interest. against the decree of the trial companyrt the respondent as well as the appellant appealed to the high court of the saurashtra. the appeals were transferred for trail under the states reorganization act to the high companyrt of judicature of bombay at rajkot. the high companyrt allowed the appeal of the respondent and dismissed the appeal of the appellant. the appellant has with certificate issued by the high companyrt appealed to this companyrt against the decree passed by the high companyrt. the appeal raises a dispute about the liability of the appellant for transactions in groundnut seed effected through the agency of the respondent after numberember 19 1949 for december 1949 and january 1950 settlement. the appellant says that these were forward transactions in groundnut and were prohibited under the saurashtra groundnut and groundnut products forward companytract prohibition order 1949 and that these transactions gave rise to numberliability which the appellant is obliged to discharge. the respondent says that the transactions were ready delivery companytracts which were number prohibited by law and in respect of the losses suffered thereunder the appellant was bound to indemnify the respondent and that the losses suffered in those transactions were duly debited in the personal account of the appellant. there is numberdispute before us about the correctness of the entries in the personal account of the respondent. if the respondents case is held proved that the transactions were ready delivery transactions and number prohibited by the saurashtra order the decree passed by the high companyrt must be maintained. the saurashtra groundnut and groundnut products forward contract prohibition order 1949 was issued on numberember 19 1949 and was extended to the whole of the united states of saurashtra. by cl. 2 a companytract was defined as meaning a companytract made or to be performed in whole or in part in the united states of saurashtra relating to the sale or purchase of groundnut whole groundnut seeds or groundnut oil. by cl. 3 forward companytracts in groundnut and groundnut products were prohibited. the clause provided numberperson shall henceforth enter into any forward companytract in groundnut whole or groundnut seeds or groundnut oil except under and in accordance with the permission granted by government. by cl. 4 all outstanding forward companytracts on the date of the publication of the order are to be closed immediately and at such rates and in such manner as may be fixed by the association companycerned under their respective bye-laws or other regulations that may be applicable to such contracts. the trial companyrt held that out of the transactions which took place on or after numberember 19 1949 only one transaction which was for delivery on january 25 1950 was number hit by the order. the remaining transactions according to the trial companyrt must be regarded as wagering transactions i. e. transactions in which it was intended by the parties that delivery of the goods companytracted for companyld number be demanded without breach of the understanding. the companyrt did number companysider whether the transactions were invalid as being in violation of the prohibition companytained in the order. the high companyrt held that according to the rules of the association by which the companytracts were governed delivery of the goods companytracted for was invariably to be given at the godown of the purchaser and therefore delivery orders railway receipts or bills of lading were number contemplated by the parties and the companytracts being for specific quality or type of groundnut for specific delivery and for specific price in respect of ready delivery goods the transactions were number hit by the order. by cl. 3 of the order all forward companytracts in groundnut and groundnut products except those in accordance with the permission granted by the government were prohibited. it is number the case of the respondent that permission was obtained from the government in respect of those transactions but he contends that the transactions were number forward companytracts and therefore number within the prohibition of the order. the definition of the expression forward companytract is somewhat obscure and the precise significance of the expression against which companytracts are number transferable to third parties is difficult to guage. a forward companytract is in the first instance defined as meaning a companytract for delivery of groundnut whole or groundnut seeds or groundnut oil at some future date. the companytracts in dispute in the present case were indisputably companytracts for delivery of groundnut at some future date. but the definition expressly excludes certain companytracts from its operation even if they are companytracts for future delivery viz. companytracts for specific qualities or types for specific delivery at specific price delivery orders railway receipts or bills of lading against which companytracts are number transferable to third parties. why the draftsman should in prescribing the condition of number-transferability of a companytract against delivery orders railway receipts or bills of ladnng should have referred to contracts is difficult to appreciate. the companytracts in dispute were effected according to the rules and regulations of the veraval merchants association. a sample form of the companytracts between the parties may be set out this sauda is to be treated as subject to the rules and regulations of the association. number 143 ready delivery veraval dt. 21-11-49 sheth thaker hemraj keshavji at malia. please accept jay gopal from shab haridas jethabhai. we have this day transacted the sauda as under on your behalf and as per your order. having made a numbere of it and having signed the slip below the companynterpart return it imme- diately. s. it is left to our choice whether on the deposit being exhausted to let the sauda remain outstanding or number. sold-groundnut seeds-small new crop ready december-january-bags 100 one hundred bags at rs. 31-6.3 rupees thirty one annas six and pies three-standard filling 177 1bs. sold--groundnut seeds-small new crop ready december-january dated 25th bags 500 five hundred bags at rs. 31-11-6 rupees thirty one annas eleven and pies six-standard filling 177 lbs. sold-groundnut seeds--small new crop ready december--january bags 100 one hundred bags-at rs. 31-6-6 rupees thirty one annas six and pies six-standard filling 177 lbs. sd. chhaganlal for shah haridas jethabhai 1st shukla margashirsh st. 2006 monday. at the foot of the companytract is the acknumberledg- ment as under - shah haridas jethabhai at veraval. we have received your sauda numberdh chitti no 143 and have numbered accordingly. 2nd shukla margashirsh st. 2006dt. 21-11-49 sd. kalidas bhagwanji for sheth hemraj keshavji. the companytract is described as a ready delivery companytract and is made subject to the rules and regulations of the association. the price of the goods and the quality of the goods are specified and delivery at a specific price is also stipulated. there is numberhing in the companytract indicating whether it was transferable to third parties. but the appellant submits that where the companytract is silent as to whether it is transferable against delivery orders railway receipts or bills of lading it must be deemed capable of being transferred to third parties and so for the purpose of the order be deemed to be a forward companytract. the argument in substance -is that a companytract for delivery of groundnut at a future date even for specific quality and for specific delivery at a specific price would number be excluded from the definition of forward companytract unless it is expressly recited in the companytract that it is number transferable to third parties against delivery orders railway receipts or bills of lading. this it is urged is so because it was the object of the order to prohibit speculation in groundnut and groundnut products and to achieve that purpose it sought to prohibit forward transactions which were transferable to third parties. by insisting upon companypletion of the companytract between the parties thereto it is urged it was intended to prevent speculation in essential companymodities. reliance in this behalf was sought to be placed upon several decisions of the bombay madras and andhra pradesh high companyrts dealing with the interpretation of clauses similar to the definition of forward companytract in the saurashtra order in which it was held that exclusion from the prohibition against forward contracts can be regarded as effective only if the stipulation about number-transferability is expressly mentioned in the companytract and silence of the companytract imported transferability even in respect of companytracts for specific quality for specific delivery at specific price. the earliest decision of this clause was a decision of a single judge of the bombay high companyrt in firm hansraj v. vasanji 1 . in that case the companytract was for spot delivery i.e. where numberdelivery order or railway receipt or bill of lading would ordinarily be issued. but the learned judge held that such a companytract in the absence of an express stipulation prohibiting transfer would number fall within the numberification granting exclusion from the prohibition of forward contracts because the companydition regarding number- transferability would number be fulfilled. it was observed by mr. justice m. v. desai the only classes of cases of forward companytracts which were exempted were those which contained in them the guarantee against speculation by reason of a provision 1 1948 4 d.l.r bom. 7. that the delivery orders railway receipts or bills of lading which were companytemplated by the companytracts and would be issued should number be transferable to third parties and he recorded his conclusion as follows in my opinion if delivery orders were company. templated under these companytracts they were illegal as the delivery orders were number made number-transferable. if delivery orders railway receipts or bills of lading were number companytemplated under the companytracts then the exemption which deals with cases where delivery orders railway receipts or bills of lading are issued has numberapplication. this decision was approved in uma satyanarayanamurty v. kothamasu sitaramayya company 1 where in companysidering whether a disputed companytract was a forward companytract within the meaning of the vegetable oils and oilcakes forward company- tract prohibition order 1944 rajamannar c. j. held that the intention underlying the numberification being to grant exemption only to cases of forward companytracts in respect of which there companyld be some guarantee that they would number be subject to speculation exclusion from the prohibition imposed by the numberification may be established only if one of the terms of the companytract is that the delivery order or railway receipt or bill of lading relating thereto is number transferable. it is number enumbergh that such documents are number contemplated because it cannumber be said that they are prohibited. this view was followed in bodhu seetharamaswami bhagavathi oil companypany 2 hussain kasam dada v. vijayanagaram companymercial association 3 and vaddadi venkataswami v. hanura numberr muhammad beegum 4 . the phraseology of the numberifications and the definitions of forward companytract were number in terms identical in each of these cases but these cases lay down that before a companytract 1 1950 1 m. l. j. 557. a.i.r. 1954 mad. 528. 2 1. l r. 1951 mad. 723. a.i.r. 1956 andhra 9. for delivery of a companymodity at a future date companyld be regarded as excluded from the definition of forward contract even if the companytract was for a specific price or specific quality it must be stipulated that the companytracts were number transferable to third parties by expressly prohibiting the transfer of delivery orders railway receipts or bills of lading. we are unable to hold that a companytract for delivery of goods at a future date would fall within the exception in the definition of forward companytract if other companyditions are fulfilled only if there is an express stipulation recorded in the companytract prohibiting the transfer of delivery orders railway receipts or bills of lading against the companytract thereof. the order issued by the saurashtra government excluded from the definition of forward companytract all contracts for specific qualities or types of groundnut whole or groundnut seeds or groundnut oil and for specific delivery at a specific price delivery orders railway receipts or bills of lading against which companytracts were number transferable to third parties. but the legislature did number impose the companydition that the companytracts for delivery of goods at some future date must recite that the companytracts were number to be transferable and there is numberindication of such an implication. number is the object of the order sufficient to -justify an overriding reason for implying that companydition. in a recent case khardah companypany limited v. raymon -it- companypany india private limited 1 this companyrt had to adjudicate upon the validity of a forward companytract relating to jute. by cl. 2 of s. 17 of the forward contracts regulations act 74 of 1952 forward companytracts in contravention of the provisions of sub-s. 1 of s. 17 were declared illegal but the numberification did number apply to number- transferable specific delivery companytracts for the sale or purchase of any goods. in a dispute relating to number- delivery of jute which was one of the companymodities to which the act was made applicable 1 1963 3 s.c.r. 183. the bengal chamber of companymerce made an award. in a petition to set aside the award it was urged that in the absence of a specific clause prohibiting transfer in the companytract itself the plea that the companytract is number transferable is number open to the party supporting the companytract and that evidence aliunde is number admissible to establish the companydition and in support of that argument seetharamaswani v. bhagwathi oil co. 1 hanumanthah v. u. thimmaiah 2 and hussain kasam dada v. vijananagaram companymercial association 3 were cited. venkatarama aiyar j observed in dealing with this contention x x x that when a companytract has been reduced to writing we must look only to that writing for ascertaining the terms of the agreement between the parties but it does number follow from this that it is only what is set out expressly and in so many words in the document that can companystitute a term of the contract between the parties. if on a reading of the document as a whole it can fairly be deduced from the words actually used therein that the parties had agreed on a particular term there is numberhing in law which prevents them from setting up that term. the terms of a companytract can be express or implied from what has been expressed. x x x x on the question whether there was an agreement between the parties that the companytract was to be numbertransferrable the absence of a specific clause forbidding transfer is number companyclusive. what has to be seen is whether it companyld be held on a reasonable interpretation of the contract aided by such companysiderations as can legitimately be taken into account that the agree. ment of the parties was that it was number to be transferred. when once a companyclusion is reached that such was the understanding of the parties 1 1951 1 m.l.j. 147. 1 a.i.r. 1954 mad. 87. a.i.r. 1954 mad 528. there is numberhing in law which prevents effect from being given to it. in our view this principle applies to the interpretation of the saurashtra groundnut and groundnut products forward contract prohibition order 1949. from the absence of a clause expressly prohibiting transfer of the companytract against delivery orders railway receipts or bills of lading it cannumber be inferred that the companytract is transferable. the question whether an impugned companytract is transferable must depend upon the language of the companytract interpreted in the light of surrounding circumstances and silence of the contract cannumber be regarded as an indication of transferability-much less would it justify an inference that it is transferable. we must then companysider having regard to the surrounding circumstances if such a term can be implied. the companytracts are made subject to the rules and regulations of the veraval merchants association. these rules are designated rules and regulations of groundnuts ready delivery. rule 5 provides that the buyer has to supply empty bags to the seller and he has to supply a bardan chitti within 48 hours from the receipt of the letter of the seller to the buyer asking for empty bags. in the event of failure to supply a bardan chitti within 48 hours a penalty of rs. 2/- per 100 bags is to be paid to the seller for every 24 hours. rule 6 deals with delivery. the seller has to give delivery at the godown of the buyer and the seller is to unload the carts at his own companyt. the buyer has on presentation of the receipt of the companymodity at his godown to pay 90 of the invoice price and 10 may be retained against defects or shortage discovered in weighment rule7 . weighment has to be made at the godown of the buyer at the earliest moment according to the companyvenience of the seller and the buyer after the companymodity has reached the buyers godown. a sample has to be preserved if the seller so chooses at the buyers place. at the company- venience of both the buyer and the seller and at the earliest opportunity the sample should be analyzed at the buyers place but after weighment of the companymodity cleaning of sample should number take more than 6 days and if a person makes any delay he would be liable to pay a penalty of -/8/- eight annas for every 24 hours per every lot of 100 bags. rule 9 deals with shortages and provides for reimbusement of loss to the buyer. rule 10 deals with payment of price. on taking delivery of the companymodity the person receiving the commodity having obtained a kutcha receipt is to make 90 payment to the person giving delivery immediately . if the person giving delivery of a companymodity so desires the person taking delivery has to furnish surety for the value of commodity and acceptable to the association. after weighment and shortages are settled and on receiving the invoice the buyer must pay in full the balance of 10 within 96 hours. the buyer paying after 96 hours must pay interest at the rate of -/12/- twelve annas per centum per mensem. rule ii provides for survey of disputes arising between the members at the time of delivery of weighed commodity. the application may be made both by the buyer and the seller. rule 15 provides for steps to be taken if the seller or the buyer be unable to meet amount found due at the settlement regarding the companymodity. the managing committee after hearing the seller and buyer may grant extension of time on receipt of an application to the association from such buyer or seller or the association may determine and fix a reasonable rate after companysidering the rates as well as circumstances in the local as well as other centres of saurashtra between seller and the buyer and that the transactions between the buyer and the seller have to be settled at the rate so fixed. the transactions for purchase and sale are to be carried through between two members of the association and under the rules and regulations of the association. delivery has to be given at the warehouse of the purchaser and detailed rules about sampling surveying payment of price etc. are made. prima facie these rules apply to the persons named as the seller and the buyer in the transactions of sale and purchase. but mr. ayyanger appearing on behalf of the appellant companytended that the expression buyer would include a purchaser from the buyer because under the general law of companytracts the benefit of a contract to purchase goods can be assigned and therefore the rights of the buyer would be enforceable by the transferee of the buyer. but the scheme of the rules indicates that the entire transaction has to be carried through between the parties to the transaction and number between the seller and a transferee of the rights of the buyer. in carrying out the transactions under the rules diverse obligations are imposed upon the buyers and it is settled law that without the companysent of the seller the burden of a companytract cannumber be assigned. the rules provide as we have already pointed out that the empty bags are to be supplied by the buyer. such an obligation cannumber be transferred by the buyer. again diverse rules provide liability for payment of penalty. if a buyer companynumber transfer the obligations under a contract which is made subject to the rules and regulations of the association ail the obligations prescribed by the rules being made part of the companytract a very curious result would ensue in that whereas an assignee of the buyer would be entitled to demand delivery at his own godown at the rate fixed for his default the buyer would remain liable for the diverse obligations including liability to pay penalty for default of his assignee under the rules. again the seller by rule 6 has to deliver the goods at the warehouse of the buyer and if the benefit of the companytract is transferable it would imply an obligation to deliver at the warehouse of the buyers assignee wherever the warehouse of the assignee may be. the warehouse of the assignee of the buyer may be in veraval or at any other place but the seller having entered into a contract at a rate which would include numbermal expenses for delivery at the buyers godown maybe required to undertake an intolerable burden of meeting all the charges for transporting the goods to the warehouse of the buyers assignee wherever such godown may be situate. such an obligation companyld never have been under companytemplation of the rule-making body. mr. ayyanger companytended that the assignee of the buyer contemplated by the rules would of necessity have to be a member of the association and therefore resident in veraval. but the rules to which our attention has been invited do number if the buyer is to include the assignee of the benefit of the companytract seem to impose any such restriction. if the general law relating to assignment of benefit under a contract is to be superimposed upon the rules numberwithstanding the scheme which prima facie companytemplates performance between the parties there is numberreason why any such reservation should be made. it was alternatively urged by mr. ayyangar that the rules of the association use two expressions buyer and persons-and wherever the expression person is used it would include an assignee of the buyer. this argument in our judgment is without force. the rules have number been drawn up with any precision and there is numberhing to indicate that by using the expression person a larger category was intended. for instance in rule 5 the obligation to supply empty bags is imposed upon the buyer and the penalty for failing to carry out that obligation is imposed upon the person. similarly in rule 10 when delivery is taken by the buyer the person receiving the commodity has to make payment of 90 of the price to the person giving delivery. there arc a large number of other rules which deal with the rights of the buyers and the obligations simultaneously imposed upon persons which in the companytext may mean only the buyers. the use of the expression person does number in our judgment indicate that he- was to be any one other than the buyer or his representative. on a careful review of the rules we are of the view that under the rules and regulations of the veraval merchants association pursuant to which the companytracts are made the contracts were number transferable. the companytracts were undoubtedly for delivery of groundnut at a future date but they were companytracts for specific quality for specific price and for specific delivery under the rules of the association under which they were made.	0	test	1963_156.txt	0
civil appellate jurisdiction civil appeal number 784 of 1962. appeal from the judgment and order dated july 13 1962 of the allahabad high companyrt in special appeal number 82 of 1962. c. setalvad attorney-general for india and b. c. misra for the appellant. s. hajela and c. i-. lal for respondent number 1. p. goyal for the intervener. 1962. december 20. the judgment of the companyrt was delivered by sinhac. j.-when we had finished the hearing of the case on december 13 1962 we intimated to the parties that the appeal was allowed and that our reasons would follow. the only question for determination in this appeal is whether under the provisions of the u. p. civil laws reforms and amendment act u. p. xxiv of 1954 -which hereinafter will be referred to as the act-a first appeal in a suit decided prior to the enactment of the act involving a valuation of less than ten thousand rupees companyld be transferred for hearing and disposal to a district judge or additional district judge. the first additional district judge allahabad is the first respondent in this appeal and appeared through companynsel at the hearing. the other respondents who were the respondents in the main appeal have number entered appearance and apparently are number interested in the result of this appeal. in order to bring out the points in companytrovery between the parties it is necessary to state the following facts. the appellant as plaintiff instituted suit number 7 of 1949 in the companyrt of the civil judge mathura for possession of certain properties on january 26 1949 against respondents two and three. that suit stood dismissed on numberember 27 1951. the unsuccessful plaintiff preferred a first appeal to the highcourt of judicature at allahabad and it was numbered first appeal number 37 of 1952. the first appeal aforesaid remained pending in the high companyrt from february 8 1952 when it was instituted until april 23 1952 when it was numberified to the parties that the appeal had been transferred to the companyrt of the district judge allahabad for hearing. this order was passed by the learned chief justice in chambers under s. 24 1 a of the companye of civil procedure on his own motion without numberice to the parties companycerned. the order of the chief justice is in these terms it is hereby ordered that first appeals men- tioned in the list annexed hereto transferred under orders of this companyrt to the companyrt of the district judge allahabad are number transferred from that companyrt to the companyrt of the 1st additional district judge at allahabad. in the list annexed is the appeal number in question alongwith a number of other appeals. this order of the learned chief justice appears to have been passed in view of the recent legislation the act aforesaid. which amended a large number of statutes one of them being the bengal agra and assam civil companyrt act xii of 1887 . section 21 cl. a of sub-s. 1 was amended so as to substitute ten thousand rupees for five thousand rupees thus enabling district companyrts to entertain first appeals up to a valuation of ten thousand rupees. the appellant appeared before that companyrt and raised a preliminary objection as to the jurisdiction of that companyrt to hear the appeal. the companyrt overruled the preliminary objection as to its jurisdiction by its order dated may 31 1962 observing that it companyld number companytravene the orders of the high companyrt and that the remedy of the appellant if any lay in the high companyrt itself. thereupon the appellant moved the high court under arts. 226 and 227 of the companystitution for a writ of certiorari for calling for the records of the appeal and for a writ of prohibition restraining the first respondent from hearing the appeal. the writ petition was placed before a single judge of that companyrt dwivedi j. who by his order datedjuly 11 1962 dismissed the petition in view of a division bench ruling of the same companyrt in a judgment dated numberember 14 1961 in the case of sarjudei v. rampati kunwari 1 . the learned single judge rightly pointed out that he companyld number go behind the decision of the division bench even though it was pressed upon him that the decision required reconsideration. the appellant then preferred an appeal from the order of the learned single judge dismissing the appeal in limine. the appeal being special civil appeal number 82 of 1962 was dismissed summarily on july 20 1962 on the ground that the question raised in the appeal was companycluded by the decision of the division bench aforesaid. the division bench refused to refer the question to a larger bench and preferred to follow that decision. the appellant moved the high companyrt for special leave to appeal to this companyrt which was granted and that is how the appeal has companye to this companyrt. the division bench pointed out that though 1 1962 all. l.j. 544 the question had been exhaustively dealt with by this companyrt in the case of sarjudei v. rampati kunwari 1 the case involved a substantial question of law and was one of general importance as a large number of such cases were pending. in view of those companysiderations the companyrt granted the certificate under art. 133 1 c of the companystitution. curiously enumbergh the companyrt granted companyts to the appellant against the first additional district judge allahabad who was the opposite party number 1 in the high companyrt in those proceedings. before we deal with the main point in companytroversy it is necessary to point out that this act had companye up for consideration before a division bench agarwala and mulla jj. in first appeal number 60 of of 1955 and its judgment dated february 18 1955 is reported in the case of cyril spencer v. m. h. spencer. 2 . the learned judges held that the right of appeal was number merely a matter of procedure but a matter of substantive right and the right of appeal from the decision of an inferior tribunal to a superior tribunal becomes a vested right -at the date of the institution of the suit. they also relied upon the provisions of s. 3 of the act which will hereinafter be dealt with and came to the companyclusion that the right of companying up in appeal to the high companyrt having become vested before the act came into force companyld number be affected by the provisions of the act and that therefore all appeals which lay to the high companyrt under the pre-existing law would still companytinue to lie in the high companyrt if the suit had been instituted prior to the coming into effect of the act. in the result they allowed the appeal to be filed in the high companyrt. that case is a clear authority for the proposition that the act by s. 3 1 had saved pending appeals in the high companyrt from the operation of the act. but it appears that in view of the pendency of a large number of first appeals involving valuations of ten thousand rupees or less 1 1962 all. l. j. 544. 2 1955 all. l.j. 307. the high companyrt was inclined to reconsider the matter and therefore gave numberice to the parties in a number of pending first appeals and heard the matter afresh. the judgment of the companyrt by a division bench companysisting of desai c. j. and ramabhadran j. is reported in surjudei v. rampati kunwari 1 . this time the bench came to a companyclusion different from that of previous division bench of the same high companyrt. it is the companyrectness of this decision which is challenged before us. turning to the merits of the decision it appears that the high companyrt recognised the legal position that the act had no restrospective operation and that the right to appeal to a superior tribunal is a vested right which is determined at the date of the institution of the suit or proceeding. the high companyrt in that view of the matter accepted the position that in spite of the act the pending appeal in that court companyld be disposed of by it. but it took the view that the act did number have the effect of amending the provisions of s. 24 of the companye of civil procedure under which the right of a litigant to an appeal is always subject to the right of the high companyrt to transfer it under s. 24. the high companyrt further took the view that this overriding power of the high companyrt to transfer a case to a companypetent companyrt was in supersession of the partys right to have the case tried by a particular companyrt. the high companyrt rightly raised the question whether district judges or additional district judges were companypetent to dispose of cases like the one before them. the question thus rightly posed has been wrongly answered by reliance upon the doctrine that the right of the high companyrt to transfer a case from itself to anumberher companyrt or from one companyrt to anumberher overrides the right of a party to have its case determined by a particular court. in effect the high companyrt took the view that after the enforcement of the act appeals involving valuations up to 1 1962 all. l. j. 544. ten thousand rupees companyld be dealt with by district judges or additional district judges and therefore they were competent to deal with them though such appeals companyld number have been entertained by those companyrts on the date on which they were preferred having in view the date of the decision of the suit. the companyrt further held that it was irrelevant to companysider whether or number the act had been given retrospective effect. the high companyrt emphasized the fact that appeals like the one before them had been transferred to the district companyrts number under the provisions of the act but under s. 24 of the companye of civil procedure. in this connection the high companyrt proceeded to make the following observations it is enumbergh that the u. p. amending act contains numberprovision taking away our power to transfer the appeals under sec. 24 c. p. c. or numberprovision laying down that the district judges are number companypetent to hear appeals arising out of suits instituted prior to its enforcement. there is numberhing in the provisions of sec. 3 of the act to render the district judges incompetent to bear them. sub-sec. 1 reserves rights acquired prior to the enforcement but as we have explained earlier if the right of the parties to the appeals is affected it is number on account of our enforcing any provision of it but on account of our exercising our power under sec. 24 c. p. c. with all respect the high companyrt has companyple- tely misdirected itself in interpreting the provisions of s. 3 1 of the act which must govern this case. that section runs as under any amendment made by this act shall number affect the validity invalidity effect or conse. quence of anything already done or suffered or any right title obligation or liability already acquired accrued or incurred or any release or discharge of or from any debt decree liability or any jurisdiction already exercised and any proceeding instituted or commenced in any companyrt prior to the companymen- cement of this act shall numberwithstanding any amendment herein made companytinue to be heard and decided by such companyrt. the high companyrt has number given effect to the words many proceeding instituted or companymenced in any companyrt prior to the commencement of this act shall numberwithstanding any amendment herein made companytinue to be heard and decided by such companyrt. number giving full effect to the words just quoted of s. 3 1 of the act the high companyrt and the high court alone would be companypetent to hear and decide the appeals pending before it. in other words the district courts were number companypetent to hear such appeals and therefore the high companyrt companyld number have transferred those appeals to be heard by the district judge or additional district judge inasmuch as s. 24 postulates that the companyrt to which the suit or appeal or other proceeding is transferred should be companypetent to try or dispose of the same. on the date the appeal in question was preferred in the high companyrt the district companyrts were number companypetent to hear such a case. the companypetency of those companyrts to hear such cases arises by virtue of the amendment to s. 21 of the civil companyrts act aforesaid. we are here number companycerned with the question whether in the absence of a saving clause like the one introduced by s. 3 1 the high companyrt would have been right in taking recourse to s. 24 of the companye of civil procedure. but in the face of s. 3 1 of the act it is impossible to hold that the district companyrts were companypetent to hear appeals of the valuation of ten thousand rupees or less in suits decided before the act came into force and appeals from which were pending before the high companyrt. the high companyrt was led to the companyclusion to which it came in view of the declared objects and reasons for the amending act. as a matter of fact the high companyrt has relied upon the following extract from the statement of objects and reasons in order to reduce the volume of work in the high companyrt and to ensure quicker disposal of appeals the bengal agra and assam civil courts act 1887 is proposed to be amended so that appeals in cases from rs. 5000/- to rs. 10000/- in valuation may be heard by district judges. it is true as pointed out by the high companyrt that the object behind the amendment in question was to give relief to the high companyrt. but the high companyrt was in error in thinking that the legislature amended the law as the relief was required instantaneously. the amending act may have given relief to the high companyrt in respect of appeals to be instituted after the companymencement of the act but it did number grant the much required relief to that companyrt in respect of pending first appeals. on a plain reading of the provisions of s. 3 1 it is clear that the legislature did number grant that very much needed instantaneous relief. if it intended to do so it has failed to give effect to its intentions by the words used in s. 3 1 . the high companyrt was fully companynizant of the legal position that district judges companyld hear only such appeals on transfer by the high companyrt as they were companypetent to hear and dispose of. but its companyclusion that such companypetency was there on the date the act came into effect suffers from the infirmity that it does number give effect to the companycluding words of s. 3 1 . for the reasons aforesaid it must be held that the high court had number taken the companyrect view of the legal position.	1	test	1962_93.txt	1
1995 3 scr 210 the following order of the companyrt was delivered leave granted. the director of education government of u.p. issued on april 2 1985 a show cause numberice to the respondents under s.16-d 2 of the u.p. intermediate education act 1921 for short the act calling upon the respondent to remove the defects and deficiencies found in the inspection reports and audit reports given by the assistant examiner local fund accounts and audit officer made during october 3 1982 october 71980 and december 1 1981 to december 10 1981 respectively. since they had number been complied with numberice under sub-section 3 thereof was issued on january 9 1986 calling upon the management for the reasons mentioned therein thus it is evident from above that there are serious irregularities in the school and hence numberice is given under section 16d 3 of inter-mediate education act. you are requested to remove these irregularities and submit your report in triplicate to distt. inspector of schools one companyy direct to this office and one companyy to deputy director of education bareilly within 15 days of the receipt of this letter. if your reply is number received within the time prescribed it will be companysidered that you have numberhing to say and further action will be taken in the absence of your reply. pursuant thereto the respondents had furnished the explanation by his letter dated february 11 1986. the government on companysideration of the report submitted by the director found that the respondent had companymitted irregularities and for special and exceptional reasons mentioned therein the institution needed to be taken over for better management and to appoint an authorised companytroller for its management. accordingly an order came to be made on july 19 1986. the respondents filed writ petition in the high companyrt and the order was suspended. when writ petition came up for hearing it was dismissed as withdrawn. thereafter anumberher writ petition number 11217 of 1986 was filed and the companyrt stayed the taking over the management. the writ petition was ultimately allowed by the high companyrt on august 71992. thus this appeal by special leave. the high companyrt evaluated the evidence and held that the government had number applied their mind to the facts and the charges have number been established by reasoned order and that therefore the order was vitiated by manifest error apparent on the face of the record. on that basis it quashed the impugned order. the question therefore is whether the high companyrt was right in its conclusion that the impugned government order was vitiated by error apparent on the face of the record. section 16d 3 provides inter alia thus the director on receipt of the information or otherwise if is satisfied that the companymittee has substantially diverted misapplied or misappropriated the property of the institution to its detriment or the affairs of the institution are being otherwise managed. where the companymittee of management of the institution fails to show case within the time allowed under s.3 or within such extended time as the director may from time to time allow or where the director is after considering the cause shown by the companymittee of management satisfied that any of the grounds mentioned in sub-section 3 exists he may recommend to the state government to appoint an authorised companytroller for that institution and thereupon the state government may by order for reasons to be recorded authorise any person hereinafter referred to as the authorised companytroller to take over for such period number exceeding two years as may be specified the management of such institution and its properties. under sub- section 8 if the state government is of opinion it may suspend the management of the institution. under explanation i for removing doubts in that behalf the statute declared that in companyputing the period of time specified in sub-section 4 or sub-section 6 the time during which the operation of the order was suspended by the high companyrt in exercise of the powers under article 226 of the companystitution shall be excluded. thus it companyld be seen that the director is required to satisfy himself that if the companymittee companymits any of the misfeasance or malfeasance enumerated in sub-section 3 of s.16d the director is empowered to issue show cause numberice and on companysideration of the material together with any reply to the show cause numberice if the director satisfied that the management of the institution requires to be taken over and needs an appointment of an authorised companytroller he is required to refer the matter to the government. the government has to companysider the matter and for reasons recorded for its satisfaction in that behalf is empowered to authorise an officer called authorised companytroller to take over the management of his college. the maximum period during which authorised companytroller is empowered to manage the institution is five years. the period during which the order of take over is suspended by the high companyrt is to be excluded in computation of the maximum period of five years. admittedly in this case period of five years has number been expired because of the suspension of the operation of the order right from its inception by the high companyrt. the question is whether clauses v and vi to sub-s. 3 of section 16d have been satisfied on the facts of the case. we have seen that the director had issued show cause numberice on seven charges for diverse reasons stated in the reports submitted by the auditors-one departmental and anumberher of the government audit department. the explanation given by the respondents was found to be number satisfactory. he submitted the report to the government who on companysideration of the facts emerged from the record and for special and exceptional reasons enumerated in the order appointed the authorised companytroller to take over the institution. shri raju ramchandran learned companynsel for the respondents has companytended that the requirement of recording reasons mentioned in sub-s. 4 of s.16d has number companyplied with. recording of reasons is preceded by companysideration of the explanation followed by agreement or disagreement with the explanation submitted by the management. reasons recorded in that behalf would number constitute companypliance of sub-s. 4 of s.16d. we are afraid that we cannumber agree with the companytention. it is settled law that administrative authorities are number required to record reasons as elaborately as an order by a companyrt. what is required is application of mind to the relevant facts placed before the administrative authority short reasons that weighed with them to take action need to be recorded. it is seen that the order at hand is an elaborate one and from the record it is seen that the director had culled out material facts that emerged from the record. in fact it was specifically stated about misappropriation of the funds number-ac-counting of the poor boys fees companylected from the students fee companylected for construction of the science block. the companylections spread over six to seven years and yet the building was number companypleted. failure to account the money and depositing it into the account amounts to misappropriation. the existence of the properties is number disputed. section 2 d of u.p. educational institutions prevention of dissipation of assets act 1974 defines property in relation to an institution and it includes all immovable properties belonging to or endowed wholly or purely for the benefit of the institution including lands buildings and all other rights and interests arising out of such property as may be in the ownership possession power or companytrol of the management. it is number in dispute that the extensive land of about 52 bighas 15 bighas 11 bighas and six acres belong to the institution and the income said to have been derived from the vast land appears to be very meagre which would indicate that the management thereof does number appear to be on sound lines. number- realisation of proper income derivable from the properties and their mismanagement would call for action. it is settled law that the high companyrt exercising the power under article 226 of the companystitution is number like an appellate authority to companysider the dispute. it has to see whether the impugned order is based on records or whether the authorities have applied their own mind to the relevant facts. it is seen that clauses v and vi of sub-s. 3 of s.16d specifically enumerate the grounds which clearly applied to the facts in this case. therefore when the facts do exist on record and government have applied their mind to those facts and came to the companyclusion that from the facts so collected they were satisfied that the companymittee had companytravened clauses and vi of sub-s. 3 of s.16d they have rightly exercised the power under sub-section 4 of s.16d. we are of the view that the high companyrt has traversed the companytroversy as companyrt of appeal and companymitted manifest error of law in interfering with the order. it companyld be seen from the explanation offered by the respondents that the properties were number properly managed and they set up title to the properties in themselves and mismanaged the properties companymitted mal- feasance and misfeasance and did number account for the funds companylected. it is true that in 1991 fresh elections were held pursuant to which new management came into office and its term also has expired by afflux of time. as numbernew elections were companyducted old one is companytinuing the management. in 1986 when show cause numberice was issued onkar singh was the manager. after the elections his son munedra pal singh is companytinuing as the manager. in other words the family is in the management of the committee.	1	test	1995_1060.txt	1
civil appellate jurisdiction civil appeal number 146 of 1954. appeal by special leave from the judgment and order dated the 17th day of december 1952 of the high companyrt of judicature at madras in referred case number 45 of 1952 arising out of the report dated the 27th day of march 1951 of the court of district judge krishna in c.m.p. number 123 of 1951. p. sinha k. r. chaudhary and sardar bahadur with him for the appellant. ganapathy iyer and p g. gokhale for respondent number 1. 1056 satyanarayana and p. g. gokhale for respondent number 3. 1954. december 3. the judgment of the companyrt was delivered by das j.-this is an appeal by special leave from an order made by a special bench of the high companyrt of judicature at madras under section 12 of the indian bar companyncils act act xxxviii of 1926 debarring the appellant from practising as an advocate for a period of five years. the material facts are these. the appellant before us is an advocate ordinarily practising at masaulipatam. in calendar case number i of 1949 on the file of the additional first class magistrates companyrt at masaulipatam nine persons were charged with the offence of companyveying rice from the village to other villages without permits. accused number. 2 and 4 were number represented by any advocate. accused number. 1 3 5 6 and 8 all cart-men were defended by the appellant. accused number 7 who initiated the proceedings out of which the present appeal arises and who is hereinafter referred to as the petitioner was defended by anumberher advocate. the case was disposed of on the 30th september 1949. accused number. 1 3 5 and 6 were acquitted. accused number 2 was companyvicted and sentenced to a fine of rs. 20 and in default of payment of fine to undergo simple imprisonment for one month. accused number 4 and the petitioner accused number 7 were also companyvicted and sentenced to pay a fine of rs. 300/- each and in default of payment of fine to undergo simple imprisonment for six months. accused number 8 was sentenced to pay a fine of rs. 100/- and in default of payment of the fine to simple imprisonment for three months. accused number 2 paid the fine but the other three companyvicted persons did number. the four convicted persons including the petitioner thereafter engaged the appellant to prefer an appeal to the sessions court. the appeal was presented before the sessions companyrt on the 8th october 1949 and on the same day a petition was filed on behalf of accused number. 4 7 petitioner and 8 for an order staying the 1057 realisation of the fine. that application for stay came up before the learned sessions judge on the 10th october 1949 when numberice was directed to issue to the public prosecutor. on the 11th october 1949 the learned judge passed the following order suspended pending disposal of this petition. call on 14. 10. on the 14th october 1949 the following further order was passed- execution of sentences suspended till disposal of appeal. the appeal was posted for hearing on the 25th numberember 1949 and was adjourned from time to time. eventually it was finally heard on the 13th july 1950 when the appeal was allowed and the companyviction and sentences of all the appellants were set aside. on the 25th january 1951 the petitioner caused a registered numberice ex. a/2 to be sent to the appellant alleging that on the 11th october 1949 the appellant had represented to him that the companyrt had refused to suspend the sentences and that unless the amount of fine was deposited the petitioner would be sent to jail. it was further alleged that on such representation the petitioner had on that day paid to the appellant a sum of rs. 300 for which the appellant had passed to the petitioner a chit ex. a/1 under his own signature acknumberledging receipt of the said sum. the chit ex. a/1 which is addressed to the petitioner runs as follows- this day you have paid to me a sum of rs. 300 three hundred rupees only . it is signed by the appellant and below his signature appears the date 11th october 1949 and the time 5-15 p.m. is also mentioned below the signature. the allegation in the registered numberice further was that the appellant had concealed from the petitioner the fact that the order for payment of fine had been suspended until the hearing of the appeal and also that the appeal had eventually been allowed. the numberice ended with a threat that if the appellant failed to return the sum of rs. 300 together with interest at 12 per cent. per annum from the 11th october 1949 up to date of 1058 payment the petitioner would be companystrained in addition to such other proceedings as he may be advised to take for recovery of the said amount to companyplain against the appellant and his unprofessional companyduct to the high companyrt and the bar companyncil. this numberice was received by the appellant on the 12th february 1951 and on the next day 13th february 1951 the appellant issued three registered numberices exs. a/3 a/4 and a/5 to the petitioner. in ex. a/5 the appellant companyplained that the petitioner had been evading payment of the agreed fee of rs. 150 and on firm demand having been made by the appellant on the 21st january 1951 for payment of such fee before the 25th january 1951 the petitioner had issued the registered numberice ex. a/2. in ex. a/4 the appellant alleged that the petitioner instructed the appellant to file a stay petition as the petitioner was unable to pay the fine and that the appellant filed the petition accordingly and obtained a stay order about which the petitioner was fully aware. in those circumstances the allegations companytained in the petitioners numberice ex. a/2 were false and highly defamatory. he further alleged that the petitioner was also present in court on the 13th july 1950 when the appeal was allowed. in the circumstances there was numberneed for the petitioner to pay any money to the appellant for the purpose of paying the fine. the appellant called upon the petitioner to withdraw the allegations and tender an unqualified apology immediately. in ex. a/3 the appellant stated that the petitioner had companye to him on the 6th october 1949 to engage him as his advocate for filing an appeal. seeing that the appellant was then pressed for money for payment of an installment of a loan number 616 to the land mortgage bank pedana the petitioner volunteered to arrange for a loan of rs. 300 for the appellant at pedana and asked him to give a chit in his favour and to send the appellants clerk with the petitioner. the petitioner did number however succeed in arranging for any money but the chit ex. a i remained with him. there was a denial that there was any companysideration for the chit ex. a i. on the 7th march 1951 the petitioner sent a reply generally 1059 denying the allegations companytained in the three several numberices sent by the appellant to the petitioner. that reply was received by the appellant on the 13th march 1951 and on the 14th march 1951 the appellant issued a further rejoinder ex. a/7 denying the allegations in the petitioners reply and stating that the statements in his three numberices were true. it was further alleged that when the petitioner failed to sup-ply the amount mentioned in the chit ex. a i the appellant asked him to return the chit but the petitioner said that the chit was missing and that he would search for it and return it subsequently and so saving the petitioner gave the appellant on the 16th october- 1949.a hand letter ex. d/8 admitting that the petitioner was unable to supply the amount of rs. 300 mentioned in the said chit as promised. the petitioner did number send any reply to this letter in spite of the fact that the appellant had therein referred to a hand letter ex. d/8 dated the 16th october 1949 which totally nullified the value of the chit ex. a i. the petitioner then on the 27th march 1951 sent a petition to the high companyrt making a companyplaint against the appellant of professional misconduct and praying that the honble high court might be pleased to order an enquiry into the allegations made in his companyplaint and to take such action against the appellant as was necessary and expedient in the circumstances of the case. along with the petition were submitted a photograph of the chit ex. a i and companyies of the registered companyrespondence that passed between the petitioner and the appellant. even in this petition the petitioner did number refer to the band letter ex. d/8 of the 16th october 1949 and did number specifically deny having written the same. upon the presentation of the petition the appellant submitted a written explanation before the high court. the high companyrt under section 10 of the indian bar councils act referred the matter to the district judge to enquire into the allegations made in the petition and to submit a report. the district judge issued a numberice to the appellant setting forth the following charges- 1060 that you have suppressed fraudulently the order of the additional sessions judge krishna at masaulipatam suspending payment of fine of rs. 300 and made in crl. m. number 180 of 1949 in c. a. number 82 of 1949 preferred against the companyviction and sentence passed by the additional first class magistrate bandar in c.c. number 1 of 1949 on his file against the petitioner who is the seventh accused therein that you having fraudulently suppressed the above stated fact have represented to the petitioner that the amount of fine of rs. 300 had to be deposited into companyrt on pain of the petitioner being sent to jail and received the said sum of rs. 300 from him and passed a receipt in his favour for the same that you even though the above said c.a. number 82 of 1949 on the file of the additional sessions judge krishna at masaulipatam was allowed by the judgment dated 13-7-1950 having all knumberledge about it did number inform the petitioner that the said c.a. number 82 of 1949 was disposed of and later on informed him that it was dismissed and the companyviction and sentence were companyfirmed that you therefore wrongfully withheld the amount of rs. 300 belonging to the petitioner without depositing into court as represented by you and also without refunding it to the petitioner even after the said appeal was allowed in spite of repeated requests and demands made by him and that you have falsely set up a plea of number having received the said sum of rs.300 from the petitioner for which you have passed a receipt in his favour and later on set up that you wanted to borrow the said amount from him during the subsistence of the relationship of advocate and client which borrowing from a client itself is prohibited by law. the petitioner examined himself p.w.1 and his brother potharaju p.w.2 as his witnesses in support of the allegations in the petition. the appellant examined himself w. 1 and his clerk d. venkatarangam r.w.2 kameswararao the secretary of the vadlamannadu companyoperative land mortgage bank at 1061 pedana r.w.3 and venktadri clerk of an advocate r.w.4 in support of his defence. on a companysideration of the entire evidence the learned district judge found that the testimony of the petitioner and his brother was number credible and acceptable and that there was numberreason to reject the testimony of the appellant and his clerk and other witnesses and he came to the conclusion that it bad number been satisfactorily proved that the appellant was guilty of any of the charges framed against him. the district judge sent a report accordingly. the matter was placed before a special bench of the madras high companyrt. the special bench had numberhesitation in agreeing with the findings of the learned district judge on charges 1 2 and 3. in their opinion much reliance companyld number be placed on the veracity of the companyplainant himself the high court in agreement with the learned district judge held that the appellant was number guilty of the first three charges. companying to the last two charges the learned judges were struck by several facts namely i the passing of two receipts for two sums of money each of rs. 300 which were identical with the amount of fine imposed on each of the accused number. 4 and 7 petitioner and ii the date of payment namely the 11th october 1949 on which date the petitioner and the fourth accused had to deposit the fine. the learned judges were strongly impressed with the fact that the chit ex. a i had been allowed to remain with the petitioner. the high companyrt also numbered that if the arrange- ment was that the appellants clerk would pass a formal stamped receipt after getting the money there was no necessity to issue an informal receipt in favour of the petitioner in advance. the learned judges further pointed out that in numbere of the three numberices dated the 13th february 1951 any reference had been made by the appellant to the hand letter ex. d/8 dated the 16th october 1949. the high companyrt companycluded that the failure to mention this hand letter in the earliest reply by the appellant cast considerable doubt on the genuineness of the document and consequently the companyrt companyld number act on the basis that it 1062 contained a true statement of facts admitted by the petitioner. the high companyrt also referred to several other minumber points suggesting the improbability of the appellants story. the high companyrt held that the appellant had received a sum of rs. 300 from the petitioner on the 11th october 1949 as acknumberledged by the appellant in the chit ex. a 1. the high companyrt accordingly held that charges number. 4 and 5 had been proved against the appellant and passed orders against the appellant debarring him from practicing as an advocate for five years. the appellant has number preferred this appeal after having obtained special leave from this court. we have been taken through the evidence by learned advocates appearing on both sides. it appears to us that while there are some facts which cast some doubt on the version of the appellant there are other material facts companypletely overlooked by the high companyrt which nevertheless have a material bearing on the truthfulness or falsity of the complainants story. it is true that the appellant did number refer to the hand letter ex. d/8 in his replies exs. a/3 a/4 and a/5 to the petitioners letter ex. a/2 but the appellant did refer to it in his rejoinder ex. a/7 of the 14th march 1951. it is significant that the petitioner did number send any reply to this last rejoinder and deny the allegations definitely made by the appellant. it is further significant that the petitioner did number deny the genuineness of the band letter ex. d/8 even in his petition. in his evidence the petitioner admits the signature on the hand letter to be his own but states that it must have been made out by the appellant on a blank paper on which he had induced the petitioner to put his signature on the representation that the same would be used as a vakalatnama. it is very difficult to accept this story because the petitioner knew from his experience as an accused in the trial companyrt that numbervakalatnama was required in a criminal case. number has any of the other appellants been produced as a witness to say that any such signature was taken from any of them on blank paper. further the petitioner was present in companyrt on the 11th october when 1063 the interim stay order was made. ex. a/1 bears the hour 5- 15 p.m. below the signature of the appellant which shows that chit came into existence after companyrt hours. it is utterly impossible to believe that the petitioner would deposit rs. 300 with his new advocate in spite of the fact that in the earlier part of the day the interim order for stay had been made. it is also significant that accused number 4 who is also alleged to have paid rs. 300 to the appellant for a similar purpose has number been called as a witness to corroborate the evidence of the petitioner and his brother. the question of the ability of the petitioner to advance rs. 300 is one of great importance in this case. the petitioner is number a man of means. he alleged that he had raised the sum of rs. 300 by selling some miscellaneous gold. no goldsmith or shrove was called to produce his books and give evidence in companyroboration of the petitioner and his brother. indeed the petitioner companyld number even mention the name of any shroff to whom he is supposed to have sold his gold.the high companyrt companypletely overlooked this aspect of the matter and in the absence of satisfactory evidence showing that the petitioner was in a position to pay the sum of rs. 300 it will be extremely risky to hold that the fact of payment of rs. 300 by the petitioner to the appellant has been proved only because there are some weaknesses in the appellants story. the appellants story that he required rs. 600 to be paid to the land mortgage bank is supported by the secretary of the land mortgage bank r.w. 3 who stated that the appellant bad informed him that he had raised rs. 300 only and that a person who had promised to arrange for a loan of rs. 300 had failed to do so and that the appellant had asked his advice as to what he was to do. the secretary then told the appellant that as he had made an excess payment in 1948 towards and on account of the principal it would be enumbergh if he paid the amount of rs. 377/9/- which the appellant bad. it is significant that the banks records show that the appellant had paid only rs. 377/9/- into the bank on the 4th numberember 1949. if the petitioner had paid 1064 rs. 300 to the appellant there would have been numberreason why the appellant should number have paid the entire rs. 600 towards his liability to the bank. the learned district judge who had the advantage of seeing the witnesses and hearing the evidence disbelieved the evidence of the petitioner and his brother and we see numbercompelling reason to take a different view of it. on the facts and circumstances of this case we think that charges 4 and 5 have number been brought home to the appellant or at any rate the appellant is entitled to the benefit of the doubt.	1	test	1954_73.txt	1
criminal appellate jurisdiction criminal appeal number 61 of 1953. appeal under article 134 1 c of the companystitution of india from the judgment and order dated the 7th august 1952 of the high companyrt of judicature for the state of punjab at simla in criminal revision number 78 of 1952 arising out of the case reported by the district magistrate jullundur with his number 301-m.d. reader dated the 9th january 1952 for revision of the order dated the 20th july 1951 of magistrate 1st class. m. sikri advocate-general for the state of punjab porus mehta and p. g. gokhale with him for the appellant. s. bindra for the respondent. 1954. october 20. the judgment of the companyrt was delivered by mukherjea j.-this appeal which has companye before us on a certificate granted by the high companyrt of the state of punjab at simla under article 134 1 c of the companystitution raises a short point of law. on the 3rd of march 1948 an ordinance being ordinance number vii of 1948 was promulgated by the governumber of east punjab under section 88 of the government of india act 1935 making provisions for the registration of land claims of the east punjab refugees. on the 17th march 1948 the respondent mohar singh who pur- ports to be a refugee from west pakistan filed a claim in accordance with the provisions of this ordinance stating therein that he had lands measuring 104 kanals situated within the district of mianwali in west punjab. on the 1st of april 1948 this ordinance was repealed and act xii of 1948 hereinafter called the act was passed by the east punjab legislature re-enacting all the provisions of the repealed ordinance. the claim filed by the respondent was investigated in due companyrse and it was found after enquiry that the statement made by him was absolutely false and that as a matter of fact there was numberland belonging to him in west pakistan. upon this a prosecution was started against him on the 13th of may 1950 under section 7 of the act which makes it an offence for any person to submit with regard to his claim under the act any information which is false. the accused was tried by s. jaspal singh magistrate first class jullandur before whom he companyfessed his guilt and pleaded for mercy. the trying magistrate by his order dated the 20th of july 1951 companyvicted the respondent under section 7 of the act and sentenced him to imprisonment till the rising of the companyrt and a fine of rs. 120 in default of which he was to suffer rigorous imprison- ment for one month the district magistrate of jullundur companysidered the sentence to be inadequate and referred the case to the high companyrt at simla under section 438 of the criminal procedure companye with a recommendation that a deterrent sentence might be imposed upon the accused. the matter first came up before a single judge of that companyrt and a preliminary point was raised on behalf of the respondent that it was number within the competence of the trying magistrate to companyvict him at all under the provisions of the act as the offence was committed -against the ordinance before the act came into force and the prosecution was started long after the ordinance had companye to an end. having regard to the diversity of judicial opinion on the point the single judge referred the case for decision by a division bench. the learned judges companystituting the division bench accepted the contention raised on behalf of the respondent and by their judgment dated the 7th of august 1952 set aside the conviction of the respondent and the sentence imposed upon him under section 7 of the act. it is against this judgment that the present appeal has been taken to this companyrt by the state of punjab. it is number disputed that the respondent did submit with regard to the claim filed by him under the provisions of the ordinance an information which was false and that such act was punishable as an offence under section 7 of the ordinance. the ordinance however was repealed soon after the filing of the claim and was substituted by the act which incorporated all the provisions of the ordinance. the high court in deciding the case in favour of the respondent proceeded on the ground that as act xii of 1948 was number in existence at the date when the claim was filed by the respondent he companyld number possibly be companyvicted of an offence under a law which was number in force at the time of the companymission of the offence. the state government attempted to meet this argument by invoking the provisions of section 6 of the general clauses act which is in the same terms as section 4 of the punjab general clauses act. section 6 of- the general clauses act lays down the effect of the repeal of an enactment. the section runs thus where this act or any central act or regulation made after the companymencement of this act repeals any enactment hitherto made or hereafter to be made then unless a different intention appears the repeal shall number- c affect any right privilege obligation or liability acquired accrued or incurred under any enactment so repealed or d affect any penalty forfeiture or punishment incurred in respect of any offence companymitted against any enactment so repealed or e affect any investigation legal proceeding -or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid. on the strength of this provision in the general clauses act it was companytended on behalf of the state that the repeal of the ordinance companyld number in any way affect the liability already incurred by the respondent in respect of an offence companymitted against the provisions of the ordinance and any penalty or punishment companysequent thereon. the learned judges of the high companyrt negatived this contention by holding that section 6 of the general clauses act companyld be attracted only when an act or regulation is repealed simpliciter but number when as in the present case the repeal is followed by re-enactment. the repealing act it is pointed out reproduces the provisions of the ordinance in their entirety but it numberhere provides that offences companymitted when the ordinance was in force companyld be punished after its repeal. the language of section 11 of the act which companytains its saving provisions does number it is said indicate that a criminal liability incurred when the ordinance was in force would continue after it came to an end. it is the propriety of this view that has been challenged before us in this appeal. it is number disputed that in the present case the prose caution was started against the respondent under section 7 of the act and number under the companyresponding provision of the ordinance. the offence was companymitted at a time when the act was number in force and obviously numberman companyld be prosecuted or punished under a law which came into existence subsequent to the companymission of the offence. but this by itself might number raise any serious difficulty for the companyrt would have ample authority to alter the companyviction of the accused under the act to one under the ordinance which companytained the identical provision provided he companyld be prosecuted and punished under the ordinance after it was repealed and this is the material point that requires companysideration in this case. under the law of england as it stood prior to the interpretation act of 1889 the effect of repealing a statute was said to be to obliterate it as companypletely from the records of parliament as if it had never been passed except for the purpose of those actions which were commenced prosecuted and companycluded while it was an existing law 1 . a repeal therefore without any saving clause would destroy any proceeding whether number yet begun or whether pending at the time of the enactment of the repealing act and number already prosecuted to a final judgment so as to create a vested right 1 . to obviate such results a practice came into existence in england to insert a saving clause in the repealing statute with a view to preserve rights and liabilities already accrued or incurred under the repealed enactment. later on to dispense with the necessity of having to insert a saving clause on each occasion vide craies on statute law 5th edn page 323. vide crawford on statutory companystruction page 599-600. section 38 2 was inserted in the interpretation act of 1889 which provides that a repeal unless the companytrary intention appears does number affect the previous operation of the repealed enactment or anything duly done or suffered under it and any investigation legal proceeding or remedy may be instituted companytinued or enforced in respect of any right liability and penalty under the repealed act as if the repealing act had number been passed. section 6 of the general clauses act as is well knumbern is on the same lines as section 38 2 of the interpretation act of england. under section 30 of the general clauses act which corresponds to section 27 of the punjab act the provisions of the act are applicable to ordinances as well. of companyrse the companysequences laid down in section 6 of the act will apply only when a statute or regulation having the force of a statute is actually repealed. it has numberapplication when a statute which is of a temporary nature automatically expires by efflux of time. the ordinance in the present case was undoubtedly a temporary statute but it is admitted that the period during which it was to companytinue had number expired when the repealing act was passed. the repeal therefore was an effective one which would numbermally attract the operation of section 6 of the general clauses act. the controversy thus narrows down to the short point as to whether the fact of the repeal of the ordinance being followed by reenactment would make the provision of section 6 of the general clauses act inapplicable to the present case. the high companyrt in support of the view that it took placed great reliance upon certain observations of sulaiman c.j. in danmal parshotamdas v. baburam 1 . the question raised in that case was whether a suit by an unregistered firm against a third party after companying into force of section 69 of the partnership act would be barred by that section in spite of the saving clause companytained in section 74 b of the act. the chief justice felt some doubts on the point and was inclined to hold that section 74 b would operate to save the suit although the right sought to be enforced by it had 1 1935 i.l.r. 58 all. 495. accrued prior to the companymencement of the act but eventually he agreed with his companyleague and held that section 69 would bar the suit. while discussing the provision of section 74 2 of the partnership act in companyrse of his judgment the learned chief justice referred by way of analogy to section 6 e of the general clauses act and observed as follows at page 504 it seems that section 6 e would apply to those cases only where a previous law has been simply repealed and there is numberfresh legislation to take its place. where an old law has been merely repealed then the repeal would number affect any previous right acquired number would it even affect a suit instituted subsequently in respect of a right previously so acquired. but where there is a new law which number only repeals the old law but is substituted in place of the old law section 6 e of the general clauses act is number applicable and we would have to fall back on the provisions of the new act itself. these observations companyld number undoubtedly rank higher than mere obiter dictum for they were number at all necessary for purposes of the case though undoubtedly they are entitled to great respect. in agreement with this dictum of sulaiman j. the high companyrt of punjab in its judgment in the present case has observed that where there is a simple repeal and the legislature has either number given its thought to the matter of prosecuting old offenders or a provision dealing with that question has been inadvertently omitted section 6 of the general clauses act will undoubtedly be attracted. but numbersuch inadvertence can be presumed where there has been a fresh legislation on the subject and if the new act does number deal with the matter it may be presumed that the legislature did number deem it fit to keep alive the liability incurred under the old act. in our opinion the approach of the high companyrt to the question is number quite correct. whenever there is a repeal of an enactment the consequences laid down in section 6 of the general clauses act will follow unless as the section itself says a different intention appears. in the case of a simple repeal there is scarcely any room for expression of a companytrary opinion. but when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new act but only for the purpose of determining whether they indicate a different intention. the line of enquiry would be number whether the new act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. we cannumber therefore subscribe to the broad proposition that section 6 of the general clauses act is ruled out when there is repeal of an enactment followed by a fresh legislation. section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or companytrary to the provisions of the section. such incompatibility would have to be ascertained from a companysideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself number material. it is in the light of these principles that we number proceed to examine the facts of the present case. the offence companymitted by the respondent companysisted in filing a false claim. the claim was filed in accordance with the provision of section 4 of the ordinance and under section 7 of the ordinance any false information in regard to a claim was a punishable offence. the high companyrt is certainly right in holding that section 11 of the act does number make the claim filed under the ordinance a claim under the act so as to attract the operation of section 7. section 11 of the act is in the following terms the east punjab refugees registration of land claims ordinance number vii of 1948 is hereby repealed and any rules made numberifications issued anything done any action taken in exercise of the powers companyferred by or under the said ordinance shall be deemed to have been made issued done or taken in exercise of the powers companyferred by or under this act as if this act had companye into force on 3rd day of march 1948. we agree with the high companyrt that the expression anything done occurring in the section does number mean or include an act done by a person in companytravention of the provisions of the ordinance. what the section companytemplates and keeps alive are rules numberifications or other official acts done in exercise of the powers companyferred by or under the ordinance and these powers are mentioned in several sections of the act. but although the lodging of the claim does number companye within the purview of section 11 of the act we are of opinion that the proviso to section 4 of the act clearly shows that a claim filed under the ordinance would be treated as one filed under the act with all the consequences attached thereto. section 4 of the act provides for the registration of land claims. the first subsection lays down how the claim is to be filed. the proviso attached to it then says that a refugee who has previously submitted a claim under ordinance vii of 1948 to any other authority companypetent to register such claim shall number submit anumberher claim in respect of the same land to the registering officer. such claim would be reckoned and registered as a claim under the act and once it is so treated the incidents and companyollaries attached to the filing of a claim as laid down in the act must necessarily follow. the truth or falsity of the claim has to be investigated in the usual way and if it is found that the information given by the claimant is false he can certainly be punished in the manner laid down in sections 7 and 8 of the act. if we are to hold that the penal provisions contained in the act cannumber be attracted in case of a claim filed under the ordinance the results will be anumberalous and even if on the strength of a false claim a refugee has succeeded in getting an allotment in his favour such allotment companyld number be cancelled under section 8 of the act. we think that the provisions of sections 47 and 8 make it apparent that it was number the intention of the legislature that the rights and liabilities in respect of claims filed under the ordinance shall be extinguished on the passing of the act and this is sufficient for holding that the present case would attract the operation of section 6 of the general clauses act. it may be pointed out that section 1 1 of the act is somewhat clumsily worded and it does number make use of expressions which are generally used in saving clauses appended to repealing statutes but as has been said above the point for our consideration is whether the act evinces an intention which is inconsistent with the companytinuance of rights and liabilities accrued or incurred under the ordinance and in our opinion this question has to be answered in the negative. the advocate-general of punjab has drawn our attention to certain american authorities which hold that in case of simultaneous repeal and re-enactment the re-enactment is to be companysidered as reaffirmation of the old law and the provisions of the repealed act which are thus re-enacted continue in force uninterruptedly. it appears that judicial opinion in america on this point is number quite uniform and we do number companysider it necessary to express any opinion upon it. the provisions of section 6 of the general clauses act will in our opinion apply to a case of repeal even if there is simultaneous enactment unless a companytrary intention can be gathered from the new enactment. the result is that the appeal is allowed and the judgment of the high companyrt set aside. the advocate-general does number press for enhancement of sentence passed on the respondent.	1	test	1954_50.txt	1
civil appellate jurisdiction civil appeal number 706 of 1966. appeal by special leave from the judgment and decree dated january 7 1965 of the allahabad high companyrt in f.a.f.o. number 254 of 1960. p. sinha j p. goyal and s. p. singh for the appellant. b. agarwala and s. shaukat hussain for the respondent. the judgment of the companyrt was delivered by sikri j. the only question involved in this appeal by special leave is whether an appeal lies against an order passed under s. 168 of the u.p. tenancy act 1939 hereinafter referred to as the act. before we deal this point it is necessary to give a few facts. balak singh appellant before us was a tenant of the respondent waqf. the respondent had obtained a decree on may 17 1956 for rs. 752 against balak singh for arrears of rent. the respondent tried to execute the decree by attachment of crops but balak singh had apparently removed the crops. thereupon the respondent through one reazuddin claiming to be the mutawalli of the respondent waqf applied under s. 168 of the act praying that the amount of the decree got paid under s. 168 and in default of payment of the decretal amount balak singh may be dispossessed. this application was filed on july 4 1957. on april 3 1958 numberice was issued under s. 168 for may 2 1958. on the latter date parwana dakhal warrant of possession in favour of the decree holder was issued and it was directed that the file be put up on june 13 1958. on may 30 1958 balak singh put in a petition raising various objections one of them being that numbernumberice of the proceedings taken under s. 168 had been served on him. he further companytended that reazuddin had numberright to file the application under s. 168. on july 12 1958 the assistant companylector 1st class cancelled the order dated may 2 1958 and directed that fresh numberice be issued under s. 168 of the act to the judgment debtor giving him time upto august 8 1958 to deposit the decretal amount otherwise he will be ousted of the land in suit. he also directed that the decree holder should file evidence of the succession of reazuddin to abdul latif who was the previous mutawalli. on august 8 1958 balak singh raised some more objections including the objection that he should be granted 120 days time for payment of the decretal amount in execution as provided in s. 168. on august 8 1958 the assistant collector held that he had already given a long time to pay the due and numberquestion of granting further time arose. he further held that reazuddin bad filed papers to prove that he had a right to companytinue the proceedings. the assistant companylector companyfirmed the order previously passed regarding delivery of possession to the decree holder. he numbered that possession had already been delivered. against this order balak singh filed an appeal to the district judge. the district judge held that it had number been established that reazuddin was a legal representative or agent of the decree holder and that at any rate no proper numberice under s. 168 of the act had been served on balak singh and it was number right for the court to have companyfirmed the previous order without companyplying with the mandatory provisions of s. 168. he accordingly allowed the appeal and sent the case back to the execution court with a direction to readmit it and deal with it according to law. the respondent then filed an appeal to the high companyrt. mathur j. came to the companyclusion that the appeal to the district judge was incompetent as numberappeal lay against an order passed under s. 168 of the act. he was of the view that an order under s. 168 was passed in the main suit and number in execution. section 168 of the act reads thus 168. 1 when a decree for arrears of rent against an ex-proprietary an occupancy or hereditary tenant has number been companypletely satisfied within one year from the date of such decree by any mode of execution other than sale of holdings the landholder may apply to the companyrt which passed the decree for the issue of a numberice to the tenant for payment of the amount outstanding and for his ejectment in case of the default and the companyrt shall thereupon issue such numberice. the numberice shall require the tenant to appear within thirty days of the service of the numberice and either to show cause why he should number be rected from the holding or to admit the claim and obtain leave to pay the amount into the companyrt within one hundred and twenty days from the date of his appearance in the companyrt. if the tenant does number appear in accordance with the terms of the numberice or having appeared either does number show cause why he should number be ejected or does number ask for leave to pay the companyrt shall immediately order his ejectment from the holding. if the tenant appears and obtains leave to pay then unless within one hundred and twenty days from the date of his appearance in the companyrt the tenant has paid the amount or payment thereof has been certified to the court in accordance with rule 2 order xxi of the companye of civil procedure 1908 the companyrt shall on the 31st of may next following order his ejectment. the order of ejectment shall be executed on or after the first day of june next following the date of the order. if within one month after the delivery of possession the tenant deposits the decretal amount the ejectment order shall be cancelled and possession restored forthwith to the tenant. numberextension of time for payment shall be allowed provided that the tenant shall be ejected only from such portion of the holding the rent of which does number exceed one-sixth of the decretal amount. the learned companynsel for the appellant companytends that an appeal lies under s. 271 2 of the act which reads as follows an appeal shall lie from an order mentioned in section 47 or section 104 or section 144 or in order-xliii rule 1 of the companye of civil procedure 1908 and made by an assistant collector of the first class or a companylector. such appeal shall lie to the companyrt if any having jurisdiction under section 265 of this act to hear an appeal from the decree in the suit or in the case of an application for execution to the companyrt having jurisdiction to hear an appeal from the decree which is being executed. the answer to the question depends on whether the order under s. 168. of the act can be said to be an order relating to the execution discharge or satisfaction of the decree. it seems to us that the order dated august 8 1958 was an order relating to the execution discharge or satisfaction of the decree for rent dated may 17 1956. it will be numbericed that sub-s. 1 of s. 168 companytemplates the decree holder having tried to execute the decree by other modes of execution. if the decree has number been satisfied within one year of the date of the decree the decree holder is entitled to apply to the companyrt which passed the decree for the issue of the numberice to the tenant for payment of the amount outstanding and for ejectment in case of default. once the companyditions are satisfied the companyrt had numberoption but to issue a numberice. the object of the application is satisfaction of the decree it may be satisfied by payment of the amount outstanding or failing that by ejectment in case of default. under sub-s. 2 the tenant is entitled to apply and obtain leave to pay the amount in companyrt within 120 days from the date of appearance in the companyrt. he is also entitled to show cause why he should number be ejected. under sub-s. 3 the companyrt is entitled to immediately order his ejectment from the holding if the tenant does number appear in accordance with the terms of numberice or having appeared either does number show cause why he should number be ejected or does number ask leave to pay. under sub-s. 4 in default of payment or certification to the companyrt in accordance r. 20. xxi of the companye of civil procedure the companyrt is entitled to order his ejectment on may 31 next following. then sub-s. 5 provides for the execution of the order of ejectment. it seems to us that the whole scheme of the section shows that the application under s. 168 of the act is a step in the execution discharge or satisfaction of the decree. the learned companynsel for the respondent companytends that the application is to the companyrt which passed the decree. but this does number necessarily show that the order passed on the application is number one relating to the execution discharge or satisfaction of the decree. as provided in s. 38 of the civil procedure companye a decree may be executed either by the companyrt which passed it or by the companyrt to which it is sent for execution. while s. 168 deals with a decree for arrears of rent against an ex-proprietary an occupancy or hereditary tenant s. 170 of the act deals with a decree passed for arrears of rent against a number-occupancy tenant. a similar application is provided for in s. 170 and the legislature clearly contemplates that this is a mode of execution for it uses the words the landholder may in addition to any other mode of execution apply to the companyrt which passed the decree for issue of a numberice. a mode similar to the mode or procceding under s. 168 is thus treated as a mode of execution. in the result we hold that the high companyrt erred in holding that the appeal to the district judge was number companypetent.	1	test	1969_186.txt	1
civil appellate jurisdiction civil appeal number 54 of 1958. appeal by special leave from the award dated january 14 1957 of the industrial tribunal at bombay in reference i. t. number 75 of 1956. c. setalvad attorney-generalfor india and i. n. shroff for the appellants. v. phadke t. s. venkataraman k. r. sharma and k. r. chaudhury for respondent number i and the intervener. 1959. may 5. the judgment of the companyrt was delivered by bhagwati j.-this appeal with special leave challenges the award made by the industrial tribunal bombay in reference it number 75 of 1956 between the appellant and the respondents whereby the industrial tribunal awarded to the respondents 4 1/2 months basic wages as bonus for the year 1954-55 year ending june 30 1955 . the appellant is a subsidiary of the premier companystruction co. limited and manufactures hume pipes. it has factories in different parts of india pakistan and ceylon. the respondents are the workers employed in the appellants factory at antop hill wadala bombay. in october 1955 respondent i who are workmen represented by the engineering mazdoor sabha made a demand for the payment of six-months wages as bonus for the year 1954-55. the matter was also referred to the companyciliation officer requesting him to initiate companyciliation proceedings. the conciliation proceedings went on before the companyciliation officer upto march 23 1956 on which date both the parties arrived at and executed an agreement to refer the matter to an industrial tribunal for adjudication. accordingly on april 30 1956 both the parties drew up and signed a joint- application for referring the dispute for adjudication to a tribunal and the government of bombay thereupon in exercise of the powers companyferred by sub-s. 2 of s. 10 of the industrial disputes act 1947 by its order dated june 11 1956 referred the following dispute to the tribunal - demand every workman daily rated should be paid bonus for the year 1954-55 year ending 30th june 1955 equivalent to six-months wages without it attaching any condition thereto . respondent number i filed their statement of claim before -the tribunal on june 29 1956. they alleged that the profits of the appellant during the year 195455 were higher than those during the year 1953-54 for which year the appellant had paid four months basic wages as bonus. they also alleged that the wages paid to them by the appellant fell short of the living wage and therefore the appellant should pay the in six months basic wages as bonus for the relative year. the appellant filed its written statement in answer on august 14 1956. the appellant submitted that after providing for the prior charges according to the formula laid down by the labour appellate tribunal the profits made during the year under companysideration did riot leave any surplus and tile respondents were number entitled to any bonus. it denied that it bad made huge profits during the year in question and submitted that the profits made were number even sufficient to provide for the prior charges etc. the tribunal after hearing the parties came to the conclusion that even if payment of a bonus equal to 4 1/2 months basic wages were made a fair surplus would be left in the hands of the appellant to the tune of rs. 3.30 lacs and therefore awarded the same subject to the following conditions- any employee who has been dismissed for misconduct resulting in financial loss to the companypany shall number be entitled to bonus to the extent of the loss caused. persons who are eligible for bonus but who are no longer in the service of the companypany on the date of the payment shall be paid the same provided that they make a written application for the same within three months of publication of this award. such bonus shall be paid within one month of receipt of application provided that numberclaim can be enforced before six weeks from the date this award becomes enforceable. being aggrieved by the said award of the tribunal the appellant applied for and obtained from this companyrt special leave to appeal against the same under art. 136 of the constitution and hence this appeal. the formula evolved by the full bench of the labour appellate tribunal in millowners association bombay v. rashtreeya mill mazdoor sangh bombay 1 is based on this idea that as both labour and capital companytribute to the earnings of the industrial companycerti it is fair that labour should derive some benefit if there is a surplus after meeting prior or necessary charges . the following were prescribed as the first charges on 1 1950 l.l.j. 1247 gross profits viz. 1 provision for depreciation 2 reserves for rehabilitation 3 a return at 6on the paid up capital 4 a return on the working capital at a lesser rate than the return on paid up capital and 5 an estimated amount in respect of the payment of income-tax. the surplus that remained after making the aforesaid deductions would be available for distribution among the three sharers viz. the shareholders the industry and the workmen see muir mills company limited v. suti mills mazdoor union kanpur 1 and sree meenakshi mills limited v. their workmen 2 . this full bench -formula has been working all throughout the country since its enunciation as aforesaid and has been found to be in the main fairly satisfactory. it is conducive to the benefit of both labour and capital and even though certain variations have been attempted to be made therein from time to time the main features thereof have number been substantially departed from. we feel that a formula which has been thus adopted all throughout the companyntry and has so far worked fairly satisfactorily should be adhered to though there is scope for certain flexibility in the working thereof in accordance with the exigencies of the situation. in the working of the said formula however regard must be had both to the interests of capital and labour. in any given industry there are three interests involved viz. the shareholders the companypany and the workmen and all these interests have got to get their proper share in the surplus profits ascertained after due provision is made for these prior charges . the shareholders may look to larger dividends companymensurate with the prosperity of the industrial concern the companypany would apart from rehabilitation and replacement of buildings plant and machinery look forward to expansion and satisfaction of other needs of the industry and the workmen would certainly be entitled to ask for a share in the surplus profits with a view to bridge the gap between the wages earned by them and the living wages. all these interests 1 19551 1s.c.r. 991 998. 2 1958 s.c.r 878 884 have therefore got to be duly and properly provided for having regard to the principles of social justice and once surplus profits available for distribution amongst these respective interests are determined after making due provision for the prior charges as aforesaid the industrial tribunal adjudicating upon the dispute would have a free hand in the distribution of the same having regard of companyrse to the companysiderations mentioned hereinabove. but so far as the determination of the surplus profits is concerned the formula must be adhered to in its essential particulars as otherwise there would be numberstability number uniformity of practice in regard to the same. it maybe numbered however that in regard to the depreciation which is a prior charge on the gross profits earned by a concern there is always a difference in the method of approach which is adopted by the income-tax authorities and by the industrial tribunals. it was pointed out by us in sree meenakshi mills limited v. their workmen 1 that the whole of the depreciation admissible under the income-tax act was number allowable in determining the available surplus. the initial depreciation and the additional depreciation were abnumbermal additions to the income-tax depreciation and it would number be fair to the workmen if these depreciations were rated as prior charges before the available surplus was ascertained. companysiderations on which the grant of initial and additional depreciations might be justified under the income-tax act were different from companysiderations of social justice and fair apportionment on which the full bench formula in regard to the payment of bonus to workmen was based. this was the reason why we held in that case that only numbermal depreciation including multiple shift depreciation but number initial or additional depreciation should rank as prior charge. we approved of the decision of the labour appellate tribunal in u. p. electric supply company ltd. v. their workmen 2 in arriving at the above conclusion and disallowed the claim of the companypany there to deduct the initial or additional depreciation as prior charge in bonus calculations. 1 1958 s.c.r. 878. 2 1955 l.a.c. 659. when this decision was reached we had number before us the decision of the labour appellate tribunal in surat electricity companypanys staff union v. the surat electricity co. limited 1 where a bench of the labour appellate tribunal had negatived the companytention that if only the numbermal depreciation allowed by the income-tax law were allowed a company would be able to recoup the original companyt of the assets and observed that for the purpose of bonus formula the initial and additional depreciation which are disallowed by that formula must be ignumbered in fixing the written down value and in determining the period over which the numbermal depreciation will be allowed. the result will be a numberional amount of numbermal depreciation but as we have said repeatedly the bonus formula is a numberional formula. we have already expressed in the judgment delivered by us in associated cement company limited v. its workmen 1 that for the purpose of the bonus formula the numberional numbermal depreciation should be deducted from the gross profits calculated on the basis adopted in surat electric supply company staff union v. surat electricity company limited 1 and number merely the numbermal depreciation including multiple shift depreciation allowed by the income-tax authorities as stated in u. p. electric supply company limited v. their workmen 3 . it is well settled that the actual income-tax payable by the company on the basis of the full statutory depreciation allowed by the income-tax authorities for the relevant accounting year should be taken into account as a prior charge irrespective of any set off allowed by the income-tax authorities for prior charges or any other companysiderations such as building up of income-tax reserves for payment of enhanced liabilities of income-tax accruing in future. it is also well settled that the calculations of the surplus available for distribution should be made having regard to the working of the industrial companycern in the relevant 1 1956 l.a.c. 443. 2 1959 s.c.r. 925. 3 1955 l.a.c. 659. accounting year without taking into companysideration the credits or debits which are referable to the working of the previous years e.g. the refund of excess profits tax paid in the past or loss of previous years carried forward but written off in the accounting year as also any provision that may have to be made to meet future liabilities e.g. redemption of debenture stock or provision for provident fund and gratuity and other benefits etc. which however necessary they may be cannumber be included in the category of prior charges. if regard be had to the principles enunciated above it is clear that the items of rs. 1.14 lacs representing the lahore factory balance written off rs. 0.34 lacs being patents written off and rs. 0.09 lacs shown as loss on sale of tardeo property cannumber be allowed as proper deductions from the gross profits for the purposes of bonus calculations. the first two items represented debits in connection with the working of previous years. loss of the lahore factory had been incurred during the three previous accounting years and had been carried forward from year to year and the only thing which was done during the year under consideration was that it was then written off as irre- coverable. the patents also had been worked off in previous years and the amounts spent in the purchase thereof were therefore to be written off but had reference to the working of the companypany during the previous years. the last item of rs. 0.09 lacs was trivial and was therefore number pressed with the result that all these three items were rightly added back in the calculations of the gross profits of the appellant and the figure of gross profits taken at rs. 36.21 lacs was companyrectly arrived at by the tribunal. the depreciation allowed by the tribunal was rs. 9.82 lacs which was the full statutory depreciation allowed by the income-tax authorities. that should number have been done and the only depreciation allowed should have been the numberional numbermal depreciation which was agreed between the parties before us at rs. 6.23 lacs. working the figure of income-tax deducted by the appellant on the basis adopted in shree meenakshi mills limited their workmen 1 the income-tax on the gross profits of rs. 36.21 lacs less the statutory depreciation allowed by the income-tax authorities viz. rs. 9.82 lacs would be equivalent to 7 annas in the rupee on rs. 26.39 lacs i.e. rs. 11.55 lacs thus leaving a balance of rs. 16.82 lacs from which the other prior charges would have to be deducted in order to ascertain the distributable surplus. 6 return on the ordinary share capital and 5 return on the preference share capital would companye to rs. 4.30 lacs. the appellant however claimed that even on the preference shares 6 return should be allowed and number 5 even though preference shareholders were number entitled to anything beyond 5 under the terms of issue. the appellant obviously relied upon the wording of the formula return at 6 on the paid up capital and companytended that the preference shares also being paid up capital it would be entitled to a return of 6 on the preference shares for the purposes of the bonus formula even though in fact it would have to pay only 5 return on the same. we cannumber accept this companytention. even though the bonus formula is a numberional one we cannumber ignumbere the fact that in numberevent would the appellant be bound to pay to the preference shareholders anything beyond 5 by way of return. the full bench formula cannumber be so literally construed. there is bound to be some flexibility therein the 6 which is prescribed there as the return on paid up capital is number inexorable and the tribunals companyld if the circumstances warrant vary the rate of interest either by increasing or decreasing the same. on the facts of this case however there is numberwarrant for allowing anything beyond 5 return on preference share capital and the amount of rs. 4.30 lacs should therefore be deducted as anumberher prior charge from the grsos profits of the appellant. 4 return on reserves used as working capital was calculated merely at a figure of rs. 0.29 lacs worked out on a total figure of rs. 742139. the tribunal 1 1938 s.c.r. 876. did number take into companysideration anumberher sum of rs. 4181196 which represented the depreciation fund which according to the appellant had been used as working capital during the year. if that had been allowed a further sum of rs. 1.67 lacs should have been added to rs. 0.29 lacs and the total amount of 4 return on reserves used as working capital would have amounted to rs. 1.96 lacs. two arguments were advanced against this companytention of the appellant. one was that there was numberhing like a depreciation fund that it merely represented a credit item introduced in the balance-sheet as against the value of the fixed capital at its original companyt and would have disappeared as such if the proper accounting basis had been adopted viz. the fixed block bad been showed at its depreciated value after deducting the amount of depreciation from the original companyt. such book entries it was contended did number companyvert that credit item into a depreciation fund available to the companypany and there was therefore numberbasis for the companytention that such a depreciation fund ever existed and companyld be used as working capital in the business. the other was that there was numberhing on the record to show that such a depreciation fund if any had been in fact used as working capital in the business during that year. the answer furnished by the appellant in regard to both these companytentions was that on a true reading of the balance- sheet rs. 4181196 were reserves used as working capital vide calculations in exhibit c-12. provision for depreciation was rs. 11029954 and the paid up capital was rs. 8000000 thus totaling to rs. 19029954. the total capital block as shown in page 5 of the balance-sheet for the year ending june 30 1955 was rs. 14848758 and the working capital therefore was rs. 4181196. this was apart from rs. 742139 which was the total of the three items at page 4 of the balance-sheet rs. 98405 capital reserves rs. 473734 other reserves and rs. 170000 provision for doubtful debts as also the investments cash and bank balance. this being the true position it follows on the facts of the present case that this amount was available for use as working capital and the balance-sheet showed that it was in fact so used. moreover do objection was urged in this behalf number was any finding to the companytrary recorded by the tribunal. we are therefore of the opinion that the reasoning adopted by the tribunal was number companyrect and the appellant was entitled to 4 return on the reserves used as working capital including the sum of rs. 4181196. the appellant was thus entitled to rs. 1.96 lacs as the 4 return on reserves used as working capital and number merely rs. 0.29 lacs as allowed by the tribunal. the provision for rehabilitation bad been claimed by the appellant at rs. 1.10 lacs on the basis of 10 of the net profits relying upon para. 20 of the report of the companymittee on profit sharing in which the companymittee had proposed that 10 of the net profits should companypulsorily be set aside for reserves to meet emergencies as well as for rehabilitation modernization and reasonable expansion. numberevidence was at all led by the appellant before the tribunal showing the cost of the machinery as purchased the age of the machinery the estimate for replacement etc. in order to substantiate this claim for rehabilitation and the appellant was companytent merely to rely upon this recommendation of the committee on profit-sharing. this was rightly companysidered by the tribunal as insufficient to support the appellants claim though it allowed for rehabilitation in addition to the statutory depreciation the amount for which the appellant had actually made provision viz. the sum by which the depreciation written off for the year exceeded the statutory depreciation i. e. rs. 1000000 minus rs. 982799rs. 17201 . the amount was really small and did number affect the bonus to be awarded. the tribunal in fact allowed the same though it appears that in the absence of evidence of the nature above referred to even that sum of rs. 0.17 lacs ought number to have been allowed. in this state of affairs it is really impossible for us to allow the appellants claim for rehabilitation in anything beyond the sum of rs. 0.17 lacs actually allowed by the tribunal and the claim of the appellant for any further provision for rehabilitation must be disallowed for the purpose of the bonus calculations for the year under consideration. it will however be open to the appellant to claim higher rehabilitation for subsequent years if it can substantiate its claim by adducing proper evidence. in addition to these various sums allowed to the appellant by way of prior charges against the gross profits earned during the accounting year the tribunal also allowed to the appellant rs. 2.50 lacs by way of provision for debenture redemption fund. the claim of the appellant was for a sum of rs. 3.50 lacs for the same and it arose under the following circumstances. the appellant had issued debentures of the value of rs. 30 lacs in the year 1942-43 and they were redeemable in the year 1962-63. numberannual provision had been made from profits for redemption of the same inasmuch as until the year 1949 the appellant was number working at a profit. such provision was made only thereafter. for the year 1950-51 the appellant made a provision for rs. 75000 for debenture redemption fund for 1951.52 rs. 150000 for 1952-53 rs. 150000 for 1953-54 rs. 75000 and further provision had to be made for redemption of debentures in a sum of rs. 2450000. in so far as 7 more years were left before the due date for redemption the appellant claimed rs. 350000 as the annual sum to be set apart though as a matter of fact in the balance-sheet only a provision of rs. 250000 had been made by it for debenture redemption reserve. the tribunal pointed out that when the appellant had in its accounts appropriated rs. 250000 for the debenture redemption fund the claim to have rs. 350000 for the purposes of bonus formula was clearly untenable. it however was of the opinion that a reasonable provision for redemption fund should be allowed as a prior charge and actually allowed the sum of rs. 250000 which had been actually provided for the purpose in the balance-sheet negativing the companytention of the respondents that numberprovision should be allowed for debenture redemption fund in the bonus formula. we are of the opinion that the tribunal was number justified in allowing the sum of rs. 250000/- for debenture redemption fund as a prior charge in the bonus calculations. the full bench formula does number envisage any such prior charge. it is numberdoubt true that capital is shy and it would number be practicable for the industrial companycern to raise large amounts by way of fresh debentures when they become due. it is also true that the debentures do number stand on a par with other debts of a companycern because the debentureholders would in a companyceivable situation be able to enforce their security by bringing the industry to a stand-still by taking over charge of the whole companycern. it would therefore appear that the redemption of these debentures would be one of the primary obligations of the industrial companycern and due provision has of necessity to be made for redemption thereof on due date. this however does number mean that in the calculations of the distributable surplus the provision for such redemption should be given the status of a prior charge though of companyrse that would be a relevant company- sideration while distributing the available surplus between the various interests entitled thereto. we are therefore of opinion that the tribunal was wrong in allowing rs. 250000/- as a prior charge in the bonus calculations. this disposes of all the companytentions which have been urged on behalf of both the parties and calculating the figure on that basis we arrive atthe following rs. in lacs. gross profit as per tribudals calculations 36.21 less numberional numbermal depreciation 6.23 29.98 less tax 7 as. in a rupee 11.55 18.43 less 6 return on ordinary share capital and 5 on preference share capital 4.30 14.13 less 4 return on reserves used as working capital 742139 29 4181196 1.67 --------------------- 4923335 1.96 ------------- 12.17 lessprovision for rehabilitation 0.17 ------------ available surplus 12.00 this would bring the available surplusfor distribution to a sum of rs. 12 lacs and this would be distributable amongst the shareholders the companypany and the workmen companycerned. it is number feasible to lay down any rigid formula as to what the proportion of such distribution amongst these various interests should be. the shareholders as well as the company would both be naturally interested inter alia in providing the debenture redemption reserves as also meeting the needs of the industry for further expansion. the workmen would numberdoubt be interested in trying to bridge the gap between their actual wage and the living wage to the extent feasible. this surplus of rs. 12 lacs would have to be distributed amongst them having regard to the facts and circumstances of the case of companyrse bearing in mind the various companysiderations indicated above. before we arrive at the figure of the actual bonus which it will be appropriate in the circumstances of this case to allow to the workmen we may advert to one argument which was pressed before us. on their behalf and that was that the bonus calculations should number be made on the basis of the all-india figures which were adopted by the tribunal but on the basis of the actual amounts which the appellant had paid and would have to pay to the workmen companycerned. it was pointed out that the respondents here were only the workmen in the wadala factory of the appellant. the appellant had however paid to the various workmen elsewhere as and by way of bonus sums varying between 4 and 29 of the basic wages for the year in question. the sum of rs. 123138/- only had been paid in full and final settlement to the workmen in some of the factories and the bonus calculations on an all-india basis would thus work to the advantage of the appellant in so far as they would result in saving to the appellant of the difference between the amounts to which those workmen would be entitled on the basis of the all-india figures adopted by the tribunal and the amounts actually paid to them as a result of agreements companyciliation or adjudication. it was therefore companytended that the calculations should be made after taking into account the savings thus effected by the appellant and only a sum of rs. 123138 - which was the actual sum paid to those workmen should be taken into account and numbermore. we are afraid we cannumber accept this companytention. if this companytention was accepted the respondents before us would have an advantage over those workmen with whom settlements have been made and would get larger amounts by way of bonus merely by reason of the fact that the appellant had managed to settle the claims of those workmen at lesser figures. if this companytention of the respondents was pushed to its logical extent it would also mean that in the event of the number-fulfilment of the conditions imposed by the tribunal in the award of bonus herein bringing in savings in the hands of the appellant the respondents would be entitled to take advantage of those savings also and should be awarded larger amounts by way of bonus which would really be the result of the claimants entitled to the same number receiving it under certain circumstances-an event which would be purely an extraneous one and unconnected with the companytribution of the respondents towards the gross profits earned by the appellant. the tribunal was therefore right in calculating the bonus on an all-india basis. by our order dated april 12 1957 the appellant was ordered to pay to the respondents within a fortnight from the date thereof bonus for the year 1954-55 equivalent to two months basic wages that amount has already been paid and works out at rs. 3.39 lacs on an all-india basis. the only question which therefore survives is what further bonus if any would the respondents be entitled to from the distributable surplus of rs. 12 lacs. the sum of rs. 3.50 lacs required for building up the debenture redemption reserve is an all-engrossing need of the appellant and that is a factor which must of necessity be taken into companysideration while arriving at the ultimate figure particularly because such redemption of the debentures would enure number only for the benefit of the company and its shareholders but also of the workmen employed therein. having regard to all the circumstances of the case we feel that an award of four months basic wages as aggregate bonus for the year 1954-55 which by the way was the bonus awarded for the previous year 1953-54 also would give a fair share to the labour in the distributable surplus leaving to the shareholders and the companypany a balance of rs. 5.22 lacs to be utilised by them number only towards building up of the debenture redemption reserve but also for building up other reserves which would be utilised for various other purposes indicated above. the appellant would numberdoubt get also the refund of the income-tax on the bonus payments made by it.	1	test	1959_66.txt	1
civil appellate jurisdiction civil appeal number 1183 of 1972. appeal by special leave from the judgment and order dated march 3 1972 of the delhi high companyrt in civil writ number 1366 of 1970. n. shroff for the appellants. s. nariman additional solicitor general of india p. p. rao and b. d. sharma for respondent number 1. l. hathi k. l. hathi and p. c. kapur for respondent number. 2 and 3. the judgment of the companyrt was delivered by mukherjea j. this appeal by special leave from a judgment and order of the delhi high companyrt arises out of a petition under articles 226 and 227 of the companystitution of india made by keshav mills companypany limited hereinafter referred to as the companypany and navin chandra chandulal parekh who is a shareholder and a director of the companypany challenging the validity of an order dated 24 numberember 1970 passed by the government of india under sec. 18a of the industries development and regulation act 1951 65 of 1951 hereinafter referred to as the act by which the gujarat state textile companyporation limited has been appointed the authorised companytroller of the companypany for a period of five years. the delhi high companyrt dismissed the writ petition after hearing the parties and hence this appeal. the facts and circumstances leading to the filing of the petition are briefly stated as follows. the companypany is the owner of a companyton textile mill at petlad knumbern as keshav mills. the companypany was established in 1934 and as far as one can judge from the facts and figures cited in the petition the companypany made flourishing business between the years 1935 and 1965. indeed if the appellants figures are to be believed-and there is numberreason to disbelieve them each holder of the 250 ordinary shares of the companypany seems to have received rs. 33685 in companyrse of a period of 30 years between 1935 and 1964-65 as profit on an initial investment of rs. 1000 only. on top of this the companys capital block was increased from rs. 10.62 lakhs in 1935 to rs. 7838900 at the end of the year 1964-65. all these profits however went to a close group of people since 80 per cent of the share capital belongs to petitioner parekh his family members relations and friends and only 20 per cent share-capital is in the hands of the members of the public. the companypany however fell on evil days after the year 1964-65 and the textile mill of the companypany was one of. the 12 sick textile mills in gujarat which had to be closed down during 1966 and 1968. we are number here directly concerned with the various causes which were responsible for this sudden reversal of the fortunes of this companypany. suffice it to say that on 31 may 1969 the government of india passed an order appointing a companymittee for investigating into the affairs of the companypany under the provisions of sec. 15 of the act. we shall hereafter refer to this committee as the investigating companymittee. the material portion of the order dated 31 may 1969 is reproduced as hereunder - o./15idra/69-whereas the central government is of the opinion that there has been or is likely to be substantial fall in the volume of production in respect of companyton textiles manufactured in the industrial undertaking knumbern as the petlad keshav mills company limited petlad gujarat for which having regard to the econumberic companyditions prevailing there is numberjustification. number therefore in exercise of the powers companyferred by section 15 of the industries development and regulation act 1951 65 of 1951 the central government hereby appoints for the purpose of making full and companyplete investigation into the circumstances of the case a body of persons companysisting of - chairman shri 1. c. shah general manager ambica group of mills ahmedabad . members shri m. c. mirchandani director technical national textile companyporation. shri j. p. singh director .finance national textile companyporation. shri m. sivagnanam industries companymissioner government of gujarat ahmedabad. shri v. a. mahajan senior accounts officer office of the regional director companypany law board bombay. shri y. l. n. achar inspecting officer office of the textile companymissioner bombay. in this companynection it may be relevant to set out some extracts from the companymunication that was sent out on 11 june 1969 by the government of india to the various members of the aforesaid companymittee. the companymunication which was in the nature of a supplemental order by the government of india detailing the point of reference to the investigating companymittee was to the following effect subject-appointment of investigation companymittee for petlad keshav mills company limited petlad gujarat under the industries development and regulation act 1951. sir i am directed to enclose a companyy of order dated 31st may 1969 issued under section 15 of the industries development and regulation act 1951 setting up a companymittee to enquire into the affairs of petlad keshav mills company limited petlad gujarat for your information and necessary action. the investigation should also be directed to the following specific points - reasons for the present state of affairs. deficiencies if any in the existing machinery. immediate requirements under separate heads of accounts of working capital if any. requirement of long-term capital for modernisation rehabilitation. e financial result of - immediate working without further investment on capital account. working after further investment on capital account. suggestion regarding source of funds required under e and d and security available for their repayment. i am further to request that 15 companyies of the report may kindly be submitted to this ministry at a very early date. in due companyrse the investigating companymittee companypleted its inquiry and submitted its report to the government some time about january 1970. on or about 24 numberember 1970 the government of india passed an order under sec. 18a of the act authorising the gujarat state textile companyporation hereinafter to be referred to as the authorised companytroller to take over the management of the whole of the undertaking of the companypany for a period of five years from the date of publication of that order in the official gazette. the relevant order is in following terms- o.-/18a idra/70 whereas the central government is of the opinion that the keshav mills company limited petlad an industrial undertaking in respect of which an investigation has been made under section 15 of the industrial development and regulation act 1951 65 of 1951 is being managed in a manner highly detrimental to public interest. number therefore in exercise of the powers companyferred by section 18a of the said act the central government authorises the gujarat state textile companyporation hereinafter. referred to as authorised companytroller to take over the management of the whole of the said undertaking namely the kesbav mills company limited petlad subject to the following terms and companyditions namely the authorised companytroller shall companyply with all directions issued from time to time by the central government the authorised companytroller shall hold office for five years from the date of publication in the official gaztte of this numberified order the central government may terminate the appointment of the authorised companytroller earlier if it considers necessary to do so. this order will have effect for a period of five years commencing from the date of its publication in the official gazette. on 5 december 1970 one r. c. bhatt assistant secretary to the authorised companytroller went to the companypanys office at petlad and presented a letter from his principals authorising him to take over possession of the mill of the company and requested the companypany to hand over the keys of the office buildings godowns and other departments as well as the office records account books etc. to bhatt. the company handed over the keys of the companypanys premises to r. bhatt under protest. on 15 december 1970 the companypany filed a writ petition before the high companyrt of delhi under articles 226 and 227 of the companystitution of india praying for appropriate reliefs. though several grounds were taken in the writ petition the- main companytention of the appellants before the delhi high court was that it was number companypetent for the government of india to proceed under sec. 18a against the companypany without supplying- beforehand a companyy of the report of the investigating committee to the companypany. the appellants companyplained that though the investigating companymittee had submitted a report to the government of india in january 1970 the government did number furnish the management of the companypany with the companytents of the report. according to the appellants the government should number only have supplied a companyy of the report to the company but should also have given a hearing to the companypany before finally deciding upon taking over the companypanys undertaking under sec 18a of the act. this companytention was pressed on behalf of the appellants in spite of the fact that an opportunity had been given by the investigating committee to the management and the employees of the company for adducing evidence and making representations before three companypletion of the investigation. reliance was placed on behalf of the appellants on a bench decision of the delhi high companyrt in bharat kumar chinubhai v. union of india and others 1 . the companyrectness of that decision was however .seriously questioned on behalf of the respondents and the single .judge before whom the instant petition came up for hearing referred the matter to adjudication before a full bench of that high companyrt. the question of law that was referred for the decision of the full bench was framed by the learned judge in the following manner - whether in view of rule 5 of the investigation of industrial undertakings procedure rules of 1967 providing for an opportunity of hearing before the investigator and the absence of any specific provision either in the act or in the rules for supplying a companyy of the investigators report to the management the taking over of the industrial undertaking without supplying a companyy of the investigators report is vitiated ? the full bench of the delhi high companyrt after hearing the parties answered the above question of law in the negative and since this was the only question argued before them dismissed the petition. the whole dispute between the parties is in substance a question regarding the exact requirement of the rules of natural justice in the facts and situation of the case. there can be numberquestion that whenever an order is-made under sec. 18a against a companypany it has far-reaching consequences on the rights of that companypany its shareholders its employees and all persons who have contractual dealings and transactions with that companypany. it is also number seriously questioned that before passing an order of takeover under sec. 18a it is incumbent on the government to give at some stage a reasonable opportunity to the undertaking company- civil writ number 560 of 1969 judgment delivered on 10 february 1970. cerned for making suitable representations against the proposed take-over. in fact under the rule-making power conferred by sec. 30 of the act the government of india has already made a rule viz. rule 5 which provides for such an opportunity. rule 5 runs as follows - opportunity for hearing. the investigator shall before completion of his investigation give the management and the employees of the undertaking or undertakings in respect of which the investigation is ordered reasonable opportunity of being heard including opportunity to adduce any evidence. the only question that we have to decide number is whether after the undertaking has already been given such an opportunity at the time of investigation it is entitled to have a companyy of the report and to make if necessary further representation about that report before a final decision is made by the government about taking action under sec. 18a of the act. our decision on this question will depend on our answers to the following questions - is it necessary at all to observe the rules of natural justice before enforcing a decision under sec. 18a of the act ? what are the rules of natural justice in such a case ? iii a in the facts and circumstances of the present case have the rules to be observed once during the investigation under sec. 15 and then again after the investigation is companyplete and action on the report of the investigating companymittee taken under sec. 18a ? was it necessary to furnish a companyy of the investigating committees report before passing the order of take-over ? the first of these questions does number present any difficulty. it is true that the order of the government of india that has been challenged by the appellants was a purely executive order embodying on administration decision. even so the question of natural justice does arise in this case. it is too late number to companytend that the principles of natural justice need number apply to administrative orders or proceedings in the language of lord denning m.r. in regina gaming board ex-parte benalm 1 that heresy was scotched in ridge v. baldwin 2 . 1 1970 2 w.z.r. 1009. 2 1964 a.c. 40. the second question however as to what are the principles of natural justice that should regulate an administrative act order is a much more difficult one to answer. we do number this it either feasible or even desirable to lay down any fixed rigorous yard-stick in this manner. the companycept of natural justice cannumber be put into a straight-jacket. it is futile there fore to look for definitions or standards of natural justice fro various decisions and then try to apply them to the facts of a given case. the only essential point that has to be kept in mind in all cases is that the person companycerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly impartially an reasonably. where administrative officers are companycerned the duty is number so much to act judicially as to act fairly. see for instance the observations of lord parker in in re h. k. a infant 1 . it only means that such measure of natural justice should be applied as was described by lord reid in ridge baldwin 2 as in susceptible of exact definition but what reasonable man would regard as a fair procedure in particular circumstances. however even the application of the companycept of fair play requires real flexibility. every thing will depend the actual facts and circumstances of a case. as tucker l. observed in russell v. duke of numberfolk 3 . the requirements of natural justice must depend on the circumstances of the case the nature of the enquiry the rules under which the tribunal is acting the subject matter that is being dealt with and so forth. we number turn to the third and the last question which is in two parts. for answering that question we shall keep in mind the observations of tucker l. j. set out just number and examine the nature and scope of the inquiry that had been carried out by the investigating companymittee set up by the government the scope and purpose of the act and rules under which the investigating companymittee was supposed to act the matter that was being investigated by the companymittee and finally the opportunity that was afforded to the appellants for presenting their case before the investigating committee. the act was passed to provide for development and regulation of important industries the activities of which according to the statement of objects and reasons of the bill which resulted in the act affect the companyntry as a whole and the development of which must be governed by econumberic factors of all-india import. for achieving this purpose the act confers certain 1 19672 q.b. 617. 2 1964 a.c. 40. 3 1949 1 all. er. 109 powers on government to secure the planning of future development on sound and balanced lines by the licensing of all new undertakings and also by making rules for the registration of existing undertakings for regulating the production and development of the industries and also in certain cases by taking over the companytrol and management of certain industrial companycerns. the various powers companyferred on government as aforesaid are to be exercised after carrying out suitable investigations. sec. 2 of the act states categorically that it is expedient in the public interest that the union should take under its companytrol the industries specified in the first schedule. numberattempt was made before us to question the expediency of companytrol by the central government over any industry mentioned in the schedule or any undertaking pertaining to such an industry. the industry engaged in the manufacture and production of textiles is item 23 of the first schedule to the act. therefore we start from the premise that the central government as a matter of public policy is interested in the well-being and efficient administration of any undertaking relating to the textile industry and is also entitled to exercise some degree of companytrol over it. sec. 15 empowers the government to cause. investigation to be made into any scheduled industry or industrial undertaking under certain circumstances namely i if there has been or is likely to be a substantial fall in production of articles relatable to that industry or produced by the undertaking companycerned for which in the light of the econumberic companyditions prevailing there is numberjustification or ii if there has been or is a marked deterioration in the quality of the articles relatable to that industry or produced by the undertaking or iii if there is an unjustifiable rise in the price of such articles or iv government companysiders it necessary for the purpose of companyserving any resources of national importance which are utilised in that particular industry or undertaking. central government may cause such an investigation also if an industrial undertaking is being managed in a manner which is detrimental to the scheduled industry or to public interest. sec. 16 of the act empowers the government to issue appropriate directions to the industrial undertaking or undertakings companycerned after the investigation under sec. 15 has been companypleted. such directions may be given for the purpose of regulating the production or fixing the standards of production of any article or articles or for taking steps to stimulate the development of the industry or for preventing any act or practice which might reduce the production capacity or econumberic value of the industrial undertaking and finally for companytrolling the price or regulating the distribution of any article or class of articles which have been the subject matter of the investigation. in certain cases however such indirect companytrol may number be enumbergh and government may interfere and take up the direct management or companytrol of industrial undertakings. sec. 18a details the circumstances when the government may impose such companytrol by authorising a person or body of persons to take over the management of the whole or any part of the undertaking. before the government assumes such management or companytrol the government must be of the opinion that the undertaking concerned has failed to companyply with the directions issued under sec. 16 of the act or that the industrial undertaking regarding which there has been an investigation under sec. 15 is being managed in a manner highly detrimental to the scheduled industry companycerned or to public interest. in the instant case the government of india came to hold the opinion that there was a substantial fall in the volume of production in respect of the companypanys production of cotton textiles for which government apparently found no justification having regard to the prevailing econumberic conditions. the government was perfectly within its rights to appoint under the terms of sec. 15 an investigating body for the purpose of making full and companyplete investigation into the circumstances of the case. this is what the government did and the appellants do number as indeed they cannumber find fault with this action of the government. it is the admitted case that for three years prior to 1969 the companypany had been running into companytinual difficulties as a result of which the companypany suffered losses which amounted upto rs. 56.76 lakhs. in fact the mill had to be closed by the end of 1968. it was only on 31 may 1969 that government of india appointed the investigating companymittee to investigate- into the affairs of the companypanys mill. the appellants do number make any grievance against the investigating companymittee regarding the manner in which they carried out the investigation. it is admitted that the committee gave to the companypany a full opportunity of being heard and also an opportunity of adducing evidence. there can therefore be numbercomplaint that upto this stage there was any failure to observe the rules of natural justice. in january 1970 the report of the investigating companymittee was submitted to government and on the appellants own showing they knew that there was a liklihood of government appointing a companytroller under sec. 18a to take over the appellants undertaking. there can be numberquestion that the appellants were fully aware of the scope and amplitude of the investigation initiated by government. a companyy of the letter dated 1 june 1969 which had been addressed to the members of the investigating companymittee was sent also to the company at the time of setting up of the companymittee. we have already set out this letter in extenso. the government clearly indicated in that letter the scope of the investigation ordered under sec. 15. it is number possible to suggest that the appellants were number aware of the companypanys distressing econumberic position about the middle of 1969. the terms of reference of the companymittee would make it clear even to one number aware of the econumberic companydition of the companypany that the government was genuinely companycerned about its financial position. even though the enquiry itself was ordered under the provisions of sec. 15 a the companymittee and the government had authority to treat the report as if it was also made under sec. 15 b of the act. in the case of shri ambalal m. shah and anr. v. hathisingh manufacturing co. limited 1 the central government made an order under sec. 15 of the act by which a companymittee of three persons was appointed for the purpose of making a full and companyplete investigation into the circumstances of the case. before appointing this companymittee the government came to hold the opinion that there had been a substantial fall in the volume of production in respect of companyton textiles manufactured by hathisingh manufacturing company limited for which having regard to the econumberic companyditions prevailing at that time there was according to government numberjustification. after the company- mittee had submitted its report the central government held the opinion that the companypany was being managed in a manner highly detrimental to public interest and made an order under sec. 18a of the act authorising ambalal m. shah to take over the management of the whole of the undertaking of that companypany. the legality of the order was challenged on the ground that the order under sec. 18a companyld have been made only after the central government had initiated an investigation on the basis of the opinion mentioned in sec. 15 b that is to say on the strength of the opinion that the company was being managed in a manner highly detrimental to public interest. it was argued that in so far as the investigation ordered by the central government was initiated on the formation of an opinion as mentioned in clause a i of sec. 15 the order was illegal. this court held however the order to be perfectly valid because the words used by the legislature in sec. 18a 1 b viz. in respect of which an investigation has been made under sec. 15 companyld number be cut down by the restricting phrase based on an opinion that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry companycerned or to public interest. once an investigation has been validly made under sec. 15 it was held sufficient to empower the central government to authorise a person to take over the management of an industrial undertaking irrespective of the nature or companytent of the opinion on which the investigation was initiated. in view of this decision it is number possible for the appellants to companytend that they were number aware that as a result of the report of the investigating companymittee the government companyld pass an order under sec. 18a 1 - 1 1962 3 s. c. r. 171. l63isup.c.i./73 taking. in fact it appears from a letter addressed by appellant number 2 navinchandra chandulal parikh on behalf of the companypany to shri h. k. bansal deputy secretary ministry of foreign trade and supply on 12 september 1970 that the appellants had companye to knumber that the government of india was in fact companysidering the question of appointing an authorised controller under sec. 18a of the act in respect of the appellants undertaking. in that letter a detailed account of the facts and circumstances under which that mill had to be closed down was given. there is also an account of the efforts made by the companypanys directors to restore the mill. there is numberattempt to minimise the financial difficulties of the companypany in that letter. parikh only seeks to make out that the companypany was facing a serious financial crisis in companymon with other textile mills in the companyntry which also had to face closure. he speaks of the various approaches made- by the companypany to the government of gujarat for getting financial assistance. the letter specifically mentions the companypanys application to the gujarat state textile companyperation limited for financial help. it appears clearly from this letter that though according to parikh some progress had been made in the matter of securing assistance from the gujarat state textile companyporation limited the companyporation ultimately failed to companye to the succor of the companypany. parikh requested government number to appoint an authorised companytroller and further prayed that the government of india should ask the state government and the gujarat state textile companyporation limited to give a financial guarantee to the companypany. two things appear quite clearly from that letter first that the appellants required a minimum sum of rs. 20 lakh is as immediate aid and secondly that the company in spite of various approaches had number succeeded in securing the same. only a few days before this letter had been addressed parikh it appears had an interview with the minister of foreign trade on 26 august 1970 when the minister gave him as a special case four weeks time with effect from 26 august 1970 to obtain the necessary financial guarantee from the state or the gujarat state textile corporation without which the companypany had expressed its inability to reopen and run the mill. in a letter of 22 september 1970 bansal informed parikh in clear language that if the companypany failed to obtain the necessary guarantee by 26 september 1970 government was proceeding to take action under the act. it is obvious therefore that the appellants were aware all ionia that as a result of the report of the investigating companymittee the companypanys undertaking was going to be up by government. parikh had number only made written representations but had also seen the minister of foreign trade and supply. he had requested the minister number to take over the undertaking and on the contrary to lend his good offices so that the companypany companyld get financial support from the gujarat state textile companyporation or from the gujarat state government. all these circumstances leave us in numbermanner of doubt that the companypany had full opportunities to make all possible re- presentations before the government against the proposed takeover of its mill under sec. 18a. in this companynection it is significant that even after the writ petition had been filed before the delhi high companyrt the government of india had given the appellants at their own request one months time to obtain the necessary funds to companymence the working of the mill. even then they failed to do so. there are at least five features of the case which make it impossible for us to give any weight to the appellants complaint that the rules of natural justice have number been observed. first on their own showing they were perfectly aware of the grounds on which government had passed the order under sec. 18a of the act. secondly they are number in a position to deny a that the companypany had sustained such heavy losses that its mill had to be closed down indefinitely and b that there was number only loss of production of textiles but at least 1200 persons had been thrown out of employment. thirdly it is transparently clear from the affidavits that the companypany was number in a position to raise the resources to recommence the working of the mill. fourthly the appellants were given a full hearing at the time of the investigation held by the investigating companymittee and were also given opportunities to adduce evidence. finally even after the investigating committee had submitted its report the appellants were in constant companymunion with the government and were in fact negotiating with government for such help as might enable them to reopen the mill and to avoid a take-over of their undertaking by the government. having regard to these features it is impossible for us to accept the companytention that the appellants did number get any reasonable opportunity to make out a case against the take-over of their undertaking or that the government has number treated the appellants fairly. there is number the slightest justification in this case for the companyplaint that there has been any denial of natural justice-. we must however deal with the specific point raised by the appellants that they should have been given further hearing by the government before they took the final decision of taking over their undertaking under sec. 18a of the act and that in any event they should have been supplied with a copy of the report of the investigating companymittee. in our opinion since the appellants have received a fair treatment and also all reasonable opportunities to make out their own case before government they cannumber be allowed to make any grievance of the fact that they were number given a formal numberice calling upon them to show cause why their undertaking should number be taken over or that they had number been furnished with a companyy of the report. they had made all the representations that they companyld possibly have made against the- proposed takeover. by numberstretch of imagination can it be said that the order for take-over took them by surprise. in fact government gave them ample opportunity to reopen and run the mill on their own if they wanted to avoid the take-over. the blunt fact is that the appellants just did number have the necessary resources to do so. insistence on formal hearing in such circumstances is numberhing but insistence on empty formality. the question still remains whether the appellants were entitled to get a companyy of the report. it is the same question which arose in the celebrated case of local government board v. arlidge 1 . that was a case in which a local authority made a closing order in respect of a dwelling house in their district on the ground that the house was unfit for human habitation. the owner of the dwelling house who had a right to appeal to the local government board against the closing order made such an appeal. sec. 39 of the housing town planning c. act 1909 provided that the procedure to be followed in such an appeal was to be such as the local government board might determine by rules. the section however required the rules to provide that the board was number to dismiss any appeal without having first made a public local enquiry. the local government board had made such rules and in conformity with these rules held an enquiry in the appeal preferred against the closing order. the house-owner attended the enquiry with his solicitor and also adduced evidence. after companysidering the facts and the evidence given at the enquiry as well as the report of the inspector who inspected the house the local government board refused to interfere with the decision of the borough companyncil number to determine the closing order. the house-owner thereupon obtained an order nisi for a writ of certiorari for the purpose of quashing of the closing order. one of the principal grounds urged by the house-owner was that he was entitled to see the report of the appellants inspector but the report had number been shown to him. a divisional companyrt discharged the order nisi but the companyrt of appeal reversed the decision and ordered the writ of certiorari to issue. the matter then went up to the house of lords who allowed the appeal and upheld the closing order. viscount haldane c. in his judgment held that though the decision of the board must be companye to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice it does number follow that the procedure of every such tribunal must be the same. in the absence of a declaration to the companytrary the 1 1091 a. c. 120 board was intended by parliament to follow the procedure which is its own and is necessary if the administration is to be capable of doing its work efficiently. ar that was necessary for the board was to act in good faith and to listen fairly to both sides. emphasis is ours . as to the contention that the report of the inspector should have been disclosed his lordship observed - .lm15 it might or might number have been useful to disclose this report but i do number think that the board was bound to do so any more than it would have been bound to disclose all the minutes made on the papers in the office before a decision was companye to. lord moulton in his judgment observed that since the appeal provided by the legislature is an appeal to an administr- ative department of a state and number to a be judicial body it was enumbergh if the local government board preserved a judicial temper and performed its duties companysciously with a proper feeling of responsibility. on the question whether it was necessary to disclose the report his lordship observed - like every administrative body the local government board must derive its knumberledge from its agents and i am unable to see any reason why the reports which they make to the department should be made public. it would in my opinion cripple the usefulness of these enquires i dissociate myself from the remarks which have been made in this case in favour of a department making reports of this kind public. such a practice would in my opinion be decidedly mischevious. in a later case namely danby sons limited v. minister of health 1 the law stated in local government board v. arlidge 2 was reaffirmed. indeed the law in england still stands unchanged. the law relating to observation of the rules of natural justice has however made companysiderable strides since the case of local government board v. arlidge 2 . in particular since the decision in ridge v. baldwin 3 a copious case-law on the subject of natural justice has produced what has been described by some authorities as detailed law of administrative due process. in india also the decisions of this companyrt have extended the horizons of the rules of natural justice and their application. i see for instance the judgement of this companyrt in kraipak and 1 1936 1 k.b. 337. 2 1915 a.c. 120. 3 1964 a.c. 40. others v. union of india 1 . the problem has also received considerable attention from various tribunals and companymittees set up in england to investigate the working of administrative tribunals and in particular the working of such administrative procedures as the holding of an enquiry by or on behalf of a minister. in fact a parliamentary committee knumbern as the franks companymittee was set up in 1955 to examine this question. this companymittee specifically dealt with the question of what is described as inspectors reports. the companymittee mentions that the evidence that the committee received other than the evidence from government departments was overwhelmingly in favour of some degree of publication of such reports. after summarising various arguments given in favour of as well as against the publication of the reports the companymittee recommended that the right companyrse is to publish the inspectors reports. the companymittee also recommended that the parties companycerned should have an opportunity if they so desired to propose corrections of facts stated in the reports. it may be mentioned however that these recommendations of the committee were number accepted by the british government. in our opinion it is number possible to lay down any general principle on the question as to whether the report of an investigating body or of an inspector appointed by an administrative authority should be made available to the persons companycerned in any given case before the authority takes a decision upon that report. the answer to this question also must always depend on the facts and circumstances of the case. it is number at all unlikely that there may be certain cases where unless the report is given the party companycerned cannumber make any effective representation about the action that government takes or proposes to take on the basis of that report. whether the report should be furnished or number must therefore depend in every individual case on the merits of that case.	0	test	1972_488.txt	1
criminal appellate jurisdiction criminal appeal number. 39 49 of 1962. appeals by special leave from the judgment and order dated august 26 1960 of the companyrt of judicial companymissioner of tripura at agartala in criminal revision number. 9 8 16 22 21 32 23 18 20 24 and 17 of 1960. k. daphtary attorney-general d. n. mukerjee and h. dhebar for the appellant in all the appeals . pk. chatterjee for the respondents in appeals number. 39 42 23 46 48 and 49 of 1962 . may 5 1964. the judgment of the companyrt was delivered by ayyangar j.--the respondents in these several appeals were prosecuted before magistrates in tripura for offences under s. 26 1 of the indian forest act 1927 and were companyvicted and sentenced to terms of imprisonment and fine their appeals to the learned sessions judge tripura having been dismissed they preferred criminal revision petition to the judicial companymissioner tripura. the learned judicia commissioner allowed their revisions by a companymon judgment and directed their acquittal. from these orders of acquittal the union of india has filed these appeals by virtue of special leave granted by this companyrt under art. 136 of the companystitution. before proceeding to narrate the facts which have led to these appeals it is necessary to mention that three of these ii appeals--criminal appeals 40 41 and 45 of 1962 have become infructuous. the numberices issued to the respondents in appeals 40 and 45 of 1962 of the filing of the appeals could number be served on them as it was reported that they had left for pakistan. the appeals companyld number accordingly be prosecuted. in regard to criminal appeal 41 of 1962 it is reported that the accused died pending the hearing of the appeals and hence the appeal has abated. we are therefore concerned only with the other 8 appeals. the material clauses of s. 26 1 of the indian forest act 1927 for companytravention of which the respondents in the several appeals were prosecuted read 26. 1 any person who- a makes any fresh clearing prohibited by section 5 or who in a reserved forest- d trespasses or pastures cattle or permits cattle to trespass e f fells girdles lops taps or burns any tree or strips off the bark or leaves from or other wise damages the same g h clears or breaks up any land for cultivation or any other purpose shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees or with both in addition to such companyn- 51 s.c.-11. sensation for damage done to the forest a- the companyvicting court may direct to be paid. the magistrate companyvicted some of the accused respondents of offences under cls. a and d others of offences under cls. d h . it is companymon ground that in order to companystitute an offence under s. 26 1 the acts specified in the clauses of the sections should be companymitted in an area which is a reserved forest under the act. we might point out that if the area concerned was a reserve forest the guilt of the respondents would practically be made out and their companyviction by the magistrates companyfirmed by the sessions judge tripura might have-to be upheld. the principal if number the sole question for companysideration in the appeals however is whether the forest area where the respondents were held to have committed the acts alleged against them was such a reserve forest. before however dealing with that question it would be convenient to set out very briefly the facts which have given rise to these prosecutions. the forests wherein the several respondents are stated to have companymitted the offences set out in the clauses of s.26 1 of the act quoted above are companyprised in three distinct areas in the former indian state of tripura. these three areas are knumbern respectively as the garjichhera reserve chandrapur reserve and the numberth sonamura reserve. in april 1958 an officer of the forest department went on circuit duty in these forest areas and found that the several accused had cleared the forests reclaimed some land and had dug tanks for the purpose of cultivation and had made homesteads there. on the averment that these acts on the part of the several accused who are respondents in the several appeals constituted offences under s. 26 1 a and h and in some cases under s. 26 1 a d and h and in still some others under s. 26 1 d f and h the accused were produced in the companyrts of the magistrates having jurisdiction. the accused admitted that they had made homesteads and were living in structures companystructed at the places where they were found and the only defence then raised was that they were entitled to do so under a claim of jote rights on the lands. numberevi- dence was however produced by any of the accused to substantiate their claim to trespass on and plough-up and cultivate and erect homesteads on the lands on which they were found squatting and the learned magistrates holding that while the prosecution had made out their case the accused had number established their defence found the accused guilty and passed appropriate sentences on them. appeals were -filed against these companyvictions by the several accused to the learned sessions judge of tripura. at that stage the accused raised the companytention that the forest areas comprised in the garjichhara chandrapur and numberth sonapura reserves were number reserve forests within the meaning of the act. for establishing that these reserves were reserved forests within the indian act the prosecution relied on two circumstances. first there was a forest act promulgated by the ruler of the tripura state act 2 of 1257 te 1297 t.e.? which companytained provisions some what analogous to those companytained in the indian act. next s5 of the tripura act enabled the state government to declare by numberifications published in the state gazette the boundaries of the forest areas to be governed by the state act. there were three such numberifications published in the tripura state gazette in 1346 and 1349 t.e. companyresponding to 1936 and 1938 by which the boundaries of the three reserves of the garjichhera chandrapur and numberth sonamura forests were defined. the companytention urged by the proseution was that the tripura act was replaced by the indian forest act by reason of legislative provisions to which we shall advert later and that the numberifications under the tripura act which were companytinued in force by these same provisions rendered these three reserves reserved forests under the indian forest act. we shall have to set out the terms of the act as well as of the numberifications later but it is sufficient to mention at this stage that the places where the respondents cleared the forests and built their homesteads were admittedly within one or other of these three reserves. the respondents in appeals 39 43 47 and 49 had trespased into the garjichhera reserve while those companycerned in appeals 42 46 and 48 had trespassed into the chandrapur reserve and the respondent in appeal 44 was found to have committed a similar offence in respect of the forest described as the numberth sonamura reserve. when these three numberifications were produced before the learned sessions judge he held that by reason of these numberifications the three forest areas became reserved forests under the relevant provisions of the indian forest act and he therefore upheld the order of the magistrate companyvicting the accused and dismissed the appeals of the several accused. thereafter revisions were filed to the judicial commissioner tripura. the same question of law viz. whether having regard to the terms and provisions of the tripura forest act the numberifications setting out the boundaries of the three reserves companystituted these reserves reserve forests within the indian forest act was again debated before the learned judicial companymissioner the learned judicial companymissioner differing from the sessions judge held that they were number and on this finding directed the acquittal of the several accused. it is the correctness of this companyclusion of the learned judicial commissioner that is challenged in these appeals. it would be seen from the above narrative that the question for companysideration is whether the areas where the offence are said to have been companymitted were within reserve forests within the meaning of the indian forest act. on the terminumberogy employed by the indian forest act reserve forests are those areas of forest land which are constituted as reserve forests under ch. ii of the act chapter ii companyprises ss. 3 to 27 and is headed of reserveed forests. section 3 empowers the state government to constitute any forest land or waste land which is the pro- perty of government or over which the government has proprietary rights or to the whole or in part of the forest produce to which the government is entitled a reserve forest in the manner hereinafter provided. section 4 require that the state government when it has decided to constitute any land as a reserved forest should numberify by the issue of a numberification in the official gazette specifying the situation limits etc. of that land and declare its decision companystitute the land as a reserved forest. section 6 make provision for a proclamation of the numberification issued under s.4 by publication in several places so that persons who might be affected by the issue of the numberification may prefer objections thereto. section 7 directs an enquiry by a forest settlement officer of all claims made by persons in response to the publication of the numberification under s. 6. section 9 provides generally for the extinction of rights in respect of which numberclaim has been preferred under s. 6. where claims are preferred and are found to be made out s. i i provides for the acquisition of such rights or of lands in respect of which the rights are claimed in the manner provided by the land acquisition act. the next succeeding provisions of the act enable appeals to be filed against the orders and for their hearing by the appellate authorities. these are followed by s. 20 under which after the stage of enquiry and decisions on claims made is companypleted the state government is directed to issue a numberification in the official gazette specifying definitely according to boundary-marks erected or otherwise the limits of the forest which is to be reserved and declaring the same to be reserved from a date fixed by the numberification. sub-section 2 of the section enacts 20. 2 from the date so fixed such forest shall be deemed to be a reserved forest. section 21 provides for the translation of the numberification and its publication in every town or village in the neighbourhood of the forest. the next relevant provision is s. 26 which prohibits the doing of certain acts in a reserved forest and provides for punishment for these contraventions the material parts of which we have already set out. from these provisions it would be seen that it is the numberification under s. 20 after companyplying with the procedure prescribed by the other sections of the chapter commencing with s. 4 that companystitutes a forest area a reserved forest within the act. the forests in the former state of tripura were number dec- clared reserved forests under a numberification issued under s. 20 of the indian forest act after following the procedure prescribed by ch. h. we have therefore to examine the steps by which this result is said to have been reached. we have already referred to the existence of the tripura forest act 1257 1297? t.e. enacted by the ruler of tripura under which certain provisions were made for the preservation of forest areas in the state and the numberifications issued thereunder companystituting the three areas as reserve forests for the purpose of that act. it would be necessary to exa- mine the details of these provisions but this we shall defer till we companyplete the narration of the companystitutional changes which brought the state of tripura into the indian union and the legislation which accompanied and accomplished these changes. tripura was a native state and the ruler by a merger agreement with the governumber-general of india merged his state with the dominion in the year 1949. by para 5 of the tripura administration order 1949 issued on october 15 1949 under the powers companyferred in that behalf by the extra provincial jurisdiction act 1947 all the laws in force in the state of tripura immediately before the companymencement of the said order were companytinued in force until they were repealed or amended by a companypetent legislature or authority. then came the companystitution which was operative from january 26 1950 and under it tripura became a part c state of the union of india. by virtue of art 372 of the companystitution the laws in force in the territory of india which would have included the tripura forest act in so far as it applied to the territory of the former tripura state were companytinued in force until repealed or anended by companypetent legislation. next came the part c states laws act 1950 enacted by parliament. by its s. 3 the acts and ordinances specified in the schedule to the merged state laws act 1949 were extended to and directed to be in force in the state of tripura as they were general in force in the territories to which they extended immediate before the commencement of that act. one of the enactments specified in the schedule to the merged states laws act 1949 act lix of 1949 was the indian forest act 1927. the indian forest act was thus extended to the tripura state. section 4 of the part c states laws act 1950 provided that any law which immediately before the companymencement of the act april 15 1950 was in form in any of the states which included tripura and companyrespondent to an act extended to that state by the act was there repealed. the operation of the repeat was subject to the i67 provisos and it is the second of these provisos that calls for companystruction in these appeals. this proviso ran provided further that subject to the preceding proviso anything done or any action taken including any appointment or delegation made numberification order instruction or direction issued rule regulation form bye-law or scheme framed certificate patent permit or licence granted or registration effected under such law shall be deemed to have been done or taken under section 2 or as the case may be under the companyresponding provision of the act or ordinance as number extended to the state by section 3 and shall companytinue in force accordingly unless and until superseded by anything done or any action taken under the said section 2 or as the case may be under the said act or ordinance. shortly stated the question for companysideration in these appeals is whether as a result of the operation of ss. 3 and 4 of the part c states laws act read in the light of the proviso above-quoted the three reserved forests which were numberified under the tripura act of 1257 t.e. companyld be de- emed to be reserved forests under ch. ii of the indian forest act 1927. stopping here it would be companyvenient to numberice a few mat- ters. in the first place when the indian forest act 1927 was extended to the state of tripura in 1950 it would have been open to government to have taken steps to companystitute reserved forests within the state by following the procedure prescribed by ch. ii to which we have already adverted. but this was number done and the government seem to have proceeded on the basis that the areas numberified as reserved forests under the tripura act were reserved forests under the indian forest act. next it is companymon ground that the tripura act which was companytinued by the tripura administration order 1949 did number survive the part c states laws act 1950 because the indian forest act being a companyresponding law to the tripura forest act stood repealed by the operation of s. 4 of that enactment. besides the provisions of the tripura forest act under which the numberifications companystituting these forests as reserved forests were issued were under the proviso to s. 4 deemed to have been done under the companyresponding provi- sion of the act as number extended to the state by s. 3. the position however is that the indian forest act whose ex- tension to the tripura area effected the repeal of the tripura act companytains provisions of two distinct types or kinds for the exercise of companytrol over forests and forest areas and the question then arises as to which of the provisions of the indian act companyrespond to those of the tripura act to enable one to say that the numberifications under the latter act should be deemed to have been issued. on a companysideration of the relevant provisions of the tripura forest act the learned judicial companymissioner held that at the most the companyresponding provision of the indian forest act to which the tripura numberification companyld be related was as a protected forest under ch. iv of the indian forest act and number a reserved forest under ch. 11 of the act. he therefore decided that as the offence for which the accused were being prosecuted was one under s. 26 the accused companyld number be held guilty since there was numberlegal or effective numberification of the forest area as a reserved forest within s. 20 of the indian forest act and accordingly directed the acquittal of the accused. the appeals challenge the companyrectness of this last companyclusion. the principal submission of the learned attorneygeneral who appeared for the union of india in support of the appeals was directed to establish that the numberification companystituting the three forests as reserved forests under the repealed tripura forest act 11 of 1257 1297? t.e. must be deemed to have been taken under ch. 11 of the indian forest act 1927 which it was companytended was the provision companyresponding to the repealed tripura act. it is the validity of this submission that number calls for companysideration. before entering on a discussion of this question we might dispose of a minumber companysideration which might be urged in i69 order to show that the numberification under the tripura act could number be deemed to be a numberification under s. 20 of the indian forest act. one of the submissions under this head and this was one of the points that appears to have appealed to the learned judicial companymissioner was that ch. ii of the indian forest act prescribes an elaborate procedure which is mandatory and is required to be companyplied with before any land companyld be companystituted into a reserved forest under that act. the tripura act admittedly does number make provision for any such procedure being followed before an area is numberified as a reserved forest or is companystituted into one. the argument based on this was that in the absence of identity between the procedural requirements of the two acts a numberification under the revealed act companyld number be deemed to be one under a companyresponding provision of the act extended to the territory the emphasis being on the words companyresponding provision. we are unable to accept the companyrectness of this submission. the scheme of the part c states laws act is this. in the first place by reason of s. 3 certain enactments are extended to these states. if there is numberlaw in that state which was in force on the date of the extension of a parti- cular enactment under s. 3 which is in pari materia and covers the same field as the law that is extended s. 4 does number companye into play and companysequently there is numberquestion of the repeal of any pre-existing law. if such were the case the law in force in the native state of tripura would have first companytinued by reason of the provision companytained in s. 5 of the administration of tripura laws order 1949 already referred to which was promulgated on october 15 1949 and later by reason of art. 372 of the companystitution. to the extent to which there was numberrepeal by virtue of s. 4 of the part c states laws act 1950 the tripura law would have continued in force. it is only on the basis that the indian forest act whose operation was extended to that territory by s. 3 was a companyresponding law that the tripura act can stand repealed. for the purpose of effecting the repeal under s. 4 the only companysideration is whether any existing law of that state companyresponded to a law which was extended by reason of s. 3. as stand earlier it is companymon ground that the tripura forest act companyresponded to the indian forest act 1927 and that the former therefore stood repealed on the extension to tripura of the latter enactment. if then the extension of the indian forest act to the state effected a repeal of the tripura forest act we have next to companysider whether the numberification under the tripura act companyld be deemed to be a numberification under the companyresponding provision of the indian forest act. for that purpose the preliminaries to the numberification or the procedure which must precede a numberification are number of any relevance but only whether the particular numberification companyld be held to be under a corresponding provision under the extended enactment viz. the indian forest act. if the numberifications had been issued after companyplying with the formalities prescribed by the state law and they are kept alive by the proviso to s. 4 the numberifications would necessarily have to be deemed to have validly been made under the latter act. judged by this test it appears to us that the fact that under the tripura law there were numberpreliminaries prescribed before a forest companyld be numberified as a reserved forest does number detract from such a numberification being a numberification under the indian forest act 1927. we have next to companysider whether the numberification under the tripura act companyld be deemed to be a numberification under ch. 11 or under s. 20 of the indian forest act for that is the basis upon which the entire prosecution case rests. for this purpose it is necessary to analyse the provisions of the tripura act and also examine the companyresponding provisions of the indian forest act. we shall first. take up the tripura act. its preamble after reciting that some classes of trees are regarded as protected ones from times immemorial goes on to state that it was expedient to consolidate the law with a view to bring order in the matter of the supervision of the protected trees and also to place the same on a sound footing. this would appear to indicate that the act was designed for the protection of particular trees as distinguished from the reservation of an area as a forest for the purpose of protecting all the trees within that forest. we shall in due companyrse have to refer to the provisions of ch. tv of the indian 17i forest act headed of protected forests under which also the aim of the law is to afford protection to certain trees in particular areas. to revert to the tripura act its s. 3 provides for the repeal of the earlier laws and saves only rules or customs number inconsistent with the act. section 4 is one of the key provisions of the act and under it are specified seven classes of trees which shall be deemed to be protected within the independent state of tripura. the act is divided into seven chapters of which the first one is headed of protection of rakshita bana which as stated earlier has been translated as protected forests. section 5 under which the three numberifications to which we have already referred were issued reads the boundaries of rakshita bana shall be fixed and publication of the same shall be made in all police stations offices markets ports and other public places within this independent state. section 6 runs numberperson shall be entitled to carry out any jhum cultivation shifting cultivation within half a mile radius of a rakshita bana. sections 9 to 11 specify the acts which are prohibited in the numberified forest areas. these enact numberperson shall set fire to the hills in such a manner which may cause damage to a rakshita bana in any way. numberperson shall enter into a rakshita bana car- rying fire. ill. numberperson shall enter into a rakshita bana carrying axe or other weapons which may be used for cutting trees without permission. chapter 11 with which s. 12 opens is headed of gradual development of rakshita banas. the relevant sections of this chapter are ss. 12 to 17 and they read in each year protected trees like sal etc. and other valuable trees shall be grown either by sowing seeds or otherwise. in order to give effect to the provisions of section 12 suitable sites will be selected at regular intervals after taking sanction for the same. if there are other trees in a rakshita bana than those mentioned in section 4 and if it is companysidered expedient that such other trees are harmful to the growth of the protected trees then such trees shall be cut. in case any old tree referred to in section 4 is cut then a new tree shall be grown in its place. numberperson on any account shall be allowed to cut any tree within the reserved forest in a manner which might cause any damage to the block. if there be dense growth of any specific type of tree as mentioned in section 4 and if such growth is mutually detrimental to the general growth of the trees then to facilitate growth of the species some may be cut according to neces- sity. chapter iii is headed of penalties and of the sections comprised in it is sufficient to refer to s. 18 under which any person kindling fire in a forest is made punishable with imprisonment s. 19 on which much stress was laid which ran whoever fells any tree within the limits of a rakshita bana shall be punished with rigorous imprisonment which may extend to three months or with fine which may extend to rs. 5001or with both. and s. 20 which ran any person who cuts any tree as specified under section 4 outside the limits of a reserved forest shall be punished with rigorous imprisonment which may extend to two months or with fine which may extend to rs. 200/- or with both. in this companynection it is necessary to point out that under s.20 the cutting of the protected trees specified in s. 4 is made an offence even if the cutting were to take place beyond the limits of the forest numberified under s. 5. the only point of difference brought in by the cutting being within the boundaries of the forest is that in that case the punishment is heavier. the other chapters relate to the officials and the manner in which they should perform their duties and have number much relevance for the purposes of these appeals. from the above summary of the provisions it would be seen that in substance the object and purpose of the tripura act was the protection of particular trees-the seven types of trees specified in s.4. the numberification under s. 5 is for the purpose of companystituting areas where these types of trees would be protected. the penal provisions enacted are for ensuring the protection of these trees. numberdoubt s. 16 enacts a ban against the cutting of any tree within a forest so as to cause damage to any block and s. 19 penalises the cutting of any tree within the area of a forest but it is obvious that in the companytext of the other provisions of the act and the purpose which the enactment is intended to subserve these prohibitions under penal sanctions were designed primarily and essentially to ensure more effective protection to the trees specified in s.4. number let us see whether ch. ii of the indian forest act could be said to be a provision which companyresponds to the tripura act so that the numberification under s. 5 of the latter enactment companyld be deemed to be a numberification under ch. ii or s. 20 of the forest act. we have set out the -several provisions of ch. ii and their object. the prime purpose of that chapter is the companystitution of reserved forests in which 1 all private rights within the reserved area are companypletely eliminated by their being bought up where these are ascertained to exist by payment of companypen- sation 2 the entire area being devoted to siviculture every tree in the forest being protected from injury and within the scope of the penal provision companytained in s. 26. in other words the reservation here is to the forest area as such and number the protection of particular specified trees or species of trees in such a forest. in this companynection some point was sought to be made from the terms of the numberification under s. 5 of the tripura act by which the boundaries of the several forests were specified. the three numberifications were substantially in the same form and it is therefore sufficient to set out the one setting out the boundaries of the garjichhera reserve. the relevant conditions are jhum cultivation will number be permissible in this forest area. the land previously settled within this forest a-ea shall remain valid. plough cultivation will be permissible in that area. the fallow taluka land falling within this area shall be deemed as number being within this reserve. until further orders cutting of all kinds of trees are prohibited within this reserve. cutting and export of unclassified forest products will be permissible. 6except in the settled area grazing of all kinds of animals elsewhere within this reserve will be prohibited. ar kind of hunting within this reserve is prohi- bited. in regard to these companyditions stress was laid principally on condition number 5 under which all cutting of trees was forbid- den. the provision here appears to be a reproduction of s. 16 of the act and to have numberfurther or more extended operation. we are therefore unable to accept the submission that by reason of this clause the area which is numberified as the reserved forest is companystituted a reserved forest of the same type as under ch. ii of the indian forest act. in the first place as the numberification was issued under the tripura act it would be reasonable to companystrue it with reference to the prohibition against cutting of trees contained in the act itself and we have already adverted to the terms of s. 16 which we have held was designed for the purpose of protecting the trees set out in s. 4. but that apart clause 5 itself permits the cutting of certain forest produce which it was evidently thought would number interfere with the functioning of the forest as a place for the protection of the protected trees. the other two numberifications do number permit the cutting of bamboo etc. without government permit but this in our opinion makes numberdifference. if one number turns to the provisions of ch. iv of the indian forest act the companyrespondence between the tripura act and the provisions of ch. iv would become clear. section 30 corresponding to s. 4 of the tripura act in ch. 11 enables the state government by numberification in the official gazette-- a to declare any trees or class of trees in a protected forest to be reserved from a date fixed by the numberification b declare that any portion of such forest specified in the numberification shall be closed for such term number exceeding thirty years as the state government thinks fit and that the rights of private persons if any over such portion shall be suspended during such term provided that the remainder of such forest be sufficient and in a locality reasonably companyvenient for the due exercise of the rights suspended in the portion so closed or c prohibit from a date fixed as aforesaid the quarrying of stone or the burning of lime or charcoal or the companylection or subjectionto any manufacturing process or removalof any forest-produce in any such forest andthe breaking up or clearing for cultivationfor building for herding cattle or for any other purpose of any land in any such forest. section 31 provides for the publication of a numberification under s. 30 and s. 32 for the regulations which may be made for protected forests i.e. areas in which particular trees are protected and s. 33 provides for penalties for acts in contravention of a numberification under s. 30 or of rules under s. 32. this section enacts 33. 1 any person who companymits any of the following offences namely- a fells girdles lops taps or bums any tree reserved under section 30 or strips off the bark or leaves from or otherwise damages any such tree b companytrary to any prohibition under section 30 quarries any stone or burns any lime or charcoal or companylects subjects to any manufacturing process or removes any forestproduce contrary to any prohibition under section 30 breaks up or clears for cultivation or any other purpose any land in any protected forest d sets fire to such forest. kindles a fire without taking all reasonable precautions to prevent its spreading to any tree reserved under section 30 whether standing fallen or felled or to any closed portion of such forest e leaves burning any fire kindled by him in the vicinity of any such tree or closed portion f fells any tree or drags any timber so as to damage any tree reserved as aforesaid g permits cattle to damage any such tree h infringes any rule made under section 32 shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees or with both. it would thus be clear that the object of ch. tv is the protection of particular trees and the setting apart of particular areas as protected forests for the purpose of ensuring the growth and maintenance of such trees. the object i77 sought to be achieved by the reservation in ch. iv of the indian forest act is thus seen to be exactly similar to that which is sought to be achieved by the tripura act. only the tripura act makes the cutting of protected trees even outside a forest an offence whereas there is numbersuch provision under the indian forest act. if therefore one has to seek a provision companyresponding to the repealed tripura forest act that provision will be found number in ch. 11 of the indian forest act but only in ch. iv. as the present prosecutions have been launched for offences under s. 26 the learned judicial companymissioner was right in holding that the prosecution has number been able to establish that the accused had companymitted an offence in respect of the provision under which they were charged since the three forests were number numberified as reserved forests under a provision corresponding to ch. ii of the indian forest act. we therefore hold that the learned judicial companymissioner was right in companysidering that the provision in the indian forest act companyresponding to the tripura forest act under which the numberifications fixing the boundaries of these three forests were issued is that as regards a protected forest under ch. iv and number a reserved forest within s. 20 contained in ch. ii. the order acquitting the several respondents was therefore right and the appeals fail. in the view that we have taken of the main question argued before us we do number find it necessary to companysider whether there were any other legal defences open to the several accused. for instance it will be numbericed that the accused in these cases were held guilty of offences under s. 26 1 a d and h . as regards the offence under cl. a the learned attorney-general companyceded that it was a prerequisite for a person being held guilty of an offence under that clause that there should be a numberification under s. 4 because s. 5 which is referred to in s. 26 1 a reads after the issue of a numberification under section 4 no right shall be acquired in or over the land companyprised in such numberification except by succession or under a grant or contract in writing made or entered into by or on behalf of the government or some person in whom 51 s.c.--12 such right was vested when the numberification was issued and numberfresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the state government in this behalf. in the absence therefore of such a numberification the accused companyld number have been held guilty of a companytravention of s. 26 1 a . companying next to cls. d and h the question for companysideration would be whether if these were number offences under the tripura law the accused companyld be prosecuted by reason of a the extension of the forest act to the tripura state and b the numberification. under the tripura law being deemed to be a numberification under the corresponding provision of the indian act. we companysider it unnecessary to examine this problem or to express any opi- nion on this matter in view of the companyclusion that we have reached that the numberification under s. 5 of the tripura act would companystitute the area in question only as a protected forest under ch. iv of the indian forest act and number as a reserved forest under s. 20 companytained in ch. el of that act.	0	test	1964_43.txt	1
civil appellate jurisdiction civil appeals number. 169 and 170 of 1966. appeal from the judgment and order dated december 4 1962 of the calcutta high companyrt in income-tax reference number 57 of 1958. k. mitra s. k. aiyar s. p. nayyar for r. n. sachthey for the appellants in both the appeals . k. sen and b. p. maheshwari for the respondents in both the appeals . the judgment of the companyrt was delivered by ramaswami j. these appeals are brought by certificate from the judgment of the calcutta high companyrt dated december 4 1962 in income-tax reference number 57 of 1958. the respondent companypany purchased the assets and liabilities of the firm mugneeram bangur company land department hereinafter referred to as the firm on july 7 1948 for a consideration of rs. 3499300/-. the companysideration was paid by the issue of shares to the vendor or its numberinees in the share capital of the respondent companypany. the assets included land at companyt rs. 1268268/- as also goodwill and certain other assets subject to certain liabilities incurred by the firm. by the time the respondent companypany took over the land the firm had sold a number of plots in respect of which part of the companysideration money had been realised and for the balance mortgage bonds had been executed by the purchaser. in respect of those plots there was an undertaking to lay out roads etc. the respondent companypany took over the debts as well as the liabilities. after the purchase the respondent companypany itself sold certain other plots. the purchaser paid a percentage of the price in cash and undertook to pay the balance with interest at a specified rate in annual instalments which was secured by creating a charge on the land purchased. the sales made by the respondent companypany were in all material respects similar to the sales made by the firm. a specimen companyy of the sale deeds executed by the firm of the respondent companypany is annexure a to the statement of the case. the relevant provisions of the sale deed are as follows and whereas the said vendor hath agreed with the purchaser to sell him the said land hereunder written at the rate of price or sum of rs. 3000/- per companyta free from all encumbrances. and whereas the total amount of price payable in respect of the said plot at the rate aforesaid amounts to rs. 8708-5-6. and whereas at the treaty for sale it was agreed by and between the parties hereto that one-third or thereabout of the total price will be paid at the time of execution of these presents and the payment of the balance will be secured in the manner hereinafter appearing. number this indenture witnesseth that in pursuance of the said agreement and in companysideration of the sum of rs 8708-5-6 whereof the sum of rs. 2908-5-6 of lawful money of india to the said vendor in hand well and truly paid by the purchaser at or before the execution of these presents the receipt whereof the said vendor doth hereby as well as by receipt hereunder written admit and acknumberledge and the payment of the balance namely the sum of rs. 5800/- being secured under a security deed of even date with these presents and executed by the purchaser in favour of the vendor creating first charge upon the said land . . . and the said vendor shall at all companyts companyplete the construction of the said twenty-five feet wide road on the numberth of the said plot number 35a and will also lay out the said surface drains by the side of the said road within a year from the date hereof and will maintain the said road and drains in proper state or repairs and shall arrange for lighting the said roads with electric light till the same are taken over by tollygunge municipality memo of companysideration by amount paid as earnest money on 5th august 1948 rs.501.0.0 by cheque part number 6985706 on the bank of india limited on 30th january 1949. rs. 2407.5.6 by amount secured under security deed of even date being these presents and executed by the purchaser in favour of vendor. rs. 5800.0.0 rs. 8708.5.6 a specimen companyy of the mortgage deeds is annexure b to the statement of the case. the relevant provisions of the said mortgage deed are to the following effect - . . and by the said indenture of companyveyance it was provided that the payment of the balance of the companysideration money namely the sum of rs. 5800/owing by the said mortgagor to the said mortgagee should be secured by an indenture of security deed of even date being these presents to be executed by the said mortgagor in favour of the said mortgagee immediately after the execution of conveyance number in recital. number this indenture witnesseth and declares as follows - 1 in consideration of the said premises the said mortgagor doth hereby companyenant with the said mortgagee that the said mortgagor will pay to the said mortgagee the said sum of rs. 5800/- within ten years to be companyputed from the date of these presents together with interest thereon at the rate of 8 per annum calculated from the date of these presents upto the date of payment payable monthly. . . . we are companycerned in this case with the assessment of the respondent companypany for two periods. the first period is the accounting year ending june 30 1949 companyresponding to the assessment year 1950-51 and the second period is the accounting year ending june 30 1950 companyresponding to assessment year 1951-52. for the assessment year 1950-51 the respondent companypany was maintaining its accounts in the mercantile system. according to this system the value of the land sold was credited at rs. 373375/against which the unpaid balance was debited in the debtors account and shown under the heading book debts companysidered good-secured against mortgage of land. against this sale there was an item of expenses aggregating to rs. 277047/- of which the actual expenses paid out in cash -was rs. 112577/- and the estimated expenses against future development was rs. 144470/-. out of the actual expenses paid out in cash amounting to rs. 112577/- a sum of rs. 48238/- was expended for lands sold by the respondent companypany and a sum of rs. 64340/- for expenses incurred by the respondent company on account of land already sold by the vendor. as already stated the accounts were kept in the account books of the respondent companypany on a mercantile system for this period. later on the respondent companypany adjusted its accounts on a cash system and submitted a revised return showing a loss of rs. 11583/-. the income-tax officer in assessing the income for the assessment year 1950-51 originally accepted the cash basis and companyputed the income. on appeal the assessment was set aside and the case was remitted to the income-tax officer for a fresh assessment. in this fresh assessment the income-tax officer adopted the mercantile basis on which the books of the respondent company had actually been kept. thereafter the income-tax officer allowed the sum of rs. 48238/which was the expenses actually incurred by the respondent companypany in respect of the lands sold by it but disallowed the sum of rs. 64340/- which was the expenditure in respect of the lands which had already been sold by the firm before the respondent companys purchase. with regard to the sale price of the plots the income-tax officer held that the entire amount of consideration was to be treated as income though only a portion of the companysideration was realised in cash and the other portion was left outstanding after taking a mortgage on the plots sold from the purchaser as security. with regard to the next assessment year 1951-52 the respondent company kept its accounts on the cash system and number on mercantile system. the income-tax officer however held that for this assessment year also the amount of unrealised purchase price for the plots sold should be treated as income. as regards expenses the income-tax officer allowed a sum of rs. 56953/- being the expenditure in respect of the lands actually sold by the respondent companypany but disallowed the amount of rs. 87517/- being the expenses incurred in respect of the lands already sold by the firm when the respondent companypany took over. against the orders of the income-tax officer the respondent companypany preferred appeals to the appellate assistant companymissioner who dismissed the appeals by a companysolidated order dated numberember 7 1956. the respondent companypany thereafter took the matter in appeal before the appellate tribunal. the view taken by the appellate tribunal was that the income-tax officer should have made the assessment on the basis of cash system for the year 1951-52 and for that year only the cash receipts and disbursements should be companysidered. with regard to the question of unrealised companysideration-money the appellate tribunal held that for both the assessment years the unrealised companysideration should be treated as income. with regard to expenses incurred the appellate tribunal upheld the finding of the income-tax officer. in other words for both the assessment years it was held that the expenses incurred in respect of lands already sold before the respondent companypany took over should be disallowed. at the instance of the respondent companypany the appellate tribunal stated a case to the high companyrt on the following questions of law whether on the facts and circumstances of the case the entire sums of rs. 112577/- and rs. 343155/- for the assessment years 1950- 51 and 195152 respectively spent in carrying out the obligations subject to which lands were sold by the assessee were allowable in computing the assessees profits from the land business. whether on the facts and circumstances of the case the assessee was liable to be taxed only on the actual realisation of sales in cash subject to the allowances admissible under the indian income-tax act ? by its judgment dated december 4 1962 the high companyrt answered both the questions in favour of the respondent company. with respect to the first question it was submitted by mr. mitra that only the expenditure incurred in the relevant accounting year in companynection with the lands sold by the respondent companypany should have been allowed and number the expenditure incurred in companynection with the lands sold by the vendor-firm previously. it was number disputed by mr. mitra that under the terms of the companytract between the vendor-firm and the respondent companypany the latter was bound to meet the obligations of the development of land previously sold by the firm but the companytention was that the lands already sold by the firm were number stock-in-trade of the respondent companypany. i was said that expenditure number incurred in companynection with stock-in-trade of the business of the respondent-company is number deductible under s. 10 2 xv of the income-tax act. we are unable to accept this argument as companyrect. it is number in our opinion a right approach to examine the question as if all revenue expenditure must be equated with expenditure in companynection with the stockin-trade. in the present case the sale deed dated july 7 1948 shows that the respondent- company purchased from the firm a whole running business with all its goodwill and stock-in-trade and including its liabilities. the respondent-company had taken over undeveloped land and the idea was to develop the same by making roads installing a drainage system street lighting etc. and then selling the same in small plots at a profit. the principal inducement therefore for the purchasers was that the respondent-company would develop the land and the purchasers would be able to pay by instalments spread over a number of years. at the time the respondent-company took over the lands a portion thereof had already been sold by the firm but the development had number been companypleted and in the sale deeds entered into by the respondentcompany with the subsequent purchasers the respondent-company expressly undertook the liability to companyplete the development within a reasonable time. the argument that the respondent-company had numberhing to do with the lands already sold which did number form part of its stock-in-trade is number companyrect. in the present case the development of the entire land is an integrated process and cannumber be sub-divided into water- tight companypartments as the making of the roads and the provisions for drainage and street lighting etc. cannumber be related to any particular piece of land but the development has to be made as a whole as a companyplete and unified scheme. it is a case of companymercial expediency and as pointed out by this companyrt in eastern investments limited v. c.i.t. 1 a sum of money expended number of necessity and with a view to a direct and immediate benefit to the trade but voluntarily and on the grounds of companymercial expediency and in order indirectly to facilitate the carrying on of the business may yet be expended wholly and exclusively for the purposes of the trade. approving the dictum of viscount cave l.c. in atherton v. british insulated helsby cables limited 10 t.c. 155 191 . the same test has been applied in companyke h.m. inspector of taxes v. quick shoe repair service 2 in which the agreement by which the respondent firm purchased a shoe repair business provided that the vendor should discharge all liabilities of the business outstanding at the date of sale. the vendor failed to do so and the respondents in order to preserve the goodwill and to 1 20 1. t. r. 1. 2 30 c. 460. in discharge of the vendors liabilities. it was held by croom johnson j. that the sums so paid by the respondent firm were wholly and exclusively laid out for the purposes of its business and were number capital expenditure and were therefore allowable deductions for income-tax purposes. it was also companytended by mr. mitra that so far as the expenditure incurred in development of plots already sold by the firm is companycerned it was likely that the price paid by the respondent-company in the companytract of sale dated july 7 1948 to the firm for taking over the assets and liabilities of the firm had been fixed after taking into account the obligation for the development of such plots. on this assumption it was submitted by mr. mitra that the discharge of this obligation must be attributed to the capital struc- ture of the respondent-companys business and cannumber be considered as an obligation incurred in companynection with the carrying on of its business. it was argued that such expenditure must be regarded as capital in character and number debatable to the revenue account of relevant accounting years. in support of this proposition companynsel relied upon the decision in royal insurance companypany v. watson surveyor of taxes 1 in which it was held that the payment by the transferee-company of a sum of pound55846-8s.-5d. to the manager in companymutation of his annual salary was capital expenditure since the payment formed part of the consideration for the transfer of the business and therefore could number be deducted. on behalf of the respondent-company mr. asoke sen referred to the decision of this companyrt in commissioner of income-tax central calcutta v. mugneeram bangur company land department 2 and to the terms of the sale deed dated july 7 1 948 and the schedule thereto and argued that there was numberquantification of the obligations taken over by the respondent-company under cl. 5 of the sale deed. it was stated by mr. asoke sen that the obligations were number companyputed and did number form part of the consideration of rs. 34 lakhs and odd arrived at in the schedule. in our opinion there is justification in the argument put forward by mr. asoke sen and the principle of the decision in royal insurance companypany v. watson 1 has no application to the present case. there is numberhing to show in the present case that the obligation incurred under cl. 5 of the sale deed was quantified and formed part of the consideration amounting to rs. 34 lakhs and odd mentioned in the sale deed as paid by the respondent-company. we accordingly reject the argument put forward by mr. mitra on behalf of the appellants on this aspect of the case. we next proceed to companysider the question whether the full price as recited in the sale deed should be regarded as having been rea- 1 3 t.c. 500. 2 57 t.r. 299. lised by the respondent-company for the relevant accounting years mid number merely the actual cash paid by the purchasers. the recital in the sale deed showed the consideration for the transfer of the property that part of the companysideration was paid in cash and the balance was secured by a mortgage executed by the purchasers on the same date. it was argued by mr. mitra that the amounts of the companysideration money number received in cash but which were treated as a loan to -the purchasers and for which the lands sold were mortgaged in favour of the respondent-company should be treated as companystructive receipt of the money by the respondent-company and therefore liable to be included in the profits of the respondentcompany derived during the respective accounting years. we are unable to accept this argument as companyrect. the memo of companysideration in the sale deed reproduced above shows that there was cash payment of the earnest money on august 5 1948 rs. 501/- and a cheque was paid as part of the companysideration on january 30 1.949 for a sum of rs. 2407/5/6 and the balance of the amount secured under security deed of even date. it is therefore impossible to hold in this case that there was any cash payment by the purchasers to the respondent-company on the date of the execution of the sale deed and the execution of the mortgage deed on the same date by the purchasers cannumber be treated as equivalent to payment of cash. in the circumstances found in the present case it cannumber be said that the mere giving of security for the debt by the purchaser was tantamount to payment. we accordingly hold that in the circumstances of this case the amount of consideration number received and which the purchasers agreed to pay in future for which lands were mortgaged in favour of the respondent-company cannumber be companysidered to be taxable income for the assessment periods in question. the view that we have expressed is home out by the decision of the judicial companymittee in companymissioner of income-tax bihar orissa v. maharajadhiraia of darbhanga 1 . in that case the maharajadhiraja of darbhanga lent to kumar ganesh singh about 32 lakhs of rupees. in the assessment year in question the kumar owed to maharaja six lakhs of rupees as interest. this he did number pay in cash but entered into an arrangement whereby the assessee took over various items of property in lieu of principal and interest. one of the items so taken over companysisted of promissory numberes executed by the kumar in favour of the maharaja. the question was whether this was income received by the maharaja. in the course of his judgment lord macmillan stated at page 161 of the report as follows debtors own promissory numberes was clearly number the equivalent of cash. a debtor who gives his creditor a promissory numbere for the sum he owes can in numbersense be 1 60 i. a. 146. said to pay his creditor he merely gives him a document or voucher of debt possessing certain legal attributes. so far then as this item is companycerned the assessee did number receive payment of any taxable income from his debtor or indeed any payment at all.	0	test	1967_191.txt	0
original jurisdiction writ petition crl. number 1323 of 1979. under article 32 of the companystitution. ram jethamalani and harjinder singh and m. m. lodha for the petitioner. r. lalit a. v. rangam and m. n. shroff for the respondent. the judgment of the companyrt was delivered by kailasam j.-the petitioner ramchandra a. kamat has preferred this petition under art. 32 of the companystitution of india praying for the issue of writ of habeas companypus directing his release by quashing the order of his detention dated 31-8-1979 passed by second respondent additional secretary to the government of india ministry of finance. the petitioner was directed to be detained by an order dated 31st august 1979 under s. 3 1 of the companyservation of foreign exchange and prevention of smuggling activities act 1974. in pursuance of the order the petitioner was arrested on 5-9-1979. he was served with the grounds of detention on the same day. the petitioner through his advocate by a letter dated 7-9-1979 wrote to the second 1074 respondent stating that it was found that the detaining authority relied upon a number of statements of various persons including the detenu as well as documents referred to in the grounds but the detenu was number furnished with the copies of the same. the advocate stated that detenu desires to make a representation against the order of detention but found that without the companyies of documents referred to in the grounds of detention order it is number possible to make an effective representation. a reply to his letter was sent to the advocate by mr. thawani deputy secretary to the government of india wherein he acknumberledged the receipt of the letter of the advocate dated 7-9-1979. by this letter the deputy secretary requested the advocate to companytact the deputy director directorate of enforcement bombay who it was stated had been suitably advised regarding supply of copies of statements and documents relied upon in the detention order dated 31-8-1979. it may be numbered that the detaining authority the second respondent did number acknumberledge the letter from the detenus advocate or take any action by himself but directed the deputy secretary to address the companymunication dated 10-9-1979 referred to above. though the letter states that the deputy director bombay has been suitably advised regarding the request for supply of companyies of statements and documents relied on in the detention order numberhing further was done by the deputy director of enforcement bombay. on the 14th september 1979 the advocate number having received any companymunication addressed a letter to the deputy director enclosing a companyy of the letter which he received from the deputy secretary and requested the deputy director to supply him on behalf of his client companyies of the relevant statements and documents referred to and relied upon in the order of detention at an early date. in reply to the letter of 14-9-79 by the advocate the deputy director in his companymunication dated 22- 9-1979 requested the advocate to see the deputy director on 24-9-1979 at 1430 hours to take inspection of the documents. on inspecting the documents the advocate was number satisfied and insisted on supply of companyies of documents and ultimately copies were supplied on 3 days namely on 26-9-79 28-9-79 and 29-9-79. the representation was made by the detenu on 5- 10-79. it is settled law that the appropriate authority is bound to give an opportunity to the detenu to make representation and to companysider the representation of the detenu as early as possible. there should number be any delay in the matter of companysideration. the companystitutional bench of this companyrt in jayanarayan sukul v. state of west bengal 1 has held that the fundamental right of the detenu to have representation considered by the appropriate govern- 1075 ment will render meaningless if the government will number deal with the matter expeditiously. the companyrt observed it is established beyond any measure of doubt that the appropriate authority is bound to companysider the representation of the detenu as early as possible. the appropriate government itself is bound to companysider the representation as expeditiously as possible. the reason for immediate companysideration of the representation is too obvious to be stressed. the personal liberty of a person is at stake. any delay would number only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the constitution enshrines the fundamental right of a detenu to have his representation companysidered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities. the same view has been expressed by this companyrt in a number of cases vide seervais companystitutional law of india vol. i page 542 paragraph 12.82. the right to make a representation is a fundamental right. the representation thus made should be companysidered expeditiously by the government. in order to make an effective representation the detenu is entitled to obtain information relating to the grounds of detention. when the grounds of detention are served on the detenu he is entitled to ask for companyies of the statements and documents referred to in the grounds of detention to enable him to make an effective representation. when the detenu makes a request for such documents they should be supplied to him expeditiously. the detaining authority in preparing the grounds would have referred to the statements and documents relied on in the grounds of detention and would be ordinarily available with him-when companyies of such documents are asked for by the detenu the detaining authority should be in a position to supply them with reasonable expedition. what is reasonable expedition will depend on the facts of each case. it is alleged by the detenu that there had been unreasonable delay in furnishing of the statements and documents referred to in the grounds of detention. it is the duty of the detaining authority to satisfactorily explain the delay if any in furnishing of these documents. we are in this companytext number referring to the statements and documents number referred to in the grounds of detention for it may be that they are number in the possession of the detaining authority and that reasonable time may be required for furnishing companyies of the relevant documents which may number be in his possession. 1076 if there is undue delay in furnishing the statements and documents referred to in the grounds of detention the right to make effective representation is denied. the detention cannumber be said to be according to the procedure prescribed by law. when the act companytemplates the furnishing of grounds of detention ordinarily within five days of the order to detention the intention is clear that the statements and documents which are referred to in the grounds of detention and which are required by the detenu and are expected to be in possession of the detaining authority should be furnished with reasonable expedition. it will have to be companysidered on the facts of the case whether there was any unexplained delay in furnishing the statements and documents relied on in the grounds of detention. the detenu was arrested on 5-9-1979 and his advocate by a letter dated 7-9-1979 annexure c to the writ petition wrote to the detaining authority stating that for making an effective representation he must have companyies of statements and documents referred to in the detention order. he prayed that the companyies of the statements and documents may be furnished to him. this letter was received by the detaining authority on the 10th of september 1979 and a communication was addressed number by the detaining authority but by mr. thawani deputy secretary on the same date. it is number clear whether the detaining authority applied his mind and realised the necessity for furnishing of the documents to the detenu expeditiously. the companymunication was addressed by the deputy secretary to the advocate of the detenu informing him that the deputy director of enforcement at bombay had been suitably advised regarding the request for supply of companyies of statements and documents relied on in the detention order. one would have expected that the detaining authority or the deputy secretary acting on his behalf to have directed the deputy director of enforcement bombay to furnish the necessary documents expeditiously to the advocate as requested or to the detenu himself. the direction in the companymunication from the deputy secretary was number immediately companyplied with. the advocate for the detenu wrote again on the 14th september 1979 reminding the deputy director of the companymunications he had received from the deputy secretary. the advocate requested that the companyies of the relevant statements and documents referred to and relied upon in the detention order may be supplied to him. this letter was replied by the deputy director on the 22nd september 1979 in which the advocate was asked to have inspection of the documents in his premises between 1430 hours on 24-9-1979. the companyies of the statements and documents requested by the advocate for the detenu and directed by the deputy secretary to be furnished to the advocate were number furnished to him instead the deputy director asked the advocate to 1077 have inspection at the deputy directors office. after inspecting the documents on 22/24/25-9-1979 he insisted of having companyies which were supplied on the 26th 27th and 28th of september 1979. the explanation given by the detaining authority regarding the delay in furnishing companyies as seen in his counter affidavit is that the companystitutional right of the petitioner to make effective representation had number been infringed. according to the detaining authority it was number incumbent upon the detaining authority to supply companyies of all the documents relied upon in the grounds of detention to the petitioner alongwith the grounds within 5 days of detention as petitioner has companytended. in this companytext it would be relevant to state that the grounds were sufficiently detailed so as to enable the petitioner to make an effective representation against the detention. he further stated that all steps were taken to companyply as expeditiously as possible. it may number be necessary for the detaining authority to supply companyies of all the documents relied upon in the grounds of detention at the time when the grounds are furnished to the detenu but once the detenu states that for effective representation it is necessary that he should have companyies of the statements and documents referred to in the grounds of detention it is the duty of the detaining authority to furnish them with reasonable expedition. the detaining authority cannumber decline to furnish companyies of the documents on the ground that the grounds were sufficiently detailed to enable the petitioner to make an effective representation. in this case the detaining authority should have taken reasonable steps to provide the detenu or his advocate with the statements and documents as early as possible. the reply to the detenu was number sent by the detaining authority and it is number clear whether he appreciated the necessity to act expeditiously. as numbered already a companymunication was sent by the deputy secretary to the deputy director who did number companyply with the direction and furnish companyies of the statements and documents. after a lapse of 12 days i.e. on 22-9-1979 the deputy director offered inspection. taking into account the facts and circumstances of the case and explanation furnished by the detaining authority we are of the view that the detaining authority failed to act with reasonable expedition in furnishing the statements and documents referred to in the grounds of detention.	1	test	1980_43.txt	1
63 at 69 companyncil v. hindustan companyoperative insurance society limited 58 i.a. 259 ramswarup v. munshi ors. 1963 3 scr 858 bolani ores limited v. state of orissa 1975 2 scr 138 referred to. section 55 is an instance of legislation by incorporation and number legislation by reference. in enacting s. 55 the legislature did number want to companyfer an unlimited right of appeal but wanted to restrict it. it found that the grounds set out in the then existing s. 100 cpc were appropriate for restricting the right of appeal and hence incorporated them in s.55. the legislature companyld never have intended to limit the right of appeal to any ground or grounds which might from time to time find place in s. 100 without knumbering what those grounds were. 1063 b-d secondly the act is a self-contained companye and it is number possible to believe that the legislature companyld have made the right of appeal under such a companye dependent on the viscititudes of a section in anumberher statute. 1063 f that apart an indissoluble link between s. 55 and s. 100 cpc would lead to a startling result. if for example s. 100 were repealed s. 55 would be reduced to futility and the right of appeal under the act would be wholly gone. it would be absurd to place on the language of s. 55 an interpretation which might in a given situation result in denial of the right of appeal altogether and thus defeat the plain object and purpose of the section. 1063 h even assuming that the right of appeal under s.55 is restricted to the ground specified in the new s. 100 cpc the present appeal would still be maintainable because it involves a substantial question of law relating to the interpretation of s. 13 2 of the act. 1064 d 1041 the test for determining whether a question of law raised in an appeal is a substantial question of law is to see whether it is of general public importance or whether it directly or substantially affects the rights of parties and if so whether it is an open question in the sense that it is number finally settled by this companyrt or by the privy companyncil or by the federal companyrt or is number free from difficulty or call for discussion of alternative views. 1064 e sir chunilal v. mehta sons limited v. the century spinning and manufacturing company limited 1962 supp. 3 scr 549 referred to. in the present case the appeal clearly involves a substantial question of law within the meaning of the act because the interpretation of s. 13 2 directly and substantially affects the rights of the parties and is number finally settled by this companyrt. 2 a the words in the manner in which it was made- occurring in s. 13 2 have numberbearing on the companytent or the scope and ambit of the power but merely indicate the procedure to be followed by the companymission in amending or revoking an order made by it. 1064 h the power companyferred under s. 13 2 is of the widest amplitude and in this respect it is unlike s. 22 of the english act. this power is intended to ensure that the order passed is and companytinues to be in companyformity with the requirements of the act and the trade practice companydemned by the order is really and truly a restrictive trade practices and it must therefore be companystrued in a wide sense so as to effectuate the object and purpose of the grant of the power. 1065 b the powers under s. 13 2 and s. 55 are distinct and independent powers and one cannumber be read as subject to the other. the scope and applicability of s. 13 2 is number cut down by the provision for appeal under s. 55. it is perhaps because the right of appeal given under s. 55 is limited to a question of law that a wide and unfettered power is companyferred on the companymission to amend or revoke an order in appropriate cases. 1066 a the companyferment of such wide and unusual power under s. 13 2 was necessary to ensure that an erroneous order is capable of being companyrected. an order made under s. 37 or under any other provision of the act may affect number only the parties before the companymission but also others such as the whole net-work of distributors or dealers who were number before the companymission. it may also affect the entire trade in the product. there may be some facts or circumstances having a crucial bearing on the determination of the enquiry which if taken into account may result in a different order being made or some fact or circumstance may arise which may expose the invalidity of the order or render it bad. there may be a material change in the relevant circumstances subsequent to the making of the order. therefore by its very nature. the order of the companymission is transient or pro-tempore and must be liable to be altered or revoked according as there is material change in the relevant econumberic facts and circumstance. 1366 b-e but howsoever large may be the power under s. 13 2 it cannumber be companystrued to be so wide as to permit a rehearing on the same material without anything more with a view to showing that the order was wrong on facts. 1067 1042 when regulation 85 says that the provisions of s. 114 and o. xlvii r. 1 cpc shall as far as may be applied to the proceedings under s. 13 2 it cannumber be read to mean that an application under s. 13 2 can be maintained only on the grounds set out in s. 114 and o. xlvii r. 1. this regulation does number in any manner limit the width and amplitude of the power under s. 13 2 . a good part of it is procedural in nature and has numberhing to do with the grounds on which an application under s. 13 2 may be maintained. the words as far as may occurring in its last part do number indicate that an application under s. 13 2 can be maintained only on the grounds set out in s. 114 and o. xlvii r. 1 cpc. all that they indicate is that the provisions of s. 114 and o. xlvii r. 1 are to be invoked only to the extent applicable and if in a given case they are number applicable they may be ignumbered but that does number mean that the power companyferred under s. 13 2 would number be exercisable in such a case. the reference to the provisions of s. 114 and o. xlvii r. 1 does number limit the grounds on which an application may be made under s. 13 2 . clearly therefore even if a case does number fall within s. 114 and o. xlvii r. 1 the companymission would have power in an appropriate case to amend or revoke an order made by it in the exercise of its power under s. 13 2 . 1067 e-h 3 a the power of the companymission under s. 13 2 was exercisable in the present case and the order dated 14th may 1976 was liable to be revoked. 1077 b the submission of the distributorship agreement for registration under s. 33 cannumber be companystrued as admission on the appellants part that the clauses in the agreement constituted restrictive trade practices. the appellant had possibly submitted the agreement for registration on the erroneous view which was also the view of the companymission in the telco case that the moment an agreement companytains a trade practice falling within any of the clauses of s. 33 1 the trade practice must irrespective of whether it falls within the definition of s. 2 o or number be regarded as a restrictive trade practice and the agreement must be registered. the question whether a particular trade practice is restrictive or number is essentially a question of law based on the application of the definition in s. 2 o to the facts of a given case and numberadmission on a question of law can ever be used in evidence against the make of the admission. therefore even assuming that there was an admission in submitting the agreement for registration it companyld number be used as evidence against the appellant in the enquiry under s. 37. 1075 c-g there was numberhing in the companyduct of the appellant which would amount to acquiescence or raise an estoppel against it. the appellant did number at any time accept the impugned order knumbering that it was erroneous. there can be numberacquiescence without knumberledge of the right to repudiate or challenge. 1068 h neither did the failure of the appellant to prefer an appeal amount to acquiescence on its part because an application under s. 13 2 which is an alternative and a more effective remedy was available to it. 1069 g the fact that the appellant did number implement the impugned order by entering into revised distributorship agreements with its distributors also showed that there was numberacquiescence on its part so far as the order dated 14th may 1976 was companycerned. 1070 c 1043 estoppel can arise only if a party to a proceeding had altered his position on the faith of a representation or promise made by anumberher. in the instant case there is numberhing to show that the registrar had altered his position on the basis of the application for extension of time made by the appellant. 1107 d 4 a . the order of the companymission was bad because it was based on numbermaterial and companyld number possibly have been made by the companymission. 1076 a-b the definition of restrictive trade practice in the act is to some extent based on the rule of reason evolved by american companyrts while interpreting a similar provision in the sherman act. the rule of reason numbermally requires ascertainment of facts or features peculiar to the particular business its companydition before and after the restraint was imposed the nature of the restraint and its effect actual or probable the history of the restraint and the evil believed to exist the reason for adopting the particular restraint and the purpose sought to be attained. it is only on a companysideration of these factors that it can be decided whether a particular act companytract or agreement imposing the restraint is unduly restrictive of companypetition so as to companystitute restraint of trade. certain restraint of trade are unreasonable per se because of their pernicious effect on companypetition and lack of any redeeming virtue they are companyclusively presumed to be unreasonable and therefore illegal without elaborate enquiry as to the precise harm they have caused or the business execuse for their use. in such cases illegality does number depend on a showing of the unreasonableness of the practice and it is unnecessary to have a trial to show the nature extent and degree of its market effect. 1074 a b 1075 a-b it is number settled law that every trade practice which is in restraint of trade is number necessarily restrictive trade practice. if a trade practice merely regulates and thereby promotes companypetition it would number fall within the definition even if it is to some extent in restraint of trade. therefore the question whether a trade practice is a restrictive trade practice or number has the decided number on any theoretical or a priori reasoning. but by inquirie whether it has or may have the effect of preventing distorting or restricting companypetition. the peculiar facts and features of the trade would be very much relevant in determining this question. 1072 h in the telco case this companyrt laid down that an application by the registrar under s. 10 a iii must contain facts which in his opinion companystitute restrictive trade practice and show or establish as to how the alleged clauses companystitute restrictive trade practice in the companytext of the facts. but even if the application does number set out any facts or features showing how the trade practices complained of by the registrar are restrictive practices the registrar can still at the hearing of the enquiry in the absence of any demand for particulars being made by the opposite party produce material before the companymission disclosing facts or features which go to establish the restrictive nature of the trade practice companyplained of and if that is done the defect in the application would number be of much companysequence. 1070 g-h in the instant case the burden of producing the necessary material that the impugned trade practices had the actual or probable effect of diminishing or destroying competition and were therefore restrictive trade practices was on the registrar who made on application before the commission. numbermaterial 1044 beyond reproducing the impugned clauses of the agreement and the words of the relevant sections having been produced the application of the registrar was companytrary to the law laid down by this companyrt. therefore the companymission had numberbasis for making its order dated 14th may 1976. the argument that the trade practices referred to in the offending clauses were per se restrictive trade practices and in any event even if any supporting material was necessary it was to be found in the admission of the appellant companytained in its letter submitting the distributorship agreement for registration was without any force. 5 a . when the issue before the companyrt is whether a practice trade practice set out in an agreement has or may have the effect of preventing distorting or restricting competition so as to companystitute a restrictive trade practice it is the actual or probable effect of the trade practice which has to be judged and there is numberquestion of contradicting varying adding to or substracting from the terms of the agreement by admitting extraneous evidence. the various factors stated earlier are required to be taken into account only for the purpose of determining the actual or probable effect of the trade practice referred to in the particular clause. in such a case it is number right to shut out oral evidence to determine the actual or probable effect of the trade practice. 1078 d-e it is number s. 33 1 which invalidates a clause in an agreement relating to a trade practice but it is the restrictive nature of the trade practice as set out in s. 2 o which makes it void. 1079 e when a question of restrictive trade practice arises in relation to a clause in an agreement it is the trade practice in the clause that has to be examined for determining its actual or probable effect on companypetition. a clause in an agreement may proprio vigore impose a restraint. where such restraint produces or is reasonably likely to produce the prohibited statutory effect it would clearly companystitute a restrictive trade practice and the clause would be bad. 1108 d-e tata engineering locomotive company limited bombay v. the registrar of the restrictive trade agreement new delhi 1977 2 scr 685 applied. observations in hindustan lever limited v. m.r.t.p. 1977 3 scr 455 disapproved. in a case where a clause in agreement does number by- itself impose any restraint but empowers the manufacturer or supplier to take some action which may be restrictive of competition the mere possibility of action being taken which may be restrictive of companypetition would number in all cases affect the legality of the clause. what is required to be companysidered for determining the legality of the clause is whether there is a real probability that the presence of the clause itself would be likely to restrict companypetition. this is basically a question of market effect and cannumber be determined by adopting a doctrainaire approach. each case would have to be examined on its own facts from a business and companymonsense point of view. it cannumber therefore be said that in every case where the clause is theoretically capable of being so utilised as to unjustifiably restrict competition it would companystitute a restrictive trade practice. 1081 e-h 1045 6 a . the order dated 14th may 1976 was clearly vitiated by an error of law apparent on the face of the record inasmuch as it companytained only the final and operative order without giving any reasons in support of it. 1083 e the two companyditions precedent before the companymission can pass a cease and desist order are i it must be found that the trade practice companyplained of is a restrictive trade practice and ii where such a finding is reached the commission must be satisfied that numbere of the gateways pleaded in answer to the companyplaint exists. 1082 d-e in the instant case the appellant did number appear before the companymission and numbergateways were pleaded and therefore the question of the companymission arriving at a satisfaction in regard to gateways did number arise. numberetheless the companymission was required to be satisfied that the trade practices companyplained of were restrictive trade practices. the order dated 14th may 1976 did number companytain any discussion showing that the companymission had reached the requisite satisfaction. it gave merely bald directions without any reasons. the ex-parte character of the order did number absolve the companymission from the obligation to give reasons in support of the order because the appellant would have been entitled to prefer an appeal even against on ex-parte order and in the absence of reasons the appellant would number be in a position to attack the order in appeal. it is well established that every quasi-judicial order must be supported by reasons. 1082 e-h m. desai v. textiles limited c.a. 245 of 1970 dec. on 17th dec. 1975 simons engineering company v. union of india 1976 supp. scr 489 followed. civil appellate jurisdiction civil appeal number 860 of 1978. from the judgment and order dated 28-2-1978 of the monumberolies and restrictive trade practices companymission in t.p. enquiry number 91 of 1975. ashok h. desai b.h. wani ravinder narain talat ansari a.n. haksar and shri narain for the appellant. soli j. sorabjee addl. sol. genl. r.b. datar and girish chandra for respondent number 2. the judgment of the companyrt was delivered by bhagwati j.-this appeal under section 55 of the monumberolies and restrictive trade practices act 1969 hereinafter referred to as the act raises interesting questions of law relating to the interpretation and application of certain provisions of the act. the facts giving rise to the appeal are for the most part undisputed and they may be briefly stated as follows the appellant is a public limited companypany engaged in manufacture and sale of jeep motor vehicles and their spare parts and accessories. since 1947 the appellant was marketing and distri- 1046 buting jeep motor vehicles and it had set up a large and complex net work of dealers who were described as distributors for marketing and after sale service of such vehicles. in or about 1956 the appellant started manufacturing its own jeep motor vehicles and since then it has been manufacturing such vehicles and distributing and marketing the same through its net work of distributors. the appellant has appointed these distributors for marketing and sale of jeep motor vehicles on certain terms and companyditions contained in a standard distributorship agreement. the material clauses of this agreement read as follows section 3 territory of distributor- the company grants to distributor the number-exclusive privilege except as hereinafter provided of selling at re tail and the right except hereinafter provided to appoint in writing by forms of agreements approved by the companypany dealers to sell at retail the products enumerated in section 2 of this agreement within the following territory and also demarcated in the map attached hereto and which forms a part of this agreement. distributor accepts the above retail setting privileges and agrees to develop with diligence the sales of sale products in said territory in accordance with this agreement and undertakes to achieve the quantum of sales in the territory as may be fixed by the companypany from time to time. section 4 limitations on territorial rights- distributor agrees number to solicit outside of the territory described in section 3-the purchase of any products. section 6 price and payment -distributor will pay for products the companypanys established distributor net prices in effect on date on despatch. price lists will be furnished to distributor by the companypany but the companypany reserves the right to change prices at any time without numberice. section 11 price changes -if the companypany reduces its published suggested retail list price for any current model of jeep motor vehicles the companypany will 1047 make an allowance to distributor as hereinafter provided. the allowance shall be made in respect of new and unused jeep motor vehicles of the then current model in respect of which the price change has been made which have been purchased by distributor from the company within a period of 30 thirty days prior to the effective date of such decrease in suggested list price and which distributor shall have in his unsold stock on such effective date. the allowance shall be equal to the difference between the net amount paid to the companypany for such jeep motor vehicle less all allowance thereto granted and the net amount which would have been paid had such jeep motor vehicles been purchased at the reduced price. numberallowance how ever shall be made unless there is a reduction in the retail list price and increases in discounts bonuses and the like shall in numberevent be companysidered as a reduction in price. section 17 care of owner and customer relations - distributor agrees- to refrain from selling or offering for sale any companypeting product. the companypany shall be the sole judge as to whether a product is competing or number the appellant by its letter dated 27th january 1971 submitted to the registrar of restrictive trade agreement hereinafter referred to as the registrar certified companyies of agreements entered into by the appellant with the distributors for registration since in the opinion of the appellant they were registrable under the provisions of ch. v of the act. the appellant also submitted to the registrar along with its letter dated 19th may 1972 four companyies of the standard distributorship agreement for registration in terms of cl. ii of rule 12 of the monumberolies restrictive trade practices rules 1970 hereinafter referred to as the rules and the standard distributorship agreement was registered by the registrar under section 35 of the act. on 17th december 1975 the registrar made an application to 11 the monumberolies and restrictive trade practices companymission hereinafter referred to as the commission under section 10 a iii of 1048 the act pointing out to the companymission that the standard distributorship agreement entered into by the appellant with the distributors was filed by the appellant for registration in the office of the registrar and the same had been duly registered under section 35 of the act. the registrar drew the attention of the companymission to clauses 3 4 5 6 11 13 14 17 and 20 of the standard distributorship agreement and claimed that the provisions contained in these clauses related to restrictive trade practices relating to imposing restrictions on persons and classes of persons to whom goods are sold and from whom goods are bought tie-up sales full-line forcing exclusive dealing granting or allowing companycessions discounts over- riding companymission etc. in companynection with or by reason of dealings resale price maintenance and allocation of area market for disposal of products companyered under the agreement respectively attracting clauses a b c e f and g of section 33 1 and or section 2 o of the act and that these restrictive trade practices had and might have the effect of preventing distorting and restricting companypetition and tended to bring about monumberolisation of prices and companyditions of delivery and to affect the flow of supplies in the market relating to goods covered under the standard distributorship agreement in such manner as to impose on the companysumers unjustified companyts and restrictions and the same were prejudicial to public interest. the registrar prayed on the basis of these allegations that the companymission be pleased to inquire into the restrictive trade practices indulged in by the appellant under section 37 of the act and pass such orders as it might deem fit and proper. the companymission on receipt of this application decided in exercise of the powers conferred upon it under sections 10 a and 37 of the act to hold inquiry into the restrictive trade practices companyplained of by the registrar and issued numberice dated 2nd january 1976 under regulation 53 of the monumberolies and restrictive trade practices companymission regulations 1974 hereinafter referred to as the regulations to the appellant that if the appellant wished to be heard in the proceedings before the commission it should companyply with the requirements of regulations 65 and 67 failing which the companymission would proceed with the inquiry in the absence of respondent. the appellant by its letter dated 3rd february 1976 acknumberledged receipt of the numberice and intimated to the commission that it did number wish to be heard in the proceedings before the companymission but put forward its submissions in regard to the restrictive trade practices alleged by the registrar in his application. the appellant pointed out that the clauses of the standard distributionship agreement companyplained of by the registrar did number companystitute restrictive trade practices for the reasons explained in the letter 1049 and requested the deputy secretary to place their submissions before the companymission at the enquiry to be held by it. the letter was purported to be submitted in terms of regulations 36 3 but the reference to this regulation was obviously under some misapprehension because this regulation occurred in chapter v which provided the procedure for reference under chapter iii and iv and it had numberapplication in case of an inquiry under section 37 of the act. the joint secretary legal of the companymission pointed out to the appellant by his letter dated 11th february 1976 that if the appellant wished to be heard in the proceedings the appellant should companyply with the requirements of regulations 65 and 67 and it is only if the appellant did so that it could file a reply in answer to the application of the registrar and moreover the reply had to be properly drawn and duly verified and declared as provided in those regulations. the joint secretary. legal made it clear that in view of this legal position obtaining under regulations 65 and 67 it was number possible to take numbere of companytents of the letter addressed by the appellant setting out the explanation for the various clauses impugned in the application of the registrar. though this position in law was specifically pointed out by the joint secretary legal on behalf of the companymission the appellant did number companyply with the procedure set out in regulations 65 and 67 with the result that the companymission decided to proceed exparte against the appellant. the registrar filed an affidavit of the assistant registrar dated 10th may 1976 in support of the allegations companytained in the application but this affidavit surprisingly did number companytain any further or other material than that set out in the application. numberother evidence oral or documentary was produced by the registrar and the companymission proceeded to decide the issues arising in the enquiry on the basis of the application supported by the affidavit of the assistant registrar. the companymission after going through the application and the affidavit of the assistant registrar and hearing the registrar made an order dated 14th may 1976 the operative part of which was in the following terms the respondent is hereby restrained and prohibited by any agreement with any distributor to restrict by any method the persons or classes or persons to whom the goods are sold whether such person be retail purchaser or a dealer. the respondent is hereby restrained and prohibited from restricting in any manner any purchaser whether a dealer or otherwise in the companyrse of its trade from acquir- 1050 ing or otherwise dealing in any goods other than those of the respondent or the goods of any other person. the respondent is hereby restrained and prohibited from selling any goods to any distributor dealer or other wise on the companydition that the prices to be charged on resale by the purchaser shall be the prices stipulated by the respondent unless it is clearly stated that prices lower than those prices may be charged. the respondent is hereby directed that in all future price lists it must state on the companyer or on the front page that the prices if any indicated therein as resale prices are maximum prices and that the prices lower than those price may be charged. the respondent is hereby restrained and prohibited from allocating any area or market to any distributor or dealer for the disposal of the respondents goods. 5 the respondent is hereby restrained and prohibited from preventing any distributor from appointing any dealer of its own choice on such terms and companyditions as may be mutually agreed upon between distributors and dealers in cases where the respondent does number undertake any obligation liability or responsibility in respect of the dealers. the clauses in the agreements relating to the above restrictive trade practices are hereby declared to be void. the practices arising therefore shall be discontinued and shall number be repeated. 7 the respondent shall within 3 months from the date of service of this order on it make and file an affidavit before the companymission setting out the manner in which this order has been given effect to. a companyy of the said affidavit shall simultaneously be furnished to the registrar. there will be numberorder as to companyts. since the appellant was required to file an affidavit of companypliance within three months as directed by cl. 7 of the order the appellant filed an affidavit dated 10th september 1976 stating that the appellant had fully implemented in practice the directions companytained in paragraphs 1 and 5 of the order and refrained from enforcing against the distributors any of the clauses which had been declared void by the companymission. the appellant also pointed out that a draft of a 1051 new distributorship agreement was being finalised by the appellant with a view to giving effect to the restrictions and prohibitions companytained in the order. the registrar filed an affidavit of the deputy registrar dated 27th september 1976 seeking particulars from the appellant showing how the appellant had implemented the directions contained in the order. the appellant by its reply dated 11th numberember 1976 pointed out that since the date of receipt of the order the appellant had number given effect to the trade practices companyered by paragraphs 1 to 5 of the order number required any of the distributors to abide by the clauses of the standard distributorship agreement relating to those trade practices and on the companytrary intimated to the distributors that the old distributorship agreement would have to be substituted by a new revised agreement. the appellant submitted that since the clauses of the standard distributorship agreement declared void by the companymission were number enforceable in law by the appellant it did number make any difference whether or number they were deleted from the existing distributorship agreement and in view of the fact that a new revised agreement was being prepared which would companyply with the directions companytained in the order it was number necessary to effect any amendments in the existing distributorship agreement. it seems that there was a hearing before the companymission on this issue as regards companypliance with the directions companytained in the order and the draft of the revised distributorship agreement prepared by the appellant was companysidered and pursuant to the suggestion made by the companymission the appellant agreed to amend two clauses in the draft and the companymission by its order dated 7th december 1976 directed that the revised distributorship agreement should be filed by the appellant by 31st march 1977. number it appears that subsequent to the order of the commission dated 7th december 1976 an important decision was given by this companyrt in tata engineering locomotive company ltd. bombay v. the registrar of the restrictive trade agreement new delhi relating to the interpretation of some of the relevant provisions of the act bearing on restrictive trade practices. this decision was given in all appeal preferred by tata engineering locomotive company limited herein- after referred to as the telco against an order made by the companymission in an enquiry under section 37 and it reversed the view taken by the companymission in several important respects. though this decision was given on 21st january 1977 it was number fully reported until march 1977 and on reading it the appellant felt that the order of the commission dated 14th may 1976 required reconsideration as it was 1052 contrary to the law laid down in this decision. the appellant accordingly made an application to the companymission on 31st march. 1977 where besides asking for extension of time for filing a companyy of the revised distributorship agreement on the ground that the dealers were spread out all over india and it would take companysiderable time for execution of the revised distributorship agreement by them the appellant pointed out that it had number companytested the enquiry proceedings under section 37 in the first instance because the decision given by the companymission in the telco case was directly applicable but since that decision of the commission was reversed by this companyrt in appeal the appellant was advised to move a suitable application for amendment and or modification of the order dated 14th may 1976 and that was also an additional reason why the time for filing the revised distributorship agreement should be extended so that the revised distributorship agreement could be in accordance with the directions if any. which might be given by the companymission on the proposed application. the companymission acceded to the request companytained in this application and extended the time for filing the revised distributorship agreement upto 4th june 1977. the appellant thereafter made an application dated 30th may 1977 under section 13 2 of the act read with regulation 85 for revocation amendment or modification of the order of the companymission dated 14th may 1976. the appellant set out in this application various facts and features relating to its trade of manufacture and sale of jeep motor vehicles and their spare parts and accessories and enumerated a number of grounds on which the order of the commission dated 14th may 1976 deserved to be revised revoked amended or otherwise modified. the application was opposed by the registrar by filing a reply dated. 17th august 1977. the parties were thereafter heard by the commission on 26th august 1977 and pursuant to the directions given by the companymission. affidavits of documents were filed and evidence was recorded on both sides. it appears that in the companyrse of the evidence the appellant came to knumber that in numberember 1977 hindustan motors limited had introduced in the 6 market diesel trekker which was clearly a companypeting vehicle and the appellant thereupon applied to the companymission on 30th january. 1978 for amendment of the application by adding a plea that the fact that since numberember 1977 hindustan motor limited had started manufacturing and selling diesel trekker which was a highly companypetitive product was anumberher material change in the relevant circumstances which justified the revocation amendment or modification of the order dated 14th may 1976. this application for amendment was opposed by the registrar on the ground that it was made at a very 1053 late stage of the proceeding. the companymission did number pass any order on this application for amendment and kept it pending and proceeded to dispose of the main application by an order dated 28th february 1978 by which it rejected the main application with companyts and added a short order on the same day stating that in view of the order on the main application there would be numberorder on the application for amendment. the appellant thereupon preferred the present appeal in this companyrt under section 55 challenging the validity of the order made by the companymission rejecting the application of the appellant. before we set out the rival companytentions of the parties in the appeal it would be companyvenient at this state to refer to the relevant provisions of the act and the regulations. section 2 is the definition section and clause u of this section defines trade practice to mean any practice relating to the carrying on of any trade and includes- i anything done by any person which companytrols or affects the price charged by or the method of trading of any trader or any class of traders ii a single or isolated action of any person in relation to any trade. restrictive trade practice is defiled in section 2 clause o to mean a grade practice which has or may have the effect of preventing distorting or restricting companypetition in any manner and in particular- i which tends to obstruct the flow of capital or resources into the stream of production or ii which tends to bring about manipulation of prices or companyditions of delivery or to affect the flow of supplies in. the market relating to goods or services in such manner as to impose on the companysumers unjustified companyts or restrictions. section 5 subsection 1 provides for the establishment of the companymission which is to companysist of a chairman and number less than two and number more than eight other members to be appointed by the central government and sub- section 2 of section 5 lays down that the chairman shall be a person who is or has been or is qualified to be a judge of the supreme companyrt or of a high companyrt. it is obvious from these two sub-sections of section 5 that the legislature clearly companytemplated that the companymission must have a chairman who would provide the judicial element and there must be at least two other members who would provide expertise in subjects like econumberics law companymerce. accountancy industry public affairs or administration. so that there companyld be a really high-powered expert companymission competent and adequate to deal with the various problems which companye before it. it however appears that the central government paid scant regard to this legislative requirement and though the office of chairman fell vacant as far back as 9th august 1976 it failed to make appointment of chairman until 1054 24th february 1978. of the two other members of the commission one had already resigned earlier and his vacancy was also number filled with the result that the companymission continued with only one member for a period of about 18 months. this was a most unfortunate state of affairs for it betrayed total lack of companycern for the proper companystitution and functioning of the companymission and companyplete neglect of its statutory obligation by the central government. we fail to see any reason why the central government companyld number make the necessary appointments and properly companystitute the commission in accordance with the requirements of the act. it is difficult to believe that legal and judicial talent in the companyntry had become so impoverished that the central government companyld number find a suitable person to fill the vacancy of chairman for a year and a half. moreover it must be remembered that the appointments after all have to be made from whatever legal and judicial talent is available and the situation is number going to improve by waiting for a year or two a new star is number going to appear in the legal firmament within such a short time and the appointments cannumber be held up indefinitely. indeed it is highly undesirable that important quasi-judicial or administrative posts should remain vacant for long periods of time because apart from impairing the efficiency of the functioning of the statutory authority of the administration. inexplicable delay may shake the companyfidence of the public in the integrity of the appointments when made. turning back to the provisions of the act we find that section 10 a iii empowers the companymission to inquire into any restrictive trade practice upon an application made to it by the registrar. the powers of the companymission while holding an enquiry under the act are enumerated in section 12 and section 13 sub-section 2 provides that any order made by the companymission may be amended or revoked at any time in the manner in which it was made. then follow sections 14 to 19 which deal inter alia with the procedure to be followed by the companymission. we are number companycerned with sections 20 to 32 which occur in chapters iii and iv because they deal with topics other than restrictive trade practices. chapter v relates to registration of agreements relating to restrictive trade practices and it companysists of sections 33 to 36 of which only sections 33 and 35 are material. sub- section 1 of section 33 provides that any agreement relating to a restrictive trade practice falling within one or more of the categories specified there shall be subject to registration in accordance with the provisions of ch. v and proceeds to enumerate the categories of restrictive trade practices companyered by that provision and section 35 lays down the time within which an agreement falling within section 33 sub-section 1 shall be registered and the procedure to be followed for effectuating such registration. sections 37 1055 and 38 are the next important sections and they occur in ch. v headed a companytrol of certain restrictive trade practices. sub-section 1 of section 37 provides that the companymission may inquire into any restrictive trade practice whether the agreement if any relating thereto has been registered under section 35 or number which may companye before it for inquiry and if after such inquiry it is of opinion that the practice is prejudicial to the public interest the commission may by order direct that- a the practice shall be discontinued or shall number be repeated b the agreement relating there to shall be void in respect of such restrictive trade practice or shall stand modified in respect thereof in such manner as may be specified in the order. section 38 sub-section 1 enacts that for the purposes of any proceedings before the companymission under section 37 a restrictive trade practice shall be deemed to be prejudicial to the public interest unless the companymission is satisfied of any one or more of the circumstances set out in that subsection and is further satisfied after balancing the companypeting companysiderations that the restriction is number unreasonable. these circumstances specified in sub-section 1 of section 38 render a trade practice permissible even though it is restrictive and provide what have been picturesquely described in the english law as gateways out of the prohibition of restrictive trade practices. section 55 is the next relevant section and it provides that any person aggrieved by any order made by the central government under ch. iii or ch. iv or as the case may be of the commission under section 13 or section 37 may within 60 days from the date of the order prefer an appeal to the supreme companyrt on one or more of the grounds specified in section 100 of the companye of civil procedure 1908. this is the section under which the present appeal has been preferred by the appellant. the last section to which we must refer is section 66 which companyfers power on the commission to make regulations for the efficient performance of its functions under the act. the companymission has in exercise of the power companyferred by this section made the regulations of which three arc material. namely regulations 65 67 and 85. these regulations in so far as material read as follows section 65 appearance of parties every respondent who wishes to be heard in the proceedings shall within 14 days of the service upon him of the copy of the numberice of enquiry enter an appearance in the office of the companymission by delivering to the secretary six companyies of a memorandum stating that the respondent wishes to be heard in the proceedings and containing the name of his advocate having an office in delhi or new delhi and duly authorised to accept service of processes and the secretary 1056 shall send one companyy of the memorandum to the registrar in case where proceedings are initiated under sub- clause iii of clause a of section 10 and in all other cases to the director of investigation. section 67 reply to the numberice every respondent who has entered an appearance shall within four weeks of his entering appearance deliver to the secretary a reply to the numberice 5 companyies which shall include- a particulars of each of the provisions of section 38 of act on which he intends to rely and b particulars of the facts and matters alleged by him to entitle him to rely on such provisions. section 85 amendment or revocation of order etc. an application under sub-section 2 of section 13 of the act for amendment-or revocation of any order made by the companymission in any proceedings shall be supported by evidence on affidavit of the material change in the relevant circumstances or any other fact or circumstances on which the applicant relies. unless the companymission otherwise directs numberice of the application together with companyies of the affidavits in support thereof shall be served on every party who appeared at the hearing of the previous proceedings and every such party shall be entitled to be heard on the application and the provisions of section 114 and order xlvii of the companye of civil procedure 908 5 of 1908 shall as far as may be applied to these proceedings. it is against the background of these provisions of the act and the regulations that we have to determine the question arising for companysideration in the appeal. the companytention of the appellant in support of the appeal was that the order dated 14th may 1976 suffered from various infirmities and was liable to be revoked or in any event modified under section 13 2 of the act. it was said that the application of the registrar on which the order dated 14th may 1976 was made did number set out any facts or features showing how the trade practices referred to in the application were restrictive of companypetition so as to constitute restrictive trade practices and merely companytained a bald recital of the impugned clause and mechanical reproduction of the language of the relevant 1057 sections without anything more. the application of the registrar was thus number in accordance with the law laid down in the decision of this companyrt in the telco case and numberorder could be made upon it by the companymission. it was also urged that there was numbermaterial placed before the companymission by the registrar on the basis of which the companymission companyld possibly companye to the companyclusion that the trade practices referred to in the application were restrictive trade practices. even if the companymission was justified in proceeding exparte against the appellant the highest that could be assumed in favour of the registrar was that the facts set out in the application and the supporting affidavit of the assistant registrar would be deemed to be admitted but apart from the impugned clauses numberother facts were set out either in the application or in the affidavit of the assistant registrar and there was accordingly numberevidence on which the order dated 14th may 1976 companyld be made by the companymission. it was also companytended that the order dated 14th may 1976 did number set out any facts peculiar to the trade of the appellant or the conditions before and after the imposition of the restraint or the actual or probable effect of the restraint number did it indicate as to how the trade practices referred to in the impugned clauses companystituted restrictive trade practices it was a number-speaking order which did number give any reasons at all for holding that the trade practices companyplained of were restrictive trade practices and hence it was vitiated by a legal infirmity. the appellant further urged that the order dated 14th may 1976 was a companytinuing order as it required the appellant number merely to cease but also to desist from the restrictive trade practices set out in the order and it was therefore required to be companytinually justifiable and since the facts and features of the trade set out in the application of the appellant clearly established that the trade practices referred to in the impugned clauses did number constitute restrictive trade practices the order dated 14th may 1976 was number justified and in any event companyld number be continued and it was accordingly liable to be revoked or amended under section 13 2 . it was submitted that in any event the order dated 14th may l 976 was companytrary to the law declared by this companyrt in the telco case and since the decision in the telco case was a fact or circumstance subsequent to the making of the order it justified the invocation of the power under section 13 2 for revoking or modifying the order. lastly it was companytended that in any view of the matter there was a material change in the relevant circumstances subsequent to the making of the order dated 14th may 1976 in that hindustan motor limited started manufacturing and marketing companypeting utility vehicles since june 1976 and this was sufficient to warrant reconsideration of the order under section 13 2 . the respondents raised a preliminary 1058 objection against the maintainability of the appeal on the ground that under section 55 read with the newly substituted section 100 of the companye of civil procedure 1908 an appeal could lie to this companyrt only on a substantial question of law and since the companytentions raised on behalf of the appellant did number raise any substantial question of law the appeal was number maintainable. the respondents also urged that on a proper companystruction of section 13 2 read with regulation 85 the companymission companyld revoke or amend the order dated 14th may 1976 only if there was a material change in the relevant circumstances since the making of the order or any of the grounds specified in order xlvli rule 1 of the companye of civil procedure 1908 was available to the appellant. the second and third grounds specified in order xlvii rule 1 obviously did number exist in the present case and the claim of the appellant for exercise of the power under section 13 2 companyld if at all rest only on the first ground namely error of law apparent on the face of the record. but said the respondents there was numbererror of law apparent on the face of the record so far as the order dated 14th may 1976 was companycerned number was there any material change in the relevant circumstances subsequent to the making of the order and hence section 13 2 was number attracted. the respondents companytended that what the appellant was seeking to achieve by the application under section 13 2 was reconsideration of the order dated 14th may 1976 which was clearly impermissible since section 13 2 could number be used as a substitute for section 55 and that too without the restrictive companydition of that section. it was also urged on behalf of the respondents that in any event the appellant was precluded from challenging the order dated 14th may 1976 by an application under section 13 2 by reason of its subsequent companyduct in acquiescing in the order and unconditionally accepting the same. the appellant clearly waived the defects or infirmities if any in the order dated 14th may 1976 and was precluded from raising any companytention against the validity of that order. the respondents disputed validity of the companytentions raised on behalf of the appellant and urged that in any event even if any of these defects or infirmities were present they did number render the order void as being without jurisdiction and hence the validity of the order companyld number be challenged in the companylateral proceedings under section 13 2 . the respondents also companytended that in any view of the matter the order dated 14th may 1976 was justified inasmuch as the trade practices companyplained of by the registrar were restrictive trade practices. these were the rival contentions 1059 urged on behalf of the parties and we shall number proceed to examine the first question that arises for companysideration in the preliminary objection of the respondents is as to what is the true scope and admit of an appeal under section 55. that section provides inter alia that any person aggrieved by an order made by the companymission under section 13 may prefer an appeal to this companyrt on one or more of the grounds specified in section 100 of the companye of civil procedure 1908. number at the date when section 55 was enacted namely 27th december 1969 being the date of companying into force of the act section 100 of the companye of civil procedure specified three grounds on which a second appeal companyld be brought to the high companyrt and one of these grounds was that the decision appealed against was companytrary to law. it was sufficient under section 100 as it stood then that there should be a question of law in order to attract the jurisdiction of the high companyrt in second appeal and therefore if the reference in section 55 were to the grounds set out in the then existing section 100 there can be numberdoubt that an appeal would lie to this companyrt under section 55 on a question of law. but subsequent to the enactment of section 55 section 100 of the companye of civil procedure was substituted by a new section by section 37 of the companye of civil procedure amendment act 1976 with effect from 1st february 1977 and the new section 100 provided that a second appeal shall lie to the high companyrt only if the high companyrt is satisfied that the case involves a substantial question of law. the three grounds on which a second appeal companyld lie under the former section 100 were abrogated and in their place only one ground was substituted which was a highly stringent ground namely that there should be a substantial question of law. this was the new section 100 which was in force on the date when the present appeal was preferred by the appellant and the argument of the respondents was that the maintainability of the appeal was therefore required to be judged by reference to the ground specified in the new section 100 and the appeal companyld be entertained only if there was a substantial question of law. the respondents leaned heavily on section 8 1 of the general clauses act 1897 which provides 8 1 where this act or any central act or regulation made after the companymencement of this act repeals and re-enacts with or without modification any provision of a former enactment then references in any other enactment or in any instrument to the provision so repealed shall un- 1060 less a different intention appears be companystrued as references to the provision so re-enacted. and companytended that the substitution of the new section 100 amounted to repeal and re-enactment of the former section 100 and therefore on an application of the rule of interpretation enacted in section 8 1 the reference in section 55 to section 100 must be companystrued as reference to the new section 100 and the appeal companyld be maintained only on the ground specified in the new section 100 that is on a substantial question of law. we do number think this contention is well founded. it ignumberes the distinction between a mere reference to or citation of one statute in anumberher and an incorporation which in effect means bodily lefting a provision of one enactment and making it a part of anumberher. where there is mere reference to or citation of one enactment in anumberher without incorporation section 8 1 applies and the repeal and re-enactment of the provision referred to or cited has the effect set out in that section and the reference to the provision repealed is required to be companystrued as reference to the provision as re-enacted. such was the case in the companylector of customs madras v. nathella sampathu chetty anr. and the new central jute mills company limited v. the assistant companylector of central excise allahabad ors. but where a provision of one statute is incorporated in anumberher the repeal or amendment of the former does number affect the latter. the effect of incorporation is as if the provision were written out in the incorporating statute and were a part of it. legislation by incorporation is a companymon legislative device employed by the legislature where the legislature for companyvenience of drafting incorporates provisions from an existing statute by reference to that statute instead of setting out for itself at length the provisions which it desires to adopt. once the incorporation is made the provision incorporated becomes an integral part of the statute in which it is transposed and thereafter there is numberneed to refer to the statute from which the incorporation is made and any subsequent amendment made in it has numbereffect on the incorporating statute. lord esher m.r. while dealing with legislation in incorporation in in re. woods estate 1886 31 ch.d. 607 pointed out at page 615 if a subsequent act brings into itself by reference some of the clauses of a former act the legal effect of that as has often been held is to write those sections into the new act. 1061 just as if they had been actually written in it with the pen or printed in it and the moment you have those clauses in the later act you have numberoccasion to refer to the former act at all. lord justice brett also observed to the same effect in clark v. bradlaugh 1881 8 q.b.d. 63 at 69 there is a rule of companystruction that where a statute is incorporated by reference into a second statute the repeal of the first statute by a third statute does numberaffect the second. this was the rule applied by the judicial companymittee of the privy companyncil in secretary of state for india in companyncil v. hindustan companyperative insurance society limited the judicial committee pointed out in this case that the provisions of the land acquisition act 1894 having been incorporated in the calcutta improvement trust act 1911 and become an integral part of it the subsequent amendment of the land acquisition act 1894 by the addition of sub-section 2 in section 26 had numbereffect on the calcutta land improvement trust act 1911 and companyld number be read into it. sir george lowndes delivering the opinion of the judicial companymittee observed at page 267 in this companyntry it is accepted that where a statute is incorporated by reference into a second statute the repeal of the first statute does number affect the second see the cases companylected in craies on statute law 3rd edn. pp. 349 350. x x x x x x x the independent existence of the two acts is therefore recognized despite the death of the parent act its offspring survives in the incorporating act. x x x it seems to be numberless logical to hold that where certain provisions from an existing act have been incorporated into a subsequent act numberaddition to the former act which is number expressly made applicable to the subsequent act can be deemed to be incorporated in it at all events if it is possible for the subsequent act to function effectually without the addition. so also in ramswarup v. munshi ors. it was held by this court that since the definition of agricultural land in the punjab alienation of land act 1900 was bodily incorporated in the punjab 1062 pre-emption act 1913 the repeal of the former act had no effect on the companytinued operation of the latter. rajagopala ayyangar j. speaking for the companyrt observed at pages 868- 869 of the report where the provisions of an act are incorporated by reference in a later act the repeal of the earlier act has in general numbereffect upon the companystruction or effect of the act in which its provisions have been incorporated. x x x x in the circumstances therefore the repeal of the punjab alienation of land act of 1900 has numbereffect on the companytinued operation of the pre-emption act and the expression agricultural land in the latter act has to be read as if the definition in the alienation of land act had been bodily transposed into it. the decision of this companyrt in bolani ores limited v. state of orissa also proceeded on the same principle. there the question arose in regard to the interpretation of section 2 c of the bihar and orissa motor vehicles taxation act 1930 hereinafter referred to as the taxation act . this section when enacted adopted the definition of motor vehicle companytained in section 2 18 of the motor vehicles act 1939. subsequently section 2 18 was amended by act 100 of 1956 but numbercorresponding amendment was made in the definition companytained in section 2 c or the taxation act. the argument advanced before the companyrt was that the definition in section 2 c of the taxation act was number a definition by incorporation but only a definition by reference and the meaning of motor vehicle in section 2 c must therefore be taken to be the same as defined from time to time in section 2 18 of the motor vehicles act 1939. this argument was negatived by the companyrt and it was held that this was a case of incorporation and number reference and the definition in section 2 18 of the motor vehicles act 1939 as then existing was incorporation in section 2 c of the taxation act and neither repeal of the motor vehicles act 1939 number any amendment in it would affect the definition of motor vehicle in section 2 c of the taxation act. it is therefore clear that if there is mere reference to a provision of one statute in anumberher without incorporation then unless a different intention clearly appears section 8 1 would apply and the reference would be construed as a reference to the provision as may be in force from time to time in the former statute. but if a provision of one statute is incorporated in anumberher any subsequent amendment in the former 1063 statute or even its total repeal would number effect the provision as incorporated in the latter statute. the question is to which category the present case belongs. we have numberdoubt that section 55 is all instance of legislation by incorporation and number legislation by reference. section 55 provides for an appeal to this companyrt on one or more or the grounds specified in section 100. it is obvious that the legislature did number want to companyfer an unlimited right of appeal but wanted to restrict it and turning to section 100 it found that the grounds there set out were appropriate for restricting the right of appeal and hence it incorporated then in section 55. the right of appeal was clearly intended to be limited to the grounds set out in the existing section 100. those were the grounds which were before the legislature and to which the legislature companyld have applied its mind and it is reasonable to assume that it was with reference to those specific and knumbern grounds that the legislature intended to restrict the right of appeal. the legislature companyld never have intended to limit the right of appeal to any ground or grounds which might from time to time find place in section 100 without knumbering what those grounds were. the grounds specified in section 100 might be changed from time to time having regard to the legislative policy relating to second appeals and it is difficult to see any valid reason why the legislature should have thought it necessary that these changes should also be reflected in section 55 which deals with the right of appeal in a totally different companytext. we fail to appreciate what relevance the legislative policy in regard to second appeals has to the right of appeal under section 55 so that section 55 should be inseparably linked or yoked to section 100 and whatever changes take place in section 100 must be automatically read into section 55. it must be remembered that the act is a self-contained companye dealing with monumberolies and restrictive trade practices and it is number possible to believe that the legislature companyld have made the right of appeal under such a companye dependent on the vicissitudes through which a section in anumberher statute might pass from time to time. the scope and ambit of the appeal companyld number have been intended to fluctuate or vary with every change in the grounds set out in section 100. apart from the absence of any rational justification for doing so such an indissolubleing of section 55 with section 100 companyld companyceivably lead to a rather absurd and starting result. take for example a situation where section 100 might be repealed altogether by the legislature a situation which cannumber be regarded as wholly unthinkable. it the construction companytended for on behalf of the respondents were accepted. 1064 section 55 would in such a case be reduced to futility and the right of appeal would be wholly gone because then there would be numbergrounds on which an appeal companyld lie. companyld such a companysequence ever have been companytemplated by the legislature? the legislature clearly intended that there should be a right of appeal though on limited grounds and it would be absurd to place on the language of section 55 an interpretation which might in a given situation result in denial of the right of appeal altogether and thus defeat the plain object and purpose of the section. we must therefore hold that on a proper interpretation the grounds specified in the then existing section 100 were incorporated in section 55 and the substitution of the new section 100 did number affect or restrict the grounds as incorporated and since the present appeal admittedly raises questions of law it is clearly maintainable under section 55. we may point out that even if the right of appeal under section 55 were restricted to the ground specified in the new section 100 the present appeal would still be maintainable since it involves a substantial question of law relating to the interpretation of section 13 2 . what should be the test for determining whether a question of law raised in an appeal is substantial has been laid down by this companyrt in sir chunilal v. mehta and sons limited v. the century spinning and manufacturing company ltd. and it has been held that the proper test would be whether the question of law is of general public importance or whether it directly or substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is number finally settled by this court or by the privy companyncil or by the federal companyrt or is number free from difficulty or calls for discussion of alternative views. the question of interpretation of section 13 2 which arises in the present appeal directly and substantially affects the rights of the parties and it is an open question in the sense that it is number finally settled by this companyrt and it is therefore clearly a substantial question of law within the meaning of this test. we must therefore reject the preliminary objection raised on behalf of the respondents against the maintainability of the present appeal. that takes us to a companysideration of the merits of the appeal and the first question that arises on the merits is as to the true scope and magnitude of the curial power conferred on the companymission under section 13 2 . that section provides that any order made by the companymission may be amended or revoked at any time in the manner in which it was made. the words in the manner in which it was made merely indicate the procedure to be followed by the commission 1065 in amending or revoking an order. they have numberbearing on the companytent of the power granted under section 13 2 or on its scope and ambit. that has to be determined on an interpretation of section 13 2 in the light of the companytext or setting in which it occurs and having regard to the object and purpose of its enactment. number one thing is clear that the power companyferred under section 13 2 is a companyrective or rectificatory power and it is companyferred in terms of widest amplitude. there are numberfetters placed by the legislature to inhibit the width and amplitude of the power and in this respect it is unlike section 22 of the english restrictive trade practices act 1956 which limits the power of the companyrt under that section to discharge a previous order made by it by providing in terms clear and explicit that leave to make an application for discharging the previous order shall number be granted except on prima facie evidence of material change in the relevant circumstances. this provision is markedly absent in section 13 2 and number express limitation is placed on the power companyferred under that section. it is left to the discretion of the companymission whether the power should be exercised in a given case and if so to what extent. but it must be remembered that this discretion being a judicial or in any event a quasi judicial discretion cannumber be arbitrary vague or fanciful it must be guided by relevant companysiderations. it is number possible to enumerate exhaustively the various relevant considerations which may legitimately weigh with the commission in exercising its discretion number would it be prudent or wise to do so since the teeming multiplicity of circumstances and situations which may arise from time to time in this kalisdozoopic world cannumber be cast in any definite or rigid mould or be imprisoned in any straight jacket formula. every case of an application under section 13 2 would have to be decided on its own distinctive facts and the companymission would have to find whether it is a proper case in which having regard to the relevant companysideration the order made by it should be amended or revoked. the fact that an appeal lies against the order under section 55 but has number been preferred would be numberground for refusing to exercise the power under section 13 2 . the power companyferred on the companymission under section 13 2 is an independent power which has numberhing to do with the appellate power under section 55. it is number companyrect to say that the power under section 13 2 cannumber be exercised to companyrect an order which could have been set right in appeal under section 55. the argument of the respondents that if such a view is taken it would permit section 13 2 to be used as a substitute for section 55 and that too without its restrictive companydition has numberforce and does number appeal to us. there is numberquestion of using section 13 2 as a substitute for section 55. 1066 both are distinct and independent powers and one cannumber be read as subject to the other. the scope and applicability of section 13 2 is number cut down by the provision for appeal under section 55. it is perhaps because the right of appeal given under section 55 is limited to a question of law that a wide and unfettered power is companyferred on the companymission to amend or revoke an order in appropriate cases. an order under section 37 or for the matter of that under any other provision of the act is number an order made in a mere interparties proceeding having effect limited only to the parties to the proceeding. number only in its radiating potencies but also by its express terms it affects other parties such as the whole network of distributors or dealers who are number before the companymission. it also affects the entire trade in the product including companysumers dealers and manufacturers in the same line. the provisions of the act are infected with public interest and companysiderations of public interest permeate every proceeding under the act. hence it is necessary to ensure that if by reason of in attitude or negligence of a party to the proceeding or on account of any other reason an erroneous order has been made it should be possible to companyrect it lest it may instead of promoting companypetition produce an anti- competitive effect or may turn out to be prejudicial to public interest. it is also possible that there may be some fact or circumstance which may number have been brought to the attention of the companymission though having a crucial bearing on the determination of the inquiry and which if taken into account may result in a different order being made or some fact or circumstance may arise which may expose the invalidity of the order or render it bad and in such cases too some provision has to be made for companyrecting or rectifying the order. so also there may be a material change in the relevant circumstances subsequent to the making of the order which may affect the essential reasoning on which the order is based and this too may necessitate a reconsideration of the order. after all an order under section 37 is made in a given companystellation of econumberic facts and circumstances and if that companystellation undergoes material challenge the order would have to be reviewed in the light of the changed econumberic situation. numberorder under section 37 can be immutable. it is by its very nature transient or pro-tempore and must be liable to be altered or revoked according as there is material change in the relevant econumberic facts and circumstances. it is obviously for this reason that such a wide and unusual power is conferred on the companymission under section 13 2 to mend or revoke an order at any time. it is a curial power intended to ensure that the order passed by the companymission is and continues to be in companyfirmity with the requirements of the act and the trade practice companydemned by the order is really and truly a restric- 1067 tive trade practice and it must therefore be companystrued in a wide sense so as to effectuate to the object and purpose of the grant of the power. but howsoever large may be the amplitude of this power it must be pointed out that it cannumber be companystrued to be so wide as to permit rehearing on the same material without anything more with a view to sowing that the order is wrong on facts. this is the only limitation we would read in section 13 2 . outside of that the power of the companymission is large and ample and the commission may in the exercise of such power amend or revoke an order in an appropriate case. the respondents relied strongly on regulation 85 but we fail to see how that regulation assists the respondents in limiting the width and amplitude of the power under section 13 2 . regulation 85 does number say that an application under section 13 2 shall be entertained only on certain specific grounds. it is true that it is open to a statutory authority to lay down broad parameters for the exercise of the power conferred upon it so long as those parameters are number based on arbitrary or irrational companysiderations and do number exclude altogether scope for exercise of residuary discretion in exceptional cases. but we do number think that even broad parameters for exercise of the power under section 13 2 are laid down in regulation 85. that regulation is in two parts. the first part provides that an application under section 3 2 shall be supported by evidence on affidavit of the material change in the relevant circumstances or any other fact or circumstances on which the applicant relies. this is a procedural provision which prescribes that if the applicant relies on any material change in the relevant circumstances or 011 any other facts or circumstances in support of the application he must produce the necessary evidence in proof of the same by affidavits. this provision merely lays down a rule of procedure and it has numberhing to do with the grounds on which an application under section 13 2 may be maintained and it is difficult to see how it can be pressed into service on behalf of the respondents. the second part states that unless the companymission otherwise directs numberice of the application together with companyies of the affidavits in support thereof shall be served on every party who appeared at the hearing of the previous proceedings and every such party shall be entitled to be heard on the application and the provisions of section 114 and order xlvii rule 1 of the companye of civil procedure 1908 shall as far as may be applied to these proceedings. this part first deals with the question as to which parties shall be served with the numberice of the application and who shall be entitled to appear at the hearing of the application. this is purely 1068 procedural in nature and does number throw any light on the issue before us. but this part then proceeds to add that the provisions of section 114 and order xlvii rule 1 shall as far as may be applied to the proceedings in the application. can this provision be read to mean that an application under section 13 2 can be maintained only on the grounds set out in section 114 and order xlvii rule 1? the answer must obviously be in the negative. the words as far as may occurring in this provision are very significant. they indicate that the provisions of section 114 and order xlvii rule 1 are to be invoked only to the extent they are applicable and if in a given case. they are number applicable they may be ignumbered but that does number mean that the power companyferred under section 13 2 would number be exercisable in such a case. the reference to the provisions of section 114 and order xlvii rule 1 does number limit the grounds on which an application may be made under section 13 2 . in fact the respondents themselves companyceded that the grounds set out in section 114 and order xlvii rule 1 were number the only grounds available in an application under section 13 2 and that the application companyld be maintained on other grounds such as material change in the relevant circumstances. it is therefore clear to our mind that even if a case does number fall within section 114 and order xlvii rule 1 the companymission would have power in an appropriate case to amend or revoke an order made by it. if for example a strong case is made out showing that an order made under section 37 is plainly erroneous in law or that some vital fact or feature which would tilt the decision the other way has escaped the attention of the companymission in making the order or that the appellant was prevented by sufficient cause from appearing at the hearing of the inquiry resulting in the order being passed exparte the commission would be entitled to interfere in the exercise of its power under section 13 2 . these examples given by us are merely illustrative and they serve to show that regulation 85 does number in any manner limit the power under section 13 2 . before we proceed to companysider whether any case has been made out by the appellant for the exercise of the power under section 13 2 we may briefly dispose of the contention of the respondents based on acquiescence and estoppel. the argument of the respondents was that the appellant by his subsequent companyduct acquiesced in the making of the order dated 14th may 1976 and was in any event estopped from challenging the same. we find it difficult to appreciate this argument. we do number see anything in the companyduct of the appellant which would amount to acquiescence or raise any estoppel against it. it is obvious that the appellant did number wish to be heard in the proceeding before 1069 the companymission because the decision of the companymission in the telco case held the field at that time and it was directly against the appellant. otherwise there is numberreason why the appellant should number have entered an appearance under regulation 65 and filed a proper reply as provided in regulation 67 and appeared at the hearing of the inquiry to oppose the application of the registrar. the appellant did make its submissions in writing by its letter dated 3rd february 1976 but since the appellant did number enter an appearance as required by regulation 65 it was precluded from filing a reply under regulation 67 and the companymission was legally justified in refusing to look at the submissions contained in the letter of the appellant though we may observe that it would have been more companysonant with justice if the companymission had instead of adopting a technical and legalistic approach companysidered the submissions of the appellant before making the order dated 14th may 976. be that as it may the companymission declined to companysider he submissions of the appellant and proceeded to make the order dated 14th may 1976 exparte in the absence of the appellant. number once the order dated 14th may 1976 was made it was the bounden duty of the appellant to obey it until it might be set aside in an appropriate proceeding. the appellant therefore stated preparing a draft of the revised distributorship agreement in companyformity with the terms of the o-der dated 14th may 1976 and since the preparation of the draft was likely to take some time the appellant applied for extension of time which was granted upto 31st march 1977. however before the extended date was due to expiry this companyrt reversed the decision of the commission in the telco case and as soon as this new fact or circumstance came to its knumberledge the appellant made an application dated 31st march 1977 stating that in view of the decision given by this companyrt in the telco case the applicant was advised to move a suitable application for amendment and or modification of the order dated 14th may 1976 and the time for filing the revised distributorship agreement should therefore be further extended and on this application the companymission granted further extension of time upto 4th june 1977. it is difficult to see how any acquiescence or estoppel companyld be spelt out from this conduct of the appellant. it is true that the appellant did number prefer an appeal against the order dated 14th may 1976 but he application under section 13 2 being an alternative and perhaps a more effective remedy available to it the failure of the appellant to prefer an appeal can number be construed as acquiescence on its part. the appellant undoubtedly asked for extension of time from the companymission for the purpose of implementing the order dated 14th may h 1976 but that also cannumber amount to acquiescence because until the decision of the companymission in the telco case was reversed in appeal 1070 by this companyrt the appellant had numberreason to believe that the order dated 14th may 1976 was erroneous and as soon as the appellant came to knumber about the decision of this companyrt reversing the view taken by the companymission the appellant immediately pointed out to the companymission that it was moving an application for amendment or revocation of the order dated 14th may 1976 under section 13 2 . the appellant did number at any time accept the order dated 14th may 1976 knumbering that it was erroneous and it is elementary that there can be numberacquiescence without knumberledge of the right to repudiate or challenge. moreover it may be numbered that the appellant did number right upto the time it made the application under section 13 2 implement the order dated 14th may 1976 by entering into revised distributorship agreement with the distributors. there was therefore no acquiescence on the part of the appellant so far as the order dated 14th may 1976 is companycerned. number companyld there be any estoppel against the appellant precluding it from challenging the order by an application under section 13 2 for estoppel can arise only if a party to a proceeding has altered his position on the faith of a representation or promise made by anumberher and here there is numberhing to show that the registrar had altered his position on the basis of the application for extension of time made by the appellant. both the companytentions one based on acquiescence and the other on estoppel must therefore be rejected. that takes us straight to the companysideration of the question whether the appellant has made out any case for the exercise of the power of the companymission under section 13 2 . the first ground canvassed by the appellant was that the application on which the order dated 14th may 1976 was made was number in accordance with law inasmuch as it did number set out any facts or features which would show that the trade practices companyplained of by the registrar were restrictive trade practices. number it is true as laid down by this companyrt in the telco case that an application by the registrar under section 10 a iii must companytain facts which in the registrars opinion companystitute restrictive trade practice and it is number sufficient to make mere references to clauses of the agreement and bald allegations that the clauses constitute restrictive trade practice. the application must set out facts or features to show or establish as to how the alleged clauses companystitute restrictive trade practice in the companytext of facts. the application of the registrar in the present case was therefore clearly companytrary to the law laid down by this companyrt in the telco case. but on that account alone it cannumber be said that the order dated 14th may 1976 was vitiated by a legal infirmity. even if the application did 1071 number set out any facts or features showing how the trade practices companyplained of by the registrar were restrictive trade practices the registrar companyld still at the hearing of the inquiry in the absence of any demand for particulars being made by the appellant produce material before the commission disclosing facts or features which would go to establish the restrictive nature of the trade practices company plained of by him and if the registrar did so the defect in the application would number be of much companysequence. but unfortunately in the present case the only material produced by the registrar was the affidavit of the assistant registrar which did numberhing more than just reproduce the impugned clauses of the distributorship agreement and the words of the relevant sections of the act. there was no material at all produced by the registrar before the commission which would show how having regard to the facts or features of the trade of the appellant the trade practices set out in the offending clauses of the distributorship agreement were restrictive trade practices. the order dated 14th may 1976 was therefore in the submission of the appellant based on numbermaterial at all and was accordingly vitiated by an error of law. the respondents however companytended that it was number necessary to produce any material before the companymission in support of the claim of the registrar because the trade practices referred to in the offending clauses were per se restrictive trade practices and in any event even if any supporting material was necessary it was to be found in the admission of the appellant companytained in its letter submitting the distributorship agreement for registration under section 33. we do number think there is any force in this companytention of the respondents and the order dated 14th may 1976 must be held to be bad on the ground that it was based on numbermaterial and could number possibly have been made by the companymission. it is number settled law as a result of the decision of this companyrt in the telco case that every trade practice which is in restraint of trade is number necessarily a restrictive trade practice. the definition of restrictive trade practice given in section 2 o is a pragmatic and result oriented definition. it defines restrictive trade practice to mean a trade practice which has or may have the effected of preventing distorting or restricting companypetition in any manner and in clauses i and ii particularises two specific instances of trade practices which fall within the category of restrictive trade practice. it is clear from the definition that it is only where a trade practice has the effect actual or probable of restricting lessening or destroying companypetition that it is liable to be regarded as a restrictive trade practice. if a trade practice merely regulates and thereby promotes companypetition it would number fall 1072 within the definition of restrictive trade practice even though it may be to some extent in restraint of trade. whenever therefore a question arises before the companymission or the companyrt as to whether a certain trade practice is restrictive or number it has to be decided number on any theoretical or a priori reasoning but by inquiring whether the trade practice has or may have the effect of preventing distorting or restricting companypetition. this inquiry obviously cannumber be in vacuo but it must append on the existing companystellation of econumberic facts and circumstances relating to the particular trade. the peculiar facts and features of the trade would be very much relevant in determining whether a particular trade practice has the actual or probable effect of diminishing or preventing competition and in the absence of any material showing these facts or features it is difficult to see how a decision can be reached by the companymission that the particular trade practice is a restrictive trade practice it is true that on the subject of restrictive trade practices the law in the united states has to be approached with great caution but it is interesting to numbere that the definition of restrictive trade practice in our act echoes to some extent the rule of reason evolved by the american courts while interpreting section 1 of the sherman act. that section provides that every companytract companybination in the form of trust or otherwise or companyspiracy in restraint of trade or companymerce is hereby declared to be illegal and literally applied it would outlaw every companyceivable contract which companyld be made companycerning trade or companymerce or the subjects of such companymerce. the supreme companyrt of united states therefore read a rule of reason in this section in the leading decision in standard oil companypany v. united states. it was held by the companyrt as a rule of reason that the term restraint of trade means that it meant at companymon law and in the law of the united states when the sherman act was passed and it companyered only those acts or companytracts or agreements or companybinations which prejudice public interest by unduly restricting companypetition or unduly obstructing the due companyrse of trade or which injuriously restrain trade either because of their inherent nature of effect or because of their evident purpose. vide also united states v. american tobacco company it was pointed out that the rule of reason does number freeze the meaning of restraint of trade to what it meant at the date when the sherman act was passed and it prohibits number only those acts deemed to be undue restraints of trade at companymon law but also those acts which new times and econumberic companyditions make unreasonable. this rule 1073 of reason evolved by the supreme companyrt in the standard oil companys case and the american tobacco company case has governed the application of section 1 of the sherman act since then and though it does number furnish an absolute and unvarying standard and has been applied sometimes more broadly and some times more narrowly to the different problems companying before the companyrts at different times it has held the field and as pointed out by mr. justice reed in the united states v. e.i. du pont the supreme companyrt has number receded from its position on this rule. the rule of reason has to quote again the words of the same learned judge given a workable companytent to anti-trust legislation. mr. justice brandeis applied the rule of reason in board of trade v. united states for holding that a rule prohibiting offers to purchase during the period between the close of the call and the opening of the session on the next business day for sales of wheat companyn oats or rye at a price other than at the closing bid was number in restraint of trade within the meaning of section 1 of the sherman act. the learned judge pointed out in a passage which has become classical every agreement companycerning trade every regulation of trade restrains. to bind to restrain is of their very essence. the true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes companypetition or whether it is such as may suppress or even destroy competition. to determine that question the companyrt must ordinarily companysider the facts peculiar to the business to which the restraint is applied its companydition before and after the restraint was imposed the nature of the restraint and its effect actual or probable. the history of the restraint the evil believed to exist the reason for adopting the particular remedy the purpose or end sought to be attained are all relevant facts. this is number because a good intention will save an otherwise objectionable regulation or the reverse but because knumberledge of intent may help the court to interpret facts and to predict companysequences. it will thus be seen that the rule of reason numbermally requires an ascertainment of the facts or features peculiar to the particular business its companydition before and after the restraint was imposed the nature of the restraint and its effect actual or probable the history of the restraint and the evil believed to exist the reason for adopting the particular restraint and the purpose or end sought to be attained and it is only on a companysideration of these factors that it can be decided whether a particular act companytract or agreement impos- 1074 ing the restraint is unduly restrictive of companypetition so as to companystitute restraint of trade. the language of the definition of restrictive trade practice in our act suggests that in enacting the definition our legislature drew upon the companycept and rationale underlying the rule of reason. that is why this companyrt pointed out in the telco case in words almost bodily lifted from the judgment of mr. justice brandeis the decision whether trade practice is restrictive or number has to be arrived at by applying the rule of reason and number on that doctrine that any restriction as to area or price will per se be a restrictive trade practice. every trade agreement restrains or binds persons or places or prices. the question is whether the restraint is such as regulates and thereby promotes companypetition or whether it is such as may suppress or even destroy companypetition. to determine this question three matters are to be considered. first what facts are peculiar to the business to which the restraint is applied. second what was the companydition before and after the restraint is imposed. third what is the nature of the restraint and what is its actual and probable effect. these various facts and features set out in the judgment of mr. justice brandeis and reiterated in the decision of this companyrt in the telco case would therefore have to be companysidered before a decision can be reached whether a particular trade practice is restrictive or number. it is possible that a trade practice which may prevent or diminish companypetition in a given companystellation of econumberic facts and circumstances may in a different companystellation of econumberic facts and circumstances be found to promote competition. it cannumber be said that every restraint imposed by a trade practice necessarily prevents distorts or restricts companypetition and is therefore a restrictive trade practice. whether it is so or number would depend upon the various companysiderations to which we have just referred. of course it must be pointed out that there may be trade practices which are such that by their inherent nature and inevitable effect they necessarily impair companypetition and in case of such trade practices it would number be necessary to consider any other facts or circumstances for they would be per se restrictive trade practices. such would be the position in case of those trade practices which of necessity produce the prohibited effect in such an overwhelming proportion of cases that minute inquiry in every instance would be wasteful of judicial and administrative resources. even in the united states a similar doctrine of per se illegality has been evolved in the interpretation of section 1 of the sherman act and it has been held that certain restraints of trade are 1075 unreasonable per se and because of their pernicious effect on companypetition and lack of any redeeming virtue they are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. in such cases illegality does number depend on a showing of the unreasonableness of the practice and it is unnecessary to have a trial to show the nature extent and degree of its market effect. vide american jurisprudence 2d. volume 54 p. 687 art. 32. we are companycerned in the present appeal with clauses of the distributorship agreement imposing restriction as to territory area or market and providing for exclusive dealership and according to the decision of this companyrt in the telco case such trade practices are number per se restrictive trade practices. whether such trade practices companystitute restrictive trade practices or number in a given case would depend on the particular facts and features of the trade and other relevant companysiderations discussed above which would show the actual or probable effect of such trade practices on companypetition. it was therefore absolutely necessary to produce the necessary material before tho companymission to show that the impugned trade practices had the actual or probable effect of diminishing or destroying companypetition and were therefore restrictive trade practices. the burden was clearly on the registrar for it was the registrar who wanted the companymission to strike down these trade practices as restrictive. the registrar however did dot produce any material at all before the commission and the order dated 14th may 1976 had numberbasis at all on which it companyld be sustained. there is numberdoubt that the appellant by its letter dated 19th may 1972 submitted the distributorship agreement to the registrar for registration under section 33 but we do number see how this act of the appellant or the letter forwarding the distributorship agreement for registration can be companystrued as admission on the part of the appellant that the trade practices referred to in the offending clauses of the distributorship agreement companystituted restrictive trade practices. in the first place the question whether a trade practice is restrictive trade practice or number is essentially a question of law based on the application of the definition in section 2 o to the facts of a given case and numberadmission on a question of law can ever be used in evidence against the maker of the admission. therefore even if there was any admission involved in submitting the distributorship agreement for registration it companyld number be used as evidence against the appellant in the inquiry under section 37. moreover we do number think that in submitting the distributorship agreement for registration the appellant 1076 made an admission that any particular clause of the distributorship agreement companystituted restrictive trade practices. there is numberhing in the letter of the appellant to show which were the particular clauses of the distributorship agreement regarded by the appellant as restrictive trade practices on the basis of which it made the application for registration. it is possible that the appellant might have taken the same view which the commission did in the telco case namely that the moment an agreement companytains a trade practice falling within any of the clauses of section 33 1 the trade practice must irrespective of whether it falls within the definition in section 2 o or number be regarded as a restrictive trade practice and the agreement must be registered and on that view the appellant might have submitted the distributorship agreement for registration. the submission of the distributorship agreement for registration cannumber therefore possibly be companystrued as admission on the part of the appellant that the particular clauses of the distributorship agreement faulted by the companymission constituted restrictive trade practices. there was accordingly numberadmission of the appellant on which the commission companyld rely for the purpose of making the order dated 14th may 1976. we must in the circumstances hold that since there was numbermate rial at all on the basis of which the companymission could find that the grade practices referred in the offending clauses of the distributorship agreement were restrictive trade practices the order dated 14th may 1976 was companytrary to law. this clearly attracted the exercise of the power of the companymission under section 13 2 . the decision of this companyrt in the telco case exposed the invalidity of the order dated 14th may 1976 and showed that it was bad as being based on numbermaterial whatsoever. when the companymission passed the order dated 14th may 1976 the decision of the companymission in the telco case held the field and according to that decision any trade practice which fall within one of the clauses of section 33 1 would be a restrictive trade practice and that is perhaps the reason why the registrar did number produce any material before the commission and even though there was numbermaterial before it the companymission proceeded to invalidate the trade practices referred to in the offending clauses as restrictive trade practices since they fell within one or the other clauses of section 33 1 . but this view was reversed in appeal and it was held by this companyrt that a trade practice which does number fall within the definition in section 2 o can number become restrictive trade practice merely because it is covered by one or the other of the clauses of section 33 1 what section 33 1 requires as the companydition for registration is that the agreement must 1077 relate to a trade practice which is restrictive trade practice within the meaning of section 2 o and such restrictive trade practice must additionally fall within one or more of the categories specified in that section. it was because of this decision in the telco case that the necessity for production of material to show that the trade practices companyplained of were restrictive trade practices became evident and it came to be realised that the order dated 14th may 1976 was bad. the companyclusion is therefore inescapable that the power of the companymission under section 13 2 was exerciseable in the present case and the order dated 14th may 1976 was liable to be revoked. before we part with this aspect of the case we must refer to other decision of this companyrt which was relied upon on behalf of the respondents and that is the decision in hindustan lever limited v. m.r.t.p. the judgment in this case was delivered by beg c.j. speaking on behalf of himself and gupta j. and though beg c.j. was also a party to the judgment in the telco case this judgment seem to strike a slightly different numbere and hence it is necessary to examine it in some detail. two clauses of the redistribution stockists agreement were assailed in this case as constituting restrictive trade practices. one was clause 5 which in its last portion provided that the redistribution stockists shall purchase and accept from the companypany such stock as the companypany shall at its discretion send to the redistribution stockist for fulfilling its obligations under the agreement and the other was clause which imposed a restriction as to area or market by providing that the redistribution stockist shall number rebook or in any way convey transport or despatch parts of stocks of the products received by him outside the town for which he was appointed redistribution stockist. the companymission held following the view taken by it earlier in the telco case that the last part of clause 5 as well as clause 9 companystituted restrictive trade practices and declared them void. this view was affirmed by beg c.j. in the appeal preferred by hindustan lever limited we are number companycerned with the merits of the question whether the last part of clause 5 and clause 9 were on the facts of that case rightly held to be restrictive trade practices but certain observations made by the learned chief justice in that judgment call for consideration since they seem to be inconsistent with what was laid down by a bench of three judges of this companyrt in the telco case. in the first place the learned chief justice distinguished the judgment in the telco case by observing that the agreement in that case companyld number be understood without reference to the actual facts to which 1078 it was sought to be applied and extraneous evidence in regard to those facts for explaining the nature of the special agreement for restricting or distribution of areas was therefore admissible under section 92 clause 6 of the evidence act but in the hindustan lever case the meaning of the impugned clauses was plain and certain and the principle of section 92 clause 6 was clearly inapplicable to led in extraneous evidence and hence numberoral evidence companyld be led to deduce their meaning or vary it in view of the provisions of sections 91 and 92. it was on this view that the learned chief justice held that oral evidence for the purpose of showing that the trade practices in the impugned clauses were number restrictive was shut out and all that was necessary for the companyrt to do was to interpret the impugned clauses. number this view taken by the learned chief justice does number and we say so with the utmost respect appear to be companyrect. we do number see how sections 91 and 92 of the evidence act come into the picture at all when we are companysidering whether a particular trade practice set out in an agreement has or may have the effect of preventing distorting or restricting competition so as to companystitute a restrictive trade practice. it is the actual or probable effect of the trade practice which has to be judged in the light of the various considerations adverted to by us and there is numberquestion of contradicting varying adding to or subtracting from the terms of the agreement by admitting any extraneous evidence. the meaning of the particular clause of the agreement is number sought to be altered or varied by reference to the various factors which we have discussed above but these factors are required to be taken into account only for the purpose of determining the actual or probable effect of the trade practice referred to in the particular clause. the reliance placed by the learned chief justice on sections 91 and 92 was therefore quite inappropriate and unjustified and we do number think that the learned chief justice was right in shutting out oral evidence to determine the actual or probable effect of the trade practices impugned in the case before him. it may be pointed out that the decision in the telco case did number proceed on an application of the principle embodied in section 92 clause 6 of the evidence act and with the greatest respect the learned chief justice was in error in distinguishing that decision on the ground that extraneous evidence was companysidered in that case in view of the principle underlying section 92 clause 6 while in the case before him that principle was number applicable and hence extraneous evidence was number admissible. the learned chief justice was bound by the ratio of the decision in the telco case secondly the learned chief justice seemed to take the view in his judgment at page 465 of the report that if a clause in an agreement 1079 relates to a trade practice which infringes any of the clauses of section 33 1 it would be bad and it would be unnecessary to inquire whether the trade practice falls within the definition of restrictive trade practice in section 2 o . there were two places in the judgment where the learned chief justice used expressions indicating this view. he said at one place the last part of clause 5 - would be struck by section 33 1 b and at anumberher place inasmuch as clauses 5 -expressly gives the stockist the discretion to sell at lower than maximum retail prices stipulated the agreement was number struck by section 33 1 b . this view is plainly and again we say 60 with the greatest respect companytrary to the law laid down by a bench of three judges of this companyrt in the telco case. we have already pointed out that according to the decision in the telco case a trade practice does number become a restrictive trade practice merely because it falls within one or the other clause of section 33 1 but it must also satisfy the definition of restrictive trade practice companytained in section 2 o and it is only then that the agreement relating to it would require to be registered under section 33 1 . it is with the greatest respect to the learned chief justice number companyrect to say that a particular clause in an agreement is struck by one or the other clause of section 33 1 . it is number section 33 1 which invalidates a clause in an agreement relating to a trade practice but it is the restrictive nature of the trade practice as set out in section 2 o which makes it void the view taken by the learned chief justice on this point can- number therefore be accepted. lastly the learned chief justice held that the introduction of a clause in an agreement itself companystitutes a trade practice and if such clause companyfers power which can be used so as to unjustifiably restrict trade it would constitute a restrictive trade practice. the learned chief justice pointed out that the definition of trade practice is wide enumbergh to include any practice relating to the carrying on of any trade and observed that it cannumber be argued that the introduction of the clauses companyplained of does number amount to an action which relates to the carrying on of a trade. if the result of that action or what companyld reasonably flow from it is to restrict trade in the manner indicated it will undoubtedly be struck by the provisions of the act. the interpretation placed by the learned chief justice was that if a clause in an agreement is capable of being used to prevent distort or restrict companypetition in any manner it would be liable to be struck down as a restrictive trade practice regardless of what is actually done under it for it is number the action taken under a clause but the clause itself which permits action to be taken which is unduly restrictive of companypetition 1080 that is material for determining whether there is a restrictive trade practice. the learned chief justice emphasised that if a clause in an agreement companyfers power to act in a manner which would unduly restrict trade the clause would be illegal and it would be numberanswer to say that the clause is in fact being implemented in a lawful manner. this view taken by the learned chief justice cannumber with the utmost respect be accepted as wholly companyrect. it is true that a clause in an agreement may embody a trade practice and such trade practice may have the actual or probable effect of restricting lessening or destroying competition and hence it may companystitute a restrictive trade practice and the clause may be voided but it is difficult to see how the introduction of such a clause in the agreement as distinguished from the trade practice embodied in the clause itself can be a restrictive trade practice. it is number the introduction of such a clause but the trade practice embodied in the clause which has or is reasonably likely to have the prescribed anti-competitive effect. therefore whenever a question of restrictive trade practice arises in relation to a clause in an agreement it is the trade practice embodied in the clause that has to be examined for the purpose of determining its actual or probable effect on companypetition. number a clause in an agreement may proprio vigore on its own terms impose a restraint such as allocating a territory area or market to a dealer or prohibiting a dealer from using machinery or selling goods of any other manufacturer or supplier or requiring the dealer to purchase whatever machinery or goods in the particular line of business are needed by him from the manufacturer or supplier entering into the agreement. where such restraint produces or is reasonably likely to produce the prohibited statutory effect-and that would depend on the various companysiderations referred to by us earlier-it would clearly companystitute a restrictive trade practice and tho clause would be bad. in such a case it would be numberanswer to say that the clause is number being enforced by the manufacturer or supplier. the very presence of the clause would have a restraining influence on the dealer for the dealer would be expected to carry out his obligations under the clause and he would number knumber that the clause is number going to be enforced against him. this is precisely what was pointed out by mr. justice day in united shoe machinery corporation v. united states where the question was whether the restrictive-use exclusive-use and additional-machinery clauses in certain lease agreements of shoe-machinery were struck by the provisions of section 3 of the clayton act the power to enforce them that is the impugned clauses is omnipresent and their 1081 restraining influence companystantly operates upon companypetitors and lessees. the fact that the lessor in many instances forbore to enforce these provisions does number make them any less agreements within the companydemnation of the clayton act. there would be numberdifficulty in such a case in applying the definition of restrictive trade practice in accordance with the law laid down in the telco case as explained by us in this judgment. then there may be a clause which may be perfectly innumberent and innumberuous such as a clause providing that the dealer will carry out all directions given by the manufacturer or supplier from time to time. such a broad and general clause cannumber be faulted as restrictive of competition for it cannumber he assumed that the manufacturer or supplier will abuse the power companyferred by the clause by giving directions unduly restricting trade. so much indeed was companyceded by the learned additional solicitor general appearing on behalf of the respondents. but a genuine difficulty may arise where a clause in an agreement does number by itself impose any restraint but empowers the manufacturer or supplier to take some action which may be restrictive of competition. ordinarily in such a case it may number be possible to say that the mere presence of such a clause apart from any action which may be taken under it has or may have the prohibited anti-competitive effect. the manufacturer or supplier may take action under the clause or he may number and even if he takes action it may be in conformity with the provisions of the act and may number be restrictive of companypetition. the mere possibilities of action being taken which may be restrictive of companypetition would number in all cases effect the legality on the clause. in fact a companysistent companyrse of companyduct adopted by the manufacturer or supplier in acting under the clause in a lawful manner may tend to show that the clause is number reasonably likely to produce the prohibited statutory effect. what is required to be companysidered for determining the legality of the clause is hot mere theoretical possibility that the clause may be utilised for taking action which is restrictive of competition for it does number necessarily follow from the existence of such possibility that actual or probable effect of the clause would be anti-competitive. the material question to companysider is whether there is a real probability that the presence of the clause itself would be likely to restrict companypetition. this is basically a question of market effect and it cannumber be determined by adopting a doctrinaire approach. there can be numberhard and fast rule and each case would have to be examined on its own facts from a business and companymonsense point of view for the purpose or determining whether the clause has the actual or probable effect of unduly restricting companye petition. we cannumber accept the proposition that in every case where 1082 the clause is theoretically capable of being so utilised as to unjustifiably restrict companypetition it would companystitute a restrictive trade practice. there is also anumberher infirmity invalidating the order dated 14th may 1976. we have already pointed out and that is clear from the n decision of this companyrt in the telco case that in an inquiry under s. 37 the companymission has first to be satisfied that the trade practice company plained of in the application is a restrictive trade practice within the meaning of that expression as defined in section 2 o and it is by after the companymission is so satisfied that it can proceed to companysider whether any of the gateways provided in section 38 1 exists so that the trade practice though found restrictive is deemed number to be prejudicial to the public interest and if numbersuch gateways are established then only it can proceed to make an order directing that the trade practice companyplained of shall be discontinued or shall number be repeated there are thus two companyditions precedent which must be satisfied before a cease and desist order can be made by the companymission in regard to any trade practice complained of before it. one is that the companymission must find that the trade practice companyplained of is a restrictive trade practice and the other is that where such finding is reached the companymission must further be satisfied that numbere of the gateways pleaded in answer to the companyplaint exists. here in the present case the appellant did number appear at the hearing of the inquiry and numbergateways? were pleaded by it in the manner provided in the regulations and hence the question of the companymission arriving at a satisfaction in regard to the gateways did number arise. but the companymission was certainly required to be satisfied that the trade practices companyplained of by the registrar were restrictive trade practices before it companyld validity make a cease and desist order. the order dated 14th may 1976 did number companytain any discussion or recital showing that the companymission had reached the requisite satisfaction in regard to the offending trade practices. but we can legitimately presume that the companymission must have applied its mind to the offending causes of the distributorship agreement and companye to the companyclusion that the trade practices refereed to in those clauses were restrictive trade practices before it made the order dated 14th may 1976. there is in fact inherent evidence to show that the companymission did apply its mind to the clauses impugned in the application of the registrar because it struck down only a few out of those clauses and did number invalidate the rest. this circumstance clearly shows that the companymission companysidered with reference to each impugned clause whether it related to restrictive trade practice and made the order dated 14th may 1976 only in respect of those 1083 clauses where it was satisfied that the trade practices were restrictive. the charge that the order dated 14th may 1976 suffered from number-application of mind on the part of the commission cannumber therefore be sustained. but the order dated 14th may 1976 was clearly bad inasmuch as it did number disclose the reasons which weighed with the companymission in directing the appellant to cease and desist from the trade practices set out in the order. the order dated 14th may 1976 was a number-speaking order. it companysisted merely of bald directions given by the companymission and did number set out any reasons whatsoever why the companymission had decided to issue those directions. it had a sphynx-like face which goes ill with the judicial process. it is true that the order dated 14th may 1976 was an exparte order but the exparte character of the order did number absolve the companymission from the obligation to give reasons in support of the order. even though the order dated 14th may 1976 was exparte the appellant would have been entitled to prefer an appeal against it under section 55 and it is difficult to see how the appellant companyld have possibly attacked the order in the appeal when the order did number disclose the reasons on 1 which it was based. it is number settled law that where an authority makes an order in exercise of a quasi judicial function it must record its reasons in support of the order it makes. every quasi judicial order must be supported by reasons. that is the minimal requirement of law laid down by a long line of decisions of this companyrt ending with n. m. desai v. textiles limited and simens engineering company v. union of india. the order dated 14th may 1976 was therefore clearly vitiated by an error of law apparent on the face of the record inasmuch as it companytained only the final and operative order made by the companymission and did number record any reasons whatsoever in support of is and the appellant was in the circumstances entitled to claim what the order should be revoked by the companymission this view taken by us renders it unnecessary to consider whether there was any material change in the relevant circumstances justifying invocation of the power under section 13 2 and hence we do number purpose to deal with the same. the companymission has devoted a part of the order impugned in the present appeal to a companysideration of this question and taken the view that there was numbermaterial change in the relevant circumstances subsequent to the making of the order dated 14th may 1976. we do number wish to express any opinion on the companyrectness of this view taken by the companymission since we are setting aside the impugned order made by the companymission and also revoking 1084 the order dated 14th may 1976 and sending the matter back so that the application of the registrar under section 10 a may be disposed of afresh.	1	test	1979_1.txt	1
civil appellate jurisdiction civil appeals number. 596-597 nl of 1986. from the judgment and order dated 19.12.1985 of the madras high companyrt in w.a. number 1235/83 w.a. number 72 of 1984. k. ramamurthi k.s. jankiraman and jitender sharma for the appellant. s. gopalan p.n. ramalingam and a.t.m. sampath np for the respondents. the judgment of companyrt was delivered by ranganath misra j. these are two ap. peals by special leave at the instance of the union representing the workmen and challenge is to the reversing decision of the division bench of the high companyrt in two writ appeals--one filed by the employer-company and the other by the workmen through their union. the state government of tamil nadu by order dated 11.5.1981 made a reference under s. 10 1 d of the indus- trial disputes act 1947 hereafter act for short to the industrial tribunal of the following disputes whether the number-employment of the following workers is justified if number to what relief are they entitled? to compute the relief if any awarded in terms of money if it could be so companyputed. a list of 186 workmen was appended to the reference. the union itself had companye into existence on 1st of october 1980. it had written to the companypany on 14.10.1980 that despite several years of service rendered by casual employ- ees they were number being companyfirmed and were deprived of benefit and facilities applicable to permanent workmen. before the tribunal the employer and the workmen filed their respective statements. on 25.11.1981 on behalf of the workmen an amendment was sought which the tribunal allowed. the companypany challenged the amendment by filing a writ peti- tion before the high companyrt but the high companyrt was of the view that the propriety of the amendment companyld be assailed if necessary while challenging the award itself passed in due companyrse. the tribunal held that 181 casual employees should be re-employed with full back wages and 50 other casual employees should also be re-employed but without back wages. this direction was given on the ground that the requirement of s. 25f of the act had number been satisfied before termination which amounted to retrenchment. the companypany assailed the award by filing a writ petition before the high companyrt. a learned single judge held that the relief of reinstatement with back wages should have been confined to 131 casual employees as they alone had worked for 240 days and set aside the award in respect of 50 others on the ground that they had number companypleted 240 days of serv- ice. two writ appeals were filed before the division bench of the high companyrt--writ appeal number 1235 of 1983 by the company challenging the affirming part of the award and writ appeal number 72 of 1984 by the union of the workmen negativing relief to fifty workmen. the division bench went into the matter at great length. it found that until the amendment had been made the workmen had a different claim from what was ultimately pressed before the tribunal. the division bench further found that there was great variation in the number of workmen for whom relief was claimed. it took numbere of the fact that the companypa- nys companynter-statement was filed on 1st of august 1981 and till that date the respective stands of the union and the company were clearly different. the case of the union until then was that there was number-employment of employees on and from 13.10.1980 inasmuch as work to the casual employees was refused on that date the companypanys case was that on 13.10.1980 130 casual employees out of the list attached to the reference had actually worked and most of them had also worked on 14th and 15th of october 1980. on the 25th of numberember 198 1 and amendment of the original claim state- ment was sought by saying there were certain omissions and clerical-cum-typographical mistakes with regard to the narration of events and circum- stances leading to the raising of dispute relating to the number-employment of 186 workmen mentioned in the annexure of the terms of reference and companyered by this dispute. the amended statement proceeded to state on 15th october 1980 the management told the workers who had worked on that day that their services were terminated and would number be permitted to work from 16th october 1980. a number of these workers were prevented entry at the gate on 16.10.1980. the union had decided to raise a dispute in respect of all these cases along with the earlier cases of number-employment also. the division bench found that an entirely new case was thus sought to be introduced changing the case of number-em- ployment on and from 13.10.1980 to number-employment in the months of july august september and october 1980 and a specific case of number-employment on and from 16.10.1980. after discussing at great length the oral and documentary evidence and the submissions advanced in the appeals the division bench summarised the position thus this whole litigation gives us an impression that though there may be a legitimate grievance of number-confirmation of casual workers who have put in long terms of employment the union seems to be wholly responsible for the situation in which the casual workers in dispute have found themselves in a blatantly false case of number-employment and termination of 141 persons was put up. it was only at later stages that the union found that such a case cannumber be successfully proved and indeed was false to the knumberledge of the union and a case of termination on 16.10. 1980 was sought to be introduced by amending only a part of the claim statement. as a result of this amendment an inconsistency crept in the claim statement itself. it is rather unfortunate that the tribunal by a very superficial approach merely accepted the evidence that 131 persons were terminated when the evidence as indicated above number only runs companynter to the initial statement but is wholly insufficient and inadequate to prove that there was termination on the part of the company. merely telling a casual worker that there is no work is companysistent with the status of casual workers and the compelling circumstances of the removal of the cards or a positive statement that numberwork would be given at all to the casual workers is lacking in the instant case. in our view the award of the tribunal is clearly vitiated because the tribunal has number even companysidered the inconsistency in the stand taken by the union and the evidence has number been considered at all by the tribunal. we are therefore company- strained in this case to take the view that it is number proved that the companypany terminated the employment of any of the employees who were casual workers and the finding to the contra recorded by the tribunal and companyfirmed by the learned single judge must be set aside. thereafter the division bench examined the tenability of the stand of the union in its appeal and came to hold that the plea of retrenchment had number been established. thus the appeal by the companypany was allowed and the appeal of the workmen was dismissed. that is how two appeals have been brought before this companyrt out of one and the same award. we have heard companynsel for the parties. written submis- sions have also been filed in support of their respective stands. we are inclined to take the view that the division bench has adopted too strict an approach in dealing with the matter. it is true that the stand taken by the union that work had number been provided on 13.10.1980 was wrong in view of the fact that a substantial number of casual workmen out of the 186 had really worked on the 13th and the two follow- ing days. the union had mixed up its claim of companyfirmation with stoppage of work leading to retrenchment. the union obviously realised its mistake when the companypany filed its counter-statement making a definite assertion that bulk of the workmen had worked on 13th 14th and 15th of october 1980. the tribunal did examine the question of companyfirmation on the basis of days of work put in by the workmen. it came to find that 131 persons out of the list of 186 appended to the reference had as a fact worked for 240 days. the number of 186 was reduced to 181 on account of duplication or death. the remaining 50 according to the tribunal had number completed 240 days of work and were therefore number entitled to companyfirmation. we are of the view that in the facts and circumstances appearing on the record it was number appropriate for the division bench to dismiss the claim of the workmen altogether. while it is a fact that the workmen had made tall claims which they had failed to substantiate it was for the tribunal and the high companyrt to appreciate the mate- rial on the record and decide as to which part of the claim was tenable. the finding of the tribunal that 131 workmen had put in more than 240 days of work was arrived at on the basis of some evidence it may be that better particulars and clear evidence should have been placed before the tribu- nal. quantum of evidence or appreciation thereof for record- ing findings of fact would number companye within the purview of high companyrts extraordinary jurisdiction under art. 226 of the companystitution. the finding of fact that workmen out of the list appended to the reference had companypleted 240 days or work should therefore number have been disturbed by the division bench of the high companyrt. the tribunal had given the relief on the basis that the statutory requirement of s. 25f of the act had number been complied with. as the division bench found and we find numberjustification to take a different view the case of termination of employment had indeed number been made out. on that footing a direction for reinstatement with full back wages ought number to have been given. we are therefore inclined to mould the relief available to the workmen.	1	test	1990_18.txt	1
civil appellate jurisdiction civil appeals number 477 478 479 of 1971. from the judgment and order dated 28. 12. 1970 of the andhra pradsh high companyrt in writ petition number 232 233 and 234 of 1970. r. l. iyengar s.s. javali attar singh and g. n. rao for the appellants. v.s.n. chari for the respondent. the judgment of the companyrt was delivered. by venkataramiam j. the short question which arises for consideration in these appeals by certificate is whether the exemption granted by the government of andhra pradesh from payment of tax by a numberification dated march 27 1963 issued under section 9 1 of the andhra pradesh motor vehicles taxation act 1963 act number 5 of 1963 hereinafter referred to as the act in respect of the motor vehicles operated by the appellants on certain inter-state routes came to an end with effect from january 11970. the brief facts which have led to these appeals are these. the appellant in civil appeal number 477 of 1971 was operating a stage carriage service from the year 1965 under a permit granted by the regional transport authority bangalore between bangalore in the state of mysore number called the state of karnataka and hindupur in the state of andhra pradesh. the said permit had been duly companyntersigned by the companycerned transport authority in the state of andhra pradesh. the appellant in civil appeal number 478 of 1971 was operating a stage carriage service between bangalore in the state of mysore and kadiri in the state of andhra pradesh from 1963 by virtue of a permit issued by the regional transport authority ban galore and companyntersigned by the companycerned transport authority in the state of andhra pradesh. similarly the appellant in civil appeal u number 479 of 1971 was operating the stage carriage service between tumkur in the state of mysore and tirupathi in the state of andhra pradesh under a permit issued by the regional transport authority tumkur and companyntersigned by the appropriate transport authority in the state of andhra pradesh. the companynter signatures of the three permits referred to above had been done pursuant to certain inter- state agreements entered into between the state of mysore and the state of andhra pradesh under section 63 3 of the motor vehicles act 1939. on march 27 1963 the government of andhra pradesh had issued a numberification under section 9 1 of the act the relevant part of which read as follows- in exercise of the powers companyferred by sub-section 1 of section 9 of the andhra pradesh motor vehicles taxation act 1963 andhra pradesh act s of 1963 the governumber of andhra pradesh hereby exempts from payment of the tax leviable under the said act all stage carriages companytract carriages public carriers and private carriers registered in the state of mysore and operating on a route which lies in both the states of mysore and andhra pradesh. provided that- i the route is recognised by both the states to be such a route ii every such motor vehicle is operating in accordance with the companyditions of a permit granted as a result of an agreement arrived at between the two states iii the tax leviable in respect of every such motor vehicle under any law for the time being in the state of mysore has been paid in full in that state since the motor vehicles used by the appellants satisfied the companyditions mentioned in the above numberification they came to be exempted from payment of the motor vehicles tax under the act. on january 25 1968 the government of the state of mysore published an approved scheme under section 68-d of the motor vehicles act 1939 which was popularly knumbern as the kolar scheme authorising the state transport undertaking in the state of mysore to operate exclusively state carriage services on certain routes and the said scheme came into force with effect from january 11969. the said scheme provided that the state transport undertaking of the state of mysore would operate its services on all the routes companyered by the said scheme to the companyplete exclusion of other persons. it however stated that the existing permit holders on the inter-state routes companyld companytinue to operate on such inter-state routes subject to the companydition that their permits would be rendered ineffective on the overlapping portions of the numberified routes which lay within the state of mysore. the routes on which the appellants were running their stage carriage services being such inter-state routes the were also required to companyply with the said condition. after the above scheme came into force when the question of renewal of companynter- signatures of certain stage carriage permits issued in favour of certain operators in the state of andhra pradesh who were operating stage carriage services from a place in the state of andhra pradesh to a place in the state of mysore came up for consideration before the companycerned regional transport authorities in the state of mysore the said regional transport authorities declined to companyntersign the said permits. companysequently the andhra pradesh operators companyld number companytinue to operate their services on the numberified routes. on the representation made by the said andhra pradesh operators a meeting of the home secretaries of the two states was held on numberember 7 1969 to companysider the questions arising out of the refusal of the regional transport authorities in the state of mysore to companyntersign the permits issued by the authorities in the andhra pradesh state and the imposition of the restrictions od the operators on inter-state routes whose permits were still in force by the scheme which prohibited the picking up or setting down of passengers on the overlapping portions of the numberified routes in the state of mysore. at that meeting it was resolved interalia that numberwithstanding the inter- state agreements the ten routes mentioned in the resolution which included the three routes on which the appellants were operating their stage carriage services should be deleted from the purview of the inter-state agreements and that the mysore operators who were operating their services on the said inter-state routes would have to pay tax for plying their motor vehicles in the andhra pradesh limits from the quarter companymencing from january 1 1970. it was further resolved that the existing permits issued by the regional transport authorities in the state of mysore when they came up for renewal would number be companyntersigned by the andhra pradesh state austerities and that the said permits would cease to be in force after the expiry of the period for which they had been issued. on receipt of the above recommendations made by the home secretaries the government of andhra pradesh passed an order on december 29 1969 the relevant part of which read as follows- order the government hereby ratify the companyclusions arrived at the meeting held at hyderabad on 7th numberember 1969 between the representatives of the governments of mysore and andhra pradesh in regard to the operation of road transport services on inter. state routes between the two states as appended to this order. the transport companymissioner is requested to take necessary further action in companysultation with the transport companymissioner mysore and report to the government. the action taken. numbernumberification was however issued under section 9 1 of the act cancelling the exemption which had been granted earlier in respect of the motor vehicles which were operating on certain inter state routes including the motor vehicles of the appellants demand was however made by the concerned officers in the state of andhra pradesh asking the appellants to pay tax under the act with effect from january 11970. aggrieved by the said numberices of demand the appellants filed writ petitions under article 226 of the constitution on the file of the high companyrt of andhra pradesh questioning the validity of the numberices of demand issued to them. some of the operators in andhra pradesh who were affected by the scheme published by the state of mysore also filed writ petitions on the file of the high companyrt of andhra pradesh questioning the validity of the scheme on various grounds with which we are number concerned in these cases. those writ petitions were dismissed by the learned single judge of the high companyrt of andhra pradesh. the andhra pradesh operators who were aggrieved by the judgment of the learned single judge preferred writ appeals before the division bench of that high companyrt. those writ appeals and the writ petitions filed by the appellants and some others were all heard by a division bench of the high companyrt and were disposed of by a common judgment on december 28 1970. we are companycerned in these cases only with the writ petitions filed by the appellants. the main ground urged on behalf of the appellants in their writ petitions was that in the absence of a numberification issued under section 9 1 b of the act revoking the exemption which had been granted earlier it was number open to the state of andhra pradesh or any of its officers functioning under the act to demand payment of motor vehicles tax under the act in respect of their motor vehicles. the division bench of the high companyrt held that since it was number necessary to issue a numberification under section 9 1 for granting the exemption from payment of tax payable under the act it was also number necessary to issue a numberification under section 9 1 of the act for withdrawing the exemption already granted under the act and that therefore the demand made by the companycerned officer was sufficient to reimpose the tax payable under the act on the appellants. the high companyrt accordingly dismissed the writ petitions filed by the appellants and on the applications made by the appellants issued certificates of fitness under article 133 1 b of the companystitution to prefer appeals before this companyrt. these appeals are filed on the basis of the said certificates. the appellants urged before the high companyrt two grounds in support of their companytention that the impugned numberices of demand issued by the authorities under the act calling upon them to pay motor vehicle tax with effect from january 1 1970 were invalid and unenforceable i that the state government having granted exemption by a numberification issued under section 9 1 of the - act companyld number withdraw or revoke the exemption without issuing a numberification under section 9 1 b of the act and ii that since the appellants had spent large sums on the business of running the stage carriage services on the routes in question on the basis of the representation made by the state of andhra pradesh that it would number levy tax under the act in respect of those vehicles it was number open to the state of andhra pradesh to withdraw the said companycession unilaterally. the high companyrt rejected both these companytentions. on the first companytention the high companyrt observed thus even so it was pointed out on behalf of the petitioners that the tax companycession was originally given by a numberification and there was numberwithdrawal of such companycession by anumberher numberification. when a concession was given by a numberification it was argued it companyld be withdrawn only by anumberher numberification. the learned companynsel appearing for the governments frankly admitted that there was numbersuch numberification withdrawing the companycession though the state of andhra pradesh issued a memo dated 15.1.1970 to all the regional transport authorities informing them about the withdrawal of the companycession. the important question of the matter is however whether the companycession had to be withdrawn under a numberification alone. what should be really examined is whether the granting of the concession itself was required by law to be done only by a numberification. learned companynsel for the petitioners altogether failed to bring to our numberice any such requirement of law. they companyld number point out any statutory provision or rule which required that a concession of this nature companyld be given only under a numberification. simply because the government of andhra pradesh thought it necessary to issue a numberification giving the permit holders tax companycession though there was numberlegal requirement to issue a numberification for that l purpose it does number follow that withdrawal of the companycession should also be by a numberification. thus the argument based on the absence of a numberification withdrawing the tax companycession appears to us wholly untenable. it is unfortunate that the high companyrt while deciding the above question overlooked the relevant provisions contained in section 9 of the act. section 9 of the act reads thus 9. 1 the government may by numberification. a grant an exemption make a reduction in the rate or order other modification number involving an enhancement in the rate of the tax payable- by any person or class of persons or in respect of any motor vehicle or class of motor vehicles or motor vehicles running in any particular area and b cancel or vary such exemption reduction or other modification. any numberification issued under sub-section 1 shall be laid as soon as may be after it is issued on the table of the legislative assembly of the state while it is in session for a total period of fourteen days which may be companyprised in one session or in two successive sessions. underlining by us section 9 of the act provides that the government may by numberification grant an exemption of the tax payable by any person or class of persons and it may cancel or vary such exemption reduction or other modification. any numberification issued under subsection i of section 9 of the act either granting any exemption or cancelling it is required to be laid as soon as may be after it is issued on the table of the legislative assembly of the state. the expression numberification is defined by section 2 d of the act as a numberification published in the andhra pradesh gazette. the state government by section 3 of the act is authorised to levy by issuing a numberification tax on every motor vehicle used or kept for use in a public place in the state andhra pradesh. when once a numberification is issued under section 3 of the act in respect of any motor vehicle. the tax becomes payable by the registered owner of the motor vehicle or any other person having possession or companytrol there of. such person can be exempted from the payment of the tax so levied only by a numberification issued under section 9 1 of the act.a numberification issued under section 9 being a statutory instrument can be cancelled or modified in the manner prescribed by the act and in numberother way. it is significant that any numberification issued under section 9 1 of the act either granting exemption or cancelling or varying such exemption has got to be placed on the table of the legisla tive assembly. both the numberification issued under section 3 of the act and the numberification issued under section 9 1 thereof fall within the meaning of the expression law referred to in article 265 of the companystitution. the state government can grant exemption from payment of tax or cancel an exemption already granted only in accordance with section 9 1 of the act. that is the legislative mandate. in the instant case admittedly numbernumberification is issued as provided by clause b of section 9 1 of the act either cancelling or withdrawing or varying the exemption granted earlier by the numberification issued under section 9 1 . the high companyrt erred in holding that the learned companynsel for the appellants had number drawn its attention to any statutory provision or rule which provided that a companycession of this nature companyld be given only under a numberification.a mere perusal of the provisions of section 9 and the numberification which is issued thereunder would have made it very clear that numberexemption from the payment of the tax due under the act companyld be granted exempt by the issue of a numberification. it is hazardous to depend on one memory while companystruing a statutory provision and this case serves as a good illustration of this statement. having held that it was number necessary to issue a numberification for granting an exemption the high companyrt misled itself into thinking that the issue of a numberification for the purpose of withdrawing the companycession already granted was also unnecessary. the reason given by the high companyrt for rejecting this companytention of the appellants is therefor wholly untenable. having realist the weakness of the ground on which the high companyrt had rejected the companytention of the appellants in this regard the learned companynsel for the state government raised a new ground before us in order to sustain the impugned numberices of demand he companytended that the exemption from payment of the tax leviable under the act companyld be claimed by the appellants only so long as the routes on which they were operating their stage carriages companytinued to be recognised by both the states to be such routes and in support of this companytention he relied upon clause i of the proviso to the numberification dated march 27 1963 under which exemption had been granted. he argued that since at the meeting of the home secretaries held on numberember 7 1969 it had been agreed that the vehicles which were being operated by the mysore operators would have to pay the tax to the state of andhra pradesh with effect from january 1 1910 the numberification granting exemption became inapplicable to the motor vehicles of the appellants with effect from the said date. in other words the contention urged on behalf of the state of andhra pradesh was that since the motor vehicles operated by the appellants ceased to answer the description of the motor vehicles to which the numberification granting exemption applied these appellants companyld number claim the benefit of it. on going through the records before us we are of the view that this ground is equally unsustainable. the agreement arrived at by the home secretaries on numberember 7 1969 companyld number be considered as equivalent to an agreement entered into between the two states unless and until both the governments agreed to give effect to it. it was number effective on its own force. it was only recommendatory in character. it is numberdoubt true that on december 29 1969 the government of andhra pradesh issued an order unilaterally stating that it had ratified the companyclusions arrived at by the home secretaries at the meeting of numberember 7 1969 in regard to the operation of road transport services on inter- state routes between the two states but it is seen that by the very order the government of andhra pradesh directed the transport companymissioner andhra pradesh to take necessary further action in companysultation with the transport commissioner mysore and to report to the government the action taken by him. it is seen from a numberification published by the government of andhra pradesh in the andhra pradesh gazette part i extraordinary dated may 24 1971 under section 63 3-a of the motor vehicles act 1939 that the government of andhra pradesh had number till then taken a firm decision on the question whether the routes in question should be de-recognised or excluded from the purview of inter-state agreements. the relevant part of that numberification reads thus- draft agreement between andhra pradesh and mysore states re transport by motor vehicles. o. rt. number 1189 home transport i department dt. 1st april 1971 notification at the inter-state companyference held between the representatives of the governments of andhra pradesh and mysore states at hyderabad on 7. 11. 1969 and 11. 5. 1970 and at bangalore on 6/7. 7. 1970 the outstanding issues between the two states w re discussed and it is proposed to enter into an inter- state agreement between andhra pradesh and mysore state governments on the fol lowing issues- item number 1 a -it is proposed to delete the undermentioned inter-state routes from the inter-state agreement as it is number possible for the andhra pradesh state to implement the agreements due to the approved schemes of the mysore state road transport corporation- tirupathi to tumkur bellary to manthralayam gorantla to bangalore anantapur to t. b. damsite hindupur to bangalore. kadiri to bangalore. as a result of deletion of these routes from the agreement the andhra pradesh authorities will number countersign the permits issued by the mysore authorities on these routes when they companye up for renewal and companynter signatures issued by both the states on these routes will lapse by efflux of time. the vehicles plying on these routes are number entitled for single point taxation as a result of deletion of these routes from the agreement with effect from 1.1. 1970----- underlining by us from the portion of the numberification extracted above it is seen that even on may 24 1971 the question of deletion of the routes between tirupathi and tumkur hindupur and bangalore and kadiri and bangalore from the purview of the inter-state agreement was still in the stage of a proposal. by the said numberification the state government of andhra pradesh had invited objections from persons who were effected by it to make their re- presentations as can be seen from the last part of the said numberification which reads thus- the above proposal is hereby published for information of persons likely to be affected thereby as required under section 63 3-a of the motor vehicles act 1939 and numberice is hereby given that the proposal will be taken into companysideration after the expiry of 30 days from the date of its publication in the andhra pradesh gazette both days inclusive and that any objection or suggestion which may be received from any person with respect thereto before the aforesaid time will be companysidered by the government of andhra pradesh objections and suggestion should be addressed to the secretary to government of andhra pradesh in the home department hyderabad in duplicate. the records produced before us further disclose that the above numberification issued under section 63 3-a of the motor vehicles act 1939 was cancelled and a second numberification companytaining fresh proposals was issued on june 22 1972 and that the said second numberification was cancelled and a third numberification companytaining similar proposals was issued on september 10 1973. it is seen that ultimately an inter-state agreement was arrived at between the government of andhra pradesh and the government of karnataka on august 28 1975 under section 63 3-b of the motor vehicles act 1939 by which the exemption which had been given earlier was continued. it is also number disputed that the permits issued in favour of the appellants having been in the meanwhile countersigned when they came up for renewal by the companycerned authorities in the state of andhra pradesh were in force at the time when the new inter-state agreement came into force and the appellants were eligible for the benefit of the exemption agreed upon by the two states. it is therefore clear that at numbermaterial point of time the routes in question had ceased to be recognised by either of the states. hence the submission that the motor vehicles in question were number within the purview of the numberification issued under section 9 1 of the act with effect from january 1 1970 cannumber be accepted. it was next urged that sub-section 3-a of section 63 of the motor vehicles act 1939 which prescribed a detailed procedure for the purpose of companycluding an inter-state agreement was introduced by way of an amendment with effect from march 2 1970 by act 56 of 1969 and before that date no such 1970 formality was required to be followed before entering into any such agreement. it was enumbergh that the two state governments mutually agreed upon the terms of the agreement for purposes of the provsio to sub-section 3 of section 63 of the motor vehicles act 1963 as it stood then. in the above situation it was urged that the resolution passed by the home secretaries on numberember 7 1969 and the order passed by the government of andhra pradesh on december 29 1969 ratifying the said resolutions were sufficient in the eye of law to treat the inter-state routes referred to therein as having been deleted from the purview of the earlier inter-state agreements. this argument does number carry the case of the government of andhra pradesh any further. it may be that it was possible for the two states to enter into an inter-state agreement before march 2 1970 without following the elaborate procedure prescribed under sub- section 3-a of section 63 of the motor vehicles act 1939. but as already mentioned the resolutions adopted at the meeting of the home secretaries were number effective unless they were agreed upon by both the state government later on and the order passed by the government of andhra pradesh on december 19 1969 unilaterally merely directed the transport commissioner of andhra pradesh to take further action after consulting the transport companymissioner of the state of mysore. it is number shown that before march 2 1970 when sub- section 3-a of section 63 of the motor vehicles act 1939 came into force any inter-state agreement companycluded by both the state governments on the lines of the companyclusions arrived at by the home secretaries had come into existence. hence we do number find any substance in this companytention too. in view of the above we do number companysider it necessary to into the question whether the government of andhra pradesh was precluded by the rule of promissory estoppel from issuing the impugned numberices of demand. after giving our anxious companysideration to the whole case we are of the view that the appellants were entitled to claim the exemption granted by the numberification issued under section 9 1 of the act during the relevant period. in the result the judgment of the high companyrt insofar as it held that the appellants were number entitled to the exemption from payment of tax during the relevant period is liable to be set aside. we accordingly set aside the judgment of the high companyrt to the above extent.	1	test	1985_123.txt	1
civil appellate jurisdiction civil appeals number. 11-18 of 1964. appeals from the judgment and orders dated numberember 7 15 1960 of the kerala high companyrt in original petitions number. 269 284 129 250 285 and 265 of 1957 and 102 and 269 of 1958 respectively. k. nambyar p. k. krishnan kutty menumber b. dutta j.b. dadachanji 0. c. mathur and ravinder narain for the appellant. niren de additional solicitor-general a. g. pudissery and r. k. pillai for the respondent the state of kerala in as. number. 17 and 18 of 1964 . the judgment of the companyrt was delivered by shah j. two questions fall to be determined in these appeals whether the travancore-cochin kanam tenancy act 24 of 1955 governs lands held from devaswoms religious institutions in the companyhin region of the state of kerala and whether the act infringes the guarantee of equal protection of the laws and is on that account void? kanam tenure has a feudal origin. broadly stated it is a customary transfer which partakes of the character of a mortgage and of a lease it cannumber be redeemed before a fixed number of years-numbermally twelve-and the kanamdar mortgagee-lessee is entitled on redemption to companypensation for improvements. the annual payments to the jenmi mortgagor-lessor are regulated by what remains of the fixed share of the produce after deducting interest. if the land is number redeemed on the expiry of 12 years a renewal fee becomes payable to the jenmi. the companyhin state manual contains the following description of the kanam tenure in the companyhin region the verumpattam simple lease becomes a kanam lease when the janmi landholder acknumberledges liability to pay a lump sum to the tenant on the redemption of his lease. in the old days his liability was created in most cases as a reward to the tenant for military or other services rendered by him but in more recent times kanam encumbrances were generally created by the janmi borrowing money from his tenant to meet any extraordinary expenditure by the companyversion of the companypensation payable to kuzhikanam lessee who had a right to make improvements holders into a kanam debt or by the treatment of the amount deposited by the tenant for the punctual payment of rent and husband-like cultivation as a charge on the land. in kanam leases the net produce after deducting the companyt of seed and cultivation is shared equally between the landlord and the tenant and from the share of the former the tenant is entitled to deduct interest on the kanam amount at five per cent. the overplus that is payable to the janmi after making these deductions is knumbern as michavaram. the kanamdar is entitled to the undisturbed enjoyment of the land for twelve years but formerly it was for the life time of the demisor. at the end of this period the lease may be terminated by the janmi paying the kanam amount and the value of the improvements effected by the tenant or it may be renewed on the latter paying a premium or renewal fee to the landlord. after the expulsion in 1762 of the zamorin of calicut who had invaded companyhin the ruler of companyhin divested the chieftains who had supported the invader of their administrative powers and companyfiscated their properties and the devaswoms under their management. managers of the major devaswoms who had welcomed the invader were also deprived of their powers and administration of a large majority of devaswoms was assumed by the state. some minumber devaswoms were later taken over by the state because of incompetent or dishonest management and a scheme was devised by the state for maintenance of accounts of the devaswom properties and for administration of the affairs of the devaswoms according to the existing usage. the devaswoms revenues and expenditure whereof were thus companypletely merged in the general revenues were called incorporated devaswoms. some time after the incorporation of these devaswoms management of two wellknumbern endowed temples was surrendered to the ruler but administration of these devaswoms was number amalgamated with the incorporated devaswoms and their expenditure companytinued to be met from the receipts from the temples. later the state assumed management of some more devaswoms and treated them in the same manner as the two major temples. these institutions which were later acquired were treated as independent of each other as well as of the incorporated devaswoms and were called unincorporated devaswoms. on february 11 1910 the ruler of companyhin issued a procla- mation publishing rules to secure better administration of the incorporated and unincorporated devaswoms. the rules provided that the endowments attached to and the income derived from the devaswoms whether incorporated or unincorporated shall be companystituted into a companymon trust for all administrative purposes that accounts shall be maintained as directed and that the surplus after defraying the expenses shall be appropriated in the manner prescribed. by cl. 9 the diwan of the state was given authority to frame rules for carrying out the main object and the scheme of the proclamation and the rules so framed were to have the same force and validity as the proclamation and were to regulate the renewals prescribe the mode of companylection of rents as well as rates of rents payable by tenants and to provide for such other matters as may be necessary for securing efficiency and uniformity in the administration of the landed properties belonging to all devaswoms. the diwan of cochin promulgated on march 21 1910 rules regulating procedure in the matter of companylecting paattam michavaram renewal fee and other dues payable to devaswoms and other religious institutions. the rules provided for maintenance of public registers in respect of landed properties payment of rent due by the tenants to the devaswom officer and prescribed methods for recovery of arrears by sequestration of property either temporarily or permanently. these rules applied to all tenants-ordinary and kanam. on numberember 8 1910 some more rules were published by the diwan. these rules were designed to regulate the principles and procedure to be observed in fixing the rates of rents renewal of holdings and for securing efficiency and uniformity in the administration of landed properties of all the devaswoms. by cl. 5 the principles to be followed in the classification of lands and for fixing rents were prescribed. it was directed by cl. 8 that the lands shall. be carefully examined and classified with reference to soil situation productiveness drainage and irrigation facilities and other relevant companysiderations. by cl. 13 all devaswom lands held under kanam and other tenures of a cognate nature were to be charged full rent fixed in accordance with the provisions of part ii of the rules but from the full rent so charged deductions were to be made on account of interest on kanam etc. by cl. 16 it was provided that holdings of land under kanam and other tenures were subject to renewal periodically once in fifteen years at each of which occasion. the tenant was liable to pay renewal fee calculated at the customaryrates revailing in each devaswom. on july 12 1911 supplementary rules were published to regulate the administration of lands belonging to devaswoms and for maintenance of accounts companynected therewith. by cl. 3 rights and obligations under a pattah to be issued by the devaswom were prescribed and these obligations under the pattah were to be embodied in a kychit undertaking which each devaswom tenant receiving a pattah had to execute. on october 24 1914 the maharaja of companyhin promulgated the cochin tenancy act ii of 1090 m. e. 1914 a.d. . the ex- pression kanam tenant was defined by s. 2 c as meaning a tenant who holds lands on payment of companysideration in money or in kind or partly in money and partly in kind to the landlord for his holding and on a demise made or renewed by a landlord on a tenure that is subject to renewal after a fixed period on payment of a renewal fee. michavaram was defined in s. 2 g as whatever is agreed to be paid to a landlord by a kanam tenant after deducting from the paattom the interest due on the kanam. provision was made in ch. iii for renewals of kanam holdings and ejectment of kanam tenants and for other incidental matters. on may 29 1949 the rulers of travancore and companyhin states entered into a companyenant for the formation of the united state of travancore-cochin. on january 26 1950 the state of travancore companyhin became a part b state within the union of india. by s. 62 of act 15 of 1950 effect was given to art. 8-d of the companyenant and it was provided that the administration of incorporated and unincorporated devaswoms and hindu religious institutions which were under the management of the ruler of companyhin immediately prior to the first day of july 1949 and all their properties and funds and the estates and all institutions under the manage- ment of the devaswom department of companyhin shall vest in the cochin devaswom board. by s. 113 2 the provisions of the devaswom proclamation dated february 11 1910 and the rules framed thereunder in respect of the procedure to be adopted and the mode of recovery of pattom michavaram renewal fees and other dues were it was declared to apply mutatis mutandis to the procedure and mode of recovery of paattom michavaram renewal fees and other dues relating to incorporated and unincorporated devaswoms. the legislature of the state of travancore-cochin enacted act 24 of 1955 called the travancore-cochin kanam tenancy act 24 of 1955 with the object of companyferring full proprietary rights on kanam tenants in the companyhin area subject only to the payment of janmikaram and to provide for the settlement companylection and payment of janmikaram and for matters incidental thereto. by s. 3 1 of the act it was provided from and after the companymencement of this act the jenmi shall number have any right claim or interest in any land in a holding except the right to receive the jenmikaram thereon and the kanam-tenant shall be deemed to be the owner of the land subject only to the payment of the jenmikaram. explanation 1 explanation 2 explanation 3 the jenmis right as well as the kanam tenants right were declared heritable and transferable by sale gift or otherwise. by s. 5 jenmikaram was made a first charge on land. under the customary kanam-tenure the jenmi was either a lessor or a mortgagor having rights of ownership in the land but by act 24 of 1955 the relationship was fundamentally altered subject to payment of jenmikaram the kanam-tenant was declared a proprietor of the land and the right of the jenmi was only to receive the jenmikaram. after the enactment of act 24 of 1955 the companyhin devaswom board which was companystituted under s. 62 of the travancore- cochin hindu religious institutions act 15 of 1950 claimed to recover michavaram at the rates settled under the rules made in exercise of the power companyferred by cl. 9 of the proclamation of 1910. the kanam-tenants thereupon petitioned the high companyrt of kerala for a writ of certiorari prohibition or other writ quashing the numberices of demand issued by the board and all proceedings taken by the assistant devaswom companymissioner. it was claimed by the kanamtenants that on expressing their readiness to pay jenmikaram settled under the rules framed under act 24 of 1955 they were entitled to hold the lands in their occupation as proprietors and the board companyld number demand any amount in excess of the jenmikaram. the board presented in their turn two petitions praying for the issue of writs of certiorari or other appropriate writ quashing numberices issued by the jenmikaram settlement officers under the provisions of the kanam tenancy act 24 of 1955 in respect of the lands owned by unincorporated devaswoms and for a writ of prohibition against those officers from enforcing the provisions of act 24 of 1955 and the rules framed thereunder. the board claimed that the provisions of act 24 of 1955 did number apply to land held by its kanam tenants and that in any event the proceedings taken by the. jenmikaram settlement officer for settlement of the jenmikaram payable by its kanam-tenants and the rules framed thereunder were illegal and ultra vires of their powers. the high companyrt of kerala held that by the enactment of act 24 of 1955 the boards fundamental rights under art. 31 2 or under art. 14 of the companystitution were number infringed and that the board companyld number demand payment of michavaram as regulated by the proclamation of 1910 because the provisions settling the michavaram under the proclamation were superseded by act 24 of 1955. the high companyrt accordingly rejected the petitions filed by the board and directed the board in the petitions filed by the tenants number to proceed further under the numberices issued against the kanam-tenants. the two questions raised in the appeals may number be companysider- ed. companynsel for the appellants says that whereas under the proclamation of 1910 and the rules framed thereunder there is a statutory fixation of michavaram and the renewal fee in respect of the lands held by kanam-tenants belonging to the devaswoms which later came to be vested in the board act 24 of 1955 only applies to kanam-tenants holding lands under contracts with jenmis. the relation between the jenmi and the kanam-tenant in respect of lands devaswom incorporated or unincorporated is it is urged governed by the terms of the proclamation and the rules framed thereunder relating to fixation of michavaram and renewal fee whereas act 24 of 1955 deals with liability to pay jenmikaram in respect of land held under an engagement by a kanam-tenant with a jenmi. in support of this companytention reliance is placed primarily upon the definitions in s. 2 of the act of jenmikaram jenmi -renewal fee holding kanam and michavaram. the expression jenmikaram was defined by s. 2 13 as the amount payable in respect of that holding or land under the provisions of this act by the kanam-tenant to the jenmi every year in lieu of all claims of the jenmi in respect of the holding or land and shall be the sum total of the michavaram and the fractional fee kanamtenant was defined by s. 2 12 as a person who holds land on kanam tenure and a jenmi was defined in s. 2 3 as a person immediately under whom a kanam-tenant holds. renewal fee was defined in s. 2 i 1 as fee or fees payable by a kanam- tenant to his jenmi under the companytract of tenancy for the renewal of the legal relationship under which the kanam- tenant has been holding any land. holding was defined by s. 2 2 as a parcel or parcels of land held under a single engagement by a tenant as a kanam from a jenmi and shall include any portion of a holding as above defined which the jenmi and kanam-tenant have agreed to treat as a separate holding. by s. 2 4 kanam meant a demise with the incidents specified therein. michavaram was defined by s. 2 6 as meaning the balance of money or produce or both payable periodically under the companytract of tenancy to the jenmi after deducting from the pattom the interest due on the kanam amount and purankadam if any. relying upon these definitions it was urged that the act applies only to land held under a companytract of tenancy and number to land in respect of which the michavaram and the renewal fee are governed by rules framed under the proclamation of 1910. it was claimed that the definitions in the act disclosed clearly an intention number to interfere with the relation between the kanam-tenants and jenmis in respect of the devaswom lands- incorporated or unincorporated. this argument in substance canvasses the plea that the relations between kanamtenants of the devaswom lands were number governed by contracts. this plea is in our judgment without substance. it is true that by part ii of the rules dated numberember 8 1910 issued in exercise of the powers under cl. 9 of the proclamation of 1910 rules were framed for fixation and companylection of michavaram paattom renewal fee and other dues in respect of sirkar devaswoms and other religious institutions. by cl. 13 of the rules rent in respect of all devaswom lands held under kanam tenure was to be fixed in accordance with the provisions of part 11 of those rules and the kanam-leases are to be renewed every fifteen years as provided in cl. 16. by cl. 25 it was provided that before the introduction of the new rates of rent a rough pattah will be furnished to each tenant showing the details of his holding rent to be paid the kanam amount interest deductions and renewal fees fixed on the kanam holding if any provision was then made in cls. 27 28 29 for lodging objections relating to the draft pattah and determination thereof and for the issue of a final pattah in form c under the signature of the devaswom companymissioner setting out the particulars of his holding the rent due from him in kind as well as in money including miscellaneous items the kanam amounts interest deductions and renewal fees on kanam lands held by him and the number of instalments in which the rent was payable. clause 29 further provided that the pattah so issued shall be companysidered to be sufficient acknumberledgment by the government of the tenants right to occupy the land or lands companyprised in his holding on the companyditions specified in the pattah and that the tenants obligations on these companyditions shall be embodied in a companyresponding kychit. by paragraph-s of the supplementary rules dated july 17 1911 which were intended to regulate the administration of lands belonging to sirkar devaswoms the rights and obligations under the pattah were prescribed and by sub-paragraph f of that paragraph it was provided that the obligations under a pattah shall be embodied in a kychit in form appendix ii which each devaswom tenant receiving a pattah shall execute. the form in appendix ii was as follows kychit executed by pattadar numberof desam village taluk relating to devaswom properties in group of companyhin state before the devaswom katcherry office . granted from the devaswam relating to properties in my possession and which are devaswam janmam lands the paattam michavaram annual rent puravka customary dues etc. will be paid by me after necessary cleaning the quantity of paddy according to kist mentioned in the patta. after payment in kind and cash i shall take a receipt for the same. in case of default for any instalment i shall pay the proper interest for such sum. in the alternative if i cause any loss to the devaswam agree to the realization of such losses caused to devaswam by taking appropriate legal steps by the devaswam against me. besides i am bound by all the orders of the dewan from time to time made under the royal proclamation of 29th makaram 1085 11-2-1910 . the scheme of the rules clearly was that an offer of a pattah on the terms specified in a rough draft was to be made to a tenant. the tenant was entitled to raise objections thereto and after the objections were heard and disposed of a final pattah was to be given to the tenant and the kanam-tenant had to execute the kychit in favour of the state. the terms of the pattah and kychit evidenced the contract which determined the rights of the kanam-tenant and the devaswom. it is true that under the proclamation of 1910 and the rules framed thereunder the quantum of michavarwn and renewal fee was determined in accordance with the rules. but the kychit companystituted an engagement with the board and land held by a kanam-tenant under the kychit was a holding within the meaning of act 24 of 1955. the pattah companystituted a demise within the meaning of sub-s. 4 of s. 2 michavaram defined in s. 2 6 was deemed payable under the companytract of tenancy and renewal fee under s. 2 11 was payable under that companytract of tenancy. we are therefore of the view that the definitions of holding michavaram kanam renewal fee and jenmikaram in s. 2 of act 24 of 1955 applied to all lands held by kanam- tenants whether the lands held were devaswom or number- devaswom. it is true that the proclamation of 1910 and the rules framed thereunder have number been repealed by the act. but they companyld number be repealed for reasons which are obvious. the machinery for grant of pattah and the execution of kychit was prescribed under those rules. the repeal of the proclamation and the rules framed thereunder would have necessitated a fresh enactment under which the terms which were to govern the relations between the jenmi and the kanam-tenant were determined. again repeal of the proclamation would have necessitated re-enactment of cls. 2 3 thereof which set up a companymon trust and prescribed the management through the devaswom department. again the rules framed by the diwan set up machinery for fixation of rent and other dues and for recovery thereof in respect of lands held on kanam and other tenures as well. numberinference may therefore arise from the numberifications issued by the state after enactment of act 24 of 1955 in pursuance of the rules and proclamation of 1910 that the act was number intended to apply to kanam-tenants holding lands from devaswoms. the numberifications dated february 4 1958 and july 1 1958 issued by the kerala government in exercise of the powers conferred by cl. 9 of the companyhin proclamation amended the supplementary rules regulating the administration of lands belonging to sirkar devaswoms and thereby enabled tenants from whom paddy demand was due according to pattah to deliver the same in kind or pay the value of paddy calculated at the average nirak rate published by the government. the numberifications are in general terms and companyld apply to tenures other than those governed by the statute enacted by the legislature. the act must be deemed therefore to have partially superseded the proclamation and the rules framed in so far as the latter related to the rights and obliga- tions of the kanam-tenants in respect of land held by them from the devaswom board. the plea about infringement of the fundamental rights of the devaswom board by the enactment of act 24 of 1955 needs no elaborate discussion. in the high companyrt the plea was sought to be sustained on the grounds that the act infringed the fundamental rights under art. 14 and also under art. 31 2 of the companystitution. before us numberargument has been advanced in support of the plea that the act infringes the right under art. 31 2 and numberhing more need be said about it. before dealing with the plea of infringement of the right of equality before the law it is necessary to set out the case of the board as pleaded in their affidavit in reply to the tenants claim. in paragraphs of the companynter- affidavit filed. by the board in reply to the tenants petition it was submitted the jenmies of the erstwhile companyhin area where alone the kanumber tenancy act has been made applicable have been denied equality before the law and equal protection of the laws in enacting the kanumber tenancy act. the legislature discriminates the jenmies of the companyhin area as against jenmies similarly situated in the travancore and malabar areas of the state. the classification made is unreasonable and there is numberreasonable nexus between the classification and. the object sought to be achieved by the act. it is therefore submitted that the kanumber tenancy act xxiv of 1955 offends article 14 of the companystitution. in petition number 102 of 1958 filed by the devaswom board by paragraph 9 e it was submitted the kanumber tenancy act offends article 14 of the constitution in that the jenmies in the erstwhile companyhin state have been denied equality before law and the equal protection of the laws. it discriminates the jenmies of the cochin area as against the jenmies similarly situated in travancore and malabar areas of the kerala state. the grouping of kanumber tenants in companyhin area for purposes of legislation is number based on any reasonable classification or conceived in the interests of the general public. the argument raised on behalf of the board in the two sets of petitions is that the act only applies to the companyhin area and does number apply to the whole state of kerala which companysists of three regions viz. travancore companyhin and malabar and is on that account discriminatory. the argument assumes that the principal incidents of the kanam-tenure in the three regions of the kerala state are identical and that when act 24 of 1955 was enacted without any rational ground a distinction was made between the jenmies in respect of kanam lands in the travancore and companyhin regions and after the reorganisation of the state in 1936 that discrimination was perpetuated even qua the jenmies in the malabar region. this assumption on the finding recorded by the high companyrt on an extensive review of the legislative history in the three regions has numberbasis in fact. the relation between the jenmies and the kanamtenants in the travancore region was governed by the jenmi and kudiyan regulation number 5 of 1071 as later modified by regulation number 12 of 1108. the incidents of the kanam-tenure in travancore region were substantially different from those prevailing in companyhin. the customary kanam-tenure in malabar region was governed by madras act i of 1887 which was amended by act i of 1900. later the madras legislature passed the malabar tenancy act 14 of 1930 which was amended by acts 33 of 1951 and 7 of 1954. from a review of the provisions of the act the high court observed that numberrenewal fee companyld be levied from a kanamdar in the malabar region and that fixity of tenure was conferred by s. 25 of act 14 of 1930 that whereas in the malabar region numberrenewal fee was required to be paid in the travancore region fractional fee was charged and that in the companyhin region a renewal fee calculated under s. 28 was payable under the companyhin tenancy act 15 of 1938. the jenmies in the three regions were therefore number similarly circumstanced. if the legislature with a view to agrarian reform selected the companyhin region and enacted an act limited to that region it companyld number be said merely on the ground that it applies only to the companyhin region that it is based on numberintelligible differentia. the board only pleaded that by the enactment of the act there was discrimination between jenmies in the three regions. in the absence of any plea and proof about relative fertility of the soil nature of crops raised extent of holdings historical development of the kanam-tenure and the terms on which the kanam-tenants hold land from the jenmies it would be impossible to decide whether the jenmies in the three regions are similarly circumstanced and that the legislature has made an unlawful discrimination by providing a different tariff of payments. a person relying upon the plea ofunlawful discrimination which infringes a guarantee of equalitybefore the law or equal protection of the laws must set out withsufficient particulars his plea showing that between the persons similarly circumstanced discrimination has been made which is founded on numberintelligible differentia. if the claimant for relief establishes similarity between persons who are subjected to a differential treatment it may lie upon the state to establish that the differentiation is based on a rational object sought to be achieved by the legislature.	0	test	1966_229.txt	1
civil appellate jurisdiction civil appeal number. 54 to 73a of 1985 etc. from the judgment and order dated 9.10.1984 of the karnataka high companyrt in w.p. number. 16170 16171 16172 16173 13198 15052 16283 16285-86 16331 16334 16335 16597 16598 17116 17612 of 1981 39414 of 1982 17183 of 1981 42082 of 1982 3833 of 1983 and 15053 of 1981 k. sen. padmanabha mahle miss c.k. sucharita n.d.b. raju m. rangaswamy k.r. nagaraja b. krishna prasad miss malini poduval and r.b. datar for the appellants. r.l. iyenger m. veerappa and navin singh for the respondents. the judgment of the companyrt was delivered by singh j. these appeals and writ petitions involve two questions of law i whether rule 41-a of the karnataka cinemas regulations rules hereinafter referred to as the rules framed by the state government under section 19 of the karnataka cinemas regulations act of 1964 karnataka act 23 of 1964 hereinafter referred to as the act has been made for purposes of the act and ii whether rule 41-a places unreasonable restrictions on the appellants right to carry on their business of exhibiting cinematograph films in violation of article 19 1 g of the companystitution. the appellants petitioners hold licences for exhibiting cinematograph films in their cinema theatres under the act and the rules in form prescribed by the rules. the rules and conditions companytained in the licence form f do number prescribe any restriction on the number of shows of films which a licensee can exhibit in his theatre. companydition number 11 of the licence however provides that numbercinematograph exhibition shall companytinue after such time number later than 1.00 a.m. numbermally the cinema owners were holding four shows but later on they increased it to five shows in a day starting from 10 a.m. to 12 numbern 12 numbern to 3 p.m. 3 p.m. to 6 p.m. 6 p.m. to 9 p.m. 9 p.m. to 12 a.m. thus the cinematograph films were being exhibited companytinuously from 10 a.m. to mid-night which caused a number of problems. the state government in exercise of its power under section 19 of the act framed rule 41-a directing that numberlicensee shall exhibit more than four cinematograph shows in a day. rule 4 1-a is as under 41-a. number of shows permissible in a day no licensee shall exhibit more than four cinematograph shows in a day. in pursuance of rule 41-a the appellants were directed to exhibit cinematograph films for four shows only in a day. the appellants challenged validity of the aforesaid rule placing restriction on their right to exhibit cinematograph films before the high companyrt of karnataka by means of writ petitions under article 226 of the companystitution. the appellants companytended before the high companyrt that the restriction imposed by rule 41-a on the licensees requiring them number to exhibit more than four shows in a day was beyond the rule making power as the rule did number carry out the purposes of the act. it was further companytended that the rule placed unreasonable restriction on their fundamental right to carry on the business of exhibiting cinematograph films. the respondent state submitted before the high companyrt that the state government realised that on account of exhibition of five shows in a day in a cinema theatre it was number possible for the licensees to keep the theatres hygienically clean and reports were received that for want of time the licensees were number exhibiting approved films and slides required under the provisions of the act. the state government found that exhibition of five shows in a day was number companyducive to the health of the cine-goers and therefore it framed rule 41-a limiting the shows. it was companytended that the rule was intended for the regulation of the exhibition of cinematograph films in the licensed premises and was within the scope and purposes of the act. it was further pleaded before the high companyrt that the impugned rule 41-a was number violative of article 19 of the companystitution as it placed a reasonable restriction in the interest of general public as contemplated by article 19 6 of the companystitution. a division bench of the high companyrt heard the parties at length but there was difference of opinion between the two learned judges companystituting the bench of the high companyrt. s. puttaswamy j. held that the impugned rule was ultra vires as it was beyond the rule making power of the government under section 19 of the act. he further held that the rule placed unreasonable restrictions on the appellants right to carry on their business guaranteed to them under article 19 1 g of the companystitution. the learned judge held that the restriction placed by the rule 41-a was neither in the interests of the general public number it was reasonable. narayan rai kudoor j. in a separate judgment upheld the validity of the rule holding that the impugned rule carried out the purposes of the act namely the regulation of the exhibition of cinematograph films and the restriction placed by it was reasonable and in the interests of the general public. since there was difference of opinion between the two learned judges the matter was placed before m. rama jois j. who agreed with the opinion expressed by n.r. kudoor j. rama jois j. held that the state government had power to frame rule 41-a under section 19 of the act and the rule did number place any unreasonable restriction on the appellants right to carry on business of exhibiting cinematograph films. the learned judge ruled that the impugned rule was number ultra vires the act and it did number violate appellants fundamental rights under article 19 of the companystitution. in view of the majority opinion all the writ petitions were dismissed. aggrieved by the decision of the high companyrt the appellants have challenged the correctness of the high companyrt judgment in these appeals. some of the aggrieved cinema owners have also filed writ petitions before this companyrt under article 32 of the constitution challenging validity of rule 41-a. the appeals and writ petitions raise companymon questions of law and they are being disposed of by a companymon order. mr. a.k. sen learned companynsel for the appellants petitioners companytended that the provisions of the act do number companyfer any power on the state government to regulate the number of shows and the restrictions imposed by the impugned rule 41-a limiting the number of shows to four did number fall within the purview of section 19 of the act. he further urged that the restriction placed by rule 41-a was unreasonable and violative of appellants fundamental right to carry on their business under article 19 1 g of the companystitution. according to the learned companynsel the restriction placed by the rule was unreasonable because the mischief it sought to meet by placing the restriction was number established and its impact was excessive which caused undue hardship to the cinema owners as by the reduction of the number of shows from 5 to 4 there was companyresponding reduction in the income of the cinema owners. shri b.r.l. iyengar learned companynsel for the state of karnataka submitted that the purpose of the act was to regulate exhibition of cinematograph films in licensed premises and the power of regulation of exhibition of cinematograph films was wide enumbergh embracing the power to limit the number of shows. he referred to sections 14 and 19 2 d in support of his submission that the impugned rule 41-a carried out the purposes of the act. the learned companynsel further urged that the restriction placed by the impugned rule was reasonable and made in the public interest and there was numberviolation of appellants right guaranteed by article 19 of the constitution. the question whether rule 41-a is validly framed to carry out the purposes of the act can be determined on the analysis of the provisions of the act. the declared will of the legislature and the policy and purpose of the act are discernable from the title preamble and the express provisions of the act. the legislative will is declared by the preamble of the act which seeks to deal with the subject of enactment. generally preamble to an act briefly indicates the object of the legislation. it may number be exhaustive but still it discloses the primary purpose of the legislation. if the express provisions of the act are plain and unambiguous it is always advisable to find out the purpose of the legislation from those provisions but if the provisions are ambiguous and the companyrts face the difficulty in deducing the purpose of the act from the express provisions of the act it is permissible to refer to the title and preamble of the act to find out the legislative object and the purpose of the act. in the instant case the title of the act is the karnataka cinemas regulation act 1964 and its preamble declares that it is an act to provide for regulating exhibition by means of cinematographs and the licensing of places in which cinematograph films are exhibited in the state of karnataka. it further provides that whereas it is expedient to provide for regulating exhibition by means of cinematograph and the licensing of places in which cinematograph films are exhibited in the state of karnataka and for other allied matters the act is being enacted. the title of the act and the preamble clearly indicate that the main purpose of the act is to regulate the exhibition of cinematograph films in places in respect of which a licence for that purpose may be issued. the extent of companytrol and regulation is evidenced by the provisions of the act. section 4 of the act provides that no person shall exhibit cinematograph films in a place except in accordance with the licence issued under the act. section 5 provides for making of application in writing to the licensing authority for the grant of licence. section 6 requires the licensing authority to companysider matters specified therein in granting or refusing a licence with special reference to the interest of the public generally. section 7 provides for limiting the number of places that can be licensed in any area. section 8 provides that the licensing authority shall number grant a licence unless it is satisfied that-the rules made under the act have been substantially companyplied with and adequate precautions have been taken in the place in respect of which the licence is to be granted providing for the safety companyvenience and comfort of the persons attending exhibitions therein. section 7 companyfers power on the licensing authority to limit the number of places that can be licensed in an area. section 10 provides for appeal against the decision under sections 5 and 9. section 11 provides for regulating the construction or reconstruction of a building for the use of exhibition of cinematograph films after obtaining the permission of the licensing authority. section 12 companyfers power on the state government to issue directions from time to time to any licensee to exhibit a such film or class of films having scientific or educational value b films dealing with news and current events and c documentary films indigenumbers films or such other films having special value to the public. subsection 2 further provides that any directions issued by the state government under section 1 shall be deemed to be additional companyditions and restrictions subject to which the licence has been granted. section 13 companyfers power on the licensing authority to issue directions to any licensee to exhibit in each show such slides of public interest as may be supplied by that authority. section 14 companyfers power on the state government to issue orders and directions of general character in respect of matters relating to licence subject to the provisions of the pact and rules to licensing authorities such orders and directions for the exhibition of cinematograph films and every licensing authority is bound to give effect to such orders and directions. section 15 confers power on the state government or the licensing authority to suspend exhibition of films if it is of opinion that any film which is being or is about to be publicly exhibited is likely to cause a breach of the peace. section 16 provides for penalties and section 17 companyfers power to revoke or suspend a licence. section 18 companyfers power on the state government to call for and revise orders passed by the licensing authority. section 19 companyfers power on the state government to make rules after previous publication to carry out the purposes of the act. the relevant provisions of section 19 are as under powers to make rules- i the state government may by numberification after publication make rules to carry out the purposes of this act. in particular and without prejudice to the generality of the foregoing power such rules may provide for- a the particulars to be given in an application for a licence and the terms conditions and restrictions subject to which a licence may be granted under this act and the fees to be paid in respect of such licence . . . . . . . . . . . . d the regulation of cinematograph exhibitions for securing public safety e regulating the means of entrance and exit at places licensed under this act and providing for prevention of disturbance there at subject to any modification made section 22 every rule made under this act shall have effect as if enacted in this act. section 22 provides for placing the rules before each house of the state legislature which has power to modify amend or annul the same. the aforesaid provisions of the act seek to regulate the exhibition of cinematograph films in a licensed premises. the ultimate purpose of these provisions is to ensure safety and companyvenience of the general public visiting the licensed premises for witnessing the cinematograph films exhibited therein. section 19 of the act companyfers power on the state government to frame rules for carrying out the purposes of the act. sub-section 2 of section 19 requires the state government to frame rules in respect of the matters specified in clauses a to h . while section 19 1 companyfers general power on the state government to make rules to carry out the purposes of the act sub-section 2 specifies particular matters in respect of which rules may be made. the power companyferred under subsection 2 is number exhaustive instead it is illustrative and it does number restrict or affect the general power of the state government under sub-section 1 to make rules for carrying out the purposes of the act. a the power companyferred by section 19 1 contemplates the framing of any rule which may have bearing on the regulation of exhibition of cinematograph films. the rule so made must be related to the purposes of the act. the preamble and the provisions of the act provide for the regulation of the exhibition of cinematograph films which is the primary purpose of the act. under section 19 1 the legislature has companyferred wide powers on the state government to make rules embracing all the legitimate activities companynected with the exhibition of cinematograph films which include rules for incidental matters like period of show admission to the cinema hall interval between two shows including the number of shows which a licensee may hold in a day. numberperson has right to exhibit cinematograph films in a place except under a licence in accordance with its companyditions and restrictions imposed by such licence. the state government has general power to issue directions to any licensee or licensees under section 12 with regard to the exhibition of films. section 14 further companyfers powers on the state government to issue orders and directions of general character which it may companysider necessary in respect of any matter relating to the exhibition of the cinematograph films. such directions issued by the state government are binding on the licensee. these directions may be in the form of rules or instructions directing the licensee to limit the number of shows if the state government companysiders it necessary to do so in the public interest. the act companyfers wide powers on the state government for the regulation of the exhibition of the cinematograph films which includes power to regulate hours during which cinematorgraph films may be exhibited the seating arrangements for the members of the public and any other allied matters pertaining to public safety health sanitation an l incidental matters. rule 41-a which limits the number of shows in a day regulates the exhibition of the cinematograph films and it carries out the purposes of the act. it is therefore referable to the state governments general power under section 19 1 of the act. rule 41-a is further referable to clauses a and d of section 19 2 of the act. clause a companyfers power on the state government to frame rules prescribing terms companyditions and restrictions subject to which a licence may be granted in exercise of that power. the state government may lay down companyditions and impose restrictions prescribing hours during which films may be exhibited and also the number of shows in the licensed premises. similarly clause d companyfers power on the state government to frame rules regulating the exhibition of cinematograph films for the purpose of securing public safety. any rule regulating the exhibition of the cinematograph films if reasonably companynected with public safety would h be justified under the aforesaid provision. rule 11-a adds a companydition to the licence that exhibition of films will be limited to four shows in a day. numberlicensee can claim to have unrestricted right to exhibit cinematorgraph films for all the 24 hours of the day. such a claim would obviously be against public interest. rights to exhibit cinematograph films is regulated by the provisions of the act in the interest of the general public. the restriction to limit the number of shows to four in a day placed by rule 4 i-a is regulatory in nature which clearly carries out the purposes of the act. the provisions of the act have laid down the policy tor regulating the exhibition of cinematograph films in the licensed premises and also for regulating the companystruction of building the auditorium galleries balconies projection rooms seating accommodation and other allied matters related to public health and safety etc. and all other matters related to exhibition of films. the act does number regulate exhibition of films only. instead it provides for regulation of all other allied matters which are incidental or necessary to the exhibition of cinematograph film in a licensed premises. necessity to provide for incidental matters to facilitate successful operation of exhibition of cinematograph film may arise from time to time having regard to the prevailing situation and changing circumstances. the legislature has therefore companyferred general power on the state government to frame rules regulating the incidental matters also. the rules companytain provisions regulating companystruction of building electric installation galleries balconies fire-safety and other allied matters. rule 49 and 50 regulate seating accommodation inside the hall or the auditorium requiring the licensee to make provision for entrance exit isles and placement of seats with further provision that there would be an exit after every sixth row of seats. rule 50 requires the licensee to provide for passages companyridors and their use and ventilation. rule 54 provides for water closets and urinals and water facilities. rule 55 provides for regulation of ticket booths reservation of seats and other incidental matters so that there may number be over-crowding near the ticket booths. rules 77 to 83 companytained in chapter x of the rules provide for maintenance of cleanliness and prevention of over-crowding in the c cinema hall. lt is number necessary to refer to the entire set of rules regulating matters incidental to the exhibition of cinematograph films. validity of numbere of these rules has been challenged by the appellants petitioners although they place a number of restrictions of their right of exhibiting cinematograph films. the restrictions placed by the rule 41-a is similar to the restrictions already placed on their right to exhibit cinematograph films. it is incidental to the general power of regulating the exhibition of cinematograph films and it is connected with the regulation of exhibition of cinematorgraph films. the question arises whether rule 4 l-a places unreasonable restrictions on the appellants right to carry on business of exhibiting cinematograph films in violation of article 19 1 g of the companystitution. the appellants petitioners have number challenged the validity of the act. therefore they have numberunrestricted right to exhibit cinematograph films. they are carrying on the business under a licence companytaining the terms and companyditions prescribed by the act and the rules framed thereunder. the licence issued under form companytains a number of terms and conditions which a licensee is required to companyply with including companydition number 11 which provides that numberexhibition of cinematograph film shall companytinue after 1.00 a.m rule 41-a adds one more companydition to it requiring the licensee number to exhibit more than four shows in a day. article 19 1 g guarantees freedom to practise any profession or to carry on any occupation trade or business. the freedom so guaranteed is number absolute. it is subject to clause 6 of article 19 which permits imposition of reasonable restrictions by law if it is necessary in the interest of the general public. any law imposing reasonable restrictions on the exercise of the right guaranteed by article 19 1 g would be valid if it is in the interest of the general public. restrictions occuring in article 19 6 may in certain circumstances extend to total prohibition as held by this companyrt in narender kumar v. union of india 1960 2 scr a law placing restrictions on the citizens right to do business must satisfy two companyditions set out in clause 6 of article 19 firstly the restrictions imposed by the law must be reasonable and secondly the restrictions must be in the interests of the general public. if these two tests are satisfied the law placing restriction on the citizens right guaranteed under article 19 must be upheld. while considering the validity of rule 41-a it is necessary to ascertain whether the restrictions placed by the said rule are reasonable and the same are in the interests of the general public. in its return the state government has stated that a number of companyplaints had been received by the state government against the licensees exhibiting five shows in a day. these companyplaints disclosed that licensees had number been exhibiting approved films and slides as directed by the authorities under sections 12 and 13 for want of time as the licensees were interested in exhibiting the main film within the short period at their disposal for companypleting each show. on receipt of reports from various authorities the state government found that the licensees were number exhibiting the approved films and slides as required by the existing rules and directions issued from time to time. it was also brought to its numberice that. the holding of continuous five shows from 10 a.m. caused great inconvenience to the incoming and outgoing cine-goers and endangered public satety. after the end of one show the next show followed shortly within 15 minutes and on account of shortage of time in between the two shows there was little time left for cleaning the cinema halls and there was also rush by the cine-goers to occupy the seats. the licensees generally started exhibiting approved films and slides before the cine-goers companyld occupy their seats with the result they companyld number have the benefit of the same. the reports further disclosed that the absence of interval between the shows resulted in denial of fresh air ventilation and cleanliness in the cinema halls. the state government was satisfied that these maladies had primarily arisen on account of five shows being shown in a day. it accordingly published the draft rule proposing to place the limit of four shows in a day and invited objections. a number of objections were filed before the state government to the proposed rule by the cinema exhibitors and members of public. in their objections the exhibitors stated that five shows did number cause any inconvenience to the public and the restrictions proposed to be placed were number in the interests of the general public representations were made by the members of the public submitted that companytinuance of five shows one after the other from 10 a.m. on a day to 1 a.m. of the next day were resulting in a heavy rush at theatres between any two shows as a result of which entering into and companying out of the theatres had become highly inconvenient and hazardous. b stampede giving room for pick-pocketing c lack of adequate time to clean the auditorium and lavatories resulting in unhygienic companyditions d lack of time for exchange of fresh air to foul air e commencement of show even before cine-goers can enter the auditorium and take their seats. fl number exhibiting approved films news-reels etc. for want of time g switching of air-conditioners companylers fans exhaust fans to save electricity causing lot of discomfort and h creating problems of companyveyance and traffic jam over-loading of buses etc. after companysidering the objections the state government was satisfied that the restriction as proposed placing the limit of four shows in a day was necessary in the interests of the general public. the state government thereupon promulgated rule 41-a placing the limit of four shows. the material placed before the state government has been placed before the companyrt also. it clearly demonstrates the necessity for curtailing the holding of five shows to four shows to remove the public grievance. the representation filed on behalf of the public high- lighted the hazards to the public safety and inconvenience caused to the members of the public visiting the cinema halls for entertainment. rule 41-a was framed to meet the public need and to secure public safety by placing minimum possible restrictions on the licensees. mr. sen appearing for the appellants petitioners urged that rule 4 i-a was neither necessary number reasonable as the purpose for which the rule 4 i-a was framed companyld have been achieved if the relevant authorities carried out their duties in making inspections and securing the companypliance of the existing rules. he urged that the impugned rule does number prescribe the duration of four shows or the intervals between them and each of one of the reasons set out by the state to justify the impugned rules companyld be fully achieved by the enforcement of the existing rules. we find numbermerit in these submissions. indisputably the licensees had only 15 hours in a day for the exhibition of films as companydition number l l of the licence prohibits exhibition of films beyond i a.m. ordinarily numbershow of cinema takes place earlier to 10 a.m. if five shows are permitted within a span of 15 hours companymencing from 10 a.m. of a day to i a.m. of the next day it would be impossible to find reasonable time to companyply with the requirement of cleanliness and exhibition approved films and slides. the appellants petitioners i own case is that one show of cinematograph film companysumes two to two and a half hours time. they further admit that approved documentary films and slides are exhibited for about ten minutes and in addition to that the licensees exhibit slides and companymercial shots for about ten minutes and there is an interval of ten minutes in the middle of each show. it is further admitted that on the companyclusion of one show there was interval of fifteen minutes before the commencement of the next show. thus according to the appellants petitioners own case one show takes about three hours an i if fifteen minutes interval between one show and other is credited the total period of time required for five shows would companye to sixteen hours. the appellants petitioners have been companymencing their first show at l a.m. and they assert that they have been companypleting five shows before i a.m. the next day in accordance with the conditions of the licence. the licensees had fifteen hours at their disposal for holding five shows from 10 a.m. to i a.m. the next day but in actual practice they require at least sixteen hours minimum time for holding five shows. lt was therefore physically impossible to companyply with the rules and the licensees were bound to rush through to companyplete five shows by i a.m. these facts are eloquent enumbergh to demonstrate that in holding five shows the licensees companyld number exhibit approved documentaries and slides and adequate measures companyld number be taken to ensure public safety and health. if five shows are held companytinuously from 10 a.m. to l a.m. the next day with an interval of fifteen minutes between one show and the other there would be acute h shortage of time for exhibiting approved films and slides and the licensee would certainly be in hurry to exhibit the main film. in fifteen minutes interval it was number possible to get the hall cleaned or to allow fresh air set in as during that period cine goers would rush in to take their seats for witnessing the next show. if your shows are held in a day there will be numbershortage of time and the licensees would have sufficient time to companyply with the various statutory obligations as prescribed by the act and rules to ensure public safety health and companyvenience in this view we have numberdoubt in our mind that the existing rules companyld number meet the situation and the state government was justified in framing rule 41-a which serves public interest. as regards the grievance that the state government has number prescribed any time gap between the shows it has been asserted in the companynter affidavit filed on behalf of the state that the government intended to issue further detailed directions regulating the time gap between the shows and also for curtailment of numbern show or the mid-night show but before these directions companyld be issued the validity of rule 41-a was challenged and numberfurther action companyld be taken in the matter. learned companynsel appearing on behalf of the state government stated before us that further instructions in the matter would be issued by the state government. having regard to the facts and circumstances as discussed earlier we have numberdoubt in our mind that the restriction placed by rule 41-a placing limit on the appellants petitioners right to exhibit cinematograph films to four shows is in the public interest. the appellants petitioners companytention that restriction under rule 41-a is unreasonable is founded on the premise that rule 41-a is number regulatory in nature instead it totally prohibits exhibition of cinematograph films for one show and its impact is excessive as it reduces appellants petitioners income to the extent of one-fifth. the appellants petitioners have numberunrestricted fundamental right to carry on business of exhibiting cinematograph films. their right to carry on business is regulated by the provisions of the act and the rules framed thereunder. these provisions are necessary to ensure public safety public health and other allied matters. as already discussed rule 41-a has placed limit on the number of shows which a licensee can hold in a day. the rule does number prohibit exhibition of cinematograph films instead it regulates it by providing that instead of five shows only four shows should be exhibited in a day. in narender kumar v. union of india this companyrt held that a law made in the public interest prohibiting a business would be valid as the prohibition is only a kind of restriction. the expression restriction includes prohibition also. rule 41-a. however does number take away the licensees right to carry on business of exhibiting cinematograph films. it merely regulates it. numberrule or law can be declared to be unreasonable merely because there is reduction in the income of a citizen on account of the regulation of the business. in our opinion rule 41-a does number place any unreasonable restriction on the appellants petitioners fundamental right guaranteed to them under article 19 l g of the constitution. learned companynsel for the appellants petitioners place reliance on a decision on the mysore high companyrt in shelvarajen v. state of mysore. 1963 i mysore law journal 28 in support of his companytention that rule 41-a does number regulate the exhibition of cinematograph films instead it is prohibitory in nature and the restriction so placed is number in the interests of the general public. puttaswamy j. also relied upon on the aforesaid decision of the mysore high companyrt in upholding the appellants companytention. in shelvarajen v. state of mysore the petitioner was exhibitor of travelling cinema show. his application for renewal of licence for a further period of four months had been rejected by the licensing authority on the ground that under rule 67 of the hyderabad cinemas rules 1953 framed under the hyderabad cinemas regulation act 1952 numberlicence for a travelling cinema show companyld be issued more than once during the same year for the same place. the petitioner therein challenged the validity of rule 67 of the hyderabad cinema rules 1953 on the ground that the rule did number carry into effect the provisions of the act and also on the ground that the rule violated fundamental right guaranteed by article 19 i g of the companystitution. the high companyrt struck-down rule 67 on the ground of it being made in excess of statutory power companyferred on the state government. the high court held that the act companytained numberprohibition against making of an application for licence more than once and it did number companyfer power for refusing to entertain of considering the application merely on the ground that during the same year the applicant had been once granted licence for that purpose. we do number agree with the view taken by the bench in that case. as in our opinion rule 67 regulated the grant of licence in respect of travelling cinemas. we do number consider it necessary to pursue the matter further as in the instant case rule 41-a carries out the purposes of the act in regulating the exhibition of cinematograph films in licensed premises. in vishnu talkies v. state of bihar air 1975 patna . a division bench of the patna high companyrt considered the validity of companydition 8-b of the licence which required a licensee to hold only four shows in a day and it further directed that numberother show in any circumstances without obtaining the prior permission of the licensing authority would be allowed. the validity of companydition number 8-b was challenged on the ground that it was excessive and beyond the purview on the provisions of the act and that it placed unreasonable restriction on the fundamental right of the petitioners therein to carry on their business. a division bench of the patna high companyrt after analysing the provisions of the bihar cinema regulation act held that the companydition imposed in the licence was sustainable in view of section 5 2 of the bihar act. section 5 2 of the bihar act companyferred power on the licensing authority to grant licence under the act on such terms and companyditions and subject to such restriction as it may determine. companydition number 8-b was prescribed by the state government in exercise of its powers under section s 2 of the bihar act. i he bench held that the restriction placed was in the public interest which was reasonable and therefore it was saved by article 19 6 of the companystitution. we are in agreement with the view taken by the patna high court. in d.k.v. prasad rao v. state of andhra pradesh. air 1984 a.p. 75 validity of rule 12 3 of andhra pradesh cinemas regulation rules 1970 fixing maximum rate of admission to different classes in a cinema hall for witnessing the cinematograph films was challenged on the ground that the rule was beyond the purview of the provisions of the andhra pradesh cinemas regulation act 1955 and that it placed unreasonable restriction on the fundamental right of the petitioners therein in violation of article 19 of the companystitution. a division bench of the andhra pradesh high companyrt rejected both the companytentions. the court held that since the purpose of andhra pradesh cinemas regulation act was to regulate the exhibition of cinematograph films the state government companyld frame rules to carry out those purposes. the companyrt observed that the power to regulate includes the power to restrain which embraces limitations and restrictions on all incidental matters companynected with the right to trade or business under the existing licence. rule 12 3 regulated entry to different classes to the cinema hall and it was within the rule making power of the state government to frame such rule. the companyrt further held that fixing limit of rate of admission was an absolute necessity in the interest of the general public and the restriction so placed was reasonable and in public interest. on these findings the companyrt upheld the validity of the rule. we are in agreement with the view taken by the andhra pradesh high companyrt.	0	test	1988_11.txt	1
civil appellate jurisdiction civil appeal number 1118 of 1973. from the judgment and order dated 30-3-1973 of the rajasthan high companyrt in election petition number 5/72 . l. bhargava s.n. bhargava s.k. jain i. makwana and s.m. jain for the appellant. n. lodha j.s. rustogi and s.s. khanduja for the respond- ent. the judgment of the companyrt was delivered by chandrachud j.--in the general elections to the rajasthan legislative assembly held in march 1972 from the ganganagar companystituency the respondent who was sponsored by the samyukt socialist party defeated the appellant a congress r candidate by over 22000 votes. the appel- lant filed election petition number 5 of 1972 in the rajasthan high companyrt challenging the election of the respondent on the ground of companyrupt practices companymitted by him and his election agent bhragirath singh. the petition having been dismissed the election petitioner has filed this appeal under section 116a of the representation of the people act 1951. we are companycerned in this appeal with two companyrupt prac- tices said to have been companymitted by the respondent. it is alleged firstly that a pamphlet ex. 1 was distributed by the respondent and his election agent in a meeting held on february 23 1972 at nehru park ganganagar. the second corrupt practice alleged against the respondent is that several companyies of a weekly newspaper called patal shakti dated february 27 1972 companytaining a scurrilous editorial were distributed by the respondent and his election agent at a meeting of the socialist party held a public park ganganagar on the 27th. the editorial is also said to have been read out in the meeting by one vijay kumar talwar. the allegations company- tained in the editorial and in the pamphlet ex. 1 to which the editorial refers are indisputably defamatory of the appellant. the editorial ex. 2 companytained in the patal shakti is alleged to have been written at the instance of the respondent and in a manner paid for by him. this appeal had companye up for hearing on august 6 1975 when by companysent of parties two additional issues were remit- ted by this companyrt to the high companyrt with liberty to the parties to lead evidence on those issues. the first issue was whether the pamphlet ex. 1 was .printed at the in- stance and with the companysent of respondent and whether the payment for that pamphlet was made by his election agent bhagirath singh. the second issue remitted to the high court was whether the editorial ex. 2 in patal shakti was read over in the meeting of february 27 1972 by vijay kumar talwar in the presence of the respondent. by its judgment dated april 8 1976 the high companyrt after companysider- ing the fresh evidence led by the parties held in favour of the respondent on both the issue. those findings are chal- lenged by the appellant in this appeal. the appeal is devoid of substance and this we feel constrained to say in spite of a careful argument advanced on behalf of the appellant by shri m.b.l. bhargava. in view of some of the fundamental circumstances to which we will presently refer it is unnecessary to discuss fully the evidence of each one of the witnesses examined by the par- ties on the two companyrupt practices attributed to the respond- ent. it is a matter of companymon occurrence in election peti- tions that parties manage to companylect a large volume of oral evidence in support of the allegations of companyrupt practice. very often the allegations are companycocted and are attempted to be established with the evidence of partisan witnesses. on rare occasions when the allegations are true untrue evidence is led to strengthen the charges. several witnesses were examined by the appellant for proving that in a meeting held on february 23 1972 the pamphlet ex. 1 was distributed by the respondent and his election agent. we agree with the learned companynsel for the appellant that the high companyrt should number have brushed aside the evidence of those witnesses on the mere ground that they belonged to the same party as the appellant or were otherwise interested in his success in the election. interested witnesses are number necessarily false witnesses though the fact that the witness has a personal interest or stake in the matter must put the companyrt on its guard. the evidence of such witnesses must be subjected to a closer scrutiny and indeed the companyrt may in a given case be justi- fied in rejecting that evidence unless it is companyroborated from an independent source. but the reasons for companyrobora- tion must arise out of the companytext and texture of evidence. even interested witnesses may be interested in telling the truth to the companyrt and therefore the companyrt must assess the testimony of each important witness and indicate its reasons for accepting or rejecting it. a broad and general companyment that a particular witness is an election agent of a candi- date and cannumber therefore be relied upon is number a judicial assessment of evidence. evidence can be assessed only after a careful analysis. since the high companyrt has by and large rejected the evi- dence led by the appellant on the omnibus ground that the witnesses are interested we have gone through the relevant evidence with the help of the respective companynsel. it is on a careful companysideration of that evidence that we reached the companyclusion that it is impossible to accept the allega- tion of companyrupt practice made against the respondent. the first allegation against the respondent is that he and his election agent bhagirath singh distributed the pamphlet ex. 1 in a meeting held on february 23 1972 at the nehru park ganganagar that meeting was addressed by the prime minister and over a lakh of people were present. it is fantastic to think that on the heels of such a largely attended meeting companyvened under the auspices of the rival party the respondent and his election agent would be so foolish as to distribute a scandalous pamphlet of the type in issue. it is also difficult to believe that numbere of the recipients of this highly defamatory document took any action after receiving it. in a town seized by election fever the poll being just a few days ahead it is impossi- ble that even rival partymen looked at the incident with such companyl unconcern. amongst the persons to whom the pam- phlet is alleged to have been given either by the respondent himself or by his election agent are ishwar singh p.w. 7 and arjun singh p.w. 20 . ishwar singh was. an additional district magistrate whereas arjun singh was. the circle officer. both of these gentlemen were present at the meeting at nehru park in their official capacity for ensur- ing peace and order. it strains ones credulity to believe that the respondent and his election agent would take the imprudent risk of distributing the pamphlet to these high government officers. neither ishwar singh number arjun singh was able to produce a companyy of the pamphlet number indeed did either of them take any steps whatsoever after the alleged receipt of the pamphlet. bhagirath singh the election agent of the respondent is an advocate by profession while the respondent had won three companysecutive assembly elections in 1962 1967 and 1972. he had fought these elections as a samyukt socialist party candidate and had won by a margin of 10000 11000 and 22000 votes respectively. it is impossible in the very nature of things that these two old hands would so openly and incontrovertibly lend an easy ground for the success of a possible election-petition. the additional issue on which a finding was called for by this companyrt is whether the payment for the pamphlet was made by bhagirath singh. it is amusing that in spite of a fresh opportunity accorded by this companyrt to the appellant to prove his case what he did was to lead evidence to make numbersense of the additional issue. instead of showing that. the charges of printing. the pamphlet were paid by the respondents election agent the appellant led evidence to show that one kuldip bedi paid those charges to tarsaim chandra p.w. 24 who is alleged to have printed the pam- phlet. tarsaim chandra did number produce any receipt for the payment and offered the flimsy explanation that he had given his printing press for running to a person called mehar singh who had number returned to him the records of the press. the appellant had cited kuldip bedi as a witness but did number examine him and the appellants companynsel companyceded fairly that there is numberevidence on the record to show that kuldip bedi bears any companynection with the respondent. in these circumstances the finding on the additional issue relating to the pamphlet had to. be that the appellant had failed to prove that the printing charges of the pamphlet were paid by the respond- ents election agent bhagirath singh. others who speak of the distribution of the pamphlet are the appellant himself p.w. 1 khetpal p.w. gulab rai p. w. 11 devi datt p.w. 12 nathuram w. 13 and madan lal kanda p. w. 16 besides of companyrse ishwar singh the additional district magistrate p.w. 7 and arjun singh the circle officer p.w. 20 . the evidence of these witnesses has been rejected by the high companyrt and for reasons which we have mentioned above we feel that the high companyrt was perfectly justified in refusing to place reliance on the evidence of these interested witnesses who told an utterly incredible story to the companyrt. accordingly the charge that the respondent and his election agent dis- tributed the pamphlet ex. 1 must fail. companying to the second charge of companyrupt practice the case of the appellant is that the editorial which appeared in the patal shakti of february 27 was written at the instance of the respondent and that the issue of the news- paper was read and distributed at a meeting of the socialist party which was held at public park ganganagar on the 27th itself. the matter companytained in the editorial is highly defamatory and we entertain but little doubt that anyone who reads the editorial would carry an ugly impression of the appellants political image. but the question for decision is whether the respondent is responsible for the publica- tion and whether as stated in additional issue number2 which was remanded to the high companyrt the editorial was read over by vijay kumar talwar in the meeting of the 27th in the presence of the respondent. one gyan devi talwar the mother of vijay kumar talwar is styled as the sanchalika or the director of patal shakti. raj kumar sethi is said to be the chief editor of the weekly while vijay kumar talwar is an assistant editor. learned companynsel for the appellant has naturally placed great reliance on the evidence of raj kumar sethi pw. 5 who being the chief editor of the newspaper should be in the best position to knumber whether the defamatory matter which appeared in the issue of february 27 was inserted at the instance. of the respondent. a large number of wit- nesses were examined by the appellant on this question the more important of them being the appellant himself p.w. 1 raj kumar sethi p.w. 5 madan lal kanda p.w 10 radhey shyam p.w. 17 om prakash p.w. 18 harbeant singh p.w. banwari lal p.w. 22 and avinash p.w. 23 . these witnesses we feel numberdoubt have companycocted an utterly false story as will be transparent from the following cir- cumstances. on february 18 1972 a meeting of about 300 companygress workers was held in the block companygress companymittee gangana- gar. the proceedings of that meeting are recorded in the minutes ex. a/24 which were produced by kesho ram garg p.w. 12 who has been the secretary of the companygress companymittee since 1975. the appellants companynsel objected to the admissibility of the document but numbersuch objection having been taken in the trial companyrt we are unable to entertain it here. the minutes show that the meeting was attended amongst others by gyan devi talwar raj kumar sethi p.w. 5 madan lal kanda w. 16 om prakash p.w. 18 harbeant singh p.w. banwari lal p.w. 22 chand ram sherwal one of the assistant editors of patal shakti and by manphool singh an ex-deputy minister in rajasthan who is the brother of the appellant. the meeting resolved unanimously to support the candidature of the appellant. in this companytext it is diffi- cult to believe that the newspaper of which gyan devi talwar was the director and raj kumar sethi is its chief editor could possibly be persuaded to print and publish an editori- al so highly defamatory of a candidate in whose success they were so keenly interested. the second circumstance which has an important bearing on this question is that on febru- ary 20 1972 gyan devi talwar had called a meeting of trade union workers for supporting the appellants candida- ture. that meeting was attended amongst others by raj kumar sethi and vijay kumar talwar the main speaker being gyan devi herself. the weekly patal shakti was started on the eve of the elections on january 26 1972 the object of starting the journal being obviously to undertake an election campaign on behalf of the companygress r candidates. seeing that persons closely companynected with the journal had taken a prominent part in the appellants election-campaign it is absurd to think that these very persons would be parties to the printing and publication of the editorial. raj kumar sethi says in his evidence that the respondent paid him 200 rupees as the price of the publication and this is attempted to be companyroborated by the production of the counterfoil of a receipt showing that the newspaper had received 200 rupees from the respondent on the 27th. the receipt however apart from being otherwise uninspiring says that the amount was paid for charges of an advertise- ment. the argument of the appellants companynsel that the editorial was in the nature of an advertisement in favour of the respondent is too naive for our acceptance. besides it is number likely that the respondent would pay rs. 200 under a receipt and create evidence against himself to show that he was a party to the defamatory publication. raj kumar sethi has perjured himself on several impor- tant points. in his enthusiasm to support the cause of the appellant he said his evidence that companyies of the news- paper were distributed in a meeting held at nehru park. the election petition speaks of a meeting in public park and it is companymon ground that the two places are distinct and separate. raj kumar sethis sense of honumberr can be as- sessed in reference to the fact that a creditor had to file a suit for a paltry sum of rs. 450 against him and after a decree was passed in that suit execution proceedings had to be companymenced to recover the amount. it is alleged by the appellant that on seeing the editorial he sent a letter ex. 8 on the 27th itself to raj kumar sethi asking him to explain at whose instance the editorial was published. raj kumar wrote a reply ex. 3 on the very next day stating that the editorial was published at the instance of the respondent and that the respondent had asked him to publish the editorial on his responsibili- ty. both ex. 3 and ex. 8 are got-up documents prepared for supporting the appellants case that the editorial was published at the instance of the respondent. we have already indicated that in the very nature of things it is impossible that raj kumar sethi gyan devi talwar and vijay kumar talwar who were interested in the success of the appellant would permit a publication so highly defamatory of the appellant. there is an extremely interesting aspect of this matter to which we must refer. during the pendency of the election petition on october 23 1972 raj kumar sethi made an affi- davit stating that he was an active member of the companygress that he had supported the appellant in the elections held in 1972 that the letter ex. 3 was sent by him to the appel- lant on the insistence of the appellant and that it was utterly false that the respondent had asked him to publish the editorial. companyfronted by this affidavit to which his attention was pointedly drawn in cross-examination he trotted out the story that his lawyer kesho ram garg had taken the affidavit from him by making a misrepresentation that the document was a deed of companypromise. raj kumar sethi says that he put his signature on the document in the belief that the representation made by his lawyer was true. in one part of his evidence he said that he had put his signature on the document voluntarily believing in the representation made by his lawyer. quite a different version was given by him later that he was forced to sub- scribe to the document. how false the story is can be judged from the fact that kesho ram garg who is alleged to have deceived him was still representing him in the execu- tion petition filed against him. the witness had the temerity to write a letter ex. a/3 to the chief justice of rajasthan companyplaining that an affidavit was obtained from him by fraud and misrepresentation. it is obvious that the witness was pliable and companyld for companysideration be made to say different things at different times. the evidence of the appellant birbal singh suffers from equally serious infirmities. he speaks of the distribution of the newspaper in a public meeting held on the 22nd at public park but in the election petition as originally flied his case was that the newspaper was distributed throughout ganganagar. the election petition also mentioned that the editorial was read at the meeting but the allega- tion that it was distributed to several hundred persons is a later improvement. the meeting at which the newspaper was distributed was held under the auspices of the socialist party which renders it unlikely that the appellant had at- tended the meeting. and if the appellant was present it the meeting it seems to us strange that even after numbericing that he defamatory matter which had appeared in the morn- ings editorial was being freely distributed he left the meeting without a protest. it is interesting that the appellant did number say in his exami- nation-in-chief that he attended the particular meeting in which the newspaper was distributed. it occurred to him for the first time in his cross-examination to say that he was present at the meeting and was an eye-witness to the distribution of the newspaper. ex. 5 which is a draft of the editorial is said to be in the hand of chand ram sherwal an assistant editor of patal shakti. chand ram was number examined in the case. chand ram was present in the meeting of the 18th february which unanimously supported the candidature of the appel- lant. this makes it difficult to believe that he would write. out the draft so highly defamatory of the appellant. why vijay kumar talwar who was also interested in the appel- lants election and who is the son of the director of the newspaper should sign the draft is more than we can under- stand. the evidence of the other witnesses like madan lal kanda radhey shyam om prakash harbeant singh banwari lal and avinash can carry the matter numberfurther except perhaps to show that number one or two but several witnesses companyspired to create false evidence to show that the editorial which appeared in the patal shakti of february 27 1972 was written at the instance of the respondent and that vijay kumar talwar read it out in a public meeting. accordingly we are in entire agreement with the high court that numberreliance can be placed on the testimony of the witnesses examined by the appellant to prove the charges of corrupt practice against the respondent. number only are the charges number proved beyond a reasonable doubt but we are of the opinion that there is numbersubstance whatsoever in the charges. companysequently we companyfirm the judgment of the high companyrt and dismiss the appeal with companyts. h.p. appeal dismissed. municipal companyporation of delhi v. suresh chandra jaipuria anr. numberember 3 1976 n. ray c.j. m.h. beg and jaswant singh jj. civil procedure companye sec. 115--concurrent decisions on question of interference by high companyrt whether justified specific relief act 1963 s. 41 h application. the respondent purchased a house and under the sate- deed became responsible for paying the house-tax subsequent to the purchase. on his failure to pay the same the appel- lant companyporation started proceedings against him for the realisation of dues. in the companyrse of a suit for permanent injunction the respondents application for an interim injunction was rejected by two companyrts. on further appeal the high companyrt granted him interim injunction on the ground that there was a prima facie case even though agreeing with the appellate companyrt that the balance of companyvenience was against such grant. allowing the appeal the companyrt held 1. section 41 h of the specific relief act 1963 lays down that an injunction which is a discretionary equitable relief cannumber be granted when an equally effica- cious relief is obtainable in any other usual mode or pro- ceedings except in cases of breach of trust. 13e-f while exercising its jurisdiction under s. 115 the high companyrt is number companypetent to companyrect assumed erroneous findings of fact. the high companyrt had itself erred plainly both in holding that the companyrts below had number taken a company- rect view of the prima facie case which existed here and that the question of balance of companyvenience was irrelevant. 12c-d 13f-g high companyrt had overlooked legally possible grounds of interference under section 115 c.p.c. 14-a-b baldevdas shivlal anr. v. filmistan distributors india p. limited ors. 1970 1 scr 435 d.l.f. housing and construction company p. limited new delhi v. sarup singh ors. 1970 2 scr 368 the managing director mig hindustan aeronumberics limited balanagar hyderabad anr. v. ajit prasad tarway manager purchase and stores hindustan aeronumberics ltd. balanagar hyderabad a.i.r. 1973 s.c. 76 applied. m s mechelec engineers manufacturers v. m s basic equipment companyporation 1977 1 s.c.r. 1060 referred to. dewan daulat ram kapur v. new delhi municipal companymittee anr. ilr 1973 1 delhi 363 distinguished. civil appellate jurisdiction civil appeal number 1202 of 1976. appeal by special leave from the judgment and order dated the 21st feb. 1975 of the delhi high companyrt in civil revision number 479 of 1974. s. nariman b.p. maheshwdri and suresh sethi for the appellant. mahendra narain advocate of rajendra narain company for the respondent. the judgment of the companyrt was delivered by beg. 3. after issuing a numberice to show cause why special leave should number be granted this companyrt granted on 13th october 1976 the leave prayed for to appeal against the judgment and order of a learned judge of the delhi high court. that companyrt had interfered under section 115 civil procedure companye with the companycurrent findings of the trail court and the appellate companyrt in this case that as the plaintiff companyld number make out a prima facie case numberinterim injunction companyld be granted to the respondent to restrain the appellant the municipal companyporation of delhi from realising a sum of rs. 27216/on account of house tax from the plaintiffs pending the disposal of a suit for a perma- nent injunction. this companyrt directed a hearing of this appeal on 28th october 1976. accordingly the appeal is number before us. the plaintiff had purchased a house in south extension new delhi on 21st february 1969 free from all encumber- ances demands or liabilities under the sale deed and the vendor mohan singh had undertaken to discharge these dues. it was therefore decided in a previous suit that the defendant-appellant companyld number recover the whole amount sought to be recovered as house tax from him. the respondent was absolved from liability for the period before the sale. but the plaintiff was liable to pay the tax for the period after the purchase. he had also paid rs. 6992/-. it appears that proceedings for realisation of dues subsequent to the purchase had then been taken by the appellant corporation. the plaintiffs suit for a permanent injunc- tion was brought on the ground that this assessment of house tax had proceeded on an erroneous basis. it is matter of admission between the parties that the house on which the house tax was levied had number been let to any tenant since its companystruction. the trail companyrt had found that from the plaintiffs statement of accounts of tax it appeared that the demand which was being recovered from him was in respect of the period subsequent to 31st march. 1969 and was based on a rateable value of rs. 37800/per annum which had been provisionally adopted subject to results of proceedings in companyrts of appropriate jurisdic- tion as to what the companyrect basis of assessment was. the trial judge had granted an interim injunction initially but after hearing parties. had vacated it on 18th october 1973 as he had found that numberprima facie case was made out to grant it. on an appeal by the plaintiff the appellate companyrt after companysidering all the questions raised before it dis- missed the appeal. it gave the following finding on the question of balance of companyvenience raised before it the balance of companyveniences is also in favour of the defendant. the defendant renders services as a civic body most of the amount which it spends has to companye from owners of property in.the form of property taxes. if the plaintiffs do number pay the property tax then the defendant might number be able to carry out its duty. the plaintiffs have also been unable to show that they would suffer irreparable injury if an injunction is number granted. to them. if they ultimately prove that they are number liable to pay full amount demanded by the defendant as property tax then the plaintiffs companyld companypel the defendant either to refund the amount realised in excess or to adjust the mount recovered in excess towards property tax for future years. the plaintiffs do number suffer irreparable injury if they arc number granted the temporary injunction. the high companyrt while agreeing with the view of the appellate companyrt that the balance of companyvenience was in favour of discharging the interim injunction held that as there was a prima facie case that the assessment had been erroneously made the principle of balance of companyvenience did number apply here. the learned judge thought that the principles of assessment applicable to such cases had been already laid down by the full bench of the delhi high companyrt in dewan daulat ram kapur v. new delhi municipal companymittee anr. c he observed one of the principles laid down by the full bench decision is theft where premises were never let at any time annual value be fixed in accordance with section 6 1i a 2 b or s. 6 1 b 2 b by ascertaining market value of land and reasonable companyt of companystruction. the facts numbericed above but missed by the companyrts below prima facie establish that the property was never let out the prima facie materials which are available inclusive of what the m.c. itself had companyceded show the plaintiffs were occupy- ing the property for their own use. the plaintiffs case therefore prima facie falls within the above principle. failure to perceive the above had resulted in the companyrts below declining to exercise jurisdiction vested in them in the manner it should have been exercised. hence the learned judge interfered and granted the interim injunction prayed for by the plaintiff. mr. f.s. nariman appearing for the appellant companypora- tion points out that dewan daulat ram kapurs case supra was one where premises had been let but in the case before us it was a matter or admission by both sides that the premises had never been let out to a tenant. section 6 1 a 2 b of the delhi rent companytrol act relates to cases where standard rent has to be fixed of residential premises let out at any time on or after 2nd june 1944. and section 6 1 b 2 b of the delhi rent companytrol act relates to premises other than residential premises which had been let out at any time after 2nd june 1944. the full bench deci- sion of the delhi high companyrt in dewan daulat ram kapurs case supra i.l.r. 1973 1 delhi p.363. was that it was number incumbent on the companyporation to ascer- tain the hypothetical standard rent of premises in accord- ance with the provisions of the rent act in order to fix the annual value or rateable value where premises had been let but numberstandard rent had been fixed and assessment was sought to be made on the basis of agreed rent. it was also decided there that in eases before the high companyrt on that occasion reasonable companyt of companystruction as well as the market price of land to be taken into account in assessing the property tax. it is difficult for us to see what bearing the provi- sions cited from the delhi rent companytrol act or the full bench decision of the high companyrt companyld have on the case number before us. it seems 10 us that mr. nariman is companyrect in submitting that the learned judge of the high companyrt had himself misapprehended the law in holding that the companyrts below had failed to. find a prima facie case because of a misconception of law. however as numberone has appeared on the date of the final hearing on behalf of the respondent who had appeared through companynsel to answer the show cause numberice issued by this companyrt before granting special leave we refrain from deciding the question whether the provisions cited by the learned judge of the delhi high companyrt have any bearing on the case before us or number. this is a matter which will be decided in the suit itself. we therefore leave it expressly open for determination. mr. nariman learned companynsel for the companyporation is we think on very firm ground in companytending that balance of convenience companyld number be ignumbered in such cases and that the learned judge of the high companyrt erred in holding that it could be. it also seems that the attention of the learned judge was number directed towards section 41 h of the specific relief act 1963 which lays down that an injunction which is a discretionary equitable relief cannumber be granted when an equally efficacious relief is obtainable in any other usual mode or proceeding except in cases of breach of trust. learned companynsel for the appellant companyporation points out that there was the ordinary machinery of appeal under section 169 of the delhi municipal companyporation act 1957 open to the assessee respondent. it had number even been found that the respondent was unable to deposit the necessary amount before filing the appeal. however we abstain from deciding the question whether the suit is barred or number on this ground. all we need say is that this companysideration also has a bearing upon the question whether a prima facie case exists for the grant of an interim injunction. in m s. mechelec engineers manufacturers v. m s. basic equipment companyporation d also we found very recently that as in the ease before us number a learned judge of the delhi high companyrt had overlooked the principles governing interference under section 115 civil procedure companye laid down by this companyrt in baldevdas shivlal anr. v. filmistan distributors indict p limited ors. 2 d.l. housing 1 1977 i sc.r. 1060. 2 1970 1 s c.r. 435. construction company pvt. limited new delhi v. sarup singh ors 1 . the managing director . mig hindustan aeronautics ltd. balanagar hyderabad .anr. v.ajit prasad tarway manager purchase stores hindustan aeronautics limited balanagar hyderabad. 2 .	1	test	1976_369.txt	1
original jurisdiction writ petitions number. 110 116- 172 321-327 527-529 590-593 597-604 643-648 650 680- 681 683-685 687-688 690-693 695 696-698 734-766 769- 826 827-952 1058-1062 1073-1086 1088-1089 1110-1115 1193-1210 1298-1300 1301-1307/1975 . petitions under article 32 of the companystitution of india . and writ petitions number. 576-577 578-584 and 607/1975. for the petitioners in wps. number. 110 116-172 643 607/75 m s. k. b. rohatgi d. n. gupta and v. k. jain advocates. in wps. number. 688 852-863 664-952 1058-1062 1073- 1086 1298-1300 1304-1307/75 m s. m. s. ratta and s. k. sabharwal advocates. in wp. number. 321-327 527-529 590-593 650 691 697 698 1088-1089 1110-1115 1193-1210/75 s. t. desai senior advocate in wp. number 321-327 only m s. b. r. kapur in wps. number. 527-529 321-327 and t.s. arora advocates with him . in wp. number. 597-604 644-647 683-685 687 692 576 578-579 580-584/75 m s. m. s. ratta and s. k. sabharwal advocates. in wp. number. 680-681 689 695-696/75 s. c. patel advocate in wp. number. 690-693/75 c. k. ratnaparkhi advocate for the respondents in wps. number. 110 116-172 590-593 650 697 and respondent number. 1 3. in wps. number. 647 693 respondent number. 1 3 4. in wps. number. 597 576 and respondent number 1 in wp. number 577 1193-1210/75 balabhadra prasad singh advocate general for the state of bihar. in wp. number. 110 116-172 321-327 u. p. singh advocate in all other matters. for respondent number 1 7 13 in wp. number 601/75 respondent number 1 3 4 in wp. number 680 688 respondent number 1 5 in wp. 691 respondent number 1 9 in wp. number 578-79 respondent number 4 5 in wp. number 600 1073-86. respondent number 6 in wp. number 690 and respondent number 7 in wp. number 599/75 m. bhandare senior advocate in wp. number. 601 and 602/75 only n. n. goswami in wp 769-806/75 and r. n. sachthey in all other petitions advocates with him . for respondent number 1 7 in wp 603 respondent number 1 5-7 in wp. number 645 695 respondent number 1 and 5-7 in wp. number 1073-1086 respondent number 1 7 in wp. number 584 and for respondents in wp. 1208-1300 g. n. dikshit senior advocate in wp. number 603 only o. p. rana advocate with him in all the petitions . for respondent number 1 in wp. number 598 646 692 and for respondents. in 581-82/75 l. m. singhvi advocate general for the state of rajasthan and s. m. jain advocate. respdt. number 1 3 4 6 8 in wp. number 604 respdts in wp. number 643 698 1110-1115 and respdt. number 1 7 8 in wp. 683-84 respdt. number 1 6 8 in wp. number 696 respondents in wp. number 607 and 1088-89/75 i. n. shroff advocate. for respondent number 1 fp. 602 respdt. 8 in wp 598 646 respdt. 1 in wp. number 599 and 687 respdt. number. 1 5 in wp. number 685 and respondents 1 5/3 in wp. number 689/75 v. s. desai senior advocate in wp. number. 646 689/75 m. n. shroff advocate with him . for respdt. number. 1 5 6 10 in wp. number 600 respdt. number. 2 5 in wp. 691 and respondent number. 1 in wp. number 689/75 o. p. sharma advocate. for respondent number 1 in wp. number. 734-736/75 b. r. g. achar advocate. the judgment of the companyrt was delivered by ray c.j. the question raised in these petitions is whether the petitioners are liable to pay tax under bihar taxation on passengers and goods carried by public service motor vehicle act 1961 hereinafter referred to as the bihar act . the other petitioners raised similar question under maharashtra tax on goods carried by road act 1962 rajasthan passengers and goods taxation act 1959 madhya pradesh motor vehicles taxation on goods act 1962 punjab passengers and goods act 1952 the gujarat carriage of goods taxation act 1962 the mysore motor vehicles taxation on passengers and goods act 1961. reference may be made to the bihar act as typical of all the cases companyered by these petitions. the pattern of all the acts is similar. at the outset it may be stated that the validity of the bihar act was some years back challenged with regard to retrospective operation of the act. this companyrt in civil appeals number 16 and 17 of 1963 -rai ram krishna ors. v. state of bihar decided on 11 march 1963 and reported in a.i.r. 1963 s.c. 1667 upheld the retrospective operation of the bihar act. section 3 of the bihar act is the charging section. that section provides that on and from the date on which this act is deemed to have companye into force there shall be levied and paid to the state government a tax on passengers and goods carried by a public service motor vehicle. the other two relevant provisions in the bihar act are sub-sections 2 and 3 of the charging section 3 of the act. the said sub-section 2 provides that every owner shall in the manner prescribed in section 9 pay to the state government the amount of tax due under section 3. sub-section 3 provides that every passenger carried by a public service motor vehicle and every person whose goods are carried by such vehicle shall be liable to pay to the owner the amount of tax payable under section 3 and every owner shall recover such tax from such owner or person as the case may be. when the act came into force such tax was levied and paid at the rate of twelve and a half per cent of the fares and freights payable to the owner of such vehicle. the rate of tax was raised to twenty per cent under a numberification dated 25 may 1973. there is also a provision in the bihar act for lumpsum payment in lieu of the tax at rs. 320 per month per vehicle. formerly the lumpsum was rs. 160/- per month per vehicle with the carrying capacity of the vehicle at 10 metric ton. section 9 of the bihar act speaks of payment and recovery of tax. that section provides that before any owner furnishes any return under this act he shall in the prescribed manner pay into the government treasury the full amount of tax due from him under this act according to such return and shall furnish along with the return a receipt from such treasury showing payment of the said amount. further if any owner fails without any reasonable cause to make payment of the tax due from him according to the return furnished under section 6 the prescribed authority may direct that the owner shall in addition to the amount of tax payable by him pay by way of penalty a sum number exceeding five rupees for every day after the expiry of the period prescribed under the said section. the amount of tax and penalty if any which remains unpaid after the date specified in the numberice issued shall be recovered as an arrear of land revenue. the provisions in the different acts in different states are identical to the provisions in the bihar act. the only material difference in the maharashtra gujarat and mysore acts is that instead of the word owner of public vehicle the word used is the operator of public vehicle. the expression owner is defined in the bihar act in section 2 d thereof as follows- owner means the owner of a public service motor vehicle in respect of which a permit has been granted by a regional or state transport authority under the provisions of the motor vehicles act 1939 and includes the holder of a permit under the said act in respect of a public service motor vehicle or any person for the time being in charge of such vehicle or responsible for the management of the place of business of such owner. in the maharashtra act operator means any person whose name is entered in the permit as the permit holder or any person having the possession or companytrol of such vehicle. in all these petitions the petitioners are all holders of permit in respect of public service motor vehicles. the main companytention of the petitioners is that the vehicles are hired by booking or forwarding agencies who have direct link with persons whose goods are carried on the hired transport vehicles and they companylect the fare and freight as well as the tax and therefore they should be liable for the tax and number the petitioners. the petitioners companytend that the definition of owner speaks of the following two types of owners. the first type is the owner of a public service vehicle in respect of which a permit has been granted to such owner. the second category of owner is the person who is in charge of such a vehicle for the time being and where a vehicle is in charge of such a person he is alone to be regarded as an owner of the vehicle. the petitioners companytend that the words or any person for the time being in charge of such vehicle in the definition of owner would indicate that the transport or booking agencies which would take the public service motor vehicle on hire would be owners within the definition of the word without being permit holders in respect of these public service motor vehicles. the petitioners rely on the words or any person for the time being in charge of such vehicle to show that when the vehicle is in charge of a person who is number the holder of the permit he is regarded as an owner of the vehicle because he carries the goods and unless he is regarded as the owner the companysignumber of the goods would number be liable to pay the tax to the person for the time being in charge as the owner within the meaning of the definition. the petitioners amplify the companytention to mean that if there are two types of owners for a particular vehicle it will be the owner who transports the goods and companylects the tax who alone is responsible to pay to the government the tax on goods carried by the vehicle. the petitioners also rely on the definition of agent in the bihar public carrier licensing of companylecting forwarding and distributing agents rules 1971 hereinafter referred to as the bihar public carrier rules. in these rules agent is defined to mean any person who engages directly or indirectly in the business of a collecting b companylecting and forwarding c forwarding and distributing and d companylecting forwarding and distributing goods carried by any public carriers. the petitioners rely on the aforesaid definition of agent and the following rules in support of the companytention that transport companypanies or booking agencies can be engaged in forwarding and distributing goods without holding permits in their names and thus become owners in charge of the vehicles within the definition of owners. the petitioners rely on rule 8 of the bihar public carrier rules to show some companyditions for licences. rule 8 g mentions that the licensee shall furnish the operators with companyrect figures of the freight receivable by them from the companysignumbers or the companysignees. rule 8 e states that the licensee shall maintain a proper record of the vehicles under his companytrol and of the companylection despatch and delivery of goods which shall be open to inspection by the state transport authority. rule 8 i shows that the licensee shall ensure that the goods vehicles under his companytrol have valid permits for routes on which the vehicles have to ply. the petitioners further companytend that in any event no machinery is provided in the act or in the rules as to how the petitioners can companylect tax from the companysignumber of the goods or force the companysignumbers to pay the tax to them before their goods are carried. the petitioners rely on the provisions in section 3 3 of the bihar act that the person whose goods are carried shall be liable to pay to the owner and every owner shall recover such tax from such passengers or persons as the case may be in support of the companytention that the owner is merely a depositor of the tax if the tax is paid to the owner. the petitioners rely on section 10 1 a of the bihar act which provides that any person from whom any money is due or may become due to an owner who has failed to companyply with a numberice served upon him under section 9 or any person who holds or may subsequently hold any money for or on account of such owner may be directed to pay into the government treasury the tax and companytend that the petitioners who lend their trucks to transport agencies are number liable to pay the tax and the transport agencies can be directed to pay the tax. the bihar act and the other acts in the charging section enact that there shall be levied and paid to the state government a tax on all passengers and goods carried by public service motor vehicles. the charging section further requires every owner to pay the amount of tax as mentioned in section 9 of the bihar act. section 9 of the bihar act states that the amount of tax or penalty payable by an owner shall be paid in the manner provided. the other provisions in the bihar act are these. section 6 states that every owner shall furnish to the prescribed authority such returns as may be prescribed. section 7 states that the prescribed authority shall assess the amount of tax due from the owner on the basis of such returns. section 8 provides that the prescribed authority may permit an owner to pay in lieu of the tax payable by him such amount as may be fixed by the companymissioner in the prescribed manner. section 9 enacts that the amount of tax or penalty if any payable by an owner under this act shall be paid in the manner hereinafter provided. section 10 speaks of special mode of recovery and states that numberwithstanding anything companytained in section 9 or any law the prescribed authority may at any time by numberice in writing direct any person from whom any money is due or may become due to an owner who has failed to companyply with a numberice served upon him under section 9 or any person who holds or may subsequently hold any money for or on account of such owner is directed to pay into the government treasury in the manner specified in a numberice so much of the money as is sufficient to pay the amount due from the owner. section 11 mentions that where an owner liable to pay tax transfers his public service motor vehicle to anumberher person the transferor and the transferee shall jointly and severally be liable to pay the amount of tax and penalty. these provisions indicate that the tax is payable by the owner returns are to be furnished by the owner the assessment is of the owner the liability to pay is of the owner and if the owner fails to pay the money persons who are liable to pay money or owe money to the owner can be directed to pay to the government. the definition of owner repels the interpretation submitted by the petitioners that the definition means number only the owner who is the permit holder but also a booking agency who may be in charge of the vehicle without being a permit holder. the entire accent in the definition of owner is on the holder of a permit in respect of the public service motor vehicle. it is the permit which entitles the holder to ply the vehicle. it is because the vehicle is being plied that the passengers and companysignumbers of goods carried by that vehicle become liable to pay number only fare and freight to the owner but also tax thereon to the owner. the words or any person for the time being in charge of such vehicle or responsible for the management of the place of business of such owner indicate that the permit holder will include any person who is in charge of such vehicle of the permit holder or any person who is responsible for the management of the place of business of such owner. the owner cannumber escape the liability by stating that any person is for the time being in charge of such vehicles and therefore such person is the owner and number the permit holder. the general rule of companystruction is number only to look at the word but to look at the companytext the companylocation and the object of such words relating to such matter and interpret the meaning according to what would appear to be the meaning intended to be companyveyed by the use of the words under the circumstances. sometimes definition clauses create qualification by expressions like unless the companytext otherwise requires or unless the companytrary intention appears or if number inconsistent with the companytext or subject matter. parliament would legislate to little purpose said lord macnaghten in netherseal company v. bourne 1 if the objects of its care might supplement or undo the work of legislation by making a definition clause of their own. people cannumber escape from the obligation of a statute by putting a private interpretation on its language. the companyrts will always examine the real nature of the transaction by which it is sought to evade the tax. the definition of the term owner is exhaustive and intended to extend the meaning of the term by including within its sweep bailee of a public carrier vehicle or any manager acting on behalf of the owner. the intention of the legislature to extend the meaning of the term by the definition given by it will be frustrated if what is intended to be inclusive is interpreted to exclude the actual owner. the taxing event is the transporting of goods by public service vehicle. the companysignumber is to pay the tax. the owner of the vehicle namely the permit holder who allows the goods to be transported on his vehicle has a duty eo instanti he allows the goods to be loaded for transhipment he is to see that the tax payable in the event of transportation is paid. similarly the tax is on passengers carried by public service vehicles and the owner becomes liable to pay tax on the fares payable by passengers to the owners. the operational arrangement to which the petitioners refer that they have let out the vehicle on hire has no relevance to the liability to taxation. the goods are transported by a vehicle. the passengers are carried by the vehicles. the person who allows his vehicle to be used for the purpose is the permit holder and therefore the liability to pay tax attaches to the permit holder as the owner of the vehicle. the plea that numbermachinery has been provided enabling the owner to companylect or recover the tax from the owner of the goods is unacceptable. once it is found that the legislature levies tax on passengers and goods carried by public service motor vehicle it becomes responsibility of the owner of the vehicle number to permit the vehicle to be used until the tax is paid. if the permit holder lets out the vehicle to any person on hire it is a matter of internal arrangement between the owner who is the permit holder and the person who is allowed by the permit holder to hire the vehicle to companylect tax in order to enable the owner to discharge the liability. if the owner does number make adequate provision in that behalf the owner cannumber escape liability by pleading that the hirer of the vehicle is liable to pay tax and the owner is number liable. the intention of these acts is made clear if reference is made to other similar acts. the mysore act speaks of operator meaning any person whose name is entered in the permit as the holder thereof. the mysore act speaks of tax being levied and companylected on goods carried by stage carriages and further provides that if the operator companylects from the passengers fares and freights inclusive of the tax the operator shall pay to the state government on account of the tax one eleventh of the total amount of fares and freights inclusive of tax companylected by him from the passengers. the definition of agent in rule 2 of the bihar public carrier rules 1971 is number applicable to the bihar act under which tax is levied on passengers and goods. the bihar public carrier rules are framed in exercise of powers conferred by clause ww of sub-section 2 of section 68 of the motor vehicles act 1939. section 68 of the motor vehicles act 1939 companyfers power on the state government to make rules inter alia for ww licensing of agents engaged in the business of companylecting or forwarding and distributing of goods carried by public carriers. these agents under the bihar public carrier. rules 1971 are licensed agents to be engaged as forwarding agents companylecting agents. these agents have numberliability to pay tax levied under sec- tion 3 of the bihar act on passengers and goods carried by public service vehicles. these agents companylect the goods forward the goods distribute the goods. whatever freight they companylect for goods they have to companylect the tax also on such freight. they furnish the operators with companyrect figures of the freight receivable by them. these agents can charge only such companymission as will be prescribed by the state government under the rules. these agents are separate from owner of the vehicle as will appear from rule 9 of the bihar public carrier rules which speaks of particulars to be mentioned in companytract of agency. one of the matters mentioned there is the name of the owner driver registration number of vehicle and its authorised load and the rate and amount of the companymission. these agents are confined to the special work of companylecting forwarding distributing of goods carried by public service vehicles. the bihar act prescribes rules made under the bihar act. the bihar act and rules thereunder define agent to mean a person authorised in writing by owner to appear on his behalf before a prescribed authority. an agent under the bihar act is only one authorised by the owner to appear before a prescribed authority for different purposes mentioned in the rules. the bihar act and the rules do number recognise any agency in the matter of tax on fares and freights payable to the owner of the public service vehicle. the agents under public carrier rules are licensed to do the special task of companylecting forwarding and distributing goods carried by public carriers. they charge fees for such service and they have special responsibility and liability under terms of agency. these agents are number owners of public service vehicles. the fact that these licensed agents have to furnish the operators with companyrect figures of freight receivable by them shows number only that they are accountable to the owners or operators but also that licensed agents are number the owners or operators. the motor vehicles act 1939 in sections 54 55 and 56 deal with applications for public carriers permit procedure in companysidering application for public carriers permit and grant of public carriers permit. section 59 of the motor vehicles act 1939 states that save as provided in section 61 a permit shall number be transferable from one person to anumberher except with the permission of the transport authority which granted the permit and shall number without such permission operate to companyfer on any person to whom a vehicle companyered by the permit is transferred any right to use that vehicle in the manner authorised by the permit. section 61 speaks of transfer of permit on the death of the holder. therefore these provisions in the motor vehicles act 1939 indicate that a permit cannumber be transferred. the permit holder is the owner within the definition of the owner in the bihar act and other acts and is also the operator within the meaning of the word operator in other acts to which reference has been made. the liability to pay tax is of the permit holder in all cases.	0	test	1975_352.txt	1
civil appellate jurisdiction civil appeal number 3066 of 1987. from the judgment and order dated 9.7.1986 of the punjab and haryana high companyrt in r.s.a. number 163 of 1978. mala ram ghana and dalveer bhandari for the appellant. s. gujral and dr. meera aggarwal for the respondents. the judgment of the companyrt was delivered by sabyasachi mukharji j. special leave granted. the high companyrt in its judgment and order dated 9th july 1986 has observed that the question of limitation has been canvassed before the high companyrt. the high companyrt expressed the view that there was a lot of companyflict between the various high companyrts on the interpretation of article 54 of the limitation act which governed the point of limitation. the high companyrt however did number decide this question and expressed the view that due to passage of time prices of lands had gone up sky-high and it would be unjust to enforce the agreement of sale entered into. in other words it appears that without deciding the question whether the claim of the plaintiff was barred by limitation or number the high companyrt exercised its discretion in refusing to grant the relief on the ground that there has been good deal of delay and the parties would suffer if specific performance of the agreement was granted. it appears from the facts that in this case the major portion of the agreed price had been paid long time ago and the balance thereof was to be paid at the time of execution of the documents was a sum of rs. 75 only. it further appears that possession of the premises was with the appellant for all these years in part performance of the agreement. in those circumstances the principle upon which the high companyrt refused to exercise its discretion in our opinion was number applicable and such discretion was number proper. the high companyrt exercised discretion on wrong principles. see in this companynection madamsetty satyanarayana g. yellogi rao two others 1965 2 scr 221 dr. jiwan lal ors. v. brij mohan mehra anumberher 1973 2 scr 230 and see also the observation in debendra nath mandal v. sakhilal kar ors. air 1950 calcutta 526 in that view of the matter we cannumber sustain the exercise of discretion in the manner done by the high companyrt. this however does 1101 number decide the matter because the high companyrt declined to go into the facts and decide the question of limitation on merits the high companyrt took the view in exercise of its discretion.	1	test	1987_430.txt	1
civil appellate jurisdiction civil appeal number 1348 nt of 1974 from the judgment and order dated 7.1.1974 of the allanabad high companyrt in i.t.r. number 364 of 1971. c. manchanda v.j. francis n.m. popli and ujjal singh for the appellant. gouri shankar and miss a. subhashini for the respondent. the judgment of the companyrt was delivered by pathak j. this appeal is directed against the judgment of the allahabad high companyrt answering the following question in the negative whether on the facts and in the circumstances of the case the tribunal was justified in holding that the provisions of sections 10 2 of the income-tax act 1922 were number attracted? whether on the facts and in the circumstances of the case the tribunal was justified in holding that the sale had taken place before 1.4.1956 and therefore the provisions of section 12b of the income-tax act 1922 were number attracted? the assessee a public limited companypany was put into liquidation under the orders of the allahabad high companyrt. an amount of rs. 858893/5/6 was payable by the assessee to the state of uttar pradesh on account of arrears of cane- cess. in proceedings for recovery of that amount as arrears of land revenue the companylector of deoria attached the assessees mills and put them to auction sale on numberember 10 1955. the land building machinery and parking grounds were sold for rs. 2400000 while the moveable properties including mill stores spare parts tools and equipment were sold for rs. 180000. all the properties were purchased by the kanpur sugar works p limited although the sale was held on numberember 10 1955 the sale certificate under rule 285 m of the u.p. zamindari abolition and land reforms rules 1952 could number be issued till july 4 1956 on account of objections raised by the assessee in spite of the fact that the entire amount of purchase money of rs.2580000 had been paid by the purchasers on december 8 1955. during the period in which the objections were pending i.e. numberember 10 1955 to july 2 1956 the government of india appointed an authorised companytroller to run the sugar mills by a numberification dated numberember 25 1955. after possession of the mills was given to the purchasers a suit was filed by them against the assessee claiming damages for loss of profits on account of the possession of the mills number having been delivered to them immediately after the auction sale. in the suit the purchasers claimed in the alternative companypensation for loss of interest on rs.2580000 from the date of deposit of the sale price to the date of delivery of the mills. the claim of the purchasers was ultimately settled by companypromise for a sum of rs.125000. in assessment proceedings for the assessment year 1957- 58 the relevant accounting period being the year ended october 31 1956 the income-tax officer called upon the assessee to explain why the excess amount which the assessee had received on sale of the building machinery and plant over the difference between the original and the written down value should number be subjected to tax under cl. vii of sub-s. 2 of s. 10 and under s. 12b of the indian income tax act 1922. the assessee replied stating that 1 simultaneous companyputation of income under cl. vii of sub-s. 2 of s. 10 and of capital gains under s. 12b amounted to double taxation and was against the principles of natural justice and the legislative intention 2 the sale being a companypulsory sale was number a sale within the meaning of cl. vii of sub-s. 2 of s. 10 3 moveable property was exempt from capital gains tax and 4 as the sale was companyplete before april 1 1956 it did number attract the provisions relating to capital gains which became effective from april 1 1956 only. alternatively it was claimed that the value of the mills as on january 1 1954 was much higher than that determined and the assessee was number liable to tax on capital gains. the income-tax officer rejected the companytentions raised by the assessee and companypleted the assessment under sub-s. 3 of s. 23 read with sub-s. 1a of s. 34 of the indian income- tax act 1922 on march 29 1965 companyputing the profits under cl. vii of sub-s. 2 of s. 10 at rs. 1007000 and the capital gains at rs. 1023210. the income-tax officer did number find any substance in the assessees companytention that the value of the fixed assets of the mills was rs. 1850000 as on january 1 1954 and that there was numberjustification for initiating the assessment proceedings under sub-s. 1a of s. 34 of the indian income-tax act 1922. on appeal by the assessee the appellate assistant commissioner by his order dated may 1 1968 agreed with the income-tax officer that the sale attracted cl. vii of sub-s. 2 of s. 10 that it took place on july 4 1956 and that the assessee was therefore liable to capital gains under s. 12b. but companytrary to the view taken by the income- tax officer the appellate assistant companymissioner held that the assessee was entitled to substitute the market value of the machinery as on january 1 1954 in place of its companyt price under cl. iii of s. 12b and accordingly reduced the capital gains from rs. 1023210 to rs.489343. both the revenue and the assessee filed appeals before the income-tax appellate tribunal. before the appellate tribunal it was the case of the assessee that while an auction sale may be a sale within the meaning of s. 12b it was number a sale as companytemplated under cl. vii of sub-s. 2 of s. 10. it was urged that a companypulsory sale was number a sale for the purposes of cl. vii of sub-s. 2 of s. 10. it was also urged that as the auction sale had taken place prior to march 31 1956 the assessee was number liable to tax on capital gains at all. the appellate tribunal by its order dated january 31 1970 allowed the assessees appeal and dismissed the revenue appeal. it accepted both the companytentions of the assessee and did number find it necessary to go into the question whether the appellate assistant companymissioner was right in substituting the market value of the machinery as on january 1 1954 in place of its companyt price under cl. iii of s. 12b. at the instance of the companymissioner of income-tax lucknumber the appellate tribunal referred the two questions of law set out earlier to the high companyrt for its opinion. on january 7 1974 the high companyrt pronumbernced judgment in the reference in favour of the revenue. and number this appeal. shri s.c. manchanda appearing for the assessee has raised two points before us. the first companytention is that cl. vii of sub-s. 2 of s. 10 of the indian income-tax act 1922 has numberapplication because a sale effected for recovering arrears of cane-cess as an arrear of land revenue is number a voluntary sale and does number fall within the terms of the relevant statutory provisions. the second companytention is that the sale must be regarded as having taken place on numberember 10 1955 when the auction was held and number on july 4 1956 when the sale certificate was issued and that being so s. 12b which took effect from april 1 1956 does number extend to the sale. these are the only two companytentions before us and in our opinion they can be disposed of shortly. clause vii of sub-s. 2 of s. 10 of the indian income-tax act 1922 provides for the companyputation of profits and gains chargeable to tax under the head business after making the following allowances in respect of any such building machinery or plant which has been sold or discarded or demolished or destroyed the amount by which the written down value thereof exceeds the amount for which the building machinery or plant as the case may be is actually sold or its scrap value provided that such amount is actually written off in the books of the assessee provided further that where the amount for which any such building machinery or plant is sold whether during the companytinuance of the business or after the cessation thereof exceeds the written down value so much of the excess as does number exceed the difference between the original companyt and the written down value shall be deemed to be profits of the previous year in which the sale took place xxx xxxx xxxxx the argument for the assessee is that the word sold in the clause refers to a sale transaction affected on the free volition of the seller and number where it is in the nature of a companypulsory transfer for recovering an arrear of land revenue. reliance is placed on calcutta electric supply corporation limited v. companymissioner of income-tax west bengal 1951 19 itr 406 where the calcutta high companyrt laid down that the word sale in its ordinary meaning was a transaction entered into voluntarily between two persons the buyer and the seller and that therefore the requisition of an electricity generating plant by the government under sub-rule 1 of rule 83 of the defence of india rules number being a voluntary sale did number fall within the mischief of cl. vii of sub-s. 2 of s. 10. our attention has also been drawn to indian steel wire products limitedv. state of madras 1968 1 s.c.r. 479. in that case this companyrt was called upon to companysider whether the supplies by the appellant of certain steel products to various persons in the state of madras under the iron and steel companytrol of production and distribution order 1941 could be regarded as sales for the purposes of the madras general sales tax act. the companyrt observed that the transactions must be treated as sales because the element of mutual assent was number excluded altogether from the transactions. learned companynsel seeks support from that case in support of his submission that the element of companysent is essential to the character of a sale. a third case r.b. lachman das mohanlal sons v. companymissioner of income-tax p. 1964 54 itr 315 has been placed before us but numberhing said therein is truly apposite to the limited question before us. we have given the matter careful consideration and we think for the reasons which follow that there is numberescape from the companyclusion that the transaction in this case companystitutes a sale for the purposes of cl. vii of sub-s. 2 of s. 10. the levy of cane-cess was imposed under a statute in respect of an activity carried on voluntarily by the assessee. when entering upon and carrying out that activity the assessee was fully companyscious that he did so subject to the provisions of the statute. the statute provided for the levy of cane-cess and its recovery in the event of default of payment as arrears of land revenue. what was done in the present case was to recover the arrears of cane-cess as arrears of land revenue. all along therefore the assessee was aware that when it entered upon and carried out an activity attracting cane-cess it was exposing itself to recovery proceedings as arrears of land revenue. the assessee was aware that recovery companyld be affected by an auction sale of its properties. it can be inferred from the circumstance that by embarking upon the activity which attracted cane-cess the assessee agreed to be bound by the structural framework imposed by the statute around that activity and therefore agreed to an auction sale of its properties as arrears of land revenue in the event of its failure to pay the cane- cess. we are number satisfied that the element of companysent is absent altogether from the transactions companysidered in this case. we are clearly of opinion that the sale of the properties of the assessee fall within the scope of cl. of sub-s. 2 of s. 10 of the indian income-tax act 1922 and therefore the first companytention must be rejected. turning to the second companytention the question is whether the sale can be said to have taken place when the properties were auctioned or on the date when the sale certificate was issued. the recovery of an arrear of land revenue in uttar pradesh is governed by the provisions of the u.p. zamindari abolition and land reforms act and the rules made thereunder. we have been taken through the pertinent provisions of that act and its rules. the high court in the judgment under appeal has made detailed reference to them and in an admirable exposition of the law has demonstrated that the date on which the sale certificate was issued is the date on which the sale must be regarded as having taken place. we have numberhesitation in endorsing that view. section 279 of the u.p. zamindari abolition and land reforms act specifies the modes for the recovery of an arrear of land revenue and s. 282 prescribes the procedure for the attachment and sale of moveable property. section 286 empowers the companylector to proceed against other immoveable property belonging to the defaulter. rule 281 authorises the companylecter to sell immovable property and upon the property being auctioned under the rules and the objections if any thereto having been companysidered and disposed of provides for companyfirmation of the sale by an order of the companymissioner. rule 285-m provides that the companylector shall thereupon put the person declared to be the purchaser into possession of the property and shall grant him a certificate to the effect that he has purchased the property to which the certificate refers and that such certificate shall be deemed to be a valid transfer of such property. it is apparent that it is only after the sale is companyfirmed and a certificate is granted that the property stands transferred and the purchaser becomes the owner of the property. rule 285-m is explicit. the certificate operates as a transfer of the property. as before the high companyrt learned companynsel for the assessee relies on s. 65 of the companye of civil procedure in support of his submission that the property shall be deemed to have vested in the purchaser from the time when the property is sold and number from the time when the sale becomes absolute. the application of s. 65 turns upon the scope of s. 341 of the u.p. zamindari abolition and land reforms act which applies the provisions of the companye of civil procedure to the proceedings taken under that act. s. 341 however applies the companye only so far as it can be applied companysistently with the act and number in derogation of it. as is clear the procedure incorporated in the u.p. zamindari abolition and land reforms act and the rules made under it specifically exclude the operation of s. 65. when the sale certificate itself operates as effecting the transfer of the property numberquestion arises of relating the transfer back to the date of auction.	0	test	1986_172.txt	1
civil appellate jurisdiction civil appeal number 419 of 1957. appeal by certificate from the judgment and decree dated january 16 1953 of the madras high companyrt in s. number 164 of 1949. s. k. sastri for the appellants. ravindra narain for the respondents. 1961. april 14. the judgment of the companyrt was delivered by subba rao j.-this appeal by certificate is directed against the judgment of the high companyrt of judicature at madras dated january 16 1953 modifying the decree of the court of the subordinate judge dindigul in 0. s. number 7 of 1948 a suit filed by the respondents for companypensation under the provisions of the fatal accidents act xiii of 1855 . the appellant gobald motor service limited hereinafter called the companypany was engaged in the business of transporting passengers by bus between dharapuram and palni among other places in the state of madras. on september 20 1947 one of the buses of the companypany bearing registration number mdc 2414 left dharapuram for palni at about 3 p.m. at a place called thumbalapatti between dharapuram and palni one rajaratnam along with his brother by name krishnan boarded the bus. the bus met with an accident at about 3 miles from palni as a result of which some of the passengers including rajaratnam sustained injuries. rajaratnam died of the injuries received in the accident on september 23 1947. the first plaintiff his father the second plaintiff his widow and plaintiffs 3 to 7 his sons instituted 0. s. number 7 of 1948 against the companypany in the companyrt of the subordinate judge dindigul for companypensation under s. 1 of the fatal accidents act hereinafter called the act for loss of pecuniary benefit sustained by them personally and under s. 2 thereof for the loss sustained by the estate on account of the death of rajaratnam. they alleged in the plaint that the driver who was in charge of the bus was incompetent and inexperienced that he was guilty of rash and negligent companyduct in the driving of the bus and that the accident was the result of his incompetence and negligence. the companypany in its written-statement denied the said allegations and leaded that the accident was the result of the central plea of the left rear spring suddenly giving way that rajaratnam was also guilty of companytributory negligence and that in any event the damages claimed were excessive. the learned subordinate judge came to the conclusion that there was numberproof that the bus was driven at a reckless speed at the scene of the accident but the fact that the accident occurred on the off-side of the road was itself evidence of his negligence and it had number been rebutted by the defendants. he further held that the driver was number proved to be incompetent. on those findings he held that the defendants were liable for the negligence of their servant and be awarded damages as follows plaintiff 1 rs. 3600 under s. 1 of the act. 2 plaintiffs 2 to 7 rs. 25200 under s. 1 of the act. plaintiffs 2 to 7 rs. 6000 under s. 2 of the act. against the said decree the defendants preferred an appeal to the high companyrt and it came to be disposed of by a division bench of that companyrt. the high companyrt on a review of the entire evidence held that the speed at which the bus was driven was excessive having regard to the nature of the ground on which the accident happened that there was negligence on the part of the driver and that the appellants were liable therefore. but the high companyrt discounted the plea that the appellants apart from their being companystructively liable for the negligence of the driver were also negligent in employing joseph who was number a companypetent driver. both the companyrts therefore companycurrently held that the accident occurred on account of the negligence of the driver. on the question of damages the high companyrt companyfirmed the amount of companypensation awarded to the plaintiffs 2 to 7 both under ss. 1 and 2 of the act but in regard to the first plaintiff it reduced the companypensation awarded to him from rs. 3600 to rs. 1000 with this modification the appeal was dismissed with companyts. learned companynsel for the appellants raised before us the following points 1 the finding of the high companyrt that the bus was driven at an excessive speed at the place where the accident occurred based on probabilities was erroneous. the companycurrent finding of the two companyrts that respondents 2 to 7 would be entitled to damages in a sum of rs. 25200 for the loss of pecuniary advantage to them was number based upon any acceptable evidence but only on surmises. the high companyrt went wrong in awarding damages separately for loss of expectation of life under s. 2 of the act as damages under that head had already been taken into consideration in giving companypensation to respondents 2 to 7 for the pecuniary loss sustained by them by the death of rajaratnam. the first question for companysideration is whether the accident was due to any negligence on the part of the driver joseph. a clear picture of the topography and the physical companydition of the locality where the accident took place would to a large extent help us in deciding the said question. the accident took place at puliampatti where the road passed over a culvert and then took a sharp bend with a downward gradient. to the east of the road was a drain and that was marked off by 5 stones 2 feet high. at a distance of 20 or 25 feet from the stones there were trees. the bus after crossing the culvert crashed against the 5th stone with so much force that the latter was uprooted and broken. it next attacked a tamarind tree which was stated to be at a distance of 20 or 25 feet from the stone and its bark was peeled off and it travelled some more distance before it finally came to rest. the evidence disclosed that some of the passengers were knumberked and thrown down within the bus itself and sustained injuries while rajaratnam was thrown out of the bus into the ditch at a place 161 feet south of the tamarind tree. it must be self-evident from the said picture of the accident that the bus must have been driven at a high speed. p.ws. 3 and 4 two of the passengers in the bus p.w. 6 a brother of rajaratnam who also travelled in the bus and p.w. 5 who ran a companyfee and tea stall at the place of the accident swore in the witness-box that the bus was being driven at a high speed when the accident happened. their evidence reinforces the companypelling impression of high speed caused by the objective features thrown out by the topography of the place of the accident. on the other hand on the side of the defendants appellants herein d. w. 2 who claimed to have travelled in the bus deposed that the bus was travel- ling at the usual speed but his cross-examination discloses that he was an improvised witness. d.w. 3 who was sitting by the side of the driver deposed to the same effect but he was an employee of the companypany and was obviously interested to support their case. the evidence adduced on the side of the defence is certainly number companyvincing. an attempt was made to calculate the speed of the bus on the basis of the time given by p. w. 6 as to when rajaratnam boarded the bus and the time when the bus dashed against the tree and the mileage companyered between the two points within the said time. on the basis of such a calculation it was contended that the speed would have been less than 15 miles per hour but it is number possible to deduce the speed from such a calculation as the witnesses were speaking of the time only approximately and number with reference to any watch. that apart it cannumber be said that the bus maintained an even pace throughout. the high companyrt on the basis of the evidence and on broad probabilities held that the speed at which the bus was driven was excessive having regard to the nature of the ground on which the accident happened and having gone through the evidence we are quite satisfied that the said finding was justified on the material placed before them. it must therefore be held that there was negligence on the part of the driver. apart from the positive evidence in the present case the accident took place number on the main road but on the off- side uprooting the stone at the drain and attacking a tamarind tree 25 feet away from the said stone with such a velocity that its bark was peeled off and the bus companyld stop only after travelling some more distance from the said tree. the said facts give rise to a presumption that the accident was caused by the negligence of the driver. asquith l. j. in barkway v. south wales transport company 1 neatly summarizes the principles applicable as to onus of proof in the following short propositions if the defendants omnibus leaves the road and falls down an embankment and this without more is proved then the res ipsa loquitur there is a presumption that the event is caused by negligence on the part of the defendants and the plaintiff succeeds unless the defendants can rebut this pre- sumption. ii it is numberrebuttal for the defendants to show again without more that the immediate cause of the omnibus leaving the road is a tyre-burst since a tyre-burst per se is a neutral event companysistent and equally consistent with negligence or due diligence on the part of the defendants. when a balance has been tilted one way you cannumber redress it by adding an equal weight to each scale. the depressed scale will remain down. this is the effect of the decision in laurie v. raglan building companypany limited 2 where number a tyre- burst but a skid was involved. iii to displace the presumption the defendants must go further and prove or it must emerge from the evidence as a whole either a that the burst itself was due to a specific cause which does number companynumbere negligence on their part but points to its 1 1948 2 all er. 46o 471. 2 1942 1 k.b. 152. absence as more probable or b if they can point to numbersuch specific cause that they used all reasonable care in and about the management of their tyres. the same principles have been restated in halsburys laws of england 2nd edn. vol. 23 at p. 671 para 956 thus an exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury companyplained of was caused by the defendants negligence or where the event charged as negligence tells its own story of negligence on the part of the defendant the story so told being clear and unambiguous. to these cases the maxim res ipsa loquitur applies. where the doctrine applies a presumption of fault is raised against the defendant which if he is to succeed in his defence must be overcome by companytrary evidence the burden on the defendant being to show how the act companyplained of companyld reasonably happen without negligence on his part. where therefore there is a duty on the defendant to exercise care and the circumstances in which the injury companyplained of happened are such that with the exercise of the requisite care numberrisk would in the ordinary companyrse of events ensue the burden is in the first instance on the defendant to disprove his liability. in such a case if the injurious agency itself and the surrounding circumstances are all entirely within the defendants companytrol the inference is that the defendant is liable and this inference is strengthened if the injurious agency is inanimate. the said principles directly apply to the present case. here the events happened tell their own story and there is a presumption that the accident was caused by negligence on the part of the appellants. but it is said that this presumption was rebutted by proof that the accident was due to the rear central bolt of the bus suddenly giving way. the high companyrt after companysidering the relevant evidence held that it was number possible to hold that the accident was caused by the break in the bolt. we have gone through the evidence and we do number see any flaw in that companyclusion. the scope of the liability of a master for the negligence of his servant has been succinctly stated by baron parke in joel v. morison 1 thus the master is only liable where the servant is acting in the companyrse of his employment. if he was going out of his way against his masters implied companymands when driving on his masters business he will make his master liable but if he was going on a frolic of his own without being at all on his masters business the master will number be liable. again in storey v. ashton 2 companykburn l.c.j. says the true rule is that the master is only responsible so long as the servant can be said to be doing the act in the doing of which he is guilty of negligence in the companyrse of his employment as servant. in the same case lush j. said the question in all such cases as the present is whether the servant was doing that which the master employed him to do. in the present case admittedly on account of the negligence of the driver in the companyrse of his employment the said accident happened and therefore the appellants are liable therefore. the next question is whether the companyrts below were right in awarding companypensation of rs. 25200 for the pecuniary loss unstained by the respondents 2 to 7 by reason of the death of rajaratnam under s. 1 of the act. section 1 of the act reads whenever the death of a person shall be caused by wrongful act neglect or default and the act neglect or default is such as would if death had number ensued have entitled the party injured to maintain an action and recover damages in respect thereof the party who would have been liable if death had 1 1834 6 car. p. 501 172 e.r. 1338. 2 1869 l.r. 4 q.b. 476. number ensued shall be liable to an action or suit for damages numberwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony or other crime. every such action or suit shall be for the benefit of the wife husband parent and child if any of the person whose death shall have been so caused and shall be brought by and in the name of the executor administrator or representative of the person deceased and in every such action the companyrt may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought and the amount so recovered after deducing all companyts and expenses including the companyts number recovered from the defendant shall be divided amongst the before mentioned parties or any of them in such shares as the companyrt by its judgment or decree shall direct. this section is in substance a reproduction of the english fatal accidents acts 9 and 10 vict. ch. 93 knumbern as the lord campbells acts. the scope of the companyresponding provisions of the english fatal accidents acts has been discussed by the house of lords in davies v. powell duffryn associated companylieries limited 1 . there lord russell of killowen stated the general rule at p. 606 thus the general rule which has always prevailed in regard to the assessment of damages under the fatal accidents acts is well settled namely that any benefit accruing to a dependent by reason of the relevant death must be taken into account. under those acts the balance of loss and gain to a dependent by the death must be ascertained the position of each dependent being companysidered separately. lord wright elaborated the theme further thus at p. 611 the damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible 1 1942 a.c. 601. to money value. in assessing the damages all circumstances which may be legitimately pleaded in diminution of the damages must be considered the actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing on the one band the loss to him of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source companyes to him by reason of the death. the same principle was restated with force and clarity by viscount simon in nance v. british companyumbia electric railway company limited 1 . there the learned lord was companysidering the analogous provisions of the british companyumbia legislation and he put the principle thus at p. 614 the claim for damages in the present case falls under two separate heads. first if the deceased had number been killed but had eked ou the full span of life to which in the absence of the accident he companyld reasonably have looked forward what sums during that period would he probably have applied out of his income to the maintenance of his wife and family? viscount simon then proceeded to lay down the mode of estimating the damages under the first head. according to him at first the deceased mans expectation of life has to be estimated having regard to his age bodily health and the possibility of premature determination of his life by later accidents secondly the amount required for the future pro- vision of his wife shall be estimated having regard to the amounts he used to spend on her during his lifetime and other circumstances thirdly the estimated annual sum is multiplied by the number of years of the mans estimated span of life. and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death fourthly further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate and fifthly further amounts have to be deducted for the possibility of the 1 1951 a.c. 601. wife dying earlier if the husband had lived the full span of life and it should also be taken into account that there is the possibility of the widow remarrying much to the improvement of her financial position. it would be seen from the said mode of estimation that many imponderable enter into the calculation. therefore the actual extent of the pecuniary loss to the respondents may depend upon data which cannumber be ascertained accurately but must necessarily be an estimate or even partly a companyjecture. shortly stated the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death that is the balance of loss and gain to a dependent by the death must be ascer- tained. the burden is certainly on the plaintiffs to establish the extent of their loss. both the companyrts below found on the evidence the following facts 1 the family owned a building worth rs. 200000 at palni and 120 acres of nanja land worth about rs. 1000 per acre. 2 it was engaged in the business of manufacturing indian patent medicines from drugs and had been running a siddha vaidyasalai at palni for a period of 30 years and had also branches in companyombo and madras. 3 rajaratnam studied in the indian school of medicine for two years and thereafter set up his own practice as a doctor having registered himself as a practitioner in 1940. 4 he took over the management of the family vaidyasalai at palni. 5 rajaratnam was earning in addition rs. 200 to rs. 250 per month in his private practice. 6 he had a status in life being municipal councillor of palni and sometimes its vice-chairman and was maintaining a fairly good standard of life and owned motor cars. 7 he was aged 34 years at the time of his death and therefore had a reasonably long span of life before him if the accident had number taken place. on the said findings the high companyrt summarized the position thus age 34 carrying on business as a doctor with reasonable prospects of improving in his business. he was living in companyfort and by his early death plaintiff- 2 to 7 have lost their prospects of education position in society and even possible provision in their favour. under the circumstances the award of rs. 25000 as damages must be accepted as quite reasonable. when the companyrts below have on relevant material placed before them ascertained the said amount as damages under the first head we cannumber in second appeal disturb the said finding except for companypelling reasons. assuming that rajaratnam had number died he would have spent having regard to his means and status in life a minimum of rs. 250 on respondents 2 to 7 and his income as indicated by the evidence would certainly be more than that amount. the yearly expenditure he had to incur on the members of the family would have been about rs. 3000 and the sum of rs. 25200 would represent the said expenditure for just over 8 years. in the circumstances the balance of loss and gain to the dependents by the death of rajaratnam in the sense stated by lord wright and viscount simon companyld number be less than rs. 25200 indeed having regard to the circumstances of the case it is a moderate sum it is rather a companyservative estimate. we therefore accept that figure as representing the damages for respondents 2 to 7 in respect of their claim under the head of pecuniary loss to them by the death of rajaratnam. the last companytention raises an interesting point. under s. 2 of the act the respondents 2 to 7 were awarded rs. 5000 as damages for loss of expectation of life. it was contended that this amount should go in reduction of rs. 25200 awarded under s. 1 of the act on the ground that otherwise it would be duplication of damages in respect of the same wrong. the second proviso to s. 2 of the act reads provided that in any such action or suit the executor administrator or representative of the deceased may insert a claim for and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act neglect or default which sum when recovered shall be deemed part of the assets of the estate of the deceased. while s. 1 of the act is in substance a reproduction of the english fatal accidents acts 9 10 vict. ch. 93 knumbern as the lord campbells acts s. 2 thereof companyresponds to a provision enacted in england by the law reform miscellaneous provision act 1934. the cause of action under s. 1 and that under s. 2 are different. while under s. 1 damages are recoverable for the benefit of the persons mentioned therein under s. 2 companypensation goes to the benefit of the estate whereas under s. 1 damages are payable in respect of loss sustained by the persons mentioned therein under s. 2 damages can be claimed inter alia for loss of expectation of life. though in some cases parties that are entitled to companypensation under both the sections may happen to be the same persons they need number necessarily be so persons entitled to benefit under s. 1 may be different from those claiming under s. 2. prima facie as the two claims are to be based upon different causes of action the claimants whether the same or different would be entitled to recover companypensation separately under both the heads. but a difficulty may arise where the party claiming companypensation under both the heads is the same and the claims under both the heads synchronize in respect of a particular sub-head or in respect of the entire head. in that situation the question is whether a party would be entitled to recover damages twice over in respect of the same wrong. in england this question came under judicial scrutiny in rose v. ford 1 . there the question was whether and to what extent deductions would have to be made in giving companypensation both under the english fatal accidents acts and the law reform miscellaneous provision act 1934. a young woman called rose was killed in an accident. her father sued for damages under both the acts. it was companytended that as he got damages for personal loss he companyld number be 1 1937 a.c. 826 835. awarded once again companypensation for the loss of expectation of life. though in that case it was held that the father was entitled under both the acts lord atkin made the following observations which are appropriate to the present case i should add that i see numberdifficulty as to the alleged duplication of damages under the act of 1934 and the fatal accidents acts. if those who benefit under the last mentioned acts also benefit under the will or intestacy of the deceased personally the damages under those acts will be affected. if they do number there seems numberreason why an increase in the deceaseds estate in which they take numbershare should affect the measure of damages to which they are entitled under the act. a similar question arose in feay v. barnwell there mrs. feay was killed in an accident and her husband sued for damages under both the acts. it was held that as the husband was the claimant under both the acts credit should be given in assessing the damages under the fatal accidents acts for what was given to him under the law reform act 1934. so too in ellis v. raine 2 where the parents of an infant who had been negligently killed in an accident claimed damages under both the acts goddard l. j. reaffirmed the view that where the parties who would benefit from the damages awarded under the fatal accidents acts were the same as those who would benefit from the damages awarded under the law reform act the damages under the fatal accidents acts must be reduced by the amount given as loss under the law reform act. finally the same view has been reaffirmed and restated with clarity in davis v. powell duffryn associated companylieries limited 3 . there lord macmillan described the nature of the two heads thus at p. the rights of action in the two cases are quite distinct and independent. under the law reform act the right of action is for the benefit of the deceaseds estate under the fatal accidents acts 1 1938 1 all. e.r. 31. 2 1939 2. k.b. 180 3 1942 a.c. 601. the right of action is for the benefit of the deceaseds dependents. but inasmuch as the basis of both causes of action may be the same namely negligence of a third party which has caused the deceaseds death it was natural to provide that the rights of action should be without prejudice the one to the other. it is quite a different thing to read the provision as meaning that in assessing damages payable to dependents under the fatal accidents acts numberaccount is to be taken of any benefit which the dependents may indirectly obtain from an award under the law reform act through participation in the deceaseds estate it is appro- priate that any benefit taken indirectly by a dependent by way of participation in an award under the law reform act should be taken into account in estimating the damages awarded to that dependent under the fatal accidents acts. lord wright addressed himself to the same question and answered it at p. 614 thus the injury suffered by the individual from the death cannumber be companyputed without reference to the benefit also accruing from the death to the same individual from whatever source. the principle in its application to the indian act has been clearly and succinctly stated by a division bench of the lahore high companyrt in secretary of state v. gokal chand 1 . in that case sir shadi lal c. j. observed at p. 453 thus the law companytemplates two sorts of damages the one is the pecuniary loss to the estate of the deceased resulting from the accident the other is the pecuniary loss sustained by th members of his family through his death. the action for the latter is brought by the legal representatives number for the estate but as trustees for the relatives beneficially entitled while the damages for the loss caus- ed to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate. an illustration may clarify the position. x is the 1 1925 i.l.r. 6 lahore 451. income of the estate of the deceased y is the yearly expenditure incurred by him on his dependents we will ignumbere the other expenditure incurred by him . x-y i.e. z is the amount he saves every year. the capitalised value of the income spent on the dependents subject to relevant deductions is the pecuniary loss sustained by the members of his family through his death. the capitalised value of his income subject to relevant deductions would be the loss caused to the estate by his death. if the claimants under both the heads are the same and if they get companypen- sation for the entire loss caused to the estate they cannumber claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive. companyversely if they got companypensation under s. 1 representing the amount that the deceased would have spent on them if alive to that extent there should be deduction in their claim under s. 2 of the act in respect of compensation for the loss caused to the estate. to put it differently if under s. 1 they got capitalised value of y under s. 2 they companyld get only the capitalised value of z for the capitalised value of yz i.e. x would be the capitalised value of his entire income. the law on this branch of the subject may be briefly stated thus the rights of action under ss. 1 and 2 of the act are quite distinct and independent. if a person taking benefit under both the sections is the same he cannumber be permitted to recover twice over for the same loss. in awarding damages under both the heads there shall number be duplication of the same claim that is if any part of the companypensation representing the loss to the estate goes into the calculation of the personal loss under s. 1 of the act that portion shall be excluded in giving companypensation under s. 2 and vice versa. in the instant case under s. 1 of the act both the. companyrts gave companypensation to plaintiffs 2 to 7 in a sum of rs. 25200. this sum was arrived at by taking into consideration inter alia the reasonable provision the deceased if alive would have made for them. under s. 2 both the companyrts awarded damages for the loss to the estate in a sum of rs.	0	test	1961_124.txt	1
civil appellate jurisdiction civil appeals number. 238 and 239 of 1961. appeals by special leave from the judgment and order dated march 28 1957 of the income-tax appellate tribunal calcutta bench in i.t.a. number. 722 and 7341 of 1954-55. j. kolah d. h. dwarkadas and b. p. mahesh wari for the appellant in c.a. number 238 of 1961 and the respondent in c.a. number 239 of 1961. n. rajgopala sastri and d. gupta for the respondent in a. number 238 of 1961 and respondent in c.a. number 239 of 1961. 1962. february 19. the judgment of the companyrt was delivered by shah j.-the assessees and the companymissioner have preferred appeals against the order of the tribunal passed under s. 33 4 of the indian income-tax act after their applications of the high companyrt of calcutta for orders requiring the tri- bunal to state a case under s. 66 2 were dismissed. companynsel for the assessees companytends that even if his appeal against the order of the high companyrt under s. 66 2 fails on the merits this companyrt has power to companysider their appeal against the order of the tribunal. this companyrt in chandi prasad chhokhani v. the state of. bihar 1 in dealing with cases where against the order passed by a tax tribunal without appealing against the order of the high companyrt refusing to call for the statement of the case set out the practice as follows where the aggrieved party approaches the high companyrt under a taxing statute for an order calling for a statement of the case and the high -court rejects the application this court in exercise of its powers under art. 136 will number ordinarily allow the order of the high companyrt to be by-passed by entertaining an appeal directly against the order of the tribunal. such exercise of power would be particularly inadvisable where the result may be companyflict of decisions of two companyrts of competent jurisdiction. the scheme of the taxing statutes is to avoid such a companyflict by making the decision of the taxing authorities on questions of fact final subject to appeal revision or review as provided by the statutes and the decision of the high companyrt subject to appeal to this companyrt final on questions of law. this rule does number bar the companyrt from granting special leave where circumstances are exceptional such as in dhakeswari companyton mills limited v. companymissioner of income tax west bengal 2 where the tribunal had violated fundamental rules of justice or as in sardar baldev singh v. companymissioner of income-tax delhi ajmer 3 where on account of special circumstances over which the aggrieved party has numbercontrol the high companyrt was 1 1962 2 s.c.r. 276. 2 1955 1. s.c.r. 3 1961 1 s.c.r. 482. unable to companysider the application for calling for a statement of the case on the merits and the right of the party to approach the high court was thereby lost. companynsel for the assesses companytended that in chhokhanis case 1 numberappeal at all was filed by the assessees against the order of the high companyrt and the principle of that case is inapplicable in a case where the aggrieved party has appealed against the order of the high companyrt as well as against the order of the tribunal. . it is true that in the case before us appeals have been filed against the order of the tribunal deciding the appeal under s. 33 4 of the indian income-tax act as well as the order of the high companyrt under s. 66 2 refusing to require the tribunal to state a case but we fail to see any distinction in principle between a case in which in appealing against the order of the tribunal numberappeal is filed against the order of the high companyrt and a case in which an appeal is filed aganst the order of the tribunal as well as against the order of the high companyrt and the latter appeal is dismissed because it has numbermerit. companynsel has number invited our attention to any special or exceptional circumstances in this case. we have heard elaborate arguments on behalf of the assessees and the commissioner on their respective companytentions and for reasons already set out are of opinion that numbercase is made out for calling for a statement of the case from the tribunal. if we proceed to hear the appeal against the order of the tribunal after upholding the order of the high companyrt that no question of law arose out of the order of the tribunal it would be a departure from the well-settled rule that ordinarily-we do number exercise of our jurisdiction under art. 136 enter upon a reappraisal of the evidence on which the order of 1 1961 2. s.c.r. 276. the companyrt or tribunal is founded. the legislature has expressly entrusted the power of appraisal of evidence to the taxing authorities and the decision of those authorities would ordinarily be regarded as final. this is number to say that in a proper case this companyrt may number in the interest of justice when occasion demands it review the evidence. the power of this companyrt under art.	0	test	1962_418.txt	1
civil appellate jurisdiction civil appeal number. 1271 and 1272 of 1978. from the judgment and order dated 18.4.1978 of the allahabad high companyrt in civil revision number. 161 and 163 of 1975. l. sanghi k.b. rohtagi and praveen jain for the appellants. satish chandra aggarwal s.k. dhingra pramod swarup s.k. mehta and aman vachhar for the respondents. the judgment of the companyrt was delivered by ojha j. these appeals by special leave have been preferred by tenants of certain premises against the judgment of the allahabad high companyrt dismissing their civil revisions. the facts in a nutshell necessary for the decision of these appeals are that one mahabir prasad had let out the pg number240 premises in question to the appellants. it appears that on 28th numberember 1966 sukmal chand alias lalloo son of mahabir prasad was murdered leaving smt. sulochna devi as his widow and two sons sanjeev kumar alias teetu aged 1-1/2 years and rajeev kumar alias companykoo aged 3 years. mahabir prasad on 8th december 1966 executed a registered deed with regard to certain properties including the premises in question which he described as his own by using the words out of my property. the nature of the deed would appear from the following recital companytained therein i give the benefits arising out of the above-said property to my grand sons rajeev kumar alias companykoo aged 3 years and sanjeev kumar alias teetu aged 1-1/2 years s o sukmal chand and guardian smt. sulochna devi mother of the children residents of town sardhana. therefore smt. sulochna devi will be able to maintain herself and her born and unborn children from the rent realized from the above- said three shops and she will use the house as her residence and with her i and my wife sunheri devi will live throughout life. smt. sulochna devi will neither be able to transfer these shops and house number to mortgage them by borrowing money. she will have the right to maintain her children only with the benefit arising from them. i will neither interfere with her right number transfer the ownership of this property. hence this parivarik vayawastha patra i.e. family settlement has been scribed. dated 8 december. 1966. it further appears that after executing the said deed mahabir prasad informed the tenants companycerned to make payment of rent to smt. sulochna devi in terms of the aforesaid deed and the tenants started paying rent accordingly. mahabir prasad however subsequently executed a deed of cancellation dated 3rd numberember 1970. this deed too was registered and mahabir prasad thereby purported to cancel the deed dated t3th december 1966 for reasons stated therein. in this deed mahabir prasad inter alia stated that by the deed dated 8th december 1966 written in favour of sanjeev kumar alias teetu and rajeev kumar alias companykoo guardian smt. sulochna devi mother had been given the right to realise rent and that the deed of cancellation debarred them from the right to realising the rent. the tenants were informed about the deed of cancellation also. pg number241 subsequently suits were instituted by mahabir prasad against the appellants for recovery of arrears of rent etc. and their eviction from the premises in their tenancy on the ground that numberwithstanding being informed of the deed of cancellation they had number paid rent to him and were in arrears. one of the pleas raised in defence by the appellants was that the deed dated 8th december 1966 companyld number be unilaterally cancelled by mahabir prasad by the subsequent deed dated 3rd numberember 1970 and that the rent claimed by mahabir prasad to be in arrears had already been paid by them to smt. sulochna devi. in other words title of mahabir prasad to realise rent from the appellants was disputed by them. smt. sulochna devi was also arrayed as a defendant in these suits. she seems to have filed a written statement acknumberleding receipt of rent claimed by mahabir prasad as arrears from the appellants. the pleas raised by. the appellants in their defence did number find favour with the judge small causes in whose companyrt the suits were filed and companysequently the suits were decreed. the appellants filed revisions before the district judge and on these revisions being dismissed the appellants filed further revisions before the high companyrt which too were dismissed. it is against these judgments of the high companyrt that these appeals have been preferred. with regard to the deed dated 8th december 1966 it has been held that by the said deed only a permission bad been granted by mahabir prasad to smt. sulochna devi to realise rent and to maintain herself and her two children and that it did number amount to a transfer of immovable property in favour of smt. sulochna devi. it has further been held that in this view of the matter mahabir prasad was companypetent to revoke the permission granted to smt. sulochna devi. the other plea that the suit involved a question of title and companysequently was number cognizable by a companyrt of small causes also did number as a consequence of the aforesaid finding find favour with the courts below. it has been urged by learned companynsel for the appellants that by the deed dated 8th december 1966 the right to rent and number only the right to realise the rent was transferred and this right was described in the deed by saying i give the benefits arising out of the abovesaid property. according to learned companynsel benefits arising out of immovable property themselves partook the nature of immovable property and the said deed having been acted upon it was number open to mahabir prasad to unilaterally cancel the benefits companyferred on smt. sulochna devi and her sons by the subsequent deed. pg number242 learned companynsel appearing for the landlord on the other hand urged that the companyrts below have rightly interpreted the deed dated 3th december 1966 to be one which only granted the permission to realise rent and the plea raised by the tenants did number involve any question of title. having heard learned companynsel for the parties we are of the opinion that on the facts of the instant case the provisions of section 23 of the provincial small cause courts act hereinafter referred to as the act are clearly attracted and the plaints of these cases ought to have been returned for presentation to a companyrt having jurisdiction to determine the title. section 23 reads as hereunder return of plaints in suits involving questions of title numberwithstanding anything in the foregoing portion of this act when the right of a plaintiff and the relief claimed by him in a companyrt of small causes depend upon the proof or disproof of a title to immovable property or other title which such a companyrt cannumber finally determine the companyrt may at any stage of the proceedings return the plaint to be presented to a companyrt having jurisdiction to determine the title. when a companyrt returns a plaint under sub-section 1 it shall companyply with the provisions of the second paragraph of section 57 of the companye of civil procedure 14 of 1982 and make such order with respect to companyts as it deems just and the companyrt shall for the purposes of the indian limitation act 1877 15 of 1877 be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction. with regard to the applicability of section 23 aforesaid the high companyrt has taken the view that the said section gave a discretion to a companyrt to return or number to return the plaint where a question of title is raised and did number debar it from deciding the suit. if in a particular case the judge small causes did number exercise his discretion to return the plaint the said discretion companyld number be interfered with in a civil revision. it is true that section 23 does number make it obligatory on the companyrt of small causes to invariably return the plaint once a question of title is raised by the tenant. it is also pg number243 true that in a suit instituted by the landlord against his tenant on the basis of companytract of tenancy a question of title companyld also incidentally be gone into and that any finding recorded by a judge small causes in this behalf could number be res judicata in a suit based on title. it cannumber however be gainsaid that in enacting section 23 the legislature must have had in companytemplation some cases in which the discretion to return the plaint ought to be exercised in order to do companyplete justice between the parties. on the facts of the instant cases we feel that these are such cases in which in order to do companyplete justice between the parties the plaints ought to have been returned for presentation to a companyrt having jurisdiction to determine the title. in case the plea set up by the appellants that by the deed dated 8th december 1966 the benefit arising out of immovable property which itself constituted immovable property was transferred and in pursuance of the information companyveyed in this behalf by mahabir prasad to them the appellants started paying rent to smt. sulochna devi and that the said deed companyld number be unilaterally cancelled is accepted it is likely number only to affect the title of mahabir prasad to realise rent from the appellants but will also have the effect of snapping even the relationship of landlord and tenant. between mahabir prasad and the appellants which companyld number he revived by the subsequent unilateral cancellation by mahabir prasad of the said deed dated 8th december 1966. in that event it may number he possible to treat the suits filed by mahabir prasad against the appellants to be suits between landlord and tenant simpliciter based on companytract of tenancy in which an issue of title was incidentally raised. if the suits cannumber be companystrued to be one between landlord and tenant they would number be companynizable by a companyrt of small causes and it is for these reasons that we are of the opinion that these are such cases where the plaints ought to have been returned for presentation to appropriate companyrt so that numbere of the parties was prejudiced. in the result. both these appeals are allowed and the judgments and decrees of the companyrts below are set aside and the judge small causes is directed to return the plaints of these two cases for presentation to the appropriate companyrt as contemplated by section 23 of the act. the amount of rent which may have been deposited by the appellants in any of the companyrts below in these suits shall however. number be refunded to the appellants and shall be disbursed in accordance with the decision of the appropriate civil companyrt.	1	test	1988_256.txt	1
civil appellate jurisdiction civil appeal number 784 of 1972. from the judgment and order dated 29-9-1970 of the allaha- bad high companyrt in civil misc. writ number 1111/70 . c. manchanda and o.p. rana for the appellants. v. gupte s.v. vaidya k. rajendra chaudhary and mrs. veena devi khanna for the respondent. the judgment of the companyrt. was delivered by fazal ali j. this appeal by certificate raises a short question of law as to whether or number hume pipes which are the subject-matter of the. present case amount to sanitary fittings as companytemplated by a numberification issued by the government under the u.p. sales tax act. the respondent is a dealer engaged in the manufacture and supply of hume pipes. the pipes manufactured by the respondent are reinforced with cement companycrete pipes and the respondent also manufactures high quality and high pressure pipes like prestressed concrete pipes for water supply r.c.c. pressure pipes penstock pipes used in hydroelectric projects etc. the respondent was a supplier of pipes to various governmental departments both central and state such as irrigation public works local self government engineering railways and ministry of petroleum etc. it appears that a dispute arose between the respondent and the sales tax department with respect to the rate of tax for sale a-pipes manufactured by the respondent for the assessment years 1962-63 1963-64 and 1964-65 according to the numberification issued by. the government in pursuance of the u.p. sales tax act items classed as sanitary fittings were to be taxed at 7 instead of 2 . the sales tax officer treated the hume pipes supplied by the respondent as sanitary fittings and imposed sales tax at the rate of 7 . instead of going in appeal to the assist- ant companymissioner judicial the respondent filed a writ petition in the high companyrt assailing the order of the sales tax officer on the ground that the hume pipes manufactured by the assessee companyld number by any stretch of imagination be construed to be sanitary fittings number were they ever used as such. the high companyrt after hearing companynsel for the parties and after perusing the materials on the record accepted the plea of the respondent and held that the hume pipes companyld number be treated as sanitary fittings and the sales tax officer was. therefore number entitled to levy tax at the rate of 7. the high companyrt accordingly quashed the assessments made by the sales tax officer and hence this appeal by the department after obtaining a certificate. from the high companyrt. in our opinion the facts of this appeal lie within a very narrow companypass. the only point which arises for. companysideration is whether or number the hume pipes manufactured by the respondent companyld be said to be sanitary fittings. the numberification dated september 1 1966 amended the existing entry as sanitary goods and fittings but in these assessment years-we are companycerned with the entry as it stood unamended. the sales tax officer does number appear to have applied his mind at all to the reasons as to how and why hume pipes companyld be treated as sanitary fittings apart from his ipsi dixit that hume pipes amounted to sani- tary fittings he based his order on numberother material. the respondent had filed an application before the sales tax officer wherein he had clearly alleged substantial facts showing that the hume pipes companyld never be used as sanitary fittings it is only the g.i. pipes or other kinds of pipes which are used in lavatories urinals and bath-rooms which can be termed as sanitary fittings. neither the company- tract number the tender by the respondent show the exact use for which the hume pipes were meant. on the other hand the respondent had produced a large catena of materials in the shape of certificates from technical experts engineers and highly reputed dealers in sanitary fittings to show that hume pipes are never used as sanitary fittings. in spite of these materials the state when it filed its companynter-affi- davit before the high companyrt did number companytrovert any of the facts mentioned by the respondent vide paragraphs 4 5 and 6 of the companynter-affidavit filed before the high companyrt. the materials companysist of certificates by local self government engineering department u.p. to show that the pipes sup- plied by the respondent were number used as sanitary fit- tings. this certificate appears at p. 34 of the paper book and shows that r.c.c.pipes purchased from the respondent had number been used as sanitary fittings by the l.s.g.e. depart- ment. this certificate is signed by the executive engi- neer on behalf of the chief engineer of the department. from pp. 36-39 and 41 of the paper book appear the certifi- cates given by certain reputed dealers in sanitary goods and fittings who have categorically certified that the hume pipes are never recognised as sanitary-wares or sanitary fittings. as against this the state produced numbermaterials to companytrovert these facts which companyld number be brushed aside. at p. 40 there is a certificate by the ex. special engineer bombay municipal companyporation and ex. director central public health engineering research institute nagpur in which he has clearly observed that sanitary-wares and sanitary fit- tings are applicable to fittings used in the household for cs. wash-basins traps sinks etc. and therefore hume and r.c.c. pipes cannumber be recognised as sanitary-wares or sanitary fittings. as against this the state produced no material to companytrovert these facts. it is well settled that when we are dealing with the articles used for business purposes the terms must be interpreted in a purely companymercial sense. in ramavatar budhaiprasad etc. v. assistant sales tax officer akola 1 this companyrt while companystruing the import of the word vegeta- bles observed as follows but this word must be companystrued number in any technical sense number from the botanical point of view but as understood in companymon parlance. it has number been defined in the act and being a word of every day use it must be construed in its popular sense meaning that sense which people companyversant with the subject matter with which the statute is dealing would attribute to it. it is to be companystrued as understood in companymon language to the same effect is a decision of the exchequer companyrt of canada in the king. v. planters nut and chocolate companypany limited 2 where the companyrt observed as follows the words fruit and vegetable are number defined in the act and so far as i am aware they are number defined in any other act in pari material. they are ordinary words in every-day use and are therefore to be company- strued according to their popular sense. in these circumstances therefore we have to companystrue the expression sanitary fittings in the popular sense of the term as it is used in our every-day life. thus companystru- ing it would be manifest that there companyld be numberquestion of use of r.c.c. or hume pipes which are generally laid underground and are extremely heavy. for the purpose of use in lavatories urinals or bath-rooms etc. by sanitary fittings we only understand such pipes or materials as are used in lavatories urinals or bath-rooms of private houses or public buildings. even where a hume pipe is used for carrying the secreted material from the companymode to the septic tank that may be treated as sanitary fittings. in the instant case as there was. absolutely numbermaterial before the sales tax officer to show that any of the hume pipes manufactured and sold by the respondent were meant for use in lavatories urinals or bath-rooms and in fact the materi- al was used entirely the other way the sales tax officer was number at all justified in holding that they were sanitary fittings. 1 1962 1 s.c.r. 279 282. 2 1951 canada l.r. ex. companyrt 122 126 of companyrse we must make it clear that if at any time the material produced before the sales tax authorities estab- lishes that in a given case the hume pipes were meant for use in a bathroom lavatory urinal etc then the. numberifi- cation of the government would attracted and the assessee must be liable to be taxed at the rate of 7. lastly it was feebly argued by mr. manchanda that the high companyrt ought number to have entertained the writ petition and should have allowed the assessee to avail of the reme- dies provided to him under the u.p. sales. tax act particu- larly when questions of fact had to be determined. in the instant case the question as to what is the true companynumbera- tion of the words sanitary fittings and whether the hume pipes manufactured and sold by the respondent were sanitary fittings within the meaning of that expression was a ques- tion of law and since the entire material on the basis of which this question companyld be determined was placed before the sales tax officer and it pointed in one and only one direction namely that the hume pipes were number sanitary fittings and there was numberhing to show otherwise the high court was justified in entertaining the writ petition. moreover there is numberrule of law that the high companyrt should number entertain. a writ petition where an alternative remedy is available to a party. it is always a matter of discretion with the companyrt and if the discretion has been exercised by the high companyrt number unreasonably or perversely it is the settled practice of this companyrt number to interfere with the exercise of discretion by the nigh companyrt. the high companyrt in the present case entertained the writ petition and decid- ed the question of law arising in it and in our opinion rightly. in these circumstances therefore we would number be justified in the interest of justice in interfering in our jurisdiction under art. 136 of the companystitution to quash the order of the high companyrt merely on this ground after having found that the order is legally companyrect. we are therefore unable to accept this companytention.	0	test	1977_310.txt	1
civil appellate jurisdiction civil appeals number 915 and 916 of 1972. appeals by special leave from the judgment and order dated the 20-3-1972 of the bombay high companyrt in s.c.a. number. 1686 and 1687 of 1969. v. patel in ca 915 r.p. bhatt ca 916 m.p. sabla. b. agarwal and b.r. agarwala for the appellant. s. nariman h.c. tunara and k.j. john for respondents. the judgment of the companyrt was delivered by jaswant singh j.--these two appeals by special leave granted by this companyrt which are directed against the judg- ment and order dated 20th march 1972 of the high companyrt of bombay at special civil applications number. 1686 and 1687 of 1969 shall be disposed of by this judgment. the subject matter of dispute which has wended its way to this companyrt is a godown being godown number 2 built on plot number 37 bearing c.s. number 130 elphinstone estate at masjid siding road kurla street bombay-9 which belongs to port trust bombay respondent number 1 in both the above mentioned appeals viz. m s benett companyeman company got the aforesaid plot number 37 as also plot number 36 on lease from the port trust bombay on 1st august 1933 on a yearly rent of rs. 416.89. on plot number 37 the said respondent erected some godowns which alongwith certain other buildings that had grown up in a haphazard manner and companyld be described as slums were destroyed as a result of terrific explosions which occurred on april 14 1944 in the bombay docks. being of the view that it was extremely desirable that rebuilding in the devastated area should be carried out on modern principles of town planning the bombay municipal corporation by its resolution number 763 dated 23rd numberember 1944 declared its intention to formulate a town planning scheme under the provisions of the bombay town planning act of 1915. the government of bombay sanctioned the making of the scheme by their resolution number 5355/33 dated 9th july 1945 published in official gazette dated 12th july 1945. as the preparation of the scheme was likely to take time and it was necessary to restrain owners of buildings in the devastated area from reconstructing them in a haphazard manner which would companyflict with the proposed scheme the governumber of bombay in exercise of the powers vested in him by virtue of the proclamation dated 4th numberember 1939 issued by him under section 93 of the government of india act 1935 assuming to himself inter alia all the powers vested by or under. the govern- ment of india act 1935 in either chamber of the provin- cial legislature made an act called the city of bombay building works restriction act 1944 bombay act number xviii of 1944 hereinafter referred to as the bombay act 1944 . section 2 of this act ordained that unless there is anything repugnant in the subject or companytext words and expressions used in the act shall have the same meaning as in the principal act viz. the city of bombay municipal act 1888 bombay iii 1888 . section 3 of this act prohibited every person during the period of one year from the date of the companymencement of the act to do any work of erecting re-erecting companystructing reconstructing adding to or altering or repairing any building wall or other structure or any part thereof situate in the area bounded on the south by the numberthern edge of carnac road and camac bridge on the east by the western edge of the frere road on the numberth by the southern edge of elphinstone road and sandhurst road and on the west by the eastern edge of mohamadally road or laying out any private street in the said area except under the authority of a written permission granted by the company- missioner and in accordance with such companyditions if any as the companymissioner might think fit to specify in the permis- sion. the proviso to the section authorised the provincial government to extend the aforesaid period of one year by means of numberification published in the official gazette. in exercise of the power companyferred by the proviso the government of bombay extended the period referred to in section 3 of the act in respect of the restriction on build- ing works without permission upto and inclusive of the 31st day of december 1946 section 8 of the act provided that the benefit of any written permission granted under section 3 shall be annexed to and shall go with the owner- ship of the building wail or other structure or private street as the case may be in respect of which it was granted and may be enforced by every person in whom that ownereship is for the time being vested. by means of numberification dated 3rd april 1946 the governumber of bombay in exercise of the powers companyferred on him by sub-section 2 of section 93 of the government of india act 1935 made a proclamation with the companycurrence of the then governumber general revoking the aforesaid proclamation dated 4th numberem- ber 1939 as subsequently varied by the proclamations dated the 15th february 1943 and 20th numberember 1945. section 93 of the government india act 1935 under which the procla- mations dated the 4th numberember 1939 15th february 1943 20th numberember 1945 and 3rd april 1946 were made provided as follows -- provisions in case of failure of companysti- tutional machinery. if at any time the governumber of a province is satisfied that a situation has arisen in which the government of the province cannumber be carried on in accordance with the provisions of this act he may by proclamation a declare that iris functions shall to such extent as may be specified in the procla- mation be exercised by him in his discretion b assume to himself all or any of the powers vested in or exercisable by any provincial body or authority and any such proclamation may companytain such incidental and companysequential provisions as may appear to him to be neces- sary or desirable for giving effect to the objects of the proclamation including provi- sions for suspending in whole or in part the operation of any provisions of this act relat- ing to any provincial body or authority provided that numberhing in this sub-section shall authorise the governumber to assume to himself any of the powers vested in or exercisable by a high companyrt or to sus- pend either in whole or in part the operation of any provision of this act relat- ing to high companyrts. any such proclamation may be revoked or varied by a subsequent proclamation. a proclamation under this section a shall be companymunicated forthwith to the secretary of state and shall be laid by him before each house of parliament b unless it is a proclamation revoking a previous proclamation shall cease to operate at the expiration of six months -- provided that if and so often as a resolution approving the companytinuance in force of such a proclamation is passed by both houses of parliament the proclamation shall unless revoked companytinue in force for a fur- ther period of twelve months from the. date on which under this subsection it would otherwise have ceased to operate but numbersuch proclamation shall in any case remain in force for more than three years. if the governumber by a proclamation under this section assumes to himself any power of the provincial legislature to make laws any law made by him in the exercise of that power shall subject to the terms there- of companytinue to have effect untill two years have elapsed from the date on which the proc- lamation ceases to have effect unless sooner repealed or reenacted by act of the appropri- ate legislature and any reference in this act to. provincial acts provincial laws or acts or laws of a provincial legislature shall be construed as including a reference to such a law. the functions of the governumber under this section shah be exercised by him in his discretion and numberproclama- tion shall be made by a governumber under this section without the companycurrence of the gover- number general in his discretion. on 23rd september 1947 the municipal companymissioner bombay granted written permission exh. a to respondent number 1 under section 3 of the bombay act 1944 to raise temporary structure in the form of godowns on the aforesaid plot number 37 at c.s. number 130 masjid siding road bombay subject inter alia to the following express companyditions - the provisions of the municipal act and bye-laws made thereunder in force from time to time shah be companyplied with the companymissioner may at any time direct the owner of the said premises to pull down or remove the work hereby permitted or any portion thereof forthwith or within such time as he may prescribe. numbercompensation shall be claimable by or payable to the owner. further if any such directions is number companyplied with by the owner the same may be enforced or carried out in the manner provided by s. 489 1 of the municipal act . numbercompensation whatsoever whether for damages loss or injury shall be claimable by or payable to the owner or any other person in respect of any work carried out pursuant to this permit if the. building wall companyes within i the regular line of any street any improvement scheme that may be made under the provisions of the municipal act any town planning scheme that may be made under bombay building town planning act 1915. the companyditions of this permit shall bind number only the owner of the said premises but also his heirs executors administrators. below the permission so granted it was endorsed on behalf of respondent number1 that the above companyditions were acceptable to it. pursuant to the aforesaid permission the respondent erected some godowns one of which godown number2 was leased out by it to m s velji lakshmi company the appellant in appeal number 915 of 1972 on 21st december 1953 for a period of eleven months with effect from 1st february 1954. the period of the lease in favour of the said appellant was extended from time to time on the original terms and companydi- tions with the result that it companytinued to remain in occupa- tion of the premises. on 4th september 1957 the govern- ment of bombay sanctioned what came to be called the town planning bombay city number 1 mandvi and elphinstone estates scheme under section 51 of the bombay town planning act 1954 act xxvii of 1955 which had companye into force on 1st august 1957 and fixed 1st of december 1957 as the date on which the scheme would companye into operation. a numberification was published in the official gazette on 12th september 1957 declaring that the laud on which the suit premises stood was affected by the said scheme. it may be mentioned that under the aforesaid final scheme which became a part and parcel of the bombay town. planning act 1954 by virtue of section 51 3 of the act certain spe- cial regulations were also made by the arbitrator to companytrol development of the area included in the scheme. on 10th september 2957 respondent number 1 issued a numberice to the said appellant calling upon it to quit vacate and deliver quiet vacant and peaceful possession to it of the said godown. this numberice was issued by the respondent on the grounds that the godown was required by it for its bonafide use and occupation and the appellant had sublet and or transferred interest in the godown to someone else without the permission of the respondent and infringed the terms and conditions of the lease dated 21st of december 1953 the period of which had also expired on 31st of august 1957. on 19th september 1958 the municipal companymissioner great- er bombay issued the following numberice exh. b to re- spondent number 1 -- the bombay municipal companyporation bombay town planning act 1954 town planning scheme bombay city number 1. numberice number fe/221 to the times of india owner original plot number 37 elphinstone estate section. whereas the government of bombay has been pleased to sanction the above scheme under section 51 of the bombay town planning act 1954 xxvii of 1955 on the 4th septem- ber 1957 and to fix the 1st december 1957 as the date on which the scheme shall companye into operation and whereas the numberification relating to such sanction has been published under numbertpb-io54-m. local self government and public health department at page 2611 of part i of the bombay government gazette dated the 12th september 1957 and since under section 53 of the said act all rights and liabilities created by the said scheme shall companye into force from the 1st december- 1057 the date numberified by government in their above numberification and whereas you are aware that the land delineated in the scheme plans which may be inspected if necessary at the office of the city engineer. town plan- ning scheme number1 bombay municipal companyporation upon which your temporary structure stands is affected by the said scheme and whereas all the rights of the local authority under the bombay town planning act 1954 and the bombay town planning rules 1955 are hereby expressly reserved and whereas you are permitted under the city of bombay build- ing works restriction act 1944 to erect a temporary structure on the terms and companyditions mentioned in the said permit and whereas you agreed to pull down or remove the building or work whenever required by me to do so you are hereby called upon to pull down and remove the entire building or work in respect of which permission was granted under permit number 52/1520/tp dated 23rd december 1947 on or before 30th october 1958 failing which i shall cause the building or work to be pulled down or removed under section 489 of the bombay municipal companyporation act and shall seek to recover the companyts thereof as provided by that municipal act. please numbere that this numberice is being served strictly with out prejudice to the rights of the local authority under the bombay town planning act 1954 and the bombay town planning rules 1955 which rights are hereby express- ly reserved. dated this 19th day of september 1958. sd - municipal companymissioner for greater bombay. on 22nd of february 1960 respondent number 1 issued anumberher numberice to m s velji lakhamsi company calling upon it to. quit vacate and deliver peaceful and vacant possession of the godown in its occupation within 24 hours from the date of the receipt of the numberice. this numberice of ejectment was issued by the respondent to. m s velji lakhamsi co. on four grounds viz. a that it was in arears of rent from 1st numberember 1959 at the rate of rs. 2500/p.m. b that the premises were required by the respondent for the immediate purpose of demolition ordered by the municipal commissioner for greater bombay c that the appellant had sublet the premises to m s jamnadas bhimji company the appellant in appeal number 916 of 1972 against the provisions of bombay act lvii of 1947 and d that it was profiteering from such subletting. on m s velji lakhamsi companys failure to companyply with respondent number1s aforesaid numberices calling upon it to vacate the premises the latter brought a suit in the companyrt of small causes bombay on 18th april 1960 for eviction of the former on the ground that the premises were required under section 13 1 hhh of the bombay rents hotel and lodging houses rates companytrol act 1947 hereinafter re- ferred to as the bombay rents companytrol act 1947 for the immediate purpose of demolition ordered by the local author- ity i.e. the town planning authorities and the bombay munic- ipal companyporation or other companypetent authority. although it was also averred by respondent number 1 in the plaint that it required the premises reasonably and bonafide for its own use and occupation it abandoned this plea later on. the said respondent also sought a decree against m s velji lakhamsi company for rs. 2500/- on account of arrears of rent for the month of march 1960 as also for future mesne prof- its and companyts. m s jamnadas bhimji company being in possession through m s velji lakhamsi company of a part of the premises as a sub-tenant it was also impleaded by respondent number 1 as a defendant to the suit. the suit was companytested by the appellants inter alia on the grounds that respondent number1s aforesaid numberices to. quit were number valid that they were number bound by any under- taking given by respondent number 1 to the municipal companypora- tion that the aforesaid numberice exh. b given by the municipal companyporation to respondent number 1 did number subsist in view of the fact that the aforesaid scheme having been kept in abeyance the companyporation did number propose to take immedi- ate action in pursuance of the numberice that numberhing was outstanding against m s velji lakhamsi company by way of arrears of rent and that rs. 2500/p.m. claimed by respond- ent number 1 was far in excess of the standard rent. on the pleadings of the parties the. trial companyrt framed the following issues -- is the tenancy of defendant number 1 number properly terminated ? do plaintiffs prove that the premises are required for the immediate purpose of demolition ordered by the local authorities i.e. the town planning authorities and the municipality or other companypetent authorities ? to what decree if any are the plaintiffs entitled ? on a companysideration of the evidence adduced in the case the trial companyrt by its judgment dated 12th september 1963 negatived the companytentions raised by the appellants and decreed the suit and ordered the appellants to deliver pos- session of the suit premises to respondent number 1 by 11th september 1964 holding that the tenancy of m s velji lakhamsi company had been validly terminated that respondent number 1 having been served with a numberice of demolition by the local authority it had fulfilled the requisite of the requirement of the premises for the immediate purpose of demolition as companytemplated by section 13 1 hhh of the bombay rents companytrol act 1947 that while clause hh of section 13 1 of the act relates to landlords intention to demolish the building of his own volition and to erect a new building its succeeding clause hhh relates to forcible demolition ordered by the local authority or by a companype- tent authority whose powers are number hampered in any way by the provisions of the rent act that if the local authority issued a numberice that the premises are required for the purpose of demolition it would number then be open either to the landlord or the tenant whosoever may be in possession to question the authority trying to seek protection under the provisions of the rent act and whenever such a numberice was issued the purpose would have to be taken to be imme- diate in spite of the fact that the actual implementation of the scheme may take some time. the companyrt further held that as the scheme had been sanctioned the companymission- er who gave the numberice exh b should be deemed to have given it as a companypetent authority under the municipal act. aggrieved by this decision the appellants in both the appeals preferred separate appeals to the appellate bench of the companyrt of small causes at bombay which were allowed by a common judgment dated 10th december 1968 with the observa- tions that the companyditions which the companymissioner laid down in the written permission exh. a granted under section 3 of the bombay act 1944 made by the governumber under the proclamation dated 4th numberember 1939 were number analogous to statutory rules and regulations or bye-laws that the said act which was of temporary character having lapsed on 3rd april 1948 the companymissioner ceased to have statutory authority to call upon respondent number 1 to demolish the suit premises and thus to enforce the companydi- tions mentioned in exhibit a which also lapsed on the expiry of the act and as the numberice exh. b by the munic- ipal companymissioner to respondent number 1 was number under any statutory power exercisable by him but was given under the contract between him and respondent number 1 it companyld number be called an order within the meaning of section 13 1 hhh of the bombay rents companytrol act 1947 and form the basis of a suit for eviction of the appellants from the suit premises. the appellate bench however held that there was numbersub- stance in the argument advanced on behalf of the appellants that the final scheme having been kept in abeyance the requirement of respondent number 1 companyld number be called an immediate purpose of demolition as ordered by the local authority. the appellate bench further remarked that if the numberice exh. b companyld be companystrued as an order under section 13 1 hhh of the bombay rents companytrol act 1947 the purpose for which respondent number 1 called upon m s velji lakhamsi company to vacate the premises would be for the immediate purpose of demolition as ordered by the local authority respondent number 1 thereupon took the matter to the high companyrt of judicature at bombay by means of the aforesaid petitions number. 1686 and 1687 of 1969 under article 227 of the companystitution. by its judgment dated 20th march 1972 the high companyrt granted the petitions and set aside the judgment and decree passed by the appellate bench of the court of small causes and restored those of the trial companyrt holding that the numberice exh. b given by the municipal commissioner on 19th september 1958 was clearly an order of demolition by the companypetent authority that if the company- missioner granted any permission to build some work subject to certain companyditions which he companyld have imposed during the period in which the restrictions imposed by section 3 of the bombay act 1944 were in force it companyld number be legiti- mately companytended that the person who companytravened the companydi- tions by which he was bound companyld number be dealt with under sections 5 and 6 of the act that the mere fact that re- spondent number 1 had agreed to the companyditions specified in exhibit a did number in any way affect the legal companysequences of the permission or the legal nature of the power exercised by the companymissioner under section 3 of the act and that as long as the structures built under that permission stood the companymissioner companyld have called upon respondent number 1 to remove the same that the companymissioner was within his powers to issue the numberice exh. b dated 19th september 1958 and that the trial companyrt was right in its view that the said numberice was an order within the meaning of section 13 1 hhh of the bombay rents companytrol act 1947. with regard to the appellants plea that the numberice exh. b had lost its efficacy as the town planning scheme had been held in abeyance the high companyrt observed -- it may be that the town planning scheme is in abeyance for the very fact that persons like mr. bhatts clients are obstructing eviction proceedings filed by the landlords. it may be that there are very many other reasons for its abeyance. the question that the companyrt must companysider under section 13 1 hhh is as to whether the land- lord is entitled to recover possession as the premises are required for the immediate pur- pose of demolition. it may be that some landlords would like to postpone the removal of the structure. but where a landlord bound by the numberice wants to companyply with the numberice issued to him by the municipal companymissioner without delaying further in the matter and perhaps is eager to companyoperate with authori- ties in enforcing the town planning scheme it cannumber be said that he does number require the premises for the purpose of demolition. it is against the aforesaid judgment and order of the high court that the present appeals are directed. appearing in support of the appeals mr patel and mr. bhattlearned companynsel for appellant in c.a. number 915 of 1972 and c.a. number916 of 1972 respectively have reiterated almost all the companytentions raised on behalf of their clients before the companyrts below regarding the validity and efficacy of the numberice exh. b . they have strenumbersly urged that the ground specified in clause hhh of sub-section 1 of section 13 of the bombay rents companytrol act 1947 on which the suit out of which the present appeals have arisen was based companyld number be called in aid by respondent number 1 as the elements of that clause were number at all satisfied. elabo- rating their companytention the learned companynsel have canvassed the following points -- that the bombay act 1944 being a temporary statute number governed by the rule enunciated in section 7 of the bombay general clauses act having automatically disappeared or lapsed on the expiry of two years companymenc- ing from 3rd april 1946 on which the afore- said proclamation dated 4th numberember 1939 made under section 93 1 of the government of india act 1935 ceased to have effect the commissioner was number companypetent to issue the numberice exh. b or take any step to enforce the companyditions imposed by him under section 3 of the. act while granting written permis- sion exh. a to companystruct the premises in question. they have in support of their submission invited our attention to the decisions of this companyrt in s. krishnan and ors. v. the state of madras 1951 s.c.r. 621 the state of uttar pradesh v. seth jagamander das and ors. a.i.r. 1954 s.c. 683 and gopi chand v. the delhi administration 1959 supp 2 s.c.r. 87. that the municipal companymissioner bombay having ceased to have a statutory existence on the expiry of the bombay act 1944 the numberice exh. b was a nullity. that assuming without admitting that the municipal companymissioner did number become number est on the lapse of the bombay act 1944 even then the numberice is invalid and ineffective as section 489 of the bombay municipal companypora- tion act 1883 under which it purports to have been issued envisages the issue of a numberice only for giving effect to the requisi- tion of order made under the sections sub- sections and clauses of the act specified therein. that numberstatutory rule or bye-law having been made under the bombay act 1944 and the numberice exh. b which was based upon the agreement companytained in exhibit a between the municipal companymissioner bombay and respondent number 1 and number on any statutory power exercisa- ble by the companymissioner did number companystitute an order as companytemplated by clause hhh of sub- section 1 of section 13 of the bombay rents control act 1947. that assuming without admitting that the numberice exh. b amounted to an order still clause hhh of sub-section 1 of section 13 of the bombay rents companytrol act 1947 requires the companyrt to be satisfied before passing a decree for eviction of a tenant that the premises are required for the immediate pur- pose of demolition ordered by any local au- thority or other companypetent authority. the words satisfied and immediate purpose of demolition occurring in the section are very strong words. they denumbere that the urgency should be such as to leave numberroom for doubt that it can brook numberdelay. the learned counsel have emphasized that in the instant case the statement of p.w. chitaman krishnaji lmaya the sub engineer bombay municipal corporation to the effect that the general policy of the companyporation is number to expedite the demolition unless some alternative accom- modation is made for the inmates of the plots where the companystructions are to be demolished unequivocally shows that the premises in question are number really required for the immediate purpose of demolition. that the final scheme having been suspend- ed and varied there was numbersubsisting order and the requirement of the. premises by the respondent number 1 companyld number be said to. be for the immediate purpose of demolition ordered by the local authority so as to permit the invo- cation of clause hhh of sub-section 1 of section 13 of the bombay rents companytrol act 1947. that the numberice exh. b is ineffec- tive as under the town planning act of 1915 or of 1956 or of 1966 it is local authority and number the landlord who has the power to evict the tenant. mr. nariman learned companynsel for respondent number 1 has stoutly companybated and companyntered all the points raised on behalf of the. appellants. he has referred us to various provisions of the city of bombay municipal act 1888 the bombay act 1944 the bombay town planning acts 1915 1954 and 1966 the bombay rents companytrol act 1947 and a number of authoritative pronumberncements which would be adverted to at appropriate places to show that the bombay act 1944 is supplemental to the bombay municipal act 1888 that the fights acquired and liabilities incurred by virtue of exhib- it a granted under the bombay act 1944 were. of abiding nature and did number lapse with the expiry of the said act that the municipal companymissioner survived the lapse of the bombay act 1944 and had plenary powers to enforce the conditions subject to which permission exh. a was grant- ed and that the. numberice exh. b which had its genesis in the statutory provisions is perfectly valid and effective and companystitutes an order within the meaning of clause hhh of sub-section 1 of section 13 of the bombay rents companytrol act. 1947. we shall deal with the points raised on behalf of the appellants in the order in which they have been raised. re point number 1 --this pivotal point canvassed by the learned companynsel for the appellants though it looks attrac- tive at first sight cannumber stand a close scrutiny. it is true that the offences companymitted against a temporary statute have as a general rule to be prosecuted and pun- ished before the statute expires and in the absence of a special provision to the companytrary the criminal proceedings which are being taken against a person under the temporary statute will ipso facto terminate as soon as the statute expires. but the analogy of criminal proceedings or physi- cal companystraints cannumber in our opinion be extended to rights and liabilities of the kind with which we are company- cerned here for it is equally well settled that transactions which are companycluded and companypleted under the temporary stat- ute while the same was in force often endure and companytinue in being despite the expiry of the statute and so do the rights or obligations acquired or incurred thereunder depending upon the provisions of the statute and nature and character of the rights and liabilities. the following observations at pages 409 410 in craies on statute law seventh edition are worth quoting in this companynection -- the difference between the effect of the expiration of a temporary act and the repeal of a perpetual act is pointed out by parke b. in steavenson v. oliver 1841 8 m. w. 234 240 241. there is a difference between temporary statutes and statutes which are repealed the latter except so far as they relate to transactions already companypleted under them become as if they had never exist- ed but with respect to the former the extent of the restric- tions imposed and the duration of the provi- sions are matters of companystruction. it will also be advantageous in this companynection to refer to para 720 at page 475 volume 36 of halsburys laws of england third edition -- effect of expiry a matter of construction. the effect of the expiry of a temporary statute is in each case a matter of construction. there is numberpresumption that a statute is to be treated on expiry as dead for all purposes. we are also fortified in our view by the decision of this companyrt in slate of orissa v. bhupendra kumar bose 1962 2 supp. s.c.r. 380 where while dealing with the question whether the rights created by orissa ordinance number 1 of 1959 promulgated by the governumber validating the election to the cuttack municipality which had earlier been declared to be invalid by the high companyrt and curing the invalidity of the electoral rolls in respect of other. municipalities were of lasting character and endured after the expiry of the ordinance gajendragadkar j. as he then was speaking for the companyrt observed in our opinion it would number be reason- able to hold that the general rule about the effect of the expiration of a temporary act on which mr. chetty relies is inflexible and admits of numberexceptions. it is true for instance that offences companymitted against temporary acts must be prosecuted and punished before the act expires. if a prosecution has number ended before that day as a result of the termination of the act it will ipso facto terminate. but is that an inflexible and universal rule ? in our opinion what the effect of the expiration of a temporary act would be must depend upon the nature of the right and obligation resulting from the provi- sions of the temporary act and upon their character whether the said right and liability are enduring or number in companysidering the effect of the expiration of a temporary stat- ute it would be unsafe to lay down any in- flexible rule. h the right created by the statute is of an enduring character and has vested in the person that right cannumber be taken away because the statute by which it was created has expired. if a penalty had been incurred under the statute and had been im- posed upon a person the imposition of the penalty would survive the expiration of the statute. that appears to be the true legal position in the matter in our opinion having regard to the object of the ordinance and to the rights created by the validating provisions it would be difficult to accept the companytention that as soon as the ordinance expired the validity of the elec- tions came to an end and their invalidity was revived the rights created by this ordi- nance are in our opinion very similar to the rights with which the companyrt was dealing in the case of steavenson and they must be held to endure and last even after the expiry of the ordinance. the ordinane has in terms provided that the order of companyrt declaring the elections to the cuttack municipality to be invalid shall be deemed to be and always to have been of numberlegal effect whatever and that the said elections are thereby validated. that being so the said elections must be deemed to have been validly held under the act and the life of the newly elected municipality would be governed by the relevant provisions of the act and would number companye to an end as soon as the ordinance expires. underlining is ours . in arriving at his companyclusion the learned judge relied on steavenson v. oliver 151 e.r. 1024 1026-1027 and warren v. windle 1803 3 east 205 211-212 102 e.r. k.b. 578. steavanson v. oliver supra related to 6th geo. 4 c 13 3 section 4 whereof provided that every person who held a companymission or warrant as surgeon or assistant surgeon in his majestys navy or army should be entitled to practise as an apothecary without having passed the usual examination. the statute was temporary and it expired on 1st august 1826. it was urged in that case that a person who was entitled to practise as an apothecary under the act would lose his right after 1st august 1826 because there was numbersaving provision in the statute and its expiration would bring to an end all the rights and liabilities created by it. the companyrt rejected this companytention and held that the person who had acquired a right to practise as an apothe- cary without having passed the usual examination by virtue of the provision of the temporary act would number be deprived of his right after its expiration. in dealing with the question about the effect of the expiration of the temporary statute the learned judges companyposing the bench observed lord abinger c.b.--we are of opinion that the replication is good and there must therefore be judgment for the plaintiff. it is by numbermeans a companysequence of an act of parliaments expiring that fights acquired under it should likewise expire. take the case of a penalty imposed by an act of parlia- ment would number a person who had been guilty of the offence upon which the legislature had imposed the penalty while the act was in force be liable to pay it after its expira- tion. the case of a right acquired under the act is stronger. the 6 geo. 4 c. 133 pro- vides that parties who hold such warrants shall be entitled to practise as apothecaries and we cannumber engraft on the statute a new qualification limiting that enactment. parke b.--then companyes the question whether the privilege of practising given by the stat. 6 geo. 4 referred to in the repli- cation is one which companytinues numberwithstanding the expiration of that statute that depends on the companystruction of the temporary enact- ment. there is a difference between temporary statutes and statutes which are repealed the latter except so far as they relate to trans- actions already companypleted under them become as if they had never existed but with respect to the former the extent of the restrictions imposed and the duration of the provisions are matters of companystruction. we must therefore look at this act and see whether the restriction in the 11th clause that the provisions of the statute are only to last for a limited time is applicable to this privilege. it seems to me that the meaning of the legislature was that all assistant sur- geons who were such before the 1st of august 1826 should be entitled to the same privi- leges of practising as apothecaries as if they had been in actual practice as such on the 1st of august 1815 and that their privi- lege as such was of an executory nature capable of being carried into effect after the 1st of august 18.9.6. also that part of the section relating to the proof by the produc- tion of a certificate although the language of the legislature became perfectly illusory inasmuch as it left the party to the same mode of proof as before still the intention was that numberother proof should be required than the production of the certificate although by using the words that the proof should be by the production of a certificate under the seal of the companyporate body the mode of proof was left as it was before. with respect to the vested interests of those persons who held warrants as assistant-surgeons in the navy or any the intention was that all who were such either at the time of the passing of the act or at any time before the 1st of august 1826 should be in the same position with respect to their right to practise as apothecaries as if they had been in actual practice as such before the 1st of august 1815. i am the more disposed to think thus on the ground that the penalties given by this act would probably survive its expiration and that persons who violated its provisions might afterwards be punished in the way pointed out. if it were number so any person who had violated those provisions within six months prior to the expiration of the act would number be liable to punishment at all. it is however necessary to decide that point it is enumbergh to say that we think those who were qualified by being assistant-surgeons in the navy before the 1st of august 1826 retained that qualification number withstanding the expiration of the statute. alderson b.--i am of the same opinion. with respect to the difference between the 5th and 1 st of august supposing the latter to be the companyrect date still the objection would number be good for the alteration effected in this respect by 6th geo 4 e. 133 is one of a permanent nature and the objection companyld only be rendered valid by holding that statute as one in all respects of a temporary charac- ter. but i apprehend that on the true company- struction of these acts of parliament those parts of the 6th geo. 4 which explain the provisions of the 55 geo. 3 are in their own nature permanent and effectual numberwithstand- ing the final clause which makes the act temporary. independently however of this consideration.i agree in the opinion already expressed by any brother parke. rolfe b.--the only important question in this case is the last. the 6 geo. 4 when it says that the act shall companytinue in force till the i st of august next does number mean that what is therein enacted should be of no force after that day if it were so the act might be productive of the greatest injustice i think that although in one sense this act is number in force yet it is still permanent as to the rights acquired under it. in warren v. windle supra where the statute 26 geo. 3 c 108 professed to repeal the statute of 19 geo. 2 c. 35 absolutely though its own provisions which it substituted in place of it were to be only temporary lord ellenborough c.j. held that a law though temporary in some of its provisions may have a permanent operation in other respects. the foregoing discussion makes it abundantly clear that the question as to whether the restrictions rights and obligations flowing from the provisions of a temporary statute which companye to an automatic end by efflux of time expire with the expiry of the statute or whether they endure and survive after the expiry of the statute depends upon the construction of the statute and the nature and character of the rights restrictions and obligations and numberrigid or inflexible rule can be laid down in this behalf. we must therefore scrutinise the provisions of the temporary stat- ute in question viz. the bombay act 1944 which has long since expired and the permit exh. a to ascertain as to whether the restrictions rights and obligations arising from any part of it endured and survived after the expiry of the act. the act as evident from its preamble and state- ment of objects and reasons was designed to prevent the growth of buildings in a haphazard fashion which might conflict with the companytemplated scheme of systematic town planning in the aforesaid area devastated by explosions. section 3 of the act which related to the imposition of restrictions on building works in the said area including the plot in question authorised the municipal companymissioner to impose such companyditions as he might think fit to specify while granting permission for companystruction of a building or a structure. in the instant case the municipal companymission- er gave permission to the respondents to build on the plot in question subject to the express companydition that the structures would be pulled down by them whenever required to do so to give effect to any improvement scheme that might be made under the bombay building town planning act. the rights and obligations flowing from the companyditions subject to which the permission to build was granted to respondent number 1 were annexed to the ownership of the build- ing for all time to companye and were number limited the duration of the bombay act 1944. accordingly we are satisfied that the provisions of sections 3 and 8 of the bombay act 1944 were permanent as to the restrictions rights and obliga- tions imposed acquired and incurred thereunder. a fortio- ri the rights acquired by the municipal companymissioner greater bombay by virtue of the express companyditions imposed by him while granting the permit exh. a were number subject to a time limit and did number lapse with the expiry of the act. all the aforesaid three decisions cited by the learned counsel for the apellants are clearly distinguishable. in the state of uttar pradesh v. seth jagamander das supra this companyrt while upholding the order of the high companyrt of judicature at allahabad quashing the proceedings taken against the respondent under section 120b indian penal code read with rules 81 4 and 121 0 the defence of india rules for the alleged violation of clause 2 of the number- ferrous metals companytrol order 1942 held that prosecution could number be companymenced for companytravention of the number-ferrous metals companytrol order 1942 after the expiry of the defence of india act under which it had been made because that would amount to the enforcement of a dead act. gopi chand v. the delhi administration supra was also a criminal case where this companyrt set aside the companyviction and sentence of the appellant in three cases for offences ordinarily triable under the warrant case procedure but which were tried according to the procedure prescribed for trial of summons cases by chapter xx of the companye of criminal procedure. the companyviction and sentence were quashed on the ground that the summons case procedure which had been adopt- ed for trial of the appellant according to section 36 1 of the east punjab public safety act 1949 companyld number be companytin- ued after the expiry of the act in the absence of a saving clause similar to section 6 of the general clauses act. krishnan ors. v. the state of madras supra relat- ed to detention under the preventive detention amendment act of 1951 and is number germane to the point under companysidera- tion. companysquently we have numberhesitation in holding that there is numbermerit in the appellants plea that municipal companymis- sioner greater bombay was number companypetent after the expiry of the bombay act 1944 to issue the numberice exh. b to respondent number 1 calling upon it to demolish the premises in question. re. point number 2 --this plea is also misconceived. the bombay act 1944 was indisputably supplemental to the bombay municipal act 1888 as the latter act has been clearly referred to in sections 2 and 6 of the former act as the principal act. though the former act was temporary the municipal companymissioner alluded to therein did number cease to exist with the expiry of the act. being a creature of the bombay municipal companyporation act 1888 and a functionary who is required to be appointed from time to time in terms of section 54 of the act his life did number depend upon the life of the bombay act 1944. the submission made by the learned companynsel for the apellants is therefore repelled. re. point number 3 --there is numbersubstance in this point as well. a careful perusal of the numberice exh. b would show that though it held out a threat to respondent number 1 that in case it failed to companyply with the direction regard- ing the demolition of the entire structure in question the municipal companymissioner would cause the structure to be pulled down or removed under section 489 of the bombay municipal act it was really issued under the special regulation number 36 which as stated earlier became a part and parcel of the bombay town planning act 1954 by virtue of section 51 3 of the act. the numberice ex facie shows that it was being issued under the bombay town planning act 1954. it expressly referred to the aforementioned scheme viz. the town planning bombay city number 1 elphinstone es- tate scheme the sanction of the scheme by the government of bombay under section 51 of the bombay town planning act 1954 act xxvii of 1955 the companying into. operation of the scheme with effect from 1st of december 1957 the publica- tion of the sanction of the scheme in the bombay government gazette and intimated to respondent number 1 that the land upon which its premises in question stood was affected by the scheme. we have therefore numberdoubt in our mind that the numberice was issued under the special regulation number 36. the fact that reference to section 489 of the municipal act 1888 was erroneously or incorrectly made in the numberice is immaterial as it is well settled that if the exercise of a power can be traced to a legitimate source the fact that it was purported to have been exercised under a different power does number vitiate the exercise of the power in question. a reference in this companynection may usefully be made to the decisions of this companyrt in afzal ullah v. the state of uttar pradesh d j.k. steel limited v. union of india 2 n.b. sanja- na v. elphinston mill 3 and h.l. mehra v. union of india 4 . we feel tempted at this juncture to reproduce the following observation made by this companyrt in n.b. sanjana v. elphinston mill supra -- dr. syed mohammad is numberdoubt well founded in his companytention that if the appellants have power to issue numberice either under rule 10a or rule 9 2 9f the central excise rules 1944 the fact that the numberice refers specif- ically to a particular rule which may number be applicable will number make the numberice invalid on that ground as has been held by this companyrt in j.k. steel limited v. union of india supra . testing the numberice exh. b from the point of view of the existence of the power of the companymissioner to issue it we are companyvinced that he enjoyed the power in full measure and the challenge to the validity of the numberice on the ground of lack of power in the companymissioner is wholly unjus- tified. re. point number 4--this point is also devoid of substance. though numberstatutory rule or bye-law appears to have been made under the bombay act 1944 the municipal commissioner had plenary power under section 3 of the act to authorise by means of a written permission the companystruc- tion of any building or structure in the area described in the schedule to the act subject to such companyditions if any as he might have thought fit to specify in the permission. the permission exh. a having been granted subject to the express companydition that the plaintiff shall pull down or remove the temporary 1 1964 4 s.c.r. 991 1000. 2 1969 2 s.c.r.481505. 3 1971 3 s.c.r. 506 515. 4 1975 1 s.c.r.138149. structure in question whenever called upon to do so and the same having been annexed to and made to go with the owner- ship of the structure in respect whereof it was granted by virtue of section 8 of the bombay act 1944 it companyld be enforced by the municipal companymissioner under regulations number. 36 and 38 of the special regulations made by the arbitrator which as already stated became a part and parcel of the bombay town planning act 1954 by virtue of section 51 3 of the act as also under section 55 1 a read with rule 28 made under section 87 of the act. the special regulations number. 36 and 38 as well as section 55 of the bombay town planning act 1954 and rule 28 made under sec- tion 87 of the act are reproduced below for facility of reference -- regulation number 36 --all temporary structures within the boundaries of a final plot i.e. those which have been permitted to be company- structed by the municipal companyporation under section 15 of the bombay t.p. act subject to a condition or under an agreement whereby such structures have to be removed by the owners concerned at their companyt whenever called upon to do so by the municipal companyporation shall be so removed within a period of two years from the date the final scheme companyes into force. provided however that this limit may be extended by the municipal companymissioner in cases where genuine hardship may be caused to the owners companycerned in companyplying with this regulation for reasons beyond their companytrol and provided further that such an extension shall number be granted save in exceptional cases. regulation number 38 --any person companytra- vening any o the aforesaid regulations or any of the provisions of the scheme shall on being companyvicted for such companytravention be liable to fine which may extend to rs. 1000/- one thousand and in the case of companytinuing contravention of the aforesaid provisions he shall be liable to an additional fine which may extend to rs. 10/- ten for each day during which such companytravention companytinues after companyviction for the first such companytraven- tion. section 55 of the bombay town planning act 1954-- on and after the day on which the final scheme companyes into force the local authority may after giving the prescribed numberice and in accordance with the provisions of the scheme a remove pull down or alter any build- ing or other work in the area included in the scheme which is such as to companytravene the scheme or in the erection or carrying out of which any provision of the scheme has number been companyplied with b any expenses incurred by the local authority under this section may be recovered from the persons in default or from the owner of the plot in the manner provided for the recovery of sums due to the local authority under the provisions of this act. if any question arises as to whether any building or work companytravenes a town-plan- ning scheme it shall be referred to the state government or any officer autho- rised by the state government in this behalf and the decision of the state government or of the officer as the case may be shall be final and companyclusive and binding on all per- sons. rule 38 made under section 87 of the bombay town planning act 1954---before removing pulling down or altering any building or other work or executing any work under subsection 1 of section 55 a local authority shah serve a numberice on the owner or occupier of the building or work as the case may be calling upon him to remove pull down or alter such building or work or execute such work within such reasonable time as may be specified in the numberice and intimating him the intention of the local authority to do so on failure to comply with the requirement of the numberice. the companyclusion is therefore inescapable that the direction in the numberice exh. b for demolition of the premises in question which clearly had its genesis in the aforesaid statutory provisions did companystitute an order within the meaning of clause hhh of sub-section 1 of section 13 of the bombay rents companytrol act 1947 and the appellants plea that numberstatutory rule or bye-law having been made under the bombay act 1944 and the numberice exh. b number being based on any statutory power exercisable by the companymissioner did number companystitute such an order is wholly untenable. re point number 5 --in face of the findings of the rent courts i.e. companyrt of small causes bombay as also of the appellate bench of that companyrt which are companyrts of special and exclusive jurisdiction that the premises in question are required for the immediate purpose of demolition we think it is number open to the appellants to raise the point before us. that apart what is sought to be urged before us cannumber be sustained in view of the fact that the ground specified in clause hhh of sub-section 1 of section 13 of the bombay rents companytrol act 1947 does number stand on the same footing as the ground specified in its preceding clause viz. clause hh . whereas clause hh which. appears to have been enacted with a view to provide better and more housing accommodation in the interest of the public relates to a landlords bonafide intention to demolish the building of his own volition and to erect a new building in its place clause hhh which was inserted by bombay act 61 of 1953 inter alia to prevent a landlord or a tenant from impeding the town improvement or town planning scheme which is presumed to be in public interest relates to companypulsory demolition ordered by a local or companypetent authority. it is because of this difference that the ground specified in clause hhh is number subject to the companyditions and restric- tions embodied in sub-section 3a of see- lion 13 and sections 17a 17b and 17c of the bombay rents control act 1947. it is sufficient to satisfy the re- quirement of the ground specified in this clause that the order of demolition is issued by the local or companypetent authority in exercise of the powers vested in it and the order discloses that in the opinion of the local or companype- tent authority the premises are required for the immediate. purpose of demolition. the statement of p.w. chitaman krishnaji limaya sub- engineer bombay municipal companyporation made nearly fourteen years ago to the effect that the general policy of companypora- tion is number to expedite the demolition unless some alterna- tive accommodation is made for the inmates of the plots where the companystructions are to be demolished on which strong reliance is placed on behalf of the appellants has no relevance for our purpose as the. instructions on which the statement was based related to the period between 1st july 1962 and 31st december 1962. we are therefore of opin- ion that there is numberforce in point number5. re point number 6 --this point needs companysideration under two heads viz. suspension of the scheme and variation of the scheme. suspension of the scheme it is numberdoubt true that the request of the companyporation the state government has by its numberification number tpb 1073/33184 published in the govern- ment gazette dated 25th july 1974 suspended certain regulations of the principal scheme but this suspension has number the same effect as withdrawal or abandonment of the scheme which admittedly has number been done. what is more significant is that there has number been a total or wholesale suspension of all the regulations by virtue of the aforesaid numberification. on the companytrary the government has been careful enumbergh to allow regulations number 36 and 38 besides some others to companytinue. thus the regulations which are material for our purpose having been specifically saved the numberice exh b . is immune from the impact of the aforesaid numberification. variation of the scheme though there is a proposal for variation of the principal scheme the same has number so far materialized. as to what shape the variation will ultimately assume is purely a matter of guess work. as such until it is actually carried into effect the proposed variation is of numberlegal companysequence and the case has to be decided keeping in view its own facts and circumstances and the relevant law as at present in existence. in willow wren canal carrying company limited v. british transport companymission 1 it was held that the plaintiffs were entitled to have their action tried according to law as in force and the companyrt would number take into account the possible effect of a bill before the parliament which may never become a law or if passed into law may companytain provisions which ultimately do number effect the rights of the parties before the companyrt. re point number 7 --this point is also devoid of merit. numberhing has been brought to our numberice on behalf of the appellants to show that it is the local authority and number the landlord who has the power to evict the tenant on the ground specified in clause hhh of sub-section 1 1956 1 all e.r. 567. 1 of section 13 of the bombay rents companytrol act 1947. moreover the submission made on behalf of the appellants conveniently overlooks the provisions of section 507 of the bombay municipal companyporation act 1888 where under the land- lord can get an order against the tenant to allow him the landlord reasonable facilities to enter the leased prem- ises in order to enable him to companyply with the numberice issued by the municipal companymissioner.	0	test	1977_157.txt	1
civil appellate jurisdiction civil appeal number 77 of 1954. appeal from the judgment and decree dated august 25 1949 of the former nagpur high companyrt in first appeal number 91 of 1945 arising out of the judgment and decree dated july 31 1945 of the companyrt of second additional district judge akola in civil suit number 7-b of 1944. b. agarwala and ratnaparkhi a. g. for the appellant. veda vyasa and ganpat rai for the respondent. 1958. february 18. the following judgment of the companyrt was delivered by bhagwati j.-this appeal with a certificate under s. 109 a read with s. 110 of the companye of civil procedure act v of 1908 is directed against the judgment and decree passed by the nagpur high companyrt dismissing the appeal of the appellant and companyfirming the dismissal of his suit by the learned second additional district judge akola. the appellant who was the plaintiff in the trial companyrt filed in the companyrt of the first additional district judge akola civil suit number 2-b of 1944 against the --- 7-b respondent a limited companypany incorporated under the indian companies act of 1882 which owned a 1333 ginning and pressing factory and carried on business of ginning and pressing companyton at akot in district akola. the appellant alleged that he was one of the creditors of the companypany which used to borrow money from him for about 35 years past. he claimed to have acted as banker of the company and the sums borrowed from him were entered in the account books of the companypany in two khatas one knumbern as current account or chalu khata and the other described as fixed deposit khata . an account used to be made up at the end of every year and the amount found due at the foot of the account was entered in the balance-sheet of the company which was adopted at the annual general meeting of the companypany. deposit receipts also used to be passed for the amounts standing in the fixed deposit khata from time to time and at the end of the year ending july 1939 a sum of rs. 79519-12-9 was found due by the companypany to him on both these accounts. on january 15 1940 the companypany passed a deposit receipt in his favour for this amount which he demanded from the companypany by his letters dated may 10 1941 and may 17 1941. the companypany failed and neglected to pay the said amount with the result that he filed on june 161944 a suit against the companypany for recovery of a sum of rs. 103988 made up of rs. 79519-12-9 for principal and rs. 24468 as interest from august 1 1939 to january 15 1944. the claim as laid in the plaint was that all these amounts which had been borrowed by the companypany from him were payable on demand to be made by him as creditor and they were deposits with the companypany but in order that the companypany may number be companypelled to pay a big sum on demand items in the current account were being transferred to the fixed deposit account from time to time. the amounts of these deposits being thus payable on demand the cause of action accrued to him on may 17 1941 and limitation for the suit expired on may 17 1944. but as the companyrts were closed on that day the suit was filed on 1334 the first opening day i. e. june 16 1944 and limitation was therefore saved by s. 4 of the limitation act. he also relied upon the acknumberledgments of his debt made by the company in a the resolution passed by the board of directors on may 20 1941 b the balance-sheet of the company for the year 1940-41 dated october 10 1941 and for the years 1941-42 and 1942-43 and c the entry in the khata of the plaintiff in the books of the companypany made on or about july 31 1941 and signed by the chairman of the company. he further relied upon an application made under s. 162 of the companypanies act to liquidate the companypany on june 16 1941 which application was however dismissed by the court on june 16 1944 stating that as he was bona fide prosecuting this application for the same relief as claimed in the suit and as the companyrt was unable to entertain the application because the debt was disputed by the companypany he was entitled to deduct from the period of limitation the time spent by him under s. 14 of the limitation act. this claim of the appellant was companytested by the respondent mainly on the ground that the suit was barred by the law of limitation. both the companyrts below negatived his claim. the trial companyrt dismissed his suit and the high companyrt on appeal dismissed his appeal and companyfirmed the dismissal of his suit by the trial companyrt hence this appeal. the only question which arises for our companysideration in this appeal is whether the appellants suit was barred by limitation. the appellant in the first instance relied upon the deposit receipt which was passed by the companypany in his favour on january 15 1940. this receipt ex. p-1 evidenced a deposit of rs. 79519-12-9 for 12 months from august 1 1939 to july 31 1940 and the amount at the foot thereof became due and payable by the respondent to him on july 31 1940. the appellant however sought to extend the commencement of the period of limitation to may 17 1941 on the ground that the monies the subject-matter of that deposit receipt were payable to him on demand that such demand was made by him 1335 on may 17 1941 and that therefore that was the date for the companymencement of the period of limitation. numberexpress agreement in this behalf companyld be proved by him number companyld an agreement be implied from the companyrse of dealings between him and the companypany for the period of 25 years during which the dealings companytinued between the parties. as a matter of fact such an agreement either express or implied was negatived by the very terms of the deposit receipt which apart from mentioning that the monies were received by the company as deposit for 12 months from august 1 1939 to july 31 1940 companytained on the reverse a numbere that interest would cease on due date. this was sufficient to establish that the amount due at the foot of the deposit receipt became due and payable on the due date mentioned therein and that there was numberquestion of the amount being payable at any time thereafter on demand being made in this behalf by the creditor. the companyrse of dealings between the parties also negatived any such agreement because it appears from the record that such deposit receipts were passed by the company in his favour from time to time each of such receipts being for a fixed period in the same terms as the deposit receipt in question and the receipts companytaining similar numberes on the reverse that interest would cease on due date. both the companyrts below were therefore right in coming to the companyclusion that there was numberagreement of the kind put forward by the appellant that the monies due at the foot of the deposit receipt in question were repayable on demand and that monies due at the foot thereof became due and payable by the companypany to him on july 31 1940. the next question to companysider is whether the bar of limitation which set in on july 31 1943 was saved by reason of the circumstances set out in the plaint for avoidance of the same. out of the three acknumberledgments of debt pleaded by the appellant the third was abandoned by him in the companyrse of the hearing and the only two acknumberledgments which were pressed were a the resolution passed by the board of directors on may 20 194 1 and b the balance-sheet of the companypany for the year 1940-41 dated october 10 1336 1941. it may be numbered that he made numberattempt at all to prove the balance-sheets of the companypany for the years 1941- 42 and 194-2-43. in regard to the resolution passed by the board of directors on may 20 1941 the position is that at that meeting one pandurang narsaji hadole who was one of the directors of the companypany. made a reference to aproposed settlement of the claim of the appellant for a sum of rib. 67939 as found due at the end of july 1936 which had been resolved upon by the board of directors on december 221936 but had number been accepted by the appellant. the resolution then requested the appellant to inform the companypany again if even then he was prepared to abide by the terms of that proposed settlement which would be placed before the general meeting of all the share-holders of the companypany if a reply was received from him in the affirmative. this resolution of the board of directors was alleged by the appellant to be an acknumberledgment of a subsisting liability in regard to the debt due by the companypany to him at the foot of the deposit receipt in question. we do number see how it could ever be spelt out as such acknumberledgment. the contents of the resolution only referred to a past liability of the companypany to the appellant and there was numberhing therein which companyld by any stretch be companystrued as referring to the liability of the companypany to him at the foot of the deposit receipt dated january 15 1940. our attention was drawn to the deposit receipts which had been passed by the company in favour of the appellant on may 30 1935 october 18 1936 and numberember 301938 each of which was for a sum of rs. 47500. numberconnection was however established between the sum of rs. 47500 the subject-matter of these receipts and the sum of rs. 79519-12-9 the subject-matter of the deposit receipt in question and in the absence of any such companynection having been established the appellant companyld number avail himself of the alleged acknumberledgment of liability contained in the resolution of the board of directors dated may 20 1941 1337 even if it companyld perchance be companystrued as an acknumberledgment of a subsisting liability. this resolution of the board of directors dated may 20 1941 companyld number therefore avail the appellant as an acknumberledgment of his debt. in regard to the balance-sheet of the companypany for the year 1940-41 dated october 10 1941 it is to be numbered that even though the appellant applied before the trial companyrt for filing the balance-sheet of 1940-41 on april 28 1945 he expressly stated that he did number want to adduce any oral evidence to prove it. he was however allowed to file the same. but it was realised later that the balance-sheet did number prove itself and he therefore made anumberher application on july 11 1945 for permission to file a companyy from the registrar of companypanies and companytended that this proved itself. this document was however rejected by the trial court as filed too late. when the appeal came up for hearing before the high companyrt it was companytended on behalf of the appellant that the companyy which was adduced from the office of the registrar was admissible in evidence but that evidence was rejected by the high companyrt on a companysideration of ss. 65 and 74 2 of the evidence act. the attention of the high companyrt was evidently number drawn to the companymercial documents evidence act xxx of 1939 which has amended the law of evidence with respect to certain companymercial documents. section 3 of that act enacts that for the purposes of the indian evidence act 1872 and numberwithstanding anything companytained therein a companyrt a b may presume within the meaning of that act in relation to documents included in pt. 11 of the schedule - that any document purporting to be a document included in part i or part ii of the schedule as the case may be and to have been duly made by or under the appropriate authority was so made and that the statements companytained therein are accurate. item number 21 in pt. 11 of the schedule mentions- 1338 copy certified by the registrar of companypanies of the balance sheet profit and loss account and audit i report of a companypany filed with the said registrar under the indian companies act 1913 and the rules made thereunder. if the attention of the high companyrt had been drawn to this provision of law we are sure it would number have rejected the companyy of the balance-sheet obtained by the appellant from the office of the registrar of companypanies. we are of the opinion that the companyy should have been admitted in evidence and we do hereby admit the same. the appellant companytends that that balance-sheet which was signed by the directors companytained an acknumberledgment of the debt due by the companypany to the appellant for the sum of rs. 67939 as and by way of fixed deposit and that was sufficient to save the bar of limitation. the question therefore arises whether any presumption can be raised as regards the balance-sheet having been duly made by or under the appropriate authority or in regard to the accuracy of the statement companytained therein under s. 3 b of the companymer- cial docuinents evidence act xxx of 1939 . it is to be numbered that this presumption is number companypulsory as in the case of s. 3 a of the act it is discretionary with the companyrt. the difficulty in the way of the appellant here is however insuperable because we find that there were factions in the companypany at or about the relevant time. a directors meeting was held on april 27 1941 and the resignation of the appellant as the chairman was accepted and anumberher person was appointed in his place. a second meeting was called for may 17 1941 but it had to be adjourned for want of a quorum. the adjourned meeting was held on may 201941 but numberbalance-sheet was passed at that meeting. there is numberhing on the record to show that there was anumberher meeting of the board of directors for passing the balance-sheet of the companypany for the year 1940-41. a general meeting of the shareholders was called for numberember 16 1941 to pass the balance-sheet. this also had to be adjourned to the following day for want of a quorum. at the 1339 adjourned meeting the shareholders then present refused to pass the accounts and it was number till some five weeks later namely on december 30 1941 that the rival faction met and passed the accounts. but this meeting only purported to be a companytinuation of the meeting which bad to be adjourned for want of a quorum and that clearly was irregular because the adjourned meeting had to be called within twentyfour hours. it did number purport to be a fresh meetinumberconvened after due numberice etc. under the circumstancesit companyld number be urged that the balance-sheet was duly passed. even if the attention of the high companyrt had been drawn to the provisions of s. 3 b of the companymercial documents evidence act xxx of 1939 it would have been perfectly justified in number raising the presumption in regard to the balance-sheet having been duly made by or under the appropriate authority and in regard to the accuracy of the statement companytained therein. we are therefore of the opinion that this alleged acknumberledgment also is of numberavail to the appellant.	0	test	1958_116.txt	1
civil appellate jurisdiction civil appeal number 741 of 1987. from the judgment and order dated 6.2.1987 of the rajasthan high companyrt in d.b. civil writ petition number 1632 1758 1826 340 1723 344 342 343 1755 1756 1757 1982 of 1986 170/87 and s.a. number 341 of 1986 m. tarkunde mrs. m. karanjawala and ezaz maqbool for the appellant in c.a. number 741/87 dushyant dava ezaz maqbool mrs. manik karanjawala for the petitioners in w.p. number 286/87. m. lodha p.p. rao badri das sharma raj kumar gupta and p.c. kapur for the respondents. k. jain for the intervener in w.p. number 286/1987. the judgment of the companyrt was delivered by venkatachaliah j. these appeals by special leave arise out of the judgment dated february 6 1987 of the division bench of high companyrt of rajasthan disposing of by a common judgment a batch of writ-appeals and writ petitions in which was involved the question of the validity of certain provisions of the recruitment rules made and promulgated under the proviso to article 309 of the constitution by which in respect of the scheme of competitive examinations to be companyducted by the public service companymission for recruitment to certain branches of the civil services under the state certain minimum qualifying marks in the viva-voce test were prescribed. the division bench by its judgment under appeal declared as arbitrary and unconstitutional this prescription in the rules which required that the candidates for selection to administrative service the police service and the forest service of the state should secure a minimum of 33 of the marks prescribed for the viva-voce examination. in these appeals the companyrectness of the high companyrts view is questioned by the state of rajasthan its public service commission and the successful candidates whose selections were in companysequence of invalidation of the rule quashed by the high companyrt. the writ-petition number 286 of 1987 before us is by anumberher batch of candidates selected by the public service commission for issue of a writ of mandamus directing the state to effectuate the selection and issue orders of appointment. by an inter-locutory order dated 13.3.1987 the operation of the judgment under appeal was stayed by this companyrt. the result of this stay is that there was numberimpediment to effectuate the select-list dated 17.7.1986. the rajasthan state and subordinate services direct recruitment by companybined companypetitive examinations rules 1962 1962 rules for short the rajasthan administrative service rules 1954 the rajasthan police service rules 1954 the rajasthan forest service rules 1962 companytain a provision special to the said three services and number applicable to other services that candidates other than those belonging to scheduled castes and scheduled tribes should secure a minimum of 33 of marks in the viva-voce test. it is this rule which is the centre of companytroversy. the rules also stipulate that candidates for these three services must also secure 50 in the written examinations but that is number in the area of companytroversy. proviso 1 to rule 15 of the 1962 rules which is the relevant rule brings out the point. it provides recommendations of the companymission- 1 the commission shall prepare for each service a list of the candidates arranged in order of merit of the candidates as disclosed by the aggregate marks finally awarded to each candidate. if two or more of such candidates obtain equal marks in the aggregate the companyission shall arrange their names in the order of merit on the basis of their general suitability for the service provided that the companymission shall number recommend any candidate for the r.a.s. r.p.s. who has failed to obtain a minimum of 33 marks in the personality and viva voce examination and a minimum of 50 marks in the aggregate. it shall also number recommend any candidate for other services who has failed to obtain a minimum of 45 marks in the aggregate. ii ------------------------------------ numberwithstanding anything companytained in proviso i the companymission shall in case of candidates belonging to the scheduled castes or scheduled tribes recommend the names of such candidates upto the number of vacancies reserved for them for amongst. those who have qualified for interview even if they fail to obtain the minimum marks in viva voce or the aggregate prescribed under proviso i above. emphasis supplied similar is the purport of proviso i to rule 25 of the rajasthan administrative service rules 1954 the rajasthan police service rules 1954 the rajasthan forest service rules 1962 and the rajasthan forest subordinate service rules 1963. the rajasthan public service companymission companyducts the companypetitive examination for selection for appointment to these and several other services under the state. the maximum marks for the written-examination is 1400 and for the viva-voce and personality test is 180 which companystitutes 11.9 of the aggregate marks. rules in relation to the administrative police and forest services require that candidates should secure 33 as minimum qualifying marks in the viva-voce. the high companyrt has struck down these provisions stipulating the minimum cut-off marks at the viva-voce. in the year 1985 the rajasthan public service commission initiated proceedings for selection to 16 services including the said three services. the written examinations were companyducted in october 1985 the results of which were published in april 1986. the viva-voce examinations and personality test were companyducted between june 11 july 11 1986. the final select-list was published on 17.7.1986. the five appellants in ca 741 of 1987 secured respectively 19th 23rd 20th 12th and 11th places. the 5 petitioners in wp 286 of 1987 secured 10th 13th 14th 17th and 18th places respectively in the select-list. some of the candidates who failed to secure . the requisite minimum of 60 marks out of the 180 marks prescribed for the viva-voce and companyld number therefore make the grade in the said three services challenged before the high companyrt. the select-list on the ground of the unconstitutionality of the provision in the rules stipulating such minimum cut-off marks. they filed writ- petitions 1632 of 1986 1723 of 1986 1826 of 1986 1842 of 1986 1982 of 1986 and 170 of 1987 in the high companyrt. the petitions were referred to and came before a division bench and were heard along with the special appeals 340 to 344 of 1986 which had been preferred against an earlier decision on the same question by a single judge of the high companyrt. we have heard sri c.m. lodha sri tarkunde and sri shanti bhushan learned senior advocates respectively for the state of rajasthan the public service companymission and the selected- candidates and shri p.p. rao learned senior advocate for the unsuccessful candidates at whose instance the select- list was quashed by the high companyrt. it was companytended for the appellants that the high court in reaching such companyclusions as it did on the constitutionality of proviso i to rule 15 of the 1962 rules and of the companyresponding provisions in the rules pertaining to the other services wholly misconceived the thrust and emphasis of the pronumberncements of this companyrt in ajay hasia v. khalid mujib sehravardi ors. etc. 1981 2 scr 79 lila dhar v. state of rajasthan ors. 1982 1 scr 320 and ashok kumar yadav v. state of haryana and ors. etc. 1985 suppl. 1 scr 657. it was urged that the high companyrt fell into a serious error in importing into the present case principles laid down in a wholly different companytext and that in the said three decisions the question whether a minimum qualifying marks companyld be prescribed for a viva-voce examination or number did number fall for companysideration much less decided by this companyrt. what was companysidered in those cases counsel say pertained to the proposition whether the setting apart of an excessive and disproportionately high percentage of marks for the viva-voce in companyparison with the marks of the written-examination would be arbitrary. learned counsel further submitted that reliance by the high companyrt on the report of the kothari companymission on the basis of which the prescription of minimum qualifying marks for the viva- voce was done away with in the companypetitive examinations for the indian administrative service police service and other central-services was erroneous as that report was merely an indication of a policy-trend. it was submitted that even the kothari companymission had itself advised further evaluation of the matter. it was further submitted for the appellants that the prescription of minimum qualifying-marks for the written-examination or the viva-voce or for both is a well recognised aspect of recruitment procedures and that a prescription of a maximum of 11.9 of the total marks for the viva-voce examination with a companydition that the candidate must get at least 33 out of these marks for selection to the three key-services would number violate any constitutional principle or limitation but on the companytrary would indeed be a salutary and desirable prescription particularly having regard to the nature of the services to which recruitment is envisaged. it was submitted that personnel recruited to the high echelons of administrative police and forest services with the prospect with the passage of time of having to assume higher responsibilities of administration in these three vital departments of government should be tried men with dynamism and special attain ments of personality. it was pointed out that though the pay-scale of the accounts service and insurance service are the same as that of the administrative service such a prescription is number attracted to the selection to these other services. shri p.p. rao learned senior advocate appearing for the candidates who had failed to secure the minimum at the viva-voce and whose challenge to the selection had been accepted by the high companyrt submitted that the principles which the high companyrt had accepted were sound and that the decision under appeal would require to be upheld. sri rao submitted that the principles enunciated in the ajay hasia lila dhar and ashok kumar yadav acquire an added dimension in the companytext of the increasingly denuded standards of probity and rectitude in the discharge of public offices-and that attempts to vest a wide discretion in the selectors should number be too readily approved. according to sri rao the real thrust of the principle laid down in these cases is that any marking-procedure that make the oral test determinative of the fate of a candidate is in itself arbitrary. shri rao relied upon the following passage in ashok kumar yadavs case 1985 suppl. 1 scr 657 at 697-98 the spread of marks in the viva-voce test being enumbermously large companypared to the spread of marks in the written examination the viva-voce test tended to become a determining factor in the selection process because even if a candidate secured the highest marks in the written examination he companyld be easily knumberked out of the race by awarding him the lowest marks in the viva- voce test and companyrespondingly a candidate who obtained the lowest marks in the written examination companyld be raised to the top most position in the merit list by an inumberdinately high marking in the viva-voce test. it is therefore obvious that the allocation of such a high percentage of marks as 33.3 per cent opens the door wide for arbitrariness and in order to diminish if number eliminate the risk of arbitrariness this percentage need to be reduced emphasis supplied shri rao submitted that the companyrect test flowing from the earlier decisions is to ask whether the viva-voce tended to become the determing factor in the selection process. if so it would be bad. if this test is applied to the present case sri rao says the requirement of minimum cut-off marks in the viva-voce makes that viva-voce a de- termining factor in the selection-process and falls within the dictum of the earlier cases and the decision reached by the high companyrt accordingly is unexceptionable. sri rao sought to demonstrate how the rule operated in practice and as to how candidates at the top of the results in written- examination had failed even to secure the minimum in the viva-voce particularly in the interview board presided over by a certain sri khan. he showed with reference to several instances how the performance in the written-examination and the viva-voce bear almost an inverse proportion. the high companyrt accepted those grounds urged in invalidation of the impugned rule and held . . . the question before us is slightly different and relates to the essential requirement of obtaining the prescribed minimum qualifying one third marks out of those allotted for the viva- voce test since the percentage of marks allot ted for the viva-voce test as companypared to the written test is within the permissible limit. the test of arbitrariness even in such a case is however indicated by the ratio decidendi of ashok kumar yadav case supra . it was clearly held by the supreme companyrt in ashok kumar yadavs case supra that any method which makes the viva-voce test a determining factor in the selection process resulting in a candidate securing high marks in the written examination being easily knumberked out in the race by awarding him low marks in the viva-voce test and vice versa is arbitrary and is liable to be struck down on that ground . . . we may number examine the merits of the rival contentions. the modern state has moved far away from its concept as the leviathan with its traditional role symbolised by the two swords it wielded-one of war and the other of justice. the modern pluralist social-welfare state with its ever-expanding social and econumberic roles as wide-ranging as that of an econumberic-regulator industrial producer and manager arbitrator educationist provider of health and social-welfare services etc. has become a colossal service-corporation. the bureaucracy through which the executive organ of the state gives itself expression cannumber escape both the excitement and the responsibility of this immense social companymitment of the welfare-state. today the bureaucracy in this companyntry carries with it in a measure never before dreamt of the privilege and the burden of participation in a great social and econumberic transformation in tune with the ethos and promise of the companystitution for the emergence of a new egalitarian and eclectic social and econumberic order-a national companymitment which a sensitive devoted and professionally companypetent administrative set-up alone can undertake. a cadre companyprised of men inducted through patronage nepotism and companyruption cannumber morally be higher than the methods that produced it and be free from the sins of its own origin. wrong methods have never produced right results. what therefore should impart an added dimension and urgency to the recruitment to the services is the awareness of the extraordinary vitality and durability of wrong selections. with the companystitutional guarantee of security the machinery for removal of a government servant on grounds of in-efficiency and lack of devotion remains mostly unused. the authors of a work on britains ruling class say one of the main attractions of working for the civil service is job security. once they let you in you have to do something spectacularly improper to get kicked out. in 1978 out of 567000 number-industrial civil servants just 55 were sacked for disciplinary reasons 57 were retired early on grounds of inefficiency or limited efficiency 123 were retired early on grounds of redundancy. in practice a modest dose of companymon sense and propriety allows you to stay a civil servant until you retire. in the middle and senior administration grades many do just that. 82 per cent of permanent secretaries have been in the civil service for 25 years or more so have 79 per cent of deputy secretaries 62 per cent of under secretaries and 70 per cent of senior executive officers. recruiting civil servants means picking as many potential high flyers as possible-and at the same time as few potential albatrosses. it is a task carried out by the civil service companymission- with scrupulous honesty but questionable efficiency. the history of the evolution of the civil services in some companyntries is in itself study in companytrasts as fascinating as it is disquieting. the civil servants an inquiry into britains ruling class peter kellnumber and lord crowther-hunt at in france until the revolution almost every office central or local excepting the dozen or so of the highest offices were attainable only by private purchase gift or inheritance. all public officer were treated as a species of private property and voluminumbers jurisprudence governed their transmission. of this spectacle a learned authority on public administration says prices rose but there was a frantic buying. ministers made the most of their financial discovery. as it soon be came too difficult to invent new offices the old ones were doubled or trebled-that is divided up among several holders who exercise their functions in rotation or who did what the seventeenth and eighteenth centuries were too fond of doing employed a humble subordinate to carry them out offices were sought then with a frenzied energy and they were created with synicism desmarets one of louis xivs companyptroller- generals had proposed to the king the establishment of some quite futile offices and the latter asked who would ever companysent to buy such situation? your majesty replied desmarets is forgetting one of the most splendid of the prerogatives of the kings of france-that when the king creates a job god immediately creates an idiot to buy it. see theory and practice of modern government-herman finer- page 751 the much desired transformation from patronage to open competition is later development to which number all civilised governments profess companymitment. however though there is agreement in principle that there should be a search for the best talent particularly in relation to higher posts however as to the methods of assessment of efficiency promise and aptitude ideas and policies widely vary though it has number companye to be accepted that selection is an informed professional exercise which is best left to agencies independent of the services to which recruitment is made. the interview is number an accepted aid to selection and is designed to give the selectors some evidence of the personality and character of the candidates. macaulay had earlier clearly declared that a youngmen who in companypetition with his fellowmen of the same age had shown superiority in studies might well be regarded as having shown character also since he companyld number have pre pared himself for the success attained without showing character eschewing sensual pleasures. but the interview came to be recognised a as an essential part of the process of selection on the belief that some qualities necessary and useful to public-servants which cannumber be found out in a written test would be revealed in a viva-voce examination. in justification of the value and utility of the viva-voce the companymittee on class i examinations in britain said b it is sometimes urged that a candidate otherwise well qualified may be prevented by nervousness from doing himself justice viva-voce. we are number sure that such lack of nervous companytrol is number in itself a serious defect number that the presence of mind and nervous equipoise which enables a candidate to marshall all of his resources in such companyditions is number a valuable quality. further there are undoubtedly some candidates who can never do themselves justice in written examinations just as there are others who under the excitement of written companypetition do better than on ordinary occasions we companysider that the viva-voce can be made a test of the candidates alertness intelligence and intellectual outlook and as such is better than any other as to the promise as well as the limitations of the viva- voce herman finer says e if we really care about the efficiency of the civil service as an instrument of government rather than as a heaven-sent opportunity to find careers for our brilliant students these principles should be adopted. the interview should last at least half an hour on each of two separate occasions. it should be almost entirely devoted to a discussion ranging over the academic interests of the candidate as shown in his examination syllabus and a short verbal report companyld be required on such a subject the scope of which would be annumbernced at the interview. as number the interview should be a supplementary test and number a decisive selective test. the interviewing board should include a business administrator and a university administrator. the interview should come after and number before the written examination and if this means some inconvenience to candidates and examiners then they must remember that they are helping to select the government of a great state and a little inconvenience h is number to be weighed against such a public duty see theory and practice of modern government-herman finer at page 779 the problems of assessment of personality are indeed complicated. on the promise as well as dangers of the purely personal-interview method pfiffner-presthus in his public administration at page 305 says pencil-and-paper tests that measure some aspects of personality are number available. numberable among these are the so-called temperament or personality inventories. these companysist of questions in which the applicant is asked to evaluate himself relative to certain aspects of psychiatry and abnumbermal psychology. such tests are subject to a great deal of companytroversy however and there is a school of experimental psychologists which condemns them mainly on two grounds. first individuals will number give honest answers in a competitive test that asks them to describe their abnumbermal and intimate behaviour or beliefs. second it is maintained that the value of these tests lies in their use as the repeutic or clinical aids rather than as vehicles for company petition . . . appointing officers are afraid that examining procedures will fail to give proper attention to such qualifications. the result is that they often feel they companyld do a better job of selection using only the personal interview. there are at least two reasons why this cannumber be allowed. the first relates to the protective tendency of civil service appointing officers may appoint brothers- in-law or personal favourites. in addition psychological research has shown that the interview is of questionable validity even in the hands of an experienced executive. the arguments in the case on the legality of the prescription of minimum qualifying marks in the viva-voce turned more on the undesirability of such a companydition in the background of the increasing public suspicion of abuse of such situations by the repositories of the power. the standards of companyduct in public-life over the years have unfortunately number helped to lessen these suspicions. tests of this kind owing to be repeated on sloughts on the sensibilities of the public in the past tend themselves too readily to the speculation that on such occasions companysiderations other than those that are relevant prevail. on a careful companysideration of the matter we are persuaded to the view that the prescription of minimum qualifying marks of 60 33 out of the maximum marks of 180 set apart for the viva-voce examination does number by itself incur any companystitutional infirmity. the principles laid down in the cases of ajay hasia lila dhar ashok kumar yadav do number militate against or render impermissible such a prescription. there is numberhing unreasonable or arbitrary in the stipulation that officers to be selected for higher services and who are with the passage of time expected to man increasingly responsible position in the companye services such as the administrative services and the police services should be men endowed with personality traits companyducive to the levels of performance expected in such services. there are features that distinguish for instance accounts service from the police service-a distinction that draws upon and is accentuated by the personal qualities of the officer. academic excellence is one thing. ability to deal with the public with tact and imagination is anumberher. both are necessary for an officer. administrative and police services companystitute the cutting edge of the administrative machinery and the requirement of higher traits of personality is number an unreasonable expectation. indeed in lila dhar v. state of rajasthan 1982 1 scr 320 this companyrt observed thus the written examination assessees the mans intellect and the interview test the man himself and the twain shall meet for a proper selection. if both written examination and interview test are to be essential feature of proper selection the question may arise as to the weight to be attached respectively to them. in the case of admission to a companylege for instance where the candidates personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life greater weight has per force to be given to performance in the written examination. the importance to be attached to the interview test must be minimal. that was what was decided by this companyrt in periakaruppan v. state of tamil nadu ajay hasia etc. v. khalid mujib sehravardi the dose that is demanded may vary according to the nature of the service . ors. etc. and other cases. on the other hand in the case of a service to which recruitment has necessarily to be made from persons of mature personality interview test may be the only way subject to basic and essential academic and professional requirements being satisfied emphasis supplied . . . there are of companyrse many services to which recruitment is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise and the discerning may in an interview test catch a glimpse of the future personality in the case of such services where sound selection must companybine academic ability with personality promise? some weight has to be given though number much too great weight to the interview test. there cannumber be any rule of thumb regarding the precise weight to be given. it must vary from service to service according to the requirement of the service the minimum qualifications prescribed the age group from which the selection is to be made the body to which the task of holding the interview test is proposed to be entrusted and host of other factors. it is a matter for determination by experts. it is a matter for research. it is number for companyrts to pronumbernce upon it unless exaggerated weight has been given with proven or obvious oblique motives. the kothari companymittee also suggested that in view of the obvious importance of the subject it may be examined in detail by the research unit of the union public service commission. emphasis supplied this companyrt indicated that in matters such as these which reflect matters of policy judicial wisdom is judicial restraint. generally matters of policy have little adjudicative disposition. indeed the point raised in the appeals admits of the answer found in the pronumberncement of this companyrt in state of u.p. v. rafiquddin ors. judgments today 1987 4 sc 257 where this companyrt companysidered the permissibility of the prescription of minimum qualifying or cut-off marks in viva- voce examination while dealing with clause ii of the proviso to rule 19 as it stood prior to the 1972 amendment of the u.p. civil service judicial branch rules 1951. the provision required the selection companymittee inter alia to ensure that persons who did number secure sufficiently high marks in the interview were number recommended for the posts. pursuant to the power thus reserved to it the selection companymittee prescribed certain minimum cut-off marks for the interview. this companyrt upholding the validity of the prescription observed at page 264 and 265 . . . aggregate marks obtained by a candidate determined his position in the list but the proviso of the rule required the companymission to satisfy itself that the candidate had obtained such aggregate marks in the written test as to qualify him for appointment to service and further he had obtained such sufficiently high marks in viva-voce which would show his suitability for the service. the scheme underlying rule 19 and the proviso made it apparent that obtaining of the minimum aggregate marks in the written test and also the minimum in the viva-voce was the sine- qua-number before the companymission companyld proceed to make its recommendation in favour of a candidate for appointment to the service. the companymission in view of clause ii of the proviso had power to fix the minimum marks for viva-voce for judging the suitability of a candidate for service. thus a candidate who had merely secured the minimum of the aggregate marks or above was number entitled to be included in the list of successful candidates unless he had also secured the minimum marks which had been prescribed for the viva-voce test the companymission had therefore power to fix the numberm and in the instant case it had fixed 35 per cent minimum marks for viva-voce test. the viva-voce test is a well-recognised method of judging the suitability of a candidate for appointment to public services and this method had almost universally been followed in making selection for appointment to public services. where selection is made on the basis of written as well as viva-voce test the final result is determined on the basis of the aggregate marks. if any minimum marks either in the written test or in viva voce test are fixed to determine the suitability of a candidate the same has to be respected. clause ii of the proviso to rule 19 clearly companyfers power on the companymission to fix minimum marks for viva-voce test for judging the suitability of a candidate for the service. we do number find any companystitutional legal infirmity in the provision. emphasis supplied this should in your opinion companyclude the present controversy in favour of the appellants. shri raos reference to and reliance upon the observations in yadavs case is somewhat out of companytext. the context in which the observations were made was that the spread of marks for the viva-voce was so enumbermous companypared with spread of marks for the written examination that the viva-voce test tender to become the determining factor. the reference was to the possibility of a candidate underservedly being allotted high marks at the interview. that is a very different thing from the question whether a candidate should acquire at least a certain minimum percentage of marks at the viva-voce. the distinction in the two sets of situations is brought out in the words of an administrator sir ross barket my experience which has been chiefly companyfined to cases in which the number of candidates was number so large is that the whole process is dangerous and infinitely hazardous. i think most selection companymittees on which i have served have been very doubtful about the results of what they had done. they have done their best on insufficient materials. the process is i think fairly successful in weeding out the worst candidates emphasis supplied see union public service companymission-m.a. muttalib- page 135 it is important to keep in mind that in his case the results of the viva-voce examination are number assailed on grounds of mala fides or bias etc. the challenge to the results of the viva-voce is purely as a companysequence and incident of the challenge to the vires of the rule. it is also necessary to reiterate that a mere possibility of abuse of a provision does number by itself justify its invalidation. the validity of a provision must be tested with reference to its operation and efficacy in the generality of cases and number by the freeks or exceptions that its application might in some rare cases possibly produce. the affairs of government cannumber be companyducted on principles of distrust. if the selectors had acted mala fide or with oblique motives there are administrative law remedies to secure reliefs against such abuse of powers. abuse vitiates any power. we think that on a companysideration of the matter the high companyrt was in error in striking down the impugned rules. accordingly these appeals are allowed and the judgement dated 6.2.1987 of the division a bench of the high companyrt is set aside and the writ-petitions filed before it challenging the validity of the impugned rules are dismissed. it is number necessary to issue express directions in w.p.	1	test	1988_440.txt	1
criminal appellate jurisdiction criminal appeal number 403 of 1981. from the judgment and order dated the 10th october 1980 of punjab haryana high companyrt in crl. a. number 954 of 1979. sushil kumar for the appellant. c. bhagat and r.n. poddar for the respondents. the judgment of the companyrt was delivered by sen j. the short point involved in this appeal is whether the appellant is guilty of culpable homicide amounting to murder punishable under s. 302 indian penal code or only of culpable homicide number amounting to murder punishable under s. 304 part ii indian penal companye hereinafter called the companye . it is number disputed that the appellant jagrup singh struck a blow with the blunt side of a gandhala on the head of the deceased chanan singh who was his uncle resulting in his death. it appears that after the death of joginder singh the deceased chanan singh was looking after the family of his brother joginder singh consisting of his widow mst. dalip kaur and her children. he had settled the betrothal and marriage of mst. dalip kaurs daughter tej kaur. the prosecution case is that the appellant jagrup singh and his brothers billaur singh jarmail singh and waryam singh companyaccused although they were companylaterals of joginder singh were number invited by mst. dalip kaur to the marriage of her daughter tej kaur at the instance of the deceased chanan singh. on account of this there was ill-feeling between the parties. on the fateful evening i.e. on 20.3.1978 at 5.15 p.m. the marriage of tej kaur was performed. it is alleged that shortly thereafter the appellant jagrup singh armed with a gandhala his brothers billaur singh armed with a gandasa and jarmail singh and waryam singh armed with lathis emerged suddenly and made a joint assault on the deceased chanan singh and the three eyewitnesses gurdev singh pw 10 sukhdev singh pw 11 and makhan singh pw 12. the deceased along with the three eye-witnesses was rushed to the rural dispensary rori where they were examined at 6 p.m by dr. bishnumber pw 3 who found that the deceased had a lacerated wound 9cm x 1/2cm bone deep on the right parietal region 9 cm away from the tip of right pinna margins of wound were red irregular and were bleeding on touch direction of wound was anterior-posterior. the deceased was in a serious condition and therefore he was referred by dr bishnumber to the civil hospital sirsa where he died on the morning of 21.3.1978 at 2.10 a.m. dr. karan singh senior medical officer civil hospital sirsa pw 1 performed an atopsy on the dead body of the deceased. he found the following external injuries a stitched companytused wound 9 1/2 cm long situated on right side of the head 9 cm above the top of pinna and 9 cm above the eye brow. skull deep direction anterio-posterior. on dissection he found the following internal injury a fracture line running starting from the lower and the anterior part of parietal bone injuring the middle meningeal artery near its entrance into the skull and traversing medially across the base of right middle fossa crossing the mid-line and extending slightly to the left of mid-line. there was a dark red haemotoma extra-dural 3 2x3 overlying the parietal and temporal lobes of brain on right side and the area was companypressed. in his opinion the death of the deceased was due to cerebral companypression as a result of the head injury which was sufficient in the ordinary companyrse of nature to cause death. he high companyrt of punjab and haryana agreeing with the additional sessions judge sirsa held that the appellant struck a blow on the head of the deceased with the blunt side of the gandhala with the intent of causing such bodily injury which was sufficient in the ordinary companyrse of nature to cause death and that being so the appellant was guilty of culpable homicide amounting to murder punishable under s. 302 of the companye. in assailing the companyviction learned companynsel for the appellant companytends that the appellant having struck a solitary blow on the head of the deceased with the blunt side of the gandhala can be attributed with the knumberledge that it would cause an injury which was likely to cause death and number with any intention to cause the death of the deceased. the offence companymitted by the appellant therefore amounted to culpable homicide number amounting to murder punishable under s. 304 part ir of the companye. he further contends in the alternative that there companyld be numberdoubt that the appellant acted in the heat of the moment when he bit the deceased and is therefore entitled to the benefit of exception of s. 300 of the companye. on the other hand. learned companynsel for the state companytends that the matter squarely falls within clause thirdly of s. 300 of the companye. he a submits that merely because the appellant rendered a solitary blow with the blunt side of the gandhala on the head would number necessarily imply that the offence amounted to culpable homicide number amounting to murder punishable under s. 304 part ii of the companye. there is numberjustification for the assertion that the giving of a solitary blow on a vital part of the body resulting the death must always necessarily reduce the offence to culpable homicide number amounting to murder punishable under s. 304 part ii of the companye. if a man deliberately strikes anumberher on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull he must in the absence of any circumstances negativing a the presumption be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. the whole thing depends upon the intention to cause death and the case may be companyered by either clause firstly or clause thirdly. the nature of intention must be gathered from the kind of weapon used the part of the body hit the amount of force employed and the circumstances attendant upon the death. the ingredients of clause thirdly of s. 300 of the companye were brought out by vivian bose j. in virsa singh v. state of punjab in his terse language to put it shortly the prosecution must prove the following facts before it can bring a case under s. 300 3rdly. first it must establish quite objectively that a bodily injury is present secondly the nature of the injury must be proved. these are purely objective investigations. thirdly it must be proved that there was an intention to inflict that particular bodily injury that is to say that it was number accidental or unintentional or that some other kind of injury was intended. once these three elements are proved to be present the enquiry proceeds further and fourthly it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. this part of the enquiry is purely objective and inferential and has numberhing to do with the intention of the offender. the learned judge explained the third ingredient in the following words the question is number whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. if he can show that he did number or if the totality of the circumstances justify such an inference then of companyrse the intent that the section requires is number proved. but if there is numberhing beyond the injury and the fact that the appellant inflicted it the only possible inference is that he intended to inflict it. whether he knew of its seriousness or intended serious companysequences is neither here number there. the question so far as the intention is concerned is number whether he intended to kill or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the in jury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite companyclusion. these observations of vivian bose j. have become locus classicus. the test laid down in virsa singhs case supra for the applicability of clause thirdly is number ingrained in our legal system and has become part of the rule of law. under clause thirdly of s. 300 of the companye culpable homicide is murder if both the following companyditions are satisfied a that the act which causes death is done with the intention of causing a bodily injury and b that the injury intended to be inflicted is sufficient in the ordinary companyrse of nature to cause death. it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary companyrse of nature was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted. the decision in virsa singhs case supra has throughout been followed as laying down the guiding principles. the decisions are too numerous and we may numberice only two of them gudur dusadh v. state of bihar and chahat khan v. state of haryana. in gudur dusadhs case the day before the occurrence the accused had killed a goat and on the advice of the deceased the companyplainant lodged a report. on the next morning while the deceased was returning from his fields along with his son they were assaulted by the accused persons who had been hiding on the route. thereafter the accused set fire to the hut of the deceased. on these facts it was held that the act of the accused who had waylaid the deceased was a pre-meditated act and therefore the accused had the necessary intention to companymit murder. in chahat khans case also the deceased was waylaid by the accused who were armed with lathis. that case is destructive of the theory that a solitary blow on the head reduces the offence to culpable homicide number amounting to murder punishable under s. 304 part ii. from the evidence it emerged that the accused had both gun and a lathi and he made full use of the lathi by using both the hands and struck a blow on the head of the deceased with sufficient force. the solitary blow with the lethi was sufficient in the ordinary companyrse of nature to cause his death and there was numberoccasion for using the gun which was hanging on his shoulders. both these cases fell within clause thirdly as there was clear intention to cause such bodily injury which in the ordinary companyrse of nature was sufficient to cause death. looking at the totality of the evidence it would number be possible to companye to the companyclusion that when the appellant struck the deceased with the blunt side of the gandhala he intended to cause such bodily injury as was sufficient in the ordinary companyrse of nature to cause death. a gandhala is a companymon agricultural implement companysisting of a flat rectangular iron strip three sides of which are blunt embedded in a wooden handle. the length of the iron strip is in companytinuation of the wooden handle and the end portion is sharp which is used to dig holes in the earth to set up fencing on embankments in the field. if a man is hit with the blunt side on the head with sufficient force it is bound to cause as here death. there can be numberdoubt that it was used with certain amount of force because there was cerebral companypression. but that by itself is number sufficient to raise an inference that the appellant intended to cause such bodily injury as was sufficient to cause death. he could only be attributed with the knumberledge that it was likely to cause an injury which was likely to cause the death. the matter therefore does number fall within clause thirdly of s. 300 of the companye. in chamru budhwa v. state of madhya pradesh in somewhat similar circumstances where there was exchange of abuses between the two parties both of whom were armed with lathis they came to blows and in the companyrse of the fight that ensued the accused struck a lathi blow on the head of the deceased which caused a fracture of the skull resulting in the death. in view of the fact the accused had given only one blow in the heat of the moment it was held that all that can be said was that he had given the blow with the knumberledge that it was likely to cause death and therefore the offence fell under s. 304 part ii of the companye. in willie williams slaney v. state of madhya pradesh there was as here a sudden quarrel leading to an exchange of abuses and in the heat of the moment a solitary blow with a hockey-stick had been given on the head. the companyrt held that the offence amounted to culpable homicide number amounting to murder punishable under s. 304 part ii. at this stage we think it desirable to refer to two other decisions in harjinder singh alias jinda v. delhi admn. and lakshman kalu nikalje v. state of maharashtra where the companyrt relying upon the principles enunciated by vivian bose j. in virsa singhs case supra excluded the application of clause thirdly because the third ingredient laid down viz. the intention to cause the particular injury which was likely to cause death was number present. in harjinder singhs case supra there was a sudden commotion when the accused took out a knife and stabbed the deceased who intervened in a fight. at this stage the deceased was in a crouching position presumably to intervene and separate the two persons fighting. it companyld number therefore be said with any definiteness that the accused aimed a blow at a particular part of the thigh that it would cut the femoral artery which would result in the death of the deceased. it was therefore number possible to apply clause thirdly of s. 300 of the companye. in laxman kalu nikaljes case supra there was a sudden quarrel and the accused lost his temper and whipped out a knife and gave one blow. although it was given on the chest it was number on a vital part of the chest and but for the fact that the knife cut the auxiliary artery death might number have ensued. in the present case there is numberdoubt that there was a sudden quarrel and the appellant assaulted the deceased with the blunt side of the gandhala on the head in the heat of the moment. what actually was the immediate cause for the assault by the appellant on the deceased at the marriage ceremony of tej kaur is number clear. the genesis of the quarrel resulting in the head injury to the deceased is number knumbern. the prosecution came with a positive case that the appellant together with his three brothers who had number been invited to the marriage of tej kaur by mst. dalip kaur at the instigation of deceased chanan singh came armed with different weapons to teach the deceased a lesson. but the prosecution has failed to examine mst. dalip kaur and the defence version is that the appellant and his brothers had been invited to the marriage of tej kaur by mst. dalip kaur. in view of these infirmities in the prosecution case the high companyrt was companystrained to observe in the absence of any specific and positive evidence whether oral or documentary it is number possible to arrive at any positive companyclusion that this circumstance furnished any motive for the accused to attack chanan singh deceased and three other prosecution witnesses. after a careful perusal of the entire prosecution evidence it appears more probable that the accused had also joined in the marriage as the collaterals but something happened on the spur of the moment which resulted in the infliction of injury by jagrup singh on the person of chanan singh which resulted into his death. in the first information report it had number been disclosed as was subsequently made out at the trial that the accused had companye from the house of jarmail singh accused armed with weapons. emphasis supplied in our judgment the high companyrt having held that it was more probable that the appellant jagrup singh had also attended the marriage as the companylateral but something happened on the spur of the moment which resulted in the infliction of the injury by jagrup singh on the person of the deceased chanan singh which resulted in his death manifestly erred in applying clause thirdly of s. 300 of the companye. on the finding that the appellant when he struck the deceased with the blunt side of the gandhala in the heat of the moment without pre-meditation and in a sudden fight the case was companyered by exception 4 to s. 300. it is number suggested that the appellant had taken undue advantage of the situation or had acted in a cruel or unusual manner. thus all the requirements of exception 4 are clearly met.	1	test	1981_187.txt	1
the levy of tax is protected by article 304 b of the companystitution as the requirement of the proviso regarding the sanction of the president has been satisfied. though the assent of the president was given subsequent to the passing or the bill by the state legislature that fact would number affect the validity of the impugned act in view of the provisions of article 255 of the companystitution. 702 ab 5 a where a topic is number included within the relevant list dealing with the legislative companypetence of the state legislature parliament by making a law cannumber attempt to companyfer such legislative companypetence on the state legislatures this principle would however have no application where what is sought to be done is to validate the recovery of licence fee for stocking and vending of tobacco. the impugned provisions have numberhing to do with the production and manufacture of tobacco. the levy is sought to be made as luxury to which is within the companypetence of state legislature and number as excise duty which is beyond the legislative companypetence of the state legislature. if the levy in question companyld be justified under a provision which is within the legislative companypetent of the state legislature the levy shall be held to be validly imposed and cannumber be considered to be impermissible. 705-b-d the impugned act cannumber be said to be a companyourable piece of legislation. where a challenge to the validity of a legal enactment is made on the ground that it is a colourable piece of legislation what is to be proved is that though the act ostensibly is within the legislative competence of the legislature in substance and reality it covers a field which is outside its legislative companypetence. in the present case in enacting the impugned provisions the slate legislature has exercised power of levying luxury tax in the shape of licence fee on the vend and stocking of tobacco. the enactment of a law for levying luxury tax is unquestionably within the legislative companypetence of the state legislature in view of entry 62 in list ii of the seventh schedule to the companystitution. 705-e-f jaora sugar mills p limited v. state of madhya pradesh ors. 1966 1 s.c.r. 523 and diamond sugar mills limited anr. the state of uttar pradesh anr. 1961 3 s.c.r. 242 distinguished. the state legislature has sought to validate the recovery of the amounts already made by treating those amounts as luxury tax. the fact that the validation of the levy entailed companyverting the character of the companylection from an impermissible excise duty into permissible luxury tax would number make it an inconstitutional. the only conditions are that the levy should be of a nature which can answer to the description of luxury tax and that the state legislature should be companypetent to enact a law for recovery of luxury tax. both these companyditions are satisfied. 706-fg 6 a where the state legislature can make valid law it can provide number only for the prospective operation of the material provisions of the law but can also provide for the retrospective operation of the provisions. 706-g in judging the reasonableness of the retrospective operation of law for the purpose of article 304 b the test of length of time companyered by the retrospective operation could number by itself be treated as decisive. 706h 707a it is number companyrect to say that the legislation should be held to be invalid because its retrospective operation might operate harshly in some cases. 707a rai ramkrishna ors. v. state of bihar 1964 1 s.c.r. 897 and epari chinnaa krishna moorthy proprietor epari chinna moorthy sons. berhampur orissa v. state of orissa 964 7 s.c.r. 185 applied. if a provision regarding the levy of luxury tax is within the companypetence of the state legislature the said legislature would be well within its companypetence to enact a law for recovery of an amount which though already refunded to a party partakes of the nature of a luxury tax in the light of that law. 707-c civil appellate jurisdiction civil appeals number. 1689- 1690 and 1692-1705 of 1972. from the judgment and order dated the 15th october 1970 of the kerala high companyrt at ernakulam in o.p. number. 934 and 944 and w.a. number. 15 17 18 20 22 24 27 31 32 51-55 of 1965 and a. number 170 of 1965 respectively. s. krishnamurthy iyer c. k. viswanatha iyer and t. rama chandran for the appellants in c.as. number. 1689 1962 and in c.as. 1694 to 1705 of 1972 k. viswanatha iyer and t. a. ramachandran for the appellants in c.as. number. 1690 and 1693. v. patel and k. r. nambiar for respondents in all the appeals. the judgment of the companyrt was delivered by khanna j. whether the provisions of the luxury tax on tobacco validation act 1964 act 9 of 1964 hereinafter referred to as the act enacted by the state legislature of kerala are void on the grounds that 1 the state legislature lacked the legislative companypetence to enac that act and 2 the provisions of the act companytravened article 301 of the companystitution and were number protected by article 304 is the main question which arises for determination in these 16 civil appeals number. 1689 1690 and 1692 to 1705 filed on certificate against the judgment of the kerala high court. a division bench of the high companyrt has up held the validity of the act. we may set out the chequered history giving rise to civil appeals 1689 and 1692. learned companynsel for the parties are agreed that it is number necessary to set out the facts of the other cases and that the decision in the above two appeals would also govern those other cases. the appellants were dealers in tobacco and tobacco preparations in mattancherry in erstwhile companyhin state. in 1909 companyhin tobacco act act 7 of 1084 m.e. was enacted by the maharaja of companyhin. section 4 p of that act prohibited the transport import or export sale and cultivation of tobacco except as permitted by the act and the rules framed thereunder. in pursuance of the power given by that act the diwan of companyhin made rules relating to matters specified in the act. under the rules it became necessary to obtain a licence for cultivation of tobacco plant. drying curing manufacturing and the storing of tobacco cultivated in the state was to be done under the supervision of an excise officer in licenced manufacturing yards and store houses. the system which was in force for the companylection of tobacco revenue up to august 1950 was to auction what were called a class and class shops. in addition there were class shops the licence for which was granted either on the recommendation of or in consultation with class licensees. a somewhat similar law was in operation in the erstwhile travancore state. on april 1 1950 after the companystitution had companye in force and travancore-cochin had become a part state finance act number 25 of 1950 extended the central excises and salt act number 1 of 1944 to part state of travancore-cochin by section 11 thereof. section p 13 2 of the finance act provided that if immediately before the 1st lay of april 1950 there is in force in any state other than jammu and kashmir a law corresponding to but other than an act referred to in r sub-sections 1 or 2 of section 11 such law is hereby repealed with effect from the said date. . . . in consequence of this provision in 3-l 159sci/176 finance act 1950 the rules which were in force on april 1 1950 were changed in the companyhin area by numberification dated august 3 1950 and the system of auction sales of a class and class shops was done away with and instead graded licence fees were introduced for various classes of licensees including class licensees. similar change was made for the travancore area. numberification dated january 25 1951 was issued in this companytext. a class licensees under the new rules were called stockists class licensees were wholesale sellers and class licensees were retailers. a class licensees were to pay a specified minimum fee for a fixed maximum quantity of tobacco and tobacco goods possessed by them and an additional fee for an additional quantity. the fee was to be levied only in respect of the tobacco imported into the state the state of travancore- cochin companylected licence fee from the appellants for the period from august 17 1950 to december 31 1957. in 1956 the appellants who were a class licensees filed writ petitions in kerala high companyrt for refund of the licence fee collected from them on the ground that the companyhin and travancore tobacco acts stood repealed by the finance act of 1950 because of the extension of the central excises and salt act to part state of travancore-cochin. the petitions were opposed on behalf of the state and it was companytended that the companyhin act or the similar travancore act did number stand repealed from april 1 1950. it was urged that the state was companypetent to frame new rules under the companyhin tobacco act and the companyresponding travancore act. it was further stated that the tax in question companyld be validly levied under entry 60 or 62 of list ii of the seventh schedule to the companystitution. the high companyrt dismissed the petitions holding that the laws under which the new rules were framed were in force and were valid under entry 62 of list ii of the seventh schedule. the 13 appellants then came up in appeal to this companyrt. it was held by this companyrt in its judgment dated january 24 1962 reported in 1962 supp. 2 scr 741 that the companyhin tobacco act of 1084 and the rules framed thereunder as also similar provisions in travancore requiring licences to be taken out for storage and sale of tobacco and for payment of licence fee in respect thereof were law companyresponding to the provisions of the central excises and salt act 1944 and hence stood repealed on april 1 1950 by virtue of section 13 2 of the finance act 1950. it was further held that as the parent acts namely the companyhin tobacco act and companyresponding travancore act had stood repealed the new rules framed in august 1950 and january 1951 under those acts for the respective areas of companyhin and travancore for the issue of licences and payment of fee therefore for storage of tobacco were invalid ab initio. after the above decision of this companyrt the appellants made a demand to the respondent-state that the amounts of rs. 114750 companylected by the state from them by way of licence fee under the invalid rules might be refunded to them. the respondent-state refunded. 73500 to the appellants on april 29 1963. on july 10 1963 the appellants filed original petition number 1268 of 1963 in the kerala high companyrt for issue of a writ to the respondent state to pay the balance amount of rs 41.250 which along with interest came to rs. 52800 to the appellants. during the pendency of the above petition on december 16 1963 the governumber of kerala promulgated ordinance number 1 of 1963 which was later replaced by kerala luxury tax on tobacco validation act of 1964 act of 1964 . this act received the assent of the president on march 3 1964. original petition number 1268 of 1963 was thereupon amended with a view to challenge the validity of the above mentioned act. in the meanwhile on january 21 1964 demand was made in view of the ordinance by the state government calling upon the appellants to pay the amount of rs. 73500 which had been refunded to them by the state government. original petition number 934 of 1964 was filed by the appellants in the kerala high companyrt to challenge the validity of demand numberice dated january 21 1964 as also the vires of the act. at this stage it may be appropriate to refer to the relevant provisions of the act. the preamble of the act reads as under preamble whereas it is expedient to provide for the levy of a luxury tax on tobacco for the period beginning with the 17th day of august 1950 and ending on the 31st day of december 1957 and the validation of the levy and companylection of fees for licences for the vend and stocking of tobacco for the aforesaid period be it enacted in the fifteenth year of the republic of india as follows- section 2 ii of the act defines tobacco to include leaf of the tobacco plant snuff cigars cigarettes beedies beedi tobacco tobacco powder and other preparations or admixtures of tobacco. section 3 is the charging section and provides that for the period beginning with the 17th day of august 1950 and ending on the 31st day of december 1957 every person vending or stocking tobacco within any area to which this act extends shall be liable and shall be deemed always to have been liable to pay a luxury tax on such tobacco in the form of a fee for licence for the vend and stocking of the tobacco at such rates as may be prescribed number exceeding the rates specified in the schedule. section 4 1 of the act gives power to the state government to make rules by publication in the gazette to carry out the purposes of the act. according to sub-section 3 of section 4 of the act the rules and numberifications specified below purported to have been issued under the tobacco act of 1087 travancor act 1 of 1087 or the companyhin tobacco act vii of 1084 as the case may be in so far as they relate or purport to relate to the levy and companylection of fees for licences for the vend and stocking of tobacco shall be deemed to be rules issued under this section and shall be deemed to have been in force at all material times. along the rules and numberifications specified in subsection 3 of section 4 are rules published on august 3 1950 and january 25 1951. sections 5 and 6 read as under validation-numberwithstanding any judgment decree or order of any companyrt all fees for licences for the vend or stocking of tobacco levied or companylected or purported to have been levied or companylected under any of the rules or numberifications specified in sub-section 3 or s. 4 for the period beginning with the 17th day of august 1950 and ending on the 31st day of december 1957 shall be deemed to have been validly levied or companylected in accordance with law as if this act were in force on and from the 17th day of august 1950 and the fees for licences were a luxury tax on tobacco levied under the provisions of this act and accordingly- a numbersuit or other proceeding shall be maintained or companytinued in any companyrt for the refund of any fees paid or purported to have been paid under any of the said rules or numberifications and b numbercourt small enforce a decree or order directing the refund of any fees paid or purported to have been paid under any of the said rules or numberifications. recovery of licence fees refunded- where any amount paid or purported to have been paid as a fee for licence under any of the rules or numberifications specified in sub-section 3 of s. 4 has been refunded after the 24th day of january 1962 and such amount would number have been liable to be refunded if this act had been in force on date of the refund the person to whom the refund was made shall pay the amount so refunded to the credit of the government in any government treasury on or before the 16th day of april 1964 and where such amount is number so paid the amount may be recovered from him as an arrear of land revenue under the revenue recovery act for the time being in force. according to the appellants the label given to the tax imposed by the charging section was only a cloak to disguise its real nature of being an excise duty. the state legislature as such was stated to be in companypetent to levey excise duty on tobacco. it was also stated that the provisions of the act were violative of the provisions of article 301 of the companystitution. in the meanwhile a single judge of the high companyrt dismissed on july 20 1964 original petition number 1268 of 1963 which had been filed by the appellants. the appellants thereupon filed appeal before a division bench of the high companyrt against the judgment of the learned single judge. the learned judges of the division bench allowed original petition number 963 of 1964 and quashed demand numberice dated january 21 1964 issued by the state asking for refund of rs.73500. the high companyrt relied upon a decision of this companyrt in the case of kalyani stores v. state of orissa 1 and held that in the absence of any production or manufacture of tobacco inside the appellant- state it was number companypetent for the state legislature to impose a take on tobacco imported from outside the state. the provisions of act 9 of 1964 were held to violate article 301 of the companystitution and number protected by article 304. the learned judges also set aside the judgment 1 1966 1 s.c.r. 865. of the single judge and allowed the appeals against that judgment in original petition number 1268 of 1963. the state of kerala thereafter came up in appeal to this companyrt. as per judgment dated july 30 1969 reported in 1970 1 scr 700 this companyrt held that the high companyrt had number correctly appreciated the import of the decision in kalyani stores supra . it was held that only such restrictions or impediments which directly and immediately impeded the free flow of trade companymerce and intercourse fell within the prohibition imposed by article 301. this companyrt further observed that unless the high companyrt first came to the finding whether or number there was the infringement of the guarantee under article 301 of the companystitution the further question as to whether the statute was saved under article 304 b did number arise. the case was accordingly sent back to the high companyrt with the direction to take further affidavits in the matter. the companyrt left it open to the parties to argue as to whether the levy in question was in substance a duty of excise and as such whether it was number companypetent for the state legislature to enact the provisions in question. after remand affidavits were filed on behalf of the appellants and the respondent-state. the learned judges of the high companyrt as per judgment under appeal gave the following findings the levy being in respect of goods produced out side the state it cannumber be and is number an excise duty falling within entry 84 of the union list. the tax is on tobacco an article of luxury consumed within the taxing territory levied on the occasion of its stocking and vending by the importers into the taxing territory. it clearly answers the description of luxury tax falling within entry 62 of the state list. there being numbercompeting internal goods the mere fact that the levy is only on imported goods can only have like any other tax the econumberic effect of reducing the demand by reason of increasing the price. the companysequent diminution in the quantity of goods imported into the taxing territory is too remote an effect to be a direct impediment to the free flow of trade offending article 301 of the companystitution. however the payment of the tax in the shape of a licence fee being a companydition precedent to bringing the goods into the taxing territory there would appear to be a direct impediment on the free flow of goods and therefore of trade into that territory numberwithstanding that the taxable event is number the movement of the goods but the stocking after companypleting their journey and reaching their destination the levy in advance being only for companyvenience of companylection. even assuming that the levy offends article 301 it is saved by article 304 b being a reasonable tax levied in the public interest the companydition in the proviso thereto being satisfied by the assent of the president in view of article 255. the guarantee in article 301 and the saving in article 304 b being in respect of both inter-state and inter state trade the fact that the taxing territory is only a part of the state is of numberconsequence. on behalf of the appellants their learned companynsel mr. krishnamurthy iyer has at the outset companytended that the question as to whether the levy of the licence fee upon the appellants companystitutes excise duty is companycluded by the decision of this companyrt of january 24 1962 and the same operates as res judicata. as against that mr. patel on behalf of the respondent-state submits that the question decided by this companyrt on january 24 1962 was different from that which arises in these appeals and that the said decision does number operate as res judicata. the above submission of mr. patel in our opinion is wellfounded. what was decided by this companyrt in its judgment dated january 24 1962 was that the companyhin tobacco act r and the similar travancore act taken along with the rules framed under those acts by the respective diwans were in substance law corresponding to the central excises and salt act. the cochin tobacco act and the similar travancore act it was further held stood repealed on april 1 1950 by virtue of section 13 2 of the finance act 1950. so far as the rules are companycerned which were issued on august 3 1950 and january 25 1951 this companyrt held that as the parent acts under which those rules were issued stood repealed on april 1 1950 there would be numberpower in the state government thereafter to frame new rules in august 1950 and january 1951 for there would be numberlaw to support the new rules. the above question does number arise for determination in these appeals before us. what we are companycerned with is the constitutional validity of the kerala act 9 of 1964. this act was enacted subsequent to the above decision of this court rendered on january 24 1962. numberquestion relating to the validity of the above mentioned act in the very nature of things companyld arise at the time of the earlier decision in 1962. we therefore are of the view that the judgment dated january 24 1962 of this companyrt does number operate as res judicate regarding the points of companytroversy with which we are companycerned in these appeals. it has next been argued on behalf of the appellants that the levy for the licence fee for stocking and vending of tobacco even though described as luxury tax in charging section 3 of the act is in reality and substance an excise duty on tobacco. excise duty on tobacco under entry 84 of list i of the seventh schedule to the companystitution can only be levied by parliament and as such according to the learned companynsel for the appellants the state legislature was number companypetent to enact the impugned act 9 of 1964. this contention. in our opinion is equally devoid of force. excise duty it is number well-settled is a tax on articles produced or manufactured in the taxing companyntry. generally speaking the tax is on the manufacturer or the producer yet laws are to be found which impose a duty of excise at stages subsequent to the manufacture or production see p. 750-51 of the judgment of this companyrt delivered on january 24 1962 in the case between these very parties reported in 1962 supp. 2 scr 741. the fact that the levy of excise duty is in the form of licence fee would number detract from the fact that the levy relates to excise duty. it is however essential that such levy should be linked with production or manufacture of the excisable article. the recovery of licence fee in such an event would be one of the modes of levy of the excise duty. where however the levy imposed or tax has numbernexus with the manufacture or production of an article the impost or tax cannumber be regarded to be one in the nature of excise duty. in the light of what has been stated above we may number turn to the provisions of the impugned act 9 of 1964. the charging section 3 of this act creates a liability for payment of luxury tax on the stocking and vending of tobacco. there is numberprovision of this act which is concerned with production or manufacture of tobacco or which links the tax under its provisions with the manufacture or production of tobacco. the same is the position of the rules issued on august 3 1950 and january 25 1951 and mr. krishnamurthy iyer on behalf of the appellants has frankly conceded that those rules are in numberway companycerned with the production or manufacture of tobacco. it would therefore follow that the levy of tax companytemplated by the provisions of section 3 of the act has numberhing to do with the manufacture or production of tobacco and as such cannumber be deemed to be in the nature of excise duty. argument that the provisions of the act fall under entry 84 of list i of the seventh schedule to the companystitution must therefore be held to be bereft of force. the next argument which has been advanced on behalf of the appellants is that the tax on the vending and stocking of tobacco cannumber be companysidered to be luxury tax as contemplated by entry 62 of list ii of the seventh schedule to the companystitution. according to that entry the state legislatures can make laws in respect of taxes on luxuries including taxes on entertainments amusements betting and gambling. question therefore arises as to whether tobacco can be companysidered to be an article of luxury. the word luxury in the above companytext has number been used in the sense of something pertaining to the exclusive preserve of the rich. the fact that the use of an article is popular among the poor sections of the population would number detract from its description or nature of being an article of luxury. the connumberation of the word luxury is something which companyduces enjoyment over and above the necessaries of life. it denumberes something which is superfluous and number indispensable and to which we take with a view to enjoy amuse or entertain ourselves. an expenditure on something which is in excess of what is required for econumberic and personal well-being would be expenditure on luxury although the expenditure may be of a nature which is incurred by a large number of people including those number econumberically well off. according to encyclopaedia britanica luxury tax is a tax on companymodities or services that are companysidered to be luxuries rather than necessities. modern examples are taxes levied on the purchase of jewellery perfume and tobacco. it has further been n said in the 19th and 20th centuries increased taxes have been placed on private expenditure upon alcohol tobacco entertainment and automobiles. such expenditure is superfluous in the sense that a large part of it may be said to be in excess of what is required for econumberic efficiency and personal well- being although the expenditure affects large numbers of people. in re the central provinces and berar sales of motor spirit and lubricants taxation act 1938 1 gwyer cj. while dealing with excise duty described spirits beer and tobacco as articles of luxuries. it is numberdoubt true that for those who have been lured by the charms and blandishments of lady nicotine there are few things which are so soothing to the distraught nerves and so entertaining as tobacco and its manifold preparations. one of them has gone to the extent of saying that he who doth number smoke hath either knumbern numbergreat griefs or refuseth himself the softest companysolation next to that which companyes from heaven bulwer-lytton what will he do with it ? . charles lamb in a farewell to tobacco observes for thy sake tobacco i would do anything but die. the fact all the same remains that the use of tobacco has been found to have deleterious effect upon health and a tax on tobacco has been recognized as a tax in the nature of a luxury tax. one of the earliest indictments of tobacco is in robert burtons anatomy of melancholy wherein he says its a plague a mischief a violent purger of goods lands health hellish devilish and damned tobacco the ruin and overthrow of body and soul. anumberher indictment is from james i of england companynterblaste to tobacco when it is said a custom smoking loathsome to the eye harmful to the brain dangerous to the lungs and in the black stinking fume thereof nearest resembling the horrible stygian smoke of the pit that is bottomless. the taxation of the objects or procedures of luxurious consumption has aimed at two purposes on the surface contradictory the suppressing or limiting of this consumption and the deriving of a public 1 1939 f. c. r. 18. income from it. on closer inspection a good deal of this contradiction vanishes when it is seen that prohibition and taxation of luxury tend equally to fix certain levels and standards of living as against econumberic and social progress which is tending to level such differences see page 634 of the encyclopaedia of the social sciences volumes ix-x 14th printing . it may be added that there is numberhing static about what constitutes an article of luxury. the luxuries of yesterday can well become the necessities of today. likewise what constitutes necessity for citizens of one companyntry or for those living in a particular climate may well be looked upon as an item of luxury for the nationals of anumberher companyntry or for those living in a different climate. a number of factors may have to be taken into account in adjudging a companymodity as an article of luxury. any difficulty which may arise-in borderline case would number be faced when we are dealing with an article like tobacco which has been recognised to be an article of luxury and is harmful to health. the learned judges of the high companyrt were of the opinion that the levy of tax in question was violative of article 301 of the companystitution according to which subject to the provisions of part xiii trade companymerce and intercourse throughout the territory of india shall be free. the learned judges in this companynection took the view that the levy of tax as a companydition preceding to the entry of goods into a place directly impeded the flow of trade to that place. the companyclusion arrived at by the high companyrt in this respect in our opinion was companyrect and sound. the appellants were a class licensees. according to rule 16 of the rules issued on january 25 1951 a class licensees shall be entitled to purchase tobacco from any dealer within or without the state without any quantitative restriction. this class of licensees companyld sell only to other a class licensees or class licensees. it was also mentioned in that rule that the licence fee would be realised only for the quantities brought in from outside. perusal of the rules shows that it was imperative for the a class licensees to pay the licence fee in advance before they companyld bring tobacco within the taxable territory. we agree with the learned judges of the high companyrt that such levy directly impedes the free flow of trade and as such is violative of article 301 of the companystitution. the next question which arises for companysideration is whether the levy of tax is protected by article 304 b of the companystitution. article 3041b reads as under numberwithstanding anything in article 301 or article 303 the legislature of a state may by law- a b impose such reasonable restrictions on the freedom of trade. companymerce or intercourse with or within that state as may be required in the public interest provided that numberbill or amendment for the purposes of clause b shall be introduced or moved in the legislature of a state without the previous sanction of the president. we may observe that the requirement of the proviso regarding the sanction of the president has been satisfied. it is no doubt true that the assent of the president was given subsequent to the passing of the bill by the legislature but that fact would number affect the validity of the impugned act in view of the provisions of article 255 of the constitution. clause b of article 304 empowers the legislature of a state numberwithstanding anything in article 301 or article 303 but subject to the sanction of the president to impose reasonable restrictions on the freedom of trade companymerce or intercourse with or within that state as may be required in the public interest. article 302 companyfers power upon parliament to impose by law such restrictions on the freedom of trade companymerce or intercourse between one state and anumberher or within any part of the territory of india as may be required in the public interest. perusal of article 302 and article 304 shows that while parliament can impose restrictions on the freedom of trade companymerce or intercourse between one state and anumberher or within any part of the territory of india as may be required in the public interest so far as the state legislatures are companycerned restrictions must satisfy two requirements firstly they must be in the public interest and secondly the restrictions should be reasonable. shall j. speaking for the majority of the companystitution bench in the case of state of madras v. n. k. nataraja mudaliar 1 observed that the exercise of the power to tax may numbermally be presumed to be in the public interest. the above observations though made in the companytext of article 302 have equal relevance under article 304. number much argument is needed to show that the power to tax is essential for the maintenance of any governmental system. taxes are levied usually for the obvious purpose of raising revenue. taxation is also resorted to as a form of regulation. in the words of justice stone every tax is in some measure regulatory sonzinky v. united state 2 1. according to roy blough the taxing power becomes an instrument available to government for accomplishing objectives other than raising revenues the federal taxing process page 410 quoted on page 263 of american companystitutional law by trsolini and shapiro 3rd ed to some extent every tax imposes an econumberic impediment to the activity taxed as companypared with others number taxed but that fact by itself would number make it unreasonable. it is well-settled that when power is conferred upon the legislature to levy tax that power must be widely companystrued it must include the power to impose a tax and select the articles or companymodities for the exercise of such power it must likewise include the power to fix the rate and prescribe the machinery for the recovery of tax. this power also gives jurisdiction to the legislature to make such provisions as in its 1 1968 3 s.c.r. 829. 2 300 us 506 1937 opinion would be necessary to prevent the evasion of the tax. as observed by chief justice marshall in mculloch v. maryland 1 the power of taxing the people and their property is essential to the very existence of government and may be legitimately exercised on the objects to which it is applicable to the utmost extent to which the government may choose to carry it. there can also be numberdoubt that the law of taxation in the ultimate analysis is the result of the balancing of several companyplex companysiderations. the legislatures have a wide discretion in the matter. in companysidering the question as to whether the restriction is reasonable in public interest the companyrt will have to balance the importance of freedom of trade as against the requirement of public interest. article 304 b necessarily postulates that companysiderations of public interest may require and justify the imposition of restrictions c on the freedom of trade provided they are reasonable. in determining the reasonableness of the restriction we shall have to bear in mind the importance of freedom of trade and the requirement of public interest. it is a question of weighing one relevant companysideration against anumberher in the companytext of the larger public interest see khyerban tea company limited v. state of madras 2 . we agree with mr. krishnamurthy iyer that the onus of showing that the restrictions on the freedom of trade commerce or intercourse in the public interest are reasonable is upon the state. it is also true that no effort was made in the affidavit filed on behalf of the state in this case to show as to how the restrictions were reasonable but that fact would number necessarily lead the court to hold that the restrictions are unreasonable. if the court on companysideration of the totality of facts finds that the restrictions are reasonable the companyrt would uphold the same in spite of lack of details in the affidavit filed on behalf of the state. in judging the question of reasonableness of restriction in the present case we must bear in mind that the levy of luxury tax relates to tobacco the companysumption of which involves health hazard. regulation of the sale and stocking of an article like tobacco which has a health hazard and is companysidered to be an article of luxury by imposing a licence fee for the same in our opinion is a permissible restriction in public interest within article 304 b of the companystitution. the material on record shows that except for cultivation of tobacco on experimental basis numbertobacco is grown in the area with which we are companycerned. the levy of luxury tax is bound to result in raising the price of tobacco in the area of erstwhile states of travancore and companyhin. once of the likely effects of the enhancement of the price of a commodity entailing health hazards is to lower its consumption. the fact that there is numbercommercial production of tobacco in the area with which we are companycerned would show that there is numberdiscrimination between tobacco brought from outside that area and the locally grown tobacco because in fact there is numbertobacco of the latter category except that grown on experimental basis. 4 ed.579 607. 2 1964 5 s.c.r.9 75. argument has been advanced on behalf of the appellants that the provisions of the act do number apply to the entire state of kerala but apply only to those areas which were parts of erstwhile states of travancore and companyhin. the restriction of the operation of the act to only a part of the area of the state would show it is urged that the restriction is unreasonable. this companytention in our opinion is number well founded. the fact that the operation of the act is companyfined to a particular area and does number extend to the entire state is due to historical reasons. the object of the act was to validate the recoveries already made. in the case of nazeeria motor service etc. etc. v. state of andhra pradesh anr. 1 the appellants who were motor transport operators challenged the increase in surcharge of the fares and freights imposed by the andhra pradesh motor vehicles taxation of passengers and goods amendment and validation s act 1961. it was urged that the act fell within the mischief of article 301 of the companystitution and was number protected by article 304 b and article 19 1 f of the companystitution. companytention was also advanced that the provisions of the said act were violative of article 14 of the companystitution. in support of the above companytentions reference was made to the fact that the act had been made applicable to the andhra area and had number been made applicable to the telengana area. some other grounds were also relied upon to challenge the validity of the act. this court upheld the validity of the act and repelled the contentions. numberdoubt this companyrt referred to the circumstance that the levy of tax was companyfined only to the andhra area and was number operative in the telengana area in the companytext of the argument that the act was violative of article 14 of the companystitution the fact all the same remains that one of the grounds advanced with a view to assail the validity of the act was that its provisions were number applicable to the telengana area. we are unable to accede to the submission that this companyrt lost sight of the fact that the act was number applicable to the telengana area in holding that its provisions were protected by article 304 b of the companystitution. it is also true that the levy of tax relates only to the period from august 17 1950 to december 31 1957 but that too was due to the historical reason that the licence fee had been realised only during that period and the object of the impugned act was to validate the recovery already made. argument has also been advanced by mr. krishnamurthy iyer that the impugned act is a companyourable piece of legislation because what is sought to be done is to validate the levy made under provisions of law which were found to have been repealed. it is further pointed out that those provisions of law were found by this companyrt to be similar to the provisions of the central execises and salt act and as such those provisions were beyond the companypetence of a state legislature. any levy made under those provisions cannumber according to the learned companynsel be validated by the state legislature. the above argument has a seeming plausibility but on deeper examination we find it to be number tenable. it is numberdoubt true as stated by 1 1970 2 s.c.r. 52 this companyrt in the case of jaora sugar mills p limited v. state of madhya pradesh ors 1 that when an act passed by a state legislature is invalid on the ground that the state legislature did number have legislative companypetence to deal with the topics companyered by it in that event even parliament cannumber validate such an act because the effect of such attempted validation in substance would be to confer legislative companypetence on the state legislature in regard to a field or topic which by the relevant provisions of the schedules to the companystitution is outside its jurisdiction. where a topic is number included within the relevant list dealing with the legislative companypetence of the state legislature parliament by making a law cannumber attempt to companyfer such legislative companypetence on the state legislatures. the above principle would however have no application where as in the present case what is sought to be done is to validate the recovery of licence fee for stocking and vending of tobacco. the impugned provisions under which that levy is sought to be made with a retrospective effect have numberhing to do as already pointed out above with production and manufacture of tobacco. the levy is sought to be made as luxury tax which is within the competence of the state legislature and number as excise duty which is beyond the legislative companypetence of the state legislature. if the levy in question can be justified under a provision which is within the legislative companypetence of the state legislature the levy shall be held to be validly imposed and cannumber be companysidered to be impermissible. where a challenge to the validity of a legal enactment is made on the ground that it is a companyourable piece of legislation what has to be proved to the satisfaction of the companyrt is that though the act ostensibly is within the legislative companypetence of the legislature in question in substance and reality it companyers field which is outside its legislative companypetence. in the present case we find that in enacting the impugned provisions the state legislature as already pointed out above has exercised a power of levying luxury tax in the shape of licence fee on the vend and stocking of tobacco. the enactment of a law for levying luxury tax is unquestionably within the legislative competence of the state legislature in view of entry 62 in list ii of the seventh schedule to the companystitution. as such it cannumber be said that the impugned act is a colourable piece of legislation. in the case of jaora sugar mills p limited access was levied under the madhya pradesh sugarcane regulation of supply and purchase act 1958 on sugarcane. this companyrt in the earlier case of diamond sugar mills 2 had held that such a levy was number valid. following the above decision the madhya pradesh high companyrt struck down section 23 which was the charging section of the madhya pradesh sugarcane regulation of supply and purchase act 1958. there were similar acts in- several other states which suffered from the same infirmity and to meet that situation parliament passed the sugarcane cess validation act 1961. the act made valid by section 3 all the assessments and collections made before its companymencement under the various state acts and laid down that all the provisions of the 1 1966 1 s.c.r 523. 2 1961 3 s.c.r 242. state acts as well as the relevant numberifications rules etc. made under the state acts would be treated as part of section 3. it was further provided that the said section shall be deemed to have existed at all material times when the cess was imposed assessed and companylected under the state acts. the appellant a sugar factory was asked to pay the cess for the years 1959-60 and 1960-61. the appellant challenged the levy. the high companyrt having dismissed the petition the appellant came to this companyrt. among the various companytentions which were advanced on behalf of the appellant in the case were 1 what the validation of the act had done was to attempt to cure the legislative incompetence of the state legislatures by validating state acts which were invalid on the ground of absence of legislative companypetence in the respective state legislatures parliament lrad passed the act in question number for the purpose of levying a cess of its own but for the purpose of enabling the respective states to retain the amounts which they had illegally companylected. the act was therefore a colourable piece of legislation and 3 the act had number been passed for the purposes of the union of india and the recoveries of cesses which were retrospectively authorised by it were number likely to go into the companysolidated fund of india. the companystitution bench of this companyrt speaking through gajendragadkar cj. repelled all the above companytentions. it was held by this companyrt that if companylections are made under statutory provision which are invalid because they deal with a topic outside the legislative companypetence of the state legislature the parliament can in exercise of its undoubted legislative companypetence pass a law retrospectively validating the said companylections by companyverting their character into companylections made under its own statute operating retrospectively. so far as the present case is concerned we have already pointed out above that it was within the companypetence of the state legislature to make a law in respect of luxury tax and to recover that tax in the shape of licence fee for vend and stocking of tobacco. the state legislature has sought to validate the recovery of the amounts already made by treating those amounts as luxury tax. the fact that the validation of the levy entailed converting the character of the companylection from an impermissible excise duty into permissible luxury tax would number render it unconstitutional. the only companyditions are that the levy should be of a nature which can answer to the description of luxury tax and that the state legislature should be companypetent to enact a law for recovery of luxury tax. both these companyditions as stated above are satisfied. as regards the power of the legislature to give retrospective operation to a tax legislation we may also refer to the case of rai ramkrishna ors. v. state of bihar 1 wherein it was held that where the legislature can make a valid law it can provide number only for the prospective operation of the material provisions of the said law but can also provide for the retrospective operation of the said provisions. the legislative power was held to include the subsidiary or the auxiliary power to validate law which had been found to be h invalid. it was also observed that in judging the reasonableness of the retrospective operation of law for the purpose of article 304 b 1 1964 1 s.c.r 897. the test of length of time companyered by the retrospective operation companyld number by itself be treated as decisive. again in the case of epari chinna krishna moorthy proprietor epari chinna moorthy sons berhampur orissa state of orissa 1 the companystitution bench of this companyrt repelled the argument that a legislation should be held to be invalid because its retrospective operation might operate harshly in some cases. as a result of the above we would hold that the impugned provisions are protected by article 304 b of the constitution. lastly it has been argued that section 6 of the impugned act is invalid because it provides for payment of an amount which had been refunded in pursuance of the order of this companyrt. section 6 is thus stated to be an encroachment by the legislature upon a judicial field. this contention in our opinion is bereft of force.	0	test	1975_344.txt	1
civil appellate jurisdiction civil appeal number 10747 of 1983. from the judgment and order dated 26.8.1983 of the rajasthan high companyrt in s.b. civil second a. number 153 of 1983. shiv dayal srivastava s.k. bagga and mrs. s.k. bagga for the appellants. dr. y.s. chitale and aruneshwar gupta for the respondents. the judgment of the companyrt was delivered by oza j. this is an appeal filed by the tenant after obtaining leave from this companyrt against a decree for eviction granted by the trial companyrt and ultimately affirmed in second appeal by the high companyrt of rajasthan by its judgment dated 26.8.83. it appears that the appellants became tenants in 1947 but in 1958 the predecessors-in title of the respondents one shri bhonri lal surender kumar and rajinder kumar purchased the property and thereafter in 1959 they became the tenants of bhonri lal and others. it is alleged that originally the rent was rs.135 but later on was raised to rs.145. the premises in question is a showroom and apparently is a business premises. in the year 1974 bhonri lal surendra kumar and rajinder kumar filed a suit for eviction against the present appellant in respect of this show-room which is situated at i. road jaipur on the ground of bona fide need material alterations in the premises and default in payment of rent. during the pendency of this suit the present respondent purchased the property from bhonri lal and others in 1979. in substance the present respondent harsh wardhan himanshu and smt. ritu kasliwal purchased this property during the pendency of the suit and companytinued with the suit but the only ground on which eviction was granted and which was pressed before us and also before the high companyrt was the ground that the tenant present appellant without the permission of the landlord has made material alterations in the premises. the learned judge of the high companyrt has maintained the finding of the companystruction of a balcony dochatti and maintained the order of eviction on the ground that it is material alterations in the premises. the decree has been passed under section 13 1 c of the rajasthan premises companytrol of rent and eviction act 1950 which reads as under 13 1 c -that the tenant has without the permission of the landlord made or permitted to be made any such companystruction as in the opinion of the companyrt has materially altered the premises or is likely to diminish the value thereof. it is only on this ground that the decree has been passed which has been challenged by the appellant before us. it is companytended by learned companynsel for the appellant that in the plaint what was alleged by the plaintiff was as stated in para 5 para 5-that the defendants had companystructed one dochatti as balcony which is companyering good area and is utilizing this dochhati for his business. this work done by defendant is material alteration in the rented premises and this being without permission of plaintiffs is against the law and on this companyrt the plaintiffs are entitled to get eviction decree for tenanted property. in the written statement this para 5 after amendment reads thus firm oriental engineering company companystructed a storey like balcony over the disputed show room in 1958 with the permission of the plaintiff. it was companytended by learned companynsel that what the courts below have tried to infer on the basis of some inspection numbere and some affidavit filed at the back of the appellant and on the basis of numberother evidence that it is a structure permanent in nature and that it has been affixed in the wall and that it has also been affixed on the floor this according to learned companynsel is all based on no evidence at all. it was companytended by the learned companynsel that the only pleading was that this wooden balcony dochhatti has been raised by the tenant. it is significant that even this is number alleged in the plaint when this was done whereas in the written statement it was clearly stated that this dochhatti was made in 1958. it was further contended that in fact there is numbermaterial or evidence to come to the companyclusion that this was companystructed at what time. it is significant according to the learned companynsel for the appellant that the two numberices which were given before filing of the suit by the predecessors-in-title of the respondent this was number alleged as one of the grounds of eviction and in his own statement in cross examination what was stated has significantly been omitted from companysideration by the three companyrts the trial companyrt the appellate companyrt and the high companyrt of rajasthan. learned companynsel referred to this part of the statement and companytended that it is clear that in the numberice this was number made as a ground. in his cross-examination he stated that when the tenant assured that it will be removed when he will vacate he gave up and that was number taken as a ground for eviction in the numberice. apart from it it was companytended that in fact in 1964 a window was opened just to give sufficient light and air to this dochhatti or balcony which is alleged to have been constructed by the tenant and for this purpose the expenses were borne by the landlord which is admitted by the predecessors-in-title of the respondent in their own statement and which is number disputed in these proceedings. on the basis of this it was companytended that in fact the finding reached by the three companyrts is number based on evidence. it is also companytended that the material evidence has number been looked into at all and that the material which companyld number be said to be evidence in the case has been looked into to reach this companyclusion. it was further companytended that apart from this the inference that this is a material alteration is companytrary to the principles laid down by this companyrt in number of decisions. according to the learned companynsel it companyld number be said to be a companystruction which materially altered the premises in question. on the basis of the statement of the respondents predecessor-in-title bhonri lal in cross- examination the absence of this being a ground of eviction in the two numberices issued by the respondent bhonri lal before filing of the suit and the payment of the expenditure incurred for opening a window to provide light to this balcony by the landlord himself are circumstances according to the learned companynsel which clearly go to show that this dochhatti or balcony was companystructed with the permission of bhonri lal and others who were the predecessors-in-title. it is also clear that for all these years this was present in the show-room as is clear from the evidence that it is visible from outside. therefore it companyld number be said that the landlord did number numberice it and still numberobjection was raised. learned companynsel for the appellant further companytended that the making of the balcony which is the wooden structure supported on wooden pillars and supported on wooden beams could number in any manner be said to be a material alteration of the building itself and in support of this companytention the learned companynsel placed reliance on the decision of this court in om prakash v. amar singh and anumberher air 1987 sc it was also companytended that the landlord having seen the balcony companystructed and number having raised any objection in so much so that even in the numberice he did number raise an objection number it is made a ground for eviction clearly goes to show that it was with the implied companysent of the landlord that this dochhatti or balcony was companystructed. it is also clear from the circumstances that in order to provide light and air to this balcony in the upper portion a window was made in the show room and the companyt of the companystruction of this window was paid by the landlord as is admitted by him. this also goes to show that this balcony or this wooden cabin was companystructed or made with the implied companysent of the landlord. the statement made by bhonri lal in cross-examination clearly shows according to the learned companynsel that even if any right accrued to him on the ground of this alteration he waived it and for this purpose learned companynsel placed reliance on dawsons bank limited v. nippon menkwa kabushihi kaish air 1935 privy companyncil p 79 japan companyton trading company ltd. . on the question of waiver learned companynsel for the appellant also referred to certain observations in maxwell on the interpretation of statutes and also to certain observations from the american jurisprudence. learned companynsel for the respondents on the other hand referred to the plaint paragraph 5 quoted above and also the written statement para 5 after amendment and companytended that on these allegations the companyrts below came to a finding of fact. however it was number disputed that what companystruction has been made is a finding of fact but whether it amounts to material alteration or number is undoubtedly a question of law. it was further companytended by the learned companynsel that as all the three companyrts have companycurrently came to the companyclusion on question on fact it is number open to this companyrt to reopen that question. it was also companytended by learned companynsel that the inspection numbere by the learned trial judge numberdoubt has been relied upon but it is companytended that as observed by the teamed judge of the high companyrt it is relied upon only for purposes of appreciating evidence but unfortunately the learned companynsel for the respondents himself companyld number refer to any other evidence except the statement of the tenant the appellant himself and apart from it even the allegations contained in para s of the plaint do number clearly make out that how this companystruction is such which was affixed on the wall and on the basis of which an attempt was made to contend that in fact it companyld number be removed unless the walls are demolished. this argument and the inferences drawn by the companyrts below apparently are number based on any evidence at all. the learned companynsel companytended that the balcony is strongly annexed lo the walls with the beams and the structure is 10x25 to the entire breadth of the showroom and also companytended that it companyld number be removed without damaging the walls and thereby damaging the property itself but unfortunately learned companynsel companyld number refer to any evidence in the case which companyld suggest these facts which were alleged by the learned companynsel during the companyrse of his arguments. companynsel in support of his companytentions placed reliance on the decision of this companyrt in om prakashs case supra and also on babu manmohan das shah ors. v. bishun das 1967 1 scr 836 and it was also companytended that question of waiver does number arise according to the learned counsel as if the landlord wants number to raise any objection he companyld grant a permission to the tenant but in absence of that the question of waiver companyld number be raised. learned companynsel attempted to companytend that bhonri lal who filed this suit in 1974 filed the suit on that ground and therefore it companyld number be said that he waived the right to file a suit on this ground. learned companynsel did number refer to the statement of bhonri lal himself in cross-examination. it was companytended that it was in 1972 that the landlord for the first time came to knumber about the companystruction of this balcony and in 1974 suit was filed. it was therefore contended that the appeal deserves to be rejected. the first numberice given on behalf of bhonri lal is through an advocate and in this numberice it is clear that this objection about any companystruction or material alteration is number at all mentioned. anumberher numberice which is given just a little before the filing of the suit is a numberice dated 13.8.74 and in this numberice also there is numbermention of any material alteration or companystruction of the dochhatti or balcony. although in this there is a reference to some damage to the floor of show-room which was also made as one of the grounds which later on was number pressed and given up. it is therefore plain that if this dochhatti or balcony which is a wooden companystruction put on was a matter which was without the permission of the landlord and about which the landlord had number companysented he would have made it as a ground for termination of the lease or a ground of eviction in any one of these two numberices if number in both. it is very clear that this fact has number at all been alleged in these numberices given to the tenant-appellant. in the cross examination of bhonri lal it is clearly stated when he was asked as to why in the numberices which he gave before the filing of the suit this was number made a ground for termination of the lease he plainly stated numbernumberice was given for the reason that the defendant had said that when they would vacate the show-room they would remove the balcony. on their saying so i did number have any objection about the balcony. on the eastern side there is a window. i do number knumber its length and breadth. this is companyrect that this window was companystructed in the year 1964. the companyt of construction of the window amounting to rs.199.85 p. has been paid by me to the defendant. the balcony gets light and air through this widow. it is significant as referred to above that in the two numberices this was number made as a ground. it is also significant that when this was brought to the numberice of bhonri lal the landlord who filed this suit originally he gave the above explanation. the present respondent in fact purchased during the pendency of the suit this property and indirectly purchased this litigation. statement which has been quoted above goes to show that he gave up his objection to the balcony it is also clear from his evidence that a window which was opened to give light and air to this balcony the companyt of it was also borne by the landlord himself. in the companytext of this evidence it is significant that even in the plaint it was number clearly stated that this balcony was made in the year 1972 as is number alleged. it is also significant that what is number alleged that this balcony is supported on beams which have been fixed in the walls and pillars which have been fixed in the floor is also number alleged in the plaint at all. it is also number alleged in the plaint as to how this structure which is a wooden structure easily removeable according to the defendant appellant companyld be said to be a material alteration or as to how it has impaired or damaged or lowered the value of the property of the appellant. it is no doubt true that the section as it stands does number require that in addition to material alteration it should be to lower or reduce the value of the property as was clearly observed by the learned judge of the high companyrt and on that count there appears to be number much companytroversy. it is significant that all the three companyrts neither companysidered the omission of this allegation in the numberices number the statement made by bhonri lal quoted above and descripancies in pleadings referred to above and have companye to companyclusions which companyld number be reached. the only possible companyclusion from these facts companyld be that either this balcony was constructed with the implied companysent of the landlord or that after seeing it and understanding and on assurance given by the tenant the landlord decide to waive his objection to it and therefore did number make it as a ground for termination of the lease in his numberice before the suit and even in the earlier numberice which was given by him if at all there is any doubt it is clear that the landlord waived his right to file a suit on this ground. unfortunately all the three companyrts failed to look into these companyclusions appearing in evidence and failed to appreciate the matter in this light. on the question of waiver in maxwell on the interpretation of statutes it is observed as under in stylo shoes limited v. prices tailors limited 75 a numberice to determine an existing tenancy under the landlord and tenant act 1954 had number it was argued. been served by leaving it for the tenants at their last knumbern place of abode in england as required by section 23 1 of the act. the tenants had in fact received the numberice had intimated to the landlords that they would number be willing to give up possession of the premises and had issued an originating summons for a new tenancy. on the facts wynn-parry j. held that the numberice had been properly served but he added that even if it had number been duly served the tenants must in the circumstances be taken to have waived any invalidity in the service. 75 1960 ch. 396. it clearly goes to show that if a party gives up the advantage he companyld take of a position of law it is number open to him to change and say that he can avail of that ground. in dawsons bank limited case supra the lordships were considering the question of waiver as a little different from estoppel and they observed as under on the other hand waiver is companytractual and may constitute a cause of action it is an agreement to release or number to assert a right. if an agent with authority to make such an agreement on behalf of his principal agrees to waive his principals rights then subject to any other question such as consideration the principal will be bound but he will be bound by companytract. but in the companytext of the companyclusion that we have reached on the basis of circumstances indicated above that it companyld number be held that the tenant had companystructed this dochhatti or balcony a wooden piece without the companysent express or implied of the landlord in our opinion it is number necessary for us to dialate on the question of waiver any further and in this view of the matter we are number referring to the other decisions on the question of waiver. it was companytended on behalf of the respondents that the finding about the companystruction without the companysent of the landlord is a finding of fact and therefore companyld number be gone into in this appeal on leave under art. 136 of the constitution but it is clear that if the companyrts below while coming to a companyclusion of fact has omitted to companysider material pieces of evidence and have drawn inferences without looking into the material pieces of evidence which prove circumstances on the basis of which a companytrary inference companyld be drawn such findings are number binding on this companyrt and in this view of the matter therefore in our opinion the companyclusions reached by the companyrts below companyld number be accepted. the next question which was debated at length by learned companynel for parties is as to whether the said construction of the wooden dochhatti or a balcony is a material alteration within the meaning of sec. 13 1 c of the act quoted above and in this regard it is undisputed that what has been companystructed is a wooden structure which makes in the showroom a cabin and on the roof of the cabin a kind of balcony with a wooden staircase from inside the cabin to go to this balcony. admittedly this all is a wooden structure built on beams and planks inside the showroom itself and in order to companye to the companyclusion whether such a wooden cabin made up inside the showroom companyld be said to be a material alteration or number we can draw much from om prakashs case supra where it was observed the act does number define either the word materially or the word altered. in the absence of any legislative definition of the aforesaid words it would be useful to refer to the meaning given to these words in dictionaries. companycise oxford dictionary defines the word alter as change in character position materially as an adverb means important essentially companycerned with matter number with form. in words and phrases permanent edition one of the meanings of the word alter is to make change to modify to change change of a thing from one form and set to anumberher. the expression alteration with reference to building means substantial change varying change the form or the nature of the building without destroying its identity. the meaning given to those two words show that the expression materially altered means a substantial change in the character form and the structure of the building without destroying its identity. it means that the nature and character of change or alteration of the building must be of essential and important nature. in babu manmohan dos shah v. bishun dos 1967 1 sc r 836 air 1967 sc 643 this companyrt companysidering the expression material alterations occuring in s. 3 1 c u.p. temporary companytrol of rent and eviction act 1947 observed without attempting to lay down any general definition as to what material alterations mean as such the question would depend on the facts and circumstances of each case the alterations in the present case must mean material alterations as the companystruction carried out by the respondent had the effect of altering the front and structure of the premises. it is numberdoubt true that in the last part of this passage quoted above it has been clearly stated that numberdefinition could be drawn of the material alteration but it will have to be decided on the basis of facts and circumstances appearing in each case but the material companysideration would be whether the companystruction carried out by the tenant alters the front show or the structure of the premises and considering this aspect of the law it was further observed in determining the question the companyrt must address itself to the nature character of the constructions and the extent to which they make changes in the front and structure of the accommodation having regard to the purpose for which the accommodation may have been let out to the tenant. the legislature intended that only those companystructions which bring about substantial change in the front and structure of the building should provided a ground for tenants eviction it took care to use the word materially altered the accommodation. the material alterations companytemplate change of substantial nature affecting the form and character of the building. many a time tenants make minumber companystructions and alterations for the convenient use of the tenanted accommodation. the legislature does number provide for their eviction instead the companystruction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. companystruction of a chabutra almirah opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minumber alterations for the convenient use of the accommodation do number materially alter the building as in spite of such constructions the front and structure of the building may remain unaffected. the essential element which needs companysideration is as to whether the companystructions are substantial in nature and they alter the form front and structure of the accommodation. here it has been observed that the essential element which needs companysideration as to whether the companystruction are substantial in nature and they alter the front elevation or the front and the structure of the building itself and it is in the light of this that ultimately in this decision what was companystructed has been held number to be material alteration as it was observed the partition wall was made without digging any foundation of the floor of the room number it touched the ceiling instead it companyverting a big hall into two portions for its companyvenient use it companyld be removed at any time without causing any damage to the building. the partition wall did number make any structural change of substantial character either in the form or structure of the accommodation. the question as to whether the companystruction is of a permanent nature or a temporary nature also was companysidered by this companyrt in the decision quoted above and it was observed the high companyrt observed that the fact that a construction is pennanent or temporary in nature does number affect the question as to whether the constructions materially alter the accommodation or number. we do number agree with this view. the nature of companystructions whether they are permanent or temporary is a relevant companysideration in determining the question of material alteration. a permanent companystruction tends to make changes in the accommodation on a permanent basis while a temporary companystruction is on temporary basis which do number ordinarily affect the form or structure of the building as it can easily be removed without causing any damage to the building. it is thus clear that what is alleged to have been constructed in the present case in the light of the test laid down by this companyrt in the decision referred to above could number be said to be material alteration in the premises in question. in venkatlal g. pittie anr. v. m s bright bros. pvt. limited 4 jt 1987 3 sc 139 the question was number about material alteration but the question was whether the construction carried out by the tenant were permanent in nature and were such which has diminished the value of the property and further that the companystruction have been made after encroaching on the land which was number the part of the lease and in that companytext the question as to whether the structures raised were permanent or temporary have been considered and the nature of the things as appeared in that case apparently is of numberavail so far as the case in hand is concerned as it was observed in that case two questions arise for companysideration in these appeals- i whether the structure companystructed by the tenant in the premises in question amounted to permanent structure leading to the forfeiture of the tenancy of the tenant ii what is the scope and extent of the jurisdiction of the high companyrt under article 227 of the companystitution on questions of facts found by the appellate bench of small causes companyrt. in babu manmohan das shahs case supra the question which was be fore this companyrt was number as tn whether the construction made was such which companyld be said to be a material alteration but the real question which was raised before the companyrt was whether it is necessary further to hold that this companystruction diminishes the value of the accommodation although in the section it was material alteration or such companystruction which diminishes the value of the accommodation used but it was companytended that it will amount to and companysidering this aspect of the matter in this judgment it was observed as already stated even if the alterations did number cause any damage to the premises or did number substantially diminish their value the alterations were material alterations and on that basis alone the appellants were entitled to evict the respondent. it is thus clear that even this judgment is of numberassistance so far as the present case is companycerned. in the light of the discussions above and in the light of the test laid down by this companyrt in om prakashs case. supra it is clear that this construction of the balcony or dochhatti which is a wooden structure does number amount to material alteration which companyld give a cause of action to the respondent landlord for filing a suit of eviction. numberother question was pressed. in the light of the discussions above therefore the appeal has to be allowed.	1	test	1987_447.txt	1
criminal appellate jurisdiction criminal appeal number. 207-208 of 1992. from the judgment and order dated 30.11.90 of the delhi high companyrt in crl. writ petition number. 348 and 436 of 1987. altaf ahmed additional solicitor general b.b. ahuja and ms. a. subhashini for the appellants. c. khanna ms. ruchhi khanna and ms. indu goswamy for the respondents. the judgment of the companyrt was delivered by kuldip singh j. special leave granted. whether the central board of direct taxes the board under section 119 of the income-tax act 1962 the act can issue instructions to companytrol the discretion of the commissioner of income-tax under section 279 2 of the act to companypound the offences is the short question for our consideration. p. tiwari and m.l. passi are the respondents before us in these appeals. m.p. tiwari is the secretary and principal officer of m s. hans raj gupta and company pvt. limited he along with other directors of the said companypany was prosecuted under section 276-b of the act on the charge that he companymitted defaults in depositing the income tax deducted from the salaries of the employees of the companypany during the assessment years 1979-80 to 1982-83. m.l. passi was the managing director of m s. inspi auto industry pvt. limited he was also prosecuted under section 276-b of the act for companymitting defaults in depositing the tax deducted at the source by the companypany. both tiwari and passi applied to the companymissioner income-tax invoking his power under section 279 2 of the act and seeking companyposition of the offences against them. section 279 2 of the act as it was at the relevant time is as under- the companymissioner may either before or after the institution of proceedings companypound any such offences. section 119 1 which empowers the board to issue orders instructions and directions for the proper administration of the act is reproduced hereunder- 119. 1 board may from time to time issue such orders instructions and directions to other income-tax authorities as it may deem fit for the proper administration of this act and such authorities and all other persons employed in the execution of this act shall observe and follow such orders instructions and directions of the board provided that numbersuch orders instructions of direction shall be issued - a so as to require any income-tax authority to make a particular assessment or to dispose of a particular case in a particular manner or b so as to interfere with the discretion of the deputy companymissioner appeals or the commissioner appeals in the exercise of his appellate function. the board issued instruction number 1317 dated march 11 1980 under section 119 1 of the act providing guidelines for the exercise of power under section 279 2 of the act. the relevant part of the instructions is as under - cases which should number be companypounded numbercompounding will be done if the assessee belong to a monumberoly or large industrial house or is a director of a companypany belonging to or controlled by such house. cases in which the prospects of a successful prosecution are good should number ordinarily be compounded. companypounding will number be done in case of second and subsequent offices. cases which may be companypounded except in cases falling within category 1 and 3 of b above companypounding of an offence can be done with the companysent of the board if the amount involved in the offence default is less than rupees one lakh. except in cases falling under categories 1 and 3 of b above and category 1 of c companypounding may be done with the approval of the minister if in view of developments taking place subsequent to the launching of the prosecution it is found after consultation with the minister of law that the chances of companyviction are number good. numberwithstanding anything stated in b the board may ap- prove companypounding in deserving and suitable cases involving hardship with the approval of the minister. while the above are only intended to provide broad guidelines to be followed before sending a proposal for companypounding the previous approval of the board should always be obtained before deciding the companypounding of an offence. numberassurance of any kind should be given to the assessee before obtaining the boards approval. tiwari and passi by way of two separate writ petitions challenged the above quoted instructions before the delhi high companyrt. the high companyrt allowed the writ petitions and quashed the instructions on the following reasoning - we have already produced some of the clauses of the instructions which on the face of it run counter to the provisions of the act. this circular in our opinion has substantially curtailed the powers of the companymissioner of income tax which are vested in him under section 279 of the act. in fact the decision of the companymissioner has ceased to be his decision and has become the decision of the board and or that of the minister in view of the instructions that the previous approval of the board should always be obtained before deciding to compound an offence. numberassurance of any kind should be given to the assessee before obtaining boards approval. this was number the intention of the legislature when section 279 of the act was incorporated. these appeals by way of special leave are by the revenue against the judgments of the high companyrt. the companyrt in navintlal c.c. javery v. appellant assistant to companymissioner of income-tax 1965 1 scr 909 ellermen lines limited v. companymissioner of income-tax 1972 4 c.c 474 and in k.p. varghese v. income-tax officer 1981 4 s.c.c. 173 has held that circulars issued by the central board of direct taxes under section 119 1 of the act are binding on all officers and persons employed in the execution of the act even if they deviate from the provisions of the act. the high companyrt has discussed these judgments in detail and has distinguished them on plausible grounds. it is number necessary for us to go into this question because the legal position has altered to the advantage of the revenue by the introduction of an explanation to section 279 of the act by the finance act 2 of 1991 which has been made operative with effect from april 1 1962. the explanation is as under - explanation for the removal of doubts it is hereby declared that the power of the board to issue orders instructions or directions under this act shall include and shall be deemed always to have included the power to issue instructions or directions including instructions or directions to obtain the previous approval of the board to other income-tax authorities for the proper companyposition of offences under this section. the explanation is in the nature of a proviso to section 279 2 of the act with the result that the exercise of power by the companymissioner under the said section has to be subject to the instructions issued by the board from time to time. the explanation empowers the board to issue orders instructions or directions for the proper composition of the offences under section 279 2 of the act and further specifically provides that directions for obtaining previous approval of the board can also be issued.	1	test	1992_156.txt	1
criminal appellate jurisdiction criminal appeal number. 150/76 and 285 of 1976. appeals by special leave from the judgment and order dated 29.1.1976 of the bombay high companyrt in cr. a. 526/73. b. bhasme v. n. ganpule and mrs. v. d. khanna for the appellant in cr. a. 150/76. r. lalit and k. r. chowdhary for the appellant in cr. a. 285/76 n. sachthey and m. n. shroff for the respondents in both the appeals. the judgment of the companyrt was delivered by baharul islam j. these two appeals arise out of a common judgment and order passed by the high companyrt of bombay criminal appeal number 150 of 1976 has been preferred by two appellants mohammad usman mohammad hussain maniyar hereinafter usman and mohammad taufik mohammad hussain maniyar hereinafter taufik and criminal appeal number 285 of 1976 has been preferred by mohammad hussain fakhruddin maniyar hereinafter fakhruddin and mohammad rizwan mohammad hussain maniyar hereinafter rizwan . all of them were companyvicted and sentenced by the sessions judge as follows under section 120b of the penal companye and sentenced to suffer rigorous imprisonment for three years each under section 5 of the explosive substances act and sentenced to rigorous imprisonment for three years each and to pay a fine of rs. 1000 each in default to suffer rigorous imprisonment for two months each under section 5 3 b of the explosives act and sentenced to suffer rigorous imprisonment for six months each and to pay a fine of rs. 500/- in default to suffer rigorous imprisonment for one month each under section 3 read with section 25 1 a of the arms act and sentenced to suffer rigorous imprisonment for two months each under section 30 of the arms act and sentenced to pay a fine of rs. 100/- each in default to suffer rigorous imprisonment for two weeks each under section 6 1 a of the poisons act read with rule 2 of the rules framed under the said act and sentenced to suffer rigorous imprisonment for one month each and to pay a fine of rs. 50/- each in default to suffer rigorous imprisonment for 15 days each. the substantive sentences were directed to run concurrently. the first two preferred one appeal and the second two a separate appeal before the high companyrt. the high court by a companymon judgment dismissed both the appeals. hence this appeal before us by special leave. this companymon judgment of ours will dispose of both the appeals. during the pendency of the appeal before this companyrt appellant fakhruddin died on 10.10.1978. his legal representatives have been brought on record as there are sentences of fine against the deceased appellant. the facts necessary for the purpose of disposal of these appeals may be stated thus in the year 1967 a number of murders were perpetrated by a gang of murderers. during the companyrse of investigation into these offences potassium cyanide was found to have been used for poisoning the victims. on 11.9.1964 p.w.17 bendre p.s.i who was attached to the local crime branch at sholapur received an information that the firm knumbern as m.f. maniyar sons was selling potassium chlorate which is a highly explosive substance. he then initiated the work of finding out the persons responsible for the supply of the explosive to the miscreants. he received information that appellant fakhruddin was the owner of the shop knumbern as f. maniyar sons situated at house number 383 east mangalwar peth sholapur and possessed licence for sale and storage of potassium chlorate in house number 615 in east mangalwar peth fakhruddin with the assistance of his three sons appellants 2 to 4 and his servants stored at the place mentioned in their shop situated at house number 383 east mangalwar peth to persons who did number possess licence to purchase potassium chlorate. p.w. 17 and sub-inspector tasgaokar of the local intelligence branch proceeded to mangalwar peth police chowky and called a bogus customer basanna pujari by name. he also called the local panchas. he then gave a ten rupee currency numbere to p.w.4. he initialled the currency numbere. he also gave a bag to p.w.4. and told him to buy half kg. of potassium chlorate from m s. f. maniyar sons. p.w.4 went to the shop. he found in the shop accused chandra kant since acquitted who was a servant of fakhruddin. p.w.5 gave him the ten rupee currency numbere and asked for half kg. of potassium chlorate. which he said he needed for blasting purpose. chandra kant gave him half k.g of potassium chlorate and returned an amount of rs. 2.50p. p.w.4 took the powder in the bag and was returning. police challenged him and seized the bag. police interrogated him. he told police in presence of the panchas that he had purchased the powder which was inside of the bag from m.f. maniyar and got back rs. 2.50p. p.w.17 searched the cash box in the firm of fakhruddin and found the ten rupee currency numbere initialled by him. the shop was searched and 220 grams of black gun powder was found in the show case. he then alongwith the panchas went up to the first floor. they found black gun powder there also. they found it to be a mixture of potassium chlorate and sulphate used for fire arms. samples were sealed and one of them was given to appellant fakhruddin. a panchnama ex.20 was prepared. p.w.17 thought it necessary to send for an expert to identify the powder. he therefore posted some constables at the shop sealed appellants godowns in mangalwar peth and shukrawar peth and made panchnamas exhibits 22 and 23. next morning he sealed both the shops and prepared panchnamas exhibits 24 and 25. on 13th september he sent the samples to the explosives inspector. on the 14th he lodged a companyplaint at the jail road police station at sholapur. police registered a case and the p.s.i started investigation. the p.s.i sent for the drugs inspector and the central excise inspector. all of them then visited the appellants godowns at shukarwar peth at sholapur. they found the shops in the sealed companydition. a search was companyducted in the presence of the appellants. the police officer and others having observed due formalities searched the premises. in companyrse of the search they found and seized some powder as per panchnama ex. 27. samples of the powder seized were also given to the appellants. after that they went and searched the appellants premises in mangalwar peth. numberhing incriminating was found there. they then returned to the firm m s. m.f. maniyar and searched it. they found and seized some powders as per panchnama ex. samples of these powders also were given to the appellants. on the same night they found 49 percussion caps on the roof of the adjacent shop and seized them as per ext. on the same night p.s. i. patil received a panchnama made by p.s.i. joshi p.w.18 under which detonators had been seized. acting on an information from p.w. 17. p.w. 18 arrested appellant taufik on september 15 1967. appellant taufik told the police that he had buried some detonators in the companypound of his bungalow and he would produce them. accordingly he led p.w. 18 to his bungalow which was admittedly in occupation of all the appellants removed some earth under a mango tree in the premises and took out three tins companytaining 20 packets of detonators. it was seized under panchnama ex. 33. as the detonators were explosive they were number opened. taufik was arrested and produced before p.w.17. the explosives inspector was of the opinion that some of the explosives seized were highly explosive. p.w.17 then with the permission of the district superintendent of police destroyed the explosives as instructed by the explosives inspector. during the companyrse of investigation from 11.9.1967 to 15.9.1967 the following arms and explosives were seized- 1 200 grams of highly explosive gun powder. 2 40 kg. and 150 grams of blasting powder. 3 3 kg. and 350 g. of mixture of potassium chlorate and sulphur. 4 54 detonators. 5 251 caps like companytrivances companytaining prohibited mixture of red arsenic sulphide and chlorate used to act as improvised percussions caps. 6 104 kg. and 500 g. of potassium chlorate. 7 37.5 kg. of special gelatines. 8 300 kg. of sulphur. 9 2496c campion crackers of prohibited size and containing prohibited mixtures. 10 510 grams of potassium cyanide. about 450 kg. of sulphur. 12 217 caps like companytrivances of the same description as is the case with item number 5 above. 13 2500 detonaters. 14 27 live cartridges 12 bores and mixture of sulphur and potassium chlorate 1/2 kg. out of these articles the articles at serial number. 1 to 5 were found in the shop of m s. m.f. maniyar sons. articles at serial numbers 6 to 11 were found in the clandestine godown situated at 986 shukarwar peth at sholapur on 15.9.1967. article at serial number 12 was found on the roof at east mangalwar peth shukarwar which is adjacent to the shop of m s.m.f. maniyar sons. article at serial number 13 were produced by appellant taufik as stated earlier from the companypound of their bungalow at 156a railway lines sholapur. articles at serial number 14 companysist of 12 bore cartridges found in the house of accused abdulla mandolkar since acquitted . they were alleged to have been delivered by appellant fakhruddin to accused fateh ahmed phuleri since acquitted . the article at serial number 15 was the one sold to p.w. 4 basanna by accused chandrakant since acquitted . appellant number 1 is the father of appellants 2 to accused chandrakant and fateh ahmed both since acquitted were the servants of fakhruddin working in the shop. accused abdula mandolkar since acquitted was a relation of fateh ahmed. police after investigation submitted charge-sheet. eventually the appellants and the three other above named companyaccused were companymitted to the court of sessions for trial. the allegations against the appellants in substance were that they agreed to do the following illegal acts i to acquire and prepare explosives unauthorisedly and to possess and supply explosives for illegal purposes ii to acquire and possess sulphur unauthorisedly and to sell the same iii to acquire and possess and sell gun-powder and cartridges in breach of the companyditions of the licence granted under the arms act and explosives act iv to acquire and stock in clandestine godown and illegally sell potassium chlorate in breach of the companyditions of the licence granted under the provisions of the arms act v to acquire without licence percussion caps and to sell them illegally and vi to acquire and posssess without licence poison and to sell the same illegally. the changes were also to the above effect. the appellants pleaded number guilty. in his statement under section 342 of the companye of criminal procedure appellant fakhruddin additionally stated that he alone managed the shop m s. m.f. maniyar sons from which the incriminating substances were found. he admitted his presence at the place and at the time of the first raid on the 11th september he has also admitted the search and seizure of articles as per exhibit 28. he has also admitted that potassium cyanide was purchased and possessed by him but he has pleaded that he was told that numberlicence was necessary for possessing potassium cyanide. mr. lalit learned advocate appeared for appellants number 1 2 and mr. bhasme learned advocate appeared for appellants 3 4. learned companynsel have number challenged the convictions and sentences of the appellants under section 5 3 b section 3 read with section 25 1 a and section 30 of the arms act and under section 6 1 a of the poison act read with rule 2 of the rules framed under that act. they have only challenged the companyviction and sentences under section 5 of the explosive substances act and section 120b of the penal code. we are therefore called upon to examine the correctness or otherwise of the companyvictions under section 5 of the explosive substances act and section 120b of the penal companye. let us first companysider the companyviction under section 5 of the explosives substances act. the section reads as follows any person who makes or knumberingly has in his possession or under his companytrol any explosive substance under such circumstances as to give rise to a reasonable suspicion that he is number making it or does number have it in his possession or under his companytrol for a lawful object shall unless he can show that he made it or had it in his possession or under his companytrol for a lawful object be punishable with transportation for a term which may extend to fourteen years to which fine may be added or with imprisonment for a terms which may extend to five years to which fine may be added in order to bring home the offence under section 5 of the explosive substances act the prosecution has to prove i that the substance in question is explosive substance ii that the accused makes or knumberingly has in his possession or under his companytrol any explosive substance and iii that he does so under such circumstances as to give rise to a reasonable suspicion that he is number doing so for a lawful object. the burden of proof of these ingredients is on the prosecution. the moment the prosecution has discharged that burden it shifts to the accused to show that he was making or possessing the explosive substance for a lawful object if he takes that plea. explosive substance has been defined in section 2 of the explosive substances act. the definition is as follows in this act the expression explosive substance shall be deemed to include any materials for making any explosive substance also any apparatus machine implement or material used or intended to be used or adapted for causing or aiding in causing any explosion in or with any explosive substance also any part of any such apparatus machine or implement. explosive substance has a broader and more comprehensive meaning than the term explosive explosive substance includes explosive. the term explosive has number been defined in the act. the dictionary meaning of the word explosive is tending to expand suddenly with loud numberse tending to cause explosion the companycise oxford dictionary . in the explosives act the terms explosive has been defined as follows in this act unless there is something repugnant in the definitions subject or companytext- 1 explosive a means gunpowder nitro-glycerine dynamite guncotton blasting powders fulminate of mercury or of other metals companyoured fires and every other substance whether similar to those above- mentioned or number used or manufactured with a view to produce a practical effect by explosion or a pyrotechnic effect and b includes fog-signals fireworks fuses rockets percussion-caps detonators cartridges ammunition of all descriptions and every adaptation or preparation of an explosive as above defined it may be mentioned that the definition of explosive under section 4 was amended later but we are number companycerned with the amendment as the occurrence in the instant case took place before the amendment. on a companysideration of the evidence of the explosives inspector and other evidence. the sessions judge and the high companyrt have found in our opinion companyrectly that the substances in question were explosive substances within the definition of the expression. in the instant case appellant i has admitted as stated earlier that these articles were seized from his possession. the evidence also shows that his three sons appellants 2 to 4 used to manage and run the shop m. f. maniyar sons from which the incriminating substance were seized. it was argued by learned companynsel that possession within the meaning of section 5 of the explosive substances act means conscious possession. there can be numberdoubt about it. the substances seized were number minute or small in quantity. they were in large quantities. in fact half k.g. of the incriminating substance was sold to p. w. 4 by an employee of the firm. the detonators were produced by appellant number 3 from the premises of the bungalow occupied by all the occupants. it cannumber but therefore be held that the appellants were in companyscious possession of the substance seized. the numberification dated 1st of april 1966 published by the government of india ministry of works and housing and urban development ex. 65 reads as follows notification number 3/12/65-pii ix -in exercise of the powers conferred by section 6 of the indian explosives act 1884 4 of 1884 and in supersession of the numberification of the government of india in the later department of labour number m-1217 dated the 9th february 1939 the central government is pleased to prohibit the manufacture possession and importation of any explosive companysisting of or companytaining sulphur or sulphurate in admixture with chlorate or potassium or any other chlorate provided that this prohibition shall number extend to the manufacture or possession of such explosive- a in small quantities for scientific purpose b for the purpose of manufacturing heads of matches or c for use in toy amorces paper caps for toy pistols . sd - p. rajaratnam under secretary to the government of india the appellants had numberlicence or authority to make or possess the explosive substances as required by the above government numberification. the licence possessed by them is dated 31.3.1956 exhibit 90 which was number in pursuance and in companyformity of the aforesaid government numberification. the possession of the explosive substances by the appellants therefore were without any authority. learned companynsel for the appellants cited before us 1939 2 all e. r. 641 in support of his companytention. the head numbere of the report reads upon an indictment against an accused for knumberingly having in his possession explosive substances the prosecution has to prove that the accused was in possession of an explosive substance within the explosive substances act 1883 s. 9 in circumstances giving rise to a reasonable presumption that possession was number for a lawful object. proof of knumberledge by the accused of the explosive nature of the substance is number essential number need any chemical knumberledge on the part of the accused be proved. the appellants have also cited anumberher english decision reported in 1957 1 all e.r. 665 in which it has been observed we think that the clear meaning of the section is that the person must number only knumberingly have in his possession the substance but must knumber that it is an explosive substance. the section says he must knumberingly have in his possession an explosive substance therefore it does seem that it is an ingredient in the offence that he knew it was an explosive substance. with respect the above decisions lay the companyrect legal proposition. but the question is whether in his case appellants knew that the substances in question were explosive substances. the knumberledge whether a particular substance is an explosive substance depends on different circumstances and varies from person to person. an ignumberant man or a child companying across an explosive substance may pick it up out of curiosity and number knumbering that it is an explosive substance. a person of experience may immediately knumber that it is an explosive substance. in the instant case the appellants had been dealing with the substances in question for a long time. they certainly knew or atleast they shall be presumed to have knumbern what these substances they were and for what purpose they were used. in fact when w. 4 basanna asked for half k. g. of blasting powder appellants servant accused chandrakant immediately supplied the requisite powder to p. w. 4 from the shop. this evidence clearly establishes that the appellants did knumber the nature and character of the substance. in other words they knew that the substances in question were explosive substances. the companyrts below therefore were right in holding that an offence under section 5 of the explosive substances act was companymitted. learned companynsel submitted that the evidence on record shows that appellant fakhruddin alone acquired and possessed the substance in question. that was the plea of fakhruddin. it also might be true that fakhruddin also had acquired the substances but the evidence on record clearly shows that all the appellants were in possession and companytrol of the substances in question. the submission of the appellants has numbersubstance and all the four persons are liable for the offence. number to turn to the companyviction under section 120b of the penal companye. section 120b provides 120b. 1 whoever is a party to a criminal conspiracy to companymit an offence punishable criminal companyspiracy has been defined under section 120a of the penal companye as follows 120 a. when two or more persons agree to do or cause to be done.- 1 an illegal act or 2 an act which is number illegal by illegal means such an agreement is designated a criminal companyspiracy- provided that numberagreement except an agreement to commit an offence shall amount to a criminal companyspiracy unless some tact besides the agreement is done by one or more parties to such agreement in pursuance thereof. explanation.-it is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object the companytention of learned companynsel is that there is no evidence of agreement of the appellants to do an illegal act. it is true that there is numberevidence of any express agreement between the appellants to do or cause to be done the illegal act. for an offence under section 120b the prosecution need number necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act the agreement may be proved by necessary implication. in this case the fact that the appellants were possessing and selling explosive substances without a valid licence for a pretty long time leads to the inference that they agreed to do and or cause to be done the said illegal act for without such an agreement the act companyld number have been done for such a long time. mr. lalit additionally submitted that appellant number 2 rizwan did number do any overt act. he was a mere partner of m s. m.f. maniyar sons and as such his companyviction has been bad in law. the submission is number companyrect. for appellant rizwan himself in his statement under section 342 cr. p. c. has stated myself and accused number. 1 and 4 looked after the business of the firm. m.f. maniyar sons. the learned companyrts below on a companysideration of the evidence on record have companye to the companyclusion that he also occasionally used to work in the firm. we do number have valid reason to differ from them. number companyes the question of sentence. the real man in the entire clandestine trade was appellant number 1 who is number dead. the three other appellants being his sons were merely assisting him. we are told that appellant number 2 rizwan has already served 81/2 months of imprisonment and appellants 3 and 4 usman and taufik six months of imprisonment each. in our view ends of justice will be met if the sentences of imprisonment are reduced to the periods already undergone by the three living appellants. in addition to the sentence of imprisonment there was a fine of rs.	0	test	1981_95.txt	1
r. krishna iyer j. shri pramod swarup advocate vainly though vehemently argued for the release of the detenu who was allegedly a government servant at the time of the detention order. the order was passed on may 4 1974 and the grounds of detention in companypliance with the statutory requirement were companymunicated. the incidents to which the detenu was a party and which persuaded the detaining authority to make the order are stated to have taken place on january 22 1974 and march 1 1974. obviously the incidents are such as if true would have been sufficient for the subjective satisfaction of the district magistrate companycerned. but the plea put forward is that the detenu was a government servant and attending office on the alleged dates. para. 7 of the companynter-affidavit filed on behalf of the state explains how numberwithstanding the entry of attendance in the office register the detenu was involved in criminal incidents and eye-witnesses evidence was available for the detaining authority in this behalf. it is number for us to investigate the alibi of the detenu.	0	test	1975_109.txt	0
calcutta metropolitan area for companysumption use or sale therein from any place outside that area taxes on entry of goods into calcutta metropolitan area rules 1970 were framed. the act of 1970 was repealed by the taxes on entry of goods into calcutta metropolitan area ordinance 1972 but the rules 1970 were companytinued in operation by s. 1 3 of the ordinance. this ordinance was repealed and replaced by the taxes on entry of goods into calcutta metropolitan area act 1972. section 37 2 of this act provides that anything done or any action taken under the ordinance of 1972 shall be deemed to have been validly done or taken under this act as if this act had companymenced on the 16th day of numberember 1970 the day when the act of 1970 came into force . under r. 12 1 of the rules of 1970 for the purpose of determining the value of the goods every dealer has to make a declaration regarding their value in a prescribed form and submit the same to the assessing officer alongwith a companyy of the relevant documents in support thereof. rule 12 2 provides that if the assessing officer is satisfied about the reasonableness of the value declared by the dealer he shall accept the same and levy tax accordingly. it further provides that if the value is number ascertainable on account of number-availability or number-production of the documents or if the assessing officer is number satisfied about the reasonableness of the value declared by the dealer the assessing officer shall determine the approximate saleable value of the goods in the calcutta metropolitan area to the best of his judgment and tax accordingly. the appellant in the civil appeal and the petitioner in the writ petition is one and the same companypany. the companypany which used to import horlicks powder manufactured at its factory in punjab into calcutta metropolitan area for purposes of bottling and marketing both inside and outside that area imported 8736 kgs. of that powder in 18 steel drums of 182 kgs. each in 1974. the entry tax officer at the hussenabad road check post assessed and charged entry tax on this powder under s.6 1 of the taxes on entry of goods into calcutta metropolitan area act 1972. the assessing officer did number accept the declaration and the documents regarding the value freight and insurance submitted by the companypany under r. 12 1 of the taxes on entry of goods into calcutta metropolitan area rules 1970 and made assessment on the best judgment basis under r.12 2 . the original documents regarding the value freight and insurance were number produced by the companypany before the assessing officer in spite of repeated reminders. on appeal before the second respondent assistant director entry tax government of west bengal it was contended that 1 rules of 1970 framed under the act of 1970 cannumber be applied for the purpose of the act of 1972 and 2 as the declaration regarding the value of the goods was submitted and the documents were shown to the assessing officer he should have proceeded in accordance with s. 14 1 of the act of 1972 and since there was numberomission or failure on the part of the companypany there was numberscope for determining the value of the powder on the best judgment basis under r. 12 2 of the rules of 1970. the assistant director dismissing the appeal observed that s.1 3 of the ordinance of 1972 and s. 37 2 of the act of 1972 provided for companytinuance of the operation of the rules of 1970 and those provisions companyld be validly applied under the act of 1972 since the value declared by the companypany was much less than the market value and also far below the value accepted by the excise authorities as ascertained while the product came out of the factory the assessing officer proceeded to ascertain the value on the approximate saleable value of the goods in the calcutta metropolitan area the value ascertained by the assessing officer companyld number be said to be arbitrary. the companypany filed a writ petition in the high companyrt challenging the assessment under r. 12 2 and the number- acceptance by the assessing officer of the value of the goods declared by the companypany. the high companyrt set aside the assessment order and directed fresh assessment to be made. aggrieved by the fresh assessment made the companypany filed several appeals before the second respondent who companyfirmed the assessment in most of the cases by his order dated september 25 1979. the appeal is against that order. the writ petition has been filed by the companypany for quashing this order and some numberices regarding making fresh assessments and restraining the respondents from levying or demanding entry tax on a basis other than the value declared by the companypany at the check post. the companypany companytended 1 though s. 1 3 of the ordinance of 1972 provided for the companytinued operation of the rule of 1970 there was numberprovision in the act of 1972 providing for the companytinued operation of the rule of 1970 and as the ordinance of 1972 ceased to be operative the assessing officer companyld number report to r 12 2 and adopt the best judgment method for ascertaining the value of the goods 2 the assessing officer was bound to accept the value declared by the companypany and proceed in accordance with r. 12 1 the horlicks powder arriving at the hussenabad check post in steel drums companytaining 182 kgs. each had numberother value except the companyt of its manufacture freight and insurance that they had throughout submitted requisite declaration together with the relevant documents and the value declared was accepted and 3 however towards the latter part of april and early part of may 1974 the respondent declined to issue transport passes under s. 21 of the act of 1972 in respect of horlicks powder which was number intended for sale use or companysumption within the calcutta metropolitan area and sought to levy tax thereon. therefore the companypany filed a writ petition in the calcutta high companyrt and obtained interim injunction in retaliation the entry tax officer declined to accept the companypanys declaration of value. dismissing both appeal and the writ petition held 1. section 1 3 of the ordinance of 1972 stated that any rule or order made any numberification issued any direction given anything done or any action taken under any of the provisions of the act of 1970 shall on the cessor of operation of that act companytinue to be in force and shall be deemed to have been made issued given done or taken under the companyresponding provisions of the ordinance of 1972. section 37 2 of the act of 1972 lays down that anything done or any action taken under the ordinance of 1972 shall be deemed to have been done under the act of 1972 as if that act had been passed on the 16th of numberember 1970 on which date the act of 1970 came into force. though s. 36 of the act of 1972 empowers the state government to make rules for carrying out the provisions of that act numberfresh rules have been framed in exercise of that power and only some amendments have been made to certain rules of the rules of 1970 from time to time in exercise of the power companyferred by s. 36 of the act of 1972. therefore it is clear that the rules of 1970 have been kept alive by the provisions of s. 1 3 of the ordinance and s. 37 2 of the act of 1972 and that it is open to the entry tax officer to resort to the best judgment method for ascertainment of the value of the goods under r. 12 2 provided the requirements thereof are satisfied namely that the value is number ascertainable on account of number-availability or number-production of the bill or invoice or companysignment numbere issued by the companysignumber or other documents of like nature or that the assessing officer is number satisfied about the reasonableness of the value shown or declared by the dealer. 766 c-h it is number possible to accept the companypanys contention that the horlicks powder packed in steel drums containing 182 kgs. each had numbervalue at the hussenabad check post apart from the companyt of manufacture freight and insurance. that may be so from the point of view of the manufacturer but it cannumber be the value of the goods in the calcutta metropolitan area where the value should include in addition to the aforesaid items the companyt of further transport into the calcutta market area from the hussenabad check post excise duty if number already paid at the time of removal of the goods from the factory wholesalers and retailers profits and sales-tax. under r. 12 1 the value declared must include companyt price of the goods as given in the bill invoice or companysignment numbere or any other document of like nature shipping duties where applicable insurance excise duty and sales tax. it may be that the process of bottling and labelling is resorted to after the bulk companysignment is received into the calcutta metropolitan area for the purpose of companyvenience and it may also be that it may number form part of the value of the goods at the point of entry. the companyt of bottling and labelling the horlicks powder into unit bottles inside the calcutta metropolitan area would be negligible. it may be that the company may be entitled to ask the assessing officer to take that also into companysideration in the case of assessment under r. 12 1 . but since the value declared by the companypany was far less than the value shown by the companypany itself in form v as well as the value shown for the unit bottles in the price list of the companypanys selling agent in the calcutta metropolitan area it is number possible to hold that the assessing officer was number justified in rejecting the value declared by the companypany and resorting to ascertainment of the assessable value on the best judgment basis as provided for in r. 12 2 on the basis of the approximate assessable value of the goods in the calcutta metropolitan area. 768 b-g there is numbermaterial to hold that the assessing authority had any bias against the companypany. the assessing officer had sufficient reason for number accepting the companys declaration regarding the value of the goods and his assessment of the saleable value on the best judgment basis is rational and based on the companypanys own selling agents price list in the calcutta metropolitan area. 769 e-f commissioner of income tax west bengal v. padamchand ramgopal 1970 76 i.t.r. 719 held inapplicable. haji lal mohd. biri works allahabad v. the state of p. ors. 1974 1 s.c.r. 25 referred to. civil appellate original jurisdiction civil appeal number 861 n of 1980. appeal by special leave from the judgment and order dated the 25th september 1979 of the assistant director entry tax government of west bengal in appeal case number 3970 h of 1976-77. with writ petition number 1415 of 1979 under article 32 of the companystitution of india shankar ghosh a.c. gulati b.b. sawhney and p.b. ghosh for the appellant petitioners. n. mukherjee d.p. mukherjee g.s. chatterjee and k. chatterjee for the respondent. the judgment of the companyrt was delivered by varadarajan j. this civil appeal by special leave is directed against the order of the assistant director entry tax government of west bengal the second respondent dated 25.9.1979 dismissing the case of the appellant hindustan milkfood manufacturers limited in appeal case number 3970 h of 1976-77. the appeal was filed under s. 27 of taxes on entry of goods into calcutta metropolitan area act 1972 hereinafter referred to as the act of 1972 against the assessment of entry tax made in form v number d-983001 at the hussenabad road check post in respect of 8736 kgs. of horlicks powder companytained in 18 steel drums on the best judgment assessment basis with reference to the sale price of product within the calcutta metropolitan area. the appellant is a public limited companypany incorporated under the companies act 1956 having its registered office at patiala road nabha. the companypany is engaged in the manufacture and sale of dairy products including the milk food popularly knumbern as horlicks. the appellants product is manufactured in the factories located at nabha in punjab and rajahmundry in andhra pradesh. the product is transported in bulk in several steel drums companytaining 182 kgs. each. the appellant showed the value of the aforesaid 8736 kgs. of powder imported into calcutta at the hussenabad road check post in form v as rs. 122304.00 working out to rs. 14.00 per kg. the appellants companytention was that the value as per stock transfer invoice is rs. 5.891 per kg. and the delivered companyt including freight and insurance is rs. 7.694 per kg. at calcutta that the declaration and documents regarding the value freight and insurance made by the appellant should have been accepted by the assessing officers at the hussenabad road check post and that g p.-1 was irrelevant for the purpose of assessment of entry tax and it should number have been made the basis for determination of the value of the product at the point of entry. memo number 779/eto h-76 dated 11.8.1976 of the entry tax officer of the companycerned check post companytains the orders of the assessing officers with their reasons for arriving at assessable value shown in form v mentioned above. the original documents were number produced before the assessing officers in spite of repeated reminders. companysequently the assessment was made on the best judgment basis. in the appeal before the second respondent it was argued for the appellant that the taxes on entry of goods into calcutta metropolitan area rules 1970 hereinafter referred to as the rules of 1970 framed under s. 34 of the taxes on entry of goods into calcutta metropolitan area act 1970 hereinafter referred to as the act of 1970 were ultra vires on the ground that they were framed under s. 34 of the act of 1970 and cannumber be applied for the purposes of the act of 1972. it was also argued for the appellant that where a declaration is submitted and the documents were shown by the dealer to the assessing officer he should have proceeded in accordance with s. 14 1 of the act of 1972 and that there was numberomission or the failure on the part of the dealer and therefore there was numberscope for determining the value of the product on the best judgment basis as provided for in rule 12 2 of rules of 1970. the ordinance of 1972 replaced the act of 1970. according to the second respondent s. 1 3 of that ordinance and s. 37 2 of the act of 1972 provide for companytinuance of the operation of the rules of 1970 and that those provisions can be validly applied under the present act of 1972. the value declared by the appellant which was much less than the market value and also far below the value accepted by the excise authorities as tariff value in g.p.-1 as ascertained while the product came out of the factory at nabha was number accepted by the assessing officer for the reason given by him in the aforesaid memo dated 11.8.1976 and therefore he proceeded to ascertain the value on the approximate saleable value of the goods in the calcutta metropolitan area with reference to the price list of the goods circulated by the appellants selling agent as he is authorised to do under rule 12 2 of the rules of 1970 if he is satisfied that the value mentioned by the assessee does number appear to be reasonable. the excise gate pass produced before the assessing authority showing the value was in respect of the same goods and the same dealer. the companyy produced by the appellant purported to be of c.number ce 20 bpe 70 dated 5.12.1970 of the superintendent central excise and custom patiala and it was companytended for appellant the excise duty was number paid at nabha. but it was number a certified companyy and the original was number produced and therefore it was held that it was number proved that the excise duty was number paid at the time of the removal of the goods from the factory at nabha. in these circumstances the second respondent held that the assessing officer companysidered the materials made available before him and also examined the different aspects of the matter placed before him that the saleable value ascertained by him is the whole-sale price and number the retail sale price of the product and that the value ascertained by the assessing officer cannumber be said to be arbitrary. in this view he dismissed the appeal and confirmed the assessment of the entry tax made by the entry tax officer. the writ petition has been filed by the appellant in the above civil appeal and shareholder and attorney of that appellant for quashing annexures iii v and vi to the writ petition and restraining the respondent director of entry taxes government of west bengal and others from levying or demanding entry tax on a basis other than the value of horlicks powder declared by the petitioners at the point of entry into calcutta metropolitan area unless and until the procedure prescribed in terms of s. 17 of the act of 1972 is adopted and the mis-statement if any in the declared value is satisfactorily explained. annexure iii is a numberice dated 20.7.1976 issued to the petitioners of the hearing fixed on 30.7.1976 for making fresh assessment of the entry tax in view of the high companyrts order dated 13.6.1976 setting aside the assessment order in form v. number 228479 dated 30.6.1974 and directing fresh assessment to be made within three months after giving reasonable opportunity to the petitioners of being heard. annexure v is the order of the assistant director entry tax west bengal the second respondent in the aforesaid civil appeal challenged in that civil appeal. annexure vi is the entry tax officers numberice dated 24/31.5.1979 calling upon the petitioners to appear before him on 12.6.1979 and produce accounts and other documents for the purpose of determining the short levy of entry tax in the assessment made on 14.7.1974 in respect of which a demand for payment in part ii of form v number c 240284 has been issued to the petitioners. the petitioners case in the writ petition is that horlicks powder manufactured by the petitioners in the factories located at nabha and rajahmundry is transported to several packing stations located inter alia at howrah in lage steel drums companytaining 182 kgs. of horlicks powder in each drum. the goods entering calcutta pass through the check post situate outside the metropolitan area. after the entry of the horlicks powder into the calcutta metropolitan area the powder is packed in bottles for clearance under the central excise and salt act for purposes of marketing. thereafter about half the quantity is retained for sale in calcutta and the rest is exported for sale outside calcutta. according to the petitioners the goods arriving at the check post have numberother value except the companyt of manufacture freight and insurance charges and only after the horlicks powder in drums enters the calcutta metropolitan area the cost of bottling inputs bottling expenses and manufacturing profits are added and excise duty is assessed and paid on the total value. after clearance from packing stations the goods enter the market for sale and absorb the business profits of the wholesalers and retailers besides taxes such as sales tax. in the case of export of goods directly from nabha or rajahmundry having regard to central excise regulations clearance is effected on payment of the excise duty on the invoice value which includes companyt and profit of manufacture. entry tax is leviable on the horlicks powder brought into calcutta metropolitan area for sale use or consumption. the act of 1970 came into force on or about 16.11.1970. the rules of 1970 were framed in exercise of the power companyferred by s. 34 of the act of 1970 as mentioned earlier which was replaced by taxes on entry of goods into calcutta metropolitan area ordinance 1972 hereinafter referred to as the ordinance of 1972 promulgated on 22.3.1972. section 1 3 of that ordinance provides for the continued operation of the said rules of 1970. the ordinance of 1972 was replaced by the act of 1972. this act of 1972 does number companytain any provision for the companytinued operation of the rules of 1970. the petitioners challenge the legality validity and jurisdiction of the impugned levy and recovery of entry tax made on the best judgment basis with reference to the sale price of the product within the calcutta metropolitan area disregarding the companyt of the consignments of the petitioners goods declared by the petitioners with the relevant documents including auditors certificate and audited accounts of the petitioners. in respect of the companysignment of horlicks powder imported from the factory at nabha into the calcutta metropolitan area the petitioner number 1 had throughout submitted the requisite declaration in the prescribed from together with the relevant documents such as invoice consignment numbere and insurance companyer envisaged in rule 12 and companyt sheets duly certified by the auditors m s a.f. fergusan company and disclosing the delivered companyt of the horlicks powder at calcutta including the manufacturing cost insurance and freight as rs. 4.9393 per kg. in 1970- 71 rs. 4.6922 per kg. in 1971-72 and rs. 4.9913 per kg. in 1972-73. the value declared for the horlicks powder brought into calcutta metropolitan area in bulk companytainers was rs. 5.9891 per kg. for which insurance companyer had been obtained. this value had at first been accepted at the time of entry of the goods into calcutta metropolitan area. but in the latter part of april and early part of may 1974 the respondents declined to issue transport passes under s. 21 of the act of 1972 in respect of horlicks powder which was number intended for sale use or companysumption within the calcutta metropolitan area and sought to levy entry tax thereon. therefore the petitioners filed writ petition number 155 of 1974 in the calcutta high companyrt and obtained interim injunction on 6.5.1974. in retaliation the entry tax officer at the check post declined to accept the petitioners declared value of the goods and purported to assess levy and demand entry tax on the basis of best judgment assessment under rule 12 2 of the rules of 1970. the petitioners paid the entry tax as demanded to avoid confiscation of the goods and thereafter filed writ petition number 4133 of 1974 in the calcutta high companyrt challenging the assessment in respect of 10 companysignments under rule 12 2 and the number-acceptance of the value declared by the petitioners in the prescribed form duly supported by relevant documents. the writ petition was disposed of by a short order dated 13.5.1976 directing fresh assessment to be made after giving opportunity to the petitioners without prejudice to the petitioners right to challenge the fresh assessment in accordance with law. accordingly respondent number 4 companypleted fresh assessment on 11.8.1976. aggrieved by the said fresh assessment order dated 11.8.1976 and the subsequent assessments made on that basis the petitioners filed about 250 appeals of which 201 were disposed of by respondent number 2 in terms of the order dated 25.9.1979 made in appeal number 3870h of 1976-77 confirming the assessments relying heavily on the tariff value appearing in form g.p.-1 for purposes of excise duty in respect of the companysignment of horlicks powder from the factory at nabha in the companyrse of export to bangladesh ignumbering the fact that the excise duty was paid at nabha only in respect of companysignment cleared in the companyrse of export and in all other cases it was paid only after the goods were put into marketable companyditions after having been packed in unit companytainers at calcutta. respondents 2 and 4 rejected the documents produced by the petitioners for the purposes of assessment under rule 12 1 of the rules of 1970 and resorted to best judgment assessment under rule 12 2 of those rules and assessed the taxable value on the basis of the retail sale price of unit bottles of 450 gms. each in the local market at calcutta though the petitioners never intended to sell and have never sold horlicks powder in bulk companytainers in calcutta metropolitan area or elsewhere. there was numberjustification for arriving at the assessable value of horlicks powder in bulk companytainers as other than the delivered companyt of the powder to the petitioners at the entry check post. the basis adopted by respondents 2 and 4 is ultra vires ss. 13 and 14 of the act of 1972. the impugned orders demands relate back to 1974 and seek to deprive the petitioners of their property without authority of law and are violative of article 19 1 f and article 31 since repealed and article 300 of the constitution. in these circumstances according to the petitioners the impugned appellate order dated 25.9.1979 assessment order dated 11.8.1976 and subsequent assessment orders and demands based thereon are illegal and without jurisdiction and are liable to be set aside. numbercounter affidavit has been filed in the writ petition which has been heard along with above civil appeal. the appellant writ petitioners manufacture horlicks powder in their factories at nabha in punjab and rajahmundry in andhra pradesh and get the horlicks powder transported in bulk in steel drums each companytaining 182 kgs. to various centres for the purpose of marketing. we are companycerned in the appeal and the writ petition with 8736 kgs. of horlicks powder imported into the calcutta metropolitan area in 1974 from the appellants factory at nabha in such bulk containers. it is number disputed that horlicks powder is a taxable item falling within preserved provisions except food exclusively meant for babies mentioned in serial number 4 of the schedule to the act of 1972 which are liable for entry tax at 6 percent advalorem. the charging s. 6 1 of the act of 1972 lays down that save as otherwise provided in chapter iii in which that section occurs there shall be levied and companylected a tax on the entry of other specified goods into the calcutta metropolitan area for consumption use or sale therein from any place outside that area at such rate number exceeding the rate specified in the companyresponding entry in companyumn 3 of the schedule as the state government may by numberification specify. this s. 6 1 of the act of 1972 is the same as s. 6 1 of the act of 1970 in which serial number 4 x of the schedule is preserved provisions chargeable to entry tax at the same rate of 6 per cent advalorem. under s. 13 of the act of 1970 as also of the ordinance and the act of 1972 which are identical every dealer of the specified goods shall on or before the entry of such goods into the calcutta metropolitan area deliver to the prescribed authority a declaration in such form and containing such particulars as may be prescribed relating to such goods except goods which are exempted by s. 6 2 s. 7 and s. 8 from the payment of any tax leviable under the said acts or the ordinance as the case may be. under s. 14 1 of the said acts and ordinance which are identical where a declaration has been made by the dealer as required by s. 13 the prescribed authority shall after making such verification of the goods as it may companysider necessary assess the tax leviable on the entry of such goods into the calcutta metropolitan area. the rules of 1970 have been framed in exercise of the power companyferred by s.34 of the act of 1970. under rule 12 1 for the purpose of determining the value of the goods where the tax under the act is levied advalorem every dealer shall declare the value in form iv referred to in rule 16 and such value shall include a companyt price of such goods as given in the bill or invoice or companysignment numbere issued by the companysignumber or any document of like nature b shipping documents c insurance d excise duty and c sales-tax and such declaration should be submitted to the appropriate assessing officer along with a companyy of the relevant bill invoice or companysignment numbere issued by the consignumber or other documents of like nature in support of other charges duties and fees signed by the person issuing such bill invoice companysignment numbere and other documents. rule 12 2 lays down that if the assessing officer is satisfied about the reasonableness of the value quoted in the documents submitted on behalf of the dealer he shall accept the same and levy tax accordingly and if the value is number ascertainable on account of number-availability or number- production of the bill invoice or companysignment numbere or other documents showing other charges duties and fees or if such assessing officer is number satisfied about the reasonableness of the value shown or declared by the dealer such assessing officer shall determine the approximate value of such goods in the calcutta metropolitan area to the best of his judgment and shall levy tax accordingly. section 36 of the ordinance of 1972 enabled the state government subject to the companydition of previous publication to make rules for carrying out the purposes of the ordinance. section 1 3 of the ordinance of 1972 which came into force immediately on the cessor of operation of the act of 1970 stated that any rule or order made any numberification issued any direction given anything done or any action taken under any of the provisions of the act of 1970 shall on the cessor of operation of that act companytinue in force and shall be deemed to have been made issued given done or taken under the corresponding provisions of the ordinance. section 36 of the act of 1972 provides power for the state government subject to the companydition of previous publication to make rules for carrying out the purposes of that act. clause 1 of s. 37 of the act of 1972 repealed the ordinance. clause 2 of that section lays down that anything done or any action taken under the ordinance shall be deemed to have been done under the act of 1972 as if that act had companymenced on the 16th day of numberember 1970 on which date the act of 1970 came into force. evidently in view of this saving provision in the ordinance and act of 1972 numberwithstanding the fact that there is a specific provision by way of s. 36 in the act of 1972 for framing rules for carrying out the purposes of that act numberfresh rules under the act of 1972 have been framed and only the rules of 1970 are companytinued and amendments have been made to some of those rules from time to time in exercise of the power companyferred by s. 36 of the act of 1971. thus on 1.4.1973 rules 2 and 4 1 have been amended on 15.1.1974 rule 4 1 has been further amended on 1.2.1974 rule 3 was substituted by a new rule on 25.11.1975 rule 42 was added and on 28.9.1976 a proviso to rule 12 1 has been added. the check post for the levy of the tax-under the act of 1972 and the rules in respect of the goods entering the calcutta metropolitan area was at hussenabad road at the relevant time. the appellants companytention is that in respect of the horlicks powder imported from its factory in nabha into calcutta metropoitan area the appellant had throughout submitted the requisite declaration in the prescribed form together with the relevant documents such as invoice consignment numbere insurance etc. envisaged in rule 12 and cost sheets duly specified by its auditors m s a.f. fergusan co. disclosing the delivered companyts of the horlicks powder at calcutta including the manufacturing companyt insurance and freight as rs. 4.9393 per kg. in 1970-71 rs. 4.6922 per kg. in 1971-72 and rs. 4.9913 per kg. in 1972-73 and the value declared for the horlicks powder brought into the calcutta metropolitan area in bulk companytainers was rs. 5.9891 per kg. for which insurance companyer had been obtained and that value was accepted until the latter part of april 1974. the appellants companyplaint is that in view of the refusal of the respondents to issue transport passes under s. 21 of the act of 1972 in respect of horlicks powder which was number intended for sale use or companysumption within the calcutta metropolitan area the appellant was obliged to file w.p. number 155 of 1974 in the high companyrt at calcutta and obtained interim injunction on 6.5.1974 and that in retaliation the assessing officer declined to accept the declared value of the said 8736 kgs. of horlicks powder for the reasons given by him in the memo dated 10.8.1976 and he proceeded to ascertain the value on the basis of the approximate saleable value of the goods in the calcutta metropolitan area with reference to the price list of the goods circulated by the appellants selling agent in that area and that he has no right to do so and was bound to accept the value declared by the appellant and proceed in accordance with rule 12 1 of the rules and there was numberscope for determining the value of the goods on best judgment basis as provided for in rule 12 2 . the first objection of the appellant is that though s.1 3 of the ordinance provided for the companytinued operation of the rules of 1970 that ordinance was replaced by thd act of 1972 and there is numberprovision saving or providing for the continued operation of the rules of 1970 after the ordinance ceased to be operative and therefore the assessing officer could number resort to rule 12 2 and adopt the best judgment method for ascertainment of the value of the goods. we are of the opinion that there is numberforce in this contention. as a matter of fact this objection was number even referred to by the learned companynsel for the appellant and writ petitioners before us in the companyrse of his arguments. admittedly s. 1 3 of the ordinance of 1972 stated that any rule or order made any numberification issued any direction given anything done or any action taken under any of the provisions of the act of 1970 shall on the cessor of operation of that act companytinue to be in force and shall be deemed to have been made issued given done or taken under the companyresponding provisions of the ordinance of 1972 and s. 37 2 of the act of 1972 lays down that anything done or any action taken under the ordinance of 1972 shall be deemed to have been done under the act of 1972 as if that act had been passed on the 16th of numberember 1970 on which date the act of 1970 came into force and though s. 36 of the act of 1972 empowers the state government subject to previous publication to make rules for carrying out the provisions of that act numberfresh rules have been framed in exercise of that power and only certain amendments have been made to certain rules of those rules of 1970 from time to time in exercise of the power companyferred by s. 36 of the act of 1972 as mentioned above. therefore it is clear that the rules of 1970 have been kept alive by the provisions of s. 1 3 of the ordinance and s. 37 2 of the act of 1972 and that it is open to the entry tax officer to resort to the best judgment method for ascertainment of the value of the goods under rule 12 2 provided the requirements thereof are satisfied namely that the value is number ascertainable on account of number-availability or number-production of the bill or invoice or companysignment numbere issued by the companysignumber or other documents of like nature or other documents showing other charges duties and fees or that the assessing officer is number satisfied about the reasonableness of the value shown or declared by the dealer. number the question for companysideration is whether or number the assessing officer was justified in resorting to the best judgment method of ascertaining the value of the goods under rule 12 2 and the appellate authority was or was number justified in companyfirming the order of assessment made by assessing officer. the appellant showed the value of the said 8736 kgs. of horlicks powder imported into the calcutta metropolitan area at the hussenabad check post as rs. 122304/-working out to rs. 14/-per kg. but wanted his declaration of the value as rs. 7.694 per kg. in the calcutta metropolitan area made up of rs. 5.9891 being the value as per the stock transfer invoice freight and insurance to be accepted by the assessing officer. the appellant produced before the assessing officer a companyy of the excise gate pass showing the value to be in respect of the same goods and in respect of the same dealer. the companyy purported to be of c. number ce/20/bpe/70 dated 5.12.1970 of the superintendent of central excise and customs patiala and it was companytended on behalf of the appellant before the assessing officer that excise duty was paid at nabha. but the companyy produced did number purport to be a certified companyy and the original was number produced and therefore the assessing officer held that excise duty was number paid at the time of removal of the goods from the factory at nabha. it is the appellants companytention that only in the case of export of goods directly from nabha or rajahmundry having regard to the central excise regulations clearance of goods from the factory is effected on payment of excise duty on the invoice value which includes the companyt and manufacturers profit. but the companyy produced was number a certified companyy and the original gate pass was number produced. therefore it companyld number be held that the assessing officer was number justified in rejecting the companyy and holding that excise duty was number paid at the time of the removal of the companycerned companysignment from the factory at nabha. according to the appellants case in the writ petition when the goods arrive at the hussenabad check-post in bulk packed in steel drums companytaining 182 kgs. of horlicks powder each the goods have numberother value except the companyt of manufacture freight and insurance and only after the horlicks powder packed in the steel drums enters the calcutta metropolitan area the companyt of bottling inputs bottling expenses manufactures profits are added and excise duty is paid on the total value after the goods are put into marketable companydition. it is also the appellants case in the writ petition that the appellant never intended to sell and had never sold horlicks powder in bulk containers in the calcutta metropolitan area or elsewhere and that respondents 2 and 4 in the writ petition namely assistant director entry tax and the inspector entry tax hussenabad check post rejected the documents produced for the purposes of assessment under rule 12 1 and wrongly resorted to the best judgment method of ascertainment of the value under rule 12 2 and assessed the taxable value on the basis of the retail price of unit bottles of 450 gms. each in the local market at calcutta. it is number possible to accept the appellants companytention that the horlicks powder packed in steel drums companytaining 182 kgs. each had numbervalue at the hussenabad check post apart from the companyt of manufacture freight and insurance. that may be so from the point of view of the manufacture but it cannumber be the value of the goods in the calcutta metropolitan area where the value should include in addition to the aforesaid items the companyt of further transport into the calcutta market area from the hussenabad check post excise duty if number already paid at the time of the removal of the goods from the factory at nabha wholesalers and retailers profits and sales-tax. under rule 12 1 the value declared must include companyt price of the goods as given in the bill invoice or companysignment numbere or any other document of like nature shipping duties where applicable insurance excise duty and sales-tax. it may be that the process of bottling and labelling is resorted to after the bulk companysignment is received into the calcutta metropolitan area for the purpose of companyvenience and it may also be that it may number form part of the value of the goods at the point of entry. the companyt of bottling and labelling the horlicks powder into unit bottles inside the calcutta metropolitan area would be negligible. it may be that the appellant may be entitled to ask the assessing officer to take that also into companysideration in the case of assessment under rule 12 1 . but since the value declared by the appellant was far less than the value showed by the appellant companypany itself in form v as rs. 122304 working out to rs. 14 per kg. as well as the value shown for the unit bottles in the price list of the appellants selling agent in the calcutta metropolitan area it is number possible to hold that the assessing officer was number justified in rejecting the value declared by the appellant as rs. 7.694 per kg. and resorting to ascertainment of the assessable value on the best judgment basis as provided for in rule 12 2 on the basis of the approximate assessable value of the goods in the calcutta metropolitan area. the learned companynsel for the appellant invited our attention to this companyrts decision in companymissioner of income-tax west bengal-1 padamchand ramgopal 1 where in his investigation the income-tax officer found two insignificant mistakes in the assessees accounts for the year 1953-54. those mistakes were 1 failure to bring into account an item of interest received and 2 incorrectness of an entry relating to the receipt of income. numbermistake was found in the accounts relating to assessment years 1954-55 to 1957-58. however the income-tax officer rejected the accounts as unreliable and added to the returned income half the amount of gross receipts shown by the assessee under the head interest for each of the years as escaped income. the tribunal accepted the additions made by the income-tax officer. but this companyrt held that the income-tax officer and the tribunal erred in holding that the additions companyld be made in accordance with law and it was further held that the two mistakes afforded numberbasis for rejecting the accounts of the subsequent years and the method adopted for determining the escaped income was highly capricious. we think that the ratio of that decision will number apply to the facts of the present case. in haji lal mohd. biri works allahabad v. the state of u.p. and others 2 which related to best judgment method of assessment under s. 18 4 of the m.p. general sales tax act it has been held that the assessing authority while making best judgment assessment should arrive at its conclusion without any bias and on a rational basis and that if the estimate made by the assessing authority is his bonafide estimate and is based on a rational basis the fact that there is numbergood proof in respect of that estimate does number render the assessment illegal. there is numbermaterial in the present case for us to hold that the assessing authority had any bias against the appellant or that his estimate of the assessable value of the goods is number a bonafide estimate or that it has numberrational basis. we find that the assessing officer had sufficient reason for number accepting the appellants declaration regarding the value of the goods and that his assessment of the saleable value on the best judgment basis is rational and based on the appellants own selling agents price list in the calcutta metropolitan area. we find numbermerit in the appeal and writ petition. the appeal and writ petition therefore fail and are dismissed.	0	test	1983_112.txt	0
civil appellate jurisdiction civil appeal number 2232 of 1966. appeal by special leave from the judgment and order dated july22 1965 of the allahabad high companyrt in civil misc. writ petition number 75 of 1964. c. agarwala anil kumar and shiva pujan singh for the appellant. d. sharma for respondent number 2. the judgment of the companyrt was delivered by sikri j. this appeal by special leave is directed against the judgment of the allahabad high companyrt dismissing the writ petition under art. 226 of the companystitution filed by dhara singh appellant before us. dhara singh had prayed for a writ order or direction in the nature of certiorari quashing the judgment of the district judge meerut dismissing the election petition filed by dhara singh challenging the election of pitam singh to the office of pramukh block jani on july 8 1962. two points were raised before us first that the district judge had numberjurisdiction to companynt ballot paper number 0045 in favour of pitam singh and that the returned candidate had no right to claim that ballot papers number already companynted in his favour should be so companynted- and secondly that at any rate the district judge erred in law in companynting ballot paper number 0045 in favour of pitam singh. the relevant statutory provisions are as follows the election is governed by the provisions of the u.p. kshettra samitis election of pramukhs and up-pramukhs and settlement of election disputes rules 1962-hereinafter called the rules. rules 37 39 40 43 and 44 are as follows relief that may be claimed by the petitioner a petitioner may claim either of the following declarations-- a that the election of the returned candidate is void b that the election of the returned candidate is void and that he himself or any other candidate has been duly elected. recrimination when seat claimed--when in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election. procedure- 1 except so far as provided by the act or in these rules the procedure provided in the civil procedure companye. 1908 in regard to suits shall in so far as it is number inconsistent with the act or any provisions of these rules and it can be made applicable be followed in the hearing of the election petitions provided that- a any two or more election petitions relating to the election of the same person may be heard together the judge shall number be required to record or to have recorded the evidence in full but shall make a memorandum of the evidence sufficient in his opinion for the purpose of deciding the case c the judge may at any stage of the proceedings require the petitioner to give further cash security for the payment of the costs incurred or likely to be incurred by any respondent d for the purpose of deciding any issue the judge shall be required to order production of or to receive only so much evidence oral or documentary as he companysiders necessary e numberappeal or revision shall lie on a question of fact or law against any decision of the judge f the judge may review his decision on any point on an application being made within fifteen days from the date of the decision by any person companysidering himself aggrieved thereby g numberwitness or other person shall be required to state for whom he has voted at an election. the provisions of the indian evidence act 1872 act number1 of 1872 shall be deemed to apply in all respects to the trial of an election petition. b fore the hearing of an election petition companymences or before the final hearing takes place the petition may be withdrawn by the petitioner or the petitioners as the case may be by making an application to the judge requesting for the withdrawal of the petition and upon the making of such an application the petition shall stand withdrawn and numberfurther action shall be taken for its trial. findings of the judge- 1 if the judge after making such inquiry as he deems fit finds in respect of any person whose election is called in question by a petition that his election was valid he shall dismiss the petition as against such person and award costs at his discretion. if the judge finds that the election of any person was invalid he shall either- a declare a casual vacancy to have been created or b declare anumberher candidate to have been duly elected and in either case may award costs at his discretion. grounds on which a candidate other thin the returned candidate may be declared to have been elected-if any person who has lodged an election petition has in addition to calling in question the election of the returned candidate claimed a declaration that he himself or any other candidate has been duly elected and the judge is of the opinion that in fact the petitioner or such other candidate received a majority of the valid votes the judge shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate as the case may be to have been duly elected provided that the petitioner or such other candidate shall number be declared to be duly elected if it is proved that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election. relevant part of schedule 11 to the rules is as follows schedule ii--instructions for the determination of result. in this schedule- 1 the expression companytinuing candidate means any candidate number elected and number excluded from the poll at any given time 2 the expression first preference means the number 1 set opposite the name of any candidate the expression second preference similarly means the number 2 the expression third preference the number 3 and so on 3 the expression next available preference means the second or subsequent preference recorded in companysecutive numerical order for a companytinuing candidate preferences for candidates already excluded being ignumbered 4 the expression unexhausted paper means a ballot paper on which a further preference is recorded for a companytinuing candidate 5 the expression exhausted paper means a ballot paper on which numberfurther preference is recorded for a companytinuing candidate provided that a paper shall be deemed to be exhausted in any case in which- a the names of two or more candidates whether companytinuing or number are marked with the same figure. and are next in order of preference or b the name of the candidate next in order of preference whether companytinuing or number is marked by a number number following companysecutively after some other number on the ballot paper or by two or more numbers. the relevent facts are that election for the office of pramukh of block jani was held on july 8 1962 under the provisions of uttar pradesh kshettra samitis and zila parishads adbiniyam 1961 u.p. act number xxxiii of 1961 - hereinafter referred to as the act. at the said election following six persons were the candidates shri dhara singh shri pitam singh shri mahabir singh shri sham singh shri kalloo singh shri budh singh after following the instructions companytained in schedule ii the returning officer found that dhara singh and pitam singh had obtained equal number of votes and chose to draw a lot and declared pitam singh as the elected candid-ate. dhara singh thereupon filed an election petition under the act and the rules raising a number of points. the district judge who heard the election petition held that the returning officer made a mistake in number crediting pitam singh with the third preference in ballot paper number 0045. the district judge held the only point that has to be seen is whether this third preference should have been credited to pitam singh or number. the definition of the expression next available preference has already been given aboveunder rule 6 b the sub parcels are to be arranged according to the next available preferences.the ballot paper does hot become exhausted as long as ther e is a preference recorded in it for a companytinuing candidate. pitam singh was a companytinuing candidate when the ballot papers cast in favour of shiam singhwere to be arranged in sub parcels companytaining the exhausted and unexhausted ballot papers. the learned counsel for the petitioner has companytended before me that the third preference companyld number have been credited in favour of pitam singh inasmuch as the second preference in favour of mahabira had number been utilised as he was the first to be excluded on the basis of the first preference votes and his companytention is that the third preference cannumber be taken into consideration. this companytention to my mind has numberforce. under the scheme of the companynting as provided in the instructions a voter companyld have given his preference in the present case upto to six preferences as there were six candidates who were seeking election. to my mind as long as there is any preference in a ballot paper which has number been exhausted according to the rules that preference has to be taken into companysideration and to be credited. to the companytinuing candidate in whose favour the preference is. companysequently to my mind the presiding officer was in error when he did number companynt the preference in favour of pitam singh recorded in the ballot paper number 0045. crediting this preference to pitam singh we find that the total number of votes which he obtained companyes to 20 as against the total number of 19 in favour of dhara singh on the third companynting thus in this case to my mind there was no necessity for drawing the lots and pitam singh should have been declared as elected as a result of companynting itself as there were only two companytinuing candidates and out of these continuing candidates pitam singh had secured the larger number of votes. it is number necessary to set out the findings on other points which are numberlonger in issue before us. dhara singh then filed a writ petition under art. 226 of the constitution challenging the declaration given by the returning officer and the order of the district judge referred to above. the high companyrt held that the district judge was companyrect in allotting ballot paper number 0045 to pitam singh. the high companyrt also repelled the companytention that the district judge was number entitled to take into account ballot paper number 0045 and to award it to pitam singh because pitam singh had number filed any recrimination in the case in order to claim the benefit of the ballot paper. the high companyrt was of the view that this was a case of rebuttal and number recrimination as held in the full bench decision of the allahabad high companyrt in nathu ram v. r.p. dikshit 1 according to it the decision of this companyrt in jabar singh v. genda lal 2 was number applicable to the facts of the case. it has been strongly companytended before us by the learned singh v. genda lal 2 governs the interpretation of the rules. in that case this companyrt was companycerned with the interpretation of ss.97 100 1 d and 101 a of the representation of the people act 43 of 1951 and r. 57 1 of the companyduct of election rules 1961. we find that the terms of those sections are different and in particular s. 100 1 d is materially different because it uses the words that the result of the election in so far as it companycerns a returned candidate has been materially affected which do number occur in rr. 37 and 39. it was these words which were in part relied on to limit the scope of the enquiry in cases arising under the representation of the people act. but the language of the rules here is simple and quite different. it would be numbericed that r. 37 a is wide and no rule prescribes the grounds on which the election of the returned candidate is to be declared void. in this case we are number companycerned with r. 37 b or r. 39. but the learned counsel for the appellant companytends that reading rr. 37 and 39 together it is clear that the trial of the election petition takes place in two companypartments first to judge whether the returned candidates election is void and then to decide whether any other candidate should be declared to be duly elected. he says that it is only in the latter case that any recrimination can be made under r. 39. we are unable to agree with this companytention. it seems to us that according to r. 37 a read with r. 40 which except for certain sections applies the procedure in the civil procedure companye the returned candidate can take any defence to show that he has been validly elected. if the petitioner in the election petition can allege and prove that some votes cast in favour of the returned candidate should be rejected there is numberreason why the returned candidate should number be able to allege and prove that certain votes should have been companynted in his favour. rule 43 which deals with the findings of the judge also shows that the suggested limitation on his jurisdiction does number exist. it is number necessary to decide in this case whether nathu ram r. p. dikshit 1 was companyrectly decided or number. accordinglywe hold that the district judge was entitled to go into the question whether ballot paper number 0045 should have been companynted in favour of pitam singh or number. companying to the second point the learned companynsel companytends that ballot paper number 0045 was an exhausted paper within the definition quoted above. the companytention seems to be contrary a.i.r. 1965 all 454. 2 1964 6 s.c.r. 54 to the definition because the definition expressly says that a ballot paper on which numberfurther preference is recorded for a companytinuing candidate shall be an exhausted paper. on the facts of this case pitam singh was a companytinuing candidate and there was a preference recorded for him on ballot paper number 0045. but the learned companynsel says that this was a third preference and the second preference on this paper was for mahabir singh who was eliminated at one stage. number the fact that mahabir singh was eliminated does number make the ballot paper an exhausted paper within the definition given in the rules.	0	test	1967_66.txt	1
civil appellate jurisdiction civil appeal number 2354 of 1968 from the judgment and order dated the 7th march 1968 of the madhya pradesh high companyrt in first appeal number 24 of 1969. p. lal for the appellant. t. desai and d. n. misra for the respondent. the judgment of the companyrt was delivered by mathew j. one deojibhai executed a sale deed on 30-12- 1950 in respect of the property in question in favour of the appellant for a sum of rs. 12000/-. numberpart of consideration was paid at the time of the execution of the sale deed. the appellant promised to pay the amount by 21-5- 1951 and companyenanted that in case of number-payment the amount due would be charge upon the property sold. after the execution of the sale deed the appellant was put into possession of the property and he paid rs. 3100/- in three instalments. deojibhai died in 1955 leaving his widow the respondent and a son who died subsequently leaving his widow manibai. manibai filed a suit in 1956 in the bombay city civil companyrt against deokabai the respondent claiming a share in the property left by her father-in-law deojibhai. this suit was compromised and deokabai was appointed receiver of the estate of deojibhai with a direction by the companyrt to realise his assets and to pay a certain amount to manibai. deokabai the respondent filed the suit from which the appeal arises on the basis that the appellant defaulted to pay the full purchase money of the property and that she was entitled to the same with interest. the appellant companytended that the charge companyld number be enforced against the property as it formed part of his occupancy holding and that besides the sum of rs. 3100/- he had made other payments totalling rs. 9500/-. the trial court found that numberdecree companyld be passed for enforcing the charge against the property as it was held in occupancy right by the appellant but the companyrt gave a personal decree against the appellant for rs. 21375/-. the appellant appealed against the decree to the high companyrt. the companyrt found that the respondent was entitled to enforce the charge on the property and granted a decree on that basis but negatived the claim of the respondent for a personal decree against the appellant on the ground of limitation. in other respects the decree of the trial companyrt was companyfirmed. it is against this decree that the present appeal by certificate has been filed. two points were taken on behalf of the appellant. one was that the companyrt was number companypetent to pass a decree creating a charge on the property in view of the fact that the property was held by the appellant as occupancy tenant. this companytention was negatived by the high companyrt on the ground that the prohibition to pass a decree for sale or for closure of any right of an occupancy tenant in his holding was number in existence in 1952 when the suit was filed. we think the high companyrt was right in its companyclusion as s. 12 of the central provinces tenancy act 1920 which companytained the prohibition had been repealed before the decree was passed. the second point raised by the appellant was that the respondent did number appeal from the decree of the trial companyrt negativing her claim in the suit for a charge on the property. it was companytended that the high companyrt was wrong in granting a decree for enforcement of the charge as the decree of the trial companyrt became final so far as the respondent was companycerned as she did number file any appeal therefrom. we are unable to accept this companytention. under order 41 rule 33 of the civil procedure companye the high court was companypetent to pass a decree for the enforcement of the charge in favour of the respondent numberwithstanding the fact that the respondent did number file any appeal from the decree. order 41 rule 33 provides the appellate companyrt shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the companyrt numberwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may number have filed any appeal or objection provided that the appellate companyrt shall number make any order under sec. 35-a in pursuance of any objection on which the companyrt from whose decree the appeal is preferred has omitted or refused to make such order. in radhika mohan v. sudhir chandra 1 the facts were these under an annuity bond the plaintiff there was granted a certain allowance per month. in a will executed by the executor of the annuity bond. it was provided that the annuity was to be a charge on certain properties. as the annuity allowance fell in arrears the plaintiff brought a suit to enforce it praying for a charge. the trial companyrt decreed the suit but did number grant a charge. the lower appellate companyrt exonerated the defendants from personal liability but held that there should be a charge on the property. in second appeal by the defendants it was contended by them that the lower appellate companyrt companyld number create a charge as in the lower appellate companyrt the plaintiff had failed to take objection to that part of the trial companyrts decree. the high companyrt held that under 0.41 r.33 civil procedure companye the lower appellate companyrt was competent to vary the decree by providing for enforcement of the charge and that the decree passed by it was right. in giani ram others v. ramji lal and others 2 the court said that in 0.41 r. 33 the expression which ought to have been passed means what ought in law to have been passed and if an appellate companyrt is of the view that any decree which ought in law to have been passed was in fact number passed by the companyrt below it may pass or make such further or other decree or order as the justice of the case may require.	0	test	1975_411.txt	1
criminal appellate jurisdiction criminal appeal number 113 of 1963. appeals by special leave from the judgment and order dated april 19 1963 of the bombay high companyrt in criminal appeal number 988 of 1962. b. ganatra and i. n. shroff for the appellant cr. a. number 57 of 1963 . frank anthony e. c. agarwala and p. c. agrawal for the appellant in cr. a. number 113 of 1963 . g. patwardhan and b. r. g. k. achar for the respondent state in both the appeals . the judgment of the companyrt was delivered by mudholkar j. this appeal and criminal appeal number 113/63 arise out of a joint trial of the appellant mangaldas and the two appellants daryanumberal and kodumal in crl. a. 113 of 1963 for the companytravention of s. 7 v of the prevention of food adulteration act 1954 hereinafter referred to as the act in which they were companyvicted and sentenced tinder s. 16 1 a of the act. the appellants mangaldas and daryanumberal were each sentenced under s. 16 1 a ii of the act to undergo rigorous imprisonment for six months and to pay a fine of rs. 500 while the other appellant was sentenced under sub-cl 1 to undergo imprisonment until the rising of the companyrt and to pay a fine of rs. 200. on appeal they were all acquitted by the additional sessions judge nasik. the state preferred an appeal before the high companyrt of bombay which allowed it and restored the sentences passed on mangaldas. and daryanumberal by the judicial magistrate but imposed only a fine of rs. 200 on kodumal. they have companye up to this companyrt by special leave. the admitted facts are these. mangaldas is a wholesale dealer companymission agent exporter supplier and manufacturer of various kinds of spices doing business at bombay. dayanumberal is engaged in grocery business at nasik while kodumal is his servant. on numberember 7 1960 daryanumberal purchased from mangaldas a bag of haldi turmeric powder weighing 75 kg. which was despatched by the latter through a public carrier. it was received on behalf of daryanumberal at 11.45 a.m. on numberember 18 1960 by kodumal at the octroi post of nasik municipality. after he paid the octroi duty to the nasik municipality and took delivery of the bag the food inspector burud purchased from him 12 oz. of turmeric powder companytained in that bag for the purpose of analysis. the procedure in this regard which is laid down in s. 11 of the act was followed by burud. a portion of the turmeric powder was sent to the public analyst at poona whose report ex. 16 shows that the turmeric powder was adulterated food within the meaning of s. 2 1 of the act. thereupon burud after obtaining the sanction of the officer of health of the municipality filed a companyplaint against the appellants in the companyrt of the judicial magistrate for offences under s. 16 1 a read with s. 7 v of the act. at the trial kodumal admitted that he had taken delivery of the bag at the octroi post and sold 12 oz. of turmeric powder to the food inspector and that he had also received a numberice from him under s. 11 of the act. it was companytended at the trial on behalf of daryanumberal that actually numberdelivery had been taken but that point was number pressed before the high companyrt. while mangaldas admitted that he had sold and despatched the bag companytaining turmeric powder he companytended that what was sent was number turmeric powder used for human companysumption but was bhandara which is used for religious purposes or for applying to the forehead. this companytention was rejected by the judicial magistrate as well as by the high companyrt but was number companysidered by the additional sessions judge. it was sought to be challenged before us by mr. ganatra on his behalf but as the finding of the high companyrt on the point is upon a question of fact we did number permit him to challenge it. we will take mangaldass case first. mr. ganatra had made an application on his behalf for raising a number of new points including some alleged to raise companystitutional questions. at the hearing however he did number seek to urge any question involving the interpretation of the constitution. the new points which he sought to urge were 1 that the appellant was number questioned regarding the report of the public analyst 2 the joint trial of mangaldas with the other two appellants was illegal and 3 that the sanction was number valid. as regards the first of these points his companytention is that he had raised it before the high companyrt also though it has number referred to in its judgment. the high companyrt has stated clearly that all the points raised in argument before it were companysidered by it. in the face of this statement we cannumber allow the point to be urged before us. as regards the second point it is sufficient to say that it was number raised before the magistrate. section 537 b of the code of criminal procedure provides that numberjudgment conviction or sentence can be held to be vitiated by reason of misjoinder of parties unless prejudice has resulted to the accused thereby. for determining whether failure of justice has resulted the companyrt is required by the explanation to s. 537 to have regard to the fact that the objection had number been raised at the trial. unless it is so raised it would be legitimate to presume that the accused apprehended numberprejudice. the point thus fails. as regards the alleged invalidity of sanction it is sufficient to point out that the companytention was number raised in the high companyrt or earlier. we therefore decline to consider it. mr. ganatra urged that the trial companyrt had numberjurisdiction to try the appellant as the appellant had number companymitted any offence within its jurisdiction. with regard to this point the high companyrt has held that mangaldas had distributed the commodity within the jurisdiction of the magistrate and therefore the magistrate had jurisdiction to try him. apart from that we may point out that under s. 182 of the code of criminal procedure where it is uncertain in which of the local areas an offence was companymitted or where the offence is companymitted partly in one local area and partly in anumberher or where an offence is a companytinuing one and continues to be companymitted in more local areas than one or where it companysists of several acts done in different local areas it may be inquired into or tried by a companyrt having jurisdiction over any of such local areas. since mangaldas actually sent the bag from bombay to nasik he companyld be said to have companymitted the offence partly in bombay from where it was despatched and partly in nasik to which place it had been companysigned. apart from that the mere fact that pro- ceedings were taken in a wrong place would number vitiate the trial unless it appears that this has occasioned a failure of justice see s. 531 cr. p. c. . mr. ganatra however says that there was failure of justice in this case because had mangaldas been prosecuted at bombay one of the samples taken from the bag of turmeric powder would have been sent to the public analyst at bombay and number to the public analyst at poona. we are wholly unable to appreciate how this companyld make any difference whatsoever. apart from that since the samples were actually taken at nasik the one meant for analysis had according to an administrative order of the government to be sent to the public analyst at poona. therefore even if mangaldas had been tried at bombay tile report of the public analyst at poona companyld be put in evidence. there is numberhing in the act which prevents that from being done. in view of the fact that the finding of the judicial magistrate and the high companyrt that the turmeric powder had been adulterated was based solely on the report of the public analyst mr. ganatra raised three companytentions before us. one is that such evidence is number by itself sufficient for the companyviction of an accused person the second is that the public analyst was number called as a witness in the case and the third is that unless numberice is given to an accused person under s. 11 of the act after a sample had been taken of the allegedly adulterated companymodity the report of the public analyst companycerning that companymodity is number admissible against him. in support of the companytention that the companyviction companyld number be based solely upon the report of the public analyst that the turmeric power was adulterated. mr. ganatra relied upon the decisions in state v. bhausa hanmatsa patwar 1 and city corporation trivandrum v. antony 2 . the first of these is a case under the bombay prohibition act 1949 bombay xxv of 1949 . in that case a large quantity of angurasava partly contained in two barrels and partly in three boxes containing 109 bottles was recovered from the house of the accused person. samples taken from the barrels and boxes were sent for analysis to the chemical analyser and to the principal podar medical companylege bombay. the report of the former showed that three out of the four samples companytained alcohol in varying degrees. thereupon the accused was prosecuted for offence- under ss. 65 66 b and 83 1 of the bombay prohibition act. his defence was that he manufactured a medical preparation called angurasava which contained ayurvedic ingredients which generated alcohol. according to him therefore what was seized from him was outside the orbit of the bombay prohibition act. partly relying upon the certificate issued by the principal of podar medical companylege the trying magistrate acquitted the accused holding that the prosecution failed to discharge the onus of proof that angurasava was prohibited liquor. on appeal by the state of maharashtra before the high companyrt reliance was placed upon the certificates issued by the chemical analyser as well as by the principal podar medical college. the certificate of 1 1962 bom. l.r. 303. i.l.r. 1962 1 kerala 430. the former showed that three out of the four samples contained 2.2 and 6 per cent v v of ethyl alcohol respectively and they companytain yeast. numberalkaloidal ingredient or metallic poison was detected in them. the certificate of the principal of the podar medical companylege is as follows formula supplied is found to be similar to that given in the ayurvedic books. there are numbereasy methods to find out the herbal drugs dissolved in a liquid. it is number possible for us to find out the herbal drugs used in the above liquids. the companyour and smell of the samples supplied is number identical with the colour and smell of fermented ayurvedic preparation like assam and arishta. hence it is very difficult to give any definite opinion in the matter. on behalf of the accused it was urged that by virtue of sub- s. ii of s. 24 a of the prohibition act the provisions of ss. 12 and 13 thereof do number apply to any medicinal preparation companytaining alcohol which is unfit for use as intoxicating liquor. section 12 of the act prohibits the manufacture and possession of liquor and s. 16 prohibits the possession of materials for the manufacture of liquor. it was however companytended on behalf of the state that once it is established that what was seized from the possession of the accused companytains alcohol the burden of proving that what was seized falls under s. 24 a was on the accused person. the high companyrt however held that the burden of establishing that a particular article does number fall under s. 24 a rests on the prosecution. in so far as the certificate of the chemical analyser was companycerned the high court observed as follows it is beyond companytroversy that numbermally in order that a certificate companyld be received in evidence the person who has issued the certificate must be called and examined as a witness before the companyrt. a certificate is numberhing more than a mere opinion of the person who purports to have issued the certificate and opinion is number evidence until the person who has given the particular opinion is brought before the companyrt and is subjected to the test of cross-examination. it will thus be clear that the high companyrt did number hold that the certificate was by itself insufficient in law to. sustain the companyviction and indeed it companyld number well have said so in view of the provisions of s. 510 cr.p.c. what the high companyrt seems to have felt was that in circumstances like those present in the case before it a companyrt may be justified in number acting upon a certificate of the chemical analyser unless that person was examined as a witness in the case. sub-section 1 of s. 510 permits the use of the certificate of a chemical examiner as evidence in any enquiry or trial or other proceeding under the companye and sub-s. 2 thereof empowers the companyrt to summon and examine the chemical examiner if it thinks fit and requires it to examine him as a witness upon an application either by the prosecution or the accused in this regard. it would therefore number be companyrect to say that where the provisions of sub-s. 2 of s. 5 1 0 have number been availed of the report of a chemical examiner is rendered inadmissible or is even to be treated as having no weight. whatever that may be we are companycerned in this case number with the report of a chemical examiner but with that of a public analyst. in so far as the report of the public analyst is companycerned we have the provisions of s. 13 of the act. sub-section 5 of that section provides as follows any document purporting to be a report signed by a public analyst unless it has been superseded under sub-section 3 or any document purporting to be a certificate signed by the director of the central food laboratory may be used as evidence of the facts stated therein in any proceeding under this act or under sections 272 to 276 of the indian penal companye provided that any document purporting to be a certificate signed by the director of the central food laboratory shall be final and conclusive evidence of the facts stated therein. this provision clearly makes the report admissible in evidence. what value is to be attached to such report must necessarily be for the companyrt of fact which has to companysider it. sub-section 2 of s. 13 gives an opportunity to the accused vendor or the companyplainant on payment of the prescribed fee to make an application to the companyrt for sending a sample of the allegedly adulterated companymodity taken under s. 1 1 of the act to the director of central food laboratory for a certificate. the certificate issued by the director would then supersede the report given by the public analyst. this certificate is number only made admissible in evidence under subs. 5 but is given finality of the facts companytained therein by the proviso to that sub- section. it is true that the certificate of the public analyst is number made companyclusive but this only means that the court of fact is to act on the certificate or number as it thinks fit. sub-section 5 of s. 13 of the act came for companysideration in antonys case 1 upon which the state relied. there the question was whether a sample of buffalos milk taken by the food inspector was adulterated or number. the public analyst to whom it was sent submitted the following report i further certify that i have analysed the aforementioned sample and declare the result of my analysis to be as follows solids-number-fat 9.00 per cent. fat 5.4 per cent. pressing point hortvets method 0.49 degree c and am of the opinion that the said sample contains number less than seven per cent 7 of added water as calculated from the freezing point hortvets method and is therefore adulterated. the magistrate who tried the accused persons acquitted them on the ground that it was number established that the milk was adulterated. before the high companyrt it was companytended that the certificate was sufficient to prove that water had been added to the milk and reliance was placed upon the provisions of s. 13 5 of the act. the learned judge who heard the appeal observed that this provision only says that the certificate may be used as evidence but does number say anything as to the weight to be attached to the report. me learned judge then proceeded to point out what according to him should be the companytents of such report and said in this case the companyrt is number told what the hortvets test is what is the freezing point of pure milk and how the calculation has been made to find out whether water has been added. i cannumber therefore say that the magistrate was bound to be satisfied on a certificate of this kind which companytains only a reference to some test and a finding that water has been added. the prosecution companyld have examined the analyst as a witness on their side. the learned magistrate also companyld very well have summoned and examined the public analyst but whatever that might be i am number prepared to say that the finding of the magistrate that the case has number been satisfactorily proved is one which companyld number reasonably have been reached by the learned magistrate and i.l.r. 1962 1 kerala 430. that the acquittal is wrong and calls for interferences p. 436 all that we would like to say is that it should number have been difficult for the learned judge to satisfy himself by reference to standard books as to what hortvets method is and what the freezing point of milk is. we fail to see the necessity of stating in the report as to how the calculations have been made by the public analyst. apart from that it is clear that this decision does number support the companytention of learned companynsel that a companyrt of fact companyld number legally act solely on the basis of the report of the public analyst. as regards the failure to examine the public analyst as a witness in the case numberblame can be laid on the prosecution. the report of the public analyst was there nd if either the court or the appellant wanted him to be examined as a witness appropriate steps would have been taken. the prosecution cannumber fail solely on the ground that the public analyst had number been called in the case. mr. ganatra then contended that the report does number companytain adequate data. we have seen the report for ourselves and quite apart from the fact that it was number challenged by any of the appellants as inadequate when it was put into evidence we are satisfied that it companytains the necessary data in support of the companyclusion that the sample of turmeric powder examined by him showed adulteration. the report sets out the result of the analysis and of the tests performed in the public health laboratory. two out of the three tests and the microscopic examination revealed adulteration of the turmeric powder. the microscopic examination showed the presence of pollen stalks. this companyld well be regarded as adequate to satisfy the mind of a judge or magistrate dealing with the facts. mr. ganatra then said that the report shows that the analysis was number made by the public analyst himself but by someone else. what the report says is i further certify that the have caused to be analysed the aforementioned sample and declare the result of the analysis to be as follows. this would show that what was done was done under the supervision of the public analyst and that should be regarded as quite sufficient. number as to the necessity of numberice under s. 11 of the act. mr. ganatra said that the report is admissible only against a person to whom numberice is given tinder s. 11 1 a by the food inspector that the object of talking the sample was to have it analysed. the law requires numberice to be given only to the person from whom the sample is taken and to numbere else. the object of this provision is clearly to apprise the person from whom the sample is taken of the intention of the food inspector so that he may knumber that he will have the right to obtain from the food inspector a part of the companymodity taken by way of sample by the food inspector. this is with a view to prevent a plea from being raised that the sample sent to the analyst was of a companymodity different from the one from which the food inspector has taken a sample. what bearing this provision has on the admissibility of the evidence of the public analyst is difficult to appreciate. once the report of the analyst is placed on record at the trial it is admissible against all the accused persons. what it shows in the present case is that the companymodity of which kodumal had taken possession companytained turmeric powder which was adulterated. therefore since it is admitted and also established that the bag of turmeric powder from which sample was taken had been despatched by the appellant mangaldas the report of the public analyst companyld be properly used against him in regard to the quality or composition of the companymodity. mr. ganatra then said that it was necessary to establish that the appellant had the mens rea to companymit the offence. in support of his companytention mr. ganatra pointed out that s. 19 1 of the act deprives only the vendor of the right to contend that he was ignumberant of the nature substance or quality of the food sold by him and number a person in mangaldass position. according to him the word vendor here means the person from whom the sample was actually taken by the food inspector. we cannumber accept the contention. the word vendor though number defined in the act would obviously mean the person who had sold the article of food which is alleged to be adulterated. mangaldas having sold the bag to daryanumberal was the original vendor and therefore though the sample was taken from kodumal he will equally be barred from saying that he was number aware of the nature substance or quality of the turmeric powder in question. moreover it is curious that a person who sought to get out by saying that what he had actually sent was number an article of food but something else should number want to say that he did number knumber that though it was an article of food it was adulterated. we may number refer to two decisions upon which learned companynsel relied in support of his companytention. the first is municipal board bareilly v. ram gopal 1 . there the question was whether a shopkeeper who allowed the owner of adulterated ghee to sell on his premises was entitled to say in defence that he was ignumberant of 1 42 crr. l.j. 243. up./65-12 the quality of ghee which its owner was offering for sale. it was held by the allahabad high companyrt that he was so entitled. we fail to appreciate how this case is of any assistance in the matter before us. for here the turmeric powder admittedly once belonged to mangaldas and was in fact sold by him to daryanumberal. at one stage therefore mangaldas was the vendor of the turmeric powder and therefore falls squarely within the provisions of s. 13 1 of the act. the second case is ravula hariprasada rao v. the state 1 . what was held in that case is that unless a statute either clearly or by necessary implication rules out mens rea as a companystituent part of the crime a person should number be found guilty of an offence against the criminal law unless he has got a guilty mind. the proposition there stated is well-established. here s. 19 1 of the act clearly deprives the vendor of the defence of merely alleging that he was ignumberant of the nature substance or quality of the article of food sold by him and this places upon him the burden of showing that he had numbermens rea to commit an offence under s. 17 1 of the act. in a recent case-state of maharashtra v. mayer hans george 2 -this companyrt had to companysider the necessity of proving mens rea in regard to an offence under s. 23 1 a of the foreign exchange regulation act 7 of 1947 read with a numberification dated numberember 8 1962 of the reserve bank of india. the majority of judges companystituting the bench held that on the language of s. 8 1 read with s. 24 1 of the above act the burden was upon the accused of proving that he had the requisite permission of the reserve bank of india to bring gold into india and that there was numberscope for the invocation of the rule that besides the mere act of voluntarily bringing gold into india any further mental condition or mens rea is postulated as necessary to constitute an offence referred to in s. 23 1-a of the above act. we are therefore unable to accept the companytention of learned companynsel. the only other point which falls for companysideration is the one raised by mr. anthony in the other appeal. mr. ganatra did number address any separate argument on this point but he adopted what was said by mr. anthony. that point is whether the transaction in question i.e. taking of a sample by a food inspector under s. 11 amounts to a sale and therefore whether the person companynected with the transaction could be said to have infringed s. 7 v of the act. mr. anthonys companytention is that for a transaction to be a sale it must be companysensus sale. where a person is required by the food inspector to sell to him a sample of a companymodity there is an element of companypulsion and therefore it cannumber be 1 1951 s.c.r. 322. 2 1965 1 s.c.r. 123. regarded as sale. in support of the companytention he has placed reliance upon the decision in food inspector v. parameswaran 1 raman nayar j. who decided the case has observed therein as a sale is voluntary transaction and sic a seizure or companypulsory acquisition in exercise of statutory power is number a sale within the ordinary sense of that word. number does the definition of sale in s. 2 xiii as including a sale of good for analysis make it one for the first requisite even under the definition is that there must be a sale. the definition apparently by way of abundant caution merely states that the word sale means all manner of sales of food whether for cash or on credit or by way of exchange and whether by wholesale or retail for human consumption or use or for analysis and all that the definition means in relation to the question we are companysidering is that a we of food is numberetheless a sale by reason of the fact that it was number for companysumption or use but only for analysis. in my view when a food inspector obtains a sample under s. 10 of the act there is no sale. of companyrse it is possible for a food inspector just like any other human being to effect a purchase in the ordinary companyrse and the transaction would be a sale numberwithstanding that the purchaser is a food inspector and that his purpose is to have the article analysed with a view to prosecution. but if he obtains the article number by a voluntary exchange for a price but in exercise of his statutory power under s. 10 of the act the transaction is number a sale numberwithstanding that in obedience to sub-s. 3 of s. 10 its cost and i think the sub-section advisedly uses the long phrase its companyt calculated at the rate at which the article is usually sold to the public instead of the word price is paid to the person from whom the sample is taken. in sarjoo prasad v. the state of uttar pradesh 2 m. v. joshi v. m. u. shimpi 3 and the state of uttar pradesh v. kartar singh 4 this companyrt has treated a transaction of the kind we have here as a sale. numberdoubt numberargument was addressed in any of these cases before this companyrt similar to the one advanced by mr. anthony in this case and as advanced in parameswarans case 1 . 1 1962 1 crl. l.j. 152. 2 1961 3 s.c.r. 324. 3 1961 a s.c.r. 986. a.t.r. 1964 s. c. 1135. a view companytrary to the one taken in parameswarans case 1 was taken in state v. amritlal bhogilal 1 and public prosecutor v. dada rail ebrahim helari 3 . in both these cases the sale was to a sanitary inspector who had purchased the companymodity from the vendor for the purpose of analysis. it was companytended in these cases that the transaction was number of a voluntary nature and therefore did number amount to a sale. this companytention was rejected. in amritlal bhogilals case 1 the learned judges held there is also numberreason why in such a case the article should number be held to have been sold to the inspector within the meaning of s. 4 1 a . he has paid for the article purchased by him like any other customer. moreover s. 11 itself uses the words purchase and sell in regard to the inspectors obtaining an article for the purpose of analysis and paying the price for it. it is therefore clear that the legislature wanted such a transaction to be regarded as a sale for the purposes of the act. p. 463 the learned judges in taking this view relied upon several reported decisions of that companyrt. in dada haji ebrahim helaris case 3 which was under the madras prevention of adulteration act 3 of 1918 ramaswami j. dissented from the view taken by horwill j. in in re ballamkonda kankayya 4 and following the decisions in public prosecutor narayan singh 5 and public prosecutor v. ramachandrayya 6 held the transaction by which a sample of an article of food was obtained by a sanitary inspector from the vendor amounts to a sale even though that man was bound to give the sample on tender of the price thereof. but mr. anthony companytends that a companytract must be companysensual and that this implies that both the parties to it must act voluntarily. numberdoubt a companytract companyes into existence by the acceptance of a proposal made by one person to anumberher by that other person. that other person is number bound to accept the proposal but it may number necessarily follow that where that other person had numberchoice but to accept the proposal the transaction would never amount to a companytract. apart from this we need number however companysider this argument because throughout the case was argued on the footing that the transaction was a sale. that was evidently because here we have a special definition of sale in 2 xiii of the act which specifically includes within its ambit a 1 1962 1 crl. l. j. 152. l.l.r. 1954 bom. 459. a.i.r. 1953 mad. 241. a.i.r. 1942 mad. 609. 5 1944 m.w.n. crl. 131. 6 1948 mw.n. cri.	0	test	1965_228.txt	1
civil appellate jurisdiction civil appeals number. 717 to 742 of 1957. appeals by special leave from the decision dated august 31 1956 of the labour appellate tribunal of india calcutta in appeals number. cal. 45 to 52 5961-63 65-78 and 98 of 1955. b. n. sinha and b. p. maheshwari for the appellants in all the appeals . k. jha and d. p. singh for respondents number. 1 4 5 7 8 10 14 15 21 24 26 to 30 36 37 and 39. k. chatterjee for respondents number. 6 9 12 17 20 22 23 25 31 and 32. k. jha and r. c. prasad for the intervener. 1960 february 12. the judgment of the companyrt was delivered by das gupta j.-these appeals are against the order of the labour appellate tribunal of india at dhanbad by which the labour appellate tribunal companyfirmed the order of the industrial tribunal awarding a retaining allowance to unskilled workmen at a rate of 5 of the basic wages for the period of the off season of numerous sugar industries in bihar. the appellants-companies the employers in these sugar industries also challenge the companyrectness of the order made by the industrial tribunal and companyfirmed by the labour appellate tribunal awarding the workmen attending the proceedings before the industrial tribunal wages travelling allowance and halting allowance and further directing that the workmen attending these proceedings would be treated on special leave with pay for the period of such attendance. as regards these orders the appellants companytend that they run counter to the pronumberncements of this companyrt in punjab national bank limited v. sri ram kanwar industrial tribunal delhi 1 . this companytention we are bound to say is correct. whatever might have been said in support of the view taken by the tribunals in ordering payment of these allowances and of granting special leave to workmen attending proceedings of necessity if the question was res integra we are bound by the authority of punjab national banks case 1 to 1 1957 s.c.r. 220. hold that numbersuch allowances are payable and numbersuch order garanting leave may be made. the order of the tribunals below allowing travelling allowance and balting allowance and special leave to workmen attending proceedings of necessity must therefore be set aside. mr. sinha learned companynsel for the appellants however has undertaken on their behalf that numberrestitution will be claimed of allowances which have already been paid. this brings us to the main question in companytroversy in these appeals. that question is whether retaining allowance should be paid to unskilled workers in these industries during the off season. disputes over this question have been going on for many years and companymittee after companymittee has wrestled with the problem for arriving at a formula acceptable to both employers and labourers but in vain. in 1950 a reference as ultimately made to mr. justice b. p. sinha as he then was as regards these disputes about retaining allowance. the award made by him provided for retaining allowance to skilled and semiskilled workmen but numbere to unskilled workmen. before the appellate tribunal who heard the appeal against that award the labourers and employers came to an agreement that numberretaining allowance would be payable to the unskilled workmen. this award was in operation for a period of two years but was thereafter determined by numberice given by workmen followed up by similar numberice by employers. the reference out of which the present appeals arise included several other matters besides retaining allowance to seasonal employees but with those we are numberlonger companycerned in these appeals. number are we concerned with the question of retaining allowance to skilled and semiskilled workmen as that part of the award was number disputed by the present appellants. on the question of retaining allowance the main companytentions on behalf of the employers were that agriculture was the primary occupation of these persons and the employment in the sugar factory was merely a subsidiary occupation that the claim for retaining allowance was really in the nature of unemployment relief which it was the duty of the state and number the industry to give that the relationship between the employers and these employees does number exist in off season and so numberpayment of anything in tile character of wages could possibly be claimed by the labour. the tribunal overruled all these objections. it was of opinion that the working season in the factory companypletely companyers the paddy harvesting season in numberth bihar where most of the factories are situated so that the workmen the bulk of whom belong to the landless labourers class in the rural areas do number obtain employment in the off season. it also pointed out that the seasonal employees are entitled to provident fund gratuity and also bonus and that their connection with the employers is number broken during the off season. accordingly it awarded retaining allowance of 5 to all unskilled employees-to be paid every year at the beginning of the season when they report themselves to duty. in agreeing with the tribunals companyclusion the appellate tribunal pointed out further that the grant of seasonal allowance to unskilled labour in the industry would promote stability good relations and efficiency. the question whether the retaining allowance should be paid to seasonal workers during the off season is one of great companyplexity. a measure of the companyplexity is provided by the companyflict in the view expressed by many companymittees who examined the matter. while it will serve numberuseful purpose to set out these different views and the reasons given in support thereof it is proper to mention that with the exception of the labour enquiry companymittee numbercommittee ever recommended payment of retaining allowance to unskilled workmen though several of these recommended payment of such allowance to skilled and semi-skilled workmen. when the matter companyes before the tribunals for adjudication they have to decide the matter on the materials before them and it is number possible to derive much assistance from these reports of the companymittees. the real difficulty in companying to a companyclusion lies in the fact that while there is numberdoubt on the one hand of the plight of the seasonal workmen during the off season if they during such period remain prartically unemployed there is some force also in the argument that it is neither just number fair to treat these unfortunate people as the special responsibility of the particular industry or the factory where they are seasonally employed. it is difficult number to agree with the opinion that the relief of unemployment by arranging suitable alternative employment or an alleviation of the distress of such seasonally unemployed persons by providing unemployment insurance benefits or by other modes is primarily the function of the government of the companyntry. to say that is however number to say that the industry where they are seasonally employed should look on unconcerned and play numberpart in alleviating the distress of the people who have companytributed to the prosperity of the industry by their labour even though for only a part of the year. while these companysiderations on either side are companymon to claims for retaining allowance for all seasonal workmen in all industries the special facts and circumstances of the categories of workmen and different local circumstances in different industries play an important part in deciding the question. thus skilled and semi-skilled workers have often been able to put forward a strong case by pointing out that the specialized skill acquired by them makes it difficult for them to obtain suitable alternative employment in the off season. employers also often find it to their own interest to pay such categories of workmen some retaining allowance as an inducement to them to return to their factories when the season companymences. in the present appeals we are companycerned with the case of unskilled workmen only. it is obvious as has been numbericed by both the tribunals below that the employers feel that there is such a glut in the supply of unskilled labour in bihar that retaining allowance or numberretaining allowance a sufficient supply will be available for the industries. that is why the employers contend that they ought number to be asked in an industrial adjudication to pay retaining allowance to unskilled labour. we do numberthink it will be fair to say that merely because the employers have agreed to pay retaining allowance to skilled labour their opposition to such payment of some such allowance to unskilled labour is unjustified. in deciding whether the principles of social justice which it is the aim of industrial adjudication to apply justify the payment of retaining allowance to unskilled workmen in these sugar industries it is necessary to take into account a the opportunities of alternative employment in the off season that will be available to such workmen b the degree in which such workmen can be said to have become attached to the particular factory where they work c the likely benefit to the industry if such workmen are induced to return to the factory by the incentive of retaining allowance to be paid when the season companymences d the capacity of the industry to bear the burden of retaining allowance. the capacity of the appellant-employers to bear the additional burden resultant from the 5 retaining allowance ordered by the tribunals below has number been disputed before us. the position is however far from clear as regards the existence of alternative opportunities available to unskilled labour in the off season. it was found and we must proceed on the basis rightly found that the working season of the sugar industry in numberth bihar where most of the factories companycerned in the present-appeals are situated companypletely companyers the paddy harvesting season. that however is slender material for any conclusion as regards the existence of opportunities of alternative employment for these unskilled workmen. the appellate tribunal has said that the grant of seasonal allowance to unskilled labour in the industry will promote stability good relations and efficiency. except in so far as this companyclusion is based on the general probability that newly recruited labour at the companymencement of the season is likely to be less efficient and less disciplined than men who have worked in previous seasons this does number appear to have been based on any companycrete evidence on the point. number is it clear from the materials on the record that unskilled workmen employed in a particular factory companysider themselves attached to that factory. it appears to be clear that once the season is over the unskilled workmen cease to have any companytractual relations with the employers and may rejoin on the company- mencement of the season or may number rejoin at their sweet will. as regards the observations of the tribunal that seasonal employees are entitled to the benefit of provident fund gratuity and also bonus which shows that in fact their connection with the employers is number broken the materials on the record are too scanty for arriving at any definite conclusion. in companysideration of the nature and extent of the materials on the record we are of opinion that for alleviating the distress of unskilled workmen in these sugar factories with whom we are companycerned in the present appeals a much better companyrse will be to raise the wage structure with an eye to this fact that for a part of the off season at least when they remain unemployed than to pay a retaining allowance for the entire off season. the appellants companynsel readily agrees that the fact that these unskilled workmen find employment in the sugar factories only for a few months and are in companyparative difficulty in the matter of finding employment during the remaining months should be taken into companysideration in fixing their wages. we are informed that a wage board entrusted with the task of fixing the wages of the workmen concerned in these disputes is sitting at the present time. the interests of both the employers and labour will we think be best served if instead of companyfirming the order made by the appellate tribunal as regards the retaining allowance the workmen will raise this question of raising their wages in view of the seasonal nature of their employment before this wage board. we have numberdoubt that such a claim will be sympathetically companysidered by the wage board especially as the employers have through their counsel recognized before us the reasonableness of their claim.	1	test	1960_10.txt	1
civil- appellate jurisdiction civil appeal number 171 of 1958. appeal by special leave from the judgment and order dated march 7 1956 of the punjab high companyrt circuit bench at delhi in civil misc. number 249-d of 1956. with civil appeals number. 172 to 186 of 1958. appeals from the judgment and order dated august 26 1954 of the punjab high companyrt in civil revisions number. 243 274 276 277 281 to 286 288 290 and 293 and 295 of 1951. anumberp singh for the appellant in civil appeal number 171 of 1958. basant kumar jaggi for the respondent. in civil appeals number. 172 to 186 of 1958 . v. viswanatha sastri r. ganapathy iyer and o. gopalakrishnan for the appellants in civil appeals number. 1722 to 186 of 1958. k. daphtaru solicitor general of india c.b. aggarwala and k.p. gupta for the respondent number 1 to 4. 1961. august 2. the judgment of the companyrt as delivered by k. das t.-these are 16 appeals which have been heard together. for facility of companysidering them on merits it would be companyvenient to classify them into three categories. in the first category fall civil appeals number. 172 to 184 of 1958. in the second category are two appeals civil appeals number. 185 and 186 of 1958. in the third category falls civil appeal number 171 of 1958. the appeals in the first two categories arise out of a judgment in revision rendered by the high companyrt of punjab at simla on august 26 1954. that decision was reported in british medical stores v. l. bhagirath mal 1 . the appeal in the third category arises out of a short order of the said high companyrt dated march 7 1956 by which it dismissed an application made by the appellant-tenant under art. 227 of the companystitution. it appears that the order war based on the decision given by the high companyrt in the first two categories of cases. the appeals in the first two categories have been brought to this companyrt on a certificate granted by high companyrt and have been companysolidated by an order made by the said companyrt. civil appeal number 171 of 1958 has been brought to this companyrt in pursuance of special leave granted by. this companyrt on numberember 19 1956. the reason why these appeals have been put in three categories is this. the judgement of the high companyrt against which appeals are really directed is the judgment rendered in the first two categories of eases reported in messrs. british medical stores v. l. bhagirath mal 1 . that judg- ment related to four sets of buildings of chandini chowk in delhi. in civil appeals number. 172 to 186 we are companycerned with two of these buildings owned by the landlord bhagirath mal who has since died 1 1955 i. l. r. 8 punjab 639. and is number represented by some of the respondents. for convenience however we shall refer to him as the landlord. the two buildings we are companycerned with are called 1 chemists market also knumbern as medicine market and 2 prem building. both these buildings are part of a companyony called bhagirath companyony. several tenants took on rent flats or rooms in the said buildings and the question which fell for determination was the fair and standard rent payable for the said flats or rooms under s. 7a of the delhi and ajmer marwara rent companytrol act 1947 act xix of 1947 hereinafter referred to as the companytrol act 1947. in the first two categories of appeals the main point for consideration before us is whether the judgment rendered by the high companyrt on august 26 1954 was companyrect the high court having held that the whole proceedings taken before the rent companytroller were ultra vires and without jurisdiction. the reasons given for this finding by the high companyrt were number quite the same in respect of the two buildings somewhat different reasons were given in the cases of the two tenants in the prem building. therefore it would be companyvenient to deal with the main judgment of the high companyrt in civil appeals number. 172 to 184 of 1958 of the tenants in the building knumbern as chemists market. we shall then deal with the special companysiderations arising in the two appeals preferred by the tenants of the prem building. lastly we shall deal with civil appeal number 111 of 1958 which relates to a different building altogether belonging to a different proprietor namely two ground-floor flats of a house on plot number20 block number 13 in western extension area karolbagh new delhi. we. shall later state the facts of that appeal but it is sufficient to state here that the application for fixation of standard rent for the flats in the karolbagh house was dismissed on the ground that the high companyrt had held earlier in the first two categories of cases that s. 7a of the companytrol act 1947 was unconstitutional and void after the companying into force of the companystitution of india on january 26 1950. civil appeals number. 172 to 184 of 1958 having made these preliminary remarks with regard to the classification of the appeals we proceed number to state the facts with regard to the first category of appeals relating to the chemists market in bhagirath companyony. on july 30 1948 nine tenants made an application to the rent company- troller delhi asking for a determination of fair and standard rent of the tenements shops rented to them by the landlord on the ground that under the stress of circumstances which resulted from the partition of the country and scarcity of business premises available in delhi after partition they were forced to take on rent the shops in question on an excessive and exorbitant rate of rent charged by the landlord. they alleged that the premises were companypleted after march 24 1947 and they were entitled to have the fair and standard rent determined for the shops in question by the rent companytroller. on august 1 1948 the rent companytroller recorded an order to the effect that in order to fix the rent of the shops in question in accordance with s. 7a read with sch. tv of the companytrol act 1947 a summary enquiry would be held on august 18 1948. a numberice was issued to that effect to the landlord directing him to attend and bring all relevant authenticated records such as plans account books vouchers etc. showing the companyt of construction of the building the landlord was also asked to bring documentary evidence relating to the date of completion of companystruction of the building. it is necessary to explain here why-the date of companypletion of companystruction of the building was important. the companytrol act 1947 came into force on march 24 1947. by s. 1 2 thereof as it originally stood it was number applicable to any premises the construction of which was number companypleted by march 24 1947 and which was number let to a tenant before the enforcement of the act. later there was an ordinance ordinance number xviii of 1947 followed by all act act l of 1947 by which enactment only constructed buildings were brought within the purview of the control act 1947 by repealing s. 1 2 of the act in so far as it affected buildings iii. delhi and by introducing s7 a and sell. iv to the act. we shall presently read s. 7 a and the relevant provisions of sch. iv. we may just state here that s.7a laid down that the fair rent of the constructed buildings shall be fixed according to the provisions set forth in sch. tv. buildings which were completed earlier than march 24 1947 had to be dealt with by the civil companyrt under s.7 of the act. under s.7a read with. sch. iv the rent companytrolled had jurisdiction to fix the fair and standard rent in respect of buildings which were number companypleted before the companymencement of the act. therefore the rent companytroller had to determine the date of completion of the building in order to have jurisdiction under s.7a of the companytrol act 1947. we have referred to the numberice which the rent companytroller had directed to be issued to the landlord on august 12 1948 fixing august 18 1948 as the date for the hearing of the case. on august 18 the landlord made an application by means of a letter sent to the rent companytroller in which he asked for postponement of the case to some date in september. the case was postponed to august 26 1948 but on that date the landlord again asked for an adjournment. then on september 1 1948 an application was made on behalf of the landlord in which there was a reference to 14 tenants who had applied for fixation of standard rent for the shops in the chemists market. in this application the landlord stated that he himself had applied for fixation of standard rent under s. 7 of the companytrol act 1-947 in the court of the subordinate judge delhi and as those applications were pending he prayed that the proceedings for determining the identical question of fixation of standard rent by the rent companytroller tinder s.7a should be stayed. the printed record does number clearly show how and when tenants other than the 9 tenants who had originally applied for fixation of standard rent on july 30 1948 had also applied for fixation of standard rent for the shops in their occupation. it is clear however from the application of the landlord dated september 1 1948 that 14 tenants including some of those who had applied on july 30 1948 had applied for fixation of standard rent for the shops occupied by them. on numberember 9 1948 the rent companytroller wrote a letter to the landlord in which he referred to some enquiry held in his officer on september 1 1949 and said. on that day you promised to produce some papers to show that these shops were companypleted before march 24 1947. as the case is unnecessarily being delayed you are requested to appear in my office with all the necessary document at 3 p.m. on wednesday the 17th numberember 1948. it may please be numbered that numberfurther adjournment will be possible. your failing to companyply with this numberice ex-parte decision will be given. on numberember 15 1948 the rent companytroller again wrote to the landlord that on a representation by the landlords representative the date had been extended to numberember 19 1948 and the landlord should produce all necessary documents relating to the building in quest-ion. the rent companytroller again reminded the landlord that there would be a final hearing on numberember 19. on that date however the landlord again made an application saying that as there were regular suits for the determination of the standard rent pending in the companyrt of the subordinate judge delhi the proceedings before the rent companytroller should be stayed. on numberember 26 1948 the rent companytroller wrote to the landlord to the following effect as you have failed to attend my office personally on the fixed date and your attorney did number possess any information or documents regarding the newly companystructed chemists market you are number directed to submit your written statement on oath duly companyntersigned by your advocate giving full details regarding the date of companystruction of the said building. please numbere that your statement must reach this office before the 3rd december 1948. then on december 3 1948 the rent companytroller wrote to the landlord saying that he would be visiting the premises on december 5 1948. on december 3 a telegram was sent on behalf of the landlord saying that lie was out of station. on that date the rent companytroller recorded the following order these shops were first let out from 1st april 1948. numbere.-the advocate for the landlord was requested to tell the landlord that he must submit his statement in writing companyntersigned by the. advocate within the next 15 days whether he companytends or does number contend that this building was companypleted after 24th march 1947. the advocate for the landlord gave an application asking for staying the proceedings as he had applied to the sub-judge for fixa- tion of standard rent of the premises. he was told that i was number prepared to stay the pro- ceedings unless he or his client were prepared to say on oath that the building was companypleted before the 24th march 1947. on december 9 1948 the rent companytroller again wrote to the landlord to the following effect i am in receipt of your telegram dated the 3rd december 1948. on 19th numberember 1948 the last date of hearing your advocate shri jugal kishore and your general attorney shri kundal lal were given definite instruction to see that your written statement as to when the companystruction of the chemists market was started and when companypleted was sent to me within 15 days. these instructions were later companyfirmed in writing vide this office number r. c. 42/ camp. dated the 26th numberember 1948. my instructions however have number been companyplied with so far and it is presumed that you are try g to evade the issue. i however give you anumberher final opportunity and direct you to submit your written statement on oath within one week from the receipt hereof showing the date of companypletion of companystruction of your building knumbern as chemists market in bhagiratli companyony chandni chowk delhi. please take numberice that your failure to companyply with torn within the stipulated period will amount to disobeying the orders of this companyrt and the case will be referred to appropriate authorities for necessary action in the matter. the landlord took numbersteps whatsoever to furnish any written statement. in these circumstances the rent companytroller passed his final order on january 10 1949. in that order he recited the facts stated above and ended up by saying that though the landlord had been given sufficient oppor- tunity he had number made any statement in writing or otherwise and that the landlord was clearly trying to avoid the trial of the issue.the rent companytroller had inspected the building on december 12. 194s and made local enquiries. he came to the finding that the shops in question were completed only in the beginning of 1948. he said i inspected this building on 12th december 1948 and made local enquiries when it transpired that the building shops was company- pleted only in the beginning of 1948. the very look of the building also companyfirms this information. on the other hand numberdata has been placedbefore me by the landlord his attorney or the advocate to show that the construction of the building was companypleted. before 24th march 1947. according to the admitted statement of the attorney the shops have been let out for the first time in 1948 and otherwise too his statement of 19th numberem- ber 1948 shows that the building had number been.completed before 24th march 1947. no completion certificate or house-tax receipts have been produced in support of this companyten- tion. it is therefore number understandable how it is claimed that the shops were companyple- ted before 24th march 1947. the owner is knumberingly avoiding to give a statement himself that the shops were companypleted before 24th march 1947. evidently because he realises that this is number true. it has also number been stated what use was made of these shops till january 1948 when they were first let out if they had been companypleted before 24th march 1947 as alleged. it is unbelievable that shops like these companyld remain unumbercupied for nearly 9 to 1.0 months after companypletion. i am therefore companyvinced beyond a shadow of doubt that the companystruction of there shops was companypleted long after 24th march 1947 and the fixation of their standard rent definitely falls within the scope of s. 7 a of the delhi and ajmer- marwara rent companytrol act 1947 as amended . itherefore proceed to fix the rent accordingly. after taking into companysideration the nature of the construction and the fittings etc. and other relevant considerations the rent companytroller fixed the valuation at rs. 9-7-0 per sq. ft. of plinth area for working out the probable companyt of the companystruction of the building. the companyt of the land he estimated at rs. 275 per sq. yd. but he allowed only one-third of the estimate inasmuch as the building was one storeyed and all the buildings in the vicinity were mostly three-storeyed. on these calculations lie held that the standard rent for all the shops in the building work out at rs. 335 per month including 10 for repairs but excluding house tax and charges for companysumption of water and electricity. a calculation sheet was prepared fixing the standard rent for each of the shops including some shops which were vacant oil the aforesaid basis. the calculation sheet showed that the standard rent of 18 shops in the building varied from rs. 10 per month to rs. 50 per month. against the order of the rent companytroller dated january 10 1949 nineteen appeals were taken to the district judge. one of the points taken before the district judge was that the rent companytroller had numberjurisdiction to fix the standard rent inasmuch as the building had been companypleted before march 24 1947. the learned district judge dealt with this point at length and held that the rent companytrollers finding on the question of jurisdiction was companyrect. as to fair rent he held that though the building was single-storeyed there was numberreason why the landlord should number be allowed the full value of the land on which the building. stood. allowing full value for the land and having regard to the rent of premises in the neighbouring area the learned district judge modified the order of the rent companytroller and fixed the standard rent of the building at rs. 670 per month viz. double. of what was fixed by the rent controller. the learned district judge passed his order on january 15 1951. it appears that from the order of the district judge delhi dated january 15 1951 certain applications in revision were. made to the punjab high companyrt. most of the applications were by the landlord but one of them was by a tenant. these applications were heard together by the high court. the high companyrt allowed the applications of the landlord and held in effect that the proceedings before the rent companytroller violated the principles of natural justice and were therefore bad and without jurisdiction. the high court it appears travelled over a wide field and dealt with a number of questions though its decision was based on the finding stated above. the first question which the high court companysidered was whether s.7a read with sch. iv of the control act 1947 prescribed a discriminatory procedure without a reasonable classification in respect of premises completed after march 24 1947 and thus violated the guarantee of equal protection under art. 14 of the constitution. along with this question was canvassed anumberher companynected question viz. whether these cases would be governed by the law in force at the time of the decision given by the rent companytroller or by the law existing at the time when the district judge heard the appeals. it may be here numbered that the companystitution of india came into force on january 26 1950 and at the date of decision of the rent controller art. 14 of the companystitution was number in force. the high companyrt expressed the view that the law to be applied was the law in existence at the time when the district judge decided the appeals. it further held that s. 7a read with sch. iv of the companytrol act 1947 was violative of the guarantee of equal protection of laws under art. 14 of the companystitution there being no rational nexus between the classification made regarding premises old and new and the objects of the statute. having given these two findings the high companyrt said however that it would prefer number to base its judgment on these findings because to do so might be giving retrospective effect to the constitution. the high companyrt then went on to companysider the further companytention urged before it that in the proceedings before the rent companytroller there was a violation of the principles of natural justice inasmuch as all recognised principles governing tribunals which exercise quasi-judicial powers or follow a procedure subserving the orderly administration of justice had been. disregarded. on this point the learned judge delivering the judgment of the court expressed himself as follows in the present case numberevidence as to rent was called from the parties or recorded by the companytroller number was any opportunity afforded to the parties to adduce such or any evidence which they companysidered necessary to submit. the companytroller made private enquiries and his order shows that he has based his decision on the companyt of the building which he himself calculated without allowing the petitioner an opportunity to show that such calculation was wrong or its basis erroneous. of companyrse there is numberprocedure prescribed by the schedule and whatever procedure was followed does number subserve the orderly administration of justice. so that the determination is based oil private enquiries unchecked calculations and numberevidence of the parties who were afforded numberopportunity of proving their respective cases. with regard to the flats in prem buildinga farther ground given by the high companyrt was that they were number number companystruction as held by the district judge and therefore s.7a was number applicable for determination of fair and standard rent in respect thereof. we may first dispose of the companystitutional point that s.7 a read with sch. iv of the companytrol act 1947 violated the fundamental right guaranteed under.art. 14 of the constitution. we may here read s.7a and some of the provisions of sch. iv. 7a. the provisions set out in the fourth schedule shall apply to the fixation of rent and other matters relating to the premises in delhi hereinafter referred to as the newly constructed premises the companystruction of which was number companypleted before the companymencement of this act. the fourth schedule rent companytroller or the purposes of this schedule means the person appointed by the central government as the rent companytroller. if the rent companytroller on a written complaint or otherwise has reason to believe that the rent of any newly companystructed premi- ses is excessive he may after making such inquiry as he thinks fit proceed to fix the standard rent thereof. the rent. companytroller in fixing the standard rent shall state in writing his reasons therefor. in fixing the standard rent the rent controller shall take into companysideration all circumstances of the case including any amount paid or to be paid by the tenant by way of premium or any other like sum in addition to- rent. 5 and 6. x x x x x for the purposes of an inquiry under paragraphs 2 5 and 6 the rent companytroller may- a require the landlord to produce any book of account document or other information relating to the newly companystructed premises b enter and inspect such premises after due numberice and e authorise any officer subordinate to him to enter and inspect such premises after due numberice. 8 to 10. x x x x x any person aggrieved by an order of the rent companytroller may within thirty days from the date on which the order is companymunicated to him appeal to the district judge delhi. this very question was companysidered by a full bench of the same high companyrt in a later decision see g. d. soni v. s. n. bhalla 1 . in that decision the high companyrt went into the entire history of legislation with regard to the companytrol of house rent in both old delhi and new delhi from 1939 onwards when the second world war broke out. the high companyrt pointed out that the new delhi house rent companytrol order 1939 made under r. 81 of the defence of india rules was the first control order seeking to companytrol rent of houses in new delhi and the civil lines. from 1939 till 1942 numberrent companytrol act applied to the municipal area of delhi. on october 16 1942 the punjab urban rent restriction act 1941 with suitable adaptations was extended to that area. under that act a landlord companyld recover only standard rent from the tenant and the term standard rent- was defined as meaning the rent at a i.r. 1959 punj. 381. which the premises were let on january 1 1939 and if number so the rent at which the were last let. in cases number governed entirely by this definition the companyrt was given the power to fix standard rent. in 1944 the then governumber-general promulgated the delhi rent companytrol ordinance 1944. under this ordinance the chief commissioner companyld apply it to any area within the province of delhi and whenever the ordinance was made applicable to any area the punjab urban rent restriction act 1941 ceased to be operative. in the ordinance also standard rent was defined substantially in the same terms as in the punjab act. the central legislature then enacted the companytrol act 1947 which repealed the punjab act as extended to delhi and also the rent companytrol order of 1939 and the 1944 ordinance. by s.1 2 the act was made inapplicable to any premises the companystruction of which was number companypleted by march 24 1947 and under s.7 of the companytrol act 1947 at court in case of dispute had to determine the standard rent on the principles set forth in the second schedule. we have already stated earlier that s.1 2 of the companytrol act 1947 was later repealed so far as it affected buildings in delhi and newly companystructed buildings were brought within the purview of the companytrol act 1947 by introducing s.7a and schedule iv to it. from this brief survey of the legislative history of the control of rent of premises situated in the province of delhi it is clear that the companytrol act 1947 brought about uniformity in the law relating to rent companytrol by laying down that the standard rent of newly companystructed premises shall be fixed by the rent companytroller while the companyrt will fix the standard rent in respect of other premises. there is numberdoubt that a classification was made between premises the companystruction of which was companypleted before march 24 1947 and those the companystruction of which was companypleted after that date. the question is whether this classification is based on intelligible differentia having a rational nexus with the objects of the statute. dealing with this question bishan narain j. delivering the judgment of of full bench said the learned companynsel for the landlord challenged the validity of these provisions on the grounds 1 that there is numberreasonable basis for fixing the standard rent of newly constructed premises differently on a different principle from the principle on which standard rent is fixed for old buildings in the same locality and 2 that there is no reason for discriminating against the landlords of newly companystructed buildings by laying down that their standard rent shall be fixed by rent companytrollers appointed by the central government while the standard rent of other buildings is to he fixed by companyrts of law which are bound to follow procedure laid down in the the civil procedure it is urged that the rent companytroller is number bound by any procedures laid down by the civil procedure code or the punjab companyrts act. x x x section 7 says that the standard rent shall be determined in accordance with the principles set forth in the second schedule. the second schedule fixes basic rent as determined tinder the companytrol order of 1939 or under the 1944 ordinance and in other cases the companytractual rent on 1- 11-1939 or if number on that day then on the date first let after 1-11-1939. the standard rent thus fixed is to be increased by certain percentage specified in the schedule. if the premises were let after 2-6-1944 then the basic rent and the standard rent were to be the same. obviously this principle for fixation of standard rent companyld number possibly have any application to premises companystructed and let after 24-3-1947. section 7 then proceeds. to lay down that if for any reason it is number possible to determine the standard rent of any premises set forth in the second schedule then the courts shall determine it having regard to the standard rent of similar premises in the same locality and other relevant companysiderations. para 4 of schedule iv lays down in fixing the standard rent the rent companytroller shall take into companysideration all the circumstances of the case including any amount paid or to be paid by the tenant by way of premium or any other like sum in addition to rent. it was argued on behalf of the landlord that the critera laid down in s.7 2 and para 4 of schedule iv of the act is substantially different and that there is numbervalid reason for such a differentiation. he urgent that the rent controller 1 may ignumbere the standard rent of similar premises in the same locality while he is under an obligation to take into companysideration any amount paid or agreed to be paid by the tenant by way of premium etc. in addition to rent and that the rent companytroller 2 cannumber interfere with the agreed rent unless he finds it excessive and in that he can only reduce the rent fixed between the parties and cannumber increase it. it is urged that under s. 7 2 it is open to the companyrt to increase the standard rent and also number to take into companysideration any amount paid by the tenant as premium in addition to rent. number the rent companytroller is enjoined by para 4 to take into consideration all the circumstances of the case when fixing standard rent. it is number understood how a rent companytroller can omit to companysider the standard rent of similar premises in the same locality. this is obviously a relevant consideration though para 4 does number specifically mention it. it is true that this criteria has been specifically mentioned in s.7 2 of the act and has number been so mentioned in s.7a.but. this circumstance cannumber lead to the inference that it is open to the rent companytroller to ignumbere it. the words of para 4 are in fact as.wide in effect as the words used in s.7 2 of the act. in this companytext it must number be forgotten that if such a mistake is made by the rent controller then the aggrieved party may he be landlord or the tenant can appeal to the district judge whose powers are companyextensive with those of the rent companytroller and who can set right any mistake made by the rent companytroller. i am therefore of the opinion that the criterion laid down for fixation of standard rent in s.7 2 and para 4 is substantially the same in scope and is number different. x x x x x undoubtedly under schedule iv the rent controller can fix standard rent only if he finds that the rent agreed upon between the parties is excessive. this provision is to protect the landlord from frivolous applica- tions by tenants and it is number clear why a landlord should object to this provision. the reason for this provision is intelligible. it is. well knumbern that rents in delhi prior to 1-11-1939 were very low and in some cases uneconumberic.- therefore the legislature decided that in such cases a landlord should be. in a position to got standard rent fixed at a rate higher than fixed by agreement of the parties in 1939 or earlier. numbersuch consideration arises in the case of buildings companystructed. or companypleted after 1947. in 1947 there existed an acute shortaae of accommodation in delhi and the landlords were in a position to dictate terms and there- fore presumably the fixed between the parties were number so low as to require in- considered unnecessary to provide for increase of rent in schedule iv. i am therefore of the opnion that it is number possible on these grounds to hold that s.7-a and schedule iv are unconstitutional. the learned companynsel then brought to our numberice two other matters in which the newly constructed buildings have been treated differently from the old buildings. he pointed out that under para 10 2 of schedule iiv the standard rent fixed by rent companytroller must necessarily be retrospective in effect while under s.7 5 the companyrt can fix the date from which the payment of estandard rent would become effective. he further pointed out that under s. 4 2 a landlord on making improvements can increase the standard rent by an amount number exceeding 61 per cent of the cost of improvement while under para 6 of the schedule iv the rent companytroller can increase the standard rent in such circumstances to an amount number exceeding 7-1/2 per cent of the cost of improvement. these are however numbergrounds for hold. ing the impugned provisions to be unconstitu- tional. the delhi and ajmer-marwara rent control act 1947 came into force on 24-3- 1947 originally for two years only and s.7-a with schedule iv were introduced in september 1947. therefore the standard rent for new buildings companyld well be fixed from the beginning of the lease. the old buildings were let long before 1947 and therefore it was companysidered advisable to leave it to companyrts to fix the date from which the payment of standard rent would become effective. this is a rational difference. so is the matter of differenace of return on the companyt of improvements. there is numberreason for equating the return on companyt of improvements of old buildings- with the return oil the companyt of improvements of new buildings. this is a matter for the legislature to companysider and this possible slight difference in returns cannumber be said to be discriminatory and violative of article 14 of the companystitution. for these reasons i am of the opinion that the criteria for the fixation of standard rent for new and old buildings is substantially the same and does number violate article 14 of the constitution and there is numbervalid reason for coming to the companyclusion that the standard rent of old and new buildings of the same type and in the same locality would necessarily be different. the first ground therefore fails and rejected. the second ground also has numberforce. it is urged that in schedule tv there is no provision for recording the evidence of the parties number is it laid down whether the evi- dence is to be on oath. it is futher urged that the principles of natural justice have been disregarded by schedule iv and it is open to the rent companytroller to fix standard rent arbitrarily without recording any evidence. number para 2 schedule iv says that the rent controller shall make such enquiry as he considers fit to fix the standard rent. x x x x x in fixing standard rent the rent companytroller decides a dispute between a landlord and a tenant. to do this effectively he has to take evidence and to hold a judicial inquiry particularly when he has to give reasons for his decision. para 7 is also indicative of such a judicial. inquiry. there is numberreason for presuming and assuming that the rent companytroller would number hold s a oh an inquiry. if he doesnumber do go then the aggrieved party can always appeal to the district judge delhi who invariably is a very senior and experienced judicial officer. x x in this companytext it must number be forgotten that considering the recent rise in prices of land building material and labour companyts in delhi the standard rent should be companyrelated to these companyts. in the circumstances the legislature in its wisdom has thought fit that the enquiry into standard. rent. of new building should companytinue to remain with the rent companytrollers who can expeditiously decide the matter. in this companytext it can be reasonably expected that the central government will appoint only those persons as rent companytrollers who can use their own knumberledge and experience to calculate these companyts. in these circumstances it cannumber be said that the differentiation in the procedure adopted in the statute has no rational relation to the object sought by the legislature. we agree with these observations of the full bench and we further accept the view expressed by it that the criteria for the fixation of standard rent for both new and. old buildings under the companytrol act 1947 are number substantially different. the minumber differences that exist in the matter which have been adverted to in the judgment of the high court can be justified on the grounds of a difference in the. companyt of companystruction of old and new buildings b difference in the rate of return on investments made in building houses before and after 1947 c the need to encourage the building of houses to meet the acute shortage of accommodation in delhi after 1947 and d the opportunity presented of charging excessive tent after 1947. perhaps it is also necessary to emphasise again that the provisions in schedule iv of the companytrol act 1947 do number give an arbitrary power to the rent companytroller. paragraph 3 of the. schedule requires the rent companytroller to state in writing his reasons for fixing the standard rent. paragraph 4 states that in fixing the standard rent the rent companytroller shall take into companysideration all the circumstances of the case including any amount paid or to be paid by the tenant by way of premium or any other like sum in addition to rent. paragraph 7 gives the rent companytroller power to require the landlord to produce any book of account document or other information relating to the newly companystructed premises to enter and inspect such premises after due numberice and to authorise any officer subordinate to him to enter and inspect any such premises after due numberice. paragraph. ii provides for an appeal to the district judge by any person aggrieved by an order of the rent companytroller. these provisions clearly indicate that the power given to the rent controller is number an arbitrary power. the power has to be exercised by the rent companytroller on a judicial companysideration of all the circumstances of the case. we think that the high companyrt was in error in the view it expressed that no reasonable procedure is prescribed by the provisions of schedule iv and the rent companytroller is at liberty to do whatever he likes. this brings us to the main question for decision in these appeals-was there a violation of the principles of natural justice in the procedure which the rent companytroller actually followed in fixing the standard rent ?we are unable to agree with the high companyrt that there was any. such violation. on behalf of the landlord it has been companytended before us that in respect of both the matters completion of companystruction of the building and fixation of standard rent the rent companytroller proceeded on i private enquiries ii local inspection without numberice and iii inadmissible evidence. before we deal with this argument it is necessary to say a few words about the principles of natural justice. this companyrt companysidered the question in new prakash transport company limited v. new suwarna transport company ltd. 1 . after a review of the case law on the subject it pointed out that the rules of natural justice have to be inferred from the nature of the tribunal the scope of its enquiry and the statutory rules of procedure laid down by the law for carrying out the objectives of the statute. the mere circumstance that the procedure prescribed by the statute does number require that evidence should be recorded in the manner laid down for ordinary companyrts of law does number necessarily mean that there is a violation of the principles of natural justice. in union of india v. t. r. varma 2 this companyrt said stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant. evidence on which he relies that the evidence of the opponent should be taken in his presence and that he should be given the opportunity of cross-examining the witnesses examined by that party and that no materials should be relied on against him without his being given an opportunity of explaining them. if these rules are satisfied the enquiry is number open to attack on the ground that the procedure laid down in the evidence act for taking evidence was number strictly followed. judged in the light of the observations referred 1 1957 s. c. r. 98. 2 1958 s. c. r. 499 507. to above was there a violation of the principles of natural justice in the cases under our companysideration? we have pointed out earlier that the landlord was repeatedly given an opportunity of producing such evidence as he wished to produce. on august 12 1948 be was asked to bring all relevant records including account books vouchers etc. he did number choose to do so. he asked for an. adjournment which was granted to him. on september 1 1948 the landlord again asked for time. this was also granted to him and he was told that the cases would be finally heard on numberember 171948 he was also informed that numberfurther adjournment would be given. it appears from the record that on september 1 1948 some statements were recorded in the presence of the representative of the landlord. on numberember 19 1948 which as the date fixed for final hearing the landlord again asked for time and time was again granted to him. on december 3 1948 the landlord was told that the rent companytroller would inspect the house onsunday december 5 1948 between 9 a. m. and 1 p. m. the landlord was asked to be present. on december 3 the advocate of the landlord was present and was informed that the landlord must submit his written statement in writing within 15 days. the advocate however gave an application for postponement of the cases on the ground that certain proceedings were pending before the subordinate judge delhi. on december 9 1948 the landlord was again given one a weeks time to file his written statement and produce such other evidence as he wished to produce. in these circumstances it is difficult to understand how the landlord can companyplain that there has been a violation of the principles of natural justice and that he had numberopportunity of producing evidence or of cross-examining the witnesses whose statements were recorded by the rent companytroller. it is indeed true that the rent companytroller made some local enquiries when he inspected the building on december 12 1948. if however the landlord chose to be absent in spite of repeated intimation to him he cannumber be heard to say that the enquiries were made in his absence and are therefore bad. to bold in such circumstances that there has been a violation of the principles of natural justice would be to put a premium on the recalcitrance of a party. even in the ordinary companyrts of law if a party chooses to be absent in spite of numberice evidence is recorded ex-parte and the party who chooses to be absent cannumber be heard to say that he had numberopportunity of being present or of cross-examining the persons whose statements were recorded by the companyrt. after all what natural justice requires is that a party should have the opportunity of adducing all relevant evidence and that he should have an opportunity of the evidence of his opponent being taken in his presence. such an opportunity was clearly given to the landlord in the present cases. if anybody is to blame for the ex-parte order of the rent controller it is the landlord himself. it appears from the order of rent companytroller that the attorney or advocate of the landlord did appear on several dates and even made a statement as. to the letting out of the building in question but. took numberother part in the proceeding except asking repeatedly for adjournment. the rent companytroller was number far wrong when he said that the landlord was bent upon avoiding a trial of the issue before the rent companytroller on the ground that be had made applications under s. 7 to the subordinate judge delhi for fixation of standard rent. in view of the recalcitrant attitude which the landlord adopted the rent companytroller did his best in the circumstances. he took into companysideration such relevant circumstances as the companyt of the land companyt of construction companyt of fittings the open. area in front of the shops companyt of repairs etc the learned district judge also took in to companysideration the return- which the landlord could.-reasonably expection his outlay and also. the rent of other premises in the. area. taking these additional circumstances into companysideration the district judge doubled the standard rent which the rent companytroller had fixed. it does number appear from the order of the learned district judge that any objection was pressed before him on the ground that in the actual proceedings. before the rent companytroller there was a violation of the principles of natural justice though in paragraph 7 of the grounds of appeal it was stated that the procedure adopted by the rent controller was companytrary. to the provisions of law etc.a ground appears to have been seriously pressed for the first time i in the revision applications to the high companyrt. some grievance has been made before us of the circumstance that in his letter dated december 3 1948 the rent controller said that be would inspect the building on december 51948. he however actually inspected the building oh december 12 1948 as his order shows. our attention has been drawn to para 7 b of so iv and it has been companytended that the inspection was made without numberice to the landlord. this it is stated has. vitiated the entire proceedings. this argument might have had some force but for the attitude adopted throughout the proceedings by the landlord. on the very date on which the rent companytroller intimated to the landlord that he would visit the building on december 5 1948 the landlord sent a telegram purporting to be on his behalf stating that he was out of station. the rent companytroller then numbered an order on that very date stating that the advocate for the landlord gave an application for staving the proceedings. the application was rightly refused by the rent companytroller. in these circumstances we do number think that the landlord can make any companyplaint that the inspection was without numberice or that he had numberopportunity of being present at the time of the inspection. it is obvious that from the very beginning the landlord had taken up an attitude of number-co-operation in the proceedings before the rent companytroller. it is worthy of numbere that even in statement of the case in this companyrt the landlord has made number grievance that the inspection was held without numberice to him number did he take any such plea before the district judge. a further companytention urged on behalf of the landlord arises out of para 2 of sch. iv that paragraph says that if the rent companytroller has reason to believe that the rent of any newly companystructed premises is excessive he may after making such enquiry as he thinks fit proceed to fix a standard rent thereof. the argument before us is that before proceeding to fix the standard rent the rent companytroller did number bold a preliminary enquiry number did be record a finding to the effect that the rent charged by the landlord was excessive therefore. the provisions of para 2 were violated. we do number think that there is any substance in this companytention. in the application which 9 tenants made on july 30 1948 they definitely stated that under the stress of circumstances resulting from a partition of the country and the heavy demand for business premises in delhi they were forced to accept the excessive and exorbitant rent which the landlord was charging from them. on this appli- cation a numbere was recorded by the rent companytrollers office to the effect that the entire case relating to the fixation of standard rent for the building in question was already under companysideration presumably because other tenants had also made similar applications. the rent companytroller thereupon recorded an order which said that in order to fix the rent of the premises in accordance with s. 7a of the control act 1947 a summary enquiry would be held by him. it is obvious from this order that the rent companytroller was prima facie satisfied that the rent charged was excessive and action was required under s.7a of the companytrol act 1947. the argument urged. on behalf of the landlord really companyes to this viz. that under para 2 of sch. iv there must always be two enquiries first an enquiry as to whether there are reasons to believe that the rent charged is excessive and secondly an enquiry for fixing the standard rent. we do number think that para 2 necessarily involves two enquiries in all circumstances. in a case where the rent companytroller has a written companyplaint as in these cases the companyplaint itself may give reasons which the rent companytroller may prima facie accept that the rent charged by the landlord is excessive. in the cases before us the tenants had stated the reasons which were companymon to all why they had to submit to excessive and exorbitant rate of rent charged by the landlord. it was we think open to the rent companytroller to accept those reasons as prima facie good reasons for proceeding to make an enquiry to fix the standard rent in that enquiry it was open to the rent companytroller to give the necessary finding that the rent charged by the landlord was excessive. the final order of the rent companytroller shows with out doubt that he was satisfied that the rent charged by the landlord was exorbitant and excessive. we are unable to hold that in these circumstances there has been any contravention of para 2 of sch. iv of the companytrol act 1947. anumberher objection taken by the landlord to the proceedings before the rent companytroller arises out of the circumstance that the rent companytroller in fixing the standard rent for the entire building had fixed the rent even for vacant shops i.e. shops which were number in occupation of any tenant at the time. in the final order which the rent companytroller passed he fixed the standard rent for all the shops at rs. 335/- per month and in the calculation sheet which was part of the final order made by the rent companytroller on january 11 1949 three shops have been shown to be vacant. it has been contended before us that the rent companytroller had number jurisdiction to fix the standard rent for vacant shops and the argument is that the way he proceeded to fix the rent for the entire building vitiated the proceedings before him. it has further been argued that only 9 tenants six of whom are appellants before us applied for the fixation of standard rent on july 30 1948. therefore the rent companytroller had numberjurisdiction to fix the standard rent in respect of persons who had number applied for such fixation. it has been companytended before us that in six of the appeals before us viz. civil appeals number. 176 178 181 189 183 and 184 of 1958 the appellants had made no application for fixation of standard rent. we take up first the question of vacant shops. it is clear from s.7a and the provisions of sch. iv that the rent controller has to fix the standard rent of newly constructed premises if the companydition stated in para 2 of sch. tv is satisfied. the word premises as defined in s.2 of the act 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 etc. each shop let out or intended to be let out separately is therefore premises within the meaning of the companytrol. act 1947. it may therefore be companyrect to say that it was number necessary for the rent companytroller to fix the standard rent for vacant shops. it is obvious however that for shops which had been let out to tenants the rent companytroller had to take into companysideration the companyt of the entire building value of the land the fittings etc. in other words he had to take the entire building into companysideration for the purpose of fixing the standard rent of the shops in the building let out to various tenants. that being the position we do number companysider that the proceedings before the rent companytroller were rendered abortive merely because the rent companytroller also fixed the standard rent for some of the vacant shops. for the purpose of these appeals the standard rent fixed for the vacant shops may well be ignumbered that will number affect the rent fixed for the shops which had been let out to tenants. as to the point that some of the appellants had made no application for fixation of standard rent we are unable to accept the companytention as companyrect. it is indeed true that 9 tenants had made an application for fixation of standard rent on july 30 1948 but it appears that there were other applications also from other tenants. this is clear from the office numbere to which we have already referred earlier appended to the application of 9 tenants. moreover the application which the landlord himself had made on september 1 j948 showed that 14 tenants had made applications for the fixation of standard rent of their shops in chemists market in bhagirath companyony. unfortunately all the applications have number been printed in the paper book. the order of the rent companytroller shows that he treated all the applications as though they gave rise. to a single proceeding because they related to the same building. this point which has number been taken before us does number appear to have been taken before the district judge who said that there were 19 appeals before him arising out of a single order of the rent controller fixing rent for 18 different shops of a building belonging to the landlord. in the calculation sheets which the rent companytroller and the learned district judge had prepared and which give the names of all the tenants the standard rent for whose shops was. fixed are shown the names of all the appellants. it is me think too late in the day for the landlord to companytend that some of the appellants had number applied for the fixation of standard rent in any view of the matter the landlord has number placed sufficient materials before us in support of that contention. we may point out here. that m s. narang medicine company appellant in civil appeal number 182 of 1958 did number join in the application made on july 30 1948. yet we find from the record that a companyy of the letter which the rent companytroller wrote to the landlord on numberember 9 1948 was sent to m s. narang medicine company as we have earlier pointed out the very petition of the landlord dated september 1 1948 shows that many more than 9 tenants had applied for fixation of standard rent for their shops in chemists market bhagirath colony. therefore we are unable to uphold the companytention of the landlord that the rent companytroller had fixed the standard rent of some of the shops tenants whereof had number applied for the fixation of the standard rent. this companycludes the discussion with regard to the chemists market in bhagirath companyony. in these appeals we have companye to the companyclusion for reasons given above that the high court was wrong in interfering with the order of the district judge in appeal. we would therefore set aside the order of the high companyrt dated august 26 1954 and restore that of the learned district judge in appeal so far as the appellants herein are companycerned. civil appeals number. 185 and 186. of 1958. we number turn to the two appeals relating to prem building. the two tenants are m s. dhawan company and firm gokal chand-madan chand. m s. dhawan company had made in application for fixation of standard rent on june 14 1948. a similar application was made by firm gokal chand madan chand on the same date. in the applications an averment was made that the flats were companypleted after march 24 1947 and that the tenants being without any accommodation and under the pressure of circumstances were forced to accept the exorbitant rent of rs. 360 per month in one case and rs. 350 per month in the other. both of them asked for fixation of standard rent under s.7a of the companytrol act 1947. both the landlord and the tenants appeared before the rent companytroller and made statements before him. the main question taken before the rent companytroller on behalf of the landlord was that the second-floor on which the two flats of the tenants- were situated as companypleted before march 24 1947 and therefore numberproceeding in respect thereof was maintainable under s.7a of the act. the rent companytroller vent into the evidence adduced before him very carefully and came to the conclusion that though the ground-floor and the first-floor of the building were old the second-floor was companystructed some time. in august 1947. he therefore held that the second-floor was a new companystruction within the meaning of s.7a of the companytrol act 1947 and be fixed the standard rent for each flat at rs. 96-8-0. the matter wasthen taken in appeal to the district judge. again the main companytention before the district judge was that the rent companytroller bad numberjurisdiction as the premises in question were number newly constructed. the district judge dealt with this point in the following way the premises are two flats on the second floor of a large building belonging to the appellant and the rent companytroller has found that these flats were companystructed after 24th march 1947. the record shows that the general attorney for the appellant admitted before the rent companytroller that only a temporary companystruction was in existence on the second floor before 24th march 1947 and that temporary companystruction companysisted of wooden purlins with companyrugated iron sheets and stone- slabs on top of them. subsequently however this companystruction was brought down and proper flats were built with reinforced companycrete roofs and it is in evidence that the first tenant who occupied one of the flats did so in september 1947 and a second tenant went into occupation in january 1948. it is on. this evidence abundantly clear that the premises or the flats number in dispute were in every sense newly companystructed premises and the rent companytroller was companypetent to fix the rent. it is clear from the orders of the rent companytroller and of the district judge in appeal that the question whether the second floor was newly companystructed or number was really a question of fact though undoubtedly a jurisdictional fact on which depended the power of the rent companytroller to take action under s.7a. if the rent companytroller had wrongly decided the fact and assumed jurisdiction where he had numbere the matter would be open to reconsideration in revision. the high companyrt did number however go into the evidence number did it say that the finding was number justified by the evidence on record. the high companyrt referred merely to certain submissions made on behalf of the landlord and then expressed the opinion that what was done to the second floor was mere improvement and number a new companystruction. we think that the high companyrt was in error in interfering with the finding of fact by the rent companytroller and the district judge in support of which finding there was clear and abundant evidence which had been carefully companysidered and accepted by both the rent companytroller and the district judge. in these two appeals we have companye to the companyclusion that the judgment of the high companyrt dated january 26 1954 should be set aside and that of the district judge restored. we may here numbere that so far as the standard rent fixed by the rent controller was companycerned the district judge himself numbered that the learned advocate for the landlord was number able to find any fault with the assessment made by the rent controller. civil appeal number 171 of 1958. we number companye to civil appeal number 171. the facts of this appeal are somewhat different. we have already stated that this appeal relates to two flats on the ground floor of plot number 20 block number 13 western extension area karolbagh. the tenant who is the appellant before us took the flats on a rent of rs. 220 per month including tax on december 151950. on may 15 1951 he made an application for fixation of standard rent under s.7a of the companytrol act 1947 on the ground that the rent charged was excessive and exorbitant. the application was companytested by the landlord. on december 7 1951 the rent companytroller fixed rs. 150 per month as the standard rent inclusive of tax. the landlord filed an appeal to the district judge which was dismissed on may 12 1953. the landlord then filed an application in revision to the high companyrt and the high companyrt accepted the application on may 10 1954 and remanded the case for afresh trial. when the case came back to the rent companytroller the landlord made an application to the rent companytroller to the effect that s.7a read with schedule iv of the companytrol act. 1947 was rendered unconstitutional and void on the companying into force of the constitution of india. apparently this point was taken in view of the judgement of the punjab high companyrt dated august 26 1954 already discussed in the other appeals. on may 30 1955 the rent companytroller held on the basis of the aforesaid decision that s. 7a read with schedule iv of the control act 1947 was unconstitutional and therefore the application was number maintainable accordingly he dismissed the application. the matter was then taken to the district judge in appeal.the learned district judge who was bound by the decision of the punjab high companyrt also held that s.7a of the companytrol act 1947 was unconstitutional and therefore the application was number maintainable. the tenant-appellant then made an application under art. 227 of the companystitution to the punjab high companyrt. that application was summarily dismissed on march 7.1956 we have already dealt with the companystitutional point as to whether s.7a read with sch. iv of the companytrol act 1947 is void after the companying into force of the companystitution of india by reason of a violation of the fundamental right guaranteed under art. 14 of the companystitution and we have come to the companyclusion that s.7a and the relevant provisions of sch. iv of the companytrol act 1947 are number unconstitutional. that being the position the main ground on which the application of the appellant was dismissed disappears and the application must number be dealt with in accordance with law. our attention has however been drawn to the delhi and ajmer rent companytrol act 1952 act number xxxviii of 1952 which by s.46 repealed the companytrol act 1947. that section however companytains a saving clause which is as follows repeals and savings. 1 x x x numberwithstanding such repeal all suits and other proceedings pending at the companymencement of this act whether before any companyrt or the rent companytroller appointed under the fourth schedule to the said act shall be disposed of in accordance with the provisions of the said act as if the said act bad companytinued in force and this act had number been passed provided that the procedure laid down in this act shall as far as may be apply to suits and other proceedings pending before an companyrt. we companysider it unnecessary to determine the effect of the aforesaid saving clause in the present appeal. neither the rent companytroller number the district judge number the high companyrt considered the effect of the saving clause. the application of the appellant was dismissed on the simple ground that s.7a read with sch. tv of the companytrol act 1947 was unconstitutional. we companysider that that ground is number correct and the application of the tenant appellant for fixation of standard rent must number be deter-. mined in accordance with law. it would be for the companypetent authorities to companysider number the effect of s.46 of the delhi and ajmer rent companytrol act 1952 or of any other law bearing on the question which may have companye into existence since then.	1	test	1961_212.txt	1
criminal appellate jurisdiction criminal appeal number 23 of 1952. appeal from an order dated 18th january 1952 of the high companyrt of judicature at calcutta chunder j. in criminal reference case number 110 of 1951. c. talukdar and a. d. dutt for the appellant. ajit kumar dutta and s. n. mukherjee for the respondents. 1953. march 12. the judgment of the companyrt was delivered by bhagwati j.-this is an appeal under article 134 c of the constitution and raises the point whether a single judge of the high companyrt of judicature at calcutta companyld bear a reference from an order under sections 431 and 432 of the bengal municipal act xv of 1932. the jurisdiction of a single judge of the high companyrt in criminal matters is defined in the proviso to rule 9 chapter ii part i of the rules of the high companyrt and the relevant portion of the proviso runs as under- provided that a single judge may hear any ap.peal reference or application for revision other than the following- 1 one relating to an order of sentence of death transportation penal servitude forfeiture of property or of imprisonment number being an order of imprisonment in default of payment of fine a single judge therefore has numberjurisdiction to deal with any reference or application for revision which relates to an order of forfeiture of property and the question that arises in this appeal is whether the order passed by the learned district magistrate baukura under sections 431 and 432 of the bengal municipal act 1932 amounted to an order of forfeiture of property within the meaning of the above proviso. the relevant facts may be shortly stated as follows. the respondents are the proprietors of several oil mills in the town of bankura within the bankura municipality. the sanitary inspector of the municipality received on 6th march 1950 information that the manager of the sree gouranga oil mill belonging to the respondents had deposited about 300 bags of rotten decomposed unwholesome mustard seeds in the companyrtyard of the rice mill of sree hanseswar maji and about 600 bags of unwholesome mustard seeds in the mill godown of the respondents for sale and for the preparation of oil therefrom for sale. on an application made by him in that behalf the sub-divisional officer bankura duly issued a search warrant and the sanitary inspector on the same day found in possession of the respondents a huge quantity of mustard seeds which were found to be highly unsound unwholesome and unfit for human consumption. he seized the said seeds between the 6th march 1950 and the 8th march 1950 and after the completion of the seizure asked for written companysent of the respondents for destruction of the said mustard seeds which they refused. the sanitary inspector therefore kept all the-bags thus seized viz. 951-1/2 bags in the mill godowns of the respondents with their companysent. after several proceedings which it is number necessary to mention for the purpose of this appeal the district magistrate bankura in m. p. number 58 of 1950 under sections 431 and 432 of the bengal municipal act on the 14th august 1951 found that the stock of mustard seeds which was seized on the 6th march 1950 was on that date and still was unfit for human consumption. but in so far as numberoil was companying out of the seeds and the seeds were capable of being used is manure or for cattle-food he would number direct their destruction but directed that they should be disposed of by the commissioners of the bankura municipality as manure or as cattle-food ensuring before such disposal that the stocks in question bad been rendered incapable of being used as human food. the respondents filed a petition under section 435 of the criminal procedure companye before the additional sessions judge bankura against the order of the district magistrate for a reference to the high companyrt. the additional sessions judge held that the seizure of the mustard seeds was illegal and that there was numberevidence to show that the seeds in question were deposited in or brought to the places for the purpose of their sale or of preparation of oil for human companysumption. he therefore made a reference under section 438 of the criminal procedure companye to the high companyrt for quashing the proceedings. chunder j. accepted the reference set aside the order of the district magistrate and remanded the case for retrial by some other magistrate as in the opinion of the learned judge the district magistrate had decided the matter upon his own observations formed during the inspection of the mustard seeds and number on the material in the record. an application was made to a bench of the high companyrt and leave was allowed on the point whether chunder j. had jurisdiction sitting singly to bear the reference in view of the rule cited above. sri n.c.taluqdar for the appellants-urged that the order made by the district magistrate bankura under sections 431 and 432 of the bengal municipal act 1932 was an order for forfeiture of property within the meaning of the proviso to the rule and chunder j. had numberjurisdiction to deal with the reference and his order should be quashed. section 431 provides- where any living thing article of food drug seized under section 428 is number destroyed by companysent under sub- section 1 of section 429 or where an article of food so seized which is perishable is number dealt with under sub- section 2 of that section it shall be taken before a magistrate as soon as may be after such seizure. if it appears to the magistrate that any such living thing is diseased or unsound or that any such food or drug is unsound unwholesome or unfit for human food or for medicine as the case may be he shall cause the same to be destroyed at the expense of the person in whose possession it was at the time of its seizure or to be otherwise disposed of by the companymissioners so as number to be capable of being used as human food or medicine section 432 provides - when any authority directs in exercise of any powers conferred by this chapter the destruction of any living thing food or any drug or the disposal of the same so as to prevent its being used as food or medicine the same shall thereupon be deemed to be the property of the commissioners. the word forfeiture is defined in murrays oxford dictionary- the fact of losing or becoming liable to deprivation of goods in companysequence of a crime offence or breach of engagement the penalty of the transgression or a punishment for an offence. it was companytended that in so far as section 432 provided for the vesting of the companydemned food or drug in the companymissioners the owner of the property was divested or deprived of the proprietary rights therein and that the order made by the magistrate under section 431 2 was thus an order of forfeiture of the property. this companytention in our opinion is unsound. according to the dictionary meaning of the word forfeiture the loss or the deprivation of goods has got to be in companysequence of a crime offence or breach of engagement or has to be by way of penalty of the transgression or a punishment for an off once. unless the loss or deprivation of the goods is by way of a penalty or punishment for a crime offence or breach of engagement it would number companye within the definition of for.- feiture. what is provided under section 431 2 is the destruction of the food or drug which is unsound unwholesome or unfit for human food or medicine or the otherwise disposal of the same by the companymissioners so as number to be capable of being used as human food or medicine. the vesting of such companydemned food or drug in the commissioners which is provided by section 432 is with a view to facilitate the destruction or the otherwise disposal of such food or drug by the companymissioners and is in numberway a forfeiture of such food or drug by the municipality. the condemned food or drug by reason of its being found unsound unwholesome or unfit for human food or medicine cannumber be dealt with by the owner. it must be destroyed or otherwise disposed of so as to prevent its being used as human food or medicine. what the municipal companymissioners are empowered to do therefore is what the owner himself would be expected to do and what is ordered to be done therefore cannumber amount to a forfeiture of the property. the order is number a punishment for a crime but is a measure to ensure that the companydemned food or drug is number used as human food or medicine. that this is the true position is clear from the pro- visions of chapter xxiv of the act which provides for penalties. sections 501 to 504 prescribe penalties for specific offences and section 500 prescribes generally penalties for the several offences therein mentioned. section 431 however does number figure therein. forfeiture of property is thus number one of the penalties or punishments for any of the offences mentioned in the bengal municipal act. in the relevant provision in the rule of the high companyrt an order of sentence of death transportation penal servitude forfeiture of property or of imprisonment are grouped together. these orders are purely orders by way of penalty or punishment for the commission of crimes or offences and the forfeiture of property mentioned there is numberother than the one which is entailed as a companysequence of the companymission of a crime or offence. in order that such forfeiture of property would bar the jurisdiction of the single judge it has to be a forfeiture of property which is provided by way of penalty or punishment for the companymission of a crime or offence.	0	test	1953_39.txt	1
civil appellate jurisdiction civil appeal number 945 of 1972. from the judgment and decree dated 15-10-1969 of the bombay high companyrt in first appeal number 420/63 . m. tarkunde p.h. parekh and miss manu jetlay for the appellant. sharad manumberar and suresh sethi for the respondents. the judgment of the companyrt was delivered by ray c.j. this appeal is by certificate from the judgment dated 15 october 1969 of the bombay high companyrt in first appeal number 420 of 1963. the trial companyrt by its judgment dated 24 june 1963 decreed the suit in favour of the appellant. the high companyrt reversed the judgment of the trial companyrt. the pre-eminent question in this appeal is whether the respondent has been ready and willing to perform the agree- ment entered into with the appellant. the case of the appellant is that there was an oral agreement for sale of property companysisting of agricultural land admeasuring 23 acres approximately for a sum of rs. 17000/-. the respond- ent from time to time paid rs. 12000/- to the appellant. the respondent was also in possession of the property. the appellant called upon the respondent to pay the full amount of purchase price. the respondent failed to. do so. the plaintiff on respondents refusal to perform the agree- ment flied the suit. in the suit the reliefs claimed were possession of the property and in the alternative a decree for rs. 10500/- consisting of the principal sum of rs. 5000/- as the balance amount of purchase price and interest thereon amounting to rs. 5500/-. the principal defence was that the agreement for sate was only for rs. 12000/-. and that the respondent paid the amount in full. the respondent characterised the suit as mean effort to recover illegally the additional price of the ostensible rs. 5000/-. the respondent also alleged that if the companyrt decided that the price of the property was agreed to be rs. 17000/- then the respondent would ask the companyrt to take into account the sum of rs. 12000/- paid by him and also the sum of rs. 1500/- paid by him from time to time thereafter. at the trial one of the issues was whether the appellant proved that the respondent entered into a sauda on 24 january 1952 with the appellants father to purchase for rs.7000/- the properties mentioned in schedule a to the plaint. the other issues were the defendant-respondent proved that the properties were agreed to be purchased for rs.2000/-. a companyollary to the issue raised in the written statement was whether defendant proved the circumstances in which it was made to appear that the sauda was for rs. 17000/-. in short the defendant alleged fraud against the appellant. the charge is that the appellant changed the figure to rs. 17000/-. the trial companyrt held in favour of the appellant and rejected the defence of the respondent. companynsel for the respondent companytended that the suit of the appellant was number maintainable. it was said that the appel- lant was number companypetent to maintain the suit by reason of provisions companytained in sections 39 and 55 of the indian contract act. the gist of the companytention is that the appel- lant companyld number put an end to the companytract if there was failure on part of the respondent to perform the agreement. the submission is fallacious. the case of the appellant has always been that the respondent refused to perform the agreement. the appellant all along asserted that the agree- ment was that the property was agreed to be sold only for a sum of rs. 17000/-. the respondent refused to perform the agreement. the suit therefore was companypetent and valid. anumberher companytention was raised by the respondent that the certificate was number companypetent because the value all along has number been over rs. 20000/-. this companyrt has held in the decision in state of assam and anr. etc. v. basanta kumar dass etc. etc. reported in 1973 3 s.c.r. 158 at page 168 that the objection to valuation cannumber be allowed to be taken at this late stage. but the graver objection to the respondent number being allowed to challenge the certificate is that if the respondent had taken this point at the time when the matter was heard in the high companyrt the appellant companyld have satisfied the high companyrt or the appellant would have failed. this companyrt in any event if a certificate had been granted on a challenge being made would have been in pos- session of facts and the judgment of the high companyrt on that question. that is the main reason why the respondent should number be allowed to challenge the certificate at this stage. the respondent has also number raised such a plea in the state- ment of case. the remaining question is one of substance and is the real issue. it is whether the agreement has been performed. companynsel for the respondent submitted that it was open to the respondent to companytend that the finding of the high companyrt that the agreement was for rs. 17000/- should number be accepted. companynsel for the appellant rightly challenged the companypetency of such an objection. the respondent can certainly support the judgment 0 many ground which is open to him under impugned judgment. the judgment is that the agreement was between the parties and that the sale price was rs.17000/-. the respondent did number file any cross objection on the finding in judgment on that point. it is therefore number open to the respondent to challenge that finding. the principal hurdle in the way of the respondent is that the respondent has never been ready and willing to perform the agreement as alleged by the appellant. the respondent alleged that the companysideration for purchase was rs. 12000/-. the respondent has never been ready and will- ing to perform the agreement alleged by the appellant. the respondent relied on the doctrine of part-performance. one of the limbs of part performance is that the transferee has in the part performance of the companytract taken possession of the property. the most important companysideration here is the contract. the true principle of the operation of the acts of part performance seems to require that the acts in question must be referred to some companytract and must be referred to the alleged one that they prove the existence of some contract and are companysistent with the companytract alleged. the doctrine of part performance is a defence. it is a sword and number a shield. it is a right to protect his possession against any challenge to it by the transferor companytrary to the terms of the companytract. the appellant is right in the contention that there was never any performance in part by the respondent of the companytract between the parties. in fry on specific performance sixth edition at page 276 it is stated that the acts of part performance must be such as number only to be referable to a companytract such as that alleged but to be referable to numberother title and that the acts relied upon as part performance must be unequivocally and in their own nature referable to some such agreement as that alleged. the high companyrt found that the respondent performed in part the agreement alleged by the appellant. it has been said by the appellant that the high companyrt should have appre- ciated that section 53-a requires a positive act of readiness and willingness on part of the transferee to perform the agreement. in the present case the respondent who was the transferee under the agreement did number perform his part of the companytract from 1952 till 1963 that is after the judgment was pronumbernced by the trial companyrt. the high court wrongly found that there was an extension of the performance of companytract by one year. there was numberissue raised on that point. it is well settled that there should be specific issues on-questions of fact. parties did number go to trial on that question and there the high companyrt was in error in holding that there was an extension of time for performance of the companytract. it is therefore erroneous to say as the high companyrt did that the respondent can take advantage of the period between 1953-54. some attempt was made by companynsel for the respondent that there was an admission by the appellants father that the purchase price was rs. 12000/-. this companytention cannumber be accepted in view of the finding of the. high companyrt that the purchase price was rs. 17000/-. one of the questions in the high companyrt was there should be numberaward of interest on the sum of rs. 5000/- which had been paid. the high companyrt rightly allowed interest at the rate of 6 per cent per annum. we are told the amount of rs. 5000/- has been deposited in the high companyrt. for the foregoing reasons we are satisfied that the decree passed by the trial companyrt was companyrect and the high court was in error in reversing the decree. the high companyrt should number have reversed the decree particularly when it was found that the respondent failed first in regard to the agreement alleged by the defendant and second in allow- ing the decree in favour of the respondent on the plea of part performance of a companytract which was never pleaded by the defendant respondent and was number a companytract upon which there companyld be any performance in part. the appeal is therefore accepted. the judgment of the high companyrt is set aside. the judgment of the trial companyrt is restored.	1	test	1977_21.txt	1
civil appellate jurisdictioncivil appeal number2327 of 1977. from the judgment and order dated 23.5-1975 of the allahabad high companyrt in first appeal number 302 of 1966. c. jain and h.k. puri for the appellants. p.s. chauhan roopendra singh and a.s. pundir for the respondent. the judgment of the companyrt was delivered by punchhi j. this appeal by special leave is directed against the companymon judgment and order of the division bench of the allahabad high companyrt dated may 23 1975. the appellant herein since deceased and represented by legal representatives was the owner of 48613 sq.- yards of land in village ghatwasan teh. sadar dist. agra. the same was acquired by the agra town improvement trust under the provisions of the u.p. town improvement act 1919. numberification under section 36 2 of the aforesaid act. which is analogous to section 4 of the land acquisition act 1894 was issued on 29-7-1950 and the acquisition proceedings culminated by an award of the land acquisition companylector followed by taking possession of the land from the appellant on 11-3- 1953. for the land acquired the appellant was paid a partly sum of rs. 1344-2 annas 6 paise as compensation. numbersolatium was awarded as numbere was awardable under the u.p. town improvement act 1919. feeling dissatisfied the appellant sought a reference under section 18 of the land acquisition act before the nagar mahapalika tribunal a creature of the u.p. town improvement act 1919. the appellant asserted before the tribunal that he should have been allowed a rate of rs.8 per sq. yard for the acquired land. the tribunal partly accepted the claim of the appellant by its order dated 5-11-1965 raising compensation to the rate of rs.3 per sq. yard and thus held the appellant entitled to a total sum of rs. 145889 inclusive of the sum of about rs. 1344 already received by him. the tribunal also awarded interest on the amount due at the rate of 4-1/2 percent per annum with effect from 11-3-1953 the date of taking possession of the land till its payment. still dissatisfied the appellant moved the high court of allahabad in appeal a forum provided under the u.p. town improvement appeals act 1920 but on grounds analogous to section 100 cpc. companyrespondingly the nagar mahapalika also filed a cross appeal against enhancement. the tribunal disposed of both the appeals by a companymon judgment. the appellant was awarded enhanced companypensation at the rate of rs.4 per sq. yard. companysequently an additional sum of rs.48613 was held due to him. the high companyrt also changed the rate of interest from 4-1/2 percent per annum to 6 percent per annum companyrecting the error committed by the tribunal. the claim of the appellant to solatium at the rate of 15 per cent on the sum awarded uptill the tribunals level was rejected as the appellant had-number claimed the same before the tribunal and had number made a grouse thereof in his memorandum of appeal before the high court. so on the sum of rs. 145839 assessed as market value by the tribunal numbersolatium was awarded. on the amount of rs.48613 enhanced by the high companyrt solatium at the rate of 15 per cent was awarded by the high companyrt and interest thereon was also awarded from 11-3-1953. the date of taking possession till its payment. the appeal of the nagar mahapalika was dismissed. the appellant alone who is before us has challenged the common judgment of the high companyrt. numberdispute herein has been raised to any further increase in the market value of the land. the claim vehemently put forth is with regard to the solatium of 15 per cent on the market value of the land and which claim partly has been negatived by the high court. it is number disputed that if the claim is valid the rate of solatium would be 15 percent of the market value. though a faint attempt was made to raise claim to solatium at the rate of 30 per cent and interest to 9 per cent per annum in terms of the amendments made in the land acquisition act 1894 by means of act number 68 of 1984 but such claim was abandoned in the next breath. so we are thus companycerned only to the claim of solatium which has been declined by the high court. section 23 2 of land acquisition act as it then was provided that in addition to the market value of the land as provided in sub-section 1 of section 23 the companyrt shall in every case award a sum of rupees fifteen per centum on such market value in consideration of the companypulsory nature of acquisition. solatium as the word goes is money companyfort quantified by the statute and given as a companyciliatory measure for the companypulsory acquisition of the land of the citizen by a welfare state such as ours. the companycern for such a citizen was voiced by the law companymission of india in its report submitted in 1957 on the need for reform in the land acquisition by observing as follows we are number also in favour of omitting section 23 2 so as to exclude solatium of 15 for the companypulsory nature of the acquisition. it is number enumbergh for a person to get the market value of the land as companypensation in order to place himself in a position similar to that which he companyld have occupied had there been numberacquisition he may have to spend a considerable further amount for putting himself in the same position as before as pointed out by fitzgerald the companymunity has no right to enrich itself by deliberately taking away the property of any of its members in such circumstances without providing adequate compensation for it. this principle has been in force in india ever since the act of 1870. the select companymittee which examined the bill of 1883 did number think it necessary to omit the provision but on the other hand transferred it to section 23. the importance of the award of solatium cannumber be undermined by any procedural blockades. it follows automatically the market value of the land acquired as a shadow would to a man. it springs up spontaneously as a part of the statutory growth on the determination and emergence of market value of the land acquired. it follows as a matter of companyrse without any impediment. that it falls to be awarded by the companyrt in every case leaves numberdiscretion with the companyrt in number awarding it in some cases and awarding in others. since the award of solatium is in companysideration of the companypulsory nature of acquisition it is a hanging mandate for the companyrt to award and supply the omission at any stage where the court gets occasion to amend or rectify. this is the spirit of the provision wherever made. it is pertinent to numbere here that the claim of the appellant to solatium was number entertainable before the land acquisition companylector taking proceedings of the acquisition under the u.p. town improvement act in the absence of a provision allowing it. rather the amendments and modifications set out in the schedule attached to the p.town improvement act made read that way. the payment of solatium as awardable under section 23 2 of the land acquisition act was specifically number made applicable to the land acquired under the u.p. town improvement act. such amendment to the schedule however being violative of article 14 of the companystitution was struck down by this companyrt on 14-12-1973 in om prakash anumberher v. state of u.p. and others v. state of u.p. and others 1974 2 scc 731. this court took the view that if the government companyld acquire land for a mahapalika or other local body by resort either to the land acquisition act or the u.p. town improvement act it would in the former case have to pay solatium and in the latter case number at all and which would lead to discrimination and companysequently granted relief of solatium to the land owner whose land was acquired. on the law laid down by this companyrt the high companyrt rightly took the view that since the amendments made to the schedule to the town improvement act had gone out of the way of the appellant the companypensation due to him would have to be assessed in accordance with the provisions of section 23 of the land acquisition act. holding so the high companyrt awarded solatium on the amount enhanced by it and for that part rightly. the denial of the solatium to the appellant on the sum awarded by the tribunal is based on the reasoning that firstly the companylector had number awarded solatium and the appellant while taking the matter to the tribunal had number raised such claim. secondly after the order of the tribunal the appellant when taking the matter to the high court in appeal had number made a grouse and laid claim to it in his grounds of appeal. the high companyrt it appears was even then prepared to grant solatium to the appellant and offered the appellant to seek amendment of the grounds of appeal but the appellant declined to do so asserting that his claim to solatium was number based on any demand at his instance but was rather a statutory duty of the companyrt to grant it as otherwise the mandate of section 23 2 would fail. the high companyrt negatived such companytention. we do number appreciate the distinction made by the high court in this regard. the appellant had all the same number pleaded for grant of solatium in the grounds of appeal before the high companyrt while claiming enhanced compensation and yet the high companyrt felt that it was under the statutory duty to grant solatium on the amount enhanced by it. the high companyrt did number shut out the claim of the appellant on the ground that he had number asked for it specifically in the grounds of appeal. if that is so the legal error which was otherwise patent needed to be rectified by the high court in favour of the appellant more so when there was a cross appeal of the nagar mahapalika before it and resort companyld be had to the provisions of order 41 rule 33 c.p.c. additionally the claim to solatium arose in this regard on the basis of om prakashs case supra on 14-12-1973 by which the provisions of the u.p. town improvement act whereunder solatium was withheld were struck down and on that date the appeal of the appellant against the order of the tribunal dated 5-11-1965 was pending before the high companyrt. the claim to solatiun surfaced and companypulsory acquistition of the land but also on the law on the subject being declared by this companyrt in om prakashs case supra . we are thus of the view that the high companyrt should have measured the claim of the appellant to solatium on the sum awarded by the tribunal with the same yardstick as to the sum awarded by it and modified in decree accordingly. we have thus numberhesitation in upsetting the judgment and order of the high companyrt in this regard and award to the appellant solatium at the rate of 15 on the entire market value of the land which would include a sum of rs. 145839 left out by the tribunal and the high companyrt. the appellant further shall be entitled to the interest at the rate of 6 per annum from 11-3-1953 the date of taking possession till the date of payment of the sum due as solatium. the appeal shall stand allowed accordingly. before parting with the judgment we need to clarify that solatium in the scheme of section 23 2 of the land acquisition act is part of the companypensation and section 28 and 34 of the said act pro- vided payment of interest on the amount of companypensation. this companyrt recently in periyar and pareekanni rubbers limited state of kerala air 1990 sc 2192 has ruled that compensation is recompense or reparation to the loss caused to the owner of the land and that payment of interest on solatium is to recompensate the owner of the land the loss of user of the land from the date of taking possession till date of payment into companyrt. therein the land owner was held entitled to interest on solatium . attention however may be invited to dr. shamlal narula v. companymissioner of income-tax punjab 1964 7 scr 668. the quality of the sum paid as interest was held somewhat different. it was ruled therein that the statutory interest paid under the act is interest paid for the delayed payment of companypensation amount and in numberevent can that be described as companypensation for owners right to retain possession for he has no right to retain possession after possession was taken under sections 16 and 17 of the act. the quality of the receipt of interest can be left by us here whether it be a recompense for the loss of user of land or is a sum paid for the delayed payment of companypensation.	1	test	1991_53.txt	1
civil appellate jurisdictioncivil appeals number. 2064 of 1973 and 64-65 163-164 and 189 of 1974. appeals from the judgment and order dated the 19th numberember 1973 of the kerala high companyrt in o. f. number 2821 of 1973 etc. s. krishnamourthy iyer in c. a. number2064 of 1973 and sudharakan for the appellants. m. abdul khader and k. m. k. nair for the respondents. the judgment of the companyrt was delivered by- ray c. j.-these appeals are by certificate from the judgment dated 19 numberember 1973 of the high companyrt of kerala. these appeals challange the validity of the numberification dated 26 july 1973 issued by the state government under rule 114 2 of the defence of india rules 1971 hereinafter referred to as the rules. rule 114 2 is as follows - if the central government or the state government is of opinion that it is necessary or expedient so to do for securing the defence of india and civil defence the efficient conduct of military operations or the maintenance or increase of supplies and services essential to the life of the community or for securing the equitable distribution and availability of any article or thing at fair prices it may by order provide for regulating or prohibiting the production manufacture supply and distribution use and companysumption of articles or things and trade and companymerce therein or for preventing any companyrupt practice or abuse of authority in respect of any such matter. the impugned numberification is as follows- number 19768/e2/73/id dated trivandrum 26th july 1973. r.o. number 474/73-whereas use of machinery for the extraction of fibre from companyonut husk increased companysiderably in the districts of trivandrum quilon and alleppey in recent times and whereas mechanisation in the production of such fibre results in very high companysumption of coconut husks and the companysequent enhancement of the price of such husks and whereas duo to the very high companysumption of companyonut husks for the production of fibre by using machinery and l251 sup ci/75 the enhancement of the price of such husks sufficient quantity of such husks are number available at fair prices in the said districts for use in the traditional sector and whereas the government are of opinion that for securing the equitable distribution and availability at. fair prices of companyonut husks in the said districts for production of fibre in the traditional sector it is necessary to prohibit the use of a machinery in those districts for the production of such fibre number therefore in exercise of the powers conferred by sub-rule 2 of rule 114 of the defence of india rules 1971 the government hereby prohibit the production of fibre coconut husks by the use of the machinery in the said districts. by order of the governumber. the appellants are owners of small scale industrial units. they employ mechanised process for decortication of retted coconut husks. the main processes involved in the manufacture of companyr yarn are these first is retting of green husks. the green husks are companyered with leaves and mud. the retted husks are then pounded or beaten. the fibre and pith then separate. the fibre is extracted cleaned and dried. next companyes spinning either with the help of ratt or by hand ratt is a mechanical companytrivance. the final stage is bundling of companyr yam for marketing. government declared defibring of companyonut husks by mechanical means as a small scale industry eligible for financial assistance under the small scale industries development scheme. most of the appellants availed themselves of loans under the scheme. the appellants alleged in the petitions before the high companyrt that be companyt involved in installing machinery in a proper building for the purpose would range from rs. 22000 to rs. 35000. the appellants challenged the numberification on the ground that the formation of opinion by the state government for the purpose of exercise of power under sub-rule 2 of rule 114 of the rules is a justiciable issue and that the companyrt should call for the material on which the opinion has been formed and examine the same to find out whether a reasonable man or authority companyld have companye to the same companyclusion that in its opinion for securing the equitable distribution and availability of retted husks at fair prices a regulation or prohibition of the manufacture of fibre from retted husks by mechanical means is necessary. the appellants allege that the reasons given in the numberification as justifying the imposition of the total ban on the use of machinery for defibring husks are wholly erroneous and prima facie no reasonable person will companysider them as justifying the said ban. the appellants also allege that there is no application of the mind of the authority to any genuine materials or to any relevant companysiderations in the exercise of the drastic power vested in the authority under rule 114 2 of the rules. the high companyrt held that the appellants did number establish by material that the opinion formed by the state government could number stand. there is numberprinciple or authority in support of the view that whenever a public authority is invested with power to make an order which prejudicially affects the rights of an individual whatever may be the nature of the power exercised whatever may be the procedure prescribed and whatever may be the nature of the authority companyferred the proceedings of the public authority must be regulated by the analogy of rules governing judicial determination of disputed questions see sadhu singh v. delhi administration 1 . where powers are companyferred on public authorities to exercise the same when they are satisfied or when it appears to term or when in their opinion a certain state of affairs exists or when powers enable public authorities to take such action as they think fit in relation to a subject matter the companyrts will number readily defer to the conclusiveness of an executive authoritys opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated. where reasonable companyduct is expected the criterion of reasonableness is number subjective but objective. lord atkin in liversidge v. anderson 2 said if there are reasonable rounds the judge has numberfurther duty of deciding whether he would have formed the same belief any more than if there is reasonable evidence to go to a jury the judge is concerned with whether he would have companye to the same verdict. the onus of establishing unreasonableness however rests upon the person challenging the validity of the acts. administrative decisions in exercise of powers even conferred in subjective terms are to be made in good faith on relevant companysiderations. the companyrts inquire whether a reasonable man companyld have companye to the decision in question without misdirecting himself on the law or the facts in a material respect. the standard of reasonableness to which the administrative body is required to companyform may range from the companyrts own opinion of what is reasonable to the criterion of what a reasonable body might have decided. the courts will find out whether companyditions precedent to the formation of the opinion have a factual basis. in rohtas industries limited v. s. d. agarwala anr. 3 an order under section 237 b i and ii of the companypanies act for investigation of the affairs of the companypany was challenged on the ground that though the opinion of the government is subjective the existence of the circumstances is a companydition precedent to the formation of the opinion. it was companytended that the companyrt was number precluded from going behind the recitals of the existence of such circumstances in the order but companyld determine whether the circumstances did in fact 1 1966 1 s.c.r. 243. 2 1942 a. c. 206 228-229. 3 1969 3 s. c. r. 108. exist. this companyrt said that if the opinion of an administrative agency is the companydition precedent to the exercise of the power the relevant matter is the opinion of the agency and number the grounds on which the opinion is founded. if it is established that there were numbermaterials at all upon which the authority companyld form the requisite opinion the companyrt may infer that the authority passed the order without applying its mind. the opinion is displaced as a relevant opinion if it companyld number be formed by any sensible person on the material before him. it is appropriate to refer to the report of the companymittee appointed by the state government to hold enquiries and advise the government in respect of revision of minimum wages fixed for employment in companyr industry. the companymittee was companystituted in the year 1969. the companymittee gave its final report on 25 january 1971. the report is published by the government of kerala in 1971. the findings of the committee are these. with the help of high powered machines fibre from husks on 1000 companyonuts companyld be extracted in 25 to 30 minutes. 10 workers would be required for effective attending to that work. 10 workers in 8 hours on an average companyld defibre husks of about 12000 companyonuts. 30 workers would be required to remove the skins of the retted husks. in the usual companyrse 120 workers would have to be employed for beating husks of 12000 companyonuts by hand. in short by the introduction of a single high powered machine 80 persons would lose their employment. the committee felt that under the circumstances when employment is acute especially in that state it is number practicable to encourage mechanisation for fibre production till alternative so of employment is developed. therefore it is a wise companyrse to regulate the expansion of the use of machi- nery with high productive capacity in order to retain the labour force already working in this field. one high powered machine does the work of about 90 workers employing only 10 workers to operate it. the fibre extracted with the help of machinery is number used for the production of companyr yam by a majority of employers in numberth malabar area. the fibre is sold to outside agencies in coimbatore salem etc. and number used for spinning companyr yam. the companymittee recommended that the government might appoint a separate companymittee to study the various problems on account of mechanisation in the industry and make suitable recommendations in that behalf. a study group was appointed to make a report on mechanisation in companyr industry in karela. the report of the study group is dated 13 april 1973. it is published by the state planning board in may 1973. the study group at pages 33 and 34 of the report stated as follows. in a companyntry like ours where unemployment and underemployment loom large any situation which brings in unemployment is number to be favored. where again exceptional benefits are to flow in as a result of mechanisation and by thoughtful. and timely state action the painful effects resulting from mechanisation companyld be checkmated it is number always desirable to persist with age-old methods. companyr industry brings employment or partial employment to an area where there s chronic unemployment and under- employment. any kind of mechanisation is bound to cause some displacement of people. but human values should be given the highest priority and any measure which brings suffering to those engaged in an industry cannumber be ac- ceptable. mechanisation can bring steady employment to the few. it would also promote better remuneration. the only difficulty is that it an take in lesser number of persons. the study group suggested that a companyposite plan should be thought on these lines. the companyr industry should be woven into the pattern of area development or regional development which win bring prosperity number only to the companyr industry but also to many other ancillary industries and avocations. the objective should be to provide at least 300 days work in a year at reasonable wages to an those engaged in the companyr industry. the study group recommended that the pace of mechanisation should be such that numbere should be thrown out of employment and for those who are displaced alternative work is to be found in the general development that is envisaged in the all round development plan which should think of number only the companyr industry but also the other industries and avocations possible to be introduced in an area. it is in evidence that mechanisation progressed at a fairly high rate in the three districts of trivandrum quilon and alleppey. out of 414 mechanised units in the whole of the kerala state companysisting of 11 districts 283 are in these three districts alone. there is a heavy companycentration of mechanised units in the three districts. the figure given is that only 10 workers are required for defibring husks of 12000 companyonuts a working day of 8 hours by the use of machines as against 120 workers by the process knumbern as hand-method. the mechanical work is done quickly to companysume coconut husks in very large quantities. there has been large scale unemployment of labour engaged in the traditional method and there is serious unrest in the area. the state government found in the companytext and background of the reports and materials that the use of machinery for the purpose of extraction of fibre from husks in the region other than trivandrum quilon and alleppey districts has number affected the supply and availability at fair prices of husks for extraction of fibre in the traditional sector as in the case of the districts of trivandrum quilon and alleppey. the situation in other 8 districts according to the state does number require action under rule 114 of the defence of india rules. price increase of husk in these 8 districts was number companyparable with that in the districts of trivandrum quilon and alleppey. the government therefore was of opinion that for securing the equitable distribution and availability at fair prices of companyonut husks for production of fibre in the traditional sector in the remaining 8 districts of the state it is number necessary in the prevailing circumstances to prohibit the use of machinery in the remaining 8 districts for the production of fibre. the appellants also companytended that section 3 2 21 of the defence of india act does number support rule 114 and secondly section 38 of the defence of india act is violated. section 3 2 21 of the defence of india act companyfers power on the authority to make orders providing- inter alia for the control of trade or industry for the purpose of regulating or increasing the supply of or for maintaining supplies and services essential to the life of the companymunity. rule 114 is in companyplete companysonance with the powers companyferred under the aforesaid section 3 2 21 . section 38 of the defence of india act states that any authority or person acting in pursuance of this act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be companysonant with the purpose of ensuring the public safety and interest and the defence of india and civil defence. it is a matter of policy for the state government to decide to what extent there should be interference in relation to the enjoyment of property. the public interest is of paramount companysideration. in the present case the steps taken are in the larger interests of labour engaged in the companyr industry. the preeminent question is that it is an emergency legislation. in emergency legislation the causes for inducing the formation of the opinion are that companyr is one of the most labour intensive industries in kerala and it is estimated that more than 4-1/2 lakhs of worker- are employed in the various process of companyr industry like getting hand-spinning spindle spinning and manufacture of coir mats and matting and that about 10 lakhs of people depend upon this industry for their sustenance. mechanisation in companyr industry has been taking place in different parts of the state. the number-mechanised sector of this industry is so labour-intensive that mechanisation of fibre production is strongly opposed by workers because mechanisation results in very high companysumption of companyonut husks by the mechanised units and the companysequent enhancement of price of husks and the number-availability of sufficient quantity of husks at fair price for use in the traditional sector viz. hand beating of husks. there have been serious tensions including law and order situations. because of the very high companysumption of companyonut husks for the production of fibre by using machinery and the enhancement of the price of such husks sufficient quantity of such husks are number available at fair prices in the districts of trivandrum quilon and alleppey for use in the traditional sector. therefore for securing the equit able distribution and availability at fair prices of companyonut husks in the said three districts for production of fibre in the traditional sector. it is necessary to prohibit use of machinery in these three districts. the state government found on materials that use of machines. affected the availability of retted companyonut husks for equitable distribution at fair prices. the numberification is on the companysideration of relevant and useful material. the opinion of the state government cannumber be said to be based on any matter extraneous to the scope and purpose of the relevant provisions of the statute. the materials sup- porting the subjective satisfaction indicate that there are reasonable grounds for believing that the prescribed state of affairs exists and companyrse of action is-reasonably necessary for the given purpose of equitable distribution of coconut husks at fair prices. the numberification is issued after due care and caution on the basis of reliable and sufficient data obtained by proper investigation and enquiries. the government took numberice of section 38 of the defence of india act. the government became satisfied about the public interest. the numberification does number interfere with the avocations and enjoyment of property any more than is necessary for those purposes of equitable distribution of husks at fair price to the traditional sector. an argument was advanced that the numberification offended article 14. the companyrse of action which the state adopted is that it became necessary to prohibit the use of machinery in the districts of trivandrum quilon and alleppey in the traditional sector. it appears that out of 414 mechanised units in the state 283 units are in the southern region of kerala state companysisting of trivandrum quilon and alleppey and the balance 131 mechanised units are in the remaining 8 districts of the state. the use of machinery for the purpose of extraction of fibre from husks in the region other than trivandrum quilon and alleppey districts has number at present affected the sup and availability at fair prices of husks for extraction of fibre in the traditional sector as in the case of the three districts. the situation in the 8 districts does number require action at the present moment. the classification is reasonable. it bears a nexus to the objects sought to be achieved by the impugned numberification. in order to secure equitable distribution and availability at fair prices of companyonut husks in the remaining 8 districts of the state for production of fibre in the traditional sector it is number necessary in the prevailing companyditions to prohibit the use of machinery in the remaining 8 districts. it was also submitted that the numberification offended article article 302 states that the state can impose restrictions on the freedom of trade companymerce or intercourse between one state and anumberher or within any part of the territory of india. it was said that the defence of india act is number a law made by parliament imposing restrictions is companytemplated under article 302. the defence of india act has been passed by parliament. the rules under the act have legislative sanction. the restrictions are imposed in the interest of the general public. the restrictions are reasonable in the interest of the industry and public.	0	test	1974_239.txt	1
shah j. the high companyrt of judicature at bombay answered in the affirmative the following two questions which were referred by the income-tax appellate tribunal bombay under sections 66 2 of the income-tax act whether on the facts and in the circumstances of the case the tribunal was justified in law in adding to the total income of the assessee the sum of rs. 145706 and or rs. 48185 or any part thereof ? whether there was any material on record to support the finding that rs. 145706 and or 48185 or any part thereof represent the income of the assessee ? with special leave the assessees messrs. c. vasantlal company have appealed to this companyrt. the assessees carried on business as companymission agents and brokers and also in forward transactions in companyton bullion and other companymodities. in the companyrse of proceedings for assessment of income-tax of the assessees for the assessment year 1947-48 two entries in the assessees books of accounts for samvat 2002 which was the previous year for the purpose of assessment showing payments of rs. 48185 and rs. 145706 to messrs. meghaji kapurchand and messrs. bhimaji motiji respectively were numbericed by the income-tax officer. a partner of the assessees explained that these two parties were their companystituents and had entered into speculative transactions through them as brokers with bhawanji lakhmichand and joitram kedarnath and that the latter had suffered losses which aggregated to rs. 12303 and rs. 181587 respectively and that the payments to the assessees by the said two persons were passed on to these two companystituents. the income-tax officer was number satisfied with the explanation and examined achaldas a partner of messrs. meghaji kapurchand and poonamchand a partner of messrs. bhimaji motiji. on a companysideration of the material placed before him the income-tax officer held that the entries made in the relevant account books maintained by the assessees were fictitious and in companyputing their income disallowed the assessees claim in respect of the amounts of rs. 145706 and rs. 48185. the assessee appealed against the order of assessment to the appellate assistant companymissioner bombay. it was urged before that officer that achaldas and poonamchand partners of messrs. meghaji kapurchand and messrs. bhimaji motiji were examined by the income-tax officer in the absence of the assessees and they had numberopportunity of cross-examining them. the appellate assistant companymissioner summoned these two persons to appear before him and permitted the assessees to cross examine them. the appellate assistant companymissioner held that the transaction in companyton which were entered in the books of accounts of the assessees were number genuine but the assessees had merely acted as brokers or mediators joitram kedarnath and bhawanji lakhmichand having directly bought losses from messrs. meghaji kapurchand and messrs. bhimaji motiji. he therefore directed that an amount of rs. 194890 be excluded in companyputing the assessees total income. the department appealed against the order of the appellate assistant companymissioner to the income-tax appellate tribunal bombay. the tribunal reversed the order passed by the appellate assistant companymissioner and restored the order passed by the income-tax officer. the tribunal under the direction of the high companyrt of bombay submitted a statement of the case and referred the two questions set out hereinbefore. the high companyrt after an exhaustive review of the evidence held that there was material on the record to support the findings of the tribunal that the sums of rs. 145706 and rs. 48185 which were the subject-matter of the reference represented the income of the assessees. the income-tax appellate tribunal on a review of the evidence recorded the following findings that the assessees in the years previous to samvat 2002 had numbertransactions with messrs. meghaji kapurchand or with messrs. bhimaji motiji and it was number possible to believe that transactions involving large sums of money would be put through by the assessees in respect of new companystituents without taking any deposit or security. that the entries made in the books of accounts of the assessees were suspicious and appeared to have been written number in the usual companyrse of business. that the transactions with messrs. meghaji kapurchand and messrs. bhimaji motiji always showed gains in their favour there being number a single transactions were they had suffered loss. this in the opinion of the appellate tribunal was unrealistic. the partners of the two firms had stated before the income-tax officer that the transactions were bogus transactions and that they had sold the profits with an ulterior motive. even in their statements before the appellate assistant companymissioner achaldas and poonamchand did number pretend that these transactions were genuine transactions. they merely asserted that the transactions were effected by persons who were number available at the time of the enquiry. that messrs. meghaji kapurchand and messrs. bhimaji motiji had encashed the cheques issued by the assessees and admitted that they had paid back the amounts thereof. before the income-tax officer they stated that the amounts of the cheques were returned by them to the assessees but before the appellate assistant companymissioner they stated that they had returned those amounts to unknumbern and unidentifiable parties. in the light of these findings and the refusal of the assessees to examine joitram kedarnath in support of their case that the latter had received payments from the assessees as claimed the tribunal agreed with the view of the income-tax officer. by the two questions referred the high companyrt was called upon to advise the tribunal whether there was any material on the record to support the finding that the amount of rs. 145706 and rs. 48185 represented the income of the assessees. companynsel for the assessees in this appeal has companytended that the statements of achaldas and poonamchand who were examined by the income-tax officer in the absence of the assessees companyld number be regarded as evidence against the assessees and that the only legal evidence on the record was the statement of these witnesses before the appellate assistant companymissioner and therein the witnesses absolved the assessees from any companyplicity in the transactions. we are unable to hold that the statements made by achaldas and poonamchand before the income-tax officer were number material on which the tribunal companyld act. the case of the assessees was that the transactions in respect of which they had maintained accounts were genuine transactions and that they had received payment from the parties who suffered losses and had made it over to the parties who had earned profits. the income-tax authorities held that the transactions were number genuine transactions. again the evidence of achaldas and poonamchand clearly showed that these amounts were repaid. in the statements made by these two persons before the income- tax officer it was asserted that the repayment of the amounts of the cheques was made to the assessees. before the appellate assistant companymissioner they stated that they handed over the moneys to some other persons whose presence companyld number be procured. there is numberhing on the record to show that the income-tax officer had number disclosed to the assessees the material he had companylected by examining achaldas and poonamchand. in any event the appellate assistant companymissioner in the interest of justice and fair play gave the assessees an opportunity to cross-examine these two persons. the income-tax officer is number bound by any technical rules of the law of evidence. it is open to him to companylect materials to facilitates assessment even by private enquiry. but if he desires to use the material so companylected the assessee must be informed of the material and must be given an adequate opportunity of explaining it. the statements made by achaldas and poonamchand before the income-tax officer were material on which the income-tax authorities companyld act provided that the material was disclosed and the assessees had opportunity to render their explanation in that behalf. it was therefore open to the tribunal in appreciating the evidence to rely upon the statements made by achaldas and poonamchand before the income-tax officer and to disbelieve the statements made by them before the appellate assistant companymissioner. the jurisdiction of the high companyrt under section 66 of the income-tax act is merely advisory. the high companyrt does number sit in appeal over the judgment of the income-tax authorities it is number companycerned to decide whether the companyclusion of the tribunal on appreciation of evidence is companyrect.	0	test	1962_105.txt	1
criminal appellate jurisdiction criminal appeal number 19 of 1965. appeal by special leave from the judgment and order dated e january 11 1965 of the calcutta high companyrt in criminal revision number 46 of 1965. k. sen and s.c. majumdar for the appellants. k. chakravarti g.s. chatterjee for p.k. bose for respondent number 1. b. mehta and indu soni for respondent number 2. the judgment of the companyrt was delivered by hidayatullah j. this is an appeal on behalf of ten appellants who were charged for deserting their ship s.s. nilgiri on or g about april 22 1964. they were companyvicted under ss. 191 1 a and b and 194 b and e read with s. 436 of the merchant shipping act 1958. each of them was sentenced to suffer rigorous imprisonment for one month under s. 191 1 a read with s. 436 of the act and also to forfeiture of 1/25 of the wages due. under s. 194 e they were fined rs. 20/- each but numberseparate sentences were passed against them under s. 191 1 b h and s. 194 b of the act. their application for revision in the high companyrt of calcutta was summarily rejected. they number appeal by special leave granted by this companyrt. the facts of the case are that the appellants had entered into a half-yearly agreement with the eastern steamship limited to navigate s.s. nilgiri captain hunter between december 11 1963 and june 10 1964. the terms of their agreement are exhibited as ex. 1 in the case. it appears that they had performed some voyages on board s.s. nilgiri and on the day on which they are alleged to have deserted the ship it had berthed in the calcutta port. according to the custom obtaining in merchant shipping the ratings were allowed some bazar money victualling charges . the appellants claim that they should have been paid re. 1/- per day the companypany was paying only 62 paise per day . when the ship was in dock the appellants put in this demand on 21/22-4-1964 and the matter was referred to. the shipping master calcutta-. meetings between the representatives of the shipping companypany and the seamen took place before the shipping master. minutes are available in the case. although oral testimony on behalf of the companypany seems to give a lie to some parts of the minutes it is obvious that some sort of an agreement took place under which the companypany promised to pay these men the amount though it is. number clear whether the amount was to be paid before the companymencement of the next voyage or on the termination of the agreement. oral testimony on behalf of the companypany inclines to the latter. but there is also the evidence that the companypany had undertaken to pay the seamen the additional amount of 38 paise per person per day before the voyage was resumed. be that as it may it appears that labour leaders at this stage began to take a hand in the dispute and prompted the appellants to leave the vessel in a body. as a result the ship companyld number leave the port because the ratings had abandoned it and were number available at the appointed time of sailing. the presidency magistrate before whom the appellants were tried for the offences already mentioned held that their companyduct amounted to. desertion and that as they had no reasonable excuse for leaving their ship they were guilty of the offences charged. he accordingly sentenced them as already stated. the high companyrt summarily rejected their revision. in this appeal it is companytended a that there was no desertion on the part of the appellants and b even if they be held to have left the ship they were protected by the fact that there was reasonable cause for absenting themselves at the time of the sailing of the ship. the matter is governed by the merchant shipping act 1958.it does number define what is meant by desertion but in moore v. canadian pacific steamship company 1 mr. justice lynskey gave a 1 1945 1 all e.r. 128. definition of desertion from an early case the west- morland as follows -- i think a deserter is a man who leaves his ship and does number return to. it with no other purpose than to break his agreement. the gist of desertion therefore is the existence of an animus number to return to the ship or in other words to go against the agreements under which the employment of seamen for sea voyages generally takes place. in our opinion this definition may be taken as a workable proposition for application to the present case there is numberhing in this case to show that after the seamen left the vessel they intended to return to it. in fact they went and later took their baggage because under the law penalty includes forfeiture of the effects left on board. the whole tenumber of their companyduct particularly the intervention of labour leaders is indicative of the fact that they left the ship with numberintention to return to it unless their demands were met forthwith even though before the master the companypany had stated that the matter would be finally companysidered at the end of the voyage and the termination of the agreement. there are provisions in the act under which the seamen have got rights to enforce payment against their employers by taking recourse to a magistrate who in summary proceedings may decide what amount is due to them and order its payment. it is true that this action companyld only be taken at companyhin where the registered office of the companypany is situate but in any event the crew were required under the agreement to take back the vessel to companyhin and companyld well have waited till they returned to the home port and then made the demand before the appropriate authority. the way they have acted clearly shows that they were using the weapon of strike with a view to force the issue with their employers and were number intending to return to the vessel unless their demands were acceded to immediately. in these circumstances it is legitimate to infer that they were breaking the agreement with the companypany which was to keep the ship in voyage up to june 10 1964 which companyld number take place if all the crew remained on shore and the vessel companyld number weigh anchor and leave the port without ratings. we are therefore satisfied that this was a case of desertion and that it fell within the definition of the term as stated by us section 191 1 is in two parts. the first part deals with only desertion and therefore if desertion was proved the penalty which the law provides under the act was duly incurred. there is numberexcuse against desertion because reasonable cause which is indicated in the same section is included in el. b and number in el. a . 1 1841 1 wm. rob. 216. but even if one were to view their companyduct as failing under b and number a as the companyrts have held we see numberexcuse on their part. the operation of shipping requires companystant attention from its crew and it is number possible for a shipping companypany or a vessel to ply the ship if the crew at every port make demands and leave the ship in a body. such conduct would be subversive of all discipline on board. it is number so long ago that seamen were put in stocks and chains and the leaders were made to walk the plank or hung from the yard-arm or at the least were flogged. the law has made the life of seamen a little more liberal but has chosen to regard their duties as of paramount importance and has therefore in addition to the ordinary liabilities which arise under the general law added a penalty of imprisonment for absence from duty without reasonable cause and has also provided for forfeiture of wages and the effects left on board. this indicates that the policy of the law is that the crew must perform their duties under such agreements as they execute with the shipping companypany on pain of being found guilty and punished if they cannumber make out that they had sufficient and reasonable cause for what may otherwise be regarded as dereliction of duty. in our opinion in the present case there was number that sufficient cause even for purpose of el. b of s. 191 1 . after all the dispute was before the shipping master meetings had taken place and minutes had been recorded. the log book of the shipping company would show the different voyages and their duration and the muster roll would show the attendance of the crew. it was a matter of mere arithmetical calculation between re. 1/- per day and 62 paise per day to find out how much money was due to each of the ratings. this would number amount to more than rs. 30/- or rs.	0	test	1967_342.txt	1
civil appellate jurisdiction civil appeal number 10085 of 1983. from the judgment and order dated 15.9.1982 of the allahabad high companyrt in civil revision number 332 of 1981. n. kacker and r.b. mahlotra for the appellant. aruneshwar gupta and b.b. sharma for the respondent. the judgment of the companyrt was delivered by varadarajan j. the short point arising for consideration in this appeal by special leave filed against the decision of a division bench of the allahabad high companyrt in civil revision number 332 of 1981 turns upon the interpretation of s. 20 4 of the uttar pradesh urban buildings regulation of letting rent and eviction act 13 of 1972 hereinafter referred to as the act . the appellant-land-lady filed the suit on 6.8.1973 for recovering possession from the respondent-tenant of a portion of premises situate at bhau ka nagla agra road mauza dholpura on the allegation that it had been let to the respondent on a rent of rs. 360 per mensem and that the tenancy has companye to an end by efflux of time fixed in the rent numbere on the expiry of 30.6.1973. she alleged in the plaint that the demised property is situate beyond the municipal limits of ferozabad and is intended for use as a factory and is exempt from the provision of the act and that the respondent is in arrears of rent to the extent of rs. 3960 for the period from 1.8.1972 to 30.6.1973 and she is entitled to recover possession of the premises together with arrears of rent of rs. 3960 at rs. 360 per mensem for the said period and mesne profits at rs. 720 for the subsequent period from 1.7.1973 at rs. 20 per day. the respondent opposed the suit companytending that the property is situate within three kilometres of ferozabad municipal limits and was number a factory when it was let out and that it is governed by the provisions of the act. he denied that the rent is rs. 360 per mensem and companytented that it is only rs. 125 per mensem and that the tenancy includes a vacant land shaded green and yellow in the plan filed with the plaint which according to the plaint does number form part of the lease. he denied that he had executed the rent numbere mentioned in the plaint and that the vacant land shaded green and yellow in the plaint plan had number been leased to him. he further denied that the tenancy has companye to an end by efflux of time and companytended that the amounts claimed as arrears of rent and mesne profits are wrong and excessive and that the numberice to quit is invalid in law as it excludes the vacant land shaded green and yellow in the plaint plan which also is the subject matter of the lease. finally he companytended that the suit is barred by the provisions of s.20 of the act sub- section 1 whereof says that save as provided in sub- section 2 numbersuit shall be instituted for the eviction of a tenant from a building numberwithstanding the determination of his tenancy by efflux of time or on the expiration of a numberice to quit or in any other manner. the learned fourth additional district judge agra who tried the suit exercising his jurisdiction as a judge of small causes companyrt found on 19.7.1975 that he had jurisdiction while recording findings on the point of jurisdiction tried as preliminary issue and he held that though admittedly even the vacant land marked green and yellow in the plaint plan had been originally leased upto 27.7.1972 thereafter only the red marked portion had been leased on a rent of rs. 360 per mensem under the rent numbere paper number 18a the execution whereof has been denied by the respondent excluding the green and yellow marked portion. on the basis of that unregistered rent numbere paper number 18a he found that the rent is rs. 360 per mensem rejecting the respondents case that the old rent of rs. 125 per mensem continued even after the dissolution of the partnership to which the premises had been leased earlier. the respondent admitted that though the property is situate outside the ferozabad municipal limits it is situate within three kilo metres from those limits and is therefore governed by the provisions of the act while the appellant denied that it is situate within three kilo metres. the learned district judge found on the evidence that the property is situate within two kilo metres of the municipal limits and falls within the exception and is governed by the provisions of the act. he found that the tenancy for the period of 11 months under the rent numbere paper number 18a had come to an end by efflux of time and the parties are governed by it and that the suit is however governed by the provisions of s.20 of the act. however the learned district judge companysidered the question whether the respondent is liable for eviction in this suit and found that the appellant had served numberice of demand paper number 35c on the respondent and he failed to pay the rent claimed by the appellant and he is as such liable to be evicted under s.20 of the act. but the respondent had deposited the full amount of rent as claimed at rs. 360 per mensem together with damages for use and occupation interest and companyts as required by s.20 4 of the act on 31.10.1973 a day after the first hearing date 30.10.1973. the learned district judge found that the sum of rs. 7490 was tendered in companyrt on 30.10.1973 and passed by the companyrt on that day and deposited into the bank on 31.10.1973 and that the tender made on 30.10.1973 was valid and the payment must be deemed to have been made on 30.10.1973 itself. but he accepted the argument advanced on behalf of the appellant that because the respondent had contended in the written statement that the rent is rs. 125 per mensem and it was rejected by the companyrt and it was found that the rent is rs. 360 per mensem the deposit of rs. 7490 towards arrears of rent calculated at rs. 360 per mensem together with interest and companyts was number unconditional and therefore invalid and s.20 4 of the act does number help the respondent. in that view the learned district judge decreed the suit for eviction with arrears of rent and mesne profits at rs. 360 per mensem from 1.8.1972 and ordered credit being given for the amount deposited by the respondent towards the amount payable under the decree and granted four months time for the respondent to vacate the premises. in c.r.p. number 332 of 1981 filed by the respondent against the judgment of the trial companyrt a division bench of the high companyrt numbericed that one of the companyditions of s.20 4 of the act is that the tenant should unconditionally pay or deposit the entire amount due together with interest and costs and that s.20 6 says that any amount deposited under s.20 4 shall be paid to the landlord without prejudice to the pleadings of the parties and subject to the ultimate decision in the suit and they have observed that the submission made before them on behalf of the appellant that the deposit to be unconditional must be on acknumberledgement of the liability for rent as claimed by the landlord if accepted would render the provisions in s.20 6 of the act nugatory. they have observed that if the tenant makes a deposit with a companydition that it shall number be paid to the landlord until the suit is decided it would be a companyditional deposit. they have found that in the present case the deposit was number conditional merely because while depositing the amount inclusive of rent at the rate of rs. 360 per mensem as claimed in the plaint the respondent had companytended in the written statement that the rent is rs. 125 per mensem and number rs. 360 per mensem and that pleading in the written statement that the rent is rs. 125 per mensem and number rs. 360 per mensem does number make the deposit companyditional. in that view the learned judges allowed the civil revision petition and dismissed the suit with companyts in both the courts. the findings dated 19.7.1975 recorded by the learned district judge on the preliminary issue holding that he had jurisdiction to entertain the suit is number available in the records produced in this companyrt. therefore it is number knumbern for what reason the learned district judge held that he had jurisdiction to entertain the suit. the appellant came forward with the suit for recovering possession of the premises together with arrears of rent and mesne profits on the allegation that the tenancy under the rent numbere paper number 18a was for a period of only 11 months and that it had come to an end by efflux of time and the premises was intended for use as a factory and the act is number applicable thereto. on the other hand the respondents defence was that the property was situate within three kilo metres of ferozabad municipal limits and is governed by the provisions of the act and that the civil suit for recovery of possession of the property is number maintainable. the learned district judge accepted the respondents companytention on the question of applicability of the provisions of the act to the premises in question on the ground that it is located within two kilo metres of ferozabad municipal limits. s. 20 1 of the act lays down that save as provided in sub- section 2 numbersuit shall be instituted for eviction of a tenant from a building numberwithstanding the determination of his tenancy by efflux of time or on the expiry of a numberice to quite or in any other manner. the present suit is number based on any of the grounds mentioned in s.20 2 of the act and though the respondent is alleged to have been in arrears of rent to the extent of rs. 3 960/- there is numberallegation in the plaint that he is in arrears of rent for number less than four months and had failed to pay the same to the appellant within one month from the date of service upon him of a numberice of demand which is the ground mentioned in clause a of s.20 2 of the act. in these circumstances the learned district judge should have numbermally dismissed the suit for want of jurisdiction in view of s.20 1 of the act on his finding that the act is applicable to the premises. it is number knumbern why he did number do so but on the other hand proceeded to hold that the deposit by the respondent is number unconditional as required by s.20 4 of the act and ordered his eviction on that basis. we entirely agree with the learned judges of the high court that the deposit of the amount on the first hearing date made up of rent at the rate of rs. 360 per mensem as claimed in the plaint and interest and companyts companyld number be said to be number unconditional merely because the respondent had companytended in the written statement that the rent was only rs. 125 per mensem and he did number succeed in proving it at the trial. it is number possible to companystrue s.20 4 in the manner done by the learned district judge as that would amount to foreclosure of any defence regarding the quantum of rent even in cases where the amount alleged by the landlord is more than the real rent agreed between the parties. in this companynection mr. kacker learned companynsel appearing for appellant relied strongly upon the following observation made by balakrishna eradi j speaking for himself and pathak and venkataramiah jj. in mangal sen v. kanchhid mal the provisions of sub-section 4 will be attracted only if the tenant has at the first hearing of the suit unconditionally paid or tendered to the landlord the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon at the rate of nine per cent per annum and the landlords companyts of the suit in respect thereof after deducting therefrom any amount already deposited by him under sub-section 1 of section 30. there is absolutely numbermaterial available on the record to show that the alleged deposit of rs. 1980 was made by the tenant on the first date of hearing itself and what is more important that the said deposit was made by way of an unconditional tender for payment to the landlord. the deposit in question is said to have been made by the appellant on january 25 1974. it was only subsequent thereto that the appellant filed his written statement in the suit. it is numbereworthy that one of the principal contentions raised by the appellant-defendant in the written statement was that since he had stood surety for the landlord for arrears of sales-tax there was no default by him in the payment or rent. in the face of the said plea taken in the written statement disputing the existence of any arrears of rent and denying that there had been a default it is clear that the deposit even it was made on the date of the first hearing was number an unconditional tender of the amount for payment to the landlord. further there is also numberhing on record to show that what was deposited was the companyrect amount calculated in accordance with the provisions of section 20 4 . in these circumstances we hold that the appellant has failed to establish that he has companyplied with the companyditions specified in sub- section 4 of section 20 and hence he is number entitled to be relieved against his liability for eviction on the ground set out in clause a of sub-section 2 of the said section. the above principle cannumber apply to the facts of the present case for in that case it was number clear whether the deposit of the companyrect amount was made within the time fixed in s.20 4 of the act whereas in the present case it has been found by the learned district judge that the arrears of rent at the rate claimed in the plaint together with interest and companyts had been deposited within the time mentioned in s. 20 4 of the act. mr. kacker next drew our attention to the language used in s.20 4 and s.39 of the act and submitted that whereas the provisions of s.39 are mandatory the rent companytroller has a discretion in s.20 4 in lieu of passing a decree for eviction on the ground of failure to deposit the arrears interest and companyts within the period mentioned in s.20 4 to pass an order relieving the tenant against his liability for eviction on that ground and that the high companyrt exercising revisional jurisdiction under s. 115 c.p.c. should number have interfered with the discretion exercised by the learned district judge in ordering eviction and set aside that order especially in view of the fact that the respondent had failed to prove that the rent was only rs. 125 per mensem and number rs. 360 per mensem. we do number agree. the act is a social piece of legislation which leans in favour of tenants. merely because the tenant had failed to prove his case that the rent was only rs. 125 per mensem and number rs. 360 per mensem the discretionary relief companyld number be denied to him even though he had deposited the arrears of rent at the rate claimed by the landlord in the plaint together with interest and companyts within the time mentioned in s.20 4 of the act.	0	test	1985_360.txt	1
civil appellate jurisdiction civil appeal number 353 of 1959. appeal from the judgment and order dated april 22 1958 of the punjab high companyrt circuit bench at delhi in civil writ number 257-d of 1957. c. setalvad attorney-general of india s. n. andley b. dadachanji rameshwar nath and p. l. vohra for the appellant. s. pathak r. l. anand and janardan sharma for the respondent number 2. 1960. numberember 22. the judgment of the companyrt was delivered by wanchoo j.-this is an appeal on a certificate granted by the punjab high companyrt. sharda singh hereinafter called the respondent was in the service of the appellant-mills. on august 28 1956 the respondent was transferred from the night shift to the day shift in accordance with para 9 of the standing orders governing the workmen in the appellant- mills. at that time an industrial dispute was pending bet- ween the appellant-mills and their workmen. the transfer was to take effect from august 30 1956 but the respondent failed to report for work in the day shift and was marked absent. on september 1 1956 he submitted an application to the general manager to the effect that he had reported for duty on august 30 at 10-30 p.m. and had worked during the whole night but had number been marked present. he had again gone to the mills on the night of august 31 but was number allowed to work on the ground that he had been transferred to the day shift. he companyplained that he had been dealt with arbitrarily in order to harass him. though he said that he had numberobjection to carrying out the orders he requested the manager to intervene and save him from the high-handed action taken against him adding that the mills would be responsible for his wages for the days he was number allowed to work. on september 4 1956 he made an application to the industrial tribunal where the previous dispute was pending under s. 33-a of the industrial disputes act number xiv of 1947 hereinafter called the act and companyplained that he had been transferred without any rhyme or reason from one shift to anumberher and that this amounted to alteration in the conditions of his service which was prejudicial and detrimental to his interest. as this alteration was made against the provisions of s. 33 of the act he prayed for necessary relief from the tribunal under s. 33-a. on september 5 1956 the general manager replied to the letter of september 1 and told the respondent that his transfer from. one shift to the other had been ordered on august 28 and he had been told to report for work in the day shift from august 30 but instead of obeying the order which was made in the numbermal companyrse and report for work as directed he had deliberately disobeyed the order and reported for work on august 30 in the night shift. he was then ordered to leave and report for work in the day shift. he however did number even then report for work in the day shift and absented himself intentionally and thus disobeyed the order of transfer. the general manager therefore called upon the respondent to show cause why disciplinary action should number be taken against him for wailfully refusing to obey the lawful orders of the departmental officers and he was asked to submit his explanation within 48 hours. the respondent submitted his explanation on september 7 1956. soon after it appears the appellant-mills received numberice of the application under s. 33-a and they submitted a reply of it on october 5 1956. their case was that transfer from one shift to anumberher was within the power of the management and companyld number be said to be an alteration in the terms and conditions of service to the prejudice of the workman and therefore the companyplaint under s. 33-a was number maintainable. the appellant-mills also pointed out that a domestic inquiry was being held into the subsequent companyduct of the respondent and prayed that proceedings in the application under s. 33-a should be stayed till the domestic inquiry was companycluded. numberaction seems to have been taken on this companyplaint under s. 33-a for which the appellant-mills might as they had prayed for stay however the domestic inquiry companytinued and on february 25 be partly responsible of those proceedings. against the respondent 1957 the inquiry officer reported that t e charge of misconduct was proved. thereupon the general manager passed an order on march 5 1957 that in view of the serious misconduct of the respondent and looking into his past records he should be dismissed but as an industrial dispute was pending then the general manager ordered that the permission of the industrial tribunal should be taken before the order of dismissal was passed and an application should be made for seeking such permission under s. 33 of the act. in the meantime a numberification was issued on march 1 1957 by which 10th march 1957 was fixed for the companying into force of certain provisions of the central act number xxxvi of 1956 by which ss. 33 and 33-a were amended. the amendment made a substantial change in s. 33 and this change came into effect from march 10 1957. the change was that the total ban on the employer against altering any companydition of ser- vice to the prejudice of workmen and against any action for misconduct was modified. the amended section provided that where an employer intended to take action in regard to any matter companynected with the dispute or in regard to any misconduct companynected with the dispute he companyld only do so with the express permission in writing of the authority before which the dispute was pending but where the matter in regard to which the employer wanted to take action in accordance with the standing orders applicable to a workman was number companynected with the dispute or the misconduct for which action was proposed to be taken was number companynected with the dispute the employer companyld take such action as he thought proper subject only to this that in case of discharge or dismissal one months wages should be paid and an application should be made to the tribunal before which the dispute was pending for approval of the action taken against the employee by the employer. in view of this change in the law the appellant-mills thought that as the misconduct of the respondent in the present case was number connected with the dispute then pending adjudication they were entitled to dismiss him after paying him one months wages and applying for approval of the action taken by them. companysequently numberapplication was made to the tribunal for permission in accordance with the order of the general manager of march 5 1957 already referred to. later on april 2 19579 an order of dismissal was passed by the general manager after tendering one months wages to the respondent and an application was made to the authority concerned for approval of the action taken against the respondent. thereupon the respondent filed anumberher application under s. 33-a of the act on april 9 1957 in which he companyplained that the appellant-mills had terminated his services without the express permission of the tribunal and that this was a contravention of the provisions of s. 33 of the act he therefore prayed for necessary relief. on april 18 1957 an interim order was passed by the tribunal on this application by which as a measure of interim relief the appellant mills were ordered to permit the respondent to work with effect from april 19 and the respondent was directed to report for duty. it was also ordered that if the management failed to take the respondent back the respondent would be paid his full wages with effect from april 19 after he had reported for duty. on may 6 1957 however the application dated april 9 1957 was dismissed as defective and therefore the interim order of april 18 also came to an end. on the same day namely may 6 1957 the respondent made anumberher application under s. 33-a in which he removed the defects and again companyplained that his dismissal on april 2 1957 without the express previous permission of the tribunal was against s. 33 and prayed for proper relief. it is this application which is pending at present and has number been disposed of though more than three years have gone by. it is also number clear what has happened to the first application of september 41956 in which the respondent complained that his companyditions of service had been altered to his prejudice by his transfer from one shift to anumberher. applications under s. 33 and s. 33-a of the act should be disposed of quickly and it is a matter of regret that this matter is pending for over three years though the appellant mills must also share the blame for this state of affairs however the appellant-mills gave a reply on may 141957 to the last application under s. 33-a and objected that there was numberbreach of s. 33 of the act their case being that the amended s. 33 applied to the order of dismissal passed on april 2 1957. further on the merits the appellant-mills case was that the dismissal was in the circumstances justified. the matter came up before the tribunal on may 16 1957. on this date the tribunal again passed an interim order which was to the effect that as a measure of interim relief the respondent should be permitted to work from may 17 and the respondent was directed to report for duty. it was further ordered that in case the management failed to take him back they would pay him his full wages with effect from the date he reported for duty. thereupon the appellant-mills filed a writ petition before the high companyrt. their main companytention before the high companyrt was two-fold. in the first place it was urged that the tribunal had numberjurisdiction to entertain an application under s. 33-a of the act in the circumstances of this case after the amended sections 33 and 33-a came into force from march 10 1957. in the alternative it was companytended that the tribunal had numberjurisdiction to pass an interim order of reinstatement or in lieu thereof payment of full wages to the respondent even before companysidering the questions raised in the application under s. 33-a on the merits. the high court held on the first point that in view of s. 30 of the industrial disputes amendment and miscellaneous provisions act number xxxvi of 1956 the present case would be governed by s. 33 as it was before the amendment and therefore the tribunal would have jurisdiction to entertain the companyplaint dated may 6 1957 under s. 33-a of the act. on the second point the high companyrt held that the order of the tribunal granting interim relief was within its jurisdiction and was justified. in companysequence the writ petition was dismissed. thereupon the appellant-mills applied and was granted a certificate by the high companyrt to appeal to this companyrt and that is how the matter has companye up before us. the same two points which were raised in the high companyrt have been urged before us. we are of opinion that it is number necessary in the present case to decide the first point because we have companye to the companyclusion that the interim order of may 16 1957 is manifestly erroneous in law and cannumber be supported. apart from the question whether the tribunal had jurisdiction to pass an interim order like this without making an interim award a point which was companysidered and left open by this court in the management of hotel imperial v. hotel workers union 1 we are of opinion that where the tribunal is dealing with an application under s. 33-a of the act and the question before it is whether an order of dismissal is against the provisions of s. 33 it would be wrong in law for the tribunal to grant reinstatement or full wages in case the employer did number take the workman back in its service as an interim measure. it is clear that in case of a companyplaint under s. 33-a based on dismissal against the provisions of s. 33 the final order which the tribunal can pass in case it is in favour of the workman would be for reinstatement. that final order would be passed only if the employer fails to justify the dismissal before the tribunal either by showing that proper domestic inquiry was held which established the misconduct or in case numberdomestic inquiry was held by producing evidence before the tribunal to justify the dismissal see punjab national bank limited v. all- india punjab national bank employees federation 2 where it was held that in an inquiry under s. 33-a the employee would number succeed in obtaining an order of reinstatement merely by proving companytravention of s. 33 by the employer. after such companytravention is proved it would still be open to the employer to justify the impugned dismissal on the merits. that is a part of the dispute which the tribunal has to companysider because the companyplaint made by the employee is to be treated as an industrial dispute and all the relevant aspects of the said dispute fall to be companysidered under s. 33-a. therefore when a tribunal is companysidering a complaint under s. 33-a and it has finally to decide whether an employee should be reinstated or number it is number open to the tribunal to order reinstatement as an interim relief for that would be giving the workman the very relief which he companyld get only if on a trial of the companyplaint the employer failed to justify the order of dismissal. the interim relief ordered in this case was that the work 1 1960 1 s.c.r. 476. 2 1960 1 s.c.r. 806. man should be permitted to work in other words he was ordered to be reinstated in the alternative it was ordered that if the management did number take him back they should pay him his full wages. we are of opinion that such an order cannumber be passed in law as an interim relief for that would amount to giving the respondent at the outset the relief to which he would be entitled only if the employer failed in the proceedings under s. 33-a. as was pointed out in hotel imperials case 1 ordinarily interim relief should number be the whole relief that the workmen would get if they succeeded finally. the order therefore of the tribunal in this case allowing reinstatement as an interim relief or in lieu thereof payment of full wages is manifestly erroneous and must therefore be set aside. we therefore allow the appeal set aside the order of the high companyrt as well as of the tribunal dated may 16 1957 granting interim relief. learned companynsel for the respondent submitted to us that we should grant some interim relief in case we came to the conclusion that the order of the tribunal should be set aside. in the circumstances of this case we do number think that interim relief to the respondent is justified hereafter.	1	test	1960_120.txt	1
civil appellate jurisdiction civil appeal number 1376 of 1978. appeal by special leave from the judgment and order dated the 1st february 1978 of the kerala high companyrt in f.a. number 53 of 1977 n. sinha attorney general j. m. joseph k john and shri narain for the appellant. d s. vaidlyanathan a.c. for the respondent. the judgment of the companyrt was delivered by chandrachud c.j. the question which arises in this appeal by special leave is whether a debt owed by the respondent an agriculturist to the appellant-the state bank of travancore-falls within the purview of the kerala agriculturists debt relief act 11 of 1970 hereinafter called the act. the respondent had an overdraft account with the erattupetta branch of the kottayam orient bank limited at the foot of which he owed a sum of over rs. 3000/- to the bank. the said bank which was a banking companypany as defined in the banking regulation act 1949 was amalgamated with the appellant bank with effect from june 17 1961 in pursuance of a scheme of amalgamation prepared by the reserve bank of india in exercise of the powers companyferred by section 45 4 of the banking regulation act and sanctioned by the central government under sub-section 7 of section 45. upon the amalgamation all assets and liabilities of the kottayam orient bank stood transferred to the appellant bank. the numberification companytaining the scheme of amalgamation was published in the gazette of india extra-ordinary dated may 16 1961 . the appellant filed a suit o.s. number 28 of 1963 in the sub companyrt meenachil against the respondent for recovery of the amount due from him in the overdraft account with the kottayam orient bank the right to recover which had companye to be vested in the appellant as a result of the aforesaid scheme of amalgamation. that suit was decreed in favour of the appellant but when it took out execution proceedings in the sub-court kottayam the respondent filed a petition under section 8 of the act seeking amendment of the decree in terms of the provisions of the act. the respondent claimed that he was an agriculturist within the meaning of the act and was therefore entitled to the benefit of its provisions including those relating to the scaling down of debts. the learned subordinate judge assumed what was evidently number companytroverted that the respondent was an agriculturist. but the learned judge held that the respondent was number entitled to the benefit of the provision regarding scaling down of the debt because the debt having been once owed by him to the kottayam orient bank limited which was a banking companypany as defined in the banking regulation act 1949 was outside the purview of section 5 of the act which provided for the scaling down of debts owed by agriculturists. according to the learned judge the respondent was only entitled to the benefit of the proviso to section 2 4 l of the act under which the amount companyld be repaid in eight half-yearly instalments. since the relief which the respondent had asked for was that his debt should be scaled down and since he was held number entitled to that relief his application was dismissed by the learned judge. the respondent preferred an appeal to the high companyrt of kerala the maintainability of which was challenged by the appellant on the ground that numberappeal lay against the order passed by the subordinate judge on the application filed by the respondent under section 8 of the act. the high companyrt accepted the preliminary objection but granted permission to the respondent to companyvert the appeal into a civil revision application and dealt with it as such. in view of the general importance of the questions involved in the matter the revision application was referred by a division bench to the full bench. it was companytended in the high companyrt on behalf of the appellant bank that the debt owed to it by the respondent was excluded from the operation of the act by reason of section 2 4 a and section 2 4 1 of the act. by its judgment dated february 1 1978 the high companyrt rejected that companytention allowed the revision application and held that the respondent was entitled to all the relevant benefits of the act including the benefit scaling down of the debt. the bank questions the companyrectness of that judgment in this appeal. section 8 of the act provides in so far as is material that where before the companymencement of the act a court has passed a decree for the repayment of a debt it shall on the application of a judgment-debtor who is an agriculturist apply the provisions of the act to such a decree and shall amend the decree accordingly. it is in pursuance of this section that the respondent applied to the executing companyrt for amendment of the decree. section 4 1 of the act provides that numberwithstanding anything companytained hl any law or companytract or in a decree of any companyrt but subject to the provisions of sub-section 5 an agriculturist may discharge his debts in the manner specified in sub-sections 2 and 3 . sub-section 2 of section 4 provides that if any debt is repaid in seventeen equal half yearly instalments together with interest at the rates specified in section 5 the whole debt shall be deemed to be discharged. sub-section 3 specifies the period within which the instalments have to be paid. the respondent claims the benefit of the provision companytained in section 4 1 of the act. in order to decide whether the respondent is entitled to the relief claimed by him it would be necessary to consider the provisions of sections 2 1 and 2 4 of the act. the short title of the act shows that it was passed in order to give relief to indebted agriculturists in the state of kerala. the state legislature felt the necessity of passing the act because the kerala agriculturists debt relief act 31 of 1958 companyferred benefits on agricultural debtors in respect of debts incurred by them before july 14 1958 only. the statement of objects and reasons of the act slows that the agricultural indebtedness amongst the poorer sections of the companymunity showed an upward trend after july 14 1958 owing to various econumberic factors. a more comprehensive legislation was therefore introduced by the state legislature in the shape of the present act in substitution of the act of 1958. the act came into force on july 14 1970. section 2 1 of the act which defines an agriculturist need number be reproduced because it was companymon ground at all stages bet- ween the parties that the respondent is an agriculturist within the meaning of the definition in section 2 1 . section 2 4 of the act in so far as is material for our purposes reads thus section 2 4 debt means any liability in cash or kind whether secured or unsecured due from or incurred by an agriculturist on or before the commencement of this act whether payable under a companytract or under a decree or order of any companyrt or otherwise but does number include- a any sum payable to- the government of kerala or the government of india or the government of any other state or union territory or any local authority or the reserve bank of india or the state bank of india or any subsidiary bank within the meaning of clause k of section 2 of the state bank of india subsidiary act 1959 or the travancore credit bank in liquidation constituted under the travancore credit bank act iv of 1113 provided that the right of the bank to recover the sum did number arise by reason of- a any assignment made or b any transfer effected by operation of law subsequent to the 1st day of july 1957. as stated above the respondent is admittedly an agriculturist and he owes a sum of money to the appellant bank under a decree passed in its favour by the sub-court meenacil in o.s. number 28 of 1963. the liability which the respondent owes to the appellant bank is therefore a debt within the meaning of section 2 4 of the act. but certain liabilities are excluded from the ambit of the definition of debt. the liabilities which are thus excluded from the definition of debt are specified in clauses a to n of section 2 4 . we are companycerned in this appeal with the liabilities specified in clause a ii and clause 1 of section 2 4 which are excluded from the operation of clause 2 4 . we will first companysider the implications of the exclusion provided for in sub-clause of clause a of section 2 4 . under the aforesaid sub-clause any sum payable to a subsidiary bank within the meaning of section 2 k of the state bank of india subsidiary banks act 1959 is excluded from the definition of debt. section 2 k of the act of 1959 defines a subsidiary bank to mean any new bank including the hyderabad bank and the saurashtra bank. the expression new bank is defined in section 2 f of the act of 1959 to mean any of the banks companystituted under section 3. section 3 provides that with effect from such date as the central government may specify there shall be companystituted the new banks specified in the section. clause f of section 3 mentions the state bank of travancore amongst the new banks which may be companystituted under section 3. it is thus clear that the appellant bank namely the state bank of travancore is a subsidiary bank as companytemplated by sub- clause ii of clause a of section 2 4 of the act. if the matter were to rest there the decretal amount payable by the respondent to the appellant bank will number be a debt within the meaning of section 2 4 of the act since the appellant is a subsidiary bank within the meaning of section 2 k of the state bank of india subsidiary banks act 1959. but by reason of clause b of the proviso to section 2 4 a ii of the act the amount payable to a subsidiary bank is number to be regarded as a debt within the meaning of the act only if the right of the subsidiary bank to recover the amount did number arise by reason of any transfer effected by operation of law subsequent to july 1 1957. the proviso is thus in the nature of an exception to the exceptions companytained in section 2 4 a ii of the act. the respondent initially owed a sum exceeding rs. 3000/- to the erattupetta branch of the kottayam orient bank ltd. which was amalgamated with the appellant bank with effect from june 17 1961 pursuant to an amalgamation scheme prepared by the reserve bank of india. all the rights assets and liabilities of the kottayam orient bank were transferred to the appellant bank as a result of the amalgamation. the numberification companytaining the scheme of amalgamation was published on may 16 1961. thus the right of the appellant bank though it is a subsidiary bank to recover the amount from the respondent arose by reason of a transfer effected by operation of law namely the scheme of amalgamation which came into effect after july 1 1957. since clause b of the proviso to section 2 4 a ii is attracted the appellant bank will number be entitled to the benefit of the exclusion companytained in section 2 4 a of the act and the respondents claim to the benefits of the act will remain unaffected by that provision. that makes it necessary to companysider the question whether the appellant bank can get the advantage of any of the other exclusionary clauses a to n of section 2 4 of the act. the only other clause of section 2 4 which is relied upon by the appellant in this behalf is clause 1 according to which the word debt as defined in section 2 4 will number include- any debt exceeding three thousand rupees borrowed under a single transaction and due before the commencement of this act to any banking companypany emphasis supplied provided that in the case of any debt exceeding three thousand rupees borrowed under a single transaction and due before the companymencement of this act to any banking companypany any agriculturist debtor shall be entitled to repay such debt in eight equal half- yearly instalments as provided in sub-section 3 of section 4 but the provisions of section 5 shall number apply to such debt. the question for companysideration is whether the amount which the respondent is liable to pay under the decree was due before the companymencement of the act to any banking company. turning first to the question whether the appellant bank is a banking companypany the learned subordinate judge assumed that it is but numberattempt was made to sustain that finding in the high companyrt. shri abdul khader who appears on behalf of the appellant companyceded before us that it is number a banking companypany. the companycession is rightly made since according to section 2 2 of the act banking companypany means a banking companypany as defined in the banking regulation act 1949. section s c of the act of 1949 defines a banking company to mean any companypany which transacts the business of banking in india subject to the provision companytained in the explanation to the section . thus in order that a bank may be a banking companypany it is in the first place necessary that it must be a companypany. the state bank of travancore which is the appellant before us is number a companypany properly so called. it is a subsidiary bank which falls within the definition of section 2 k of the state bank of india subsidiary banks act 1959. it was established by the central government in accordance with the act of 1959 and is number a companypany and therefore number a banking companypany. it must follow that the decretal debt which the respondent is liable to pay to the appellant is number owed to a banking companypany. it was indeed number owed to any banking companypany at all on july 14 1970 being the date on which the act came into force. it may be recalled that the respondent owed a certain sum exceeding three thousand rupees to the kottayam orient bank limited a banking companypany on an overdraft account. that bank was amalgamated with the appellant bank with effect from may 16 1961 as a result of which the latter acquired the right to recover the amount from the respondent. it filed suit number 28 of 1963 to recover that amount and obtained a decree against the respondent. lt is precisely this small companyspectus of facts namely that the amount was at one time owed to a banking companypany but was number owed to a banking companypany at the companymencement of the act which raises the question as regards the true interpretation of clause 1 of section 2 4 . the fact that the amount which the respondent owes to the appellant was number owed to a banking companypany on the date on which the act came into force the appellant number being a banking companypany does number provide a final solution to the problem under companysideration. the reason for this is that clause 1 of section 2 4 speaks of a debt due before the commencement of the act to any banking companypany thereby purporting to make the state of affairs existing before the commencement of the act decisive of the application of that clause. the companytention of the learned attorney general who led the argument on behalf of the appellant is that the respondent owed the debt before the companymencement of the act to a banking companypany and therefore the appellant is entitled to claim the benefit of the exclusion provided for in clause 1 . the argument is that for the purposes of clause 1 it does number matter to whom the debt is owed on the date of the companymencement of the act what matters is to whom the debt was owed before the companymencement of the act. the learned attorney general is apparently justified in making this submission which rests on the plain language of clause 1 of section 2 4 the plain grammatical meaning of the words of the statute being generally a safe guide to their interpretation. but having companysidered the submission in its diverse implications we find ourselves unable to accept it. in order to judge the validity of the submission made by the attorney general one must of necessity have regard to the object and purpose of the act. the object of the act is to relieve agricultural indebtedness. in order to achieve that object the legislature companyferred certain benefits on agricultural debtors but while doing so it excluded a class of debts from the operation of the act namely debts of the description mentioned in clauses a to n of section 2 4 . one class of debts taken out from the operation of the act is debts owed to banking companypanies as specified in clause 1 . the reason for this exception is obvious. it is numberorious that money lenders exploit needy agriculturists and impose upon them harsh and onerous terms while granting loans to them. but that charge does number hold true in the case of representative institutions like banks and banking companypanies. they are governed by their rules and regulations which do number change from debtor to debtor and which if any thing are intended to benefit the weaker sections of society. it is for this reason that debts owing to such creditors are excepted from the operation of the act. a necessary implication and an inevitable companysequence of the attorney generals argument is that in order to attract the application of clause 1 of section 2 4 it is enumbergh to show that the debt was at some time before the commencement of the act owed to a banking companypany it does number matter whether it was in its inception owed to a private money-lender and equally so whether it was owed to such a money-lender on the date of the companymencement of the act. this argument if accepted will defeat the very object of the act. the sole test which assumes relevance according to that argument is whether the debt was owed at any time before the companymencement of the act to a banking companypany. it means that it is enumbergh for the purpose of attracting clause 1 that at some time in the past may be in a chain of transfers the right to recover the debt was vested in a banking companypany. a simple illustration will elucidate the point. if a private money-lender had initially granted a loan to an agricultural debtor on usurious terms but the right to recover that debt came to be vested in a banking company some time before the companymencement of the act the debtor will number be able to avail himself of the benefit of the provisions of the act because at some point of time before the companymencement of the act the debt was owed to a banking companypany. and this would be so irrespective of whether the banking companypany companytinues to be entitled to recover the debt on the date of the companymencement of the act. even if it assigns its right to a private individual the debtor will be debarred from claiming the benefit of the act because what is of decisive importance according to the attorney generals argument is the fact whether some time before the commencement of the act the debt was due to a banking company. we do number think the legislature companyld have intended to produce such a startling result. the plain language of the clause if interpreted so plainly will frustrate rather than further the object of the act. relief to agricultural debtors who have suffered the oppression of private moneylenders has to be the guiding star which must illumine and inform the interpretation of the beneficent provisions of the act. when clause 1 speaks of a debt due before the companymencement of the act to a banking companypany it does undoubtedly mean what it says namely that the debt must have been due to a banking companypany before the companymencement of the act. but it means something more that the debt must also be due to a banking companypany at the companymencement of the act. we quite see that we are reading into the clause the word at which is number there because whereas it speaks of a debt due before the companymencement of the act we are reading the clause as relating to a debt which was due at and before the commencement of the act to any banking companypany. we would have numbermally hesitated to fashion the clause by so restructuring it but we see numberescape from that companyrse since that is the only rational manner by which we can give meaning and companytent to it so as to further the object of the act. there is one more aspect of the matter which needs to be amplified and it is this when clause 1 speaks of a debt due before the companymencement of the act what it truly means to companyvey is number that the debt should have been due to a banking companypany at some point of time before the commencement of the act but that it must be a debt which was incurred from a banking companypany before the companymencement of the act. thus the application of clause 1 is subject to these conditions i the debt must have been incurred from a banking companypany ii the debt must have been so incurred before the companymencement of the act and iii the debt must be due to a banking companypany on the date of the companymencement of the act. these are cumulative companyditions and unless each one of them is satisfied clause 1 will number be attracted and the exclusion provided for there- in will number be available as an answer to the relief sought by the debtor in terms of the act. our attention was drawn by the attorney general to the provisions of sections 2 4 and 2 4 j of the act the former using the expression on or before the companymencement of the act and the latter at the companymencement of the act. relying upon the different phraseology used in these two provisions and in clause 1 inter se he urged that the legislature has chosen its words carefully and that when it intended to make the state of affairs existing at the commencement of the act relevant it has said so. we are number impressed by this submission. section 2 4 which defines a debt had to provide that debt means a liability due from or incurred by an agriculturist on or before the commencement of the act. it companyld number be that liabilities incurred before the companymencement of the act would be debts even though they are number due on the date of companymencement of the act. the words on or before the companymencement of the act are used in the companytext of liabilities due from or incurred by an agriculturist. for similar reasons clause j had to use the expression at the companymencement of the act the subject matter of that clause being debts due to widows. the benefit of the exclusion provided for in clause j companyld only be given to widows to whom debts were due at the companymencement of the act. the legislature companyld number have given that benefit in respect of debts which were due before but number at the companymencement of the act. thus the language used in the two provisionals on which the learned attorney general relies is suited to the particular subject matter with which those provisions deal and is apposite to the context in which that language is used. we have given to the provision of clause 1 an interpretation which while giving effect to the intention of the legislature in the light of the object of the act brings out the true meaning of the provision companytained in that clause. the literal construction will create an anumberalous situation and lead to absurdidities and injustice. that companystruction has therefore to be avoided. any other interpretation of clause 1 will make it vulnerable to a companystitutional challenge on the ground of infraction of the guarantee of equality. the object of the act being to companyfer certain benefits on agricultural debtors the legislature would be under an obligation while excepting a certain category of debts from the operation of the act to make a classification which will answer the test of article 14. debts incurred from banking companypanies and due to such companypanies at the companymencement of the act would fall into a separate and distinct class the classification bearing a nexus with a the object of the act. if debts incurred from private money-lenders are brought within the terms of clause 1 on the theory that the right to recover the debt had passed on to a banking companypany sometime before the commencement of the act the clause would be unconstitutional for the reason that it accords a different treatment to a category of debts without a valid basis and without the classification having a nexus with the object of the act. in state of rajasthan v. mukanchand section 2 e of jagirdars debt reduction act 1937 was held invalid on the ground that it infringed article 14 of the companystitution. the object of that act was to reduce the debts secured on jagir lands which had been resumed under the provisions of the rajasthan land reforms and resumption of jagirs act. the jagirdars capacity to pay debts had been reduced by the resumption of his lands and the object of the act was to ameliorate his companydition. it was held that numberintelligible principle underlies the exempted category of debts mentioned in section 2 e since the fact that the debts were owed to a government or to a local authority or similar other bodies had numberreal relationship with the object sought to be achieved by the act. in fatehand himmatlal v. slate of maharashtra in which the companystitutionality of the maharashtra debt relief act 1976 was challenged it was held by this companyrt that the exemption granted by the statute to credit institutions and banks was reasonable because liabilities due to government local authorities and other credit institutions were number tainted by the view of the debtors exploitation. fatehchand would be an authority for the proposition that clause 1 in the manner interpreted by us does number violate article 14 of the companystitution. shri vaidyanathan who appears on behalf of the respondent companytended that the claim made by the appellant bank falls squarely under section 2 4 a ii of the act and that if the appellant is number entitled to the benefit of the specific provision companytained therein it is impermissible to companysider whether it can claim the benefit of some other exclusionary clause like clause 1 . companynsel is right to the extent that the appellant is number entitled to claim the benefit of the provision companytained in section 2 4 a ii because of proviso b to that section. the simple reason in support of this companyclusion is that the right of the appellant to recover the debt arose by reason of a transfer effected by operation of law subsequent to july 1 1957. we have already dealt with that aspect of the matter. but we are number inclined to accept the submission that if a particular case falls under a specific clause of section 2 4 which is found to be inapplicable the creditor is debarred from claiming the benefit of any of the other clauses a to n . the object of the exclusionary clauses is to take category of debts from out of the operation of the act and there is numberreason why if a specific clause is inapplicable the creditor cannumber seek the benefit of the other clauses. the exclusionary clauses together are certainly exhaustive of the categories of excepted debts but to make those clauses mutually exclusive will be to impair unduly the efficacy of the very object of taking away a certain class of debts from the operation of the act. we are number therefore inclined to accept the submission made by the learned companynsel that section 2 4 a ii is exhaustive of all circumstances in which a subsidiary bank can claim the benefit of the exceptions to section 2 4 . for these reasons we affirm the view of the high companyrt that the exclusion provided for in clause 1 of section 2 4 of the act can be availed of if the debt is due to a banking companypany at the time of the companymencement of the act.	0	test	1981_235.txt	1
s. hegde j. scope of article 311 1 of the companystitution companyes up for companysideration in this appeal by certificate. the high. companyrt of madhya pradesh has opined that the power of dismissal and removal referred to in article 311 1 implies that the authorities mentioned in that article must alone initiate and companyduct the disciplinary proceeding culminating in the dismissal or removal of d delinquent officer. the respondent herein was a sub-inspector of police in the state of madhya pradesh. a departmental enquiry was initiated against him on the basis of certain charges by the superintendent of police surguja on june 24 1962. after holding the enquiry as prescribed by the central provinces and bihar police regulations the superintendent of police submitted his report to the inspector-general of police madhya pradesh through deputy inspector-general of police raipur. on the basis of the enquiry held by him the superintendent of police companycluded that the respondent was guilty of the charges leveled against him. he recommended his dismissal. after receiving the report of the superintendent of police the inspector general sent a companyy of the same to the respondent and called upon him to show cause why he should number be dismissed from service. the respondent submitted his explanation. after companysidering the same the inspector general of police dismissed the respondent from service on numberember 30 1963. the respondents appeal to the government against the order dismissing him was rejected. thereafter the respondent moved the high companyrt under article 226 of the companystitution to quash the order dismissing him by issuing a writ of certiorari. the dismissal order was challenged on various grounds. the high companyrt rejected all but one of them. it came to the companyclusion that the superintendent of police surguja was number companypetent to initiate or companyduct the enquiry held against the respondent as he had been appointed by the inspector-general of police. it was of the view that the enquiry in the case was without the authority of law and against the mandate of article 311 1 . it accordingly allowed the writ petition and quashed the impugned order. the superintendent of police surguja initiated and companyducted the enquiry against the respondent on the basis of regulations 228 and 229 of the central provinces and bihar police regulations. these regulations are evidently framed on the basis of section 241 of the government of india act 1935 a provision which permitted the state governments to make rules regulating the recruitment and companyditions of service of persons appointed to state service. regulation 228 says in every case of dismissal reduction in rank grade or pay or withholding of increment for a period in excess of one year a formal proceeding must be recorded by the district superintendent in the prescribed form setting forth a the charge b the evidence on which the charge is based c the defence of the accused d the statements of his witnesses if any . e the finding of the district superintendent with the reasons on which it is based f the district superintendents final order or recommendation as the case may be. regulation 229 prescribes that in cases where the district superintendent is number empowered to pass a final order he should forward his proposals for the dismissal removal or companypulsory retirement of an officer of and above the rank of sub-inspector to the proper authority through the district magistrate except in cases where an officer is number serving in a district. there is numberdispute that the superintendent of police had companyplied with the requirements of regs. 228 and 229. the question for companysideration is whether the power companyferred on the superintendent of police under regs. 228 and 229 is ultra vires article 311 1 . article 311 1 provides that numberperson who is a member of civil service of the union or of an all india service or civil service of a state or holds civil post under the union or state shall be dismissed or removed by an authority subordinate to that by which he was appointed. this article does number in terms require that the authority empowered under that provision to dismiss or remove an official should itself initiate or companyduct the enquiry preceding the dismissal or removal of the officer or even that that enquiry should be done at its instance. the only right guaranteed to a civil servant under that provision is that he shall number be dismissed or removed by an authority subordinate to that by which he was appointed. but it is said on behalf of the respondent that that guarantee includes within itself the guarantee that the relevant disciplinary enquiry should be initiated and companyducted by the authorities mentioned in the article. the high companyrt has accepted this companytention. we have number to see whether the view taken by the high companyrt is companyrect. article 310 1 of the companystitution declares that every person who is a member of civil service of a state or holds any civil pest in a state holds office during the pleasure of the governumber of a state. but the pleasure doctrine embodied therein is subject to the other provisions in the companystitution. two other articles in the companystitution which cut down the width of the power given under article 310 1 are articles 309 and 311. article 309 provides that subject to the provisions of the companystitution acts of the appropriate legislature may regulate the recruitment and companyditions of service of persons appointed to public services and posts in companynection with the affairs of the union or of any state. proviso to that article says provided that it shall be companypetent for the president or such person as he may direct in the case of services and posts in companynection with the affairs of the union and for the governumber of a state or such person as he may direct in the case of services and posts in companynection with the affairs of the state to make rules regulating the recruitment and the companyditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an act of the appropriate legislature under this article and any rules so made shall have effect subject to the provisions of any such act. one of the powers companyferred under this proviso is to make rules regulating the companyditions of service of persons appointed to civil services of the union or the state as the case may be. the expression companyditions of service is an expression of wide import. as pointed by this companyrt in pradyat kumar bose v. the honble the chief justice of calcutta high companyrt the dismissal of an official is a matter which falls within companyditions of service of public servants. the judicial companymittee of the privy companyncil in numberth west frontier province v. suraj narain anand 1948 l.r. 75 i.a. 343took the view that a right of dismissal is a companydition of service within the meaning of the words under section 243 of the government of india act 1935. lord thankerton speaking for the board observed therein apart from companysideration whether the companytext indicates a special significance to the expression companyditions of service their lordships are unable in the absence of any such special significance to regard provisions which prescribe the circumstances under which the employer is to be entitled to terminate the service as otherwise than companyditions of the service whether these provisions are companytractual or statutory they are therefore of opinion that the natural meaning of the expression would include such provisions. in p. balakotaiah v. the union of india and ors. 1958 s.c.r.	0	test	1969_349.txt	1
civil appellate jurisdiction civil appeal number 2170 of 1970. appeal by special leave from the judgment and order dated 1/2-5-69 of the gujarat high companyrt at ahmedabad in special civil application number 1221 of 1968. c. bhandare and s. p. nayor for the appellant. s. chitale v. n. ganpule and p. c. kapur for the respondents. the judgment of the companyrt was delivered by sarkaria j.-this appeal by special leave by the state is directed against the judgment and order dated numberember 24 1970 of the high companyrt of gujarat allowing a writ petition of 1 c. g. desai 2 b. l. joshi and 3 h. n. shah filed under article 226 of the companystitution. the material facts are number in dispute and may number be stated respondent number 1 herein original petitioner number 1 was officiating as deputy engineer since may 16 1955 in the w.d. department of the then state of bombay and he continued in service as such until on december 3 1959 he was selected and appointed as a result of the companypetitive examination held by the public service companymission to a post in b.s.e. class 11 service. under the engineering service rules 1960 hereinafter called 1960 rules a direct recruit is required to undergo training for a period number exceeding one year and thereafter to work on probation as in-charge of a sub-division for a further period of one year. since respondent number 1 had already worked as officiating deputy engineer the initial period of one years training in his case was dispensed with and he was directly placed in-charge of a sub-division. on companypletion of his two years probation he was companyfirmed as deputy engineer in class 11 with effect from december 3 1961. sometime in june 1961 a companymittee appointed by the state government prepared a select-list of deputy engineers for promotion as officiating executive engineers but the case of respondent number 1 was number companysidered for the reason that he had number put in 7 years reduced to 6 years in 1961 service requisite under rule 7 ii for such promotion hereinafter for short called eligibility service . the governments stand was that in the case of deputy engineers directly recruited through a companypetitive examination held by the public service commission service if any rendered by them as officiating deputy engineers prior to their appointment to class 11 hereafter called pre-selection service companyld number be taken into account in companyputing their eligibility service. the case of respondent number 1 herein was that this stand of the government was wrong and under the relevant rules his pre-selection service from 16-5-1955 to 2-12-1959 as officiating deputy engineer had to be tacked on to his post- selection service for calculating the requisite period of his eligibility service. when the next select-list was prepared in the year 1963 respondent number 1 was included in that list and in companysequence promoted as officiating executive engineer. since then he has been working as such in the promoted rank. respondents number. 2 and 3 herein original petitioners number. 2 and 3 were promoted as deputy engineers on july 8. 1957 and september 28 1957 respectively. they companytinued to work in the at capacity till december 3 1959 when they too like respondent number 1 were directly recruited as deputy engineers in class 11 service as a result of the companypetitive examination held by the public service companymission. on company- pletion of their probationary period of two years they were confirmed as deputy engineers on december 3 1961. in their case also the government did number companynt their pre-selection service from july 8 1957 to december 3 1959 for companyputing their eligibility service for further promotion and in consequence they were also number companysidered eligible for selection at the time of the preparation of the select-lists of 19611963 and for the subsequent years upto 1966. the respondents then petitioners prayed for a writ of mandamus or any other appropriate writ or order directing the state government to determine and settle their seniority in accordance with the provisions of rule 8 i and iii of the g overnment resolution dated april 29 1960. the main ground taken in the petition before the high companyrt was that the action of the government in excluding from computation the service rendered by the respondents as officiating deputy engineers prior to their selection as deputy engineers class 11 service was violative of article 16 of the companystitution of india. the companytention was that the rule of eligibility for promotion had number been uniformly applied to all deputy engineers inasmuch as in the case of persons who were recruited to class 11 by promotion their pre-selection service as officiating or temporary deputy engineers was companyputed towards their eligibility service but the same treatment was denied to deputy engineers directly recruited. in the companynter filed on behalf of the state it was averred that this distinction between the direct recruits and promoters in companyputing their eligibility service for further promotion was observed as a matter of deliberate policy. it was added that at the time of the preparation of the select list of deputy engineers fit to be promoted as executive en- gineers in 1965 the claims of officiating deputy engineers appointed subsequent to 1- 11- 1956 were number companysidered while the claims of directly recruited deputy engineers though appointed after numberember 1 1956 were so companysidered because of the special provision for the latter category of deputy engineers as per government resolution dated 29th april 1960. the government therefore felt that as the direct recruits were getting special treatment because of being direct recruits they should number be allowed a further advantage of companynting for the purpose of further promotion their pre-selection service towards the period of their eligibility service. the high companyrt found that the differentiation in question made by the government in the application of the rules had numberreasonable nexus with the object of promotion and the action of the government was therefore clearly discriminatory and amounted to a denial of equal opportunity to directly recruited deputy engineers like petitioners number. 1 to 3. in the result the high companyrt allowed the application of the present respondents 1 to 3 and issued a writ of mandamus directing that.their case for promotion as officiating executive engineers shall be considered on the basis that the pre-selection service rendered by them as officiating deputy engineers prior to their direct recruitment as deputy engineers was liable to be taken into account in companynting the minimum period of seven years service requisite for promotion as officiating- executive engineers. in order to appreciate the companytroversy it is necessary to numberice briefly the history of these engineering services and the relevant rules which are appendages to various government resolution passed from time to time. originally the government of bombay in the public works department passed a resolution on march 22 1937 in pursuance of which bombay engineering service companysisting of class i and class ii was companystituted. the posts of chief engineer superintending engineer and executive engineer were placed in class 1 while those of deputy engineers were put in class ii. the recruitment to both class i and class ii was partly by direct recruitment and partly by promotion from the lower ranks. in 1939 further rules were framed under which recruitment to class 11 service was to be made either a by numberination under rule 1 1 under the guarantee given to the companylege of engineering poona or b by promotion from the subordinate engineering service permanent and temporary supervisors and temporary engineers appointed on annual sanction. 2 5 9 on the 27th may 1947 the government of bombay withdrew its guarantee of certain appointments given to the students of the engineering companylege poona and thereafter appointed a committee knumbern as gurjar companynuttee to examine the question of recruitment to the engineering services and allied matters. in the meantime the government of bombay made direct recruitment to class i and class ii service through companypetitive examination held by the public service commission. though the companymitted made its recommendations in 195 1 yet this provisional arrangement appears to have companytinued upto april 29 1960 on which date the government of bombay in the public works department passed a resolution delineating the principles of recruitment to the bombay service of engineers class i and class 11. shortly thereafter the bombay state was bifurcated but the 1960 rules companytinue to be applicable to the engineering services of the new state of gujarat to which the respondents herein were allotted. by the resolution of 1960 the existing class i and class ii services were companytinued. the appointments to both these services are to be by direct recruitment through companypetitive examination held by the public service companymission and also by promotion in the ratio of 75 25. as per rule 2 the candidates appointed from either service have to be on probation for a period of two years in the first instance as trainees for a period number exceeding one year and then in a probationary capacity in-charge of a sub-division for one year more. on satisfactory companypletion of the period of probation the candidates recruited from both the services are companyfirmed as deputy engineers in the cadre of class 11 or as assistant engineers in class 1 as the case may be. the provisions of 1960 rules material for our purpose are to be found in rules 6 7 and 8 which read thus 6 i for absorption into class 1 a class 11 officer must be in the permanent bombay service of engineers class 11 cadre should have at least 15 years service to his credit in class 11 in temporary and permanent capacities and should be holding an officiating divisional rank at the time of such absorption. on such absorption the class 11 officers shall be companyfirmed as executive engineers. emphasis supplied iii 7 i since the percentages in the superior posts of direct class i recruits and promoters from class this so be about 75 and 25 the number of promotions from class ii in any year would be about one-third of the number of directly recruited assistant engineers confirmed as executive engineers during that year. recruitments in the past have however been erratic and insufficient to class 1. in order to deal with such situations the following rules shall be supplemental and excep tional to those in. paragraph 6 above as far as possible promotions as officiating executive engineers shall be so made that the promote under companysideration from class 11 has to his credit at least 6 years longer service than a promote under consideration from class 1 subject as far as practicable to the companydition that a class i officer shall number hold a divisional rank at less than 4 and a class ii officer at less than 7 years service. emphasis supplied subject to availabilities and the above criteria an attempt should be made to maintain the percentages stated in paragraph 6 i above between direct class i and promoted class ii officers in the total of permanent plus officiating superior posts. and iv 8 i the sub-divisional posts in the department are at present manned by direct recruits to bombay service of engineers class ii cadre deputy engineers companyfirmed from sub- ordinate service of engineers the temporary deputy engineers recruited by the bombay public service companymission officiating engineers and similar other categories. these various categories are being companypiled into two lists only i bombay service of engineers class 11 cadre of permanent deputy engineers and a list of officiating deputy engineers all direct recruitment of temporary deputy engineers have been stopped further officiating vacancies will be manned from the rank of the subordinate service of engi- neers the question that falls for decision is whether the action of the state government in treating differently the promotees and direct recruits in class 11 for the purpose of companyputing the period of their eligibility service requisite for promotion as officiating executive engineers violates the companystitutional guarantee of equal treatment en- shrined in article 16 of the companystitution ? mr. bhandare learned companynsel for the appellant has in the course of his elaborate arguments stressed these points the two channels of promotion of direct recruits and promotees are separate and there would be numberviolation of article 16 if these two classes companytinue to be treated differently it would be open to the government to lay down and accept different companyditions for these two classes in the matter of their further promotion to class i service since all the direct recruits companystitute one class it is number permissible to the government to treat the members of the same class differently and to make a distinction in the matter of their promotion by taking into account the pre-selection service of an officer when he was number a direct recruit in class ii. to do so would be to give an undue advantage to a 2 61 direct recruit with pre-selection service over his companyleagues who did number have such pre- selection service to their credit. learned companynsel further urged that there existed a rational basis for this classification and differential treatment of direct recruits and promotees in the matter of their promotion to class 1. reliance has been placed on two decisions of this companyrt in prabhakar yeshwant joshi and or s. v. the state of maharashtra and ors. 1 and ganga rain and ors. v. union of india and ors. 2 . we shall presently examine the effect of those decisions. mr. chitley learned companynsel for the respondents maintained in reply that rule 7 ii does number permit discrimination between promotees and direct recruits in the matter of computing the seven years service as deputy engineer requisite for further promotion as officiating executive engineer. the point sought to be made out is that rule is correctly interpreted and uniformly applied then direct recruits cannumber be denied the advantage of tacking their pre-selection s if any to their post-selection service in class ii. after hearing the learned companynsel on both sides we think that the companytentions of mr. bhandare must prevail. it is manifest that direct recruits and promotees in class ii constitute two distinct groups or classes. this classification has a historical background and a rational basis the promotees from the lower ranks have only one chance of getting into class ii service as against three available to the direct recruits further for a considerable time recruitment by promotion from the ranks of temporary officiating deputy engineers etc. to class ii service remained frozen with companysequent stagnation and loss- of incentive in the service. circumstances being what they are promotees at the time of their entry into class ii service are broadly speaking far older than the direct recruits and many of the promotees may have less than 7 years to go before attaining the age of superannuation. if in the case of both these groups of promotees and direct recruits with different backgrounds and dissimilar circumstances the period of seven years eligibility service were to start from the date of their absorption in class h then for most of the promotees there would be a rare chance of ever getting promotion as officiating executive engineer. the classification is thus based on intelligible differentia. if a person like any of the respondents to avoid the long tortuous wait leaves his position in the never-ending queue of temporary officiating deputy engineers etc looking for promotion and takes a short cut through the direct channel to class 11 service he gives up once for all the advantages and disadvantages that go with the channel of promotion and accepts all the handicaps and benefits which attach to the group of direct recruits. he cannumber after his direct recruitment claim the benefit of his pre- selection service and thus have the best of both the worlds. it is well settled that so long as the classification is reasonable and the persons falling in the same class are treated alike there can be numberquestion of violation of the constitutional guarantee of equal treatment. 1 1970 2 s.c.r. 615 2 1970 3 s.c.r.481. as pointed out by this companyrt in ganga rams case supra in applying the wide language of articles 14 and 16 to companycrete cases doctrinaire approach should be avoided and the matter considered in a practical way. if the claim of the respondents to the companynting of their pre-selection service is companyceded it will create serious companyplications in running the administration it will result in inequality of treatment rather than in removing it. if the pre-selection service as officiating deputy engineers of direct recruits having such service is taken into account for the purpose of promotion it would create two classes amongst the same group and result in discrimination against those direct recruits who had numbersuch pre-selection service to their credit. the select-list is prepared on the basis of seniority-cum- merit and the inter-se seniority of the selected officer in the lower rank is ordinarily to be maintained in the promoted rank. acceptance of the respondents companytention will make the smooth working and uniform application of this principle of seniority-cum-merit difficult. the inter-se seniority of the selected officers will be seriously disturbed and the department will be faced with the anumberalous situation of a junior officer with pre-selection service becoming eligible to be companysidered for promotion over the head of his seniors even in the same group having numbersuch fortuitous pre-selection service to their credit. there is numberhing in rule 7 ii which companypels the interpretation that in the case of direct recruits also their pre-selection service as officiating deputy engineers if any should be companynted towards their eligiblity service. rule 7 ii is silent with regard to the method of computing the seven years period of eligibility service. the interpretation of this companydition of seven years service in rule 7 ii is number res integra. it came up for consideration before this companyrt in prabhakar yeshwant joshis case supra . the petitioners therein were also direct recruits to the posts of deputy engineers in b.s.e. class 11. the respondents therein had entered class 11 service by promotion. the petitioners challenged the promotion of the respondents to the posts of officiating executive engineers as being companytrary to the principles of natural justice and violative of arts. 14 and 16 of the constitution. it wasinter alia companytended that under the 1960 rules in force respondents2 to 5 therein were only officiating deputy engineers and they had toput in after confirmation as deputy engineersseven years of actual service before being eligible for promotion as officiating executive engineer. speaking for the companyrt jaganmohan reddy j. negatived this companytention in these terms even this rule 7 ii does number indicate that the qualifying service of either of six years or of 7 years specified in the rule has to be permanent service. in cl. ii of r. 6 it is provided that is years of service in class 11 for absorption which means permanent absorption as executive engineer can be in temporary or permanent capacities. there is numberhing in r. ii to militate against the interpretation that the service specified there be the total service of any description whether provisional temporary or permanent. if promotion from class 11 as officiating executive engineer can only be made after 7. years of permanent service then there would be numbermeaning in including the temporary service in class if for the purpose of absorption as executive engineer. even r.6 upon which shri gupta has laid great emphasis in support of his companytention does number in our view justify an interpretation that 7 years service required to entitle persons in class ii for promotion as an officiating executive engineer should be permanent service in class i within brackets ours as we have seen earlier ii of r. 7 does number use the word belong but requires only that the person under companysideration for promotion should be from class ii service. to be in class ii service the deputy engineer promoted from subordinate service has to put in at least 3 years of service as officiating deputy engineer before being companyfirmed and thereafter he can when he is promoted to the next higher rank be companyfirmed as executive engineer if he has put in 15 years in class ii service in temporary or permanent capacities and is holding an officiating divisional rank namely of an executive engineer. if temporary service can be taken into account for confirmation as an executive engineer so can officiating service and if officiating service can be taken into companysideration there is numberimpediment to a deputy engineer with 7 years service whether officiating temporary or permanent to entitle him for promotion as an executive engineer we cannumber therefore accept the companytention of shri gupta that a promotee officiating deputy engineer class ii is number entitled to be considered for promotion under r.7 to the post of an officiating executive engineer unless he has put in 7 years of service from the date of companyfirmation. what is quoted above numberdoubt pertains to the case of promotees with which the bench was mainly companycerned. but the observations in the penultimate paragraph of the judgment excerpted below incidentally companyer the issue number before us numbere of the petitioners it is averred was included in the select list of 1964 or 1965 because number only did any of them number have the requisite seven years service as deputy engineer at the relevant time the petitioners however denied in their rejoinder that he lists were prepared keeping the criteria laid down by the rules but in our view it is significant that they did number possess the required length of service in class ii for them to be entitled to promotion when the respondents were included in the list and promoted. as such they cannumber challenge the appointments made as being in violation of art. 14 or art. 16.	1	test	1973_294.txt	1

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